Dismissed

Chandravardhan B. Parekh v. the Board of Control for Cricket in India

Bombay HC7 Sept 2007PIL/99/2007

Case brief

AI extract

What is this about?

Public Interest Litigation challenging the election of Shri Lalit Kumar Modi as Vice President of BCCI due to his 1985 conviction for drug possession. Held: Incident is stale; regulations may have been ink force later. Case remitted to pending Supreme Court proceedings. Dismissed.

What did the court decide?

Petition dismissed on the ground that the 1985 incident is stale and no impediment exists without further proceedings.

Chandravardhan B. Parekh Vs the Board… — Constitutional and Fundamental Rights | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 O.O.C.J.

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 Public Interest Litigation W.P.(Ld) No.66 of 2006

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 Chandravardhan Parekh )
 aged about 71 years )
 residing at 28,Piroja )
 Mansion, Ali Bhai )
 Premji Marg, )
 Mumbai 400 064 ) ..Petitioner
 vs.

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 1.The Board of Control )
 for Cricket in India )
 a registered society )
 having its Head )
 Quarter at "Brabourne)
 Stadium, North Stand )
 Veer Nariman Road, )
 Mumbai 400 021 )
 through its Honorary )
 Secretary )
 Shri Niranjan R.Shah )
 2.Shri Lalit Kumar Modi)
 C/o M/s Modi )
 Enterprises, Nirlon )
 House, Dr.Annie )
 Beasant Road, Worli )
 Mumbai 400 036 ) ..Respondents

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 Mr.K.K.Singhvi, Sr.Counsel with Mr.C.U.Singh, Sr.Counsel
 with Ms.Soma Singh and Mr.Vivek Sharma for petitioner

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 Mr.Venkatesh Dhond with Ms.Usha Dahanukar, Ms.Neha Bhide
 and Mr.Kaushal Shroff i/b UKD Legal for respondent no.1

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 Mr.Janak Dwarkadas, Sr.Counsel i/b M/s Crawford Bayley
 and Co. for respondent no.2.

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CORAM : SWATANTER KUMAR C.J. AND
S.C.DHARMADHIKARI J.
7th September, 2007
Judgment Reserved on : 27.6.2007

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Judgment Pronounced on: 7.9.2007

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J U D G M E N T (Per S.C.Dharmadhikari J.)

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 1. The petitioner has approached this Court by the
 present Public Interest Litigation under Article 226 of
 the Constitution of India challenging the election of
 Respondent no.2 to the post of Vice President of
 Respondent no.1 Association (for short BCCI). The reliefs
 claimed in the petition are as under:

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 (a) That this Hon’ble Court be pleased to issue a
 Writ of mandamus or a writ in the nature of
 mandamus or any other appropriate writ, order or
 direction of this Hon’ble Court directing the
 respondent no.1 to remove the Respondent No.2 from
 holding any office or positio in the affairs of the
 Respondent No.1 as he has been convicted for
 committed offence involving drug, trafficking,
 criminal assaults and abused the statutory
 provisions enacted in the State of Rajasthan.

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 (b) That this Hon’ble Court be pleased to issue a

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 writ of Mandamus or a writ in the nature of
 mandamus or any other appropriate writ, order or
 direction of this Hon’ble Court prohibiting the

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 Respondent No.2 from continuing to hold any office
 or position in the affairs of Respondent No.1
 including participating in any affairs of the
 respodent no.1;

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 (c) That this Hon’ble Court be pleased to issue a
 Writ of mandamus or a writ in the nature of
 mandamus or any other appropriate writ, order or
 direction of this Hon’ble Court directing the
 respondent no.1 to act strictly in terms of the
 statutory principles of not permitting any person
 to hold any office or position who has been
 criminally convicted and found to have acted
 contrary to the "Regulations for Players, Team
 Officials, Managers, Umpires and Administrators"

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 2. The petition is by a cricket lover. He claims it is
 filed in public interest. He contends that he is keenly
 interested in promotion of game and its development. He
 also projects the interests of sports and cricket lovers
 all over the country who look upon the BCCI as protecting
 and safeguarding the interest of citizens in the game.
 The petition alleges that Respondent No.2 could not have
 been elected and in any event cannot continue as Vice
 President. He is convicted of an offence involving moral

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 turpitude. His involvement is in a case of possession of
 a substance, which is prohibited in law. In other words,
 he was convicted after being found in possession of 1 gram
 of Cocaine. Hence, he deserves to be removed. After
 relying upon the Rules and Regulations and Memorandumand
 those pertaining to administrator of BCCI, it is contended
 thus:

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 "It, therefore, follows that in the event any
 person is found to have either been possessing or
 dealing with or in any way being connected with or
 distribution of any illegal drug or indulging in
 gambling, betting or receiving any financial
 speculations or on any Match or any cricketing
 event in any part of the World or accepting any
 money from a bookmaker or being convicted in any
 criminal proceeding involving moral turpitude or
 detrimental to the game of cricket or endangering
 the harmony or affect the reputation or interest of
 the Respondent No.1. Admittedly, "cocaine" is not
 only a prohibited drug, but mere possessing the
 same is a criminal offence of serious nature. Any
 one caught with the said drug and that too more
 than 400 grams and involved in trafficking of the
 same is a serious offence and in terms of
 Regulation 6.2.2 of the Regulation of the
 Respondent No.1, it is punishable offence.
 Therefore, no "Administrator" having committed his
 guilt of drug trafficking of "cocaine" can be
 permitted to be exonerated by the Respondent no.1.

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 "If therefore, if it is detected that although an
 official of the Respondent No.1 (the Respondent
 No.2) was caught in a foreign country having
 involved in drug trafficking of "cocaine" and
 having admitted his guilt, in addition to other
 charges of serious nature and sentence is permitted
 to hold important position in the affairs of the
 Respondent No.1, being a body discharging public
 function, such indulgence shall have to be termed
 as "indulging in capricious and overt acts on the

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 part of the respondent no.1 and in gross violation
 of its own Regulations.

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 "The petitioner has only recently come to learnt
 that the Respondent No.2 was convicted in criminal
 charges of serious nature involving moral
 turpitude." The gist of the criminal acts and
 conduct committed by the Respondent No.2 and that
 too in a foreign country (United States of America)
 is set out thus:-

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 i. Mr.Lalit Modi was studying in Duke University,
 Durham, North Carolina, USA.

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 ii. Mr.Lalit Modi was involved in drug trafficking
 in 1985 and on 24th February, 1985 with Mr.John
 EI-Masry and Mr.Sheperd Small, two of his
 accomplishes barged into "Wilson House" and
 physically assaulted its resident Mr.Alexander Van
 Dyne and kidnapped him. As a result of beating
 with fists, kicking and hitting in the face,
 Mr.Alexander Van Dyne was seriouslsy injured
 causing soft tissue injuries, bruises, black eye,
 lacerations about the face and body, kidney damage
 requiring hospitalisation for two days for
 treatment.

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 iii. On being called by an onlooker, the Police
 arrested Mr.Modi along with his accomplishes and
 they were detained in custody for 3 days. During
 arrest of Mr.Modi, more than 400 grams of Cocaine
 was also found in possession of Mr.Modi.

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 iv. Mr.Modi was charged with indictment of 2nd
 Degree kidnapping and assault of Mr.Alexander Van
 Dyne and causing serious bodily injury and
 conspiracy to traffic in drugs in more than 400
 grams of cocaine by the District Court of Durham
 County, North Caroline, USA.

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 v. On 24th June, 1985 Mr.Modi pleaded guilty of
 the charges, but taking advantage of the North
 Carolina General Statutes and the mitigating
 factors listed for first offence and on the
 recommendatory requests, a plea arrangements were
 entered into under Chapter 15A, para 1022 of the
 North Carolina General Statutes and Mr.Modi was
 sentenced by the Superior Court Division to a 2
 year imprisonment in the N.C.Deptt.of Correction
 along with a $ 10,000 fine. The execution of the

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 said sentence of imprisonment was suspended and
 Mr.Modi as accused was placed on "supervised
 probation for 5 years term" with payment of $250.00
 monthly plus supervision charges fee beginning from
 July 26, 1985. Mr.Modi was also sentenced to
 undergo and perform 300 hours of Community Services
 under the category of intermediate punishment under
 section 1340.11, Clause (6) of the North Carolina
 General Statutes, Chapter 15-A, (Criminal Procedure
 Code).

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 vi. After undergoing 100 hours of community
 services and payment of fine as sentenced, the
 court on 18th April, 1986 after recording that
 Mr.Modi had paid the fine of $10,000.00 and
 completed 100 hours of Community Services and being
 ill and hospitalized, modified the "supervised
 probation" to "unsupervised probation" subject to
 undertaking in writing to arrange and perform 200
 hours of Community Services in India by June 23,
 1990.

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 vii. The respondent No.2 with deliberate motive
 willfully suppressed and concealed the above
 ’conviction’ as well as being involved in "drug
 trafficking" as admittedly before the Court of law.

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 viii. It is submitted that as the Respondent No.2
 was convicted for offences involving criminal
 assault, kidnapping and drug trafficking and having
 pleaded guilty of the same, the Respondent no.2
 could not have been appointed in any office or
 position of the respondent no.1 in terms of the
 Rules and Regulations, as stated above, and is not
 entitled to hold any office or position under the
 Respondent no.1 in any manner.

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 ix. The respondent no.2 is the president of
 Rajasthan Cricket Association, a full member of the
 Respondent No.1. By virtue of representing the
 Rajasthan Cricket Association in the year 2005, the
 respondent no.2 contested the election for the
 office of the "Vice President" of the respodnent
 no.1 and appointed so and it currently holding the
 post of "Vice President" of the Respondent No.1 in
 addition to other positions thereunder. The
 Respondent No.1 is, therefore, an Administrator
 within the meaning of the Rules and Regulations of
 the Respondent No.1 and governed under the ambits
 of the said rules and regulations. It is shocking

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 to be informed that long prior to being elected to
 the office of the "Vice President" by the
 Respondent no.2 in the respondent no.1, all the
 officials of the Respondent No.1 had full knowledge
 about various criminal overt acts on the part of
 the Respondent no.2 and still they have caused the
 respondent no.2 to hold one of the most important
 position in the affairs of the respondent no.1.
 Respondent No.1 who conferred the position of "Vice
 President" to the respondent no.2 in the affairs of
 the respondent no.1 has acted in a manner opposed
 to the law and the Regulations of the respondent
 no.1 as set out more particularly hereinafter.

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 3. It is, therefore, contended that a person convicted of

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 drug trafficking cannot be associated in any manner with
 the B.C.C.I. as that is not conducive to Healthy and
 proper development of the game and its administration.
 Reliance is placed upon the Rajasthan Sports
 (Registration, Recognition and Regulations of

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 Associations) Ordinance, 2004 which later has been made an
 Act of the State Legislature namely Rajasthan Sports
 (Registration, Recognition and Regulation of Associations)
 Act, 2005 and eligibility criteria prescribed thereunder
 for contesting the Election. It is urged that respondent
 no.2 hails from a business family in the State of Punjab.

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 He was not a resident of any District in Rajasthan nor was
 carrying on any business therefrom. In terms of section
 15 read with Schedule "C" of the Rajasthan Sports Act, he
 was not qualified to contest and for being elected to any
 post or position in Rajasthan Cricket Association, more
 so, when he was convicted in the criminal case as

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 mentioned above. He was not residing in the State of
 Rajasthan and yet he contested the election. He has
 suppressed the above facts. In para 27 of the petition,
 the manner in which respodnent no.2 contested the State
 Sports Body Election is set out.

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 4. Based upon the above facts and circumstances, the
 reliefs as reproduced hereinabove have been claimed. In
 substance, it is alleged that respondent no.1 is under
 public duty to ensure that its office bearers are such who
 fulfil the eligibility criteria so also their acts are
 such as would subserve public interest. However, by
 allowing respondent no.2 to continue as Vice President,
 the first respondent has violated the Rules and
 Regulations so also its acts are contrary to public
 interest. It is alleged that by allowing respondent no.2
 to function as Vice President, the respondent no.1 has
 acted contrary to the interest of the sports. All its
 actions are, therefore, violative of the mandate of
 Article 14 of the Constitution of India and in breach of
 the public duty. Therefore, the reliefs referred to above
 be granted.

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 5. Mr.K.K.Singhvi, learned Senior Counsel appearing for
 the petitioners, submits that it is not disputed that the

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 second respondent has been convicted of a serious charge.

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 He has bargained for the punishment. Thus, guilt is
 established and proved. Once conviction is for offence
 involving drugs, then, the rules do not permit his
 continuation any more. He submits that the first
 respondent cannot adopt an attitude where under it would
 wash off its responsibility towards the sports lovers and
 all those who are interested in game. It has to act
 reasonably and fairly. All its actions must be
 transparent and subserving the public good. The Central
 Cricket Body should set an example in as much as it should
 be manned by persons of high calibre and character and
 genuine sportsmen. Today, the position is that the Sports
 Body is controlled fully by people from the business world
 and those having political and other connections. In such
 background, continuance of a person like second respondent
 is more disturbing. Learned Senior Counsel then submits
 that the first respondent has to follow the doctrine of
 fairness and act in good faith. All its activities should
 be directed towards protecting interest of the game. He
 invites our attention to the decision of the Hon’ble
 Supreme Court in the case of Zee Telefilms and another Vs.
 Union of India and others reported in A.I.R.2005 Supreme
 Court 2677 and submits that its present actions are
 contrary to law laid down therein. He submits that the

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 Rules and Regulations of Respondent No.1 specifically
 prohibits any of its "Administrator" as defined in Rule
 1(n) of Regulation 2 from indulging in Gambling, Betting,
 including accepting moneys from a bookmaker. Further, he
 submits that any person guilty of moral turpitude cannot
 hold any office or position in public body discharging
 public functions. He submits that in the present case the
 offence complained of is serious and amounts to grave
 misconduct. In such circumstances, this Court should
 remove the respondent no.2 and direct the first respondent
 to hold election afresh for the vacancy that would be
 caused.

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 6. Learned Senior Counsel has invited our attention to
 the memorandum of Rules and Regulations of the first
 respondent and further contended that the Central Zone,
 which is one of the zones, over which the first respondent
 has jurisdiction and control, consists of Rajasthan
 Cricket Association. He submits that the term
 "Administrator" as defined in clause 1(n) is an inclusive
 definition. He submits that "Vice President" is the
 Administrator of the Board. He submits that the
 membership and jurisdiction of the members which is
 falling under clause 3 would make it clear that Rajasthan
 Cricket Association is a full time member of the first

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 respondent Board. The territorial jurisdiction of a
 member may be within the territory but the first
 respondent has over all supervision and control over the
 members. He has invited our attention to the composition
 of the Board, which is specified in Clause 7. He submits
 that the Board comprises of a President, 5 Vice Presidents
 from each zone and Hon. Secretary and Hon. Joint
 Secretary and Hon.Treasurer. He submits that a member or
 the Associate Member is entitled to have one
 representative on the Board and such representative is
 capable of being changed. He submits that the powers and
 duties of the Board are set out in Regulation No.9. Apart
 from the control over the players, which is one of its
 prime duty and function, the Board through its working
 committee and other committees fulfils the obligations
 stipulated in clause 9. He submits that one of the duties
 which the Board has to perform is making available for the
 purpose of this game, facilities and infrastructure, to
 conduct matches locally and internationally, to buy and
 sell property, to lay out the grounds, pavilions etc.; to
 collect funds so also to employ personnel. To take
 disciplinary action against the player or a Member of
 Board is also part of the duties. He submits that very
 wide powers have been conferred on the working committee.
 The Board is the richest association and has a monopoly

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 status. Once uncontrolled and sweeping powers are
 conferred, then, it is expected that working committee
 members act as trustees for all who elected them; sport
 lovers and general public.

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 7. He submits that the composition of the working

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 committee is such that one representative of a member from
 each of the 5 zones, to be elected on principle of
 rotation in the respective zones, represents his zone on
 the Board. The process is by election. He submits that
 the powers of the President and Secretary are also
 enormous. He submits that clause 20 of the Regulations
 provides for election. He submits that all office bearers
 and Vice Presidents from each zone are elected annually
 and are eligible for re-election. He has invited our
 attention to the procedure for election and has contended
 that the Board has enough power to remove the office
 bearers. He has also invited our attention to clause 6.2
 which, according to him, are additional regulations for
 administrator.

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 8. At this stage, it would be appropriate to reproduce
 this clause.

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 "6.2: Additional Regulations for Administrators:

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 The Administrators are required to follow the
 Regulations as mentioned here under:

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 1. No Administrator shall make any unsubstantiated
 allegation against any players, team officials, or
 administrators (present or past) in public through
 media or otherwise with respect to the breaches
 stated above and shall not comment on any matter
 relating to the functioning of the Board unless and
 until the said allegation is brought to the notice
 of the President in writing and a decision is
 reached by the Board in that behalf. As far as
 possible the Board shall decide on the said matters
 within a period of six months.

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 2. An Administrator shall not use or possess or in
 any way be concerned in the use or distribution of
 illegal drugs."

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 He submits that the mandate thereof is absolutely clear in
 as much as the Administrator shall not use or possess or
 in any way concerned in use and distribution of illegal
 drug. He submits that there is a prohibition to continue
 as Administrator if he is concerned in the use or

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 distribution of illegal drug. Mr.Singhavi has invited our
 attention to the order of conviction and sentence imposed
 upon the second respondent by the Court of Superior
 Division State of North Carolina holding the second
 respondent guilty and indicating him in conspiracy for
 trafficking in drugs. In such circumstances, he submits
 that the petition be allowed and reliefs be granted.

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 9. Mr. Singhvi has also invited our attention to
 Rajasthan Sports Act, 2005 and more particularly chapters
 3 and 6 therein. He submits that section 15(1) clearly
 stipulates that all individual members are eligible to
 contest the elections of a Primary Sports Body and anyone
 contesting an election must possess the qualifications
 prescribed in Schedule "C" of this Act on the date of
 notification of the elections. He submits that the second
 respondent does not fulfil these requirements in as much
 as there is action which has been initiated against him
 vide show cause notice dated 11th July, 2005 calling upon
 respondent no.2 to show cause why disciplinary proceedings
 should not be initiated against him and appropriate action
 as deemed necessary be not taken including expulsion from
 the B.C.C.I. A reply is filed to that show cause notice
 by respondent no.2. He submits that Arbitration before
 the Arbitral Tribunal with regard to the same allegations

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 has been the subject matter of challenge in further
 proceedings and has not gained finality. For all these
 reasons the petition be allowed. Mr.Singhvi has relied
 upon the following decisions in support of the above
 submissions:

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 i) Board of Control for Cricket in India and
 another Vs. Netaji Cricket Club and others (2005)
 4 SCC 741

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 ii) M/s Zee Tele Films Ltd. and another Vs.Union
 of India (AIR 2005 S.C.2677).

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 10. On other hand Mr.Dhond, learned Counsel appearing for
 the first respondent, submits that there is no substance
 in this petition in as much as it cannot be filed as
 "Public Interest Litigation". It is an abuse of process
 of Court. It is filed at the instance of the people who
 have lost the elections wherein second respondent was
 elected as a Vice President. The argument is that entire
 dispute is raised in the context of election to Rajasthan
 Sports Associations’ elections with which the first
 respondent Board is not concerned. He submits that the
 second respondent is not the representative of Rajasthan
 Cricket Association but represents Punjab Cricket

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 Association. That apart, it is contended that the
 petition is not maintainable under Article 226 because the
 allegations do not touch upon the public character or
 public duties of the Board. It is with regard to the
 internal affairs of the Board and election of its working
 committee. It is very clearly held by the Hon’ble Supreme
 Court that no petition under Article 226 or Article 32
 would lie against the Board in so far as its internal
 affairs and management is concerned. He submits that the
 rules and regulations of the first respondent do not
 prescribe for any disqualification or rendering ineligible
 the second respondent from contesting or being elected to
 the post of Vice President. There is no eligibility
 criteria. He submits that Rule 6.2.2 of the Regulations
 and Rule 38(iv) of the Rules framed by the first
 respondent would be applicable to a person, who is
 presently found using, possessing and connected with
 illegal drugs. The incident which is complained of in the
 present case is of the year 1985. He submits that in so
 far as Rule 32(iv) is concerned, a show cause notice was
 issued by the Board on 11th July, 2005. The show cause
 notice was challenged by filing a suit in Jaipur District
 Court being suit no.705 of 2005. There is an interim
 order sought restraining the Board from proceeding with
 the disciplinary action. At the same time the Treasurer

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 of Dholpur Cricket Association, Mr.Rana addressed a

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 written complaint on 23th May, 2005 to the Secretary of
 the Rajasthan Cricket Association. As the Articles of
 Rajasthan Cricket Association provide for Arbitration, the
 complaint was referred to the arbitration of Shri Justice
 R.P.Saxena (Retired Judge of Rajasthan High Court) who
 entered upon the Reference and after considering the
 pleadings and other material on record, made an Award on
 19th July, 2005 holding that the allegations made by
 Mr.Rana are not proved. Hence, the second respondent was
 not disqualified from holding the office of the President
 of Rajasthan Cricket Association. The award was
 challenged by Mr.Rana by filing a petition in the District
 Court, Jaipur being Arbitration No.361 of 2005 which was
 dismissed by the District Court on 31st March, 2006.
 These documents were forwarded by the second respondent in
 reply to the show cause notice and after considering the
 entire material so also the regulations, the Board has
 decided to withdraw the show cause notice and dropped the
 proceedings. In such circumstances, the present petition
 filed in public interest should not be entertained.

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 11. Mr.Dwarkadas, learned Senior Counsel appearing for
 the second respondent, submits that the present petition
 has been filed only to embarrass and harass the second

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 respondent. It is filed at the behest of Mr.Kishor
 Rungta, Mr. Kamal Morarka and Mr. Jagmohan Dalmiya who
 form part of a Group which lost elections to BCCI. He
 submits that the validity of election to Rajashtan Cricket
 Association cannot be raised in the present petition. The
 petitioner has raised the issues which are common to civil
 Appeal no.1260 of 2005 which is pending before the Hon’ble
 Supreme Court of India. Therefore, same allegations
 cannot be repeated and made subject matter of the present
 petition.

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 12. The petitioner has filed an Affidavit in Rejoinder
 and has contended that the petition is maintainable in the
 light of the decision of the Supreme Court in the case of
 M/s Zee Telefilms (supra). It is submitted that there is
 no merit in the preliminary objections raised on behalf of
 the respondents. He submits that there is nothing in
 common with the pending proceedings before the Hon’ble
 Supreme Court. It is contended that Regulation 6.2.2
 would be attracted and applies with full force. It is
 fallacious to urge that the Disqualification regarding use
 of drug operates only in presenti. The rules are silent
 and language of Rule 6.2.2 leaves no manner of doubt that
 even the past acts are covered. It is contended that the
 words "in any way concerned" covers a case of connection

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 with Drug trafficking at any time, present or past. It is

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 an retractive provision. A drug trafficker, therefore,
 cannot be the office bearer of a public body like BCCI.
 It is submitted that the very purpose of inserting this
 regulation would be defeated if the interpretation placed
 by the respondents on them is accepted. Further, it is
 denied that the dispute in Rajasthan Cricket Association
 has anything to do with the subject petition. The
 petition raises an important question with regard to the
 continuance of respondent no.2 on the working committee of
 the first respondent Board. It is necessary to go into
 the issue as to who are fit and eligible to work on the
 same. In such circumstances, attempt to bring in other
 issues including the arbitration proceedings is to confuse
 and mislead this Court.

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 13. Thus, whether a convict under law is disqualified to
 hold any position is the core issue involved. This is not
 a private dispute or question and cannot, therefore, held
 to be covered by any award much less under the Arbitration
 and Conciliation Act. That apart, such an award cannot
 bind this Hon’ble Court.

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 14. For properly appreciating the rival contentions, some
 facts need to be noticed. In this case, respondent no.2

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 was facing a criminal case and he pleaded guilty to a
 charge of felony of conspiracy to possess with intent to
 deliver more than 1 gram of Schedule II controlled
 substance, cocaine (85 CRS.05820). He bargained for
 sentence in as much as he offered to plead guilty and
 sought some remission/concession in the sentence. That
 plea was contained in the Application made on 24th June,
 1985 and it appears that he pleaded guilty in or about
 1985 when he was aged 20 years and was enrolled as a
 student of Duke University, Durham North Caroline which
 had about 50 fraternities (houses) and each fraternity had
 about 40/45 students but there was serious competition.
 Respondent no.2 belonged to one fraternity while one
 Alexander Van Dyen led him and other students to a motel
 room where they were told that they could get notes for
 their project for "Spring Break". The allegation is that
 when they entered the Motel room they were confronted with
 a man with shotgun who robbed them at a gun point. The
 students came back perturbed and humiliated. They
 narrated the incident to their fraternity. Their
 fraternity concluded that the said Alexander purposely
 involved them in the case with a view to spoil their
 project "Spring Break". The said Alexandar admitted to
 have been involved in the case and robbery was committed
 by his distant cousin Stepherd Small. Alexander

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 apologized and promised that he would get their money and
 belongings if allowed to go back. Alexander went to his
 fraternity. However, during the course of interrogation
 by Campus police, Alexandar falsely stated that he had
 accompanied the students for purchasing the cocaine and
 named certain students including the second respondent for
 having kidnapped and assaulted him. It is on these
 allegations that on 24th February, 1985 the second
 respondent and other students were charged by the General
 Court of Justice, Superior Court being Durham County.

¶94

 "(a). File No.85-CRS-0589 - Unlawfully, willfully
 and feloniously kidnapped Alexandra Van Dyne, a
 person who had attained the age of 16 years by
 unlawfully confining him, restraining him and
 removing him to one place to another without his
 consent and for the purpose of doing serious bodily
 injury to him and terrorizing him, Alexandra Van
 Dyne was seriously injured and said kidnapping was
 committed in violation of N.C.G.S.14-39.

¶95

 (b) Unlawfully, willfully and feloniously did
 assault and inflict serious injury upon Alexandra
 Van Dyne by heating him with hands (fists) and feet
 and kicking him and hitting him in the face,

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¶97

 causing soft tissue injuries, bruises, black etc.
 lacerations on the face and body, possible kidney
 damage and requiring hospitalization for two days
 for treatment in violation of N.C.G.S.14-33(b)(1).

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 (c) File 85-CRS-05820 - Unlawfully, willfully and
 feloniously did conspire with Alex Meckinnon and
 other persons unknown to commit the felony of
 trafficking in more than 400 grams of cocaine in
 violation of N.G.G.S.90-95(1)"

¶99

 10. The respondent in the background of the case
 further added that since the case was reported in
 the press, in order to avoid further publicity,
 embarrassment, protracted litigation in a foreign
 country, heavy costs and consequent interventions
 with his academic carrier etc. he entered into
 "Plea Bargaining" permissible in law without giving
 his defence version upon the following terms and
 conditions:

¶100

 "Upon the Courts accepting these pleas, the
 State will dismiss all other charges
 against the defendant arising out of the
 events of February 23, and 24,1985,

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¶102

 including his charge in 85-CRS-09809 and,
 if requested the defendant will give
 truthful testimony about facts within his
 knowledge in the trial of any
 co-defendant."

¶103

 11.The respondent submitted that as a consequence
 of "Plea bargaining" he pleaded guilty to the
 following revised charges :

¶104

 (a) Felony of conspiracy to possess with intent
 deliver more than one gram of the Schedule II
 Control Substance, Cocaine (85 CRS-05820).

¶105

 (b) Misdemeanours of false imprisonment (85 CRS
 05819 Count I and simple assault (85 CRS 05819)
 Count II).

¶106

 Upon consideration of the record, proper evidence
 presented, answers of defendant and statements of
 the lawyer for the defendant and the prosecutor the
 Presiding Judge of the General Court of Justice,
 Superior Court Division, Durham County by his order
 dated 24th June, 1985 accepted the "Plea
 Bargaining" of the respondent and found him guilty

¶107

 -24-

¶108

 for the offences of (i) false imprisonment
 misdemeanour and (ii) simple assault misdemeanour
 and considering the said offences for the purpose
 of judgment sentenced the respondent for a term of
 two years and with a fine of $ 10000 and instead of
 sentencing, placed him on supervised probation for
 five years on the conditions specified in the order
 dated 24.6.1985 (Annexure A-1). In File
 85-CRS-05820 the said Court order "prayer for
 judgment is continued from term to term of this
 Court for a period of five years. The $ 50,000
 cash bond will remain with the Court until a final
 judgment is entered".

¶109

 15. Thus, the second respondent pleaded guilty to some of
 the charges and was put on probation. It is his case that
 the General Court of Justice Superior Court Division,
 Durhan County adjourned the judgment in the case relating
 to offence of possessing one gram of cocaine and did not
 pass any judgment within a period of five months and cash
 bond of 50,000 pound was discharged. Thus, he was not
 convicted for the charge of conspiracy to possess cocaine.
 He was acquitted of the charge of second degree kidnapping
 and convicted only for the offence of misdemeanour. He
 was acquitted of the charge of assaulting, inflicting

¶110

 -25-

¶111

 serious injury but was convicted for misdemeanour of
 simple assault. Thus, It is his case that he was not
 convicted of the criminal offence involving "Moral
 turpitude." The incident of 23rd/24th February, 1985 is
 "stale" and cannot be used to his prejudice and detriment.
 That cannot be made a ground for his disqualification for
 seeking election and holding the post of President of
 Zonal Cricket Association or Vice President of the first
 respondent Board.

¶112

 16. In (2005) 4 SCC page 741, (Board of Control for
 Cricket in India and another Vs. Netaji Cricket Club and
 others),the Hon’ble Supreme Court held that the first
 respondent is an association registered under Tamil Nadu
 Society Registration Act. It enjoys a monopoly status as
 regards regulation of Sports of cricket in terms of
 memorandum of association and Articles of Association. It
 controls the sport of cricket and lays down law therefor.
 It, inter alia, enjoys the benefits and has some rights.
 It earns a huge revenue. It exercises enormous public
 functions. It has an authority to select players and
 umpires to represent the country in the international
 forums. The rules of the Board clearly demonstrate that
 without its recognition no competitive cricket can be
 hosted either within or outside the country. Its control

¶113

 -26-

¶114

 over the sport of competitive cricket is deeply pervasive
 and complete. More or less similar view has been taken in
 Zee Telefilms Ltd. reported in A.I.R. 2005 SC 2677. In
 paras 29 and 30 of the said decision, majority observed
 thus:

¶115

 "29. It was then argued that the Board discharges
 public duties which are in the nature of State
 functions. Elaborating on this argument it was
 pointed out that the Board selects a team to
 represent India in international matches. The
 Board makes rules that govern the activities of the
 cricket players, umpires and other persons involved
 in the activities of cricket. These, according to
 the petitioner, are all in the nature of State
 functions and an entity which discharges such
 functions can only be an instrumentality of State,
 therefore, the Board falls within the definition of
 state for the purpose of Article 12. Assuming that
 the above mentioned functions of the Board do
 amount to public duties or State functions, the
 question for our consideration is: would this be
 sufficient to hold the Board to be a State for the
 purpose of Article 12. While considering this
 aspect of the argument of the petitioner, it should
 be borne in mind that the State/Union has not
 chosen the Board to perform these duties nor has it
 legally authorised the Board to carry out these
 functions under any law or agreement. It has
 chosen to leave the activities of cricket to be
 controlled by private bodies out of such bodies’
 own volition (self arrogated). In such
 circumstances, when the actions of the Board are
 not actions as an authroised representative of the
 State, can it be said that the Board is discharging
 State functions? The answer should be no. In the
 absence of any authorisation, if a private body
 chooses to discharge any such function which is not
 prohibited by law then it would be incorrect to
 hold that such action of the body would make it an
 instrumentality of the State. The Union of India
 has tried to make out a case that the Board
 discharges these functions because of the de facto
 recognition granted by it to the Board under the
 guidelines framed by it but the Board has denied

¶116

 -27-

¶117

 the same. In this regard we must hold that the
 Union of India has failed to prove that there is
 any recognition by the Union of India under the
 guidelines framed by it and that the Board is
 discharging these functions on its own as an
 autonomous body.

¶118

 30. However, it is true that the Union of India
 has been exercising certain control over the
 activities of the Board in regard to organising
 cricket matches and travel of the Indian team
 abroad as also granting of permission to allow the
 foreign teams to come to India. But this control
 over the activities of the Board cannot be
 construed as an administrative control. At best
 this is purely regulatory in nature and the same
 according to this Court in Pradeep Kumar Biswas’s
 case (supra) is not a factor indicating a pervasive
 State control of the Board."

¶119

 17. In the above circumstances and in the facts peculiar

¶120

 to this case, we are of the opinion that there is no
 substance in the preliminary objection to the

¶121

 maintainability of this writ petition even as a public
 interest litigation. Considering the status of the Board,
 the nature of interest generated by the sport the intent
 of general public and the controversy involved, we are of
 the opinion that the petitioner could have filed the
 instant writ petition as a "public interest litigation".
 As far as the motive of the petitioner is concerned,
 beyond alleging that he has blessing or backing of a group
 which is a rival of the second respondent’s group in the
 Board election, no material has been placed before us to
 reach a conclusion that the petition is motivated by any
 private interest or is instituted with a view to gain

¶122

 -28-

¶123

 publicity. Merely alleging that the petition was aimed at
 harassing and embarrassing the second respondent, would be
 of no assistance. Therefore, in absence of any material,
 we cannot dismiss the petition as being privately or
 politically motivated. Moreover, the petition is already
 admitted and listed for final hearing. We, therefore, do
 not feel that the ptition can be dismissed on the issue of
 maintainability.

¶124

 18. Turning to the main issue, it is true that the
 charges were framed against the second respondent and that
 the criminal proceedings were initiated wherein he pleaded
 guilty and got remission in sentence. However, as
 narrated above, the incident is of February, 1985. The
 elections have been held more than two decades thereafter.
 It would be futile to now consider the plea that having
 been elected as Vice President, second respondent must be
 disqualified because he has been convicted in the past of
 an offence in connection with illegal drugs. Considering
 that the case is of 1985 and conviction is also of the
 same year, and nothing has been shown that he is or is
 likely to indulge in similar activity, in our view,
 applying the Regulations and prohibition therein at this
 late stage without anything more would not be fair, just
 and proper. More so, when a substantial part of the term

¶125

 -29-

¶126

 of respondent no.2 is over and no other incident involving
 respondent no.2 in the charges relating to possession of
 or use of any drug or pscychotrophic substance has been
 pointed out. There is no conviction and sentence on this
 count, other than the one referred to above.

¶127

 19. In such circumstances, raking up stale and old cases
 and thereafter considering the applicability of the
 regulations to the same would not be proper. More so,
 when the second respondent has contested the election to
 the State Cricket Association. He has been found eligible
 for election at the level of the first respondent Board.
 He has been elected as well. Respondent no.1 Board did
 not apply the regulations to the case of respondent no.2
 as in its opinion regulations cannot be invoked to a case
 or a charge prior to introduction of the same. In other
 words, the regulations being of 2000 and coming into force
 on 6th February, 2001 cannot be applied to any charge,
 conviction or sentence prior to its being brought into
 effect is an opinion based on some advice and
 interpretation placed on the same. It is after taking
 this view and forming an opinion that the second
 respondent was allowed to contest the elections. Whether
 this conclusion is bonafide and correct or not is a matter

¶128

 -30-

¶129

 which is subjudice. The civil Appeal in the Supreme Court
 is pending. More over, the award of the Arbitrator
 accepts this plea and interpretation.

¶130

 20. Once, we are of the view that incident itself is very
 old and stale, then, we need not enter into any larger
 controversy. We do not wish to go into the aspect as to
 whether the regulations would apply to any incident prior
 to the same being brought into effect. We also need not
 go into the question as to whether the regulations
 prohibit continuation of the elected administrator. The
 interpretation of the words "shall not use or possess" or
 "in any way be concerned in use or distribution of illegal
 drugs" also need not be decided in the peculiar facts of
 this case. However, they seem to be inserted with a clear
 intent. Though, prima facie, the words and phraseology

¶131

 would indicate that past acts and conduct are also
 intended to be covered. In that sense, the provision
 applies to administrator, past or present. The issue need
 not be debated further.

¶132

 21. The learned Counsel for the petitioners would urge
 that the regulations prohibit continuance in offence of an
 elected administrator. The respondents, at the same time,
 would urge that it would apply to a case where the

¶133

 -31-

¶134

 Administrator, should not prior to his assumption of the
 office be found in possession of or using illegal drug and
 should not be concerned in the usage or distribution of
 the same. However, it would be proper to bear in mind the
 object and purpose of a regulation like 6.2.2. In this
 behalf useful reference can be made to the following
 observations of the Supreme Court in K.Prabhakaran Vs.
 P.Jayarajan reported in A.I.R.2005 Supreme Court 688.

¶135

 "54. The purpose of enacting disqualification
 under Section 8(3) of the RPA is to prevent
 criminalisation of politics. Those who break the
 law should not make the law. Generally speaking,
 the purpose sought to be achieved by enacting
 disqualification on conviction for certain offences
 to prevent persons with criminal background from
 entertaining into politics, and the House a power
 ful wing of governance. Persons with criminal
background do pollute the process of election as
 they do not have many a holds barred and have no
 reservation from indulging into criminality to win
 success at an election. Thus, Section 8 seeks to
 promote freedom and fairness at elections, as also
 law and order being maintained while the elections
 are being held. The provision has to be so

¶136

 -32-

¶137

 meaningfully construed as to effectively prevent

¶138

 the mischief sought to be prevented. The
 expression "a person convicted of any offence" has
 to be construed as all offences of which a person
 has been charged and held guilty at one trial. The
 applicability of the expression "sentenced to
 imprisonmenmt for not less than 2 years" would be
 decided by calculating the total term of
 imprisonment for which the person has been
 sentenced.

¶139

 55. Shri K.K.Venugopal, learned senior counsel
 appearing for respondent in one of the appeals
 submitted that Section 8 of the RPA is a penal
 provision and, therefore, should be construed
 strictly. We find it difficult to countenance the
 submission. Contesting an election is a statutory
 right and qualifications and disqualifications for
 holding the office can be statutorily prescribed.
A provision for disqualification cannot be termed a
penal provision and certainly cannot be equated
with a penal provision contained in a criminal law.

¶140

 If any authority is needed for the proposition the

¶141

 same is to be found in Lalita Jalan & Anr.
 Vs.Bombay Gas Co.Ltd. and ors.(2003) 6 SCC 107,

¶142

 -33-

¶143

 which has held section 630 of the Companies Act,
 1956 not to be penal provision. The Court has gone
 on to say, "the principle that statute enacting an
 offence or imposing a penalty is to be strictly
 construed is not of universal application which
 must necessarily be observed in every case."

¶144

 22. In our view the petition deserves to be dismissed on
 a short ground that the incident of 1985 and conviction so
 also sentence of the second respondent therein would not,
 without anything more, be a Impediment or Bar in second
 respondent continuing in office. However, this would be
 subject to the outcome of the proceedings which are
 pending in the Supreme Court. Since very same incident is
 the foundation and basis in the arbitration award and
 other proceedings, we are of the view that our decision
 cannot be construed as permission to the second respondent
 to continue in office despite an adverse result or
 outcome. If the award is ultimately overturned or held to
 be not binding so also the Supreme Court taking another
 view of the matter in the pending proceedings, the second
 respondent’s continuance in the office must depend upon
 the outcome thereof.

¶145

 23. Before parting, we would observe that the first

¶146

 -34-

¶147

 respondent Board is performing important public functions.
 It has to act with great responsibility and all its
 actions must not jeopardize or shake the faith and trust
 of the cricket loving public and common man in this
 country. It is given a monopoly status for good reasons.
 The cricket loving public is of the view that its
 interests are safe in the hands of the Board. The younger
 generation and those interested in making the game a
 career also look upon the Board in the same manner. The
 Board should not do anything by which it betrays the faith
 and trust of the people. It should act and function as a
 Trustee of this section of public. Once it has been put
 in charge of enormous funds so also conferred with drastic
 and wide powers to control, monitor, manage and administer
 the game, then, it is of utmost importance that its
 officers and office bearers are persons of calibre and
 character.

¶148

 24. Mr.Singhvi submits that the allegations made against
 the Board and its senior official are grave and serious.
 The game also is passing through a crucial phase. There
 are incidents of match fixing and betting as well. It is
 alleged that several senior officials and players are
 involved in the same. We do not wish to say anything one
 way or the other. However, when such and other

¶149

 -35-

¶150

 allegations about misuse of funds and abuse of powers are
 being levelled, then, it is of utmost importance that the
 Board is manned by people who have experience of playing
 and administering the game It will not be proper if the
 Board is a centre for power politics. The board should
 not become a tool for Musclemen, Merchants or Media Barons
 and power brokers. It is said that cricket is a
 gentleman’s game. The game is not just about generating
 Revenue or a business venture. It is a sport. Its
 management and administration should be in the hands of
 sports persons and sports lovers. If people from all
 walks of life and those with ambitions find the Board a
 place to fulfil their aspirations and dreams, then, a time
 will come when the management of the Board will have to be
 taken over by cricket loving and playing people. If that
 is not to happen and if stringent regulatory measures
 framed by the Board itself are to be implemented in letter
 and spirit, then the Board should take care that those
 involved in criminal cases not just relating to illegal
 drugs but other serious charges have no place in the
 administration. The purity of electoral process and
 sanctity and dignity attached to such offices must be
 preserved at all costs. Hence, it is also for the State
 to whom doctrine of public trust applies to take a note of
 allegations made in this petition. Ultimately, the State

¶151

 -36-

¶152

 cannot remain a spectator to the power game. Time will

¶153

 come when the State will have to use its power and
 authority to check any mismanagement and

¶154

 mal-administration. We hope and trust that the Board
 would not take a hyper technical and strict view of the
 regulations so also defeat the very aim, spirit and
 purpose of inserting the same. The elections at all
 levels have to be free and fair. They ought not be fought
 on party lines. Ultimately, the sports lovers and
 administrators are not rivals. The should act as
 playmates. The elections ought to be conducted in the
 same spirit in which the game of cricket is played. An
 opponent should not be looked upon as an Adversary and
 rival. The common thread being interest in the game and
 preserving and safeguarding the same. Therefore, when
 like minded people come together, then, even elections are
 a friendly contest which are based on sportsman spirit. .
 This is the spirit in which game is played at
 international and local levels. The same spirit must also
 be demonstrated in the elections at the zonal and central
 levels.

¶155

 25. In R.Sai Bharathi Vs. J.Jayalalitha and others
 reported in A.I.R. 2004 Supreme Court, 692, the Hon’ble
 Supreme Court has observed thus:

¶156

 -37-

¶157

 "57. Before we part with the matter, it is
 necessary to notice certain aspects of the matter.

¶158

 58. Crime is applied to those acts which are
 against social order and are worthy of serious
 condemnation. Garefalo, an eminent criminologist,
 defined ’crime’ in terms of immoral and anti social
 acts. He says that "crime is an immoral and
 harmful act that is regarded as criminal by public
 opinion because it is an injury to so much of the
 moral sense as is possessed by a community -
 measure which is indispensable for the adaptation
 of the individual to society." The authors of the
 Indian Penal Code stated that :-

¶159

 ........We cannot admit that a Penal Code is by any
 means to be considered as a body of ethics, that
 the legislature ought to punish acts merely
 bercause those acts are immoral, or that, because
 an act is not punished at all, it follows that the
 legislature considers that act as innocent. Many
 things which are not punishable are morally worse
 than many things which are punishable. The man who
 treats a generous benefactor with gross ingratitude

¶160

 -38-

¶161

 and insolence deserves more severe reprehension
 than the man who aims a blow in passion, or breaks
 a window in a frolic yet we have punishment; for
 assault and mischief, and none for ingratitude.
 The rich man who refuses a mouthful of rice to save
 a fellow creature from death may be a far worse man
 than the starving wretch who snatches and devours
 the rice; yet we punish the latter for theft, and
 we do not punish the former for hard heartedness."

¶162

 61. Report leading to IPC makes it clear that
 criminal law merely prescribes the minimum
 standards of behaviour, while in public life, those
 who hold high offices should not take shelter under
 the umbrella of criminal law but stand by high
 probity. Further, criminal law is meant to deal
 with criminals ordinarily, while Code of conduct is
 observed as gentlemen’s agreement. Persons in
 public life, who are genetlemen, follow such Code
 instead of taking escape routes by resorting to
 technical pleas as arise in criminal cases.
 Persons in public life are expected to maintain
 very high standards of probity and, particularly
 when there is likely to be even least bit of
 conflict of interest between the office one holds

¶163

 -39-

¶164

 anthe acts to be done by such person, ought to
 desist himself from indulging in the same. Such
 standards of behaviour were scrupulously observed
 in the either days after independence, but those
 values have now dwindled and instances of persons
 holding high elective offeces indulging in self
 aggrandisement by utilising Government property or
 in distribution of the largesse of the Government
 to their own favourties or for certain quid pro quo
 are on the increase. We have to strongly condemn
 such actions. Good ethical behaviour on the part
 of those who are in power is the hallmark of a good
 administration and people in public life must
 perform their duties in a spirit of public service
 rather than by assuming power to indulge in callous
 cupidity regardless of self imposed discipline."

¶165

 We may also impress upon the concerned authorities that
 occasion to file such petitions should not arise again.
 There should be no occasion for this Court to entertain
 the petition containing allegations, which are subject
 matter of the instant petition. If the Board elections
 and board disputes have to come to Court, then, there will
 not be any difference between the functioning of a
 cooperative Bank or cooperative credit society, a company

¶166

 -40-

¶167

 etc. and the elections to such or other local bodies and

¶168

 that of the Board. If board elections are also going to
 be fought on identical lines then the Board may think of
 doing away with this process and substituting it by better
 alternatives. Otherwise, in given case Court’s of law
 will have to interfere, ofcourse, in properly instituted
 legal proceedings. We hope and trust that time to take
 such harsh steps and decision will not come. The Board
 and its officials ought not be making allegations against
 each other or else group politics would destroy the game
 itself. We hope this petition should serve as a reminder
 to all concerned. Although, we have dismissed this
 petition, we are constrained to make the above
 observations. We are compelled to make them because the
 manner in which the petition was argued demonstrated that
 board elections are taking an ugly turn. Once the
 litigation is argued and conducted in this spirit, then,
 demeanour of the parties need to be commented upon. More
 so, when the litigation involves a mighty body such as the
 Board of Control for cricket in India. Rule discharged.
 No order as to costs.

¶169

(SWANTATER KUMAR C.J.)

¶170

 -41-

¶171

(S.C.DHARMADHIKARI J.)

Chandravardhan B. Parekh v. the Board of Control for Cricket in India

Case brief

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Chandravardhan B. Parekh v. the Board of Control for Cricket in India

Case brief

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What the court decided

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