Mukul Mudgal, J.
1. This is an application in a pending writ petition where the respondents 2 and 3 seek a decision on the preliminary question of maintainability of this writ petition against them. This writ petition by a national cricket player, Shri Ajay Jadeja, inter alia, challenges the 5 years long ban imposed on him by Board of Control for Cricket in India (hereinafter referred to as BCCI), respondent No.2. Apart from respondent No.2, the petitioner has filed the petition against Union of India, respondent No.1 through Secretary Ministry of Culture, Youth Affairs and Sports, Shri A.C. Muthiah, President BCCI, respondent No.3, Shri Kamal Muraka, respondent No.4, Shri Ram Pershad, Member Disciplinary Committee, BCCI, respondent No.5, Shri K. Madhavan, respondent No.7 and Secretary, Ministry of Personnel, respondent No.7 and CBI, respondent No.8. The writ petition also challenges the show cause notice dated 22nd December 2000 issued by respondent No.1, seeking to withdraw the Arjuna Award conferred on the petitioner.
2. In 1989 in dealing with a writ petition field under Article 32 of the Constitution of India challenging the banning of certain current cricketers as punitive measure by BCCI, the Hon'ble Supreme Court observed as under:
'The word cricket is a synonym for gentlemanliness which means discipline, fair play, modesty and high standard of morality.'
3. The present writ petition arises from the action of the respondent Nos. 2 & 3 imposing a five year ban on the petitioner pursuant to the alleged departure by the petitioner from such high standards, eloquently summed up by the Hon'ble Supreme Court. The petitioner's case set out in the writ petition is that the petitioner is a professional cricket player and has represented India regularly in cricket since 1992. He has also captained India in One Day Internationals in 1999 and has played up to date in 196 One Day Internationals at a batting average of 37.44. Justice Y.V. Chandrachud in an Enquiry concluded in 1999 at the behest of BCCI examined the allegations of betting and match fixing in cricket and found that there was no match fixing though possibility of players laying bets was not ruled out. Pursuant to a registration of a FIR on 5.4.2000 against some bookies and Hansie Cronje, the then cricket captain of South Africa, and the admissions made by him about match fixing, a public outcry arose in the country and the Parliament, and consequently at the behest of Ministry of Culture, Youth Affairs & Sports, an enquiry was conducted by CBI into the allegations of match-fixing and related malpractice connected with the game of cricket. The petitioner co-operated and participated in the said CBI enquiry. The CBI submitted its Report to the Govt. of India. Thereafter the Board appointed Shri K. Madhavan, respondent NO.6, as the Enquiry Officer, who summoned the petitioner, who appeared before him and submitted a representation refuting allegations in the CBI report, implicating the petitioner for fraternizing with bookies. Thereafter after a semblance of a hearing by the Disciplinary Committee of the Board, the petitioner was banned for five years by the Order dated 5.12.2000 leading to the present writ petition. The Order banning the petitioner has been challenged on the ground of lack of jurisdiction, procedural unfairness as well as on merits.
4. Mr. Sibal, the learned Senior Counsel appearing on behalf of respondent No.2 has submitted as preliminary objection that the BCCI is not amenable to the writ jurisdiction because:
(a) It is a Society registered under the Societies Registration Act.
(b) It is affiliated to International Cricket Council whose Member can only be a corporation, individual nominated by a Cricket playing country and Government representation on ICC is not recognised.
(c) BCCI is not an 'authority or instrumentality of the State' within Article 12 of the Constitution because it does not perform any public duty and has no monopoly status and does to execute any sovereign function.
(d) The Government of India has taken a stand that the BCCI is an autonomous body not funded by the Government of India and the Government has no control over BCCI's affairs and tax relief is available to all sports events and stadia at concessional rates and is given to the respective State Associations of BCCI by the State Government in order to promote sports and the stadia are not owned or leased by BCCI.
(e) BCCI has its own constitution and functions within its own rules and regulations.
(f) In view of the judgment of Mohinder Amarnath's Case passed on 1.2.1989 holding that the BCCI is not a State within the meaning of Article 12 of the Constitution no writ would lie against it. The said judgment of the Division Bench of this Court is binding on the Single Judge.
(g) The petitioner's counsel has submitted that the petitioner is not claiming any contractual right.
(h) The petitioner has no legal right enforceable in a writ proceeding and the petitioner not having any contractual right, there could be no direction or a decree of a Court compelling the BCCI to select any player in the team and the concept of a 'zone of consideration' as in service jurisprudence does not apply in the present case.
5. For this purpose in support of his plea that BCCI is neither 'State' nor an authority as per Article 12 so as to be amenable to the writ jurisdiction, he has relied upon the following judgments:
i) In Tekraj Vasandi V. UOI & Ors. : (1988)ILLJ341SC it was held that there being no deep and pervasive control of the government and no government business being undertaken by the society, it was not an agency or instrumentality of State so as to come within the purview of 'other Authority' in Article 12 of the Constitution of India.
ii) In Ramana Dayaram Shetty v. Airport Authority's case : (1979)IILLJ217SC it was held that for an authority to be an instrumentality or agency of State, certain tests have to be satisfied, i.e., (a) The financial assistance given by the State; (b) Whether there is any other form of assistance given by the State whether it is of the usual kind or extraordinary; (c) The extent of control of management or policies of the authority by the State; (d) Enjoyment of state conferred or State protected monopoly and functions of the authority in question being functions closely related to government functions.
iii) In Chandermohan Khanna v. NCERT : (1992)ILLJ331SC it was held that it may be a relevant factor if the institution or the corporation enjoys monopoly status which is State conferred or State protected. Article 12 should not be stretched so as to bring in every autonomous body within the sweep of the expression 'State'.
iv) In Praga Tools Corpn. v. CV Imanuel AIR 1969 SC 1036, it was held that the mandamus would lie to secure, performance of a public or statutory duty and not for an order of reinstatement which is essentially of a private character.
v) In Sabhajit Tewary v. UOI & Ors. : (1975)ILLJ374SC the Hon'ble Supreme Court held that a Society registered under the Societies Registration act which does not have a statutory character such as ONGC, LIC or IFCI, is not a authority within the meaning of Article 12 of the Constitution.
6. Mr. Sibal has also sought to distinguish the cases cited by the counsel for the petitioner for the following reasons:
i) Ramana Dayaram Shetty v. The International Airport Authority of India and ors Case : (1979)IILLJ217SC - did not apply as the tests formulated therein were not satisfied and the State was functioning through the Airport Authority for discharging its functions:
ii) Ajay Hasia v. Khalid Mujib : (1981)ILLJ103SC - did not apply because of the fact that due to the control exercised by the Government, the Engineering college run by the society in question was discharging State functions and was controlled by the State and hence fell within Article 12 of the Constitution.
iii) UP State Cooperative Land Development Bank Ltd. v. Chander Bhan 1991 (1) SCC 741 did not apply because though the Society was functioning as a co-operative society under the Co-operative Societies Act, it had been constituted under the Bank Act. The control of the State Government showed that the Bank was an extended arm of the Government and fell within the definition of 'instrumentality' of 'State' or 'authority' under Article 12 of the Constitution.
iv) LIC of India v. CE&RCs; & Ors. : AIR1995SC1811 - was not applicable because in issuing a general life insurance policy of any type, public element is inherent in prescription of terms and conditions and the life insurance corporation owes a public duty to evolve their policies subject to just, reasonable and fair terms.
v) Calcutta Gas Co. v. State of West Bengal & Ors. : AIR1962SC1044 - did not apply as in this case it was held that there must be an existence of a right for exercise of jurisdiction of High Court under Article 226 of the Constitution.
vi) M/s Dwarka Das Marfatia & Sons v. Board of Trustees of the Port of Bombay : [1989]2SCR751 - was not applicable as the Board of Trustees of the Port of Bombay was a statutory authority constituted under the Major Port Trusts Act 1963 and contractual obligations were amenable to judicial review to the extent that the State must act validly for a discernible and not a whimsical reason.
vii) Andi Mukhta Satguru Sri Mukhtaji Vandas Swami Suvarna Jayanti Mahotsave Samarak Trust & Ors. v. V.R. Rudani & Ors. : (1989)IILLJ324SC - was not applicable as the concerned trust was an aided institution and like the government institution discharged public functions.
7. The plea raised by Shri A.C. Muthiah, President of BCCI, respondent NO.3, in his counter affidavit field only on the plea of maintainability of this writ petition, inter alia, reads as under:
'It is submitted, with respect, that a member of an international organisation cannot, possibly, be treated as an instrumentality of the 'State' under Article 12 of the Constitution of India. On the other hand, all the rights an privileges are mainly, controlled by the Memorandum and Articles of Association of the present body of which this respondent is a member.'
Mr. Venugopal has also submitted that the BCCI is not amenable to writ jurisdiction inter alias for the following reasons:
(i) That it is not performing any public duty in which the petitioner may have an interest.
(ii) The petitioner is bound by the contract with the Board as well as the Rules & Regulations and any challenge based on contractual matters cannot be investigated in writ jurisdiction. The contract with the petitioner is non-statutory.
(iii) BCCI is a private society having non statutory regulations.
(iv) Unless the BCCI falls within Article 12 a writ petition will not lie.
(v) At best a civil suit can be filed.
8. Significantly the respondent No.2 & 3's pleas relate to it not being a State and/or instrumentality of State in view of the findings recorded by a Division Bench of this Court in dismissing CW.NO.632/89 in Mohinder Amarnath v. BCCI & Ors. in liming in the followings terms:
'We have examined ourselves all the functions of the Board and heard the submissions of the counsel. We are of the opinion that it does not qualify to be called an instrumentality of the State under Article 12 of the Constitution.
'Even otherwise, the legal relationship between the parties is regulated by a private contract. Whether there is any breach of contract and what are its consequences can be decided only on evidence adduced by the parties.
'Dismissed.'
9. Considerable reliance has also been placed by respondent No. 3 on the Order of the Hon'ble Supreme Court in a Special eave Petition (Civil) No. 10142/89 filed against the above order of this Court in CW 632 of 1989 which camp up for hearing Along with another writ petition No. 859/89 filed under Article 32 of the Constitution of India in the Hon'ble Supreme Court. The order of Hon'ble Supreme Court dated 26.9.1989 reads as follows:
'W.P.No. 859/1989.
Mr. Soli J. Sorabjee prays for permission to withdraw this petition on the ground that the punishments imposed on the concerned cricketers have been revoked by the Board of Control for Cricket in India.
The word cricket is a synonym for gentlemanliness which means discipline, fair play, modesty and high standard of morality. We are happy to record that all parties concerned in the episode have played the game of cricket in its true sprit. The petition is dismissed as withdrawn.
S.L.P.No. 10142/89
Since the punishment imposed on the petitioner has been revoked, the petition is disposed of without expressing any opinion on the view taken by the High Court of Delhi.'
10. The learned senior counsel for the respondent No. 3, Shri K.K. Venugopal, has submitted that the Division Bench's Order in Mohinder Amarnath is, thereforee, binding on this Court an has submitted as under:
1. that the Division Bench Judgment is binding on the Single Judge not only on matters decided, but also on those matters, which might and ought to have been raised.
2. In the case of Mohinder Amarnath, he was placed in the same position as Ajay Jadeja, both being subjected to disciplinary action under the self-same rules (1994) and yet the writ was dismissed as not maintainable. Surely the Court was aware of the fact that Article 226 dealt with 'any other authority' 'or person'. This question should also be deemed to have been decided by the DB, as otherwise the Single Judge will be effectively overruling the DB.
3. The DB has expressly held that the writ is in the realm of contract. It is certainly not in the realm os statute. if it is in the realm of contract, the DB Judgment specifically holds that no writ will lie. This will be binding on the Single Judge.
4. The appropriate course for the Single Judge is thereforee to refer to issue to the DB, rather than hold by himself that the DB decision does not deal with that aspect on which maintainability could have been upheld, or lay down a decretal order contrary to the judgment of the DB, as that would result in confusion.
5. The doctrine of precedent and comity of courts would require that the Court has to leave it to a DB, which in turn, if it arrives at the conclusion that the earlier DB judgment should be overruled, would then refer the matter to Full Bench, for deciding whether DB judgment should be overruled, based on later other judgments of the Supreme Court.
Consequently a decision is sought by this application on the preliminary question of maintainability of the writ petition.
11. Mr. Malhotra, the learned Senior Counsel for the petitioner in reply to the plea of the maintainability has submitted as follows:
(a) Encouragement of games and sports is a State function falling within the functions of the Ministry of Sports & Youth Affairs.
(b) The name of BCCI itself suggests that it is controlling the game of Cricket in India and it enjoys a monopoly status because nobody can play competitive cricket in India without the permission of BCCI.
(c) Functions of BCCI are of public importance on account of the State Governments giving assistance in the form of State largesse to the Members of the Board, i.e., State Associations in the form of lease of large grounds at prime urban locations at a nominal rent.
(d) The gam of cricket affects high degree of public interest in the country.
(e) The BCCI performs sovereign functions by selecting and sending cricket teams to represent India and similarly inviting teams of other foreign countries to play with the India team. This is evident from the fact that whether or not to play a foreign country such as Pakistan is governed by a political decision of the Government. This clearly indicates that the function of selection of a team to represent India is sovereign in character.
(f) Then BCCI is considered by the Ministry of Youth Affairs & Sports to be the regulatory authority of cricket in India.
(g) The team selected by the BCCI represents India bearing the Logo 'India' and flies the Indian Flag and Ashok Chakra is worn on the team dress and the team is clearly not representing the BCCI but the nation. For all international tournaments such as the World Cup or the Commonwealth Games where only countries participate, the teams are selected by the BCCI.
(h) The Government allows large sums of foreign exchange known as minimum bank guarantee amount to the paid to the foreign teams and also releases foreign exchange towards expenses for boarding and lodging.
(i) Cricket laws are framed by the BCCI in India.
(j) The Arjuna Award is granted by the Government on the recommendation of BCCI.
(k) In International Matches played in India large amount of Government infrastructure such as live coverage and security, at considerable public expense is provided by the Government machinery. Large sums of money are earned by the BCCI affiliates by utilising the prima locations available at normal or concessional rates for earning huge profits by way of gate money, sponsorship and advertising revenue.
(l) International Cricket Matches whether one day or a Test Matches receive the widest media coverage much larger than the media coverage even for an event as important to the nation as the Republic Day Parade.
12. The learned counsel for the petitioner has, however, relied upon the above quoted order dated 26th September 1989 of the Hon'ble Supreme Court to contend that the Hon'ble Supreme Court left open the question decided by the Division Bench of this Curt in Mohinder Amarnath's case by not expressing any opinion on the view taken by the Division Bench of this Court. The learned counsel for the petitioner submitted that by virtue of the law laid down by a Division Bench of this Court in 1995 DRJ 195 Fashion Liners & Ors. v. Savitri Devi & Anr. and the order of the Hon'ble Supreme court dated 28th September 1989, the view of the Division Bench in Mohinder Amarnath's case was not binding on this Court. In Fashions Linkers (supra) Hon'ble Chief Justice M.J. Rao of this Court as he then was, speaking for the Court held as follows:
'3. We pointed out in our judgment in the FAO that the judgment of the Division Bench in Deepak Kapoor's case did not hold the field because its efficacy as a precedent was lost in vie of the fact that in an SLP against the said judgment, the Supreme Court had expressly left the legal question open. We then went into the scope of the new Rule again and held that it was not to be treated as an exception to Order 26 CPC but had a wider area of operation, in view of the non obstinate clause, that it was intended to be used for appointment of Local Commissioners for recording evidence in old cases. We however cautioned that questions of admissibility have to be dealt with by the Court as provided in Order 26 Rule 16A. We dismissed the FAO.
4. But now, it is contended before us again that by not referring the matter to a Full Bench, we had violated all principles of judicial discipline and we should thereforee set aside the judgment and refer the matter to a Full Bench. We pointed out to counsel that the judgment of the Division Bench of this Court in Deepak Kapur's case ceased to be a binding judgment because the legal issue as to the effect of the new Rule was left open by the Supreme Court on appeal vide order of the Supreme Court dated 24th October, 1994 passed in SLP (Civil) 17238 and 17239 (against judgment in RA 15/94 in FAO(OS)) 64/94 and RA 14/94 in FAO 63/94). We had extracted the order of the Supreme Court in SLP in our judgment in the FAO. The clear words of the Supreme Court are:
'The question of law raised by the petitioner in the Special Leave Petition is left open.' 5. This aspect was already referred to in an order in the FAO. We were of the view that once the question decided by the Division Bench was left open, this Court was free to deal with this question afresh without referring the matter to a Full Bench. We were thereforee clearly within our jurisdiction to consider the effect of the new Rule, uninhibited by what was said in Deepak Kapur's case by the earlier Division Bench. Hence this contention is to be rejected.'
13. Mr. K.K. Venugopal, the learned Senior Counsel for respondent No. 3 however sought to draw a distinction between questions being left open by Supreme Court as in the above judgment, and disposal by the Supreme Court without expressing any opinion as in Mohinder Amarnath's case. He submitted that the above Division bench judgment in Fashion Linkers (supra) was, thereforee, inapplicable.
14. In my view the decision of Fashion Linkers (supra) case fully covers the plea in so far as the applicability of the Mohinder Amarnath's order of the Division Bench is concerned in light of the Hon'ble Supreme Court's order dated 28th September 1989 which did not express any opinion on the question thus leaving open the question involved. Furthermore, the distinction sought to be drawn by Shri K.K. Venugopal between the question being left open and no vie being expressed is a distinction without difference. The effect of both the phrases is essentially the same. Thus, I am of the view that Mohinder Amarnath's order doe snot bind this Court in view of the decision of the Division Bench in Fashion Linker's (supra) case. In light of this finding it is unnecessary to consider the effect of the other judgments cited by the learned counsel on this issue.
15. The Division Bench judgment of the Delhi High Court in Mohinder Amarnath's case refusing the issue of a writ against BCCI on the ground that the writ was not maintainable can also be clearly distinguished for the following reasons even apart from the reason that the judgment of Fashion Linker's case (supra) clearly makes it not binding on the Single Judge.
(i) The only question which arose in Mohinder Amarnath's case was whether the respondent fell within the category of state or other authority and the Court in that context held that it did not.
(ii) That imposition of a fine on account of breach of contract in Mohinder Amarnath's Case was neither the exercise of a statutory power nor the exercises of a public duty but was purely under contract. It, thereforee, fell purely in the realm of private law. The effect of imposition of the fine was also not such as to affect any statutory or fundamental right of the petitioner.
(iii) In the present case the punishment sought to be imposed by the respondent is not in discharge of any particular contractual provision but in discharge of its general public duty. In-fact the action would also be sought to be justified on the ground of the public interest which cricket generates and BCCI protects, and has been occasioned by a public outcry.
(iv) Not only is the respondent acting in discharge of its public duty, but the effect of its action is directly to affect the respondent's Fundamental Right under Article 19(1)(g). As to whether the restriction placed on the exercise of such Fundamental Right is justifiable or not is a matter which would fall within the scope of judicial review particularly if the breach of Article 14 is complained of on the ground of arbitrariness.
(v) Even assuming that the respondent only claims to terminate its contract with the respondent the direct effect and consequence of the termination of such contract is to prevent the petitioner from carrying on his trade, business or profession. The complaint is clearly of abridgement/abrogation of a Fundamental Right.
(vi) Furthermore, the direct effect of termination of such contract would be to prevent the petitioner from continuing to represent the country in the sport. The respondent carries out the public duty in supervising and deciding on the selection persons who would represent the country and this indeed attracts widespread public interest engulfing every cricket following citizen of he country and an issue with which a large section of the public is interested.
(vii) While levying a fine or not on a particular player may amount only to a private issue as between that player and respondent to prevent the player from representing the country whether directly by a ban in exercise of its overall functions or powers or indirectly through terminating the contract, would be to result in such person's services not being made available tot eh nation. This, thereforee, would not be a purely personal matter between the individual and the respondent but would affect the interest of the public at large who are certainly interested as to who are going to be the flag bearers and representatives of their country.
16. Furthermore Mohinder Amarnath's case dealt with the question whether BCCI is a State or an instrumentality of State. A similar question was also considered and decided by the Karnataka High Court (which is a constituent member of BCCI) in its judgment dated 4th May 2001 in CWP Nos. 16257-16285/2000 the operation of which is stayed by the Hon'ble Supreme Court on 23rd July 2001 in SLPs (Civil) No. 11075-11103 of 2001 pending the appeal in the Hon'ble Supreme Court. The Karnataka High Court had rejected the preliminary objection of the counsel for the Karnataka State Cricket Association (KSCA) that it was not 'State' within the meaning of Article 12 and the Writ Petition was not maintainable. However, the learned counsel for the petitioner has not based his case on the plea that BCCI is State/instrumentality of State but on the plea that it is a body/person exercising/performing a public duty and is amenable to the writ jurisdiction under Article 226 as laid down by Hon'ble Supreme Court in UP State Co-op. Land Development Bank v. Chandra Bhan Bubey and ors The relevant portion of the said judgment reads as under:
'.....It does appear to us that Article 226 while empowering the High Court for issue of orders or directions to any authority or person, doe snot make any such difference between public functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the writs of habeas, corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence. Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases, any Government. Under clauses (1) of Article 367, unless the context otherwise requires, the General Clauses Act 1897, shall, subject to any adaptions and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as applies for the interpretation of an Act of the legislature of the Domain of India. 'Person' under Section 2(42) of the General Clauses Act shall include any company or association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is fountainhead of all the statutes. When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a co-operative society or association or body of individuals, whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him.....'
17. In my view since I am not considering the issue whether BCCI is State/instrumentality of State/Authority under Article 12, I am not required to consider the impact and effect of most of the other judgments relied upon by the counsel except U.P. State Co-operative Land Development Bank's case (supra). I am also not considering this question as to whether BCCI is State under Article 12 of the Constitution of India as the decision of the Karnataka High Court rejecting the preliminary objection of the Karnataka State Cricket Association, which is an affiliate of BCCI, that it was not 'State' amenable to writ jurisdiction, already stands stayed by the Hon'ble Supreme Court by its order dated 23rd July 2001. The order of the Hon'ble Supreme Court dated 23rd 2001 reads as follows:
'Leave granted. Issue notice on the application for interim relief. Pending further orders, the order under challenge shall remain stayed.
Mr. P.R. Ramasesh, Adv. takes notice for respondent Nos. 1 to 29. He state that he will file a counter to the application for stay within three weeks. Rejoinder, if any, within two weeks.
List after six weeks. In the meantimes, the other respondents may be served.'
18. The Karnataka High Court by its judgment dated 14th November 2000 in WP NO. 16257-285/2000, which is now pending in appeal by virtue grant of Special Leave by the Hon'ble Supreme Court on 23rd July 2001, held as follows:
'18. mr. Narashimamurthy, learned senior Counsel appearing for the respondent Association, has also taken the objection of maintainability of the writ petition on the ground that the Association is not a State within the meaning of Article 12 of the Constitution of India and thereforee irrespective of the fact whether the impugned resolution at Annexure A and the consequent communication at Annexure B are legally valid or invalid, the writ petitions filed by the petitioners cannot be entertained by this court under Article 226 of the Constitution of India and their only remedy is to approach the civil court for enforcement of their right, if available to them within the framework of the Rules of the Association.
19. Considering the rival contentions raised at the Bar, in our opinion, we have to delve upon two questions, namely,, (i) whether this Court can entertain writ petition against the action of resolution passed by an Association like the Karnataka State Cricket Association under Article 226 of the constitution, and (ii) if the writ petition is found to be maintainable, whether the impugned resolution at Annexure 'A' can be said to be valid in law?
20. Keeping in view the activities of the association, which arranges domestic and international cricket matches and trains players to represent the nation at international sports events and monopolistic status it has acquired in the area, it cannot be said that it is engaged only in some private activities and the game of cricket for enjoyment of its members alone. We can take judicial notice of the fact that cricket matches, which are held and organized by the Association has wider repercussions on the emotions of the citizens of the nation. thereforee public watch these results are seen as advancing or defeating the national interest in the field of sport.
Therefore, actions or decisions taken by the Association like the cricket Association cannot be treated as falling exclusively in the private law area. Management of such Associations in accordance with rules and decisions taken by it must stand to the test of fairness and strictly legal as per its memorandum and rules and regulations. it is because of the above reason that in various countries these have been treated as part of public activity permitting the courts to interfere with arbitrary actions of the controlling bodies like the respondent Association (See : Wade's Administrative Law, 7th Edition, under the heading 'Review of Non-Statutory Action' Page 659).
21. It is because the above reason, the Supreme Court, after reviewing those of the judgments on the issue at hand, in the case of AIR INDIA STATUTORY CORPORATION V. UNITED LABOUR UNION : (1997)ILLJ1113SC has held that:-
'26. From the above discussion, the following principles would emerge:
(1) .... .... ....
(9) Functions of an instrumentality, agency or person are of public importance following public interest element.
(10) The instrumentality, agency or person must have an element of authority or ability to effect the relations with its employees or public by virtue of power vested in it by law, Memorandum of Association or bye-laws or Articles of Association.
(11) the instrumentality, agency or person renders an element of public service and is accountable to health and strength of the workers, men and women, adequate mans of livelihood, the security for payment of living wages, reasonable conditions of work, decent standard life and opportunity to enjoy full leisure and social and cultural activities to the workman.
(12) Every action of the public authority, agency interest or any action that gives rise to public element should, be guided by public interest in exercise of public power or action hedged with public element and is open to challenge. It must meet the test of reasonableness, fairness and justness.
(13) If the exercise of the power is arbitrary, unjust and unfair, the public authority, instrumentality, agency or the person acting in public interest, though in the field of private law, is not free to prescribe any unconstitutional conditions or limitations in their actions.'
22. In the above view of the matter, keeping in view of the nature of the activities conducted by the respondent Association and the impact of such activities on public interest, in our opinion, we will not be justified in rejecting the present writ petition under Article 226 of the Constitution is more in the nature of misnomer. It is well settled that courts do not interfere in all disputes as rule of prudence and not on the ground of lack of jurisdiction. thereforee,the preliminary objection raised on behalf respondent Association is rejected.'
In the above matter the Karnataka High Court was deciding in writ jurisdiction issues arising out of a dispute as to the voting rights of the members of the Association which action may not necessarily be in the public law field.
19. I am, thereforee, considering the effect of the judgment of the U.P. State Co-op. Land Development Bank's case (supra) where the Hon'ble Supreme Court expressly held that the language of Article 226 does not admit of any limitation on the powers of the High Court's jurisdiction and that it could be exercised only when the body or authority, decision of which is complained of is exercising its power in the discharge of public duty. In para 27 at page 758, the Supreme Court clearly recognised that Article 226 speaks of directions or orders to be issued to any person or authority and particularly recognized that 'person' under Section 2(42) of the General clauses act shall include any 'company, or association or not'. Recognizing that the Constitution is the fountainhead of the all thestatutes, the Court went on to hold that when the language of Article 226 is clear, shackles could not be placed on the High courts to limit their jurisdiction by putting an interpretation on words which would limit their jurisdiction. And that when any citizen or person is wronged the High Court will step in to protect him, whether the wrong is done by the state an instrumentality of the state, a company or a cooperative society or association or body of individuals whether incorporated or even an individual. More importantly the Court went on to hold that the right that s infringed may be under Part III of the Constitution or any other rights which the law validly made might confer upon him.
20. From the above discussions the legal position that would follow is that the High Courts' jurisdiction under Article 226 is governed by the language is such Article and the meaning assigned to the term 'authority' in Article 12 would not apply to such a term in Article 226 of the Constitution. Furthermore, Article 226 also includes the word 'person' which would be interpreted in terms of Section 2(24) of the General Clauses Act and is an all encompassing expression. It is the nature of the right that is relevant in the exercise of this jurisdiction even against a body which is neither state nor an instrumentality of the state or 'other authority'. The Court (A) would be governed by the nature of the right or its infringement and in particular would certainly step in when a fundamental right under para III of the Constitution is said to be affected. (B) Would look into the nature of the duty of the respondent as to whether the respondent is only a private body with no public duty.
21. In the instant case not only is a violation of fundamental right complained of but the nature of the duty being discharged by the respondent is certainly a public duty dealing with an activity which is of widest general public interest and is in the furtherance of a sporting activity which is of importance to any civilised society. In fact modern education policies regards sports as an essential component of good education.
22. The Court would not interfere with a wholly contractual matter purely in the private law field unless such contract gives rise to a public duty in the respondent (which it indeed does in this case), or should the act of the respondent result in a restriction on the fundamental right. In either of the cases the Court's jurisdiction under Article 226 cannot be ousted.
23. However some provisions of the Memorandum of Association of the Board are relevant and read as under:
The objects of the Board are:
(a) To control the game of Cricket in India and give its decision on all matters which may be referred to it by any State, Regional or other Association;
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(b) To arrange control, regulate and if necessary finance visits of Teams that are Members of the International Cricket Council and teams of the Countries in India;
(c) To arrange, control, regulate and finance visits of an Indian Cricket Team to other countries that are Members of the International Cricket Council or elsewhere in conjunction with the bodies governing Cricket in the countries to be visited;
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(d) To frame the Laws of Cricket in India and to make alteration, amendment or addition to the Laws of Cricket in India whenever desirable or necessary;
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(e) To select teams to represent India in test matches, official or unofficial played in India or abroad, and to select such other teams as the Board may decide from time to time;
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(f) To appoint Manager and/or other official of India Teams;
(g) To appoint India's representative or representatives on the International Cricket Conference and other Conferences, Seminars, connected with the game of Cricket;
The above provisions clearly demonstrate not only the monopoly character of BCCI but also its power to select cricket teams for India and to appoint India's representative in the International Cricket Conference and to frame laws of cricket in India. Significantly the Union of India's approval of the Regulatory status of BCCI is evident form the following contents of the show cause notice dated 22nd December 2000 seeking to withdraw the Arjuna Award, issued by the Ministry of Culture, Youth Affairs and Sports, to the petitioner.
'2. The BCCI which is the Regulatory Authority for the game of cricket in India has imposed the above mentioned ban for 5 years with effect from 5th December 2000.'
24. Furthermore barring Services and Railways, the Membership of the BCCI is largely state wise barring certain States such as Maharashtra, Andhra Pradesh and Gujarat from which States have more than one member. This clearly shows that the respondent No. 2 is a body which represents the cricketing interests of the whole nation.
25. Mr. Malhotra , the learned counsel for the petitioner relied upon the observations made in Tekraj Vasandi (supra) case for a limited purpose of the effect that in order to be amenable to writ jurisdiction all the tests laid down in R.D. Shetty's case need not be satisfied. The Hon'ble Supreme Court held as under:
'12. It is time to turn to the facts of the present case to find out as to what the conclusion should be when the tests formulated by the several cases of this Court referred to above are applied. There cannot indeed be a strait jacket formula. It is not necessary that all the tests should be satisfied for reaching the conclusion either for or against holding an institution to be 'State'. In a given case some of the features may emerge so boldly and prominently that a second view may not be possible. There may yet be other cases where the matter would be on the border line and it would be difficult to take one view or the other outright.'
26. It is further submitted by the learned counsel for the petitioner that the above tests relevant for finding out whether an institution is 'State' will equally apply to authorities/persons who are amenable to writ jurisdiction. he further submitted that the features of BCCI relating to State approved monopoly status of BCCI and the public interest inherent in its functioning are so bold and prominent that a second view was not possible.
27. In R.D. Shetty v. International Airport Authority of India, : (1979)IILLJ217SC , the Hon'ble Supreme Court held as follows:
'... But the public nature of the function, if impregnated with governmental character or 'tied or entwined with government' or fortified by some other additional factor, may render the corporation an instrumentality or agency of government. Specifically, if a department of government is transferred to a corporation, it would be a strong factor supportive of this interference.
It will thus be seen that there are several factors which may have to be considered in determining whether a corporation is an agency or instrumentality of government. We have referred to some of three factors and they may be summarised as under: Whether it is of the usual kind or its is extraordinary, whether there is any control of the management and policies of the Corporation by the State and what is the nature and extent of such control, whether the corporation enjoys State conferred or State protected monopoly status and whether the functions carried out by the corporation are public functions closely related to governmental functions. This particularisation of relevant factors is however not exhaustive and by its very nature it cannot be, because with increasing assumption of new tasks, growing complexities of management and administration and the necessity of continuing adjustment in relations between the corporation and government calling for flexibility, adaptability and innovative skills, it is not possible to make an exhaustive enumeration of the tests which would invariably and in all cases provide an unfailing answer to the question whether a corporation is governmental instrumentality or agency.'
28. In Wade Administrative Law 8nd Edition @ Pages 633-634, the Author has noted the rectitude of the English Courts by declining interference with the actions of the Sporting Authorities as under:
'Sport is regulated on a national basis by a number of powerful bodies such as the Jockey Club, the Football Association, the National Greyhound Racing Club and the British Boxing Board of control. They have no statutory basis or authority, but in practice they may operate a monopoly so that all participants in the sport must accept their control or else be excluded; and their disciplinary powers may have very serious consequences for trainers, coaches, organisers and so forth. Where membership of such a body is contractual there may be express or implied terms about fair treatment which the member can enforce in private law. But where there is in such membership private law offers no protection against abuse of the controlling body's power, despite occasional indications to the contrary.94(See the decision of Sir Robert Megarry V-C in McInnes v. Onslow-Fane [1978] 1 WLR 1520, favoring limited review of the (non-statutory British Boxing Board of Control's decision on applications for licenses. See also Nagle v. Fielden [1996] 2 QB 633 where the question was whether the Jockey Club's refusal to grant a trainer's license to a woman might be unlawful as being arbitrary and unreasonable and also contrary to public policy and to 'the right to work'; it was no more than a decision that the statement of claim should not be struck out, no further proceedings being reported). Here there is a vacuum of justice which the law ought to fill.'
However, the Author made the following observations regarding the position of law in Scotland, New Zealand and Canada while contrasting it with English law as under:
The courts, however, have almost uniformly declined to regard bodies controlling sport as coming within public law. In one case, where the disciplinary committee of the Jockey Club had disqualified a steward from acting a chairman of boards of inquiry, the High Court was sympathetic to judicial review but held that it was bound by authority rejecting review of the National Greyhound Racing Club [95 (R. v. Jockey Club ex p. Massingbred-Mundy (1993) 2 All ER 207, following Law v. National Greyhound Racing Club Ltd. [1983] 1 WLR 1302. See the similarly sympathetic but negative decision in R. v. Jockey Club ex p.RAM Racecourses Ltd. [1993] 2 All ER 207, where the proprietors of a new racecourse were allotted not race meetings and a claim based on legitimate expectation failed]. Had the court not been bound by Law these decisions might have been different. For discussion see [1989] PL 95 (M.J. Beloff). In later decision the Court of Appeal refused review of a decision of the disciplinary committee of the Jockey Club disqualifying a racehorse and fining its trainer, when both owner and trainer were in contractual relationship with the Club [96 (R. v. Disciplinary Committee of the Jockey Club ex p. Aga Khan [1993] 1 WLR 909.
The decisive factor was that the powers of the Jockey Club were 'in no sense governmental', but derived from the consent of racehorse owners to be bound by its rules. A complaint of unfair procedure could not thereforee be remedied by judicial review, thought it might still be remediable by an action for breach of contract. The High Court similarly declined to review a decision of the Football Association to establish a premier league for football, holding that the Association was a domestic body existing a private law only and that it would be a 'quantum leap' to bring it within the law for controlling government organs [97 (R. v. Football Association Ltd. ex p. Football League Ltd. [1993] 2 All ER 833. But Scots law has made that leap without difficulty [98 (St Johnston Football Club Ltd. v. Scottish Football Association 1965 SLT 171 (breach of natural justice, relief granted); and see West v. Secretary of State for Scotland (below)] and so, it seems, has the law in New Zealand [99 (Finnigan v. New Zealand Ruby Football Union Inc. (no.2) [1985] 2 NZLR 181 (interim injunction granted against football union's decision to send a team to South Africa; the proceedings were discontinued: (No. 3) [1985] 2 NZLR 190 and in Canada. 1 (Re Parks and B.C. School Sports (1997) 145 DLR 174. And in one English case, where a rugby football disciplinary committee had suspended a player for fighting, the High Court granted an interim injunction to lift the suspension until it could be determined whether the proceedings lacked basic fairness, the judge observing that sport was now big business and that it was naive to pretend that it could be conducted as it was not many years ago [2 (Jones v. Welsh Football Union, The Times, 6 March 1997 (Epworth J)]. The complaint was that the player had not been allowed to challenge adverse evidence. It is not clear whether it was based on contract, tort or judicial review). This decision, though out of line with the authorities, is surely likely to outlive them.
Contrasting policies
In drawing the line as explained above the courts have set limits to the use of judicial review, which is essentially a mechanism for enforcing legality in government, as a means of remedying the shortcomings of private law. In many spheres of life, whether commercial, social, sporting or reliquious, [3 (Judicial review has predictably been refused against religious authorities : R. v. Chief Rabbi ex P. Wachmann [1992] 1 WLR 1036; R. v. Imam of Bury Park Jami Masjid ex P. Sulaiman Ali, The Independent, 13 September 1991)] a great deal of power is exercised in mattes which have nothing to do with government, and particularly in the case of monopolies the law should be able to prevent unfairness and abuse [4 )See Hoffmann LJ in the Aga Khan case (above) at 932 and the suggestions of Sir Harry Woolf [1986] PL 220 and Sir Gordon Borrie [1989] PL 552. An element of this appeared in the ancient common law rule that tradesmen in 'common callings' such as inkeepers, common carriers and ferrymen might make only reasonable charges and might not discriminate between customers; [ 5 (See M. Taggart in Joseph (ed.), Essays on the Constitution, 214 (a full survey); [1991] PL 538 ; P. Craig, 'Public Law and Control over Private Power' in Taggart (ed.), The Province of Administrative Law, 196; [1997] PL 630 and the same principle is seen in modern legislation against monopolies, unfair contracts and discrimination. Such a system would lie beyond administrative law, but would draw strength from it. New laws and new remedies would be needed, while judicial review remained confined to the sphere of government and to the upholding of the rule of law.
In Scots law, by contrast, the distinction between public and private law is rejected and the supervisory jurisdiction of the Court of Session is available wherever a decision-making power is conferred on some body, whether by statute or private contract or some other instrument, [6 (Emphasis is put upon the 'tripartite relationship' between the body conferring the jurisdiction, the body exercising it and the citizen affected by it. But this may not be an inflexible requirement: Naik v. University of Stirling 1994 SLT 449; Jobeen v. University of Stirling 1995 SLT 120 and that body exceeds or abuses its power or fails in its duty [7 (West v. Secretary of State for Scotland 1992 SLT 636, where the law is fully expounded by Lord President Hope. Grounds of review are held to be the same as in England but procedure is different and problem-free: see below, p. 651. See also Boyle v. Castlemilk East Housing Co-operative ltd. 1998 SLT 56 The court may intervene if any such body violates its own constitution of rules or errs in law or infringes natural justice, even if it is the governing body of a private association. Judicial review may extend to the decisions of religious [8 (As in M'Donald v. Burns 1940 SLT 325 (sisters expelled from Roman Catholic convent; action held competent)] and sporting [9 (As in St Johnston Football Club Ltd. v. Scottish Football Association Ltd. (above)]. Bodies if they act irregularly, oppressively or unfairly. Justice can thus be done in cases which lie beyond the reach of the rigid English system with its misguided public and private law dichotomy, and procedural obstacles and dilemmas are avoided.'
29. In addition to the above observations in Wade, the current thinking in England too is veering towards some measure of judicial supervision over private bodies exercising powers which have a public element. Sir Gordon Borrie, the then Director General of Air Trading, while delivering the Fifth Harry Street Lecture at the University of Manchester in 1989 quoted from Lord Woolf's earlier Lecture in the same Series in 1986 and observed:
'Nevertheless, I consider that the extension of the scope of judicial review in the recent years to bodies that are not necessarily thought of as public bodies has been a most interesting and promising development. And the growing acceptance of philosophy that all those who wield power should be accountable and should be subject to general principles of good administration indicates possibilities for developing the role of the courts in controlling the power of private corporations and self-regulatory bodies. As the frontiers of the public sector are pushed back by privatisation and by a diminution of the powers of those public bodies (like local authorities) where public law and judicial review have made most impact in the past, these possibilities are worth further thought. Privatisation has generally replaced public monopoly power and, although regulatory bodies have been established with a supervisory role, the successful marketing of shares in newly privatized industries has required that the prospect of regulation should not be too all-embracing or too strict. It is sometimes referred to as regulation 'with a lighter touch'.
'There seems to me to be a gap in our law when that kind of arbitrary action by a powerful body in the private sector seems to give rise to no remedy in the courts for those who suffer from it. It has been rightly said that complainants 'may be the catalyst for a referral' {P. Craig, 'The Monopolies and Mergers Commission: Competition and Administrative Rationality,' in Regulation and Pubic Law (ed. R. Baldwin and C McCrudden, 1987) p.221 Mr. Craig points out that private remedies are not entirely absent but they are limited. A private citizen may bring a civil claim for injunctive relief or damage where a firm has contravened an order made against it as the result of an adverse report of the M.M.C. on a reference to it by the Government or by the Director General of Fair Trading. The individual thereforee enters the arena only when an institutional decision has been taken to investigate a certain industry or practice, the industry or practice has contravened the relevant legislation and the industry has failed to comply with the subsequent order: Craig op. cit pp 220-221.} but complainants are dependent on discretionary action taken by a statutory official to refer the matter for investigation and report by a statutory commission and subsequently on the willingness of the government to accept the Commission's recommendations.'
'Several privatisation statutes have unleashed new centres of private power in recent years. Private power may also be enhanced by mergers, takeovers and the creation of cartels. Trade associations and professional groups have considerable power that can act in ways that are inimical to individual members as well as to the general public. Lord Denning recognised many years ago that so-called domestic bodies like the Stock Exchange, the Jockey Club, the Football Association and major trade union have 'quite as much power as statutory bodies... They can make or mar a man by their decisions. Not only by expelling him from membership, but also by refusing to admit him as member; or, it may be, by a refusal to grant a license or to give their approval (Breen v. Amalgamated Engineering Union (1972) 2 Q.B. 175. Private power has also developed apace through deregulation - the removal of many legal and informal restrictions on the activities that particular types of businesses may engage in. As ring fences have been dismantled, building societies, banks stockbrokers and others have emerged as conglomerates engaged in a wide variety of activities. The potential for abuse of power has increased.'
'The courts' supervisory jurisdiction helps to ensure that public bodes do not abuse their power and do not act arbitrarily, capriciously, unreasonably or unfairly. Private bodies, too, can throw their weight around. Whatever other regulatory controls they may be subject to, it is becoming increasingly desirable that private bodies be generally subject to some measure of judicial supervision. Litigation and the possibility of litigation can play a useful regulatory role.'
'It is now clear from decided cases that other private bodies with public powers are also subject to judicial review, such as Lloyd's (R v. Committee of Lloyds ex parte Posgate, The Times January 12, 1983 (1983) CLY 2001 the self-regulatory organisations recognised by the Securities and Investments Board [R v. Financial Intermediaries Mergers and Brokers Regulatory Association,ex parte Cochrane, The Times June 23, 1989] and the Advertising Standards Authority (R v. Advertising Standards Authority Ltd. ex parte Insurance Service plc, The Times, July 14, 1989 Glidewell.L.J. said that the A.S.A. was clearly exercising a public law function which, if the A.S.A. had not existed, would no doubt have been exercised by the Director General of Fair Trading.] I see no reason why the Press Council would be treated any differently. All of these bodies perform functions that would doubtless be performed by statutory public bodies, if these private bodies did not exist.
But it is clear to me that many private monopolies exercise a giant's strength, that the source of their power is not consensual and that existing private remedies against abuse of their power are inadequate. So, many of the points made by the Court of Appeal for subjecting the Takeover and Mergers Panel to judicial review apply to powerful private bodies whether they perform regulatory functions or not.'
'Even before the Datafin case, Sir Harry Woolf, in the second Harry Street lecture, saw advantages in private law emulating 'the supervisory roles which so far has been the hallmark of the courts' public law role' [Woolf, 'Public Law - Private Law: Why the Divide?' (1986) P.L. 230. His lecture was delivered on February 19, 1986]. Specifically, he posed the question: 'if public law has developed so rapidly that it now gives greater protection than does private law, should consideration be given to whether the type of review which takes place into administrative action should as at present be limited to public bodies?' I pause there in my quotation to remind you that nine months later, in the Datafin case, his colleagues in the Court of Appeal did widen the scope of judicial review to private bodies whose activities include a public element. In his lecture, Sir Harry Woolf continued thus:
'The interests of the public are as capable of being adversely affected by the decisions of large corporations and large associations, be they of employers or employees, and should they not be subject to challenge on Wednesbury grounds if that decision relates to activities which can damage the public interest? ... There is the Monopolies Commission, wider power of intervention...Members of large companies... delegate to the board of company... the power to make decisions which at times not only affect the company... but the national interest. Should it not be possible for the court to intervene if the decision has been reached without a relevant consideration being taken into account or if the decision has been taken on the basis of some irrelevant consideration in the same way as it does i the case of a public body? Powerful bodies, whether they are public bodies or not, because of their economic muscle may be in a position to take decisions which at the present time are not subject to scrutiny and which could be unfair or adversely affect the public interest. (Woolf op.cit pp. 224-225)' 'Although damages are of course the prime remedy in private law, private law does allow for the possibility of other discretionary remedies, such as an injunction or a declaratory judgment and there doe sexist a private law supervisory or 'longstop' jurisdiction. The Court of Appeal in Nagle v. Fielden (1966) 2 Q.B. 633 held that the Jockey Club, who exercised a 'virtual monopoly in an important field of human activity.' must not act 'arbitrarily and capriciously' in rejecting the plaintiff's application for membership. More recently, the New Zealand Court of Appeal in Finnigan v. New Zealand Rugby Football Union (1985) 2 N.Z.L.R. 159 held that there was an arguable case that, in deciding to tour South Africa, the Football Union had shut their eyes to public concern over the tour and closed their minds to nay genuine consideration of its effect on the welfare of rugby football. They said the case had some analogy with public law issues. As one writer has observed (D. Oliver, 'Is the Ultra virus rule the basis of judicial review?' (1987) P.L. 543, the references to arbitrariness and capriciousness in the decision of the English court of Appeal are close to Wednesbury unreasonableness' and 'irrationality', and the reference by the New Zealand Court to Appeal to the Football Union shutting its eyes to public concern over the tour to South Africa is close to the Wednesbury principle that relevant considerations should not be disregarded. In the same writer's words, it seems that 'the boundaries between public and private law and their respective supervisory functions are breaking down, and that principles of good administration which bear a strong resemblance to the substantive rules of judicial review were applied to a private body... (Oliver op cit.p.556)'
'Bearing in mind the lack of United State style incentives to private litigation such as triple damages and contingency fees, the enforcement powers of public bodies and public support for individual challenges in court to he exercise of private power are clearly useful. The existing disincentives for individuals to engage in litigation to combat private power mean that at present that large can frighten off the small simply by heavy breathing. [Cornish Book Review (1985) E.I.P.R. 210'
'It have had three key points to make in this lecture. One was to demonstrate that it is an important for private power to be accountable as it is for public power to be accountable. Secondly, I wanted to explore ways in which judicial supervision over public bodies and the ombudsman concept can be usefully developed to apply to the private sector. And thirdly, I felt it timely to welcome such developments and to urge more of the same kind of developments, because there are concentrations of power in the private sector which should be challenged.'
Thus in several countries sporting bodies exercising monopoly status are increasingly coming under judicial scrutiny. It has also been noted in the above passages that the distinction between public law and private law in respect of such monopoly sporting associations is minimal. In the present case the BCCI by their action can make or mar the whole career of a professional cricketer. Can it be said that such action cannot be put under judicial scrutiny at all. In the light of the delineation of the scope of the jurisdiction under Article 226 of the Hon'ble Supreme Court in U.P. Land Development Bank's Case (Supra) the answer has to be in the negative and the jurisdiction of the writ Court in such a situation cannot be totally shut out. However, the exercise of the wide discretionary remedy of writ jurisdiction has naturally its own well settled limitations. thus even if this Court was to proceed on the assumption that BCCI is a private Body, the fact that it performs some public functions affecting vital public interest cannot be denied and the judicial opinion in Scotland, New Zealand and Canada is already in favor of judicial supervision of sporting bodies while in England change is being advocated in respect of the traditional English view.
30. The essential question, thereforee, would be (i) what is the nature of the duty performed by the respondent with regard to which the cause of action has arisen. (ii) What is the nature of the right whose infringement the petitioner complains of. In the instant case the nature of the duty would amount to a public duty which would allow the High Court to exercise jurisdiction under Article 226. In addition the grievance of the petitioner is that his fundamental right is affected which the High Court would find within the scope of its judicial review. thereforee, the question as to whether the respondent is a State or other authority need not be considered in this petition.
31. The foregoing discussion leads to the following conclusions qua BCCI
(a) It is the sole representative of India as a country at all levels of cricket in the international arena and selects teams for all representative levels of cricket at the International level and has been recognized by the Government of India as the Regulatory Authority for the game of Cricket in India;
(b) The team fielded by it plays as India and not BCCI XI or even India XI while playing One Day International or Test Matches;
(c) Even domestically all representative cricket can only be under its aegis. No representative tournament can be organized without the permission of BCCI or its affiliates at any level of cricket;
(d) Its affiliates i.e., the State Boards have access to vast tracts of prime urban land at highly concessional and indeed nominal rates;
(e) By virtue of hosting international representative matches at stadia available to it at nominal rates, huge profits are made by gate-money, telecast fees, sponsorship and advertising revenues. The BCCI's affiliates are the recipients of State largesse, inter alia, in the form of nominal rent for stadia;
(f) No event including even the Republic Day parade and other events ancillary thereto get the kind of media coverage in the country as an International Cricket Match particularly that involving India;
(g) Cricket is undoubtedly the most popular game in the country;
(h) The Hon'ble Supreme Court had even entertained a writ petition under Article 32 against BCCI for banning certain players for a misdemeanour;
32. When the Government stands by and lets a body like BCCI assume the prerogative of being a sole representative of India for cricket by permitting BCCI to choose the team for India fr appearance in events like the World Cup, then it necessarily imbues BCCI with the public functions at least in or far as the selection of the team to represent India and India's representation in International Cricket fora and regulation of Cricket in India is concerned. Thus the monopoly status of the respondent No. 2 is evident. It is also clear that such monopoly statutes is indisputably state recognized as evident from the later of Ministry of Culture, Youth Affairs an Sports dated 22nd December 2000 and indeed by acquiescence of the Government, can be considered state conferred. Similarly the plea of the BCCI that it does not own or lease the stadia is of no consequence as the stadia are owned and leased by its members and it is not disputed that all international matches are played in such stadia. Similarly membership of BCCI of the International Cricket Conference (ICC) cannot ipso facto imply that it is not amenable to writ jurisdiction. In fact BCCI represented India on this own showing and depending upon the nature of the action impugned, would be amenable to writ jurisdiction.
33. While a writ petition may be maintainable against a per/body which is neither State nor a instrumentality of State,, the exercise of writ jurisdiction in such a case has to be carefully controlled. It is not for every dispute in the body be it service, intra member or election that a writ Court could and should interfere. The very potency and reach of the writ jurisdiction requires caution to be exercised and it is not meant to resolve all mundane and internecine controversies arising in such bodies. It is only when the impugned action infringes on a fundamental right or is so shocking and arbitrary so as to be unconscionable in addition to having wide ramifications of a public nature, that the writ Court may interfere. Since the body/person is brought into the ambit of the writ jurisdiction by the public nature of its duties and the public interest inherent therein, it must follow as a corollary that the action complained of also must be of such a nature which could affect public in addition to private interest in the wider sense so as to be amenable to writ jurisdiction. The following words of caution of the Hon'ble Supreme Court in the decision of U.P. Co-operative Bank (Supra) as well as the other limitations laid down by the Hon'ble Supreme Court in the exercise of writ jurisdiction must inform and guide the exercise of writ jurisdiction in such cases. The relevant portion of the said judgment reads as follows:
'.... But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain guidelines and self imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. The High Court doe snot interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to by pass the normal channel of civil and criminal litigation. The High Court doe snot act like a proverbial 'bull in a china shop' in the exercise of its jurisdiction under Article 226.'
34. However, the above discussion only resolves the issue whether this writ petition can be thrown out at the threshold on the question of maintainability qua respondent Nos. 2 and 3. The question whether the Court should nevertheless interfere in the facts of the present case is to be decided in light of the tests laid down by the Hon'ble Supreme Court for exercise of writ jurisdiction and the conclusions in the foregoing paragraphs of the judgment. The question whether the impugned action is sustainable cannot be a subject matter of the preliminary objection as to the maintainability of this writ petition, but would be a subject matter of the determination of the disputes on merits and the court is to determine whether the challenge to the punishment of 5 years ban can be looked and accepted in the light of the foregoing discussion.
35. I, thereforee, hold that in view of the above discussion the application of respondent No. 2 to determine the preliminary objection as to the maintainability of the writ petition is allowed and the preliminary objection raised by respondents No. 2 3 to the maintainability of the writ petition is rejected.
36. The application accordingly stands disposed of.