Board of Control for Cricket, India and anr. Vs. Netaji Cricket Club and ors. – Court Judgment

LegalCrystal Citation legalcrystal.com/639383
Subject Election ;Civil
Court Supreme Court of India
Decided On Jan-10-2005
Case Number Civil Appeal Nos. 237-239 of 2005 (Arising out of SLP (C) Nos. Constitution of India – Article 142; Tamil Nadu Societies Registration Act
Appellant Board of Control for Cricket, India and anr.
Respondent Netaji Cricket Club and ors.
Advocates: A.M. Singhvi,; C.S. Vaidyanathan,; S.S. Ray,;
Cases Referred M.P. Special Police Establishment v. State of M.P. and Ors.
Prior history From the Judgment and Order dated 8.10.2004 of the Madras High Court in C.M.P. Nos. 16418 and 16419/2004, R.P. No. 166/2004 in O.S.A. No. 225/2004 and C.M.P. No. 16420/2004 in S.R. No. 103036 of 2004
Excerpt:
civil – civil procedure code (cpc) – sections 107(2), 114 – order 47, rule 1- maharastra cricket association rules – rules 3, 5, 8, 20, 25, 26, 27, 32, 43(1) – review application – maintainability – a review application is maintainable not only upon discovery of a new and important piece of evidence but also if same is necessitated on account of some mistake or for any other sufficient reason – a mistake on part of court including a mistake in the nature of undertaking may also call for review of the order – a subsequent event can be taken into consideration by court for purpose of rectifying its own mistake – suit for declaration and injunction filed by netaji cricket club, a member of board of control for cricket in india seeking declaration that eligible candidate entitled to contest…..s.b. sinha, j.1. leave granted in all slps.2. these appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.3. the basic fact of the matter is not in dispute.4. netaji cricket club (netaji) is a member of tamil nadu cricket association. tamil nadu cricket association is admittedly a member of the board of control for cricket in india (board). netaji filed a suit for declaration and injunction in the madras high court which was marked as civil suit no. 765 of 2004 inter alia for the following reliefs:’1. a declaration to declare that the eligible candidates who are entitled to contest for the post of president in the bcci proposed a member of the north zone should be permitted to contest in the election process…..

Judgment:
S.B. Sinha, J.

1. Leave granted in all SLPs.

2. These appeals involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

3. The basic fact of the matter is not in dispute.

4. Netaji Cricket Club (Netaji) is a member of Tamil Nadu Cricket Association. Tamil Nadu Cricket Association is admittedly a member of the Board of Control for Cricket in India (Board). Netaji filed a suit for declaration and injunction in the Madras High Court which was marked as Civil Suit No. 765 of 2004 inter alia for the following reliefs:

‘1. A declaration to declare that the eligible candidates who are entitled to contest for the post of President in the BCCI proposed a member of the North Zone should be permitted to contest in the election process and also be entitled to be elected as the President and act as such for the term in the election to be conducted in the Annual General Meeting on 29th and 30th of September, 2004 at Hotel Taj Bengal, Kolkata.

2. For a permanent injunction restraining the defendants, their agents, servants and men from in any manner seeking to disqualify any eligible person or persons proposed by any member of the North Zone, as representative from the said zone representing a member in the North zone as their candidate for the Presidential Post of BCCI by virtue of such candidate not being a resident member within the zone not being a member of the said association giving him the representation.’

5. In the said suit, an apprehension was expressed that the Board in its ensuing election of office bearers would not permit some candidates to contest on the ground of residence.

6. In the said suit, two interim applications bearing No. OA No. 803 of 2004 and OA No. 804 of 2004 were filed. Whereas in OA No. 803 of 2004 a prayer was made to the effect that the Annual General Meeting (AGM) be conducted under the Chairmanship of a retired Supreme Court Judge with absolute power to scrutinize and approve the list of authorized representatives from member associations eligible to vote in the AGM; in OA No. 804 of 2004 a prayer for injunction was made for restraining the Appellants herein from interfering with the proposal of any representative of any member of the North Zone for the post of President on the basis of residential qualification.

7. By an interim order dated 28.9.2004, a learned Single Judge of the said High Court appointed Shri S. Mohan, a former Judge of this Court as a Commissioner to conduct elections and to take necessary decision with regard to qualification, nomination and conduct of elections. The third respondent was further prohibited from disqualifying any member of BCCI and prevent them from voting.

8. The Board aggrieved by and dissatisfied with the said order dated 28.9.2004 preferred a Letters Patent Appeal before the Division Bench of the Madras High Court. Before the said Division Bench, an undertaking was given by the learned Senior Counsel on behalf of the Board that the Board would not disqualify any candidate for the post of President on the ground of residence. Pursuant to or in furtherance of the said undertaking a statement was made by the learned counsel appearing on behalf of ‘Netaji’ that the apprehension of the plaintiff/ first respondent which formed the basis for moving the Court by filing a suit for the relief as stated above is vanished in air. With the consent of the parties, the suit itself was withdrawn and both the appeal and the suit were disposed of in the following terms:

‘(i) We are of the view that the impugned order need not be in existence and hence, the same is set aside;

(ii) the elections scheduled on 29.9.2004 at 10.30 a.m. shall be continued by the first defendant/ appellant-Body strictly in accordance with the provisions of their Constitution and the rules or bye-laws framed thereunder;

(iii) the counsel on record for the first defendant/ appellant herein made an endorsement to the effect that ‘the appellant shall not disqualify any candidate for the post of President on the ground of residence’. The said undertaking has been given by the learned Senior Counsel, Mr. T.R. Rajagopal across the bar and the same is recorded and we direct that the undertaking should be given effect to in letter and spirit without any deviation;

(iv) the first defendant/ appellant herein is hereby directed to receive Hon’ble Mr. Justice M. (sic) Mohan, who was appointed as Commissioner under the order on appeal and offer due respect and all comforts during his stay at Kolkata without giving any room for the learned Judge to feel embarrassed and the learned Judge should be treated with high dignity. The first defendant/ appellant herein shall pay a further sum of Rs. 1,00,000/- (Rupees one lakh only) as final remuneration to Hon’ble Mr. Justice S. Mohan, apart from other incidental expenses; and

(v) in default of conditions (ii) and (iii), referred to above, if any party who is a member of the first defendant/ appellant-Board is aggrieved, he is at liberty to workout his relief in appropriate proceedings before the competent court.’

9. It appears that another suit was filed in the Court of VII Assistant City Civil Court, Chennai by Bharathi Cricket Club against the Appellants herein as also the Tamil Nadu Cricket Association praying for the following reliefs:

‘a) Declaration that the resolution in so far as it relates to Item 1 passed at the Special General Meeting of the First Defendant held on 12.9.2004 at 11.30 a.m. at the Taj Coromandel, Nungambakkam High Road, Chennai, electing the Third Defendant as the Patron in Chief as null and void.

b) Order of Permanent Injunction restraining the First Defendant from passing the resolution in relation to Item 1(b) and Item No. 13 of the Agenda of the Notice dated 27.08.2004 issued by the First Defendant for convening the Annual General Meeting on 29th & 30th September, 2004 at Hotel Taj Bengal or at any other place, consequently restraining the First Defendant from passing any resolution in any manner whatsoever having the effect of nominating the Third Defendant as Patron-in-Chief thereby empowering the Third Defendant to attend the International Cricket Council and Asian Cricket Council Meetings representing the First Defendant.’

10. In the said suit, a prayer was made by the plaintiff thereof for grant of an ex-parte ad-interim injunction, whereupon the Court by an order dated 28.9.2004 granted an ex-parte ad-interim injunction restraining the Appellants herein from passing resolutions confirming the nomination of Shri Jagmohan Dalmia as Patron-in-chief for three years under Agenda No. 1(b).

11. A Civil Review Application marked as CRP No. 1734/2004 there against was filed before the Madras High Court which is said to have been heard in part and is still pending.

12. The Annual General Meeting was convened on 29.9.2004. In the said meeting although no person was prevented from contesting the election for the post of President of the Board on the ground of residence but it stands admitted that Maharashtra Cricket Association was not permitted to take part in the election through Mr. D.C. Agashe or any other person. We shall deal with the said matter separately hereinafter. It further stands admitted that Shri Jagmohan Dalmia, who chaired the meeting, had cast one vote as a result whereof equal number of votes i.e. 15 each were polled on both sides whereupon he gave his casting vote. The AGM, however, on 30.9.2004 was adjourned till 26.10.2004. The Board herein filed a Special Leave Petition on limited grounds against the said order of the Division Bench dated 29.9.2004. However, after the AGM was held, a review petition was filed by ‘Netaji’ marked as Review Petition No. 166 of 2004 inter alia contending that the purported undertaking given by the learned Senior Counsel appearing on behalf of the Appellant herein was not adhered to and furthermore no appeal had been filed by the Appellants herein against the order of injunction passed by the learned Single Judge in OA No. 803 of 2004.

13. A review petition was also filed by Mr. D.C. Agashe seeking review of the said order dated 29.9.2004 contending that he had not been allowed to participate in the said election having been disqualified therefore although no order of disqualification was served.

14. The said review application was admitted by the said Division Bench of the High Court on 8.10.2004 observing that the undertaking across the bar given by the learned senior counsel appearing on behalf of the Board had not been given effect to in its letter and spirit. On an application made in this behalf by ‘Netaji’, an interim order also came to be passed. The High Court opined:

‘3. We feel that we had been misled by the undertaking made on behalf of the first respondent herein, namely the appellant in the O.S.A. No. 225 of 2004 (first defendant in the suit O.S. No. 765 of 2004), which culminated into the passing of the judgment dated 29.9.2004 made in O.S.A. No. 225 of 2004 and C.S. No.765 of 2004, which is sought to be reviewed in the review application No. 166 of 2004.

4. We are of the considered opinion that the undertaking offered on behalf of the first respondent/Board not to disqualify any member from any of the zone, across the bar, has not been given effect to in letter and spirit as directed in our judgment dated 29.9.2004 made in O.S.A. No. 225 of 2004 and C.S. No. 765 of 2004 and prima facie there are reasons to believe as to the alleged breach of the said undertaking and hence, we are satisfied that a prima facie case has been made out for granting injunction and, therefore, there shall be an order of interim injunction as prayed for until further orders in C.M.P. No. 16419 of 2004. Notice.

5. Taking note of the facts and circumstances of the case, which led to the filing of the O.S.A. No. 225 of 2004 and the admitted fact that the first respondent in the review application had not preferred any appeal against the order made in Application No. 803 of 2004 whereunder Hon’ble Mr. Justice S. Mohan, Judge, Supreme Court (Retired) was appointed as a Commissioner, and that the meeting held on 29-30.9.2004 stands adjourned as on date, we are inclined to appoint Hon’ble MR. Justice S. Mohan, Judge, Supreme Court (Retired) as an interim administrator until further orders, of course, subject to His Lordship’s consent for the same, which shall be obtained through the Registry. In such event, the Hon’ble Mr. Justice S. Mohan, Judge, Supreme Court (Retired) shall be paid a remuneration of Rs. 1,00,000/- per month apart from other administrative, travelling and incidental expenses, by the first respondent/ Board. Notice.’

15. The SLP (C) Nos. 21820-22/2004 have been preferred by the Appellants herein questioning the said order dated 8.10.2004. In the Special Leave Petition filed by the Board, the Delhi & District Cricket Association has joined where for an application for permission to file the same has been prayed for. This Court passed the following order on 11.10.2004:

‘List this matter for final hearing on 26th October, 2004. In the meantime the impugned order to the extent of appointment of Administrator is stayed. In the meantime Election/ appointment of Respondent No. 3 Patron-in-Chief is also stayed until further orders.

Correction and rectification if any be completed by them.’

16. Submissions have been advanced by Dr. A.M. Singhvi, learned senior counsel, on behalf of Appellant No. 1, Mr. C.S. Vaidyanathan, learned senior counsel on behalf of Appellant No. 2 and Mr. S.S. Ray, learned senior counsel, on behalf of Shri Jagmohan Dalmia, whereas Mr. F.S. Nariman, learned senior counsel appeared on behalf of Maharashtra Cricket Association and Mr. Agashe and Mr. Harish N. Salve, on behalf of ‘Netaji’. An intervention application was filed by ‘Club of Maharashtra’, represented by Mr. Shanti Bhushan, learned senior counsel. Intervention applications were also filed by The Karnataka State Cricket Association, Rajasthan Cricket Association and Saurashtra Cricket Association.

17. Contention of Dr. Singhvi appearing on behalf of the Appellant was that the suit was filed by ‘Netaji’ only on an apprehension that a representative or a member club would be debarred from contesting the election to the post of President on the ground of residence and, no contention had been raised as regard the right of an association to vote in the said meeting.

18. Dr. Singhvi would submit that there had been similar instances in the past where the Chairman of the meeting had cast two votes one in terms of Rule 25 and another in terms of Rule 26. The learned counsel would urge that as the rules of the Board constitute contract between the members, only the ‘doctrine of fairness’ shall apply in the conduct and affairs of the Club, and, thus, even minor deviations are permissible in law. Reliance in this behalf has been placed on T.P. Daver v. Lodge Victoria No. 363, S.C. Belgaum : [1964]1SCR2.

19. It was urged that the High Court wrongly exercised its jurisdiction in entertaining the review application. Reliance in this regard has been placed on Parsion Devi and Ors. v. Sumitri Devi and Ors. : (1997)8SCC715 and Lily Thomas and Ors. v. Union of India and Ors. : 2000CriLJ2433.

20. The learned counsel would argue that the undertaking given by the learned counsel appearing on behalf of the Appellant before the Division Bench of the Madras High Court was in consonance of the contention raised in the Memo of Appeal itself which had been duly recorded and the said undertaking having not been violated, the application for review was not maintainable. Taking us through the Memo of Appeal in OSA No. 225 of 2004, the learned counsel would contend that on a perusal thereof it would be evident that an appeal was preferred against the order dated 28.9.2004 passed by the learned Single Judge passed both in OA No. 803 of 2004 and OA No. 804 of 2004. It was contended that Netaji had no locus to file a suit or pray for an order of injunction as it was not a member of the Board. In the Annual General Meeting, Dr. Singhvi would submit, no person contesting for the post of President having been disqualified on the ground of residence, the review petition was not maintainable wherein, a shift was made to the right of voting vis–vis the right to contest for the post of President which was not the basis for filing of the suit. Such a change in the stand on the part of ‘Netaji’, Dr. Singhvi would urge, is impermissible in law. In any event, the learned counsel would contend, that the same might give rise to an independent cause of action and, thus, keeping in view the scope and purport of the suit the review application should not have been entertained. It was further pointed out that in the said suit Mr. Agashe being not a party, the contention that he was not allowed to represent the Maharashtra Cricket Association could not be taken to be a ground for entertaining a review application. A breach of an undertaking in any view of the matter, according to Dr. Singhvi, cannot give rise to a revival of suit particularly when, how and in what manner the violation of such undertaking had taken place had not been specified. The interim order, according to Dr. Singhvi, goes far beyond the scope of the suit.

21. As regards the legality of the said meeting dated 29.9.2004, the learned counsel had taken us through the orders passed in the litigations concerning the Maharashtra Cricket Association and submitted that in view of the order of the Bombay High Court dated 1.3.2004 and furthermore having regard the objections raised by Mr. Thorve, Mr. Agashe could not have been permitted to take part in the said meeting as a representative of Maharashtra Cricket Association.

22. As regards the contention that Mr. Agashe was permitted to represent the said Association on 12.9.2004 despite the protest by Mr. Thorve in terms of his letter dated 10.4.2004, the learned counsel would submit, it was so done in terms of the legal opinion obtained in that behalf and in any event the same was an EGM and not AGM. It was contended that the said EGM was convened having regard to the requisitions made by 27 out of 30 members to invite Mr. Dalmia to become the patron-in-chief of the Board and, thus, the result thereof was a foregone conclusion. Furthermore, from the minutes of the meeting held on 12.9.2004, it would appear that the same was a requisitioned meeting and not an AGM. On the other hand, in terms of order dated 21.9.2004 passed by the Bombay High Court both the observers appointed by it were entitled to attend the meeting and further a direction was issued to the effect that the Managing Committee of the Association shall not take any major policy decision, save and except with the consent of the two observers.

23. Drawing our attention to the notice dated 25.9.2004 issued by the Maharashtra Cricket Association as regard the proposed meeting to appoint the representatives of the Maharashtra Cricket Association in the forthcoming Annual General Meeting of the Board, scheduled on 29th & 30th September, 2004 at Kolkata; it was urged that the same was illegal.

24. The learned counsel would contend that representation of the Maharashtra Cricket Association in the Annual General Meeting which is an annual affair was a matter involving major policy decision which could be taken only in a duly constituted meeting. The said notice dated 25.9.2004 was illegal as it was not issued in terms of Rule 32 of the Rules of the Maharashtra Cricket Association which postulates four clear days’ notice before convening an ordinary meting and in relation to urgent matters, the Rule postulates one clear day’s notice which had not been done in the instant case as had also been pointed by Mr. Deshmukh in his letter dated 27.9.2004.

25. It was contended that Mr. Agashe and Mr. Thorve filed suits in the Pune Civil Court. Mr. Agashe furthermore filed an application for grant of ad-interim injunction directing the Maharashtra Cricket Association to allow it to be represented through him which was not granted. In the aforementioned premise, upon obtaining legal opinion and upon hearing the contending and contesting parties, a decision was taken by the Board that neither Mr. Agashe nor Mr. Thorve can represent the Maharashtra Cricket Association.

26. On the aforementioned premise, it was submitted that there was a fundamental difference between the meeting held on 12.9.2004 and 29.9.2004 particularly in view of the fact that the Board had before it the letter of Mr. Deshmukh, suits were filed and furthermore there was a possibility of the members of the Board facing a proceeding under the Contempt of Courts Act for violating orders of the Bombay High Court. It was argued that in any event, the decision being not an arbitrary one, the same could not have been questioned in the review application.

27. As regards, the representation of DDCA, it was contended that no question was raised by any person whatsoever in the meeting to represent it before the Board and in fact in the Annual General Meeting the said representative of DDCA indeed was elected as an election officer. It was pointed out that even in the review application, the said question was not raised.

28. As regards, invitation of Mr. Dalmia for holding the post of patron-in- chief, our attention was drawn to Rule 8 of the Articles of Association and it was submitted that by reason thereof merely his contribution to the field of cricket was recognized. The said post, according to Dr. Singhvi, is an ornamental post who has no power or official authority in the management of the Board.

29. Mr. C.S. Vaidyanathan, learned senior counsel appearing on behalf of the DDCA would submit that as regards legality or otherwise of its participation neither any objection was taken in the plaint nor in the review petition nor any document was filed and in that view of the matter the Respondents cannot be permitted to raise a contention for the first time in this Court.

30. Drawing our attention to the order dated 18.9.2004 passed by the Company Law Board, the learned counsel would contend that by reason of the said order, DDCA was merely directed to maintain the status quo, i.e., restrained to holding the AGM.

31. Mr. S.S. Ray, learned senior counsel appearing on behalf of Mr. Jagmohan Dalmia would adopt the submissions made by Dr. Singhvi and would submit that as the Articles of Association of the Board constitute a contract amongst the members, they are bound thereby unless the same are found to be illegal, malafide and contrary to the statute. Reliance in this behalf has been placed on Hyderabad Karnataka Education Society v. Registrar of Societies and Ors. : AIR2000SC301.

32. The learned counsel would contend that having regard to the sequence of events borne out from records and having regard to the various litigations pending before different courts and in particular the directions issued by the Bombay High Court in Writ Petition No. 1465 of 2004 and writ petition No. 1559 of 2004 nobody chairing a meeting as important as Annual General Meeting of the Board could have allowed Mr. Agashe or Mr. Thorve to represent the Maharashtra Cricket Association.

33. The learned counsel would contend that having regard to Rule 20(iii) the old Managing Committee continues to function till the next meeting and in this connection our attention has been drawn to Ramaiya’s Company Law, Table A, Chapters 7 to 8 at pages 4119 and Buckley’s Companies Law, Vol. I, 19th edition, pages 1016-17.

34. The learned counsel would, by way of example, draw our attention also to Regulation 54 of Table A of the Companies Act as regard the right of the Chairman to exercise his option for casting vote in terms of the statute.

35. It was argued that the AGM had to be adjourned and did not terminate. Therefore, Rule 20(iii) became operative.

36. As regard maintainability of the review application filed by the Respondents herein, Mr. Ray would submit that the subsequent events could not have been taken into consideration for the aforementioned purpose. It was urged that the order admitting the review application and the interim order passed by the Madras High Court is contrary to the relevant provisions of the Code of Civil Procedure (Code) and on a wrong understanding of the dispute relating to Maharashtra Cricket Association.

37. The learned counsel has taken us through various purported achievements of Shri Jagmohan Dalmia and submitted that in the interest of the sport of cricket Shri Jagmohan Dalmia had been invited to become patron-in-chief of the Board so that he can represent India in the ICC meetings.

38. Mr. Shanti Bhushan, learned senior counsel appearing on behalf of Intervenor Club of Maharashtra which is said to be a member of Maharashtra Cricket Association would submit that the meeting held on 27.9.2004 authorising Mr. Agashe as a representative of the Association was not a valid one as mandatory notice therefore had not been given.

39. A valid resolution, according to Mr. Shanti Bhushan, would mean one passed in a properly constituted meeting of the Maharashtra Cricket Association as its participation in the AGM of the Board was a matter of importance and not a day to day affair.

40. The learned counsel would contend that the suit filed by ‘Netaji’ before the Madras High Court being based only on apprehension, the same was not maintainable. In any event, it was submitted that the Netaji having conceded that its grievance had been satisfied a review application could not have been entertained.

41. Mr. Shanti Bhushan would argue that as the elected persons have not been impleaded as parties herein, this Court cannot go into the question of validity or otherwise of the said election.

42. Mr. F.S. Nariman, learned senior counsel appearing on behalf of the Maharashtra Cricket Association and Mr. Agashe would, on the other hand, submit that in the facts and circumstances of the case and having regard to the materials brought on records the appointment of interim Administrator by the Madras High Court was justified, particularly, when it was not certain as to whether the old body or the new body had been functioning.

43. Drawing our attention to the order of injunction passed by the District Court, Madras in the suit filed by Bharathi Cricket Club, the learned counsel would contend that they could have excluded both Item Nos. 1(b) and 13 of the Agenda which pertained to Mr. Jagmohan Dalmia or proceeded to hold the meeting but it could not have been done partially.

44. The learned counsel would contend that in terms of the Rules only elected representatives represent the Board but in the instant case, elected representatives allegedly in terms of Rule 20(iii) had not taken charge and the old body is still continuing.

45. Drawing our attention to the affidavit filed by Shri Jagmohan Dalmia in S.L.P. (C) No. 22361-22363 of 2004, the learned counsel would contend that he claimed to be continuing as Chairman both de facto and de jure.

46. According to learned counsel, ‘good faith’ is at the core of the function of a body like the Board. The election was to be held at the end of the meeting and having regard to the fact that the meeting had been adjourned, an odd situation has come into being, viz., that the elected Board cannot function and Mr. Dalmiya continues to be the President of the Board so long he is not elected as patron-in-chief. According to the learned counsel, malafide on the part of the President of the Board is apparent inasmuch as he wanted confirmation of his own invitation as patron-in-chief before the process of election was completed.

47. Mr. Nariman pointed out that in the Special Leave Petition, no statement as to what had happened on 29th September, 2004 regarding election of the office bearers of the Board had been made but the same had been disclosed only in an additional affidavit filed in the S.L.P. of MCA.

48. Drawing our attention to the fact that Mr. Agashe after having been debarred from attending the Annual General Meeting made a representation on 29th September, 2004 itself to the President of the Board asking for reasons as regard his disqualification to participate in the meeting on behalf of Maharashtra Cricket Association but he refused to accept the representation and in that situation it had to be ultimately served on the Secretary of the Board but no reply thereto has yet been received either by Mr. Agashe or by Maharashtra Cricket Association.

49. The learned counsel would contend that although a resolution was passed in the meeting of the Maharashtra Cricket Association in favour of Mr. Agashe but he was not allowed to participate and if the AGM of the Board was to be adjourned this item could also have been adjourned.

50. Drawing our attention to the additional affidavit filed on 20th October, 2004 wherein a special pleading has been made that at the Annual General Meeting an opportunity of hearing had been given allegedly to both Mr. Agashe and Mr. Thorve it was contended that the same was wholly unnatural and, thus, gives rise to another controversy.

51. The learned counsel would contend that Mr. Thorve in his letter dated 10th April, 2004 took a positive stand that Mr. Agashe should not be permitted to represent the Maharashtra Cricket Association but he was permitted to do so by Mr. Dalmia as would appear from his letter dated dated 3rd May,2004 purported to be upon obtaining legal opinion stated:

‘Your letter dated 10 April 2004 addressed to our Board was forwarded for legal opinion.

According to the legal opinion received, the orders of the High Court as well as the Apex Court were restricted to the ‘affairs of MCA’ only and not BCCI. Under the order of the Apex Court, the MCA shall not undertake any ‘policy’ decision until disposal of the Appeal by the District Court.

The legal opinion further states that the restriction on taking any ‘policy’ decision by the Maharashtra Cricket Association has nothing to do with representing the Association in the meetings of the Board. Even if any policy decision is taken by the Board through its Working Committee, it shall be the policy of BCCI and not MCA.’

52. Mr. Nariman would contend that the legal opinion received by the Board, which, having regard to the tenor of the said letter dated 3rd May, 2004, evidently was a written one, has designedly been withheld from this Court. It is, thus, evident that there exists two contrary opinions whereupon the Board had relied upon in two different situations. It was contended that there was no reason as to why Mr. Jagmohan Dalmia himself did not affirm any affidavit in this regard clarifying his position.

53. Mr. Nariman would submit that the fact that in a similar situation Rajasthan Cricket Association was permitted to be represented in AGM proves malafide on the part of the Board.

54. The learned counsel had also drawn our attention to the letter of Mr. B.G. Deshmukh, one of the observers appointed by the Bombay High Court and submitted that neither he could raise any objection as regard requisitioning of the meeting nor could he have forwarded his letter to Mr. Ajay B. Shirke and Mr. S.G. Thorve on the ground that they had asked for the copy of his letter for being placed before the MCA. Such an act on the part of Mr.Deshmukh, Mr. Nariman would contend, was improper particularly when the said addressees had no concern with the said notice and, more so, when the same was received by them even before the service thereof on the Maharashtra Cricket Association. Our attention was also drawn to the counter affidavit filed by the Respondent No. 1 wherein it has been alleged:

‘It is pertinent to state that the said observer resides in Pune and the meeting was also to be held in Pune itself and inspite of notice being served on him, he does not attend the meeting. It is also submitted that no objection as to the appointment of Mr. D.C. Agashe to represent Maharashtra Cricket Association has been raised by the said observer. It is also peculiar that Mr.S.G. Thorve and Mr. Ajay B. Shirke who had no concern with the said notice was also given a …