Alappuzha District Table Tennis Association & K. Venkitraman v. Kerala State Sports Council & Kerala Table Tennis Association & others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 21ST DAY OF JUNE 2019 / 31ST JYAISHTA, 1941** **WA.No.387 of 2019** **AGAINST THE JUDGMENT DATED 27.11.2018 IN WP(C) 14564/2018 of HIGHCOURT** ## **APPELLANTS/3RD AND 4TH RESPONDENTS:** - **1 ALAPPUZHA DISTRICT TABLE TENNIS ASSOCIATION, REPRESENTED BY ITS SECRETARY, YMCA, ALAPPUZHA688001.** - **2 K.VENKITARAMAN, SECRETARY, ALAPPUZHA DISTRICT TABLE TENNIS ASSOCIATION, YMCA, ALAPPUZHA- 688001.** **BY ADVS. SRI.BECHU KURIAN THOMAS (SR.) SRI.RONY JOSE** ## **RESPONDENTS/RESPONDENTS 1, 2, 5 & PETITIONERS:** - **1 KERALA STATE SPORTS COUNCIL, REPRESENTED BY ITS SECRETARY, STATUE, THIRUVANANTHAPURAM- 695001.** - **2 KERALA TABLE TENNIS ASSOCIATION, REPRESENTED BY ITS SECRETARY, REGIONAL SPORTS CENTER, KADAVANTHRA, KOCHI- 682020.** - **3 P.V.THOMAS, ADVOCATE, ROOM NO.1, AHARA BUILDING, NORTH OF DISTRICT COURT, ALAPPUZHA- 688001.** - **4 MURALI KAIMAL, AGED 60 YEARS S/O.MADHAVAN NAIR, KEECHERIYIL HOUSE, NEAR YMCA, ALAPPUZHA- 688001.** W.A.No.387/2019 2 **5** **GEORGE K.JOHN, AGED 57 YEARS S/O.K.V.JOHN, PARACKAL HOUSE, NEAR VILLAGE OFFICE, THATHAMPILLY P.O., ALAPPUZHA- 688013.** **BY ADVS. SRI.B.ASHOK SHENOY FOR R4 AND R5 SRI.BENNY P.THOMAS SRI.D.PREM KAMATH SRI.K.V.GEORGE SRI.P.N.RAJAGOPALAN NAIR SRI.P.S.GIREESH SRI.RIYAL DEVASSY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.05.2019, THE COURT ON 21.06.2019 PASSED THE FOLLOWING:** W.A.No.387/2019 3 ## **C.K.ABDUL REHIM &** ## **R.NARAYANA PISHARADI, JJ.** ************************** W.A.No.387 of 2019 ---------------------------------------------Dated this the 21[st] day of June, 2019 ## **J U D G M E N T** ## **R.Narayana Pisharadi, J** 'Sports for all' is the concept with which the Kerala Sports Act, 2000 (hereinafter referred to as 'the Act') was enacted. One of the objectives of this legislation is augmentation of the athletic efficiency in the State. But, the 'sportsman spirit' appears to be more exhibited in the field of litigation, especially in election matters (See **Krishna Kumar v. District Collector : 2009 (2) KHC 1028** ). 2. Election of the office-bearers of a sports association stands set aside by the judgment rendered by a learned Single Judge of this Court in W.P.(C) No.14564/2018 on the ground that the election was conducted in the absence of any observer to be W.A.No.387/2019 4 deputed by the Kerala State Sports Council (hereinafter referred to as 'the State Council'). The said judgment is under challenge in this appeal. 3. The writ petition was filed by respondents 4 and 5 herein who were members of the executive committee of the Alappuzha District Table Tennis Association (hereinafter referred to as 'the District Association') challenging Ext.P6 notice issued by the Secretary of that association on 04.04.2018 for convening the Annual General Body Meeting of the association on 22.04.2018 to elect new office-bearers and also Ext.P7 notification issued by the returning officer for conducting the election. The main contention urged by the writ petitioners was that the State Council had informed the District Association that no observer would be deputed by it to the meeting and therefore, any election that would be conducted in the absence of an observer nominated by the State Council would be illegal. 4. The writ petitioners had sought a declaration that Exts.P6 and P7 notices are illegal. They had also sought a writ of W.A.No.387/2019 5 mandamus for issuing direction to the State Council and also the Kerala Table Tennis Association (hereinafter referred to as 'the State Association') to prohibit and prevent conducting of Annual General Body Meeting of the District Association and election of the office-bearers of that association pursuant to Exts.P6 and P7 notices. They had also sought a writ of mandamus for issuing a direction to the State Council and the State Association to conduct the Annual General Body Meeting of the District Association and election of the office-bearers of the State Council in compliance with Ext.P8 circular issued by the State Council regarding conducting of election. 5. Meanwhile, one of the clubs affiliated to the District Association had instituted a suit in the Munsiff's Court, Alappuzha (Vacation Court) seeking a decree of injunction restraining the District Association from convening the Annual General Body Meeting pursuant to Ext.P6 notice. As per the interim order dated 20.04.2018, the Vacation Court adjourned the meeting to 23.04.2018. Thereafter, as per the order dated 24.04.2018, the W.A.No.387/2019 6 Vacation Court directed that the Annual General Body Meeting of the District Association shall be conducted on 27.04.2018. Accordingly, the meeting was conducted on 27.04.2018 and election of the new office-bearers of the District Association was held in that meeting. 6. The appellants, respondents 4 and 5 in the writ petition, had filed counter affidavit in the writ petition contending that election process cannot be stalled once it had commenced. It was also contended that conducting election in the presence of an observer nominated by the State Council is not mandatory. 7. The State Association had filed a counter affidavit in the writ petition stating that the District Association had conducted the election on 27.04.2018 in violation of the relevant provisions and that it was necessary to conduct the election in the presence of the observer nominated by the State Council. 8. The learned Single Judge held that the election conducted cannot be said to be a properly constituted election in the absence of an observer sent by the State Council to attend W.A.No.387/2019 7 the Annual General Body Meeting. The learned Single Judge also noticed that the State Council had initiated an enquiry into the complaints received regarding irregularities in conducting the proposed election and Ext.P10 report of the enquiry contained findings with regard to the preparation of voters list for the conduct of the election and that it was a matter which had bearing on the very conduct of the election. In the light of the aforesaid findings, the learned Single Judge disposed of the writ petition as follows: _“9. In the above view of the matter, I am of the opinion that it is for the first respondent to take an appropriate decision in the matter after giving the third respondent a copy of the Ext.P10 and any representation or complaint preferred on the basis of Ext.P10. The issue of preparation of proper voters list has also to be appropriately addressed by the first respondent with notice to all concerned as may be found necessary. The election to the third respondent is thereafter to be conducted with a proper observer from the first_ W.A.No.387/2019 8 _respondent as enjoined by Ext.P9 Rules. The first respondent shall take appropriate steps on Ext.P4 after putting the petitioner on notice and granting the third respondent a reasonable opportunity in stating its case. Appropriate orders shall be passed within a period of two months from the date of receipt of a copy of the judgment. Appropriate arrangements shall be made for the conduct of the election after hearing the 3[rd] respondent as well with observers as required under the Rules.”_ 9. We have heard learned counsel for the parties and perused the records. 10. The District Association is a body affiliated to the State Council. Ext.P6 notice dated 04.04.2018 was published by the Secretary of the District Association for convening its Annual General Body Meeting on 22.04.2018 for conducting election of the office-bearers of the association. Ext.P7 notification regarding conducting of election was also published by the returning officer. As noticed earlier, the meeting was actually conducted on 27.04.2018 as per the direction given by the Court W.A.No.387/2019 9 in the suit and election of the office-bearers of the association was held in that meeting. 11. The election was set aside by the learned Single Judge on two grounds: (1) The election was conducted in the absence of an observer to be nominated by the State Council. (2) Ext.P10 report of enquiry contained findings regarding preparation of voters list which have bearing on the very conduct of the election. 12. Learned counsel for the contesting respondents would contend that election of the office-bearers of the District Association conducted in the absence of an observer to be deputed by the State Council is illegal and invalid. Learned counsel would rely upon the proviso to Rule 74(1) of the Kerala Sports Rules, 2008 (hereinafter referred to as 'the Rules') in support of his contention. 13. Chapter IX of the Rules deals with the procedure for election of office-bearers and standing committee members of the State Sports Council, District Sports Council, Corporation W.A.No.387/2019 10 Sports Council etc. Rule 74(1) contained in Chapter IX does not deal with election of the office-bearers of a recognised District Sports Association. In fact, Rule 74(1) indicates that election of the office-bearers of a District Sports Association shall be conducted in accordance with the rules of the concerned organisation. What Rule 74(1) provides for is taking action by the District Sports Association to conduct election in accordance with the rules of such organisation within seven days of the request made by the returning officer appointed for conducting election to the State Council, District Council etc. 14. Of course, the proviso to Rule 74(1) of the Rules states that election conducted by the State Sports Organisations and District Sports Organisations shall be in the presence of an observer nominated by the State Sports Council. There is also Ext.P8 circular issued by the State Council with regard to the conducting of election of the State and District Sports Associations. It is stated in this circular that intimation shall be given to the State Council fifteen days before conducting of the W.A.No.387/2019 11 meetings of the District Associations in which office-bearers are to be elected and that the State Council shall send observer to attend such meeting. 15. In the instant case, as per Ext.P3 letter, the State Council had intimated to the District Association that no observer would be sent by the Council to attend the meeting in which the election was proposed to be conducted. The reason stated by the State Council for not sending an observer was that complaints had been received regarding the election proposed to be held and an enquiry had been ordered with regard to the matters stated in the complaints. 16. We are of the considered view that, absence of an observer nominated by the State Council in the meeting in which the election was held, does not render the election invalid. Learned counsel for the respondents has not brought to our notice any provision in the Act or the Rules which provides that election of the office-bearers of a District Association conducted in the absence of an observer deputed by the State Council shall W.A.No.387/2019 12 be invalid or illegal. 17. The Act or the Rules do not provide for the consequences of non-compliance with the requirement under the proviso to Rule 74(1) regarding nomination of an observer by the State Council. In the absence of any provision dealing with the consequences of non-compliance with the proviso to Rule 74(1) of the Rules, it cannot be found that presence of an observer nominated by the State Council at the time of election of the office-bearers of a District Association is mandatory. The requirement can only be found to be directory. 18. When the provisions of a statute relate to the performance of a duty and if the acts done in neglect of such duty are held as null and void, it would work serious injustice to persons who have no control over those entrusted with the duty, then such provisions are to be treated as directory only. The presence of an observer nominated by the State Council, in the meeting in which election of office-bearers of a District Association is held, is not a matter within the control of that W.A.No.387/2019 13 association. The election of the office-bearers of a District Association has to be conducted in accordance with the rules of such association. The respondents have no case that the relevant rules or bylaws of the District Association insist the presence of an observer nominated by the State Council in the meeting in which the office-bearers of that association is elected. The object of sending an observer of the State Council to the meeting of the District Association is to enable the State Council to collect authentic information regarding the manner in which the proceedings of election are conducted in the meeting. If the State Council, for whatever reason, decides that no observer shall be sent to the meeting, validity of the election conducted in the meeting of the District Association is not affected by the absence of such observer. In these circumstances, we are of the considered view that, absence of an observer nominated by the State Council in the meeting in which election of the officebearers was conducted, did not render the election invalid or illegal. W.A.No.387/2019 14 19. Setting aside the election of the office-bearers of the District Association, on the basis of the findings in Ext.P10 report, also cannot be sustained in the eye of law. Ext.P10 enquiry report was made by a member of the State Council regarding the irregularities pointed out in the complaints made with regard to the proposed election. The District Association was not given any opportunity to file objection to the findings in the report. Therefore, on the basis of the findings in Ext.P10 report, the election should not have been set aside. Moreover, if at all there were irregularities in the preparation of the voters list as stated in Ext.P10 report, it is a matter which should be agitated in an appropriate proceedings for setting aside the election before the appropriate forum. 20. Setting aside the election of the office-bearers of the District Association, without affording an opportunity of hearing to the newly elected office-bearers, is against the principles of natural justice. The newly elected office- bearers of the District Association were not made parties to the writ petition. Setting W.A.No.387/2019 15 aside the election, no doubt, would cause prejudice to them. Therefore, it was necessary to implead the newly elected officebearers of the District Association as parties to the writ petition before passing any order adverse to their interest. 21. It is also to be noted that, no relief for setting aside the election of the office-bearers of the District Association had been sought in the writ petition. In fact, the writ petition was filed before the date of conducting the election. After the election, the writ petition was not amended and no prayer was made seeking a relief for setting aside the election. 22. Learned counsel for the respondents have contended that the election has not been set aside as per the impugned judgment in the writ petition. There is no merit in this contention. We have extracted the concluding portion of the impugned judgment earlier. It would clearly show that a direction has been given to conduct fresh election. It would mean that the election conducted on 27.04.2018 stands set aside by the impugned judgment. W.A.No.387/2019 16 23. In the aforesaid circumstances, we find that the impugned judgment cannot be sustained in the eye of law and it is liable to be set aside. 24. Consequently, the appeal is allowed and the impugned judgment is set aside. The writ petition stands dismissed. We make it clear that this judgment will not preclude any of the parties to institute appropriate proceedings for setting aside the election before the appropriate forum. No costs in the appeal. (sd/-) ## **C.K.ABDUL REHIM, JUDGE** (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/11/06/2019 True Copy PS to Judge