Santosh Karunakaran v. Ombudsman cum Ethics Officer, Kerala Cricket Association & Kerala Cricket Association

W.A.413/2021 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY MONDAY, THE 21[ST] DAY OF JUNE 2021 / 31ST JYAISHTA, 1943 ## WA NO. 413 OF 2021 JUDGMENT DATED 27.02.2021 IN WP(C) 28478/2020 OF HIGH COURT OF KERALA ## - APPELLANTS/WRIT PETITIONERS: SANTHOSH KARUNAKARAN, AGED 45 YEARS, FORMER RANJI TROPHY CRICKETER AND MEMBER, THIRUVANANTHAPURAM DISTRICT CRICKET ASSOCIATION, S/O.LATE KARUNAKARAN PILLAI, CRA 209, SOUPARNIKA, CHEMBAKASSERY, THIRUVANANTHAPURAM-695 008. BY ADV RAJIT ## RESPONDENTS/RESPONDENTS: - 1 OMBUDSMAN CUM ETHICS OFFICER, KERALA CRICKET ASSOCIATION, REPRESENTED BY SECRETARY OF OMBUDSMAN, JAWAHARLAL NEHRU INTERNATIONAL STADIUM, KALOOR, ERNAKULAM-682 017. - 2 KERALA CRICKET ASSOCIATION, REP. BY SECRETARY SREEJITH V.NAIR, KCA COMPLEX, TC-24/131(1), SASTHAMKOVIL ROAD, THAIKKAD P.O., THIRUVANANTHAPURAM, KERALA STATE-680 104. BY ADVS. SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.413/2021 2 Dated this the 21[st] day of June, 2021 ## **JUDGMENT** ## **SHAJI P. CHALY, J.** This appeal is preferred by the petitioner in W.P.(C) No. 28478 of 2020, challenging the judgment of the learned single Judge dated 27.01.2021, whereby the learned single Judge dismissed the writ petition basically holding that the writ petitioner has not approached the writ court with clean hands and has raised baseless allegations disentitling him from securing any relief under Article 226 of the Constitution of India. 2. In fact, in the writ petition, the petitioner has sought for a writ or order quashing Exts.P11 and P13 orders passed by the Ombudsman-cum-Ethics Officer for the Kerala Cricket Association in O.A. No. 10 of 2019; a writ of mandamus or any other appropriate writ, direction or order to the Ombudsman to ensure that the Kerala Cricket Association ie., the second respondent complies with the recommendations of the Justice Lodha Committee and implement the same in the District bye laws as is done in Ext. P15 order passed by the Ombudsman in regard to the Andhra Cricket Association; and W.A.413/2021 3 further a writ or direction to the Ombudsman to ensure that the KCA conducts election to the Kerala Cricket Association only after ensuring that the election to the District Associations are conducted strictly in terms of the model bye law brought out by the Justice Lodha Committee. 3. In order to secure the reliefs, it was contended by the appellant that the Original Application filed by the appellant praying for a common bye law for all District Cricket Associations within the State unit was dismissed without any consideration on merits as per an order dated 03.10.2020 by the Ombudsman-cum-Ethics Officer for the **—** Kerala Cricket Association first respondent. The Ombudsman had dismissed the application filed by the writ petitioner when it was posted for final hearing on 03-10-2020 for the reason that the directions in the orders dated 13.02.2020, 25.02.2020 and 10.03.2020 for impleading the District Associations were not complied with by the writ petitioner. The contention advanced by the writ petitioner in that regard is that though the impugned order dated 03.10.2020 refers to the orders dated 13.02.2020, 25.02.2020 and 10.03.2020, there was no discussion or direction to implead all District Associations on those days. W.A.413/2021 4 4. According to the writ petitioner, the factum of existence of those defects were not communicated to the appellant, that on 13.02.2020, the matter was adjourned due to the inconvenience of the advocate for the writ petitioner, that on 25.02.2020 the matter was adjourned due to the non availability of the council of Kerala Cricket Association and none of the matters listed on that day was taken up, and that on 10.03.2020 the Ombudsman requested for some time to study the file and the matter was adjourned again. It was further contended that the orders passed on the aforesaid dates became known to the writ petitioner for the first time from the impugned order dismissing the OA dated 03.10.2020. 5. That apart, it was contended that when the matter was taken up on 03.10.2020 through Video Conferencing, the counsel appearing for the appellant had joined through video link at 10.58 a.m, only to be disconnected/removed from the video link within a minute of the sitting even before the matter was taken up and soon thereafter, the Ombudsman proceeded to dismiss the matter being defective. Contentions are also raised to the effect that the earlier Ombudsman, as per an order dated 02.08.2019, rejected the preliminary objection in regard to the impleadment of the District Associations holding that if W.A.413/2021 5 all the District Associations in the State are to be impleaded after notice to them, it may entail unnecessary delay and accordingly suggested the Kerala Cricket Association to elicit the views of the District associations and consider the same. 6. It was also the submission of the appellant that after the said order, the counsel for the Kerala Cricket Association, on 20.09.2019 and 26.09.2019, sought time to comply with the order dated 02.08.2019. Other contentions are also raised so as to canvas for the proportion that the Ombudsman was not right in dismissing the application. The learned single Judge considered the issues so raised by the appellant/writ petitioner taking into account the counter affidavit filed by the Kerala Cricket Association and the documents produced along with the same. 7. The basic contentions advanced by the Kerala Cricket Association in the writ petition were as follows: According to the 2[nd] respondent, the appellant is not a member of the 2[nd] respondent or any of its affiliated District Cricket Associations. As per Section 22 of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, when any amendment is made in the provisions of the memorandum or the rules W.A.413/2021 6 and regulations of a Society, a copy of the resolution affecting the amendment, certified to be a correct copy by not less than three members of the governing body shall be filed with the Registrar within fourteen days of the General meeting at which the resolution was passed. 8. It is contended that the bye law of the 2nd respondent was already amended and it was also registered as per the directions of the Honourable Supreme Court. It is their further contention that amendments and repeal shall be passed and adopted by a ¾th majority of the members present and entitled to vote at a Special General Meeting of the General body of the KCA for the purpose or at the Annual General Body Meeting and such amendment will not be given effect to without the leave of the Honourable Supreme Court. 9. The District Cricket Associations, which are affiliated units of the Kerala Cricket Association, are governed by a common bye law adopted by the District Cricket Association in the year 2006 and the procedure and amendment of those bye laws is governed by clause 37, as per which, it can be made only in a General Body Meeting of the State Association passed by at least 3/4[th] of its members present and voting. Clause 37(ii) provides that proposal for any change in the rules W.A.413/2021 7 shall be made by at least 1/3[rd] of the total number of clubs and must reach the Honorary Secretary, 15 days before the General Body Meeting at which they are to be considered. Such proposals shall be circulated to the members as part of the agenda of the meeting with copy to Kerala Cricket Association. 10. It is also contended that the Kerala Cricket Association is having the powers to accept, reject or modify the proposal for amendment and such decision shall be final and binding and therefore, only the members of the Association can initiate the amendment procedure of the bye laws and writ petitioner, who is not a member of the Association, does not have the _locus standi_ to file the application. The 2[nd] respondent has produced various judgments based on which, it had amended the bye law in accordance with the instructions issued by the Committee of Administrators (CoA) consequent to the various judgments of the Hon'ble Apex Court. It is further contended that the Committee of Administrators, as per Exhibit-R2(8) e-mail dated 14.11.2018, had informed the 2[nd] respondent that it had complied with all the recommendations in the Justice R.M.Lodha Commission report. 11. It is further submitted that since the Registrar of Society refused to register the amended bye law, the 2[nd] respondent had W.A.413/2021 8 approached the Hon'ble Supreme Court in W.P.(C) No.79/2019 and that the bye law was registered thereafter on the basis of direction of the Hon'ble Apex Court in Exhibit-R2(9) order dated 14.03.2019 in it to the Registrar of Society. It is further contended that election to the Office bearers of KCA and of the member of the Apex council was completed under the supervision of the Committee of Administrators appointed by the Honorable Apex Court. The election was conducted on 07.09.2019 and Office Bearers were elected as per Exhibits-R2(10) and R2(11) status report. 12. It is further contended that in the O.A filed by the petitioner, the 2[nd] respondent had filed Exhibit-R2(12) preliminary counter, challenging the maintainability of the said application; but the writ petition is filed suppressing the said fact. The writ petitioner did not take steps for impleading the District Associations as directed by the 1st respondent. According to the 2[nd] respondent, even now, the matter is pending before the Hon'ble Apex Court. 13. The learned single Judge, after taking into account the rival submissions and the arguments advanced at the Bar, held as follows: “8. It is seen that the petitioner did not take any steps for impleading the District Associations even after W.A.413/2021 9 the 1st respondent issued a direction on 13.02.2020 and continued to direct the petitioner since then granting him further time. The Ombudsman had stated that the issue as to whether District Associations' presence was required, was heard in detail on 20.10.2020 and order was passed on that day. The Ombudsman found that the presence of the District Association was necessary for a proper adjudication of the issue arising in the case. Such an order was passed taking note of the earlier order passed in the OA, to the effect that publication in the website would be sufficient. Ombudsman found that the new bye law has been brought into effect as per the direction of Justice R.M.Lodha Commission report and impleadment of the District Associations are necessary. Order dated 13.02.2020, reads as follows: “As per last proceedings it can be seen that the District Associations are not a party and whether they have to be impleaded has to be considered by this Ombudsman and a detailed hearing was ordered. Learned counsel for the applicant submitted before this Forum that the prior byelaw is also dealing with the District Associations. Surely now, new bye law0 has been brought into effect as per the directions of the Lodha Committee, in respect of KCA. The stand of the learned counsel for the applicant is that an earlier order will show that a web site publication of the proceedings by KCA will be sufficient. But I feel that when the matter goes to the root of the structure of the District Association, direction for issue of notice is necessary. Surely counsel for the applicant also brought to my notice Rule 37(2) of the earlier bye-law. Even after going through the same, I feel that notice is necessary. Notice to the District Associations are necessary as it will materially affect W.A.413/2021 10 them. Implead the District Associations by the applicant and give notice. Call on 25.2.2020 for consideration of the impleading and issuing notice.” 9. When the matter came up on 25.2.2020, the Ombudsman noticed that no steps were taken for impleading. On 10.03.2020, the matter was adjourned to 24.03.2020 directing that impleading petitions shall be filed positively before the posting date. The 1st respondent has dismissed the O.A in the aforesaid circumstances, when the petitioner refused to take any steps as directed and insisted for hearing the matter. 10. The contention of the petitioner in this case is that there was no such order either on 13.02.2020 or on 25.02.2020 or on 10.03.2020. Though there is no reason to disbelieve the statement in Ext.P11 order of the Ombudsman, I called for the records from the Ombudsman and perused the same and found that no steps were taken by the petitioners in the O.A to implead the parties despite the orders passed by the Ombudsman. It is also relevant to note the following statement of the Ombudsman in paragraph 3 as to the manner in which communications were made by the 2[nd] petitioner: “xxx But when the files perused it is seen that no steps taken by the applicants as ordered on 10.3.2020. Under such circumstances, the case was not posted for hearing. Now a letter dated 19.9.2020 received from Advocate P.J.Thomas, the 2nd applicant herein. After going through the letter, it is decided to post the case even though application is defective. No purpose will be served by hearing a matter where necessary parties are W.A.413/2021 11 not impleaded. But the letter says as follows: “And decide the matter in OA.10/2019 at the earliest and then proceed with election as a uniform manner failing which we will be initiating Civil and Criminal proceedings against your office corrupt practice.” Thus it can be seen that there is no other option, but to post the case. The 2[nd] applicant is none other than an Advocate. Xxx” Records would reveal that petitioner has not approached this Court with clean hands. Redressal of grievance against the dismissal of an order is not to be sought by accusing the author of the order raising baseless allegations. In the circumstances of the case, Therefore I am of the considered view that petitioner does not deserve any relief from this Court under Article 226 of the Constitution of India. The question of validity of the subsequent order Ext.P13 also do not deserve consideration for the very same reason. Accordingly, the writ petition is dismissed.” 14. On an analysis of the pleadings put forth by the parties, it is clear that definite and specific orders were passed on 13.02.2020 25.02.2020 and 10.03.2020 directing the writ petitioner to implead the District Associations and granting time to the writ petitioner for the same respectively. Therefore, the contention advanced in the writ petition that no order was passed to implead the District Associations enabling the appellant to take steps for the same, was not a correct submission made by the appellant in the writ petition. In fact, it was W.A.413/2021 12 admitted by the appellant that there were postings on the aforesaid dates before the Ombudsman and according to the appellant, in the said postings no orders were passed and therefore, the Ombudsman went wrong in passing the impugned order on 03.10.2020 holding that the appellant has not taken steps to implead the District Associations. Therefore, according to the learned single Judge, the appellant had approached the writ court with unclean hands, which disentitles the appellant from securing any orders exercising the discretionary power conferred under Article 226 of the Constitution of India. Which thus means, the learned single Judge had dismissed the writ petition without considering the merits of the matter raised by the appellant. 15. The contention advanced by the appellant in the appeal is that the learned single Judge ought to have found that the appellant would not stand to gain anything by not complying with any order of impleadment passed by the Ombudsman. Anyhow, in order to decipher the truth, the learned single Judge called for the report of the proceedings of the Ombudsman and the files relating to the same. However, according to the appellant, the said records were produced by the Kerala Cricket Association, leading to the inference that the records of the Ombudsman are in the custody of the Kerala Cricket W.A.413/2021 13 Association. The foundational contention, accordingly, advanced in the writ appeal is that the learned single Judge has not exercised the discretionary power in a proper and legal manner justifying this Court to interfere with the impugned judgment. 16. We have heard Adv. Rajith for the appellant and Adv. K. N. Abhilash for the Kerala Cricket Association, and perused the pleadings and materials on record. 17. The deliberations made above would make it clear that the learned single Judge has not considered the issues raised by the appellant on its merit basically for the reason that there was suppression in regard to the orders passed by the Ombudsman on various dates for impleading the District Cricket Associations. Since the appellant stoutly contended that there was no order passed by the Ombudsman for impleadment, the learned single Judge sought for a report from the Ombudsman and also the records leading to the proceedings, and from that, it was clear that there was a detailed order passed by the Ombudsman on 13.02.2020 which is extracted at paragraph 8 of the judgment of the learned single Judge. Therefore, it is distinctively clear that there was an order by the ombudsman directing the appellant to implead the District Associations and on a W.A.413/2021 14 finding that no steps were taken, the matter was adjourned to 10.03.2020 and thereafter to 24.03.2020 specifically directing that the impleading petitions shall be filed positively before the next posting date. 18. On an analysis of the entire issues, it can be seen that there was suppression of material facts by the appellant in the writ petition, which can only be seen as an attempt made by the appellant to secure orders taking advantage of the absence of a material fact before the writ court. We have no doubt in our mind that if the aforesaid material fact of passing specific orders on the dates specified was pleaded in the writ petition, the learned single Judge could have relied upon the same in order to arrive at a conclusion safely and in a legalistic manner. The appellant, who had approached the writ court, had the duty and responsibility to place all the material facts before the court enabling the writ court to arrive at the right conclusions. A litigant who approaches the writ court seeking equity, must always come with clean hands which is the salutary principle well accepted and settled in law during the course of time through a catena of decisions. 19. It is well settled that the relief sought for in a writ petition is adjudicated by the writ court taking into account the material W.A.413/2021 15 pleadings and the photocopy of the documents produced along with the writ petition. In the affidavit filed in support of the writ petition, the appellant has stated that the averments in the writ petition are true to the best of his knowledge and belief and the Exhibits marked in the writ petition are true copies of the originals. It is interesting to note that even though orders were passed on 13.02.2020, 25.02.2020 and 10.03.2020 to implead the District Associations, the said orders were not produced by the appellant; whereas order passed by the previous Ombudsman on 02.08.2019 and other documents were produced by the appellant. 20. Taking into account the entire pros and cons of the matter, it is quite clear and evident that the appellant has not approached the writ court with clean hands, that is to say, by suppressing material facts. The issue with respect to the suppression of material facts were considered by the Apex Court in various judgments and a reference to some of them would be worthwhile. ## 21. In **S.J.S Business Enterprises (P) Ltd. v. State of Bihar** **and others** [(2004) 7 SCC 166], it is held as follows in paragraph 13: **“13.** As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any W.A.413/2021 16 relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken [ _R._ v. _General Commrs. for the purposes of the Income Tax Act for the District of Kensington_ , (1917) 1 KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] . Thus when the liability to income tax was questioned by an applicant on the ground of her non-residence, the fact that she had purchased and was maintaining a house in the country was held to be a material fact, the suppression of which disentitled her to the relief claimed [ _Ibid_ .] . Again when in earlier proceedings before this Court, the appellant had undertaken that it would not carry on the manufacture of liquor at its distillery and the proceedings before this Court were concluded on that basis, a subsequent writ petition for renewal of the licence to manufacture liquor at the same distillery before the High Court was held to have been initiated for oblique and ulterior purposes and the interim order passed by the High Court in such subsequent application was set aside by this Court [ _State of Haryana_ v. _Karnal Distillery Co. Ltd._ , (1977) 2 SCC 431 : AIR 1977 SC 781] . Similarly, a challenge to an order fixing the price was rejected because the petitioners had suppressed the fact that an agreement had been entered into between the petitioners and the Government relating to the fixation of price and that the impugned order had been replaced by another order [ _Welcom Hotel_ v. _State of A.P._ , (1983) 4 SCC 575 : 1983 SCC (Cri) 872 : AIR 1983 SC 1015].” W.A.413/2021 17 ## 22. In **Prestige Lights Ltd. v. State Bank of India** [(2007) 8 SCC 449], the Hon'ble Apex Court, at paragraphs 33 and 35, held thus: **“33.** It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter. **35.** It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts W.A.413/2021 18 ## would become impossible.” ## 23. In **K.D. Sharma v. Steel Authority of India Ltd. and others,** [(2008) 12 SCC 481], the Hon'ble Apex Court held thus: **“38.** The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”. ## 24. In **Dalip Singh v. State of Uttar Pradesh & others** [(2010) 2 SCC 114], the Hon'ble Apex Court, at paragraphs 1 and 2, held thus: **“1.** For many centuries Indian society cherished two basic values of life i.e. “satya” (truth) and “ahimsa” (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre- W.A.413/2021 19 Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings. **2.** In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.” 25. Deducing the facts, circumstances and the law involved in the subject matter, we have no hesitation to hold that the learned single Judge was right in dismissing the writ petition for suppression of material facts and the appellant approaching the writ court with unclean hands. Therefore, there is no illegality or other legal infirmities in exercising the discretion by the learned single Judge requiring interference. We are also of the view that in spite of sufficient opportunity granted by the Ombudsman, the appellant has W.A.413/2021 20 not cared to comply with the directions and therefore, it cannot be said that the dismissal of the application by the Ombudsman was, in any way, illegal or arbitrary justifying interference of the writ court. 26. Needless to say, the appellant failed to make out any case to be considered by this Court in an intra court appeal filed under Section 5 of the Kerala High Court Act. Resultantly, the appeal fails and, accordingly, it is dismissed. All the pending interlocutory applications would stand closed. **S. MANIKUMAR, CHIEF JUSTICE** **SHAJI P. CHALY, JUDGE** _Rv_ W.A.413/2021 21 ## APPENDIX OF WA 413/2021 ## APPELLANT'S ANNEXURES: |ANNEXURE A1|TRUE COPY OF THE COMPACT DISC EVIDENCING| |---|---| ||WHAT HAPPENED IN THE VIDEO CONFERENCING| ||DATED 03.10.2020.| |ANNEXURE A2|TRUE COPY OF THE APPLICATION FOR DIRECTION| ||FILED BY THE BCCI BEFORE THE HON'BLE SUPREME| ||COURT.| ## RESPONDENTS' EXHIBITS: NIL _/True Copy/_ _PS To Judge._ _rv_