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CASE NO.: Appeal (civil)  237-239 of 2005

PETITIONER: Board of Control for Cricket, India & Anr.

RESPONDENT: Netaji Cricket Club & Ors.

DATE OF JUDGMENT: 10/01/2005

BENCH: N. Santosh Hegde & S.B. Sinha

JUDGMENT: J U D G M E N T

(Arising out of SLP (C)  Nos. 21820-21822 of 2004)

With CIVIL APPEAL NO.                             OF 2005 (@ SLP (C)  No. 23351 of 2004) CIVIL APPEAL NOs.                             OF 2005 (@ SLP (C)  Nos. 23837-23838 of 2004) CIVIL APPEAL NOs.                             OF 2005 (@ SLP (C)  Nos. 22361-22363 of 2004)

S.B. SINHA,  J :                  Leave granted in all SLPs.

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

       The basic fact of the matter is not in dispute.

       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."

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       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.   

       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.   

       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.

       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 \026 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,

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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 \026 Board is aggrieved, he is at  liberty to workout his relief in appropriate  proceedings before the competent court."

       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."

       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).   

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

       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.

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       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 therefor although no  order of disqualification was served.   

       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."

       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 wherefor an application for permission to file the same has been  prayed for.  This Court passed the following order on 11.10.2004:

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"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."

       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.

       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.   

       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 Vs. Lodge Victoria No. 363, S.C.  Belgaum [1963 SC 1144 : 1964 (1) SCR 1].

       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 Others Vs. Sumitri Devi and Others [(1997) 8 SCC  715] and Lily Thomas and Others Vs. Union of India and Others [(2000) 6  SCC 224].  

       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

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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.           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.

       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.   

       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.

       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.   

       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.

       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

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same could not have been questioned in the review application.   

       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.   

       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.

       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.

       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.

       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 Vs.  Registrar of Societies and Others [(2000) 1 SCC 566].

       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.

       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.

       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.   

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

       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.

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       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.

       Mr. Shanti Bhushan, learned senior counsel appearing on behalf of  Intervenor \026 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 therefor had not been given.

       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.

       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.   

       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.

       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.

       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.

       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.  

       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.

       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.   

       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.  

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       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.

       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.

       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.   

       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."

       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.   

       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.

       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

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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 counteraffidavit 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 copy even before  the same could be received by Maharashtra Cricket  Association.  The deponent also wishes to point  out that Mr. R.G. Deshmukh, the learned observer  is the Chairman of one of the companies owned by  Mr. Ajay B. Shirke."

       It was submitted that if the representation of Maharashtra Cricket  Association through Mr. Agashe in the earlier meetings of the Board had not  been a policy decision of Maharashtra Cricket Association, then why all of a  sudden it became so for the AGM. Only.

       Drawing our attention to the affidavit of Mr. Agashe filed in S.L.P.  No. 21820-21822 of 2004, the learned counsel would submit that the  Chairman of the Board in the meeting firstly created an artificial right for  casting one vote as chairman and then exercised his right of casting vote  again, i.e., voting twice which was in contravention of the Rules.

       In terms of Rule 3, there are 30 full members and in terms of Rule 5  only full members have right to vote.  The Chairman of the Board is not a  member as he does not represent an Association.  It was pointed out that it is  not necessary that the President of the Board would be the Chairman of the  meeting and in that view of the matter Rules 25, 26 and 27 must be  construed in such a manner so as to hold that the Chairman of a meeting  cannot vote twice but only once.  In any event, the learned counsel would  contend that in a case of this nature the Chairman ought not to have  exercised his discretionary power to cast vote twice.

       Mr. Nariman would draw our attention to the Judges Summons in  O.A. No. 803 of 2004 wherein the following prayers were made:

"1) This Hon’ble Court should not be pleased to  treat the application as ugent?

2) Why this Hon’ble Court should not be pleased  to pass an order of AD-INTERIM INJUNCTION  to restrain the Chairman oblique President of  BCCI from conducting the Annual General  Meeting on the 29th and 30th of September, 2004 at  Kolkata and direct that the said meeting be  conducted under the Chairmanship of any person  or persons of the stature of a retired Supreme  Court Judge or High Court Judge or any other  person or persons as to be named by this Hon’ble  Court with absolute powers to scrutinize and  approve the list of authorized representatives from  member associations eligible to vote in the said  Annual General Meeting of the 1st Respondent."

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       Our attention has further been drawn to the order dated 28.9.2004  passed by the learned Single Judge of the Madras High Court in OA No. 803  of 2004 and OA No. 804 of 2004, para 14 whereof is as under:

"14. The third respondent is further prohibited  from disqualifying any member of BCCI and  prevent them from voting."

       The learned counsel would point out that the Division Bench in its  order had referred to paragraphs 11 to 13 of the order dated 28.9.2004  passed by the learned Single Judge but omitted to notice paragraph 14  thereof.  Even otherwise in the Memo of Appeal, no ground was taken  questioning the said order of injunction as contained in paragraph 14 of the  order passed by the learned Single Judge.

       Mr. Nariman would further submit that the undertaking given by a  senior counsel must be construed in the light of the understanding of the  learned Judges before whom the same had been given across the bar and in  this connection our attention has been drawn to paragraphs 3 and 4 of the  impugned order, as noticed supra.

       In this regard, our attention has also been drawn to the 4th question  raised in the S.L.P. filed by the Board which is in the following terms:

"iv) Whether the Hon’ble High Court was right in  concluding that the Learned Senior Counsel  appearing for the Petitioners herein gave an  undertaking to the effect that no one would be  disqualified from voting despite the fact that the  actual undertaking given by the Learned Counsel  to the effect that no one would be disqualified on  the ground of zonal representation to contest the  election?"

       Our attention has also been drawn to the Ground (b) of the Special  Leave Petition which is to the following extent:

"\005It is submitted that the Learned High Court had  erred in coming to the conclusion that the  undertaking given by the Learned Senior Counsel  had been violated, when in fact no such  undertaking was given by the Learned Senior  Counsel.  It is submitted that the undertaking given  by the Learned Senior Counsel was  duly recorded  in the Order dated 29.09.2004 passed by the self  same Learned Division Bench.  It is submitted that  the Learned Senior Counsel who earlier appeared  on 29.09.2004 also appeared on 08.10.2004 before  the Learned Bench and expressly recorded the  submissions that  were made by him on  29.09.2004."

and contended that there was no reason as to why such a question had not  been raised before the Division Bench itself.

       According to Mr. Nariman, the learned Senior Counsel appearing on  behalf of the Board before the Madras High Court  has not filed any affidavit  as regard tenor of his undertaking and in this view of the matter the  statement of the Judge in the impugned order should be accepted.         Mr. Harish Salve, learned senior counsel appearing on behalf of  ’Netaji’ would submit that the Board is a federal head of cricket

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associations.  Having regard to the evolution of sports of cricket in this  country and in particular the fact that the Board controls the sport in India, a  higher standard of rectitude in the affairs of the Board is expected.  Mr.  Salve would submit that in an Annual General Meeting of the Board, the  aspirations of an individual member could not have been given priority  having regard to the fact that the Board does not have private member.  It  was argued that even the Rajasthan Cricket Association was not registered  and time had been taken to get it registered, but despite the same it was  allowed to vote but Maharashtra Cricket Association was not permitted  although the Board knew that litigations have been going on not only in  relation to the Maharashtra Cricket Association but also in relation to the  Rajasthan Cricket Association and Delhi & District Cricket Association and,  thus, in a situation of this nature, the Chairman ought to have acted  judiciously.   

       Relying on a decision of this Court in K. Murugan Vs. Fencing  Association of India, Jabalpur and Others [(1991) 2 SCC 412], Mr. Salve  would argue that even therein a retired Judge of this Court was nominated so  long a valid election was not made only with a view to see that the body like  the Olympic Association or the Board must act in the interest of the sports of  the country.   

       As regard exercise of right of ’casting vote’ by Mr. Dalmia, the  learned counsel would contend that the same could be exercised when there  was a genuine tie and not an artificial or a created one.  Election of the office  bearers of the Board, according to Mr. Salve, should not only be a fair one  but must be appear to be such.  It was argued that the adjournment of the  AGM was illegal and what happened on 29th September, 2004 was far below  the standard of conduct/ expected from a body like the Board and  furthermore the manner in which the meeting was conducted clearly creates  an air of suspicion.   

       As regard functioning of the Board, it was urged that the same being  based on trust, the "power and abuse" would bring into focus administrative  law situation.  Reliance in this behalf has been placed on Nagle Vs. Feilden  and Others [1966 (2) QB 633 at 643 and 644] and St. Johnstone Football  Club Limited Vs. Scottish Football Association [1965 SLT 171]   

       Mr. Salve would argue that the Chairman of the meeting should have  acted as an umpire having regard to the role of the Board as a federal  association and keeping in view the mandate of Rule 5 in terms whereof  only 30 full members could exercise their right of franchise.  According to  Mr. Salve, keeping in view the larger public interest, the technicality of  absence of the elected members in these proceedings should not stand in the  way of this Court declaring the election void particularly in view of the fact  that all the elected members have knowledge of the proceedings but are  sitting on the fence.

       Dr. Singhvi, in reply, would draw our attention to the prayer for an  interim order  by ’Netaji’ in the review application, i.e., for restraining the  newly elected body which, according to the learned counsel, would mean  that the old body had ceased to continue and pursuant to or in furtherance of  the said prayer only, the impugned order of injunction was passed by the  Division Bench.   

       As regard  the AGM held on 29.9.2004, it was contended that some of  the items of Agenda, particularly, item Nos. 1(c) and 2 to 6 were taken up  and they were considered and resolutions thereupon were passed.  Further on  30.9.2004, some other items of Agenda were taken up but item Nos. 1(b)  and 13 could not have been taken up in view of the order of injunction  passed by the District Court of Madras.  According to the learned counsel,  by reason of such adjournment of the meeting, Mr. Dalmia did not derive  any benefit inasmuch as his nomination as representative of the Board to  ICC could have been passed in that AGM and in any event, even without  such resolution he would have continued to act as a representative before the

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said body.

       The learned counsel would contend that the meeting was adjourned  with concurrence of all the participants present in the meeting and with no  opposition.  According to Dr. Singhvi, the only persons who have been  taking objections were ’Netaji’ or ’Bharathi’ who are not even the members  of the Board and could not have participated in the election process.   

       As regard  the power of the Chairman to cast two votes, the learned  counsel would submit that the rules envisage casting of votes by President  only and not by any  other member, as would appear from the Rules 5 and  25 of the Rules.  Rule 26 provides that the decision taken by the majority  shall prevail except in case of equality of votes when casting of vote may be  necessary by the Chairman.  By reason of first part of Rule 27, Dr. Singhvi  would contend, no diminution of power is contemplated inasmuch as by  reason thereof the right of the Chairman to exercise his right as regards  ’casting vote’ is preserved and the expression ’subject to rules’ must be held  to mean subject to Rule 26.  Dr. Singhvi would contend that having regard to  the precedent as two votes had been cast by the Chairman even earlier, the  rule should be interpreted in the same way as was understood by all  concerned.  He would argue that the subject matter of voting contained in  Rules 25 and 27 contemplate two different situations, as the context in which  Rule 25 is attracted is radically different from Rule 27.   

       The rule of harmonious construction, according to Dr. Singhvi, should  be applied in a situation of this nature inasmuch as, if Rule 27 is held to be  subject to Rule 5, the first part thereof shall become nugatory.  Pointing out  the difference between Rule 26 and Rule 27, it was argued that whereas Rule  26 applies for all meetings, Rule 27 applies only to Annual General and  Special General Meeting.   

       According to Dr. Singhvi, having regard to Rule 43(1)(c) of the Rules,  an election dispute should be raised in terms thereof and in a case of this  nature the court should not entertain any election dispute when there exists  an alternative remedy.  

       Dr. Singhvi would argue that when there exists substantive laws  governing resolution of dispute in relation to election of office bearers of the  Board, this Court should not exercise its jurisdiction under Article 142 of the  Constitution.   

       Mr. S.S. Ray, learned senior counsel appearing on behalf of Mr.  Jagmohan Dalmia would submit that right of casting vote is not a common  law right but one  granted by the statute.  The provision for exercise of right  of casting vote is essentially for maintaining a status quo which in the cases  of clubs and associations should be construed to be the second vote.   

       The learned counsel would contend that in the meeting dated  29.9.2004 no member had been disqualified but in absence of any authorized  member to represent it, nobody could cast vote on its behalf.  Keeping in  view the fact that the Board has nothing to do with the internal dispute of the  Maharashtra Cricket Association, this Court should not interfere in the  matter, particularly, when even in the next meeting a similar problem may  arise.  Distinguishing the decision of this Court in K. Murugan (supra), the  learned counsel would contend that the factual matrix obtaining therein was  different and in the present case, there is no allegation of mis-management,  malfunctioning or mal-administration nor any allegation has been made  against Mr. Dalmia.

       When the matter was listed before this Court on 11.10.2004, this  Court was given an impression that having regard to the fact that the election  of the office bearers of the Board had already taken place on 29.9.2004, the  new Board had taken over.  An impression was also created that if the Board  was  not allowed to function a stalemate would ensue, particularly, having  regard to the proposed test series and one dayers’ which were to be played

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between South Africa and India and one day cricket between India and  Pakistan.  The impugned order appointing the Administrator by the Division  Bench of the Madras High Court, it was submitted, if allowed to continue,  would, thus,  be detrimental to the interest of the sport of cricket.  It was in  this situation, this Court stayed the operation of the impugned order to the  extent of appointment of Administrator.  However, a different picture was  presented before us at the hearing stating that the new Board had not  taken  over at all and the old Board had been functioning purported in terms of  Rule 20(iii) of the Rules.  Thus, in law the old board could continue, the  Appellants were not seriously prejudiced and in any event no emergent  situation arose as had been projected before this Court.  

       The Board is a society registered under the Tamil Nadu Societies  Registration Act.  It enjoys a monopoly status as regard regulation of the  sport of cricket in terms of its Memorandum of Association and Articles of  Association.  It controls the sport of cricket and lays down the law therefor.   It inter alia enjoys benefits by way of tax exemption and right to use stadia at  nominal annual rent.  It earns a huge revenue not only by selling tickets to  the viewers but also selling right to exhibit films live on TV and  broadcasting the same.  Ordinarily, its full members are the State  Associations except, Association of Indian Universities, Railway Sports  Control Board and Services Sports Control Board.  As a member of ICC, it  represents the country in the international foras.  It exercises enormous  public functions.  It has the authority to select players, umpires and officials  to represent the country in the international fora.  It exercises total control  over the players, umpires and other officers.  The Rules of the Board clearly  demonstrate that without its recognition no competitive cricket can be hosted  either within or outside the country.  Its control over the sport of competitive  cricket is deep pervasive and complete.   

       In law, there cannot be any dispute that having regard to the enormity  of power exercised by it, the Board is bound to follow the doctrine of  ’fairness’ and ’good faith’ in all its activities.  Having regard to the fact that  it has to fulfil the hopes and aspirations of millions, it has a duty to act  reasonably.  It cannot act arbitrarily, whimsically or capriciously.  As the  Board controls the profession of cricketers, its actions are required to be  judged and viewed by higher standards.   

       An association or a club which has framed its rules are bound thereby.   The strict implementation of such rules is imperative.  Necessarily, the office  bearers in terms of the Memorandum and Articles of Association must not  only act within the fourcorners thereof but exercise their respective powers  in an honest and fair manner, keeping in view the public good as also the  welfare of the sport of cricket.  It is, therefore, wholly undesirable that a  body incharge of controlling the sport  of cricket should involve in  litigations completely losing sight of the objectives of the society.  It is  furthermore unfortunate that a room for suspicion has been created that all  its dealings are not fair.  The Board has been accused of shady dealings and  double standards.

       We have noticed the contentions raised by the parties herein at some  length not because they were absolutely necessary for the purpose of  arriving at a decision but with a view to show that the rival contentions  necessitate a deeper probe and scrutiny.  Unfortunately, for the reasons  stated hereinafter, we are at this stage not in a position to do so and leave the  contentions wide open to be agitated by the parties before the appropriate  forums.   

       On 11th October, 2004, we had, after hearing the counsel for the  parties observed that if a situation arises this Court would go into the validity  of the election of the office bearers of the Board held in the meeting dated   29th September, 2004, but, as indicated hereinbefore, we did so under a  mistaken belief that the Board would be represented by the new office  bearers and, thus, all parties would be before us.  However, it now stands  admitted that the office bearers either in their personal capacity or official

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capacity are not before us.  They may have notice of the pendency of this  proceeding.  They may be sitting on the fence and watching the proceedings  of this Court.  But, unless they are made parties in these proceedings, we  would not be in a position to entertain the dispute as regard validity of the  meeting of 29th September, 2004 resulting in the election of the office  bearers.  Giving an opportunity of hearing to the elected members in a  dispute of this nature is imperative and not a matter of mere procedure,  formality or technicality.  The election dispute, therefore, must be  adjudicated upon by a proper forum.

       The events leading to these appeals, as narrated hereinbefore, raise a  abysmal picture and a sordid state of affairs.   

       In the suit filed by Netaji, two interim applications were filed being  OA No. 803 and OA No. 804 of 2004.  Indisputably, in OA No. 803 of  2004, the Court granted an order of injunction restraining the Board from  disqualifying any members of the Board and preventing them from voting.   Although in the Memo of Appeal filed by the Board before the Division  Bench of the Madras High Court against the said order, the orders passed  both in OA Nos. 803 and 804 of 2004 were sought to be questioned, no  ground in relation thereto appears to have been raised in the Memo of  Appeal in relation to the said order of injunction and no argument appears to  have been advanced before the Division Bench in that behalf.  The Division  Bench of the High Court while passing the order on 29th September, 2004  noticed paragraphs 11 to 13 of the order of the learned Single Judge dated  28th September, 2004 but its attention probably was not drawn to paragraph  14 thereof.  Even the attention of the Division Bench to the said effect does  not appear to have been drawn by the learned counsel appearing on behalf of  the Plaintiff \026 Respondent No. 1 herein.  Had the intention of the Division  Bench specifically been drawn to the said order of injunction, we are sure  that the learned Judges would have dealt with it specifically.  However, in  law the said order of injunction did not subsist as the suit itself was  withdrawn with the consent of the parties and both the appeal and the suit  were disposed of by the order dated 29.9.2004.  However, whether the suit  itself could have been withdrawn and disposed of by the Division Bench in  purported exercise of its power under Sub-section (2) of Section 107 of the  Code as well as on the basis of  the determination of the learned judges is  open to question.  We are also not aware as to whether the original side  Rules of the Madras High Court contemplate such a situation.

       Indisputably, an undertaking had been given by a learned Senior  Counsel appearing on behalf of the Board.  In the impugned order, the  Division Bench before whom such undertaking had been given was of the  opinion that it was misled.  This Court having regard to the understanding of  such undertaking by the Division Bench does not intend to deal with the  effect and purport thereof and as we are of the opinion that the Division  Bench of the Madras High Court itself is competent therefor.  If paragraph  14 of the order of the learned Single Judge is to be taken into consideration,  it is possible to contend that the learned Judges of the High Court were  correct.   

       We are, furthermore, of the opinion that the jurisdiction of the High  Court in entertaining a review application cannot be said to be ex facie bad  in law.  Section 114 of the Code empowers a court to review its order if the  conditions precedents laid down therein are satisfied.  The substantive  provision of law does not prescribe any limitation on the power of the court  except those which are expressly provided in Section 114 of the Code in  terms whereof it is empowered to make such order as it thinks fit.

       Order 47, Rule 1 of the Code provides for filing an application for  review.  Such an application for review would be maintainable not only  upon discovery of a new and important piece of evidence or when there  exists an error apparent on the face of the record but also if the same is  necessitated on account of some mistake or for any other sufficient reason.

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       Thus, a mistake on the part of the court which would include a  mistake in the nature of the undertaking may also call for a review of the  order.  An application for review would also be maintainable if there exists  sufficient reason therefor.  What would constitute sufficient reason would  depend on the facts and circumstances of the case.  The words ’sufficient  reason’ in Order 47, Rule 1 of the Code is wide enough to include a  misconception of fact or law by a court or even an Advocate.  An application  for review may be necessitated by way of invoking the doctrine "actus  curiae neminem gravabit".

       It is true that in Moran Mar Basselios Catholicos and Another Vs. The  Most Rev. Mar Poulose Athanasius and Others [(1955) 1 SCR 520], this  Court made observations as regard limitations in the application of review of  its order stating :

"Before going into the merits of the case it is as  well to bear in mind the scope of the application  for review which has given rise to the present  appeal.  It is needless to emphasise that the scope  of an application for review is much more  restricted than that of an appeal.  Under the  provisions in the Travancore Code of Civil  Procedure which is similar in terms to Order  XLVII, rule 1 of our Code of Civil Procedure,  1908, the Court of review has only a limited  jurisdiction circumscribed by the definitive limits  fixed by the language used therein.  It may allow a  review on three specified grounds, namely (i)  discovery of new and important matter or evidence  which, after the exercise of due diligence, was not  within the applicant’s knowledge or could not be  produced by him at the time when the decree was  passed, (ii) mistake or error apparent on the face of  the record and (iii) for any other sufficient reason.   It has been held by the Judicial Committee that the  words "any other sufficient reason" must mean "a  reason sufficient on grounds, at least analogous to  those specified in the rule.",

but the said rule is not universal.

       Yet again in Lily Thomas (supra), this Court has laid down the law in  the following terms:

"52. The dictionary meaning of the word "review"  is "the act of looking, offer something again with a  view to correction or improvement". It cannot be  denied that the review is the creation of a statute.  This Court in Patel Narshi Thakershi v.  Pradyumansinghji Arjunsinghji, AIR 1970 SC  1273 held that the power of review is not an  inherent power. It must be conferred by law either  specifically or by necessary implication. The  review is also not an appeal in disguise. It cannot  be denied that justice is a virtue which transcends  all barriers and the rules or procedures or  technicalities of law cannot stand in the way of  administration of justice. Law has to bend before  justice. If the Court finds that the error pointed out  in the review petition was under a mistake and the  earlier judgment would not have been passed but  for erroneous assumption which in fact did not  exist and its perpetration shall result in miscarriage  of justice nothing would preclude the Court from

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rectifying the error\005"                                                   (Emphasis supplied)

       It is also not correct to contend that the court while exercising its  review jurisdiction in any situation whatsoever cannot take into  consideration a subsequent event.  In a case of this nature when the court  accepts its own mistake in understanding the nature and purport of the  undertaking given by the learned senior counsel appearing on behalf of the  Board and its correlation with as to what transpired in the AGM of the Board  held on 29th September, 2004, the subsequent event may be taken into  consideration by the court for the purpose of rectifying its own mistake.

       In Rajesh D. Darbar and Others Vs. Narasingrao Krishnaji Kulkarni &  Ors. [(2003) 7 SCC 219], this Court noticed: "4. The impact of subsequent happenings may  now be spelt out. First, its bearing on the right of  action, second, on the nature of the relief and  third, on its importance to create or destroy  substantive rights. Where the nature of the relief,  as originally sought, has become obsolete or  unserviceable or a new form of relief will be  more efficacious on account of developments  subsequent to the suit or even during the  appellate stage, it is but fair that the relief is  moulded, varied or reshaped in the light of  updated facts. Patterson v. State of Alabama  [1934] 294 U.S. 600, illustrates this position. It is  important that the party claiming the relief or  change of relief must have the same right from  which either the first or the modified remedy  may flow. Subsequent events in the course of the  case cannot be constitutive of substantive rights  enforceable in that very litigation except in a  narrow category (later spelt out) but may  influence the equitable jurisdiction to mould  reliefs. Conversely, where rights have already  vested in a party, they cannot be nullified or  negated by subsequent events save where there is  a change in the law and it is made applicable at  any stage. Lachmeshwar Prasad v. Keshwar Lal  AIR 1941 FC 5 falls in this category. Courts of  justice may, when the compelling equities of a  case oblige them, shape reliefs - cannot deny  rights - to make them justly relevant in the  updated circumstances. Where the relief is  discretionary, Courts may exercise this  jurisdiction to avoid injustice. Likewise, where  the right to the remedy depends, under the statute  itself, on the presence or absence of certain basic  facts at the time the relief is to be ultimately  granted, the Court, even in appeal, can take note  of such supervening facts with fundamental  impact. This Court’s judgment in Pasupuleti  Venkateswarlu v. Motor & General Traders AIR  1975 SC 1409 read in its statutory setting, falls in  this category. Where a cause of action is deficient  but later events have made up the deficiency, the  Court may, in order to avoid multiplicity of   litigation, permit amendment and continue the  proceeding, provided no prejudice is caused to  the other side. All these are done only in  exceptional situations and just cannot be done if  the statute, on which the legal proceeding is  based, inhibits, by its scheme or otherwise, such  change in cause of action or relief. The primary

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concern of the court is to implement the justice of  the legislation. Rights vested by virtue of a  statute cannot be divested by this equitable  doctrine - See V.P.R.V. Chockalingam Chetty v.  Seethai Ache AIR 1927 PC 252."

       Furthermore, the impugned order is interlocutory in nature.  The order  is not wholly without jurisdiction so as to warrant interference of this Court  at this stage.  The Division Bench of the High Court had jurisdiction to  admit the review application and examine the contention as to whether it can  have a re-look over the matter.  This Court, it is trite, ordinarily would not  interfere with an interlocutory order admitting a review petition.  The  contentions raised before us as regard the justification or otherwise of the  Division Bench exercising its power of review can be raised before it.   Furthermore, the court having regard to clause (ii) of its order dated  29.9.2004 may have to consider as to whether the election was held in  accordance with the constitution of the Board and the rules and bye-laws  framed by it.         The conduct of the Board furthermore is not above board.  The  manner in which the Board had acted leaves much to desire.   

       The question as to whether the Maharashtra Cricket Association has  unjustly been deprived of its right to participate in the AGM through Mr.  Agashe whereas DDCA and the Rajasthan Cricket Association had been  allowed to participate therein is a question which would require deeper  probe and a detailed scrutiny.

       The Board had not filed even legal opinion which it obtained before  replying to Mr. Thorve’s letter dated 10th April, 2004.  The tenor of the  Board’s letter dated 3rd May, 2004 clearly demonstrates that a written  opinion was obtained as therein the following expressions have been used:

       "the legal opinion further states"

       In the said legal opinion a distinction appears to have been made  between a policy decision to be taken by Maharashtra Cricket Association  vis-‘-vis representation of the Association in the meetings of the Board.  No  distinction might have been drawn therein as regard different types of  meetings of the Board, viz., Extraordinary General Meeting and Annual  General Meeting or any other meeting, nor do we find any.  A person may  either be entitled to represent an association or he is not.  A person’s right to  represent an association ordinarily would not vary with the nature of the  meeting unless otherwise provided in the statute.  So far no satisfactory  explanation has been furnished as to why another legal opinion was sought  for and acted upon in preference to the first one.  

       One of the question is  whether Mr. Agashe could have represented  the Maharashtra Cricket Association in terms of resolution dated  27.09.2004.  Different standards cannot be adopted by the Board, viz., one  for the purpose of requisitioned meeting for inviting Mr. Dalmia to become  the patron-in-chief of the Board and other for the purpose of attending an  AGM.  In other meetings, Maharashtra Cricket Association had admittedly  been represented by Mr. Agashe.  It is also doubtful as to whether the Board  could have gone into, if at all, the validity or otherwise of the meeting of the  Maharashtra Cricket Association held on 27th September, 2004.  It is also a  matter of contention as to whether Mr. Deshmukh had exceeded his  jurisdiction not only in taking his stand as contained in his letter dated 27th  September, 2004 but also sending copies thereof to Mr. Thorve and Mr.  Ajay B. Shirke before it was received by the Maharashtra Cricket  Association.

       Mr. Deshmukh in terms of the order of the Bombay High Court prima  facie was merely to attend the meeting and give his approval or withhold it  as regard any policy decision which may be taken.  Whether sending a

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representative of the Maharashtra Cricket Association is a matter of policy  warranting interference by the observers appointed by the Bombay High  Court is again a contentious issue.  The members of the Association could  not have undermined the importance of electing its representative for the  ensuing Annual  General Meeting of the Board.  

       The Maharashtra Cricket Association itself has filed a Special Leave  Petition questioning the order of the Division Bench of the Madras High  Court dated 29th September, 2004.  In a situation of this nature, this Court  may not exercise its jurisdiction under Article 136 of the Constitution of  India because the order impugned before it is not correct.  The jurisdiction of  this Court under Article 136 of the Constitution is a discretionary one.

       In Municipal Board, Pratabgarh and Another Vs. Mahendra Singh  Chawla and Others [(1982) 3 SCC 331], it was held:

"6. What are the options before us.  Obviously, as  a logical corollary to our finding we have to  interfere with the judgment of the High Court,  because the view taken by it is not in conformity  with the law. It is at this stage that Mr. Sanghi,  learned counsel for the respondent invited us to  consider the humanitarian aspect of the matter. The  submission is that the jurisdiction of this Court  under Article 136 of the Constitution is  discretionary and, therefore, this Court is not  bound to tilt at every approach found not in  consonance or conformity with law  but the  interference may have a deleterious effect on the  parties involved in the dispute.  Laws cannot be  interpreted and enforced  divorced from their  effect on human beings  for whom the laws are  meant. Undoubtedly,  rule of law must prevail but  as is often said,  ’rule of law must run akin to rule  of life.  And life of law is not logic but experience.   By pointing out the error which according  to us  crept into the High Court’s judgment  the legal  position is restored and the rule of  law has been  ensured its prestine glory.  Having. performed that  duty under Art. 136,  is it obligatory on this Court  to take the  matter to its logical end so that while  the  law will affirm its element of certainty, the  equity may stand massacred. There comes  in the  element of discretion which this Court  enjoys in  exercise of its extraordinary jurisdiction under Art.  136\005"  

       In Taherakhatoon (D) by LRS. Vs. Salambin Mohammad [(1999) 2  SCC 635], this Court held:

"20. In view of the above decisions, even though  we are now dealing with the appeal after grant of  special leave, we are not bound to go into merits  and even if we do so and declare the law or point  out the error - still we may not interfere if the  justice of the case on facts does not require  interference or if we feel that the relief could be  moulded in a different fashion..."

       The said decision has been followed by a 3-Judge Bench of this Court  in Chandra Singh and Others Vs. State of Rajasthan and Another [(2003) 6  SCC 545].

       Yet again in Ram Chandra Singh Vs. Savitri Devi and Others [(2003)

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8 SCC 319], this Court observed::

       "In such an event also, the Court may have  to find out a remedy which would be just and  equitable.           The High Court furthermore failed to notice  the principle ’actus curiae neminem gravabit’.         In Rajesh D. Darbar & Others Vs.  Narasingrao Krishnaji Kulkarni & Ors. [JT 2003  (7) SC 209], this Court noticed: "The courts can take notice of the subsequent  events and can mould the relief accordingly. But  there is a rider to these well established principles.  This can be done only in exceptional  circumstances, some of which have been  highlighted above. This equitable principle cannot,  however, stand in the way of the court adjudicating  the rights already vested by a statute. This well  settled position need not detain us, when the  second point urged by the appellants is focused.  There can be no quarrel with the proposition as  noted by the High Court that a party cannot be  made to suffer on account of an act of the Court.  There is a well recognised maxim of equity,  namely, actus curiae neminem gravabit which  means an act of the Court shall prejudice no man.  This maxim is founded upon justice and good  sense which serves a safe and certain guide for the  administration of law. The other maxim is, lex non  cogit ad impossibilia, i.e. the law does not compel  a man to do that what he cannot possibly  perform\005"  

       Recently, in M.P. Special Police Establishment Vs. State of M.P. and  Others [(2004) 8 SCC 788], this Court held:

"31. We have, on the premises aforementioned, no  hesitation to hold that the decision of the Council  of Ministers was ex facie irrational whereas the  decision of the Governor was not.  In a situation of  this nature, the writ court while exercising its  jurisdiction under Article 226 of the Constitution  as also this Court under Articles 136 and 142 of  the Constitution can pass an appropriate order  which would do complete justice to the parties.   The High Court unfortunately failed to consider  this aspect of the matter."

       However, keeping in view of the fact that the elected office bearers  are yet to take over charge, with a view to do complete justice to the parties,  we would in exercise of our jurisdiction under Article 142 of the  Constitution direct that the adjourned meeting should immediately be  convened.  As regard the election of the office bearers of the Board, it would  further be open to an aggrieved party to question the legality or validity of  the said meeting dated 29th September, 2004.  Netaji also may, if it is  otherwise permissible in law, subject to an appropriate order that may be  passed by the Madras High Court, may file an application for amendment of  the plaint or take such other step or steps as it may be advised.

       Keeping in view of the fact that on 8th October, 2004 when the  impugned order was passed the new Board had not taken over as also having  regard to the prayer made in the interim application filed by Netaji for grant  of interim injunction restraining the newly elected Board from functioning in  the interim, we make our interim order dated 11th October, 2004 staying the  operation of the part of the order whereby Mr. Justice S. Mohan was

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appointed as an interim Administrator absolute leaving the parties to file  such interim applications as may be necessary in the changed situation.                  However, keeping in view of the fact that interim order of injunction  as regard Agenda Item Nos. 1(b) and 13 been passed by a District Court at  Chennai, the suit filed by Bharathi Cricket Club, we are of the opinion that it  is not necessary to pass any other order at this stage as regard invitation to  Mr. Jagmohan Dalmia to become the patron-in-chief of the Board.

       We are, however, of the opinion that it would not be appropriate to  restore the order of the learned Single Judge dated 28.9.2004 as was  submitted by Mr. Nariman as the purpose for which Mr. Justice S. Mohan  was appointed has lost its efficacy.                  In view of the orders passed by us, we do not think it necessary to  pass separate orders in the Special Leave Petition filed by the Maharashtra  Cricket Association.  The Maharashtra Cricket Association shall, however,  be at liberty to file an appropriate application for getting itself impleaded in  the proceedings pending before the Madras High Court, subject to any  objection that may be taken by the Board.  We, however, furthermore are of  the opinion that keeping in view the facts and circumstances of this case that  part of the order of the Division Bench dated 29th September, 2004 whereby  and whereunder the Board was directed to pay a further sum of Rs. 1 lakh to  Mr. Justice S. Mohan as additional remuneration cannot be sustained.  It is  set aside accordingly.

       Keeping in view the peculiar fact situation obtaining herein, we would  request the High Court to consider the desirability of disposing of the  matters pending before it as expeditiously as possible.   

       These appeals are disposed of with the aforementioned directions.  No  costs.