# 15 (ADDL.) S.C.R. 1004 LAUT KUMAR MODI v. BOARD OF CONTROL FOR CRICKET IN INDIA AND ORS

- **Citation:** [2011] 15 S.C.R. 1004
- **Court:** Supreme Court of India
- **Decided:** 2011-09-26
- **Bench:** J.M. Panchal, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-1004-laut-kumar-modi-v-board-of-control-for-cricket-in-india-and-27583
- **Pages:** 26

## Headnote

Tamil Nadu Societies Registration Act, 1975 -
c Disciplinary action by society - Constitution of Disciplinary
Committee - Challenge to - First respondent-society (BCCI)
organized a cricket competition (IPL) - Petitioner, a member
of first respondent, appointed as the incharge Chairman
thereof- Rights for telecasting of the cricket games auctioned
by first respondent - Complaint from a bidder alleging breach
D of confidentiality against the petitioner - Petitioner suspended
from his position and served with show cause notices -
Disciplinary Committee of respondent no. 1 entrusted with the
function of examining the a/legations - Plea of Petitioner that
the Disciplinary Committee was not validly constituted and
E that since the President of BCCI had recused himself from
the Committee, the Disciplinary Committee was required to
either wait until the next President was elected so that the
committee was reconstituted after including the new President
therein, or if the Committee was to consist of three persons
F other than the President, it should consist of persons who were
unbiased and acceptable to the petitioner - Held: The
petitioner himself had objected to the President being the
member of the Committee -
That being the position, the
President recused himself from the Committee - When a
G situation thus arises, in view of the objection of the petitioner,
the society cannot be left without a remedy - Also, a member
of the society having accepted the rules, agrees to the
disciplinary authority of the three member Committee to be
constituted under the rules - He cannot claim a right to dictate
H
1004
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1005
CRICKET IN INDIA AND ORS.
as to who should be the members of the Committee -
A
Normally the President shall be a member of three Member
Committee, but if for any reason his presence on the
Committee is objected to, on grounds of unfairness, and he
recuses himself therefrom, respondent no. 1 certainly has the
power to substitute him by some other person - The
B
Committee in question was validly constituted under Rule 1 (q)
in view of the necessity arising due to the recusal of the
President of BCCI from the Committee - Board of Control for
Cricket in India Rules - Rule 1 (q).
Tamil Nadu Societies· Registration Act, 197fj -
c
Disciplinary action by society - A/legation of institutional bias
- First respondent-society (BCCI) organized a cricket
competition (IPL) - Petitioner appointed as the incharge
Chairman thereof - Rights for telecasting of the cricket games
auctioned by first respondent - Complaint from a bidder D
alleging breach of confidentiality against the petitioner -
Petitioner suspended from his position and served with show
cause notices - Disciplinary Committee of respondent no. 1
entrusted with the function of examining the allegations - Plea
of Petitioner that the members of the Committee suffered from
an institutional bias and that the petitioner could not expect
E
fairplay from the members who were already party to the
decision to initiate the disciplinary action against the petitioner
- Held: Merely because all the members of a society
participated in the discussion concerning the allegations, the
Society can't be expected to appoint an outsider to hold the
F
disciplinary proceeding - Again, merely because a member
has participated in such a meeting he cannot be accused of
bias to disentitle him from being appointed on the Disciplinary
Committee - The petitioner may have an apprehension of
bias, but it is not possible to say from the material on record
G
that he was facing a real danger of bias - One cannot
presume that the three member committee will not afford the
petitioner a fair hearing, or that it will not render unbiased
findings - Taking a view as canvassed by the petitioner will
lead to a demand for interference in the enquiries conducted
by all other societies in such situations, and that cannot be H
1006 SUPREME COURT REPORTS [2011] 15 (ADOL.) S.C.R
A approved.

## Text

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A
B
[2011] 15 (ADDL.) S.C.R. 1004
LAUT KUMAR MODI
v.
BOARD OF CONTROL FOR CRICKET IN INDIA AND
ORS.
(Special Leave Petition (C) No. 27157 of 2010)
SEPTEMBER 26, 2011
[J.M. PANCHAL AND H.L. GOKHALE, JJ.]
Tamil Nadu Societies Registration Act, 1975 -
c Disciplinary action by society - Constitution of Disciplinary
Committee - Challenge to - First respondent-society (BCCI)
organized a cricket competition (IPL) - Petitioner, a member
of first respondent, appointed as the incharge Chairman
thereof- Rights for telecasting of the cricket games auctioned
by first respondent - Complaint from a bidder alleging breach
D of confidentiality against the petitioner - Petitioner suspended
from his position and served with show cause notices -
Disciplinary Committee of respondent no. 1 entrusted with the
function of examining the a/legations - Plea of Petitioner that
the Disciplinary Committee was not validly constituted and
E that since the President of BCCI had recused himself from
the Committee, the Disciplinary Committee was required to
either wait until the next President was elected so that the
committee was reconstituted after including the new President
therein, or if the Committee was to consist of three persons
F other than the President, it should consist of persons who were
unbiased and acceptable to the petitioner - Held: The
petitioner himself had objected to the President being the
member of the Committee -
That being the position, the
President recused himself from the Committee - When a
G situation thus arises, in view of the objection of the petitioner,
the society cannot be left without a remedy - Also, a member
of the society having accepted the rules, agrees to the
disciplinary authority of the three member Committee to be
constituted under the rules - He cannot claim a right to dictate
H
1004
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1005
CRICKET IN INDIA AND ORS.
as to who should be the members of the Committee -
A
Normally the President shall be a member of three Member
Committee, but if for any reason his presence on the
Committee is objected to, on grounds of unfairness, and he
recuses himself therefrom, respondent no. 1 certainly has the
power to substitute him by some other person - The
B
Committee in question was validly constituted under Rule 1 (q)
in view of the necessity arising due to the recusal of the
President of BCCI from the Committee - Board of Control for
Cricket in India Rules - Rule 1 (q).
Tamil Nadu Societies· Registration Act, 197fj -
c
Disciplinary action by society - A/legation of institutional bias
- First respondent-society (BCCI) organized a cricket
competition (IPL) - Petitioner appointed as the incharge
Chairman thereof - Rights for telecasting of the cricket games
auctioned by first respondent - Complaint from a bidder D
alleging breach of confidentiality against the petitioner -
Petitioner suspended from his position and served with show
cause notices - Disciplinary Committee of respondent no. 1
entrusted with the function of examining the allegations - Plea
of Petitioner that the members of the Committee suffered from
an institutional bias and that the petitioner could not expect
E
fairplay from the members who were already party to the
decision to initiate the disciplinary action against the petitioner
- Held: Merely because all the members of a society
participated in the discussion concerning the allegations, the
Society can't be expected to appoint an outsider to hold the
F
disciplinary proceeding - Again, merely because a member
has participated in such a meeting he cannot be accused of
bias to disentitle him from being appointed on the Disciplinary
Committee - The petitioner may have an apprehension of
bias, but it is not possible to say from the material on record
G
that he was facing a real danger of bias - One cannot
presume that the three member committee will not afford the
petitioner a fair hearing, or that it will not render unbiased
findings - Taking a view as canvassed by the petitioner will
lead to a demand for interference in the enquiries conducted
by all other societies in such situations, and that cannot be H
1006 SUPREME COURT REPORTS [2011] 15 (ADOL.) S.C.R
A approved.
Doctrines - Doctrine of necessity - Held: The doctrine
of necessity is a common law doctrine, and is applied to tide
over the situations where there are difficulties - Law does not
contemplate a vacuum, and a solution has to be found out
B rather than allowing the problem to boil over.
The first respondent-society (BCCI) organized a
cricket competition (IPL), and the petitioner, a member of
first respondent, was appointed as the incharge
Chairman thereof. The rights for telecasting of the cricket
C games were auctioned by the first respondent. The first
respondent received a complaint from a bidder alleging
breach of confidentiality against the petitioner. The
petitioner was suspended from his position and was
served with show cause notices. The petitioner denied
D the allegations and also wrote to 'M', the Honorary
President of the first respondent requesting him to recuse
himself from the decision making process in the interest
of fairness. Consequently, 'M' recused himself from the
Disciplinary Committee of respondent no.1, which was to
E decide upon the show cause notices and one 'J' was
appointed in his place.
The petitioner thereafter filed a Writ Petition raised
two objections. The first ground of objection was that the
Disciplinary Committee was not validly constituted and
F that since the President of BCCI had recused himself
from the Committee, the Disciplinary Committee was·
required to either wait until the next President was elected
so that the committee was reconstituted after including
the new President therein, or if the Committee was to
G consist of three persons other than the President, it
should consist of persons who were unbiased and
acceptable to the petitioner. The second objection was
that the members of the Committee suffered from an
institutional bias and that the petitioner could not expect
fairplay from the members who were already party to the
H decision to initiate the disciplinary action against the
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1007
CRICKET IN INDIA AND ORS.
petitioner. This Writ Petition was dismissed. The High
A
Court held that the substitution of the President by 'J'
was acceptable on the basis of the doctrine of necessity
and also repelled the argument with respect to bias. It
further held that in case the petitioner had any grievance
against the functioning of any of the members of the
B
Committee, he may apply to the Committee that such a
member may recuse himself from the Committee.
Subsequently, the petitioner applied to the Committee
members that they should all recuse themselves from
functioning as members of the Disciplinary Committee. c
The Committee rejected the application. It led to the filing
of a second Writ Petition by the petitioner before another
bench of the High Court. That petition also came to be
dismissed.
Meanwhile, the first respondent extended the term of D
the Disciplinary Committee for continuing with the
enquiry against the petitioner. The Petitioner challenged
the extension granted to the Committee, but the challenge
was negated by a different bench of the High Court.
All the said three orders passed by the different E
benches of the High Court were challenged in the instant
petitions.
Dismissing the petitions, the Court
HELD: 1.1. The objection of the petitioner to the
F
forming of the Disciplinary Committee was on the basis
of Rule 1 (q) of the Board of Control for Cricket in India.
This rule states that the Board shall at every Annual
General Meeting appoint a Committee consisting of three
persons. The President shall be one of them and the
function of the Committee is to inquire into and deal with G
the matters relating to any acts of misconduct etc. In view
of the wording of this rule, there is no difficulty in
accepting that normally the President has to be one of
the members of this Committee. The question is with
respect to the necessity arising on account of the
H
1008 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A President being unavailable in a situation like the present
one. [Para 27) [1024-H; 1025-A·B]
•
1.2. In the instant case the petitioner himself had
objected to the President being the member of the
Committee. That being the position, the President
B recused himself from the Committee. When a situation
thus arises, in view of the objection of the petitioner, the
society cannot be left without a remedy. The rule does
not say that if the President cannot be a member of the
Committee no substitution shall take place, nor does it
c say that the substituting member should be one not
objected by the delinquent against whom the enquiry is
proposed. A member of the society having accepted the
rules, agrees to the disciplinary authority of the three
member Committee which is to be constituted under
0 these rules. He cannot claim a right to dictate as to who
should be the members of the Committee. Any such
interpretation will lead to a situation that the delinquent
will decide as to who should be the members of the
Disciplinary Committee. Such a submission cannot be
accepted. The rule is elastic enough, and in an
E appropriate situation the word 'shall' can be read as
'may'. It is very clear that, normally the President shall be
a member of three Member Committee, but if for any
reason his presence on the Committee is objected to on
grounds of unfairness, and he recuses himself
F therefrom, the respondent no.1 certainly has the power
to substitute him by some other person. The action of the
respondents is sought to be defended on the basis of
necessity. The doctrine of necessity is a common law
doctrine, and is applied to tide over the situations where
G there are difficulties. Law does not contemplate a
vacuum, and a solution has to be found out rather than
allowing the problem to boll over. Otherwise, one will have
to wait for one more year for a new President to be
elected, which submission cannot be accepted. [Para 30)
[1026-G-H; 1027-A·FJ
H
LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1009
CRICKET IN INDIA AND ORS.
1.3. As far as the disciplinary actions by societies
A
and associations are concerned, many of the societies
under the Tamil Nadu Societies Registration Act and
similar State Acts, are smaller societies. It is another
matter that the first respondent society is a large body
having large resources. If the members or the Managing
8
Committee of a Society receive a complaint of any
misconduct on the part of any of its office bearers, surely
the subject is expected to be taken up in the General Body
Meeting of the Society. These societies are expected to
sort out the future course of action with respect to such
allegations on their OV'!"n on the basis of their internal C
disciplinary mechanism. Merely because all the members
of a society have participated in the discussion
concerning such allegation, the Society can't be expected
to appoint an outsider to hold the disciplinary
proceeding. lt may not be financially possible as well for D
such small societies. That apart, only a prima facie
opinion is formed in such meetings. Merely because a
member has participated in such a meeting he cannot be
accused of bias to disentitle him from being appointed
1 on the Disciplinary Committee. [Para 31] [1027-G-H; 1028E
A-C]
1.4. A mere apprehension of bias cannot be a ground
for interference. There must exist a real danger of bias.
Though such domestic inquiries have undoubtedly to be
fair, a member of a society cannot stretch the principle
F
of fairness to the extent of demanding a tribunal
consisting of outsiders, on the basis that the society
members are biased against him. In the instant case, the
petitioner has, in clear terms stated that he was not
making any personal allegations against two members of G
the Disciplinary Committee, .viz. 'J' and 'S'. Even the
grievance against the third member 'A' cannot be said to
be well founded. The petitioner was a!Yeging institutional
bias against the members of the Com'mittee, which was
only on the basis of their participation in the meetings of H
1010 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A the first respondent society. In this way, institutional bias
can be alleged against every member of the Governing
Council of IPL and the General Body of the first
respondent which cannot be accepted. The petitioner
may have an apprehension, but it is not possible to say
8 from the material on record that he was facing a real
danger of bias. One cannot presume that the three
member committee will not afford the petitioner a fair
hearing, or that it will not render unbiased findings. Taking
a view as canvassed by the petitioner will lead to a
C demand for interference in the enquiries conducted by all
other societies in such situations, and that cannot be
approved. This is apart from the view taken by this Court,
that the Committee was validly constituted under Rule
1(q) in view of the necessity arising due to the recusal of
the President of BCCI from the Committee. Similarly, there
D was no error in the order of the Disciplinary Committee
declining to recuse, or the decision of the Annual General
Meeting of the first respondent to extend the term of this
Disciplinary Committee for the inquiry against the
petitioner. [Paras 32, 33] [1028-E-H; 1029-A-E]
E
M.P. Special Police Establishment v. State of MP.; 2004
(8) SCC 788: 2004 (5) Suppl. SCR 1020 - followed.
State of U.P. v. Manbodhan Lal AIR 1957 SC 912: 1958
SCR 533 and State of A.P. and another v. Dr. Rahimuddin
F Kamal AIR 1997 SC 947: 1997 (3) SCC 505 - relied on.
Manak Lal v. Prem Chand Singhvi AIR 1957 SC 425:
1957 SCR 575; S. Parthasarlhi v. State of Andhra Pradesh
1974 (3) SCC 459: 1974 (1) SCR 697; T.P. Daver v. Lodge
Victoria AIR 1963 SC 1144: 1964 SCR 1; Kumaon Manda/
G Vikas Nigam Ltd. v. Girija Shankar Pant 2001 (1) SCC 182:
2000 (4) Suppl. SCR 248; Election Commission of India v.
Dr. Subramaniam Swamy 1996 (4) SCC 104: 1996 (1)
.Suppl. SCR 637; Justice P.D. Dinakaran v. Hon'ble Judges
Inquiry Committee and ors 2011 (6) SCALE 97 - referred
to.
H
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1011
CRICKET IN INDIAAND ORS.
'
R v. Sussex, JJ, ex. p. McCarthy (1924) 1 KB 256; R. v.
A
Gough (1993) 2 All ER 724; Porter v. Magill (2002) 1 ALL
ER 465; Mcinnes v. Onslow Fane (1978) 3 All ER 211 -
referred to.
Case Law Reference:
1957 SCR 575
referred to
Para 21
B
1974 (1) SCR 697
referred to
Para 21
(1924) 1 KB 256
referred to
Para 21
(1993) 2 All ER 724
referred to
Para 21
(2002) 1 ALL ER 465
referred to
Para 21
c
(1978) 3 All ER 211
referred to
Para 22
1964 SCR 1
referred to
Para 23, 32
2004 (5) Suppl. SCR 1020 followed
Para 24, 32
2000 (4) Suppl. SCR 248 referred to
Para 24
D
1996 (1) Suppl. SCR 637 referred to
Para 25
2011 (6) SCALE 97
referred to
Para 26
1958 SCR 533
relied on
Para 28
1997 (3) sec 505
relied on
Para 29
E
CIVIL APPELLATE JURISDICTION: Petition for Special
Leave (Civil) No .. 27157 of 2010.
From the Judgment & Order dated 15.7.2010 of the High
Court of Bombay in WP No. 1370 of 2010.
F
Ram Jethmalani, Vinod Bobde and Pravin, H. Parekh,
Abhishek Singh, Jayant Mohan, Sarvesh Singh Baghel,
Meenakshi Chatterjee, Raja! Nair, Anukur Chawala and Parekh
& Co. for the Petitioner.
C.A. Sundaram, Mukul Rohatgi, Ranjit Kumar Amit Sibal, G
Akhila Kaushik, Raghu Raman, Ruchira Gupta, Deepti Sarin,
lshan Gaur, Rohini Musa, A Chattopadhyay, Zafar lnayat,
Yogesh Karanjawala & Co., Radha Rangaswamy, Ranjeeta
Rohatgi and Hari Shankar for the Respondents.
The Judgment for the Court was delivered by
H
1012 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
H.L. GOKHALE J. 1. These three Special Leave Petitions
seek to challenge three orders passed by three different
benches of Bombay High Court, on the proceedings initiated
by the appellant against the first respondent Bdard of Control
for Cricket in India (hereinafter referred to either as 'first
8 respondent' or the 'BCCI').
2. The first respondent is a society registered under the
Tamil Nadu Societies Registration Act, 1975. The petitioner,
herein, is a member of the first respondent representing one
of its constituent associations. As a part of its activities, the first
c respondent had organized a cricket competition under the
banner 'Indian Premier League' shortly known as (IPL), and the
petitioner was appointed as the incharge Chairman thereof.
Considering the popularity of the game of cricket, these games
were to be televised. Telecasting of these games was expected
to fetch a good income to BCCI and the firm entrusted with the
D telecasting of these games, and therefore, the rights for
telecasting were auctioned by first respondent through a
bidding process for an appropriate price.
3. In April 2010, the first respondent received a complaint
E from a bidder alleging breach of confidentiality against the
petitioner. The petitioner was therefore, suspended from his
position on 25.4.2010.
(a) He was served with a show cau·se notice dated
25.4.2010 inter-alia alleging/accusing him of (i) accepting multiF million dollar kickback while assigning the telecasting rights for
IPL matches; (ii) attempting to rig the bids for the two new IPL
teams-that were auctioned the previous month; (iii) having proxy
stakes in I PL teams; (iv) entering into transactions with rank
strangers against the mandate of the Governing Council of the
G IPL; (v) helping family members in benefiting from the IPL
contracts.
(b) Thereafter another show cause notice was issued to
him on 6.5.2010 which alleged inter-alia that he was seeking
to create a parallel cricket body at international level (particularly
H in England) and thereby subvert the present International Cricket
.LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1013
CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
structure. The petitioner sought certain information and
A
documents from the first respondent in this behalf, but the same
were notfurnished.
4. The petitioner sent his reply to the first show cause
notice on 15.5.2010 denying the allegations therein. Thereafter,
he wrote to Shri Shashank Manohar, the Honorary President
B
of the first respondent on 25.5.2010 requesting him that he
should recuse himself from the decision making process in the
interest of fairness. The petitioner then sent his reply to the
second show cause notice on 31.5.2010. The first respondent
served him the third show cause notice on the same day i.e. c
31.5.2010 wherein they alleged amongst other things that the
petitioner had committed irregularities and illegalities in the
award of the IPL tenders for the Theatrical Rights. The petitioner
replied to this notice on 15.6.201 O.
5. Consequent upon the objection raised by the petitioner,
D
Shri Shanshank Manohar recused himself from the Disciplinary
Committee, which was to decide upon the show cause notices.
The first respondent has a disciplinary committee to deal with
the misconducts of its members. It is constituted under rule 1
(q) of the rules governing the first respondent society. This rule
E
reads as follows:-
(q) Disciplinary Committee: The Board shall at every
Annual General Meeting appoint a Committee consisting
of three persons of whom the President shall be one of
them to inquire into and deal with the matter relating to any
F
act of indiscipline or misconduct or violation of any of the
Rules and Regulations by any player, Umpire, Team,
Official, Administrator, Selector or any person appointed
or employed by BCCI. The Committee shall have full power
and authority to summon any person(s) and call for any
G
evidence it may deem fit and necessary and make and
publish its decision including imposing penalties if so
required, as provided in the Memorandum and rules and
Regulations."
6. On Shri Manohar recusing himself from the Committee,
H
1014SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Shri Jyotiraditya Scindia was appointed in his place. The other •
two members of the Committee were Shri Chirayu Amin and
Shri Arun Jaitely as nominated earlier. The petitioner filed a
Writ Petition bearing No. 1370/2010 in the Bombay High Court,
and prayed that the order of suspension be recalled and he be
B reinstated, the three show cause notices be directed to be
withdrawn, and the decision to refer the matter to the
Disciplinary Committee be also directed to be recalled.
Alternatively he prayed that the first respondent be directed to
appoint a mutually acceptable and an independent person or
C panel to consider the replies of the Petitioner to the show cause
notices, and to decide whether the allegations are required to
be referred to the Disciplinary Committee or the matter should
be closed.
7. The petitioner raised two issues in this petition.
D
(i) The first ground of objection was that the Committee
was not validly constituted. This was on the footing that the rules
and regulations of the first respondent society are a matter of
contract amongst its members, and the Committee should be
constituted strictly in accordance with the particular rule. The
E above referred rule 1 (q) provides for a Disciplinary Committee
consisting of the President and two other persons. Since the
President had recused himself from the Committee, the
Disciplinary Committee will have to either wait until the next
President is elected so that the committee is reconstituted after
including the new President therein, or if the Committee is to
F consist of three persons other than the President, it should
consist of persons who are unbiased and acceptable to the
petitioner.
(ii) The second objection was that the members of the
G Committee suffered from an institutional bias. The petitioner
could not expect fairplay from the members who have already
been party to the decision to initiate the disciplinary action
against the petitioner.
8. This Writ Petition was dismissed by a Division Bench
H of Bombay High Court by its judgment and order dated
LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1015
CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
15.7.2010. The Division Bench rejected the submission about
A
the defect in the Committee. It held that the substitution of the
President by Shri Jyotiraditya Scindia was acceptable on the
basis of the doctrine of necessity. It repelled the argument with
respect to bias, and held that whatever decision is rendered
by the Committee could be challenged by the petitioner after
B
the decision became available. The Court further held that in
case the petitioner had any grievance against the functioning
of any of the members of the Committee, he may apply to the
Committee that such a member may recuse himself from the
Committee. This order has been challenged in the first SLP (C}
C
No. 27157/2010.
9. Subsequent to the order passed by the Division Bench,
the petitioner applied to the Committee members that they
should all recuse themselves from functioning as members of
the Disciplinary Committee. The Committee rejected that D
application. It led to the filing of second Writ Petition by the
petitioner in Bombay High Court bearing Petition No. 1909 of
2010. That petition also came to be dismissed by another
Division Bench of Bombay High Court by its judgment and
order dated 15.9.2010. This order is challenged in the second
E
CC No. 15249/2010.
10. During the course of the calendar year 2010, the first
respondent constituted a regular Disciplinary Committee for
2010-2011, and extended the special Committee consisting of
Sarvashri Arun Jaitley, Chirayu Amin and Jyotiraditya Scindia
F
for continuing with the enquiry against the petitioner. The
extension granted to this Committee was challenged by the
petitioner by filing Suit No. 195/2011 on the original side of the
Born.bay High Court. The notice of motion moved therein for
injunction against the Committee came to be rejected first by
a Single Judge and then in appeal by a Division Bench of the
G
High Court by its order dated 5.4.2011. This order is challenged
in the third CC No. 11545/2011. Since all these petitions are
basically arising out of the same controversy, they have been
heard and are being decided together.
H
1016 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
11. Shri Ram Jethmalani, learned Senior Counsel and Shri
Vinod Bobde, learned Senior Advocate have appeared for the
petitioner. Shri Aryama Sundaram, learned Senior Advocate
has appeared for the first Respondent. Shri Ranjit Kumar,
Senior Advocate has appeared for Shri N. Srinivasan,
8 Secretary of first respondent.
12. As stated above, the objections of the petitioner to the
constitution of the Committee are two fold. Firstly, the
Committee was not validly constituted and secondly, it suffers
from institutional bias. As far as the first objection is concerned,
c Shri Jethmalani submitted that under the above rule 1 (q), the
Disciplinary Committee can consist only of the President and
two other persons. A society is constituted as a matter of
contract amongst the members who form the society. It is
expected to function as per the rules and regulations of the
D society which constitute the terms of contract amongst its
members. In the present case, the rule concerning the
Disciplinary Committee required the Committee to consist of
the President and two other persons. If the President recuses
himself, from being a member of the disciplinary Committee,
either the society should wait until a new President is elected
E to constitute the new Disciplinary Committee, or since it is a
matter of contract, the Committee be reconstituted with such
persons to whom the petitioner has no objection. Shri
Jethmalani submitted that he has no objection to a Committee
of three former Judges or even a decision by a former Judge
F of this Hon'ble Court. In his submission the petitioner had a
reasonable apprehension of bias against the members of the
Committee, and therefore a reconstitution of the Committee as
suggested by the petitioner was desirable from the point of
view of fair-play.
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13. In view of these suggestions, we asked Shri
Sundaram, learned senior counsel for the first respondent,
whether the first respondbnt was agreeable to accept this
suggestion. In deference thereto, Shri Sundaram did take
instructions, but pointed out that the Disciplinary Committee of
H the first respondent is required to conduct numerous inquiries.
LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1017
CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
· If the first respondent agrees to a Disciplinary Committee
A
consisting of outsiders in this matter, it may have to agree to
similar request in many such matters, and that would not be
desirable.
14. Shri Sundarain submitted that it is only because of the
objection of the petitioner that Shri Manohar had recused
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himself from the Committee in all fairness. In a situation like this,
the first respondent had to reconstitute the Committee by
substituting another person in place of the President, and in
view of the serious allegations against the petitioner, the inquiry
could not wait for one more year for the next President to be c
elected. Since, the substitution had become necessary in view
of petitioner's objection, it was not fair on his part to make any
grievances against the reconstituted Committee. This
submission of the first respondent based on the doctrine of
necessity has been accepted by the Bombay High Court in its
D
judgment rendered in the first Writ Petition bearing No. 1370
of 2010.
·
·
15. As far as the allegation of bias against the members
of the Committee is concerned, the petitioner had in his letter
dated 25.5.2010 objected to Shri Shashank Manohar
E
remaining on the Committee. At that time he did not raise any
ot.1ection to the other members of the Committee, namely Shri
Arun Jaitely and Shri Chirayu Amin. ln 1paragraph 3 (C) of this
letter he stated as follows:-
·
"C. It is submitted that it is not my endeavor to create
F
any technical hurdle in the process and no hurdle shall be
caused if an independent body constituting of other
members of the Board is formed. It is submitted that there
are only 14 members of the Governing Council and hence
BCCI can choose and appoint independent persons to
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investigate into these allegations ....... ."
16. In his Writ Petition No.1370 of 2010, the petitioner
joined S/Shri Chirayu Amin and Arun Jaitely and Jyotiraditya
Scindia as respondent no.4, 5 and 6. In para 4 of this Writ
Petition, he stated as follows:-
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A
B
c
1018 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
"4. Respondent Nos.3 (sic), 4 and 5 and 6 are
members of the Disciplinary Committee of Respondent
No.1 ("the Disciplinary Committee"). This Disciplinary
Committee has been entrusted with the function of
examining the allegations made against the Petitioner, in
the three Show Cause Notices, issued to the Petitioner.
The Petitioner is challenging the constitution, composition
and continuation of the Disciplinary Committee. The
Petitioner is also alleging institutional bias against the
Disciplinary Committee. The Petitioner is however making
no personal allegation of personal bias or malice against
Respondent Nos. 5 and 6."
Thus, it is clear that as far as Shri Jaitely and Shri Scindia
are concerned, the petitioner stated that he was not making any
personal allegation of personal bias or malice against them.
D He was alleging institutional bias against the members of the
Disciplinary Committee.
17. As far as Shri Chirayu Amin is concerned, all that was
additionally stated against him was that Shri Amin had a 10%
share in a party which gave the bid on behalf of an applicant
E from Pune. Shri Sundaram pointed out that the bid of that party
was rejected. The only other blame against Shri Amin was that
he succeeded the petitioner as the Chairman of IPL and,
therefore, he would be biased against him.
18. The petitioner denies that he has played any deceit in
F the matter of entering into any of the disputed agreements, or
that he has received any kickbacks. The submission of Shri
Jethmalani concerning bias was on the footing that the disputed
agreements under which the petitioner is alleged to have made
some 80 million dollars by way of kickbacks, were approved
G by the Governing Council of IPL on 11.8.2009. Thus, this was
known to all concerned and there was no deceit on the part of
the petitioner, and therefore, there was no substance in the
allegation. Respondents point out that these three members of
the Disciplinary Committee were not present iri that meeting,
though, they were present in the subsequent meeting held on
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LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1019
CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
2.9.2009 when these minutes were approved. Petitioner's
A
allegation of bias is also on the footing that the three members
of the Committee were present in the meeting of the Governing
Council of IPL held on 25.6.2010, when it decided to charge
the petitioner with fraud. They were also present in the Special
General Meeting of the first respondent held on 3. 7.2010 where
B
the President of first respondent was authorized to take
appropriate civil and criminal action against the petitioner. An
FIR was lodged in pursuance thereto on 13.10.2010. It is
therefore contended that the petitioner has a reasonable
apprehension of bias against these three members that he may
not get a fair hearing and an unbiased finding on the allegations
C
from them.
19. As far as this aspect is concerned, the respondents
maintain that they were kept in dark about the agreement/
arrangement that the petitioner entered into with the concerned
parties from whom he is alleged to have received kickbacks.
D
In any case, the three members of the. Committee were not
present in the meeting of Governing Council of IPL held on
11.8.2009 when the disputed agreements were allegedly
approved. And to take the argument at its best, they were
present in the three subsequent meetings referred by the
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petitioner. These agreements were approved by the General
Body on 2.9.2009. The further action was also approved in the
Governing Council meeting of 25.6.2010 and Special General
Meeting of 3.7.2010. The question is whether the participation
by these members in these three meetings would disqualify
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them from being the members of the Disciplinary Committee.
20. In view of these objections to these three members of
the committee, we asked Shri Jethmalani, whether he was
objecting to these members because they were members of
the Governing Council in which case some other members from
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the General Body could be asked to be members of the
Committee. Shri Jethmalani, however stated that the appellant
was objecting only to these three members of the Governing
Council, and not even to the other members of the Governing
Council. Now, there is no logic as to why only these three
H
1020 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A persons can be said to be suffering from institutional bias, and
not the other members of the Governing Council. And, if the
other members of the Governing Council could be members
of the Disciplinary Committee, there is no reason as to why
these three members could not be.
B
21. Shri Jethmalani submitted that we are concerned with
reasonable apprehension of bias. This principle has been
accepted by this Court in Manak Lal Vs. Prem Chand Singhvi
reported in [AIR 1957 SC 425], in the context of an inquiry under
the Bar Council Act, 1926. At the end of paragraph 6 this Court
C had observed that 'actual proof of prejudice in such cases may
make the appellant's case stronger but such proof is not
necessary in order that the appellant should effectively raise
the argument that the tribunal was not properly constituted''.
He pointed out that in S. Parthasarthi Vs. State of Andhra
Pradesh reported in [1974 (3) SCC 459], the view taken by the
D Court was similar. This Court held that the test of likelihood of
bias was based on reasonable apprehension of a reasonable
man fully cognizant of the facts, and relied upon the leading
English judgment in the case of R Vs. Sussex, JJ, ex. p.
McCarthy reported in (1924) 1 KB 256. In paragraph 16 of S.
E Parthasarthi this Court has observed as follows:-
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"The tests of "real likelihood" and "reasonable
suspicion" are really inconsistent with each other. We think
that the reviewing authority must make a determination on
the basis of the whole evidence before it, whether a
reasonable man would in the circumstances infer that there
is real likelihood of bias. The Court must look at the
impression which other people have. This follows from the
principle that justice must not only be done but seen to be
done. If right minded persons would think that there is real
likelihood of bias on the part of an inquiring officer, he must
not conduct the enquiry; nevertheless, there must be a real
likelihood of bias. Surmise or conjecture would not be
enough. There must exist circumstances from which
reasonable men would think it probable or likely that the
inquiring officer will be prejudiced against the delinquent.
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1021
CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
The Court will not inquire whether he was really prejudiced.
A
If a reasonable man would think on the basis of the existing
circumstances that he is likely to be prejudiced, that is
sufficient to quash the decision [see per Lord Denning,
H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v.
Lannon]. 1 1. (1968) 3 WLR 694 at 707
B
We may mention that Shri Jethmalani drew our attention
to the recent development in English Law in this behalf, where
'real danger of bias' is no longer considered to be the test, but
the relevant consideration is as to whether there was real
possibility that the tribunal was biased. He referred to the c
judgments in the cases of R. Vs. Gough reported in (1993) 2
All ER 724, and Porter Versus Magill reported in (2002) 1 ALL
ER 465.
22. Shri Jethmalani and Shri Bobde drew our attention to
a judgment of House of Lords in Mcinnes Vs. Onslow Fane
D
reported in (1978) 3 All ER 211 wherein three types of cases
are discussed, viz. (i) application cases; (ii) inspection cases;
and (iii) forfeiture cases. It was submitted that principles of
natural justice have to be followed in any case in the category
of forfeiture cases. In the present case the reputation of the
E
petitioner was at stake and, therefore, the principle that no man
should be judge in his own case, had to be followed. According
to the petitioner, the members of the Disciplinary Committee
could not be said to be unbiased. They were part of the
institution, and therefore suffered from institutional bias.
F
23. In reply, Shri Sundaram, learned counsel for BCCI
submitted that the members of a Society have to abide by the
Rules and Regulations thereof and submit themselves to the
jurisdiction of the domestic tribunal, though some of the
members of the tribunal may even appear to him to be acting
G
like prosecutors. A member cannot place himself above the
Institution. He is bound by the rules, and cannot complain unless
the inquiry disclosed malafides or unfair treatment. A society
is comparable to a club or a Masonic Lodge. A judgment in
the case of T.P. Daver Vs. Lodge Victoria reported in [AIR
H
1022 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 1963 SC 1144) is relevant in this behalf wherein this Court has
held in paragraph 7 thereof as follows:-
B
c
D
E
F
G
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"7. Another aspect which may also be noticed is how
far and to what extent the doctrine of bias may be invoked
in the case of domestic tribunals like those of clubs. The
observations of Maugham J. in Maclean's case (1929) 1
Ch. 602 in this context may be noticed. The learned Judge
observed in that case thus :
"A person who joins in association governed by rules
under which he may be expelled, ............................ has in
my judgment no legal right of redress if he be expelled
according to the rules, however unfair and unjust the rules
or the action of the expelling tribunal may be provided that
it acts in good faith ............................ The phrase, "the
principles of natural justice," can only mean in this
connection the principles of fair play so deeply rooted in
the minds of modern Englishmen that a provision for an
inquiry necessarily imports that the accused should be
given his chance of defence and explanation. On that point
there is no difficulty. Nor do I doubt that in most cases it is
a reasonable inference from the rules that if there is
anything of the nature of a lis between two persons, neither
of them should sit on the tribunal.•
Another difficulty that one is confronted with in proceedings
held by committees constituted by clubs is to demarcate
precisely the line between the prosecutor and the Judge.
Maugham, J. noticed this difficulty and observed in
Maclean's case1 (1929) 1 Ch. 602 thus :
"In many cases the tribunal is necessarily entrusted
with the duty of appearing to act as prosecutors as well
as that of judges; for there is no one else to prosecute. For
example, in a case where a council is charged with the duty
of considering the conduct of any member whose conduct
is disgraceful and of expelling him if found guilty of such
an offence, it constantly occurs that the matter is brought
to the attention of the council by a report of legal
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1023
CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
proceedings in the press. The member is summoned to
A
appear before the council. The council's duty is to cause
him to appear and to explain his conduct. It may be that in
so acting the council are the prosecutors.