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V.J. Thomas, Ernakulam & Another v/s State of Kerala, Represented by The Special Secretary (Law),Law (Legilsation-D) Department, Government Secretariat, Thiruvananthapuram & Others

    W.P.(C) Nos. 16049, 11964 & 41008 of 2017

    Decided On, 12 July 2018

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE SHAJI P. CHALY

    For the Petitioners: Roshen.D. Alexander, Tina Alex Thomas, Advocates. For the Respondents: R1 to R2, Santhosh Peter, Senior Government Pleader, R4, Thomas J. Anakkallunkal, Jacob P. Alex, Joseph P. Alex, Advocates, R5, Latha Anand, SC.



Judgment Text

1. The captioned writ petitions are materially connected in respect of the District Rifle Association of Idukki, draft voters list published, amendment to the Kerala Sports Act, 2000, and the consequential action of the Association in removing certain members from the voters list. Therefore, I heard them together and propose to deliver a common judgment. Facts and documents available from W.P.(C) No.16049 of 2017 are relied upon, and the decision taken in the said writ petition will decide the fate of the other two writ petitions.

2. The reliefs sought for in the writ petition are to quash Exts.P5 to P7, which are issued by the District Collector, Idukki, directing the District Rifle Association to draw up a draft voters list in accordance with the amendment made to the Kerala Sports Act, 2000, the action initiated by the District Rifle Association drawing up the list and consequential notice issued to conduct the election on 10.05.2017, on the basis of the list prepared in accordance with the directions issued by the District Collector. Material facts for the disposal of the writ petition are as follows:

3. Petitioners, three in number, are the existing members of the 4th respondent Association viz., the District Rifle Association, Idukki. The membership and functioning of the 4th respondent is provided as per Ext.P1 Memorandum of Association. As per Ext.P1, any Indian citizen of 21 years can become a member of the 4th respondent, subject to the screening, approval and confirmation process as explained in Ext.P1. Ext.P4 is the list of existing members and elections were declared to be conducted in accordance with the list. However, the 2nd respondent issued Exts.P5, P5(a), P6 and P7, adjourning the election and ordered to renew the members list by excluding 456 members residing outside the Idukki District. The said direction was issued on the basis of the amendment made to the Kerala Sports Act, 2000, as per the Kerala Sports (Amendment) Act, 2015. According to the petitioners, the said exclusion is on a wrong application of law, which was never intended by the legislature.

4. Section 13 of the Kerala Sports (Amendment) Act, 2015 viz., Ext.P9 was brought in, to amend the conditions of registration, for a Sports Organization to register with the Sports Council. Section 31 was amended to include Sec.31(1A)(i) to (xx). In Sec.31(1A)(viii), it is stipulated that, membership of a club shall be limited to those belonging to their respective district and where membership is given to individuals and clubs, such membership shall not entail any right of vote to such members in any meeting of the organization.

5. Therefore, according to the petitioners, primarily, the necessary conclusion is that, Sec.31(1A) is only prospective in nature. Secondly, Sec.31(1A) is applicable only to those Sports Organizations, which are yet to be registered. Thirdly, Sec.31(1A) is not applicable to a Sports Organization already registered with the Kerala State Sports Council

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and fourthly, the said amendment cannot affect the vested rights of the petitioners and other existing members of the 4th respondent Association who are outside Idukki District by a retrospective operation of the said provision.

6. It is the further case of the petitioners that, Ext.P9 amendment brought to the Sports Act, 2000 is a substantive law, and amendment of a substantive law cannot be made retrospective unless expressly laid down or by necessary implication inferred. But, nowhere in Ext.P9, it is stated that, the amendment is retrospective and no necessary implication is provided therein to make it retrospective in operation. These are the facts projected by the petitioner to secure the reliefs sought for in the writ petition.

7. Fourth respondent has filed a counter affidavit, stating that the 4th respondent is a society registered under the Travancore-Cochin Literary, Scientific and Charitable Societies Registration Act, 1955, and the Kerala Sports Act, 2000. It is further submitted that, as evident from Ext.P1 Memorandum of Association, membership is open to 'any citizen of India who is of 21 years of age', subject to police verification. At present, there are 873 members in the respondent Association. Out of the said 873 members, only 417 belong to Idukki district and the remaining 456 members are from other districts. All the 873 members have contributed money, energy and time for development of the 4th respondent. The 4th respondent has played a key role to enhance the rifle shooting abilities of its members. In the year 2008, 12 shooters from the club qualified for the All India National Shooting Championship, and out of which, two junior shooters were selected for the All India National Shooting trials in connection with the Junior Commonwealth Games. Other credentials of the 4th respondent association are also pointed out.

8. It is further submitted that, the 4th respondent is providing excellent facilities for shooting training for its members and others. Facilities provided by the respondent for shooting training are one among the best in the country, and the respondent is having 50 metre (outdoor), 25 metre (outdoor) and 10 metre (indoor) Shooting Ranges. The respondent has so far conducted 9 Kerala State Shooting Championships since 2004, and in the year 2005, it hosted 15th All India G.V. Mavalankar Shooting Championship, wherein more than 1000 shooters from all over the country had participated. Likewise, 52nd All India National Shooting Championship was conducted under the aegis of the National Rifle Association of India, and in that event, more than 1200 shooters had participated. Apart from the same, in the year 2013 and 2015, it organized the 6th and 7th All India South Zone Shooting Championship respectively.

9. That apart, it is submitted that, to achieve the aims and objectives as detailed in Ext.P1, the respondent has acquired assets and as per Approved Annual Report 2016-17, the Association is having a total asset worth Rs.1,50,92,231/-. The assets have acquired consequent to the contribution made by 873 members, and accordingly, all the members are having vested right to continue with the existing rights and privileges attached with the membership. After registration/recognition under the Act, such sports organization is entitled for the status as recognized under the Act until withdrawal, or suspension of recognition made in accordance with Sec.31A of the Act. Reading of the Act would show that an organization that is already registered thereunder is not obliged to renew its registration and such registration/recognition would continue. It has registered as per Sec.31 and since no proceedings as contemplated under Sec.31 (1A) of the Act have been initiated, it is entitled to continue as a recognized sports organization. Similarly, all members of the respondent are also entitled to continue as such, with all pre-existing rights and privileges.

10. It is also submitted that, Ext.P9 amendment made to the Act is only prospective and cannot affect the functioning of a registered organization, and a reading of the amendment would show that the amendment made to Sec.31 of the Act is only directed to cover those organizations that are aspiring for registration, and not for those organizations that are already registered. That being the position of law, the stand adopted by the 2nd respondent i.e. the District Collector, Idukki in Ext.P5 is illegal and unsustainable.

11. The additional 7th respondent [incorrectly shown as additional 5th respondent in the affidavit] has filed a counter affidavit, basically supporting the amendment made to the Sports Act, the orders passed by the District Collector and the voters list drawn up, eliminating 456 members from other districts. Therefore, according to the additional 7th respondent, there is every possibility that the administration of the Association and execution of the directives from the Government, and the conduct of the programmes can be exclusively by the members from other districts. That apart, it is stated that, the functioning of the Association is not within the four corners of Ext.P1 Bye-laws. The District Rifle Association is functioning under the Kerala State Rifle Association, which is functioning under the National Rifle Association. The arms and ammunitions for shooting practice, participating in the competitions etc. are being obtained from the National Rifle Association of India. The National Rifle Association of India is affiliated to the Sports Authority of India. So, the functioning of each association is under the direction, control and assistance of the State Rifle Association, National Rifle Association and the Sports Authority of India. All District Rifle Associations in Kerala are to be affiliated to the Kerala Sports Council and the Kerala Sports Council is constituted and functioning under the Kerala Sports Act and the Kerala Sports Rules, 2008. From 2008 onwards, it was made compulsory that all District Rifle Associations should be affiliated with the Sports Council.

12. It is also stated that, the election of District Rifle Association is meant for electing Secretary, Treasurer, Executive Committee members and three nominees to the Kerala State Rifle Association and one nominee to the District Sports Council. The District Secretary will be an Ex-officio member of the Kerala State Rifle Association. There are 36 disciplines of sports recognized by the State Government, and one member from each discipline would constitute the District Sports Council. Further, one member from each discipline will constitute the State Sports Council. Therefore, all District Rifle Associations are strictly under the control and direction of the Kerala Sports Council as well. All assistance including financial assistance are given to the District Rifle Association only through the District Sports Council. Therefore, if the elected office bearers and committee members are from outside the district, the Idukki District would not be getting its due consideration and there is every chance funds getting diverted to their own districts.

13. It is also submitted that, the election to the previous elected body was held in violation of Kerala Sports (Amendment) Act, 2015. If the election for the elected members are done in violation of the Kerala Sports Act, the Kerala Sports Council, Kerala State Rifle Association and District Sports Council would not recognize the election, and in that event, the members of the Idukki District Rifle Association would be losing grace marks in the case of students, sports quota admissions in colleges and all other Government benefits.

14. It is further submitted that, election to the Palakkad District Rifle Association was scheduled to be conducted without removing the members hailing from outside Palakkad District. Three members of the said association residing within the limits of Palakkad District filed W.P.(C) No.11165 of 2016, and in the said writ petition, the District Collector, Palakkad has made an undertaking that the election would be conducted strictly in accordance with the amended Sports Act. Accordingly, Ext.R5(a) judgment was rendered by this Court and the District Collector conducted election without deleting the members who are residing outside Palakkad District. The said petitioners filed Contempt of Court Case No.625 of 2016. The District Collector, the Secretary to Government and Revenue Divisional Officer who are respondents 1 to 3 in the said writ petition filed review petition No.1038/2016 in the aforesaid writ petition. The review petition and the contempt case were heard together and this Court passed Ext.R5(b) common order, and in paragraph 4, it was held as follows:

'The Sports Act stipulates the eligibility for candidates as well as voters in the matter of election to the office bearers of the Sports Council. The absence of any Rules cannot be cited to violate any Act which have come into force with effect from 01.01.2016. Therefore, it has to be viewed that the election conducted is per se illegal. It is for the respondents to recall the election which was conducted in violation of the statutory provisions and the direction of this court. In the peculiar facts and circumstances, this court is of the view that an opportunity should be given to the respondents to comply with the directions. It is made clear that if the respondents fail to comply with the directions, this court will have to proceed with the contempt.'

15. An additional counter affidavit is also filed by the 7th respondent, producing certain additional documents, basically to substantiate the contentions raised in the counter affidavit.

16. In W.P.(C) No.11964 of 2017 filed by the additional 7th respondent, the reliefs sought for is a direction compelling and commanding respondents 1 and 2 i.e. the District Collector and the District Police Chief, Idukki District to take necessary steps to conduct the election of the District Rifle Association, Idukki.

17. W.P.(C) No. 41008 of 2017 is filed by the additional 6th respondent in the prime writ petition, seeking direction to the 1st respondent i.e. the District Collector, Idukki to publish a revised voters list only including the members resident in the district, by excluding the non-residents in tandem with the provisions of Sec.31(1A)(viii) of the Kerala Sports Act, and to take immediate steps to conduct the election of the Idukki District Rifle Association without any further delay.

18. I have heard respective counsel appearing for the petitioners, learned Government Pleader and the respective counsel appearing for the respondents. Perused the documents on record and the pleadings put forth by the respective parties.

19. The learned counsel on either side addressed their arguments in accordance with the pleadings put forth in the respective writ petitions and the counter affidavits filed. The subject matter of the dispute revolves around Sec.31(1A)(viii) incorporated into the Sports Act, 2000, as per Sec.13 of the Kerala Sports (Amendment) Act, 2015, which is deemed to have come into force on and with effect from 18.09.2015, which read thus:

'13. Amendment of section 31.-- In section 31 of the principal Act,--

(a) in sub-section (1), for the words 'in such form and subject to such terms and conditions as may be prescribed', the words 'in the form as may be prescribed, subject to the terms and conditions specified in sub-section (1A)' shall be substituted:

(b) after sub-section (1), the following subsection shall be inserted, namely:--

'(1A) There shall be the following qualifications and compliance of conditions, for the registration of a Sports Organization, namely:--

x x x x x x x x x

x x x x x x x x x

x x x x x x x x x

(viii) Membership shall be limited to those belonging to their respective district and where membership is given to individuals and clubs, such membership shall not entail any right of vote to such members in any meeting of the organization.

x x x x x x x x x x

x x x x x x x x x

x x x x x x x x'.

Sub-section (1A) of Sec.31 deals with qualifications and compliance of conditions for the registration of a Sports Organization.

20. According to learned counsel for the petitioners, clause (viii) of Sec.31(1A) operates only prospectively, because the petitioners who are members of the 4th respondent Association are having a vested right to continue the membership along with voting rights. It is also the contention of the learned counsel that, it is not having any retrospective operation, either specifically or by implication. The said provision is intended only for the registration of new clubs, consequential membership and the voting rights to be provided in future. Learned counsel has also invited my attention to the following judgments of the apex court:

1. 'Bhagat Ram Sharma v. Union of India' [(1988) Suppl. SCC 30].

2. 'Janardhan Reddy v. The State' [AIR 1951 SC 124]

3. 'Zile Zingh v. State of Haryana' [(2004) 8 SCC 1]

4. 'Punjab Tin Supply Co. v. Central Government' [(1984) 1 SCC 206].

5. 'Purbanchal Cables and Conductors Pvt. Ltd. v. Assam State Electricity Board' [(2012) 7 SCC 462].

21. Therefore, according to the learned counsel, since the amendment made has only prospective operation, the petitioners who are members of the 4th respondent Association are entitled to continue the membership with the right to vote in the election to elect the office bearers of the Association.

22. The learned counsel appearing for the 4th respondent supported the arguments advanced by learned counsel for the petitioners and further submitted that, the right to form associations provided under Article 19(1)(c) of the Constitution of India applies strictly to this case, and therefore, the amendment made to the Sports Act, 2000, as per Act, 2015, so far as taking away the right to vote is unconstitutional, besides arbitrary and illegal. Learned counsel for the 4th respondent has invited my attention to the following judgments rendered by the apex court:

1. 'Smt. Damayanti Naranga v. The Union of India & Others' [1971 (1) SCC 678].

2. 'Darius Rutton Kavasmaneck v. Gharda Chemicals Limited and Others' [(2015) 14 SCC 277].

3. 'Nikesh Tarachand Shah v. Union of India and Another' [(2018) 11 SCC 1].

4. 'O.K. Ghosh and Another v. E.X. Joseph' [AIR 1963 SC 812].

23. The respective counsel appearing for the contesting respondents who are also petitioners in the other two writ petitions submitted that, the amendment made as per Act, 2015 has got rational nexus sought to be achieved, so far as the voting rights are concerned. Sub-section (1A) of Sec.31 clearly protects all the interests of the existing members from outside the district, and therefore, their vested rights are not affected at all. However, the voting rights are taken away in order to avoid any dual voting by those members in the District Associations from which they hail. It is also submitted that, as per Ext.P1 Memorandum of Association, dual membership of members is not prohibited. The petitioners in W.P.(C) No.16049 of 2017 have not stated anywhere in the writ petition that they are not members of their home District Rifle Association. It is also submitted that, the petitioners therein are residents of the Ernakulam District, and they have got every right to secure membership in the Ernakulam District Rifle Association, and thereby acquire the voting rights. It is further submitted that, the claim raised by the petitioners with respect to the vested rights confine with the membership of the members from outside district to enjoy the membership and facilities of the club. However, the right to vote is not attached to the constitutional right of Article 19(1)(c) to form associations and the right to vote depends on various qualifications prescribed in order to exercise their vote in the Annual General Body election.

24. It is also submitted that, as per Ext.P1 bye-laws, various kinds of membership are provided and the members are differentiated in accordance with the status of payment made to the club and the voting rights therein are also confined to certain category of members. Therefore, the contention advanced by the petitioners that their vested right is taken away by disqualifying them from voting in accordance with the amended provisions of the Sports Act, cannot be sustained under law. Learned counsel for the petitioner in W.P.(C) No.11964 of 2017 has invited my attention to the following judgments:

1. 'M/s. New India Sugar Works v. State of Uttar Pradesh and Others' [(1981) 2 SCC 293].

2. 'Punjab University v. Subash Chander and Another' [(1984) 3 SCC 603].

3. 'Mst. Bibi Sayeeda and Others v. State of Bihar and Others' [(1996) 9 SCC 516].

4. 'P. Suseela and Others v. University Grants Commission and Others' [(2015) 8 SCC 129].

25. I have evaluated the pros and cons and the arguments advanced by respective counsel, perused the pleadings at length and surveyed the proposition of law laid down by the apex court in the afore-quoted judgments. The sole question to be considered is, whether clause (viii) of subsection (1A) of Sec.31 extracted above is prospective or retrospective? On a reading of clause (viii) of Sec.31(1A), what I could gather is, the membership of the persons outside the District are retained so far as the membership as on the date of the coming into force of the amendment is concerned, however, the right to vote alone is taken away. Which thus means, the petitioners and other persons from outside the district are entitled to enjoy all facilities of the club in terms of Ext.P1 bye-law. What is taken away is only the voting right of the existing members. In my considered view, in order to secure a right to vote, there is nothing wrong in prescribing qualifications.

26. So much so, even a member from the district may not acquire a right to vote in a particular year or continuously, if under the bye-laws, a qualification of 'no dues' is prescribed and fails to pay the dues. Therefore, a voters list is drawn up for every election in accordance with qualification for securing a voting right. So also, there is a clear implication in the amendment that the right to vote is taken away prospectively, without creating any embargo on the already elected office bearers as on date, the amendment came into force. Which thus means, on and from the force of the amendment, a list is drawn up with the qualified voters, and therefore, it cannot be said that, the amendment is made with retrospective effect also. Again, it is clear and imperative from clause (viii) of Sec.31(1A) of Act, 2000, that out of the two limbs, the first limb specifically stipulates that the membership 'shall' be limited to those belonging to their respective district, whereas the second limb protects the interests of the existing members, so far as the membership is concerned. Therefore, it can never be said that the amendment is retrospective in nature, since it significantly protects the membership of the existing members from outside the district.

27. Moreover, by virtue of Rule 56(2) of Kerala Sports Rules, 2008, for each item of sports disciplines and game, only one organization shall be granted registration by the Council. Therefore, there is no much force in the argument that the amendment only applies to any future organization, since I am informed that, in every district, there is a Rifle Association registered under the Act, 2000, and the Rules, 2008. In my view, the amendment is absolutely based on a public policy. Therefore, there is no question of applying the principles of retrospective or prospective effect to the amendment, because the petitioners are entitled to continue the membership in the 4th respondent Association. Merely a qualification is prescribed, to have the voting right to the members belonging to the very same district, it cannot be said that the principles of operation of amendment prospectively or retrospectively will come into play. So also, in my considered opinion, the right to vote cannot be said to be taken away, since the petitioners who are residents of Ernakulam district are entitled to secure membership in the District Rifle Association, Ernakulam, and accordingly will secure a right to vote. Alteration of the qualification for right to vote may recur, hereafter also, and thereupon, the members cannot be heard to say the disqualification will not apply to an existing member.

28. Therefore, prescribing a proper democratic pattern in the election process right from the District Rifle Association to the National Rifle Association and in the District Sports Council and the State Sports Council, which are intrinsically connected, retaining the right to vote to the members from the District alone is not taking away any vested right of the petitioners to vote at all. Whereas, as per the amendment brought about, the objective is to confine the voting right to a single district Association and thereby protect and secure the democratic principles in its finest form, disciplined by a single vote, since it has got its own implications in the hierarchical level of the association, and the District and State Sports Council. This is more so, since the 4th respondent is registered as a District Sports organization confining its activities in Idukki District. True, democracy has its own significant, social, political, parliamentary, and other facets and features, to secure will of the people in the process of administration, but in the process of election such features should not be a casualty, and therefore, the election is to be streamlined to attain the best result and thus retain and sustain the democracy. Viewed in that manner, if vote is provided to members in various districts, it interferes and tinkers the democratic process of election.

29. That apart, on a reading of Ext.P1 bye-law, it is categoric and clear that the Association is constituted with the aims and objectives of educating civilians in the art of Rifle Shooting, second line of defence for the National need, and to act as volunteers in calamities etc., and further to train the citizens of India, resident in Kerala, in the art of Rifle Shooting in order to educate them in the use of fire arms for national needs and safety, and for that purpose, conduct competitive tests to select the best trained-ones and weaker ones and to promote marksmanship of a high order. Along with the said aims and objectives, other objectives of comradeship, friendship and family relationship are also envisioned under Ext.P1.

30. Therefore, on a reading of the aims and objectives of the 4th respondent Association itself, it is very clear that it is not the voting right in the 4th respondent Association is that what matters. But, what matters is the attainment of acute sportsmanship in order to achieve the aims and objectives contained under Ext.P1. It also shows that the voting right vis-a-vis the aims and objectives, voting right is an incidental one taking place once in four years and the privileges enjoyed by the members are superior and predominant, which is a vested right. As is noticeable, consequent to the amendment, there is no fetter or impediment created to the vested right of the existing members. Moreover, the bye-law of the association conferring voting right to the members is not having any statutory force and when it conflicts with the provisions of the Kerala Sports Act and the Kerala Sports Rules, the provisions of the Act and Rules would act superior to the provisions of the bye-law. (See judgment of the apex court in 'Co-operative Central Bank Ltd. and others v. Additional Industrial Tribunal and others' [(1969) 2 SCC 43]). Above all, the classification among the members, to have a right to vote, to the members belonging to the district, is reasonable, to achieve the primary object of avoiding multiple voting rights, in the larger interest of the public policy. Be it also noted, the amendment never takes away the right to vote but it only regulates the said right, confining to the district, the members belong, to attain and achieve a collective objective of a fair and proper election.

31. Article 19(1)(c) of the Constitution of India protects rights of every citizen to form associations or unions. But, at the same time, it cannot be said that forming association is with the intention of securing qualification for right to vote. So far as the right to vote is concerned, one has to acquire qualification, say for example, any citizen of India is not entitled to exercise their franchise in the General Elections to the Parliament and State Legislative Assembly every where in India. A qualification is prescribed thereunder for voters in accordance with the residence, and the voting right is confined to a single Parliamentary constituency and a single Assembly constituency, as the case may be. Taking also into account the modalities prescribed for qualification, to vote under the Representation of People Act and the allied rules, it can be seen that the amendment made to the Sports Act, curtailing the voting right of the members from outside, cannot be said to be illegal, arbitrary, unfair or irrational. True, the principles of law laid down in the afore-quoted judgments deal extensively, with the parameters to be adopted to decipher the application of amendments brought out to a statute, the rights enjoyed to form association, vested right etc. etc., which I have borne in mind, to arrive at the conclusions made above.

32. Therefore, on a consideration of the entire aspects and the legal circumstances, I am of the considered opinion that, petitioners in W.P.(C) No.16049 of 2017 are not entitled to the reliefs sought for thereunder. So far as W.P.(C) No.41008 of 2017 is concerned, already the District Collector has issued directions to draw up voters list in accordance with the amendment made to the Sports Act, and therefore, the primary relief sought for to draw up a list accordingly, has virtually become infructuous. The other relief sought for in the said writ petition and the connected writ petition, is a direction to the District Collector to conduct the election in accordance with the revised voters list confining to Idukki, at the earliest possible.

33. Therefore, there will be a direction to take necessary steps to conduct the election in accordance with the revised voters list prepared, confining to Idukki District in terms of the amendment to the Sports Act, 2000, as per the Amendment Act, 2015, specified above.

Resultantly, W.P.(C) No.16049 of 2017 will stand dismissed and W.P.(C) Nos.11964 and 41008 of 2017 will stand allowed to the extent specified above.
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