IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 8771 of 2009(N)
1. M.KRISHNA KUMAR S/O. M.KUMARAN NAIR,
... Petitioner
Vs
1. THE DISTRICT COLLECTOR,
... Respondent
2. THE DISTRICT SPORTS COUNCIL,
3. THE KERALA SPORTS COUNCIL,
4. O.RAJAGOPAL,
5. A.MOOSA HAJI,
6. M.HARIS,
7. PROF. LUCY VARGHESE,
8. C.P.SULAIMAN,
9. P.SURENDRAN,
10. JOSY V.CHUNGATH,
11. MOHAMMED ASHRAF A.K.,
12. PADMANABHAN N.,
13. PRABHAKARAN KOROTH,
For Petitioner :SRI.P.RAVINDRAN (SR.)
For Respondent :PIRAPPANCODE V.S.SUDHEER,SC,SPORTS COUN
The Hon'ble the Chief Justice MR.S.R.BANNURMATH
The Hon'ble MR. Justice KURIAN JOSEPH
Dated :05/06/2009
O R D E R
C.R.
S.R.BANNURMATH, C.J. & KURIAN JOSEPH, J.
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W.P.(C) No.8771/09 & W.A. No.695/09 &
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Dated 5th June, 2009.
J U D G M E N T
Kurian Joseph, J.
‘Sports for all’ is the concept with which the Kerala
Sports Act, 2000 (hereinafter referred to as ‘the Act’) was
enacted. Though Kerala has been in the forefront in sports and
games, it appears only in the year 2000, a comprehensive
legislation was enacted for the purpose of sports and games, for
augmenting the athletic efficiency in the State, and also for the
purpose of constitution of Sports Councils at the State, District
and local levels. The ‘sportsman spirit’ even thereafter
appears to have been exhibited more in the field of legislation
and litigation. Though the Act was brought into force in the year
2001, the State Sports Council has not so far been constituted.
One reason, the learned Standing Counsel for the Council points
out is that the election to the District Sports Councils have not
been completed, and the litigation before us pertains to the
constitution of one such District Sports Council- Calicut.
WA NO.695 & W.P.(C) 8771/09 2
2. When steps were taken to constitute the District
Sports Council, Calicut, by election scheduled to take place on
31.10.2008, W.P.(C) 31914/08 was filed before this court. It was
pointed out that whole proceedings for election were vitiated
mainly on two grounds, among several other alleged vitiating
factors; (1) right to vote ought to be restricted only to the elected
members and (2) the Returning Officer had delegated his powers
to another officer. As per Ext.P2 communication from the
Secretary to Government, it was informed to the Secretary to the
Kerala Sports Council that in the election to the Executive
Committee of the District Sports Council, voting right cannot be
restricted to the elected members only. It was clarified that the
ex-officio as well as nominated members are also having the right
to vote.
3. Section 2(viii) of the Act defines “Member” as “a
member of State Sports Council or District Sports Council or
Corporation Sports Council or Municipal Sports Council or Town
Sports Council or Block Sports Council or Village Sports Council
whichever is relevant to the context.” Section 3(3) provides that
WA NO.695 & W.P.(C) 8771/09 3
Kerala State Sports Council shall consist of three types of
members; Ex-officio Members, Elected Members and Nominated
Members. Section 9 under Chapter III provides for the
constitution of District Sports Councils. Section 9(3) provides that
every District Sports Council shall consist of Ex-Officio Members,
Elected Members and Nominated Members. Section 9(4)
provides that there shall be a President and Vice President for
every District Sports Council elected from among the members of
that council. Section 11 provides for election to the Executive
Committee of the District Sports Council.
4. The crucial dispute as raised in these cases
pertains to the dispute regarding the eligibility of the members of
the District Sports Council to participate in the election
proceedings. Sri.P.Ravindran, learned senior counsel
appearing for the writ petitioner, inviting reference to rule 123 of
the Kerala Sports Rules, 2008 (hereinafter referred to as ‘the
Rules’) submits that only the elected members to the District
Sports Council are entitled to exercise their right to vote for
election to the Executive Committee. Rule 123(1) reads as
WA NO.695 & W.P.(C) 8771/09 4
follows :-
“The Returning Officer shall issue a ballot
paper to every elected member of a council, who wishes
to vote in the election to a Standing Committee or
Executive Committee, as the case may be, and the
ballot paper shall contain the names of all the contesting
candidates.”
As per Ext.P2 clarification referred to above, the Secretary to
Government informed the Sports Council that the parent Act
provides for voting right to all the members whether they be Ex-
officio, Nominated and Elected, and hence the Rules cannot
restrict the right to exercise the vote to elected members only.
Section 11 reads as follows :-
“11. Executive Committee of the
District Sports Council – (1) There shall be an
Executive Committee of the District Sports Council
consisting of its President, Vice-President, Secretary
and six members elected by the District Sports Council
from among its members, of whom one shall be a
woman”.
The learned Single Judge upheld the clarification holding that the
Rules cannot have a different intention than what is provided
under the parent Act. However, the proceedings for election were
WA NO.695 & W.P.(C) 8771/09 5
set aside on the ground of a patent illegality, viz., the Returning
Officer had delegated his powers to another officer. Therefore, it
was directed that the Returning Officer should conduct the
election in the manner as contemplated in the Act and in Rule
123 of the Rules.
5. While so, it is seen that the rule making authority,
in exercise of its power under Section 45 of the Kerala Sports Act,
2000 amended the rules in order to remove the difficulty, by
deleting the word “elected”, as appearing in Rules 123 and 124
of the Rules. In the notification dated 24.2.2009 published in the
gazette, it is provided that the amendment would come into force
from 17.7.2008, i.e., the date of coming into effect of the Kerala
Sports Rules, 2008. There is no quarrel to the legal position that
the rule making authority is entitled to amend the rules either
prospectively or retrospectively. But the contention of the
learned senior counsel is that this court interfered with the
election originally scheduled to take place on 31.10.2008 only on
the irregularity of the Returning Officer delegating his powers and
therefore, the election should be treated as a continuation of the
WA NO.695 & W.P.(C) 8771/09 6
original notification issued on 5.10.2008. We are afraid, the
contention cannot be appreciated. The learned Single Judge has
in fact directed election to be conducted in accordance with the
Act and Rules and hence the fresh election has to be a de-novo
election for all purposes. The three other contentions are; (1) in
the absence of challenge to the Rules, the learned Single Judge
went wrong in interpreting the Rules and declaring that all the
members to the District Sports Council are entitled to participate
and vote in the election to the posts of President and Vice
President, and to the Executive Committee, (2) the right to vote is
conferred only by the Rules and not by the Act, and (3) it is the
District Council, which is the body corporate in terms of Section 9
(1) of the Act and that body is entitled to vote and not its
members. There is also a serious contention on the non-
compliance to rule 72 of the Rules and more particularly, rule 82.
We shall first deal with the contention regarding the absence of
challenge to the rules.
6. W.P.(C) No.31914/08 was filed by the petitioner/
appellant for a declaration that the election to the Executive
WA NO.695 & W.P.(C) 8771/09 7
Committee to the District Sports Council has to be conducted
strictly in terms of Rule 123 of the Kerala Sports Rules. There
was also a prayer to the effect that the clarification regarding the
eligibility of all the members to participate in the election
proceedings is illegal. The third prayer was for a direction to the
Returning Officer to permit only the elected members to cast
their vote in the election. As we have already noted, the District
Sports Council is constituted in terms of Section 9 of the Act. To
the extent relevant, the provision reads as follows :-
9. “District Sports Council – (1) The
Government shall by notification, constitute a body to
be called “The District Sports Council” in every district
in the State to exercise the powers and perform the
functions conferred on, or assigned to, the District
Sports Council under this Act.
(2) Every District Sports Council, shall be a
body corporate by the name of the District for which it
is constituted, having perpetual succession and
common seal with power subject to the provisions of
this Act and the rules made thereunder, to acquire,
hold and dispose of movable and immovable
properties, to enter into contracts and to do all matters
proper and expedient for the purpose for which it is
constituted and shall by the said name sue and be
sued.”
Section 9(3) provides that every District Sports Council shall
WA NO.695 & W.P.(C) 8771/09 8
consist of Ex-officio Members, Elected Members and Nominated
Members. Sub Section (4) provides that there shall be a
President and Vice President for every District Sports Council
elected from among the members of that council as may be
prescribed in the Act. Section 11 provides for the constitution
and method of election to the Executive Committee of the District
Sports Council, which we have already extracted hereinabove.
The vehement contention advanced by the learned senior counsel
is that the District Sports Council being a body corporate in terms
of Section 9(2), can only vote or elect the six members. We are
afraid, the contention cannot be appreciated. The six members
to the Executive Committee of the District Sports Council are to
be elected from among its members. The expression ‘District
Sports Council’ in terms of the election to be thus conducted can
only be understood in terms of its constitution, consisting of Ex-
officio, Elected and Nominated Members. The scheme of the Act
itself would indicate only such an interpretation. In the case of
Kerala Sports Council, the apex forum, the President is nominated
by the Government and the Vice President is elected by the
WA NO.695 & W.P.(C) 8771/09 9
members of the Sports Council from among the elected
members. For the Standing Committee of the apex body, viz.,
the State Sports Council, five members are to be elected by the
members of the State Sports Council from among the elected
members. Though the learned senior counsel made an attempt
to contend that the right to elect also is to be restricted to the
elected members, the contention was not pressed in view of the
clear provision in the statute that right to vote is given to all the
members and the restriction is only in respect of right to be
voted. Therefore, it is not the body corporate which elects the
members, but the members of the body corporate which elect the
six members to the Executive Committee to the District Sports
Council. True, it is not stated in the provision that the election is
by the members of the District Sports Council; but going by the
scheme of the Act and method of election as prescribed under
the Act, the expression of the intention has to be read into the
provision. It is not as if the District Council exercising its vote in
another body. The Council is electing its own Executive
Committee. That exercise can only be by the members. That
WA NO.695 & W.P.(C) 8771/09 10
alone would serve a purposive and meaningful interpretation
facilitating the election.
7. Right to elect and right to be elected, wherever
required are distinctly provided under the Kerala Sports Act. As
noted above, the Council at the apex and other levels consist of
Ex-officio, Elected and Nominated members. Wherever the
legislature intended the right to be elected to be restricted to
apply only to the elected members, the same has been
specifically provided as in Sections 3(4), 6(h) and 9(11).
Therefore, on the only ground that right to be elected is restricted
to the class of the elected members, it cannot be understood that
the right to vote also is restricted to the elected members. The
legislature in its wisdom having provided for such a policy, it is
not proper for the court to interpret the provision in any other
manner.
8. It is true that there is no challenge to the rules as
such before the learned Single Judge. But in order to decide the
question raised before the learned Single Judge regarding the
interpretation of rule 123 of the Rules, necessarily the court has
WA NO.695 & W.P.(C) 8771/09 11
to interpret the scheme of the Act and the Rules. If the Act
provides for right to vote to all the members without any
distinction as to whether they are ex-officio, elected or
nominated, the rules cannot provide for a different procedure or
different approach restricting such right. It was in that context,
the learned Single Judge held that the election has to be
conducted as provided under the Act. It is now well settled that
in case there is a conflict between the parent Act and the
subordinate legislation i.e., the Rules, the provisions of the parent
act will hold good and govern the field. In ispat Industries Ltd.
v. Commissioner of Customs, Mumbai (2006) 12 S.C.C. 583),
the Supreme Court held that ….”if there is any conflict between
provisions of the Act and the provisions of the Rules, the former
will prevail…”. The Apex Court, referring to the Gunapradhan
axiom of the Mimansa Principles of Interpretation, the indigenous
system of interpretation, held at paragraph 32 as follows :-
“One of the Mimansa principles is the
Gunapradhan Axiom, and since we are utilising it in
this judgment we may describe it in some detail.
“Guna” means subordinate or accessory, while
“pradhan” means principal. The Gunapradhan
Axiom states :
WA NO.695 & W.P.(C) 8771/09 12
“If a word or sentence purporting to express a
subordinate idea clashes with the principal idea, the
former must be adjusted to the latter or must be
disregarded altogether”
This principle is also expressed by the popular
maxim known as “matsya nyaya” i.e. “the bigger
fish eats the smaller fish”.
There is also a reference by the apex court to the General Theory
of Law and State and in that connection, it was observed at
paragraph 27 as follows :-
“In this connection, it may be mentioned that
according to the theory of the eminent positivist jurist
Kelson (the pure theory of law) in every legal system there
is a hierarchy of laws, and whenever there is conflict
between a norm in a higher layer in this hierarchy and a
norm in a lower layer, the norm in the higher layer will
prevail ”
It is also an equally well settled principle that the stream cannot
rise above the source. Rules are made by way of subordinate
legislation. That power is derived from the parent act only. The
Act is the source and the subordinate legislation is only a stream.
9. The amendment brought to the Rules is only for the
purpose of removing the difficulty caused by the apparent
conflict. Rule 123 of the Rules as it originally stood, provided for
election to the Executive Committee of the District Council,
WA NO.695 & W.P.(C) 8771/09 13
enabling only the elected members to vote. But the said
provision being in conflict with Section 11 of the parent Act, the
rule making authority, in exercise of its power under Section 45
has rightly removed that conflict by the amendment brought into
force by notification dated 24.2.2009, with retrospective effect
from 17.7.2008.
10. The other contention is with regard to the
procedure for election as prescribed under Chapter IX of the
Rules starting with Rule 72. The Rule reads as follows :-
“72. Conduct of Election–The election of
office-bearers and the Standing Committee members
of the Kerala Sports Council as well as office-bearers
and Executive Committee members of the District
Sports Council, the Corporation Sports Council, the
Municipal Sports Council and the Village Sports Council
shall be conducted in the manner hereinafter
prescribed.”
It is hence contended that under Rule 77, an Electoral Roll has to
be prepared and maintained, the same has to be published as per
the time schedule prescribed under those rules. As per Rule 82,
the election has to be notified. Rule 82 reads as follows :-
“82. Notification of election–When any
vacancy occurs or is about to occur by efflux of time,
among the members of the Council which has to be filledWA NO.695 & W.P.(C) 8771/09 14
up by election, or if an election, has to be conducted for
the constitution or reconstitution of the Council
according to the provisions of the Act and these rules,
the Returning Officer shall notify the fact in the offices of
all the various Councils under the Act and also
simultaneously cause the notification to be published in
two news papers approved by the State Sports Council
for the purpose. The notification of election shall contain
the programme of the election from the date of
notification of the election giving the following
particulars namely :
(i) Date of notification;
(ii) Last date for receipt of nominations;
(iii) Date of scrutiny of nomination and publication of list
of candidates validly nominated;
(iv) Last date and hour for withdrawal of candidature;
(v) Date of publication of the final list of candidates;
(vi) Date of issue of ballot paper;
(vii) Date and hour fixed for the poll;
(viii) Date and hour of scrutiny and counting of votes.”
Though it is contended that the election notification has to be
published in the gazette as required under Section 2(x) of the Act,
the contention cannot be appreciated. The rule specifically
provides for a method of notification. In the absence of a
prescribed method of notification, the contention could have been
appreciated. The rule making authority has provided that the
election notification has to be published in the offices of various
Councils and also simultaneously published in two news papers.
WA NO.695 & W.P.(C) 8771/09 15
Once the rule provides for a particular mode of notification, that
method alone need be followed; there is no need to publish in the
gazette. However, in the instant case, admittedly the election
notification has not been published in the news papers. But the
question is whether Rule 82 applies at all in the case of election
to the posts of President and Vice President to the District Sports
Council and to the Executive Committee. As pointed out by the
learned Standing Counsel for the Sports Council, the counsel
appearing for the respondents and also the learned Government
Pleader, election to the President and Vice President of District
Council is specifically dealt with under Rule 109 under Chapter IX.
The procedure to that election has been specifically noted under
Rules 110 to 117 of the Rules. Election to the Standing
Committee and Executive Committee is provided under Rule 118
and the procedure is prescribed under Rules 119 to 123. Once
specific modes are prescribed under the Rules providing for the
manner and method of conduct of election to the posts of
President and Vice President of the District Council and Executive
Committee or the Standing Committee, as the case may be, Rule
WA NO.695 & W.P.(C) 8771/09 16
82 has no application. There is no violation of Rule 72 in the
process since what is provided under Section 72 is that election
to the Executive Committee of the District Sports Council and the
office-bearers to the various offices are to be conducted in the
manner-“hereinafter prescribed”. Rules 109 to 123 are also rules
prescribed under Chapter IX, in terms of Rule 72. When there is a
specific rule providing for the procedure to be followed in the
conduct of election to the various offices, that would necessarily
exclude the general rule with regard to the conduct of election.
Such an interpretation is also justified on the well settled principle
of interpretation that ‘the special excludes the general’. We may
also in this context significantly note that Rules 73 to 108
provide for election of elected members to the State Sports
Council and other bodies and only Rules 109 onwards provide for
the procedure to be followed in the matter of election to the
Executive Committee, Standing Committee and other office
bearers of the election. In those cases, it is not necessary to go
for publication in the news papers since the service of notice has
been prescribed specifically under Rules 109 to 123. This is for
WA NO.695 & W.P.(C) 8771/09 17
the reason that in such cases, the constituency is small and
identifiable and the service of notice to them is possible by
personal service. In the instant case, it is brought to our notice
that the Electoral College consists only of 60 members. It is also
submitted by the learned Standing Counsel that to those
members, notices have been served by registered post. Learned
senior counsel submits that only 53 have participated in the
election and the rest have not turned out for the reason that they
have not been served with the notice. It is pointed out that those
members also have been served the election notification. Be that
as it may, there is no complaint from any member that he could
not participate in the election for want of intimation.
11. Though the learned senior counsel invited
reference to various decisions reported in (1) State Trading
Corporation of India Ltd. v. The Commercial Tax Officer
and others (AIR 1963 S.C.1811), (2) State of Punjab v.
Gurdev Singh (AIR 1991 S.C.2219), (3) Pune Municipal
Corporation v. State of Maharashtra [(2007) 5 S.C.C.211], we
do not think that in the nature of the view we have already taken,
WA NO.695 & W.P.(C) 8771/09 18
it is necessary to advert to those decisions, since we have no
quarrel with those well settled propositions in the decisions. Only
thing is that those principles have no application to the fact
situation and legal position in the present case. The emerging
position both on facts and on law is that the election to the posts
of President and Vice President of the District Sports Council has
to be conducted in terms of Section 11 of the Act read with Rules
109 to 123. Thus all the members, whether they be ex-officio,
elected or nominated, are entitled to exercise their right to vote.
But right to be voted in the case of members of the Executive
Committee is to be restricted to the class of elected members in
the District Council. In that view of the matter, we find that
election has been conducted as per Ext.P4 in W.P.(C) 8771/09, in
terms of the interpretation given in this judgment and hence W.P.
(C) 8771/09 is dismissed. In view of the factual and legal position
explained by us above, W.A.695/09 is dismissed.
SD/-
S.R.BANNURMATH,
Chief Justice.
SD/-
KURIAN JOSEPH,
Judge.
tgs
S.R.BANNURMATH, C. J. &
KURIAN JOSEPH, J.
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W.P.(C) No.8771/09 & W.A. No.695/09
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J U D G M E N T
Dated 5th June, 2009.