Lack Of Jurisdiction Of A Court May Be A Ground To Seek Dismissal/Return Of Proceedings, Rather Than Seeking Transfer: SC

 

 

 

 

 

It is noteworthy and quite significant that the Supreme Court just recently on November 6, 2020 in a latest, landmark and laudable judgment titled Indian Olympics Association vs. Kerala Olympic Association in Transfer Petition (Civil) No. 975 of 2020 has in exercise of its civil original jurisdiction dismissed Indian Olympics Association’s (IOA) plea seeking transfer of a writ petition before Kerala High Court to Delhi High Court. The Kerala Olympic Association had filed a writ petition before the Kerala High Court challenging the proceedings initiated by the Ethics Commission of the IOA pertaining to the election held last year. Before the Apex Court, the IOA contended that any proceedings against it, as per own bylaws, could be filed only in a court within the jurisdiction of the Delhi High Court. While dismissing the transfer petition, the Apex Court said that IOA can raise the issue of jurisdiction before the Kerala High Court along with all other contentions on merits.

To start with, the ball is set rolling in para 1 of this notable judgment authored by Justice V Ramasubramanian wherein it is observed that, “The Indian Olympic Association, which is registered as a Society under the Societies Registration Act and having its Registered Office in New Delhi, has come up with this petition seeking transfer of a writ petition in W.P. (C) No. 2938 of 2020 filed by Respondent Nos. 1-3 herein on the file of the High Court of Kerala at Ernakulam.”

For the sake of clarity, it is then made known in para 3 that, “While the Indian Olympic Association, which is the petitioner herein is a Society registered under the Societies Registration Act, 1860, The Kerala Olympic Association which is the first respondent herein, is a Society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. But the first respondent is affiliated to the petitioner Association.”

To say the least, it is then mentioned in para 4 that, “It appears that the election of office bearers to the Kerala Olympic Association (1st respondent herein), was held on 14.01.2019. The said election was conducted under the supervision of the High Court of Kerala in view of a couple of writ petitions filed herein.”

To put it succinctly, it is then stated in para 5 that, “On a complaint lodged by the 6th respondent herein, the Ethics Commission of the petitioner herein issued a notice dated 23.12.2019 to the 1st respondent proposing to conduct an inquiry with regard to the election held on 14.01.2019. This was purportedly on the basis of a memo filed in a civil suit.”

To be sure, it is then mentioned in para 6 that, “Therefore, challenging the proceedings initiated by the Ethics Commission of the petitioner herein, the 1st respondent filed a writ petition in W.P.(C)No. 2938 of 2020 on the file of the High Court of Kerala at Ernakulam. The main contention of the 1st respondent in its writ petition was that the validity of the election of the office bearers to the 1st respondent Society, held under the supervision of the Kerala High Court, cannot be gone into by the Ethics Commission of the petitioner herein.”

Furthermore, it is then envisaged in para 7 that, “Contending that as per its own bylaws, which are binding upon the 1st respondent also, any proceeding against the petitioner Association could be filed only in a court within the jurisdiction of the Delhi High Court and that the said position has been made clear by the decision of this Court in K Murugan vs. Fencing Association of India, Jabalpur and Others (1991) 2 SCC 412, the petitioner has come up with the above petition seeking transfer of the writ petition from the High Court of Kerala to the High Court of Delhi.”

Be it noted, it is then disclosed in para 8 that, “Mr. D.N. Goburdhan, learned counsel appearing for the petitioner invited my attention to Clauses 22.6, 28.8 and 31.3 of the Rules and Regulations of the Indian Olympic Association. Clause 22.6 reads as follows:

“22.6 All matters in relation to breach of ethics shall be referred to the Ethics Commission of the IOA as per the regulations of the Ethics Commission.”

Clause 28.8 reads as follows:

“28.8 The affiliated State Olympic Associations will abide by the Constitution of IOA.”

Clause 32.3 reads as follows:

“31.3 The Association may sue or be sued in the name of the Secretary General, IOA. A law suit can only be filed at New Delhi, the headquarters of I.O.A.”

Needless to say, it is then noted in para 9 that, “On the basis of the above Clauses, it is contended by Mr. Goburdhan, learned counsel for the petitioner that any legal proceeding against the petitioner can be filed only at New Delhi and that all the affiliated State Olympic Associations are bound to abide by the Constitution of the Indian Olympic Association, prescribing such a stipulation.”

It is also worth noting that it is then stated in para 10 that, “The learned counsel for the petitioner also invited my attention to the decision of this Court in K. Murugan (supra), wherein this Court issued a mandate that in the interest of the appropriate functioning of the Society, the litigation outside the headquarters of the Society should not be permitted and that all litigation should be only within the jurisdiction of the Delhi High Court.”

It is also worth paying attention here that para 11 then enunciates that, “The learned counsel for the petitioner also relied upon the decision of this Court in Arvee Industries and Others vs. Ratan Lal Sharma (1977) 4 SCC 363, wherein this Court held that if a particular suit is ex facie instituted deliberately in a wrong court, it will not have any bearing on the question of transfer. The learned counsel next relied upon the decision in M.P. Triathlon Association Through Its Secretary and Another vs. Indian Triathlon Federation And Others (1996) 11 SCC 593, wherein this Court directed the Indian Olympic Association to follow a particular Rule which requires the members to voluntarily surrender their right of seeking redressal in any court of law.”

To put things in perspective, after carefully considering the submissions of the learned counsel for the petitioner as stated in para 12, it is then further stated in para 13 that, “The primary contention of the petitioner is that in view of the Rules and Regulations of the petitioner Association and the law laid down by this Court in K. Murugan (supra), the Kerala High Court did not have jurisdiction to entertain the Writ Petition. But the said contention appears to be flawed, at least prima facie, in the light of what had transpired in the past before the Kerala High Court, to which my attention was drawn by Mr. V Giri, learned senior counsel appearing for the 1st respondent. However I refrain from deciding the question of jurisdiction here, as I am now concerned only with the question of transfer.”

Most remarkably, it is then observed in para 14 that, “Suffice it to say that if a court has no jurisdiction to try a lis, it is good for the party raising the issue of jurisdiction to seek the dismissal/return of the proceedings, rather than seeking a transfer. I fail to understand the anxiety of the petitioner to make an irregular proceeding initiated by the first respondent, regular. The decision in Arvee Industries (supra) is no answer to this contention, since this Court did not say in that case that an invalid proceeding, may be validated, at the instance of the opposite party by transferring the same to a court having jurisdiction. Paragraph 13 of the decision in Arvee Industries (supra) is of significance. It reads as follows:

“13. It cannot be said that if a particular suit, is ex facie instituted deliberately in a wrong court, it will not have any bearing whatsoever, on the question of transfer. The court may bear it in mind as an additional factor if there is, prima facie, on the pleadings sufficient justification for such a plea. It is, however, not necessary for us to express finally on the question of jurisdiction in this case. That on the pleadings there is a strong possibility of the High Court accepting the petitioners’ objection to territorial jurisdiction is also a relevant factor in the background of this case.””

As a corollary, it is then stated in para 15 that, “Therefore, the decision in Arvees Industries will not go to the rescue of the petitioner. Similarly, the order in M.P. Triathlon Association (supra) is of no assistance to the petitioner, as no proposition of law is laid down therein.

What’s more, it is then also candidly admitted in para 16 that, “There is no dispute about the fact that the 1st respondent is also a Society registered independently under a different State enactment in Kerala. The present dispute pending on the file of the High Court of Kerala, relates to the election of office bearers to the 1st respondent Society and not the election of office bearers of the petitioner Association. Therefore, the 1st respondent can validly contend that any attempt by the petitioner to interfere with the internal affairs of the 1st respondent is amenable to the jurisdiction of the Kerala High Court.”

In addition, it is also candidly conceded in para 17 that, “As a matter of fact, there were proceedings before the Kerala High Court which resulted in the election being held on 14.01.2019 under the supervision of the Kerala High Court. At that time the petitioner did not think to come up with a Transfer petition. Therefore, I see no justification for ordering the transfer.”

For the sake of clarification, it is then clarified in para 18 that, “I have not pronounced any final opinion on the question of jurisdiction, though there are sufficient materials to come to a conclusion one way or the other. This is just to enable the petitioner to raise the issue of jurisdiction before the Kerala High Court and invite a finding thereon.”

Finally and fairly, it is then held in the last para 19 that, “Therefore, in fine, the Transfer Petitioner is dismissed. It will be open to the petitioner to raise the issue of jurisdiction before the Kerala High Court, along with all other contentions on merits.”

In conclusion, Justice V Ramasubramanian of the Apex Court in this notable case has very rightly observed in para 14 that, “Suffice it to say that if a court has no jurisdiction to try a lis, it is good for the party raising the issue of jurisdiction to seek the dismissal/return of the proceedings, rather than seeking a transfer.” All the litigants must always keep this in mind while approaching the court in similar such cases! There can certainly be just no denying or disputing it!

Sanjeev Sirohi

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