H. R. Sharma v. Delhi and District Cricket Association & Ors

JUDGMENT N, J. 023 (under Section 151 CPC seeking to DELHI ed on:23.11.2023 .....Petitioner m, Sr. Adv., Mr. Gautam Dutta, Ms. nd Mr. Aditya & ORS. Respondent r. Rajiv Nayar, Sr. r Rao, Sr. Advs. Dogra, Mr. T. abh Chadha, Mr. Ramanpreet Kaur, hakrvarty, Mr. Ms. Anum q Srivastava, Mr. Tanvi, Advs. for r. Adv. with Mr. Nidhi Rana and s. for R-3. CGSC with Ms Madhav Bajaj, R-16. o place additional

¶1As notice has stands allowed.

¶2The petitioner District Cricket Asso no. 1") has filed the p "A. Issue a w order or direc

21.11.2022 of B. Issue a wr order or direc Ombudsman appointment in and also in ter of India repo Cricket Assoc cannot be exte C. Issue a wr order or dire Notice dated 0 of the Gener

27.12.2022; D. Issue a wr order or direc is bound to h Article 17(3) r on or before 3 term of 1 year indirectly and term beyond th E. Issue a wr order or direc not been issued in the present writ petitio r being a life member of the Sports Bod ociation (hereinafter referred to as "DDCA present writ petition seeking the followin writ of Certiorari or any other appropr ction quashing and setting aside the ord f the Ld. Ombudsman; rit of Mandamus or any other appropr ction, thereby declaring that the tenure o is a fixed tenure of 1 year from the n terms of Article 41 of the Articles of As rms of the judgment of the Hon'ble Suprem orted in (2016)8 SCC 535 entitled, "B ciation of Bihar" and further that the s ended; rit of Certiorari or any other appropr ection setting aside Agenda No.4 and

04.12.2022 issued in respect of holding of ral Body of DDCA proposed to be rit of Mandamus or any other appropr ction, thereby directing and declaring tha hold elections for retiring Directors in read with Article 10(2) of Articles of As

30.09.2022 every year so as to ensure t r of any Director is not extended either d d also does not allow the directors to ext hree years from the date of their first elec rit of Mandamus or any other appropr ction, thereby directing inclusion of an Ag on, the application dy of the Delhi & A" or "respondent ng reliefs: riate writ der dated riate writ of the Ld. e date of ssociation me Court BCCI Vs. said term riate writ 5 of the f meeting held on riate writ at DDCA terms of ssociation that fixed directly or tend their ction; riate writ genda for holding electio Directors in te also for appo respect of the be a retired ju Justice of t Commissioner F. Issue a wr order or dir Government n in terms of the G. Issue a wr order or direc CEO and CFO Court."

¶3The facts as p incorporated under t office bearers. The D Cricket in India (BC Cricket in the territor bearers of the DDCA

29.10.2024. The resp

¶4It is pleaded b 1/3rd of the ordinary General Meeting thr the same date i.e. 29 "(3) One thir nominee of the ons through secret ballot in respect of the erms of Article 17 of Articles of Associa ointing an Election Officer and an Obs said election, which election Officer m udge of Hon'ble Supreme Court or a form this Hon'ble Court or a former r of India; rit of Mandamus or any other appropr rection, thereby directing and declar nominees have retired with effect from 31 eir letter dated 01.09.2020; rit of Mandamus or any other appropr ction, thereby directing the DDCA to a O in terms of the judgment of the Hon'ble pleaded by the petitioner are that the DD the Companies Act, 1956 and responden DDCA is an affiliate state unit of the Boa CCI) and has the exclusive authority to ry of NCT of Delhi. Respondent nos. 2-6 A and have a fixed term of three years pondents no. 7 to 13 are ordinary director by the petitioner that in terms of Article directors shall retire by rotation each yea rough a draw of lots as all the directors w .10.2021. Article 17(3) of the AoA reads rd of all Directors, except the office e Chief Controller of Accounts of the Go e retiring ation and server in may either mer Chief Election riate writ ring that

1.08.2022 riate writ appoint a Supreme DCA is a company nt nos. 2-18 are its ard for Control for o run the game of are the five office which expires on rs of the DDCA. 17(3) of the AoA, ar at every Annual were appointed on as under:- bearers, vernment of National C the Governme Annual Gener every Annual longest in offi persons who b to retire shal among themse Meeting at wh may fill up the is eligible for other person th

¶5Respondent n departments of the C Central Government renamed as Shri Aru to appoint its nomin Sports and Sports respondent no. 1, wh

¶6In order to se (seven) elected direc Articles of Associa

27.06.2022 before th prayers made in the s "(A) Pass a Directors/Cou currently in th on 28th Oct 20 draw of lotto b resultantvacan latestbefore 30 Capital Territory of Delhi and three nom ent of India, shall retire by rotation ral Meeting. The Directors to retire by ro General Meeting shall be those who h fice since their last appointment, but as became directors on the same day, those ll, in default of and subject to any ag elves, be determined by lot. At the Annual hich a Director retires as aforesaid, the e vacancy by appointing the retiring dire such appointment as per these Articles hereto " os. 14 to respondent No. 16 are nomin Central Government as the DDCA was al t for the construction of Feroz Shah Ko un Jaitely Stadium). The Central Governm nees from the Ministry of Housing Af Authority of India to the Board of ho have full voting rights. eek a declaration to the effect that 4 D ctors shall retire by rotation in terms of A ation (AoA), the petitioner had filed a he Ld. Ombudsman-cum-Ethics officer o said complaint read as under: an order, declaring and directing uncillors out of 7 Elected Directors/ Co he Apex Council of the DDCA who wer 021 shall necessarily retire by rotation t be conducted by the Hon'ble Ombudsman ncy shall be filled in the ensuing AGM to 0 September 2022; And minees of at every otation at have been s between e who are greement l General company ector if he s or some nees from various llotted land by the otla Stadium (now ment has the power ffairs, Ministry of Directors of the Directors out of 7 Article 17(3) of the a complaint dated of the DDCA. The that ouncillors re elected through a n and the o be held

(B) Pass an Respondent (D exercise to we "Statutory Reg 15th August Newspapers o with the Hon latest verified DDCA."

¶7The grievance passed in another co Ld. Ombudsman-cu complaint pending b of time. The petition and an identical orde the impugned order Bhardwaj (supra) rea "29. For the a the Ombudsm conclusion of held within 3 dated 12.09.2 Companies, M under Section Body at the An of fresh appoi Ethics Officer.

¶30According Complainant sanctity of the proceedings w n order, direction specifically direc DDCA) to carry out urgent and tim eed out the dead and defaulting members gister of Members of the Company" late 2022 by publishing Notice in two of repute and thereafter file complianc n'ble Ombudsman and permanently up d list of members on the official We e of the petitioner is that vide order omplaint titled as Sanjay Bhardwaj v. Sh um-Ethics officer has decided not to before it, because of the expiry of her ten ner apprehends that the fate of his petiti er will be passed in his case also. The op r dated 21.11.2022 passed in the com ads as under: above reasons, I am of the view that the man cum Ethics Officer ought to continu the next Annual General Meeting, which (three) months from 30.09.2021 as per th 2022 passed by the Office of Regi Ministry of Corporate Affairs, Governmen 96(1) of the Companies Act, 2013. The nnual General Meeting, will deal with the intment / re-appointment of the Ombudsm . gly, the preliminary objection raised is rejected., However, in order to pres e office of the Ombudsman cum Ethics O will be taken up by the incumbent Ombuds cting the me bound from the est before National ce report pload the Website of dated 21.11.2022 hashi Khanna, the o adjudicate any nure due to efflux on will be similar perative portion of mplaint of Sanjay e term of ue till the h must be the Order istrar of t of India e General e Agenda man cum d by the serve the Officer, no sman, till a decision is t meeting. It may also b Ethics Officer extended per appointment o Meeting."

¶8The petitioner by the DDCA/respon was scheduled to be counsel for the petit agenda no. 4 & 5 of t "Agenda - 4 To take note o the Vacancy b for such appo Company To consider modification(s Resolution: 4(a) "Resolved Articles of Ass Director retiri reappointed a the Company) 4(b) "Resolved Articles of Ass Director retir the Member of taken by the Annual General Meeting in be noted that the incumbent Ombudsm r will not take any remuneration for the a riod till a decision is taken regard of the Ombudsman at the next Annual r also impugns Notice & Agenda dated 0 ndent no. 1 calling for an Annual Gener e held on 27.12.2022. As clarified by t tioner, the grievance of the petitioner is the said notice, which read as under: of the directors retiring by rotation and by appointing the retiring directors being ointment as per the Articles of Associatio and if thought fit to pass with or s) the following resolution as an d that pursuant to provisions of Article sociation of the Company, Mr. Ashok Sha ing by rotation be and is hereby as the Member of the Apex Council (Di ". d that pursuant to provisions of Article sociation of the Company, Mr. Harish Si ing by rotation be and is hereby reappo f the Apex Council (Director of the Comp n the next man-cum-aforesaid ding the General

04.12.2022 issued ral Meeting which the learned senior s confined only to to fill up g eligible on of the r without Ordinary 17 of the arma, the irector of 17 of the ingla, the ointed as pany)." 4(c) "Resolved Articles of Ass rotation be an Apex Council Agenda-5 (to not carried thr To hold the ele To consider modification(s Resolution: "Resolved tha Article 34 of Electoral Offic hold the electi 27TH January

¶9According to commissions were c was pending conside General Meeting wa respect of the condu vide CM Appl. No. 8 opening part of this j

¶10In the meanw dated 22.02.2023 ad ground that the prese dated 22.02.2023 rea "In view o Complaina Writ Petit d that pursuant to provisions of Article sociation of the Company, the Director re nd is hereby reappointed as the Memb (Director of the Company)." be considered if Agenda No. 4(a), 4(b) o rough ections to the vacant post of directors. and if thought fit to pass with or s) the following resolution as an O at pursuant to provisions of Article 17 r f the Articles of Association of the C cer appointed by the Chairperson is req ions to the Vacant post of Directors on o y 2023."" the petitioner, the afore-noted acts causing prejudice to him. However, when eration on the question of its entertaina as held on 27.12.2022. The grievances o uct of the Annual General Meeting were 8079/2023 dated 16.02.2023 which has be judgment. while, the Ld. Ombudsman-cum-Ethics o djourned the complaint of the petitione ent writ petition is pending. The relevan ads as under:- of the statement made by the Counsel ant that there are some overlapping issue tion. And to avoid parallel proceeding 17 of the etiring by er of the or 4(c) is r without Ordinary read with Company, quested to or before of omission and n the writ petition ability, the Annual of the petitioner in brought on record een allowed in the officer vide order er sine die on the nt part of the order l for the es in the gs, it is deemed a adjourned Hon'ble D SUBMISSIONS ON

¶11Arguments we objection with respec by the respondents at

¶12Mr. P. Chidam that a writ petition un this Court, in as muc reproduced above fo petitioner has challe Officer and no trib Ombudsman-cum-Et

¶13He submits tha the decision of the binding and since no of Association, the r before this Court b Constitution of India Article 42(3) of the as under: "42. GRIE 3) The d binding a pronounc appropriate that the present comp sine die, subject to the orders passed Delhi High Court" N BEHALF OF THE PETITIONER ere addressed by the parties confined to ct to the entertainability of the present w t the outset. mbaram, learned senior counsel for the p nder Article 226 of the Constitution of In ch as prayers A & B of the Writ petition or ready reference, can only be granted by enged the order of the learned Ombud bunal has the power to set aside the thics Officer. at under the Articles of Association of the e learned Ombudsman-cum-Ethics Offi o appeal mechanism has been provided u remedy of the petitioner against the imp by way of a writ petition under Ar a. To buttress his contention, Mr. Chidam Articles of Association (AoA) of the DD EVANCE REDRESSAL decision of the Ombudsman shall be fi and shall come into force forthwith o ced and delivered" laint is d by the o the preliminary writ petition, raised petitioner submits ndia will lie before n, which has been y this Court as the dsman-cum-Ethics order of learned e respondent no.1, ficer is final and under the Articles mpugned order lies rticle 226 of the mbaram referred to DCA, which reads final and on being

¶14Referring to Chidambaram submi the NCLT in case th which is prejudicial members or to the i right to approach th Section 244(1)(b) of NCLT unless the pet of members of the re

¶15Further, refer Chidambaram submi Court to entertain a Tribunal or the Appe Companies Act, 201 Court while exercisi Constitution of India

¶16Mr. Chidamba cum-Ethics Officer 'Lodha Committee' w of Control for Cricke

¶535He submits tha tasked with providin between the DDCA the learned senior ombudsman has suo Section of the Companies its that a member of a company can file a he affairs of the company are being condu to the public interest or to him or to any interests of the company. He, however, he tribunal is not absolute and has bee f the Act, inasmuch as, the petitioner can tition is supported by not less than 1/5th o espondent no.1/DDCA. rring to Section of the Comp its that the said Section bars the jurisdi a suit or proceeding in respect of any ellate Tribunal is empowered to determin 3, but this Court would not fall within th ing its extraordinary jurisdiction under A a. aram, submits that the office of the learn was created on the basis of the recomm which came to be accepted by the Suprem et v. Cricket Association of Bihar and O at the learned Ombudsman-cum-Ethics ng institutional resolution to resolve di and its members. Referring to Article 4 counsel for the petitioner submits moto powers to adjudicate disputes inclu Act, 2013, Mr. a complaint before ucted in a manner y other member or adds that such a n qualified under nnot approach the of the total number panies Act, Mr. iction of the Civil matter which the ne by or under the he ambit of a Civil Article 226 of the ned Ombudsman-mendations of the me Court in Board rs., (2016) 8 SCC Officer has been sputes/differences 42(1) of the AoA, that the learned uding (a) member and association dispu misconduct or breach

¶17Mr. Chidamb Officer was appointe the learned Ombuds submits that the p Ombudsman-cum-Et

13.09.2022, much b cum-Ethics Officer Ombudsman-cum-Et petitioner.

¶18He submits ombudsman has allo grave prejudice to th to paragraph 37(b) o for Cricket (Supra), the learned Ombuds within 30 (thirty) d present case, the com of 4 months.

¶19Mr. Chidamba taken in the Annual those submissions ne itself only to the pr entertainability of the utes, (b) detriment caused by member or h by others, (d) by the public against the D aram, submits that the learned Ombud ed on 25.10.2021 for a term of one year sman-cum-Ethics Officer had expired on petitioner had filed his complaint be thics Officer on 27.06.2022 and orders efore the expiry of the term of the learn r, therefore, there was ample time thics Officer to pass an order on the that the hands-off approach adopted owed the respondent no. 1 to act in a man he petitioner as well as the public at large of the decision of the Supreme Court in the learned senior counsel for the petiti sman-cum-Ethics Officer is bound to re days from the receipt of the complaint mplaint of the petitioner remained unreso aram also made submissions impugning l General Meeting held on 27.12.2022, eed not be referred to, as this Court for reliminary objection raised by the respo e present petition. administrator, (c) DDCA. dsman-cum-Ethics and the tenure of n 24.10.2022. He efore the learned were reserved on ned Ombudsman-for the learned complaint of the by the learned nner which causes . Further referring Board of Control ioner submits that esolve complaints , whereas, in the olved for a period various decisions but at this stage, now is confining ondents as to the SUBMISSIONS ON

¶20Mr. Rajiv Nay behalf of the DDCA the impugned order petitioner is neither a by the order dated 2 the impugned order Shashi Khanna & O contends that neithe Ombudsman-cum-Et petition.

¶21Next, Mr. Nay contend that the leg NCLT to adjudicate Act, 2013 and in suc ordinary jurisdiction

¶22Inviting the a petition, Mr. Nayar mismanagement of th by the directors of t relegated to the NC accordance with Sect

¶23He further su under Section 242 of its jurisdiction unde Section 242(2) of t N BEHALF OF THE RESPONDENTS yar, learned senior counsel appearing on a submits that the petitioner has no locus s passed by the Ld. Ombudsman-cum-Eth a party to the said proceedings nor he is

21.11.2022. Elaborating on his argumen has been passed in the case entitled "San Ors." and not in the complaint filed by th er the parties to the aforesaid proceed thics officer have been arrayed as a part yar referred to Section 430 of the Compa gislature has specifically conferred juris any matter which falls within the ambit ch a case, this Court may refrain from ex under Article 226 of the Constitution. attention of the Court to the prayers m submits that the petitioner is in essence he respondent no.1 and has made compla the company for which purpose the pet CLT, where he may seek redressal of tions 241 and 242 of the Companies Act, ubmits that the NCLT has been confer f the Act and thus, this Court may refrai er Article 226 of the Constitution of In the Act, Mr. Nayar submits that the advance notice on standi to challenge hics Officer as the a party aggrieved t, he submits that njay Bhardwaj vs. he petitioner. He dings nor the Ld. ties to the present anies Act, 2013 to sdiction upon the of the Companies xercising its extra-made in the writ aggrieved by the aints of oppression titioner should be his grievances in 2013. rred wide powers in from exercising ndia. Referring to NCLT has been conferred jurisdictio grievances articulate the NCLT.

¶24It was further Article 226 of the C exercised in a rout warrant. He conten seeking to espouse a entertain the present

¶25Reliance is pla Bench of this Court Kumar Aggarwal, 20 that the National Co special powers to re further contends tha appointment of the management of the a present writ petition

¶26Mr. Nayar has to approach the NC proviso to sub-sectio application being requirements/perquis Chidambaram are po NCLT. on by the legislature to make an order ed by the petitioner as the same falls with urged by Mr. Nayar that the power to Constitution is an extraordinary power a tine manner but only when exception nds that the petitioner by way of the p a private cause in his favor, therefore, th petition. aced by Mr. Nayar on a judgment passed titled as Delhi & District Cricket Asso 020 SCC OnLine Del 1223 to contend th ompany Law Tribunal (NCLT) has bee edress grievances relating to the affairs o at the Co-ordinate Bench has also held Ld. Ombudsman would form part of affairs of the company and accordingly, may not be entertained. s also repelled petitioner's contention that CLT to seek redressal of his grievances. on (1) of Section 244 to contend that t filed by the petitioner, may wai sites under Section 244, which ac osing as an impediment for the petitione to redress all the hin the purview of issue writs under and should not be nal circumstances present petition is his Court may not d by a Co-ordinate ociation v. Sudhir his Court has held en conferred with of a company. He that the issue of the conduct and he urged that the t he is not eligible . He refers to the the NCLT, on an ive off all the ccording to Mr. er to approach the

¶27Mr. Rajshekh respondent no. 2, ha Additionally, he sub held that the grievan the learned Ombudsm been so held, by ex alleged hands-off a Ombudsman will als

¶28Mr. Rao has a Kumar Shivhare v. SCC 772, to contend redressal of a grievan be entertained ignori

¶31Mr. Rao has f this Court in Shriraj India and Anr., 202 efficacious remedy jurisdiction under A and/or extraordinary

¶32Mr. Rao furth does not contain an available to the petiti

¶33In rejoinder M petitioner and broad Chidambaram, learne har Rao, the learned senior counsel a as supported the submissions made by mits that in Sudhir Kumar Aggarwal (s nce of an individual with respect to the man falls within the purview of the NCL tension, any grievance of the petitioner approach which is stated to be adopted so fall within the ambit of the NCLT. also relied upon the decision of the Supr Assistant Director, Directorate of Enfo d that when a statutory forum has been c nce, especially in a fiscal statute, a writ p ing the statutory dispensation. further relied upon the judgment of a Co-j Investment and Fiinance Limited and 21 SCC OnLine Del 4361, to contend th exists, this Court should not exercise Article 226 of the Constitution unless t circumstances. her submits that the writ petition as filed ny averment that there is no alternate ef ioner. Mr. Ankur Chawla has made submissions dly canvassed and reiterated the argume ed senior counsel. appearing for the Mr. Rajiv Nayar. upra), it has been "appointment" of LT and once it has r in respect of the d by the learned reme Court in Raj orcement,(2010) 4 created by law for petition should not -ordinate Bench of d Ors. v. Union of hat if an alternate its extraordinary there are extreme d by the petitioner fficacious remedy s on behalf of the ents made by Mr.

¶34To be noted th an averment to the efficacious remedy additional affidavit petitioner does not ha

¶35I have heard th the relevant record.

¶36At this stage, t Court is whether t available to the peti entertaining the prese ANALYSIS AND FI

¶37Before procee to briefly recapitula regard to the exerci India especially wh

¶38In United Ban Hon'ble Supreme C Article 226 of the C that before availing remedies available decision reads as un "43. Unfortuna that the High under Article available to th greater rigour other types of hat after the procedural anomaly that the w e effect that the petitioner does not h was pointed out by Mr. Rao, the petiti dated 27.04.2023 making a formal a ave an alternate efficacious remedy. he learned senior counsel for the parties the short question which arises for the con there is an alternate and efficacious itioner, in view of which, this Court sh ent Writ Petition. INDINGS ding to answer the question at hand, prof ate the law as laid down by the Hon'ble ise of jurisdiction under Article 226 of th hen an alternate and efficacious statutory r nk of India v. Satyawati Tondon, (2010 Court held that though the powers of the Constitution are unfettered still the High g remedy under Article 226, a person e under the relevant statute. The rele nder:- ately, the High Court overlooked the se h Court will ordinarily not entertain a 226 of the Constitution if an effective r he aggrieved person and that this rule app r in matters involving recovery of taxes, c f public money and the dues of banks a writ petition lacks have an alternate ioner has filed an averment that the and have perused nsideration of this statutory remedy hould refrain from fitable would it be Supreme Court in he Constitution of remedy exists. 0) 8 SCC 110, the High Court under Court must insist must exhaust the evant part of the ettled law a petition remedy is plies with cess, fees, and other financial inst petitions invol the public due legislations en recovery of su they not only c the dues but a for redressal Therefore, in before availin a person mu relevant statut

¶44While expr the powers co of the Const including in a orders or wri enforcement o any other pu limitation on cannot be ob evolved by th keep in view w Constitution."

¶39Likewise, in S 85, the Supreme C statutory forum is c ought not to be en cases falling within part of the decision itutions. In our view, while dealing lving challenge to the action taken for re es, etc. the High Court must keep in mind nacted by Parliament and State Legisla uch dues are a code unto themselves inas contain comprehensive procedure for rec also envisage constitution of quasi-judici of the grievance of any aggrieved all such cases, the High Court must in ng remedy under Article 226 of the Con ust exhaust the remedies available un te. ressing the aforesaid view, we are consc onferred upon the High Court under Ar titution to issue to any person or a appropriate cases, any Government, di its including the five prerogative writs of any of the rights conferred by Part I urpose are very wide and there is no exercise of that power but, at the same blivious of the rules of self-imposed is Court, which every High Court is b while exercising power under Article 22 " (emphasis s State Bank of Travancore v. Mathew K. Court held that when a statutory remedy created by law for redressal of grievanc ntertained ignoring the statutory dispen n the well-defined exceptions carved ther reads thus: with the covery of d that the atures for smuch as covery of ial bodies d person. nsist that nstitution, nder the cious that rticle 226 authority, irections, s for the III or for o express time, we restraint bound to 26 of the supplied) C., (2018) 3 SCC y is available or a es, a writ petition nsation, except in rein. The relevant "5. We have parties. Norm Article 136 of interim order Court, except injustice or ab case, the facts under Article judiciously in law. The norm of the Consti statutory reme the well-define Agarwal [CIT as follows: (SC "15. Thus recognised remedy i.e. accordance question, o judicial p provisions been passe justice, the case [Than 1419] , Tita Co. Ltd. v.

(Tax) 131] Court will the Consti available t which the contains a holds the created by should no dispensatio considered the submissions on behal mally this Court in exercise of jurisdictio of the Constitution is loath to interfere passed in a pending proceeding before t in special circumstances, to prevent buse of the process of the court. In the s are not in dispute. The discretionary jur 226 is not absolute but has to be e the given facts of a case and in accorda mal rule is that a writ petition under Ar itution ought not to be entertained if edies are available, except in cases fallin ed exceptions as observed in CIT v. Chha T v. Chhabil Dass Agarwal, (2014) 1 SC CC p. 611, para 15) , while it can be said that this Cou d some exceptions to the rule of alter where the statutory authority has not ac e with the provisions of the enactm or in defiance of the fundamental princi rocedure, or has resorted to invok which are repealed, or when an ord ed in total violation of the principles of n e proposition laid down in Thansingh Na nsingh Nathmal v. Supt. of Taxes, AIR 19 taghur Paper Mills case [Titaghur Paper State of Orissa, (1983) 2 SCC 433 : 198 ] and other similar judgments that the not entertain a petition under Article itution if an effective alternative rem to the aggrieved person or the statute action complained of has been taken a mechanism for redressal of grievanc field. Therefore, when a statutory for law for redressal of grievances, a writ p ot be entertained ignoring the sta on." (emphasis sup lf of the on under with an the High manifest e present risdiction exercised ance with rticle 226 alternate ng within abil Dass CC 603] , urt has rnative cted in ent in iples of ke the der has natural Nathmal 964 SC r Mills 83 SCC e High 226 of medy is under n itself ce still rum is petition atutory pplied)

¶40The exception under Article 226 alternate remedy, w Harbans Lal Sahni "7. So far as th way of recour appellants and was liable to b the rule of ex alternative rem compulsion. In alternative rem jurisdiction in petition seeks e where there is where the order the vires of Corpn. v. Regis

¶41In Varimadug Hon'ble Apex Cour exercise of jurisdict on exhaustion of al following words:

¶36In the ins initially appro application un order of the T of the Act subj and without e respondent bo writ applicati deprecate such ns under which the High Court may exerc of the Constitution notwithstanding th were again articulated by the Hon'ble S ia v. Indian Oil Corpn. Ltd., (2003) 2 SC he view taken by the High Court that the rse to arbitration clause was availa therefore the writ petition filed by the be dismissed is concerned, suffice it to o clusion of writ jurisdiction by availab medy is a rule of discretion and n an appropriate case, in spite of availab medy, the High Court may still exerc at least three contingencies: (i) whe enforcement of any of the fundamental s failure of principles of natural justi rs or proceedings are wholly without jur of an Act is challenged. (See strar of Trade Marks [(1998) 8 SCC 1] )… (Emphas gu Obi Reddy v. B. Sreenivasulu, (2023 rt deprecated the practice of entertaining tion under Article 226 of the Constitution lternative statutory remedy available und stant case, although the respondent b oached the Debts Recovery Tribunal by nder Section 17 of the Sarfaesi Act, 2002 Tribunal indeed was appealable under Se ject to the compliance of condition of pr exhausting the statutory remedy of app orrowers approached the High Court by ion under Article 226 of the Constitu h practice of entertaining the writ applic cise its jurisdiction he availability of Supreme Court in CC 107, as under: e remedy by able to the e appellants observe that bility of an not one of bility of the cise its writ re the writ l rights; (ii) ice; or (iii) risdiction or e Whirlpool ….." sis Supplied) 3) 2 SCC 168, the g a writ petition in n without insisting der the law, in the borrowers filing an 2, but the ection 18 re-deposit peal, the filing the tion. We cation by the High Cour the Constituti remedy availa to have been contemplated

¶42The principle the existence of jurisdiction of the H The bar of alternati a self-imposed restr through judicial pr entertain a writ pet and efficacious alte

¶43In the present 'entertainability' of by the Supreme C Officer-cum-Assess words: "4. …….. "entertaina are distinct the two ou "maintaina objection w be render adjudicatio "entertaina of the high petition de by a high c rt in exercise of jurisdiction under Artic ion without exhausting the alternative able under the law. This circuitous route adopted to avoid the condition of pr under 2nd proviso to Section 18 of the 20 (emphasis s that emerges from the aforementioned an alternative remedy does not com High Court under Article 226 of the Con ve remedy is a rule of convenience and d riction on the exercise of power under Ar recedents. As a normal rule, the High tition under Article 226 of the Constituti ernative statutory remedy is available und t context, the distinction between the 'ma a writ petition also needs to be borne in Court in Godrej Sara Lee Ltd. v. Exci sing Authority, 2023 SCC OnLine SC 95 Though elementary, it needs to be rest ability" and "maintainability" of a writ t concepts. The fine but real distinction ught not to be lost sight of. The objecti ability" goes to the root of the matter an were found to be of substance, the cour red incapable of even receiving the on. On the other hand, the ques ability" is entirely within the realm of d h courts, writ remedy being discretionar spite being maintainable may not be en court for very many reasons or relief co cle 226 of statutory e appears re-deposit 002 Act. supplied) judgments is that mpletely bar the nstitution of India. discretion which is rticle 226 evolved Court should not ion if an effective er the law. aintainability' and n mind as restated ise and Taxation 5, in the following tated that t petition n between ion as to nd if such rts would e lis for stion of discretion ry. A writ ntertained ould even be refused point, if gr interest. He on the gr alternative exceptiona would not b

¶44It is not in dis question that loom effective alternative his grievance which whether this Court

¶45For answering statutory scheme w which could be e Companies Act, 20

¶46Chapter 16 of 242 and 244 the mismanagement of to make an app mismanagement etc the purpose to put a and speedily. Sectio "241. App oppression complains

(a) the af conducted to the petitioner, despite setting up a sou rant of the claimed relief would not furth ence, dismissal of a writ petition by a h round that the petitioner has not ava remedy without, however, examining wh l case has been made out for such enter be proper." (emphasis s spute that the present writ petition is mai ms large in the present petition is wh e statutory remedy available to the petit h is the subject matter of the present pe should entertain the instant petition. g the question at hand, it is also imperativ with regard to the acts of oppression and entertained by the NCLT under the p

¶13the Companies Act, 2013, more specific ereof, deals with the prevention of f a company. Section 241 of the Act enab plication to the Tribunal in cases c. Section 241(1)(a) of the Act has been an end to acts of oppression and mismana on 241 of the Act reads as thus:- plication to Tribunal for relief in n, etc.— (1) Any member of a com that— ffairs of the company have been or in a manner prejudicial to public inter und legal her public igh court ailed the hether an rtainment supplied) intainable, but the ether there is an tioner to ventilate etition, and if yes, ve to examine the d mismanagement provisions of the cally Sections 241, oppression and bles the petitioner of oppression, incorporated with agement, promptly n cases of mpany who are being rest or in a manner pre or member company; o

(b) the mat or in the holders or place in th by an alter the owners capital, in and that by the compan interests or may apply to apply un

(2) The Ce affairs of prejudicial for an orde

¶47The relevant p under:- "242. Powers under section

(a) that the co a manner prej prejudicial to interests of the

(b) that to wi member or me making of a w equitable that with a view to such order as ejudicial or oppressive to him or any oth rs or in a manner prejudicial to the inte or terial change, not being a change brough interests of, any creditors, including any class of shareholders of the company he management or control of the compa ration in the Board of Directors, or man ship of the company's shares, or if it ha its membership, or in any other manner w y reason of such change, it is likely that th ny will be conducted in a manner preju r its members or any class of members, to the Tribunal, provided such member nder section 244, for an order under this C entral Government, if it is of the opini the company are being conducted in l to public interest, it may itself apply to t er under this Chapter. part of Section 242 of the Companies A s of Tribunal.— (1) If, on any applic 241, the Tribunal is of the opinion— mpany's affairs have been or are being c judicial or oppressive to any member or public interest or in a manner prejud e company; and ind up the company would unfairly pre embers, but that otherwise the facts woul winding-up order on the ground that it w the company should be wound up,the Tr bringing to an end the matters complain it thinks fit. her member erests of the ht about by, g debenture y, has taken ny, whether nager, or in as no share whatsoever, he affairs of udicial to its has a right Chapter. ion that the n a manner the Tribunal Act, 2013 reads as cation made conducted in members or dicial to the ejudice such ld justify the was just and ribunal may, ned of, make

(2) Without prej section (1), an ord

(a) the regulat

(b) the purch company by ot

(c) in the cas aforesaid, the

(d) restriction company;

(e) the term agreement, ho managing dir terms and con just and equita f) the terminat between the co in clause (e): Provide aside or modi consent of the

(g) the setting execution or o against the co application un against an in fraudulent pre

(h) removal o directors of th

(i) recovery o manager or di and the manne Investor Edu identifiable vic

(j) the manner company may existing mana under clause ( udice to the generality of the powers der under that subsection may provide fo tion of conduct of affairs of the company ase of shares or interests of any mem ther members thereof or by the company; se of a purchase of its shares by the c consequent reduction of its share capital ns on the transfer or allotment of the sh mination, setting aside or modificatio owsoever arrived at, between the compa rector, any other director or manager, nditions as may, in the opinion of the T able in the circumstances of the case; tion, setting aside or modification of any ompany and any person other than those ed that no such agreement shall be term ified except after due notice and after ob party concerned; g aside of any transfer, delivery of good other act relating to property made or ompany within three months before the nder this section, which would, if made or ndividual, be deemed in his insolvenc eference; of the managing director, manager or e company; of undue gains made by any managin irector during the period of his appointm er of utilisation of the recovery including ucation and Protection Fund or rep ctims; r in which the managing director or man be appointed subsequent to an order re aging director or manager of the com

(h); under sub-or— in future; mbers of the ; company as l; hares of the on, of any any and the upon such Tribunal, be y agreement e referred to minated, set btaining the ds, payment, done by or date of the r done by or cy to be a any of the ng director, ment as such g transfer to payment to nager of the emoving the mpany made

(k) appointmen be required b matters as the

(l) imposition

(m) any other just and equita

¶48Section 244 o NCLT under Sectio thus: "244. Righ members o section 241

(a) in the c than one h one-tenth o or any mem the issued condition t calls and o

(b) in the c less than on Provided th this behalf, clause (a) under secti Explanatio share or sh shall be co

(2) Where application nt of such number of persons as director by the Tribunal to report to the Tribun Tribunal may direct; of costs as may be deemed fit by the Trib matter for which, in the opinion of the Tr able that provision should be made."….. f the Act provides as to who has the rig on 241 of the Act. The relevant part of S ht to apply under section 241.— (1) Th of a company shall have the right to a 1, namely:— case of a company having a share capit hundred members of the company or no of the total number of its members, which mber or members holding not less than o d share capital of the company, subj that the applicant or applicants has or ha ther sums due on his or their shares; case of a company not having a share ne-fifth of the total number of its member hat the Tribunal may, on an application m f, waive all or any of the requirements or clause (b) so as to enable the membe ion 241. n.—For the purposes of this sub-section hares are held by two or more persons j unted only as one member. any members of a company are entitled n under subsection (1), any one or mo rs, who may nal on such unal; ribunal, it is ght to apply to the Section 244 reads he following apply under tal, not less ot less than hever is less, one-tenth of ject to the ave paid all capital, not rs: made to it in specified in ers to apply , where any jointly, they to make an ore of them having obt the applica

¶49The controver the petitioner needs provisions as well as

¶50As far as the j dated 21.11.2022 of this Court in Siddha OnLine Del 3967, Ombudsman or any the NCLT, if the sam the order of Ombud NCLT. The relevant "22. If the laws laid d to stay the reverse any taken by h The Petitio for this Co though an available t pass such cannot be Court can situated in approach Companies by the Peti case also d laid down Ltd. (supra tained the consent in writing of the rest, ation on behalf and for the benefit of all of rsy involved in the present petition and th s to be examined in the light of the a s the judicial precedents on the subject. urisdiction of NCLT to entertain the chal learned Ombudsman is concerned, a Co-arth Sahib Singh v. Apex Council of D has already taken a view that an ord action taken by him / her can be set asi me is not in the interest of the DDCA. It dsman can be the subject matter of cha t paragraph of the judgment reads as unde appointment of Ombudsman is contra down in the AoA, it is always open for th e effect of the resolution dated 10.04.2 y order passed by the Ombudsman or an him/her if it is not in the interest of the oner has not made out a case that it is im ourt to entertain the present Writ Petit equally efficacious alternative remedy/ to the Petitioner and that the Ombudsm orders which are irreversible in nat rectified if they are found to be fau take judicial notice of the fact that the Delhi and it was always open for the Pet the NCLT which is the forum un s Act to address the grievances which a itioner in the present Writ Petition. The does not fall within the exceptions that h n by the Apex Court in South India a) which would compel this Court to ente t, may make f them"…. he relief sought by aforesaid statutory llenge to the order -ordinate Bench of DDCA, 2023 SCC der passed by the ide or reversed by thus, follows that allenge before the er:- ary to the he NCLT 2023 and ny action e DDCA. mperative tion even /forum is man can ture and ulty. This NCLT is titioner to nder the re raised e present have been an Bank ertain the present Wr efficacious

¶51Even the reli declaration has been tenure of one year fr the NCLT, in as muc Sudhir Kumar Agg appointment of an management of the manner of Ombuds NCLT. This being Ombudsman, by nec NCLT's jurisdiction. "20. What considerati sections 24 the issues w been speci relating to prejudicial for issues o Ombudsma manageme Court has Section 43 completely Tribunal.

¶21As has the Board the NCLT. the lis and before the rit Petition even in the presence of an alternative remedy to the Petitioner." ief sought in para (B) of the prayer n sought that the tenure of the Ld. Ombu rom the date of appointment, will fall wit ch as, this Court in Delhi & District Cric garwal, 2020 SCC OnLine 1223 has o Ombudsman would also form part of affairs of the company and the controve sman's appointment too will come wit the position, the dispute as regard t cessary implication, will also fall within t . The relevant part of the said decision re emanates from the preceding argume ion of the comparative chart hereinabo 41, 242 and 244 of the Companies Act d which have been raised in the suit. The ifically conferred powers to address o the affairs of the company, whic l or oppressive to any member of the co of appointment of directors. The appoin an, would also form a part of the co ent of the affairs of the company. Th held in Shashi Prakash Khemka that th 30 is vast, and jurisdiction of the civ barred when the power to adjudicate been held in Viji Joseph, the issue of of Directors would be amenable to jur The issue is the same in the present sui grievances raised in the suit can be ag NCLT. A civil court would have no juris n equally clause wherein a udsman is a fixed thin the domain of cket Association v. observed that the the conduct and ersy as regard the thin the ambit of the tenure of the the purview of the eads thus: nts and on ove, is that deal with all NCLT has grievances ch may be ompany, or tment of an onduct and he Supreme he scope of vil court is vests in the f election to risdiction of it. Likewise, gitated only sdiction. As far as the s Ombudsma which wil appointmen company/th of appoint examined b maintainab court. It d Accordingl allowed."

¶52Reading of a (Supra) also makes qua the appointment DDCA / respondent so, the relief seeking hold elections for re

(D) of the prayer c nominees/directors h letter dated 01.09.20 relate to the issue of of the board of direc will also necessarily

¶53Likewise, the notice dated 04.12.2 and to reappoint th DDCA), as well as, p on or before a partic specific allegation apropos the manner in an was appointed are concerned, it too, ll come within the ambit of Tri nt of people who would conduct the af he management. The video recording of tments at the AGM in question, cou by the NCLT. That being the position, bility ought to have been determined first did not have jurisdiction to entertai ly, the impugned order is set aside. Th (Emphas above quoted para 21 from Sudhir K amply clear that it is no more res integr t and election of Director(s) to the Boar no. 1, is amenable to the jurisdiction of th g a declaration that the DDCA/responden etiring directors on or before 30.09.2022 clause, as well as, the declaration that have retired with effect from 31.08.2022 020 as prayed in para (F) of the prayer c f election/nomination & tenure of directo ctors/Apex Council of the DDCA/respon fall within the jurisdiction of the NCLT. objections of the petitioner apropos agen 2022 proposing to retire the Directors m hem as members of the Apex Council proposing to hold elections to the Vacant cular date, contrary to the Articles of As n which the is an issue ibunal i.e. ffairs of the f the manner uld well be the issue of t by the trial n the suit. he appeal is sis Supplied) Kumar Aggarwal ra that the dispute rd of Directors of he NCLT. It being nt no.1 is bound to as prayed in para t the Government 2 in terms of their clause, essentially ors or composition ndent no. 1, which nda 4 and 5 of the mentioned therein, l (Director of the t post of Directors sociation, are also issues which would and will come with specifically been con bring to an end the of,1(ii) to regulate the any other matter whi

¶54In regard to th respondent no. 1 to Hon'ble Supreme Co the said relief. How jurisdiction to make the company which or its members or, Therefore, it is well articulated in para (G

¶55As far as the c in respect to the b Company Law Tribu the Tribunal has bee minimum number of not the case of the pe terms of the first p condition and that t constrained to appro 1Section 242(1) of the Compa 2Section 242(2)(a) of the Com 3Section 242(2)(m) of the Co fall within the purview of mismanageme hin the ambit of powers of NCLT as nferred upon the NCLT to pass approp e matters of mismanagement and oppre e conduct of the company in future2 and ich in the opinion of the NCLT is just and he relief sought in para (G) praying for appoint a CEO or CFO in terms of the ourt, to be noted that the petitioner did no wever, as noted, the NCLT has been an order, which it thinks fit to bring to is oppressive or prejudicial to the intere , for regulating the conduct of the c within the jurisdiction of the NCLT to en G) of the prayer clause as well. contention of the learned Senior Counsel ar under Section 244 of Act to appro unal under Section 241 is concerned, suf n granted the power to relax the requirem f members needed to approach the Tribu etitioner that he has approached the NCL proviso to Section 244 (1) of the Act the same has been declined, therefore, oach this Court under Article 226 of th anies Act, 2013. mpanies Act, 2013. ompanies Act, 2013. ent and oppression s jurisdiction has priate orders (i) to ession complained

(iii) to provide for d equitable.3 a direction to the e judgment of the ot lay emphasis on conferred ample an end any act of st of the company ompany's affairs. ntertain the prayer l for the petitioner oach the National ffice it to say that ment of having the unal. Further, it is LT with a prayer in to waive off the , the petitioner is he Constitution of India. This Court in somewhat similar sit observed that the pe approached the NCL refusing to waive members filing the contending that no Reference to the rele be made at this stage "20.Thoug that an ap can be en total numb power to w ought to h have refus of one-fifth for the Pet equally eff be said tha Article 22 damage wo rectified by irreparabl

¶56Keeping in vie decisions in Siddha (Supra), this Court efficacious statutor grievances before t defined exceptions to the law laid dow n Siddharth Sahib Singh (Supra) whi tuation in a case pertaining to DDCA/ res etitioner therein instead filing a writ petit LT at the first instance and it is only in th off the stipulated requirement of req e application, he could have approa equally efficacious alternate remedy evant paragraph of the said decision cou e, which reads thus:- gh Section 244 (1)(b) of the Companies A pplication under Section 241 of the Com tertained only if it is supported by one ber of members of the company but the waive of this requirement. The Petitioner have approached the NCLT and if the N ed to waive off the stipulated requiremen h members of the company then it was a titioner to approach this Court by contend ficacious alternative remedy is left to him at this Court does not exercise its jurisdi 26 of the Constitution of Indian an ould be caused to the DDCA and the sam y the Courts or that DDCA will be subj e loss which needs urgent restraint order ew the subject matter of the present petiti arth Sahib Singh (Supra) and Sudhir t is of considered view that the petitione ry remedy available to him to seek the NCLT. Clearly, it is not a case fallin to the rule of alternate remedy. Accordin wn by the Hon'ble Supreme Court, as disc le dealing with a spondent no. 1 has tion ought to have he event of NCLT quisite number of ached this Court y is left to him. ld advantageously Act provides mpanies Act -fifth of the e NCLT has r, therefore, NCLT would nt of support always open ding that no m. It cannot iction under irreversible me cannot be jected to an rs." ion, as well as, the Kumar Aggarwal er has an alternate redressal of his ng under the well-ngly, having regard cussed above, this Court is not incli Constitution.

¶57The writ peti disposed of, with lib accordance with law

¶58Before parting arguments were co counsel appeared a respondent no. 1 (w petition) submitted filed on behalf of th no. 3. Further, refe Mr. Puri submitted the Secretary, and no. 1 cannot be rep filed by the respon allegation, therefore an allegation which with in the present j NOVEMBER 23, 20 N.S. ASWAL ined to exercise jurisdiction under Ar ition, along with pending applications, berty to the petitioner to take appropriate w, if so advised. g with judgment, it needs to be brought oncluded by both sides, Mr. Sacchin Pu along with Mr. Siddharth Sahib Singh, who has been arrayed as respondent no d that the vakalatnama dated 17.01.2023 he respondent no. 1 has not been signed erring to Article 45 of the Articles of A that the respondent no. 1 shall or be su without the authorization of the secretar presented before this Court. However, n ndent no.3 seeking any relief premised e, this Court refrains from making any ob h is beyond the contours of the controvers judgment. VIKA rticle 226 of the , if any, is thus, e legal remedies in out that when the uri, learned senior Secretary of the o. 3 to the present 3 which has been by the respondent Association (AoA), ed in the name of ry, the respondent no application was on the aforesaid bservation on such sy raised and dealt

AS MAHAJAN, J.

* IN THE HIG % + W.P.(C) 1741 H.R. SHARM DELHI AND CORAM: HON'BLE M VIKAS MAHAJAN CM APPL. 8079/20 facts on record) GH COURT OF DELHI AT NEW D Pronounce 15/2022 & CM APPLNs. 55448-49/2022 MA Through: Mr. P. Chidambaram Ankur Chawla, Mr. G Prerna Mahajan an Samaddar, Advs. versus DISTRICT CRICKET ASSOCIATION & ..... Through: Mr. Sandeep Sethi, Mr Adv., Mr. Rajshekhar with Mr. Manik Singhdev, Mr. Saura Bhanu Gulati, Ms. R Mr. Abhijit Ch AabhaasSukhramani, Hossain, Mr. Tanishq Rohit Bhagat and Ms. R-1/DDCA. Mr. Sacchin Puri, Sr Praveen Kumar, Ms. Mr. Sahil Nagpal, Adv Mr. Kirtiman Singh, Vidhi Jain and Mr Advocates for R-14 to MR. JUSTICE VIKAS MAHAJAN