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Judgment
P.K. Misra, J.—These three writ petitions have been filed in public interest espousing the cause of cricket fans for issuing appropriate writ
directing the respondents to refund the amount collected towards the price of the tickets issued for the one day International Cricket Match
between India and South Africa which could not be held on 22.11.2005 on account of inclement weather.
The basic facts in all these three writ petitions, which were heard together, lie within a very narrow compass.
Undisputedly the third one day International cricket match between Indian team and the visiting South African team was scheduled to be held at
M.A. Chidambaram Stadium at Chepauk (Chennai) on 22.11.2005. Such cricket match was to be held as per the tour programme fixed by the
Board of Control for Cricket in India, in short BCCI. The contesting respondent, namely, the Tamil Nadu Cricket Association, in short TNCA,
has been entrusted with the responsibility to hold the cricket match. The basic assertion in the various writ petitions is to the effect that TNCA and
BCCI should not have scheduled the match in Chennai during the month of November which is considered to be the rainy season. The averment is
to the effect that since the organisers were aware of the risk of rain threatening the match, it was improper on their part to hold the match on
22.11.2005 and at any rate since the match was abandoned without even a single ball being bowled, the organisers should have refunded the
money to the thousands of disappointed spectators who had patiently assembled in the stadium for witnessing the day and night match. It is also
asserted in the various writ petitions that keeping in view the nature of duties performed by the BCCI and TNCA, such respondents should be
considered as ""other authorities"" within the meaning of Article 12 of the Constitution of India. It is further asserted that at any rate keeping in view
the nature of duties performed by such respondents, appropriate writ can be issued under Article 226 of the Constitution of India directing refund
of the amount to the various ticket-holders.
A common counter has been filed on behalf of Tamil Nadu Cricket Association in W.P.Nos. 38173 and 38314 of 2005. Even though no
separate counter has been filed on behalf of BCCI, the stand of the Tamil Nadu Cricket Association has been adopted by the BCCI.
In such counter affidavit it has been contended that the three petitioners, who were ticket-holders, have claimed personal reliefs for themselves and
it cannot be said that they are expousing the cause of general public and in the absence of any relevant pleading indicating that they have filed the
writ petitions in the interest of and on behalf of general public, such writ petitions should not be entertained. It is further contended that it has been
now decided by the Supreme Court that BCCI is not amenable to writ jurisdiction of the High Court. It has taken the stand that since the match
was abandoned on account of incessant rain and not for any fault of TNCA, there is no negligence on the part of the TNCA nor there is any
requirement to refund the amount collected through sale of tickets.
On the basis of the contentions raised in the writ petitions and in the counter affidavit and the submissions made by the learned Counsels at the
time of hearing of the writ petitions, the following questions arise for determination:
(a) Whether the writ petitions are maintainable against BCCI and TNCA ?
(b) Whether the petitioners have locus standi to file the writ petitions as public interest litigation ?
(c) Whether there is any liability to refund the amount and, if so, to what extent ?
So far as the first question is concerned, it is necessary to notice the relevant facts which have been elucidated in the counter affidavit filed on
behalf of TNCA. In such counter affidavit it has been indicated that BCCI is the apex body controlling the conduct of the game of cricket within
the territory of Union of India and BCCI is an affiliated member of the International Cricket Council, in short ICC, which is the world body
controlling the cricket matches between the affiliated member countries. The venue and dates of the matches to be held in India are finalised by the
two playing nations, and the BCCI and approved by the TCC. The actual date of individual match and allocation of the venue for each test or one
day International or even first class match is determined by BCCI on the basis of the recommendations of a special sub-committee known as
Programmes and Fixtures Committee. The actual allocation of venue is decided by BCCI on the principle of rotation and accordingly the one day
International matches are rotated among the approved venues by turn. When BCCI allocates any game to any member association (the host), it is
upto the host to decide whether such game should be organised or not. As per the normal practice, if any association refuses or declines to host
any event, such association is deemed to have forfeited its turn and thereafter the next turn of that member Association would arise only 21 games
later. In view of such policy decision, the TNCA had to accept such allocation notwithstanding the apprehension that in the month of November
there is a likelihood of rain, as otherwise TNCA would have been deprived of holding another one day International match for a long period. The
sale of tickets commenced on 13.11.2005. At that time, there was no threat of rain and for the next 5 days, till 18.11.2005, there was no
apprehension of rain. By 19.11.2005, more than 80% of the tickets have been sold. However, in the evening of 19.11.2005, the Meteorological
Department announced the possibility of rain due to formation of a low pressure belt in the Bay of Bengal. It has been further asserted that. TNCA
started hosting cricket matches in India more than 75 years back and there has been no occasion where ticket money has been refunded for wash
out of the game or for unfinished game. The advertisements preceding the announcement of ticket sales as well as the condition printed at the
reverse of the tickets clearly stipulate that the organisers do not guarantee the duration of the game and no claim for refund would be entertained
under any circumstances. It has been further highlighted in the counter-affidavit that TNCA conducts domestic league cricket in the city of Chennai
as well as in different districts for which funds are required and lot of money is invested by TNCA for the improvement of infrastructural facilities as
well as improvement of cricket and the amount generated from one day International matches are utilised for the development of the game of
cricket. TNCA is not a private body making any commercial profit and there is no question of unjustly enriching itself at the expense of the public.
It has been clarified in the counter that the insurance relating to force majeure conditions covered only refund of the amount to the sponsors of the
instadia advertising and sponsor for the giant screen and there is no insurance relating to refund of gate collections. No such insurance has ever
been taken for the last 75 years. It has been further indicated that the premium required for such insurance cover for gate collections is exorbitant
and such insurance is applicable only where a game is totally washed out without even a single ball being bowled. It has been further indicated that
TNCA had incurred an expenditure of 154 lakhs for organising the match. In short, the stand of the TNCA is to the following effect:
(1) The writ petition is not maintainable against TNCA.
(2) There is no public interest involved in the litigation.
(3) In view of the advertisement and the conditions printed in the ticket, no refund is admissible.
(4) Since there was no insurance cover for refund of gate collections, there is no question of refund.
(5) There is no unjust enrichment.
(6) In the absence of any negligence on the part of the TNCA and since the game was wash out on account of rain, it was an act of God and there
was no liability to refund any amount.
So for as the first question regarding maintainability is concerned, learned Counsels appearing for both the parties have relied upon the decision
of the Supreme Court reported in Zee Telefilms Ltd. and Another Vs. Union of India (UOI) and Others, . Such decision related to the questions
raised by Zee Telefilms Limited and another. The majority decision, after referring to various earlier decisions and summarising the principles
noticed in seven-Judge Bench decision of the Supreme Court in Pradeep Kumar Biswas and Others Vs. Indian Institute of Chemical Biology and
Others, , observed as follows:
The facts established in this case show the following:
The Board is not created by a statute.
No part of the share capital of the Board is held by the Government.
Practically no financial assistance is given by the Government to meet the whole or entire expenditure of the Board.
The Board does enjoy a monopoly status in the field of cricket but such status is not State-conferred or State-protected.
There is no existence of a deep and pervasive State control. The control if any is only regulatory in nature as applicable to other similar bodies.
This control is not specifically exercised under any special statute applicable to the Board. All functions of the Board are not public functions nor
are they closely related to governmental functions.
The Board is not created by transfer of a government-owned corporation. It is an autonomous body.
To these facts if we apply the principles laid down by the seven-Judge Bench in Pradeep Kumar Biswas it would be clear that the facts
established do not cumulatively show that the Board is financially, functionally or administratively dominated by or is under the control of the
Government. Thus the little control that the Government may be said to have on the Board is not pervasive in nature. Such limited control is purely
regulatory control and nothing more.
Assuming for argument''s sake that some of the functions do partake the nature of public duties or State actions, they being in a very limited
area of the activities of the Board, would not fall within the parameters laid down by this Court in Pradeep Kumar Biswas case. Even otherwise
assuming that there is some element of public duty involved in the discharge of the Board''s functions, even then, as per the judgment of this Court
in Pradeep Kumar Biswas, that by itself would not suffice for bringing the Board within the net of ""other authorities"" for the purpose of Article 12.
However, while holding that BCCI was not a State within Article 12 of the Constitution, the majority observed:
Be that as it may, it cannot be denied that the Board does discharge some duties like the selection of an Indian cricket team, controlling the
activities of the players and others involved in the game of cricket. These activities can be said to be akin to public duties or State functions and if
there is any violation of any constitutional or statutory obligation or rights of other citizens, the aggrieved party may not have a relief by way of a
petition under Article 32. But that does not mean that the violator of such right would go scot-free merely because it or he is not a State. Under the
Indian jurisprudence there is always a just remedy for the violation of a right of a citizen. Though the remedy under Article 32 is not available, an
aggrieved party can always seek a remedy under the ordinary course of law or by way of a writ petition under Article 226 of the Constitution,
which is much wider than Article 32.
From the aforesaid decision, it is thus clear that even though BCCI or for that matter TNCA cannot be considered as a ""State"" or ""appropriate
authority"" within the meaning of Article 12, in appropriate case, remedy under Article 226 of the Constitution is available, particularly when such
writ petition is filed to enforce a public duty or even a public obligation. The observation made by the Supreme Court in Andi Mukta Sadguru
Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others Vs. V.R. Rudani and Others, , which was quoted with
approval in Zee Telefilms Ltd. case, is worth repeating:
... Article 226 confers wide powers on the High Courts to issue writs"" in the nature of prerogative writs. This is a striking departure from the
English law. Under Article 226, writs can be issued to ''any person or authority''. The term ''authority'' used in the context, must receive a liberal
meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226
confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words ""any
person or authority"" used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may
cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature
of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party,
no matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.
The minority view expressed by Justice Sinha, of course, held that BCCI should be considered as ""other authority"" within the meaning of Article
However, such minority opinion cannot be referred because of the categorical observation by the majority that BCCI cannot, be considered as
a ""State"" or ""other authority"" within the meaning of Article 12. Nevertheless, the clear opinion of the majority by relying upon (1982) 2 SCC 691
indicates in no uncertain term that even though remedy under Article 32 is not available, an aggrieved party can always seek remedy by way of writ
petition under Article 226 of the Constitution, which is much wider than Article 32.
In the present writ petition, the petitioners are seeking to enforce a public obligation of the TNCA to refund the amount to the members of the
public i.e., numerous ticket-holders. By organising the cricket match, the TNCA was obviously trying to cater the need of the public. In the words
of Justice Sinha:
Cricket in India is the most popular game. When India plays in international fora, it attracts the attention of millions of people. The win or loss
of the game brings ""joy"" or ""sorrow"" to them. To some lovers of the game, it is passion, to a lot more it is an obsession, nay a craze. For a large
number of viewers, it is not enthusiasm alone but involvement.
In view of the importance of such game in India, it can be said without fear of contradiction that TNCA was obviously trying to cater to the
need of the public by organising the match. In such view of the matter it can be said that the writ petition is maintainable.
The next contention of the learned Counsel for the respondents is to the effect that the writ petitions cannot be characterised as bonafide public
interest litigations, particularly when three petitioners do not indicate any history of espousing the cause of the public on any earlier occasion. There
is no dispute that three writ petitioners are responsible members of the society and belong to a noble profession. Being part of the intellectuals of
the society and being part of a noble profession, with a duty to protect the public, the three petitioners have taken up the cudgels on behalf of
numerous silent and disappointed spectators who had purchased the tickets with fond hope of witnessing cricket match. Merely because such
petitioners have filed cases for the first time taking up a cause on behalf of the public, it cannot be said that they are not public spirited persons nor
it can be said that they lack bonafide in filing the writ petition. Obviously, the three petitioners have no other motive than to try to protect the
interest of the general public. The objection of the respondents that the litigation is not maintainable and not in public interest cannot be
countenanced. The interest shown by the petitioners in the present case with no personal motive is laudable. It only shows their deep concern and
sincerity to the welfare of public and its interest.
Now that the two technical hurdles are cleared, the stage is set for deciding the main question. Learned Counsels appearing for the petitioners
have contended with much passion but less conviction that by organising the match in Chennai during the month of November, when there is
likelihood of abandonment of the match by rain, reflects the negligence on the part of the organisers.
Learned Counsel appearing for the TNCA has submitted that in view of the rotation policy applicable at: that stage, TNCA had accepted the
offer of the BCCI to organise the match as otherwise it would have been deprived of organising any other one day International match in near
future and therefore, it cannot be said that TNCA was negligent merely because it had organised the match during the month of November, when
there is possibility of rain interrupting the match.
We are unable to accept the submission made by the learned Counsels appearing for the petitioners that the very fact that TNCA agreed to
organise the match in the month of November indicated the negligence on the part of TNCA. In the facts and circumstances of the case, it is
evident: that TNCA had hardly no other option and it: had taken a calculated risk agreeing to hold the match during the month of November. It is
nobody''s case that no cricket match has been held in the month of November in Chennai Therefore, the contention of the petitioners of alleged
negligence does not sound convincing.
Even though the submission of the petitioners on this aspect is not accepted, we are constrained to observe that in future the BCCI as well as
TNCA should be more careful in allotting matches to different centres by taking into account the weather condition likely to be prevalent at that
centre at the relevant time. As pointed out by TNCA itself, there had been disruption of match on two occasions in the immediate past. Even
though judicial notice can be taken of the fact that the rainfall in Tamil Nadu and more particularly in Chennai during the recent years had been very
scanty, the month of November is atleast well known as the month during which there is some cyclonic weather and there is possibility of rainfall in
Chennai. Organisers can show their wisdom and prudence by avoiding any match during rainy season as the matches are likely to be either
abandoned or truncated because of rain. As stated by the counsel for Respondent, the BCCI has changed its policy by permitting some
Associations to decline to hold a particular match without fear of being deprived of holding another match in near future, it is expected that both
BCCI and TNCA would be more careful in future by organising the matches in Chennai during more favourable season. As pointed out by the
learned Counsel appearing for the TNCA, possibly the month of January and February 15th would be more suitable to hold matches.
The respondents have relied upon the advertisement and the condition printed at the hack of the tickets indicating that there would not be any
refund under any circumstances. Lot of submissions have been advanced on behalf of either side on this aspect. Learned Counsels appearing for
the petitioners have submitted that such condition printed at the back of the tickets cannot be said to be binding on the purchasers of the tickets,
whereas the contention of the learned Counsel for the respondents is to the contrary. Even the learned Counsels appearing for the petitioners have
gone to the extent of stating that such condition is to be taken against public policy and hence void u/s 23 of the Indian Contract Act.
It is contended by the learned Counsel for TNCA that a standard format indicated in a contract settled for number of years and widely
adopted by the parties should be considered as binding. For the aforesaid purpose, he has relied upon a decision of the Supreme Court reported
in Bihar State Electricity Board, Patna and Others Vs. Green Rubber Industries and Others, .
In the present case, we are not prepared to accept the contention of the learned Counsels for the petitioners that the purchasers of the tickets
cannot be held to be bound to the condition printed at the back of the ticket. In our opinion, if one has to go strictly by the provisions of the
Contract Act, the claim for refund cannot be sustained. This is more so in view of the fact that the respondents had no control over the uncertainty
of weather. Even though the wisdom of the TNCA in organising the match during the month of November, when there is likelihood of rain, can be
doubted, it can be equally concluded that the ticket purchasers, majority of whom are residents of Chennai, were also well aware of the possible
vagaries of weather and the possibility of the match being abandoned or truncated because of rain was also within their knowledge. In our opinion,
it would be futile to base the claim on the basis of breach of contract or on the basis of any so called negligence.
Even though we are not prepared to accept that there was any negligence nor there is any contractual obligation to refund the ticket amount, in
our opinion, TNCA owes an obligation to refund some part of the money, if not the entire money. Numerous sports lovers who had purchased the
tickets with a great expectation of witnessing an interesting scathing grovel on the cricket field and many of whom had thronged to the stadium and
had patiently waited, had to return greatly disappointed. A few days after the advertisement of this match, another one day International match
between the very same two teams was abandoned in Guwhati again because of the inclement weather. Judicial notice can be taken of the fact that
the sport lovers there, unlike the sport lovers in Chennai, had indulged in some lawlessness/vandalism, whereas in Chennai they had exhibited
exemplary patience. The amount collected towards the tickets for the Guwhati one day match was subsequently refunded to the ticket-holders. It
is of course true that such a decision was taken by the concerned Cricket Association and it cannot be said that such decision of the concerned
Cricket Association is binding on the TNCA but, in our opinion, to the possible extent, such action of the Guwhati Cricket Association should be
emulated. It is of course true that the learned Counsel appearing for the respondents has cited several decisions to the effect that unless there is a
specific clause regarding refund of any money either on account of total abandonment of the match or the match being truncated, no refund can be
granted. The claim of TNCA that some amount has been expended for organising the match and to that extent they cannot be asked to refund the
ticket money has to be accepted. On the contrary, the TNCA on the basis of abandoned match cannot enrich itself based on the condition printed
on the ticket. In such circumstances, the withholding of entire amount cannot be justified. In our opinion, in the peculiar facts and circumstances of
the case, a reasonable proportion of the amount collected should be refunded to the ticket-holders with a view to soften the disappointment of the
numerous spectators and avid cricket lovers. In our opinion, a reasonable proportion of the amount is required to be refunded to the bonafide
ticket holders.
In this context, the learned Counsel appearing for the respondents submitted that TNCA had already incurred expenditure of about 154 lakhs.
It is also submitted by him that since TNCA is not a profit making organisation, but it ploughs back the amount generated for the development of
all the aspects of the game including the infrastructure, it should not be forced to refund the entire amount by incurring loss as such a financial
setback is likely to retard the progress of the game in the State.
Keeping in view the extent of the expenditure involved and keeping in view the fact that TNCA requires some amount of financial protection,
we feel interest of justice would be served by directing refund of one third of the amount paid for the ticket in question.
Learned Counsel appearing for the respondents submitted that on the basis of the statement made in the counter affidavit that tickets for certain
specified stand are subsidised by TNCA itself. In other words, even though the face value of a ticket may be hundred, such ticket is subsidised
while it is sold to a particular section, such as school children or sports persons.
Keeping in view the aforesaid submission, it is made clear that so far as the subsidised tickets relating to a particular stand are concerned, the
refund should be of one third of the amount actually collected by TNCA and not one third of the amount stated in the ticket.
Learned Counsel for the respondents has further submitted that many of the private industries had purchased tickets with a view to entertain
their patrons and such big organisations may not require refund or even such organisations may prefer to donate such amount either to the Cricket
Association Itself or may be for some public cause such as Tsunami Relief Fund.
This is a matter, which is left, to the good sense of the particular organisations. If any organisation, which had purchased tickets in bulk decides
to donate one third of the amount, which would be otherwise refundable, obviously it would be open to such organisation to do so. We can only
express hope that the concerned organisation would use its discretion in such matters.
In course of hearing the learned Counsel appearing for the respondents has also submitted that the expenditure was on account of the
guarantee money given to the BCCI. Since the match was abandoned and there is a direction for refund of one third of the amount to the ticket-
holders now it is observed that BCCI may consider refund of whole or part of the guarantee money paid to it by TNCA.
In view of the aforesaid discussion, the writ petitions are allowed in part subject to the following directions:
(1) TNCA shall refund one third of the amount to the holder of the ticket on production of such ticket. This direction shall not apply in respect of
specified stand for which tickets are subsidised by TNCA and the direction regarding refund of one third is restricted to the extent of one third of
the amount actually received by TNCA in respect of the tickets sold (sic) of such specified stand.
(2) It would be open to any organisation or a person to donate any amount to TNCA or to donate any amount to any other welfare fund such as
Tsunami Relief Fund.
(3) BCCI should consider the question of refund of whole or part of the guarantee money to TNCA.
(4) While organising matches in future, the BCCI and TNCA should seriously consider the date of the match with a view to avoid such a situation
in future.
(5) BCCI should take a policy decision regarding refund of whole or part of any money to the ticket-holders in future to be uniformly applied.
We place on record our appreciation for the fair manner in which the matter has been placed by the learned Counsels appearing for both the
parties.