LALIT KUMAR MODIversusBOARD OF CONTROL FOR CRICKET IN INDIA AND ORS.

                   [2011] 15 (ADDL.) S.C.R. 1004


A                     LAUT KUMAR MODI
                                v.
       BOARD OF CONTROL FOR CRICKET IN INDIA AND
                               ORS.
         (Special Leave Petition (C) No. 27157 of 2010)
B                       SEPTEMBER 26, 2011
            [J.M. PANCHAL AND H.L. GOKHALE, JJ.]

           Tamil Nadu Societies Registration Act, 1975 -
c    Disciplinary action by society - Constitution of Disciplinary
     Committee - Challenge to - First respondent-society (BCCI)
     organized a cricket competition (IPL) - Petitioner, a member
     of first respondent, appointed as the incharge Chairman
    thereof- Rights for telecasting of the cricket games auctioned
    by first respondent - Complaint from a bidder alleging breach
D   of confidentiality against the petitioner - Petitioner suspended
    from his position and served with show cause notices -
    Disciplinary Committee of respondent no. 1 entrusted with the
    function of examining the a/legations - Plea of Petitioner that
    the Disciplinary Committee was not validly constituted and
E   that since the President of BCCI had recused himself from
    the Committee, the Disciplinary Committee was required to
    either wait until the next President was elected so that the
    committee was reconstituted after including the new President
    therein, or if the Committee was to consist of three persons
F   other than the President, it should consist of persons who were
    unbiased and acceptable to the petitioner - Held: The
    petitioner himself had objected to the President being the
    member of the Committee - That being the position, the
    President recused himself from the Committee - When a
G   situation thus arises, in view of the objection of the petitioner,
    the society cannot be left without a remedy - Also, a member
    of the society having accepted the rules, agrees to the
    disciplinary authority of the three member Committee to be
    constituted under the rules - He cannot claim a right to dictate

H                                 1004
 LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1005
         CRICKET IN INDIA AND ORS.
as to who should be the members of the Committee - A
Normally the President shall be a member of three Member
Committee, but if for any reason his presence on the
Committee is objected to, on grounds of unfairness, and he
recuses himself therefrom, respondent no. 1 certainly has the
power to substitute him by some other person - The B
Committee in question was validly constituted under Rule 1(q)
in view of the necessity arising due to the recusal of the
President of BCCI from the Committee - Board of Control for
Cricket in India Rules - Rule 1(q).
      Tamil Nadu Societies· Registration Act, 197fj - c
Disciplinary action by society - A/legation of institutional bias
- First respondent-society (BCCI) organized a cricket
competition (IPL) - Petitioner appointed as the incharge
Chairman thereof - Rights for telecasting of the cricket games
auctioned by first respondent - Complaint from a bidder D
alleging breach of confidentiality against the petitioner -
Petitioner suspended from his position and served with show
cause notices - Disciplinary Committee of respondent no. 1
entrusted with the function of examining the allegations - Plea
of Petitioner that the members of the Committee suffered from
an institutional bias and that the petitioner could not expect E
fairplay from the members who were already party to the
decision to initiate the disciplinary action against the petitioner
- Held: Merely because all the members of a society
participated in the discussion concerning the allegations, the
Society can't be expected to appoint an outsider to hold the F
disciplinary proceeding - Again, merely because a member
has participated in such a meeting he cannot be accused of
bias to disentitle him from being appointed on the Disciplinary
Committee - The petitioner may have an apprehension of
bias, but it is not possible to say from the material on record G
that he was facing a real danger of bias - One cannot
presume that the three member committee will not afford the
petitioner a fair hearing, or that it will not render unbiased
 findings - Taking a view as canvassed by the petitioner will
 lead to a demand for interference in the enquiries conducted
 by all other societies in such situations, and that cannot be H
    1006 SUPREME COURT REPORTS [2011] 15 (ADOL.) S.C.R


A approved.
       Doctrines - Doctrine of necessity - Held: The doctrine
  of necessity is a common law doctrine, and is applied to tide
  over the situations where there are difficulties - Law does not
  contemplate a vacuum, and a solution has to be found out
B rather than allowing the problem to boil over.
       The first respondent-society (BCCI) organized a
  cricket competition (IPL), and the petitioner, a member of
  first respondent, was appointed as the incharge
  Chairman thereof. The rights for telecasting of the cricket
C games were auctioned by the first respondent. The first
  respondent received a complaint from a bidder alleging
  breach of confidentiality against the petitioner. The
  petitioner was suspended from his position and was
  served with show cause notices. The petitioner denied
D the allegations and also wrote to 'M', the Honorary
  President of the first respondent requesting him to recuse
  himself from the decision making process in the interest
  of fairness. Consequently, 'M' recused himself from the
  Disciplinary Committee of respondent no.1, which was to
E decide upon the show cause notices and one 'J' was
  appointed in his place.
       The petitioner thereafter filed a Writ Petition raised
  two objections. The first ground of objection was that the
  Disciplinary Committee was not validly constituted and
F that since the President of BCCI had recused himself
  from the Committee, the Disciplinary Committee was·
  required to either wait until the next President was elected
  so that the committee was reconstituted after including
  the new President therein, or if the Committee was to
G consist of three persons other than the President, it
  should consist of persons who were unbiased and
  acceptable to the petitioner. The second objection was
  that the members of the Committee suffered from an
  institutional bias and that the petitioner could not expect
  fairplay from the members who were already party to the
H decision to initiate the disciplinary action against the
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1007
        CRICKET IN INDIA AND ORS.
petitioner. This Writ Petition was dismissed. The High A
Court held that the substitution of the President by 'J'
was acceptable on the basis of the doctrine of necessity
and also repelled the argument with respect to bias. It
further held that in case the petitioner had any grievance
against the functioning of any of the members of the B
Committee, he may apply to the Committee that such a
member may recuse himself from the Committee.
     Subsequently, the petitioner applied to the Committee
members that they should all recuse themselves from
functioning as members of the Disciplinary Committee.          c
The Committee rejected the application. It led to the filing
of a second Writ Petition by the petitioner before another
bench of the High Court. That petition also came to be
dismissed.
     Meanwhile, the first respondent extended the term of D
the Disciplinary Committee for continuing with the
enquiry against the petitioner. The Petitioner challenged
the extension granted to the Committee, but the challenge
was negated by a different bench of the High Court.
     All the said three orders passed by the different         E
benches of the High Court were challenged in the instant
petitions.
    Dismissing the petitions, the Court
    HELD: 1.1. The objection of the petitioner to the F
forming of the Disciplinary Committee was on the basis
of Rule 1(q) of the Board of Control for Cricket in India.
This rule states that the Board shall at every Annual
General Meeting appoint a Committee consisting of three
persons. The President shall be one of them and the
function of the Committee is to inquire into and deal with G
the matters relating to any acts of misconduct etc. In view
of the wording of this rule, there is no difficulty in
accepting that normally the President has to be one of
the members of this Committee. The question is with
respect to the necessity arising on account of the H
    1008 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A President being unavailable in a situation like the present
  one. [Para 27) [1024-H; 1025-A·B]      •
        1.2. In the instant case the petitioner himself had
    objected to the President being the member of the
   Committee. That being the position, the President
B recused himself from the Committee. When a situation
   thus arises, in view of the objection of the petitioner, the
   society cannot be left without a remedy. The rule does
   not say that if the President cannot be a member of the
   Committee no substitution shall take place, nor does it
c say that the substituting member should be one not
   objected by the delinquent against whom the enquiry is
   proposed. A member of the society having accepted the
   rules, agrees to the disciplinary authority of the three
   member Committee which is to be constituted under
   these rules. He cannot claim a right to dictate as to who
0
   should be the members of the Committee. Any such
   interpretation will lead to a situation that the delinquent
  will decide as to who should be the members of the
  Disciplinary Committee. Such a submission cannot be
  accepted. The rule is elastic enough, and in an
E appropriate situation the word 'shall' can be read as
  'may'. It is very clear that, normally the President shall be
  a member of three Member Committee, but if for any
  reason his presence on the Committee is objected to on
  grounds of unfairness, and he recuses himself
F therefrom, the respondent no.1 certainly has the power
  to substitute him by some other person. The action of the
  respondents is sought to be defended on the basis of
  necessity. The doctrine of necessity is a common law
  doctrine, and is applied to tide over the situations where
G there are difficulties. Law does not contemplate a
  vacuum, and a solution has to be found out rather than
  allowing the problem to boll over. Otherwise, one will have
  to wait for one more year for a new President to be
  elected, which submission cannot be accepted. [Para 30)
  [1026-G-H; 1027-A·FJ
H
 LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1009
          CRICKET IN INDIA AND ORS.
     1.3. As far as the disciplinary actions by societies      A
 and associations are concerned, many of the societies
 under the Tamil Nadu Societies Registration Act and
 similar State Acts, are smaller societies. It is another
 matter that the first respondent society is a large body
 having large resources. If the members or the Managing        8
 Committee of a Society receive a complaint of any
 misconduct on the part of any of its office bearers, surely
 the subject is expected to be taken up in the General Body
 Meeting of the Society. These societies are expected to
 sort out the future course of action with respect to such
 allegations on their OV'!"n on the basis of their internal    C
 disciplinary mechanism. Merely because all the members
 of a society have participated in the discussion
 concerning such allegation, the Society can't be expected
 to appoint an outsider to hold the disciplinary
 proceeding. lt may not be financially possible as well for    D
 such small societies. That apart, only a prima facie
 opinion is formed in such meetings. Merely because a
 member has participated in such a meeting he cannot be
 accused of bias to disentitle him from being appointed
1 the Disciplinary Committee. [Para 31] [1027-G-H; 1028-
 on                                                            E
 A-C]
      1.4. A mere apprehension of bias cannot be a ground
for interference. There must exist a real danger of bias.
Though such domestic inquiries have undoubtedly to be
fair, a member of a society cannot stretch the principle F
of fairness to the extent of demanding a tribunal
consisting of outsiders, on the basis that the society
members are biased against him. In the instant case, the
petitioner has, in clear terms stated that he was not
making any personal allegations against two members of G
the Disciplinary Committee, .viz. 'J' and 'S'. Even the
grievance against the third member 'A' cannot be said to
be well founded. The petitioner was a!Yeging institutional
bias against the members of the Com'mittee, which was
only on the basis of their participation in the meetings of H
    1010 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A the first respondent society. In this way, institutional bias
  can be alleged against every member of the Governing
  Council of IPL and the General Body of the first
  respondent which cannot be accepted. The petitioner
  may have an apprehension, but it is not possible to say
8 from the material on record that he was facing a real
  danger of bias. One cannot presume that the three
  member committee will not afford the petitioner a fair
  hearing, or that it will not render unbiased findings. Taking
  a view as canvassed by the petitioner will lead to a
C demand for interference in the enquiries conducted by all
  other societies in such situations, and that cannot be
  approved. This is apart from the view taken by this Court,
  that the Committee was validly constituted under Rule
  1(q) in view of the necessity arising due to the recusal of
  the President of BCCI from the Committee. Similarly, there
D was no error in the order of the Disciplinary Committee
  declining to recuse, or the decision of the Annual General
  Meeting of the first respondent to extend the term of this
  Disciplinary Committee for the inquiry against the
  petitioner. [Paras 32, 33] [1028-E-H; 1029-A-E]
E        M.P. Special Police Establishment v. State of MP.; 2004
    (8) SCC 788: 2004 (5) Suppl. SCR 1020 - followed.
     State of U.P. v. Manbodhan Lal AIR 1957 SC 912: 1958
  SCR 533 and State of A.P. and another v. Dr. Rahimuddin
F Kamal AIR 1997 SC 947: 1997 (3) SCC 505 - relied on.
        Manak Lal v. Prem Chand Singhvi AIR 1957 SC 425:
   1957 SCR 575; S. Parthasarlhi v. State of Andhra Pradesh
   1974 (3) SCC 459: 1974 (1) SCR 697; T.P. Daver v. Lodge
   Victoria AIR 1963 SC 1144: 1964 SCR 1; Kumaon Manda/
G Vikas Nigam Ltd. v. Girija Shankar Pant 2001 (1) SCC 182:
   2000 (4) Suppl. SCR 248; Election Commission of India v.
   Dr. Subramaniam Swamy 1996 (4) SCC 104: 1996 (1)
  .Suppl. SCR 637; Justice P.D. Dinakaran v. Hon'ble Judges
   Inquiry Committee and ors 2011 (6) SCALE 97 - referred
  to.
H
     LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1011
             CRICKET IN INDIAAND ORS.

'      R v. Sussex, JJ, ex. p. McCarthy (1924) 1 KB 256; R. v. A
    Gough (1993) 2 All ER 724; Porter v. Magill (2002) 1 ALL
    ER 465; Mcinnes v. Onslow Fane (1978) 3 All ER 211 -
    referred to.
                         Case Law Reference:
       1957 SCR 575               referred to      Para 21        B
       1974 (1) SCR 697           referred to     Para 21
       (1924) 1 KB 256            referred to     Para 21
       (1993) 2 All ER 724        referred to     Para 21
       (2002) 1 ALL ER 465         referred to    Para 21         c
       (1978) 3 All ER 211         referred to    Para 22
       1964 SCR 1                  referred to    Para 23, 32
       2004 (5) Suppl. SCR 1020 followed          Para 24, 32
       2000 (4) Suppl. SCR 248 referred to        Para 24         D
       1996 (1) Suppl. SCR 637 referred to        Para 25
       2011 (6) SCALE 97           referred to    Para 26
       1958 SCR 533                relied on      Para 28
       1997 (3) sec 505            relied on      Para 29         E
        CIVIL APPELLATE JURISDICTION: Petition for Special
    Leave (Civil) No ..27157 of 2010.
        From the Judgment & Order dated 15.7.2010 of the High
    Court of Bombay in WP No. 1370 of 2010.
                                                                  F
        Ram Jethmalani, Vinod Bobde and Pravin, H. Parekh,
    Abhishek Singh, Jayant Mohan, Sarvesh Singh Baghel,
    Meenakshi Chatterjee, Raja! Nair, Anukur Chawala and Parekh
    & Co. for the Petitioner.
         C.A. Sundaram, Mukul Rohatgi, Ranjit Kumar Amit Sibal, G
    Akhila Kaushik, Raghu Raman, Ruchira Gupta, Deepti Sarin,
    lshan Gaur, Rohini Musa, A Chattopadhyay, Zafar lnayat,
    Yogesh Karanjawala & Co., Radha Rangaswamy, Ranjeeta
    Rohatgi and Hari Shankar for the Respondents.
         The Judgment for the Court was delivered by              H
     1012 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A         H.L. GOKHALE J. 1. These three Special Leave Petitions
     seek to challenge three orders passed by three different
     benches of Bombay High Court, on the proceedings initiated
     by the appellant against the first respondent Bdard of Control
     for Cricket in India (hereinafter referred to either as 'first
8    respondent' or the 'BCCI').
        2. The first respondent is a society registered under the
  Tamil Nadu Societies Registration Act, 1975. The petitioner,
  herein, is a member of the first respondent representing one
  of its constituent associations. As a part of its activities, the first
c respondent had organized a cricket competition under the
  banner 'Indian Premier League' shortly known as (IPL), and the
  petitioner was appointed as the incharge Chairman thereof.
  Considering the popularity of the game of cricket, these games
  were to be televised. Telecasting of these games was expected
  to fetch a good income to BCCI and the firm entrusted with the
D telecasting of these games, and therefore, the rights for
  telecasting were auctioned by first respondent through a
  bidding process for an appropriate price.
        3. In April 2010, the first respondent received a complaint
E from a bidder alleging breach of confidentiality against the
  petitioner. The petitioner was therefore, suspended from his
  position on 25.4.2010.
        (a) He was served with a show cau·se notice dated
  25.4.2010 inter-alia alleging/accusing him of (i) accepting multi-
F million dollar kickback while assigning the telecasting rights for
  IPL matches; (ii) attempting to rig the bids for the two new IPL
  teams-that were auctioned the previous month; (iii) having proxy
  stakes in IPL teams; (iv) entering into transactions with rank
  strangers against the mandate of the Governing Council of the
G IPL; (v) helping family members in benefiting from the IPL
  contracts.
       (b) Thereafter another show cause notice was issued to
  him on 6.5.2010 which alleged inter-alia that he was seeking
  to create a parallel cricket body at international level (particularly
H in England) and thereby subvert the present International Cricket
 .LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1013
   CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
structure. The petitioner sought certain information and             A
documents from the first respondent in this behalf, but the same
were notfurnished.
     4. The petitioner sent his reply to the first show cause
notice on 15.5.2010 denying the allegations therein. Thereafter,
he wrote to Shri Shashank Manohar, the Honorary President B
of the first respondent on 25.5.2010 requesting him that he
should recuse himself from the decision making process in the
interest of fairness. The petitioner then sent his reply to the
second show cause notice on 31.5.2010. The first respondent
served him the third show cause notice on the same day i.e.          c
31.5.2010 wherein they alleged amongst other things that the
petitioner had committed irregularities and illegalities in the
award of the IPL tenders for the Theatrical Rights. The petitioner
replied to this notice on 15.6.201 O.
     5. Consequent upon the objection raised by the petitioner, D
Shri Shanshank Manohar recused himself from the Disciplinary
Committee, which was to decide upon the show cause notices.
The first respondent has a disciplinary committee to deal with
the misconducts of its members. It is constituted under rule 1
(q) of the rules governing the first respondent society. This rule E
reads as follows:-
            (q) Disciplinary Committee: The Board shall at every
     Annual General Meeting appoint a Committee consisting
     of three persons of whom the President shall be one of
     them to inquire into and deal with the matter relating to any   F
     act of indiscipline or misconduct or violation of any of the
     Rules and Regulations by any player, Umpire, Team,
     Official, Administrator, Selector or any person appointed
     or employed by BCCI. The Committee shall have full power
     and authority to summon any person(s) and call for any          G
     evidence it may deem fit and necessary and make and
     publish its decision including imposing penalties if so
     required, as provided in the Memorandum and rules and
      Regulations."
     6. On Shri Manohar recusing himself from the Committee,         H
     1014SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A Shri Jyotiraditya Scindia was appointed in his place. The other •
  two members of the Committee were Shri Chirayu Amin and
  Shri Arun Jaitely as nominated earlier. The petitioner filed a
  Writ Petition bearing No. 1370/2010 in the Bombay High Court,
  and prayed that the order of suspension be recalled and he be
B reinstated, the three show cause notices be directed to be
  withdrawn, and the decision to refer the matter to the
  Disciplinary Committee be also directed to be recalled.
  Alternatively he prayed that the first respondent be directed to
  appoint a mutually acceptable and an independent person or
C panel to consider the replies of the Petitioner to the show cause
  notices, and to decide whether the allegations are required to
  be referred to the Disciplinary Committee or the matter should
  be closed.
        7. The petitioner raised two issues in this petition.
D       (i) The first ground of objection was that the Committee
  was not validly constituted. This was on the footing that the rules
  and regulations of the first respondent society are a matter of
  contract amongst its members, and the Committee should be
  constituted strictly in accordance with the particular rule. The
E above referred rule 1 (q) provides for a Disciplinary Committee
  consisting of the President and two other persons. Since the
  President had recused himself from the Committee, the
  Disciplinary Committee will have to either wait until the next
  President is elected so that the committee is reconstituted after
  including the new President therein, or if the Committee is to
F consist of three persons other than the President, it should
  consist of persons who are unbiased and acceptable to the
  petitioner.
       (ii) The second objection was that the members of the
G Committee suffered from an institutional bias. The petitioner
  could not expect fairplay from the members who have already
  been party to the decision to initiate the disciplinary action
  against the petitioner.
      8. This Writ Petition was dismissed by a Division Bench
H of Bombay High Court by its judgment and order dated
 LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1015
  CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]

15.7.2010. The Division Bench rejected the submission about A
the defect in the Committee. It held that the substitution of the
President by Shri Jyotiraditya Scindia was acceptable on the
basis of the doctrine of necessity. It repelled the argument with
respect to bias, and held that whatever decision is rendered
by the Committee could be challenged by the petitioner after B
the decision became available. The Court further held that in
case the petitioner had any grievance against the functioning
 of any of the members of the Committee, he may apply to the
 Committee that such a member may recuse himself from the
 Committee. This order has been challenged in the first SLP (C} C
 No. 27157/2010.
      9. Subsequent to the order passed by the Division Bench,
the petitioner applied to the Committee members that they
should all recuse themselves from functioning as members of
the Disciplinary Committee. The Committee rejected that D
application. It led to the filing of second Writ Petition by the
petitioner in Bombay High Court bearing Petition No. 1909 of
2010. That petition also came to be dismissed by another
Division Bench of Bombay High Court by its judgment and
order dated 15.9.2010. This order is challenged in the second E
CC No. 15249/2010.
      10. During the course of the calendar year 2010, the first
respondent constituted a regular Disciplinary Committee for
2010-2011, and extended the special Committee consisting of
Sarvashri Arun Jaitley, Chirayu Amin and Jyotiraditya Scindia        F
for continuing with the enquiry against the petitioner. The
extension granted to this Committee was challenged by the
petitioner by filing Suit No. 195/2011 on the original side of the
Born.bay High Court. The notice of motion moved therein for
injunction against the Committee came to be rejected first by
a Single Judge and then in appeal by a Division Bench of the         G
High Court by its order dated 5.4.2011. This order is challenged
in the third CC No. 11545/2011. Since all these petitions are
basically arising out of the same controversy, they have been
heard and are being decided together.
                                                                     H
     1016 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


 A        11. Shri Ram Jethmalani, learned Senior Counsel and Shri
    Vinod Bobde, learned Senior Advocate have appeared for the
    petitioner. Shri Aryama Sundaram, learned Senior Advocate
    has appeared for the first Respondent. Shri Ranjit Kumar,
   Senior Advocate has appeared for Shri N. Srinivasan,
8 Secretary of first respondent.
          12. As stated above, the objections of the petitioner to the
   constitution of the Committee are two fold. Firstly, the
   Committee was not validly constituted and secondly, it suffers
   from institutional bias. As far as the first objection is concerned,
c Shri Jethmalani submitted that under the above rule 1 (q), the
   Disciplinary Committee can consist only of the President and
  two other persons. A society is constituted as a matter of
   contract amongst the members who form the society. It is
  expected to function as per the rules and regulations of the
D society which constitute the terms of contract amongst its
  members. In the present case, the rule concerning the
  Disciplinary Committee required the Committee to consist of
  the President and two other persons. If the President recuses
  himself, from being a member of the disciplinary Committee,
  either the society should wait until a new President is elected
E to constitute the new Disciplinary Committee, or since it is a
  matter of contract, the Committee be reconstituted with such
  persons to whom the petitioner has no objection. Shri
  Jethmalani submitted that he has no objection to a Committee
  of three former Judges or even a decision by a former Judge
F of this Hon'ble Court. In his submission the petitioner had a
  reasonable apprehension of bias against the members of the
  Committee, and therefore a reconstitution of the Committee as
  suggested by the petitioner was desirable from the point of
  view of fair-play.
G       13. In view of these suggestions, we asked Shri
  Sundaram, learned senior counsel for the first respondent,
  whether the first respondbnt was agreeable to accept this
  suggestion. In deference thereto, Shri Sundaram did take
  instructions, but pointed out that the Disciplinary Committee of
H the first respondent is required to conduct numerous inquiries.
  LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1017
   CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]

· If the first respondent agrees to a Disciplinary Committee             A
  consisting of outsiders in this matter, it may have to agree to
  similar request in many such matters, and that would not be
  desirable.
      14. Shri Sundarain submitted that it is only because of the
 objection of the petitioner that Shri Manohar had recused               B
 himself from the Committee in all fairness. In a situation like this,
 the first respondent had to reconstitute the Committee by
 substituting another person in place of the President, and in
 view of the serious allegations against the petitioner, the inquiry
 could not wait for one more year for the next President to be           c
 elected. Since, the substitution had become necessary in view
 of petitioner's objection, it was not fair on his part to make any
 grievances against the reconstituted Committee. This
 submission of the first respondent based on the doctrine of
 necessity has been accepted by the Bombay High Court in its             D
 judgment rendered in the first Writ Petition bearing No. 1370
 of 2010.       ·                                             ·
      15. As far as the allegation of bias against the members
 of the Committee is concerned, the petitioner had in his letter
 dated 25.5.2010 objected to Shri Shashank Manohar                       E
 remaining on the Committee. At that time he did not raise any
 ot.1ection to the other members of the Committee, namely Shri
 Arun Jaitely and Shri Chirayu Amin. ln 1paragraph 3 (C) of this
 letter he stated as follows:-           ·
            "C. It is submitted that it is not my endeavor to create     F
      any technical hurdle in the process and no hurdle shall be
      caused if an independent body constituting of other
      members of the Board is formed. It is submitted that there
      are only 14 members of the Governing Council and hence
      BCCI can choose and appoint independent persons to                 G
      investigate into these allegations ....... ."
       16. In his Writ Petition No.1370 of 2010, the petitioner
 joined S/Shri Chirayu Amin and Arun Jaitely and Jyotiraditya
 Scindia as respondent no.4, 5 and 6. In para 4 of this Writ
  Petition, he stated as follows:-                                       H
    1018 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A              "4. Respondent Nos.3 (sic), 4 and 5 and 6 are
        members of the Disciplinary Committee of Respondent
        No.1 ("the Disciplinary Committee"). This Disciplinary
        Committee has been entrusted with the function of
        examining the allegations made against the Petitioner, in
B       the three Show Cause Notices, issued to the Petitioner.
        The Petitioner is challenging the constitution, composition
        and continuation of the Disciplinary Committee. The
        Petitioner is also alleging institutional bias against the
        Disciplinary Committee. The Petitioner is however making
        no personal allegation of personal bias or malice against
c       Respondent Nos. 5 and 6."
       Thus, it is clear that as far as Shri Jaitely and Shri Scindia
  are concerned, the petitioner stated that he was not making any
  personal allegation of personal bias or malice against them.
D He was alleging institutional bias against the members of the
  Disciplinary Committee.
       17. As far as Shri Chirayu Amin is concerned, all that was
  additionally stated against him was that Shri Amin had a 10%
  share in a party which gave the bid on behalf of an applicant
E from Pune. Shri Sundaram pointed out that the bid of that party
  was rejected. The only other blame against Shri Amin was that
  he succeeded the petitioner as the Chairman of IPL and,
  therefore, he would be biased against him.
       18. The petitioner denies that he has played any deceit in
F the matter of entering into any of the disputed agreements, or
  that he has received any kickbacks. The submission of Shri
  Jethmalani concerning bias was on the footing that the disputed
  agreements under which the petitioner is alleged to have made
  some 80 million dollars by way of kickbacks, were approved
G by the Governing Council of IPL on 11.8.2009. Thus, this was
  known to all concerned and there was no deceit on the part of
  the petitioner, and therefore, there was no substance in the
  allegation. Respondents point out that these three members of
  the Disciplinary Committee were not present iri that meeting,
  though, they were present in the subsequent meeting held on
H
 LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1019
  CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
2.9.2009 when these minutes were approved. Petitioner's A
allegation of bias is also on the footing that the three members
of the Committee were present in the meeting of the Governing
Council of IPL held on 25.6.2010, when it decided to charge
the petitioner with fraud. They were also present in the Special
General Meeting of the first respondent held on 3. 7.2010 where B
the President of first respondent was authorized to take
appropriate civil and criminal action against the petitioner. An
 FIR was lodged in pursuance thereto on 13.10.2010. It is
therefore contended that the petitioner has a reasonable
 apprehension of bias against these three members that he may
 not get a fair hearing and an unbiased finding on the allegations C
 from them.
      19. As far as this aspect is concerned, the respondents
maintain that they were kept in dark about the agreement/
arrangement that the petitioner entered into with the concerned
parties from whom he is alleged to have received kickbacks. D
In any case, the three members of the. Committee were not
present in the meeting of Governing Council of IPL held on
11.8.2009 when the disputed agreements were allegedly
approved. And to take the argument at its best, they were
present in the three subsequent meetings referred by the E
petitioner. These agreements were approved by the General
Body on 2.9.2009. The further action was also approved in the
Governing Council meeting of 25.6.2010 and Special General
Meeting of 3.7.2010. The question is whether the participation
by these members in these three meetings would disqualify F
them from being the members of the Disciplinary Committee.
     20. In view of these objections to these three members of
the committee, we asked Shri Jethmalani, whether he was
objecting to these members because they were members of
the Governing Council in which case some other members from G
the General Body could be asked to be members of the
Committee. Shri Jethmalani, however stated that the appellant
was objecting only to these three members of the Governing
Council, and not even to the other members of the Governing
 Council. Now, there is no logic as to why only these three H
    1020 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A persons can be said to be suffering from institutional bias, and
  not the other members of the Governing Council. And, if the
  other members of the Governing Council could be members
  of the Disciplinary Committee, there is no reason as to why
  these three members could not be.
B      21. Shri Jethmalani submitted that we are concerned with
  reasonable apprehension of bias. This principle has been
  accepted by this Court in Manak Lal Vs. Prem Chand Singhvi
  reported in [AIR 1957 SC 425], in the context of an inquiry under
  the Bar Council Act, 1926. At the end of paragraph 6 this Court
C had observed that 'actual proof of prejudice in such cases may
  make the appellant's case stronger but such proof is not
  necessary in order that the appellant should effectively raise
  the argument that the tribunal was not properly constituted''.
  He pointed out that in S. Parthasarthi Vs. State of Andhra
  Pradesh reported in [1974 (3) SCC 459], the view taken by the
D Court was similar. This Court held that the test of likelihood of
  bias was based on reasonable apprehension of a reasonable
  man fully cognizant of the facts, and relied upon the leading
  English judgment in the case of R Vs. Sussex, JJ, ex. p.
  McCarthy reported in (1924) 1 KB 256. In paragraph 16 of S.
E Parthasarthi this Court has observed as follows:-
               "The tests of "real likelihood" and "reasonable
        suspicion" are really inconsistent with each other. We think
        that the reviewing authority must make a determination on
        the basis of the whole evidence before it, whether a
F       reasonable man would in the circumstances infer that there
        is real likelihood of bias. The Court must look at the
        impression which other people have. This follows from the
       principle that justice must not only be done but seen to be
       done. If right minded persons would think that there is real
G      likelihood of bias on the part of an inquiring officer, he must
       not conduct the enquiry; nevertheless, there must be a real
       likelihood of bias. Surmise or conjecture would not be
       enough. There must exist circumstances from which
       reasonable men would think it probable or likely that the
       inquiring officer will be prejudiced against the delinquent.
H
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1021
 CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]

    The Court will not inquire whether he was really prejudiced.    A
    If a reasonable man would think on the basis of the existing
    circumstances that he is likely to be prejudiced, that is
    sufficient to quash the decision [see per Lord Denning,
    H.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v.
    Lannon]. 1 1. (1968) 3 WLR 694 at 707                           B
      We may mention that Shri Jethmalani drew our attention
to the recent development in English Law in this behalf, where
'real danger of bias' is no longer considered to be the test, but
the relevant consideration is as to whether there was real
possibility that the tribunal was biased. He referred to the        c
judgments in the cases of R. Vs. Gough reported in (1993) 2
All ER 724, and Porter Versus Magill reported in (2002) 1 ALL
ER 465.
      22. Shri Jethmalani and Shri Bobde drew our attention to
a judgment of House of Lords in Mcinnes Vs. Onslow Fane             D
reported in (1978) 3 All ER 211 wherein three types of cases
are discussed, viz. (i) application cases; (ii) inspection cases;
and (iii) forfeiture cases. It was submitted that principles of
natural justice have to be followed in any case in the category
of forfeiture cases. In the present case the reputation of the      E
petitioner was at stake and, therefore, the principle that no man
should be judge in his own case, had to be followed. According
to the petitioner, the members of the Disciplinary Committee
could not be said to be unbiased. They were part of the
institution, and therefore suffered from institutional bias.
                                                                    F
      23. In reply, Shri Sundaram, learned counsel for BCCI
submitted that the members of a Society have to abide by the
Rules and Regulations thereof and submit themselves to the
jurisdiction of the domestic tribunal, though some of the
members of the tribunal may even appear to him to be acting         G
like prosecutors. A member cannot place himself above the
Institution. He is bound by the rules, and cannot complain unless
the inquiry disclosed malafides or unfair treatment. A society
 is comparable to a club or a Masonic Lodge. A judgment in
 the case of T.P. Daver Vs. Lodge Victoria reported in [AIR
                                                                    H
    1022 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A 1963 SC 1144) is relevant in this behalf wherein this Court has
  held in paragraph 7 thereof as follows:-
              "7. Another aspect which may also be noticed is how
        far and to what extent the doctrine of bias may be invoked
        in the case of domestic tribunals like those of clubs. The
B       observations of Maugham J. in Maclean's case (1929) 1
        Ch. 602 in this context may be noticed. The learned Judge
        observed in that case thus :
              "A person who joins in association governed by rules
        under which he may be expelled, ............................ has in
c      my judgment no legal right of redress if he be expelled
       according to the rules, however unfair and unjust the rules
       or the action of the expelling tribunal may be provided that
       it acts in good faith ............................ The phrase, "the
       principles of natural justice," can only mean in this
D      connection the principles of fair play so deeply rooted in
       the minds of modern Englishmen that a provision for an
       inquiry necessarily imports that the accused should be
       given his chance of defence and explanation. On that point
       there is no difficulty. Nor do I doubt that in most cases it is
E      a reasonable inference from the rules that if there is
       anything of the nature of a lis between two persons, neither
       of them should sit on the tribunal.•
       Another difficulty that one is confronted with in proceedings
       held by committees constituted by clubs is to demarcate
F      precisely the line between the prosecutor and the Judge.
       Maugham, J. noticed this difficulty and observed in
       Maclean's case1 (1929) 1 Ch. 602 thus :
              "In many cases the tribunal is necessarily entrusted
       with the duty of appearing to act as prosecutors as well
G      as that of judges; for there is no one else to prosecute. For
       example, in a case where a council is charged with the duty
       of considering the conduct of any member whose conduct
       is disgraceful and of expelling him if found guilty of such
       an offence, it constantly occurs that the matter is brought
H      to the attention of the council by a report of legal
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1023
 CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]

    proceedings in the press. The member is summoned to A
    appear before the council. The council's duty is to cause
    him to appear and to explain his conduct. It may be that in
    so acting the council are the prosecutors. In one sense they
    are~ but if the regulations show that the council is bound
    to act as I have mentioned and to that extent to act as B
    prosecutors, it seems to be clear that the council is not
    disqualified from taking the further steps which the rules
    require."
    Though it is advisable for a club to frame rules to avoid
    conflict of duties, if the rules sanction such a procedure,     c
    the party, who has bound himself by. those rules, cannot
    complain, unless the enquiry held pursuant to such rules
    discloses malafides or unfair treatment."
    1. LR (1929) 1 Ch D 602, 623
     24. On the issue of bias however, Shri Sundaram pointed        D
out that as far as the law in India is concerned, a Constitution
Bench of this Court has already clarified the legal position, and
held that the test of 'real danger' of bias is the valid test and
not the one of reasonable apprehension. In M.P. Special Police
Establishment Vs. State of M.P. reported in [2004 (8) SCC           E
788], the Constitution Bench was concerned with the question
of bias in the context of sanction to prosecute the ministers. In
paragraph 14, the Court observed as follows:-
    " .....The question in such cases would not be whether they
    would be biased. The question would be whether there is         F
    reasonable ground for believing that there is likelihood of
    apparent bias. Actual bias only would lead to automatic
    disqualification where the decision-maker is shown to have
    an interest in the outcome of the case. The principle of real
    likelihood of bias has now taken a tilt to "real danger of      G
    bias" and "suspicion of bias ..... ."
      The Constitution Bench referred with approval an earlier
judgment in the case of Kumaon Manda/ Vikas Nigam Ltd. Vs.
 Girija Shankar Pant reported in [2001 (1) SCC 182]. In that
                                                                    H
     1024 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.


 A case the question was whether the Managing Director had a
   bias against the respondent therein. This Court had held that
   mere apprehension of bias was not sufficient but that there must
   be real danger of bias.
        25. With respect to the doctrine of necessity, Shri
B Sundaram referred to the judgment of this Court in the case of
   Election Commission of India Vs. Dr. Subramaniam Swamy
   reported in [1996 (4) sec 104] where in the context of the
   disagreement amongst the Election Commissioners, this Court
   had applied this doctrine of necessity. He pointed out that this
C Court had even observed that 'if the choice is between allowing
   a biased p'tirson to act or to stifle the action altogether, the
   choice must fall in favour of the former as it is the only way to
  promote decision making'. Shri Jethmalani on the other hand
   submitted that the doctrine of necessity could be applied in
  cases of constitutional or statutory requirements, and cannot be
D brought into in matters of contract. He submitted tha· · this
  judgment should be read as such, and assailed ttie application
  of doctrine of necessity in the present case.
        26. Shri Jethmalani drew out attention to a recent judgment
E of this Court in Justice P.O. Dinakaran Vs. Hon'ble Judges
   Inquiry Committee and ors reported in [2011 (6) SCALE 97],
  where this Court accepted the grievance of apparent bias
   against a Jurist Member of the Inquiry Committee and
  requested the Chairman of Rajya Sabha to nominate another
  jurist in his place in the inquiry against the petitioner. Shri
F Sundaram however, pointed out that the committee was
  constituted as a matter of Constitutional requirement where the
  benchmark required with respect to fairness will be quite high.
  In the present matter we are concerned with the question of
  likely unfairness on the part of members of a domestic tribunal
G of a society, and that context has to be kept in mind.
         27. We have noted the submissions of the ri Jal parties. The
   objection of Shri Jethmalani to the forming of the Disciplinary
  Committee was on the basis of rule 1 (q). When we read this
  f:.ile we find that the rule states that the Board shall at every
H Annual General Meeting appoint a Committee consisting of
LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1025
 CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
three persons. The President shall be one of them and the A
function of the Committee is to inquire into and deal with the
matters relating to any acts of misconduct etc. In view of the
wording of this rule, there is no difficulty in accepting that
normally the President has to be one of the members of this
Committee. The question is with respect to the necessity B
arising on account of the President. being unavailable in a
situation like the present one.
     28. In .this connection, we must note that the word 'shall'
has been interpreted as 'may' in a number of judgments while
interpreting such provisions on different occasions. In State of c
U.P. Vs. Manbodhan Lal reported in [AIR 1957 SC 912] a
Constitution Bench of this Court was concerned with the order
of Compulsory .Retirement of the respondent who had
challenged it on the ground that the Union Public Service
Commission had not been consulted. This was in the context 0
of Article 320 (3) (c) of the Constitution which reads as follows:-
         "320 (3) "The Union Public Service Commission or
    the State Public Service Commission, as the case may
    be, shall be consulted.
            (a)...........                                        E
            (b) ......... .
           (c) on all disciplinary matters affecting a person
    serving under the Government of India, or the Government
    of a State in a civil capacity, including memorials or         F
    petitions relating to such matters."
    The Constitution Bench held that the consultation was not
mandatory. The Court observed in paragraph 11 of the
judgment as follows:-
     • ........the use of the word "shall" in a statute, though G
     generally taken in a mandatory sense, does not
     necessarily mean that in every case it shall have that effect,
     that is to say, that unless the words of the statute are
     punctiliously followed, the proceeding, or the outcome of
     the proceeding, would be invalid.                              H
     1026 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


 A       On the other hand, it is not always correct to say that where
         the word "may" has been used, the statute is oniy
         permissive or directory in the sense that non-compliance
         with those provisions will not render the proceeding invalid.
         In that connection, the following quotation from Crawford
 8       on 'Statutory Construction' - Art. 261 at p. 516, is pertinent

                "The question as to whether a statute is mandatory
         or directory depends upon the intent of the legislature and
         not upon the language in which the intent is clothed. The
c        meaning and intention of the legislature must govern, and
         these are to be ascertained, not only from the phraseology
         of the provision, but also by considering its nature, its
         design, and the consequences which would follow from
         construing it the one way or the other....... ."
D       29. We may as well profitably refer to a judgment of this
   Court in the case of State of A.P. and another Vs. Dr.
   Rahimuddin Kamal reported in [AIR 1997 SC 947]. In that
   matter this Court was concerned with Rule 4(2) of the Andhra
   Pradesh Civil Services (Disciplinary Proceedings Tribunal)
E Rules, 1961, where the expression 'shall' had been used in the
   Rules, making it obligatory upon the part of the Government,
  to examine the records, consult the Head of the Department
  and Vigilance Commission and then pass an appropriate order.
   In that case the order of removal from service was passed in
  accordance with law and after conducting appropriate inquiry
F but without consulting the Commission. The Court took the view
  that the expression 'shall' had to be construed as 'may' and non
  consultation with the Commission would not render the order
  illegal or ineffective.
G      30. In the instant case the petitioner himself had objected
  to the President being the member of the Committee. That
  being the position, the President recused hims;;Af from the
  Committee. When a situation thus arises, in view of the
  objection of the petitioner, the society cannot be left without a
  remedy. The submission of Shri Jethmalani is that the alternate
H disciplinary committee has to be one which is not objected by
LAUT KUMAR MODI v. BOARD OF CONTROL FOR 1027
 CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]

the petitioner. The rules lay down the terms of the contract          A
amongst the members of the society, and the terms can be
altered only with the consent of the concerned members. As
far as this submission is concerned, we must note that firstly,
the rule does not say that if the President cannot be a member
of the Committee no substitution shall take place, nor does it        8
say that the substituting member should be one not objected
by the delinquent against whom the enquiry is proposed. This
 rule is being canvassed as a term of the contract of
membership. A member of the society having accepted the
 rules, agrees to the disciplinary authority of the three member      C
 Committee which is to be constituted under these rules. He
 cannot claim a right to dictate as to who should be the members
 of the Committee. Any such interpretation will lead to a situation
 that the delinquent will decide as to who should be the members
 of the Disciplinary Committee. Such a submission cannot be
 accepted. In our understanding the rule is elastic enough, and       D
 in an appropriate situation the word 'shall' can be read as
 'may'. It is very clear that, normally the President shall be a
 member of three Member Committee, but if for any reason his
 presence on the Committee is objected to on grounds of
 unfairness, and he recuses himself therefrom, the respondent         E
 no.1 certainly has the power to substitute him by some other
 person. The action of the respondents is sought to be defended
 on the basis of necessity. The doctrine of necessity is a
 common law doctrine, and is applied to tide over the situations
 where there are difficulties. Law does not contemplate a
                                                                      F
 vacuum, and a solution has to be found out rather than allowing
 the problem to boil over. Otherwise, as proposed by Shri
  Jethmalani one will have to wait for one more year for a new
  President to be elected, which submission cannot be accepted.
    31. As far as the disciplinary actions by societies and G
associations are concerned, many of the societies under the
Tamil Nadu Societies Registration Act and similar State Acts,
are smaller societies. It is another matter that the first
respondent society is a large body having large resources. If
the members or the Managing Committee of a Society receive
                                                              H
     1028 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


A a complaint of any misconduct on the part of any of its office
  bearers, surely the subject is expected to be taken up in the
  General Body Meeting of the Society. These societies are
  expected to sort out the future course of action with respect to
  such allegations on their own on the basis of their internal
B disciplinary mechanism. Merely because all the members of a
  society have participated in the discussion concerning such
  allegation, the Society can't be expected to appoint an outsider
  to hold the disciplinary proceeding. It may not be financially
  possible as well for such small societies. That apart, only a
  prima facie opinion is formed in such meetings. Merely
C because a member has participated in such a meeting he
  cannot be accused of bias to disentitle him from being
  appointed on the Disciplinary Committee.
         32. We have noted the submissions of the petitioner with
    respect to his apprehensions. However, as far as the
D propositions of law are concerned, we cannot take a different
    view in the present case from the law laid down in the judgment
    of the Constitution Bench of this Court in M.P. Special Police
    Establishment (supra), and the judgment of four Judges in T.P.
    Daver Vs. Lodge Victoria (supra). As held in M.P. Special
E Police Establishment, a mere apprehension of bias cannot be
   a ground for interference. There must exist a real danger of
   bias. And, following T.P. Daver Vs. Lodge Victoria, though such
   domestic inquiries have undoubtedly to be fair, a member of a
   society cannot stretch the principle of fairness to the extent of
F demanding a tribunal consisting of outsiders, on the basis that
   the society members are biased against him. As we have noted,
   the petitioner has, in clear terms stated that he was not making
   any personal allegations against two members of the
   Disciplinary Committee, viz. Shri Jaitely and Shri Scindia. Even
G the grievance against the third member Shri Amin cannot be
   said to be well founded. The petitioner was alleging institutional
   bias against the members of the Committee, which was only
   on the basis of their participation. in the meetings of the first ·
   respondent society. In this way, institutional bias can be alleged
 , against every member of the Governing Council of IPL and the
H General Body of the first respondent which cannot be
 LALIT KUMAR MODI v. BOARD OF CONTROL FOR 1029
  CRICKET IN INDIA AND ORS. [H.L. GOKHALE, J.]
accepted. The petitioner may have an apprehension, but it is A
not possible to say from the material on record that he was
facing a real danger of bias. We cannot presume that the three
member committee will not afford the petitioner a fair hearing,
or that it will not render unbiased findings. Taking a view as
canvassed by the petitioner will lead to a demand for B
interference in the enquiries conducted by all other societies
in such situations, and that cannot be approved in view of the
 law already laid down by this Court. This is apart from the view
 that we have taken, that the Committee is validly constituted
 under Rule 1(q) in view of the necessity arising due to the C
 recusal of the President of BCCI from the Committee.
     33. This being the position, we find no error in the judgment
and order dated 15.7.2010 passed by the Division Bench of
the Bombay High Court in Writ Petition No.1370 of 2010.
Similarly, we do not find any error in the order of the Disciplinary · D
Committee declining to recuse, or the decision of the Annual
General Meeting of the first respondent to extend the term of
this Disciplinary Committee for the inquiry against the
petitioner. Consequently, there was· no error in the two
judgments of the High Court upholding those two decisions as
~II.                                                                   E
      34. For the reasons stated above, all the three petitions
are dismissed, though parties can certainly bear their cost of
the litigation.
B.B.B.                      Special Leave Petitions dismissed.        F