CRICKET ASSOCIATION OF BIHAR vs. THE BOARD OF CONTROL FOR CRICKET IN INDIA AND ORS.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.55 OF 2013
Cricket Association of Bihar ...Petitioner
V/s.
Board of Control For Cricket in India & Ors. ...Respondents
Dr.Virendra Tulzapurkar, Senior Counsel with Dr.Birendra Saraf,
Mr.Ameet Naik, Mr.Karan Bhosale, Mr.Vaibhav M. Bhure, Mr.Tashi
Phuntsog and Mr.Asadulla Thangal i/b Naik Naik & Co.for the
Petitioner.
Mr.Rafique Dada, Senior Counsel with Mr.T.N.Subramanian, Senior
Counsel, Ms.Ankhila Kaushik, Mr.Rahul Mascerhnas, Mr.Indranil
Deshmukh, Mr.Aditya Mehta and Mr.Adarsh Saxena i/b Amarchand
Mangaldas & S.a. Shroff & Co. for Respondent No.1.
Mr.I.M. Chagla, Senior Counsel with Mr.F.E. DeVitre, Senior Counsel
and Mr.Prashant Beri i/b Beri & Co. for Respondent No.2.
Mr.Janak Dwarkadas, Senior Counsel with Mr.Sharan Jagtiani,
Mr.Rohan Dakshini, Mr.S. Bobde and Ms.Nikita Mishra i/b Federal &
Rashmikant for Respondent No.3.
Mr.J.J. Bhatt, Senior Counsel with Mr.Shyam Mehta, Senior Counsel
with Mr.Ashish Kamat i/b Crawrord Bayley & Co. for Respondent
No.4.
CORAM : S.J. VAZIFDAR &
M.S. SONAK, JJ.
DATE : 30TH JULY, 2013.
P.C. :-
1. Rule. The Writ Petition is heard finally.
2. The petition is filed as a public interest litigation.
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The petitioner is registered under the Societies
Registration Act, 1860. Respondent no.2 – N. Srinivasan is the
President of respondent No.1 – The Board of Control for Cricket in
India. Respondent No.2 is a shareholder and the Vice Chairman and
Managing Director of respondent No.3 – India Cement Limited.
Respondent No.3 is the owner of a cricket team / franchisee –
Chennai Super Kings. Respondent No.4 – Jaipur IPL Cricket Private
Limited is the owner of a cricket team / franchisee – Rajasthan
Royals.
The two teams, participated in the Indian Premium League
(hereinafter referred to as “IPL”) the only Twenty – 20 cricket
tournament organized by respondent No.1 – conducted earlier this
year.
3(A). The petitioner has sought several reliefs. Dr.Tulzapurkar,
the learned senior counsel appearing on behalf of the petitioner,
however, confined himself to only the following reliefs.
The petitioner seeks a writ of mandamus, directing
respondent No.1 to recall its order constituting the probe panel
comprising of two learned retired Judges of the Madras High Court to
probe into the allegations of betting and spot fixing in IPL against
respondent Nos.3 and 4 and one Gurunath Meiyappan – the son-in-
law of respondent No.2. The petitioner also seeks an order
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constituting a panel comprising of retired Judges of this Court to
conduct the said enquiry to be monitored by this Court.
(B). It will be necessary later to refer to the other reliefs, which
were not pressed by Dr.Tulzapurkar. These reliefs were referred to
on behalf of the respondents in support of their contention that this is
not a genuine public interest litigation. They contend that the
petitioner has a private interest and is involved in other disputes with
respondent No.1 and respondent No.2. They further contend that this
petition has been filed at the behest of one A.C. Muthiah, who also
has several disputes with respondent No.1 and respondent No.2.
There are in fact proceedings pending between the petitioner and the
said A.C. Muthiah against respondent No.1 and respondent No.2.
4. The respondents raised three preliminary objections viz.
that there are several disputed questions of fact which cannot be
adjudicated in a Writ Petition; that a Writ Petition is not maintainable
against respondent No.1 and that this is not a bona-fide PIL.
It is necessary to first note the facts even to consider the
preliminary objections.
5. According to the petitioner, the circumstances in which the
probe commission was constituted are these. In or about April, 2013,
the Duty Officer, Special Cell, Delhi Police received secret
information that certain members of the underworld were involved in
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fixing of on going IPL cricket matches with the active participation of
some unidentified conduits based in Delhi, who were contracting with
IPL cricketers at very high prices with a view to stage manage some
matches for making windfall gains through other bookies, who
facilitate illegal gambling in this game. This has been widely reported
by the media. Based on the complaint from the Inspector, Special
Cell, Delhi police, FIR No.20.2013 was registered by the Special Cell,
Delhi Police on 09.05.2013. It came to light that there was a cross
city bookie – player nexus, involving, inter-alia , several players and a
film link “leading right back to respondent No.2's own IPL franchise,
respondent No.3 viz. Chennai Super Kings and respondent No.4 viz.
Rajasthan Royals.” On 16.05.2013, the Delhi Police Special Cell
started investigating into the IPL match between two teams, Kolkatta
Knight Riders and Royals Challengers held on 12.05.2013. On
16.05.2013, three Rajasthan Royals players were detained by the
Delhi police on allegations of spot fixing. Respondent No.1
immediately suspended the three players. Seven bookies from
Mumbai were detained by the Delhi police. The case is before the
Delhi Metropolitan Magistrate. Investigations were also
simultaneously conducted by the Mumbai police, which have also
arrested several persons. A film actor was linked with the said
Gurunath Meiyappan, who is the son-in-law of respondent No.2 and
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also on the Board of Directors of respondent No.3. The said actor
was arrested on 21.05.2013. Subsequently on 24.08.2013, the said
Gurunath Meiyappan was arrested and was later granted bail. The
said Gurunath Meiyappan has described himself as a Team Principal
of Chennai Super IPL Team. Respondent No.3 however, issued a
statement that Gurunath Meiyappan was not the Team Principal of
Chennai Super Kings. Respondent No.1 is said to have suspended
Gurunath Meiyappan from all cricket activity.
According to the petitioner, the probe panel was
constituted only in view of the public pressure that started mounting
to have respondent No.2 step down as the President of respondent
No.1.
6. Before referring to the allegations regarding the manner in
which the probe panel was constituted, it is important to note the first
respondent's case, as stated in its affidavit in reply, as to how it was
constituted. The affidavit is filed by one Ratnakar Shetty, who is the
General Manager – Games Development of the IPL. We will refer to
each of the steps mentioned in paragraph 4 of the affidavit in reply of
respondent No.1 in the formation of the probe panel.
A). The affidavit refers to the media reports of 16.05.2013
regarding the three players of Rajasthan Royals having been
detained by the Delhi police on allegations of spot fixing and the
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media reports of 25.05.2013 regarding the arrest of the said
Gurunath Meiyappan on allegations of betting and/or spot fixing.
B)(i). The affidavit then states that on 26.05.2013, an
announcement was made on behalf of respondent no.1 before the
media that a commission comprising of two members of respondent
No.1 and one independent member would be constituted to enquire
into the allegations of betting and/or spot fixing.
(ii) In the petitioner's affidavit in rejoinder, it is specifically
stated that there are no details as to who took the decision for the
appointment of the commission. There is no sur-rejoinder.
Respondent No.1 never attempted to answer this issue even during
the hearing before us.
C(i) The affidavit states that accordingly on 28.05.2013,
complaints were made against the three entities viz. respondent
No.3, respondent No.4 and the said Gurunath Meiyappan.
(ii) The petitioner sought inspection inter-alia of the
complaints by its advocate's letter dated 08.05.2013. Respondent
No.1 by its advocate's letter dated 08.07.2013 refused the same on
the ground that the complaints were an internal affair. At our request,
the complaints were tendered across the bar only for our perusal.
However, as none of the respondents were willing to have the same
referred to in these proceedings, we returned the same to the
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respondents' advocate. We, therefore, say nothing about them.
D.(i) The affiant states that on the same day – 28.05.2013 - he
called the members of the Governing Council of IPL. The first
member of the Governing council he called was Mr. Arun Jaitley, who
suggested that the commission should comprise of only one member
of respondent No.1 and two independent members, who should be
retired Judges.
(ii) This was indeed a commendable suggestion. There can
be no objection to Arun Jaitley's suggestion for it promotes fairness
and transparency by introducing on the commission outsiders, who
would be in a majority. Whether this suggestion was implemented
fairly is disputed by the petitioner.
E)(i) The affiant then states that he asked the first respondent's
legal advisor to suggest the names of two retired Judges to be
independent members of the commission and that he called upon the
members of the Governing Council individually and informed them
the availability of Mr.Justice Balasubramaniam and Mr.Justice T.J.
Choutha, both former Judges of the Madras High Court and sought
their approval for constituting a disciplinary commission comprising
of the said Judges and the then Hon.Secretary of respondent No.1
one Sanjay Jagdale, to hear and decide upon the said complaints.
This was done in terms of the Operational Rules for 2013 IPL dated
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15.03.2013. The affiant states that the majority of the members of
the Governing Council decided to appoint the said three members;
that Respondent No.2 had no role to play in the process and was not
present when he spoke with the members of the Governing Council.
He states that he neither consulted nor sought the approval of
respondent No.2 for the appointment of the said commission.
(ii) In the affidavit in rejoinder, the petitioner stated that there
was no mention of the name of the legal advisor who recommended
the names of the two Judges and where they were based. Despite
the same, respondent No.1 has not filed a sur-rejoinder or cared
even otherwise to furnish the details. This would be necessary to
refute the petitioner's contention that respondent No.2 was
responsible for the appointment of the members of the commission.
F)(i) On 29.05.2013, the affiant addressed the following letter
to the members of the commission confirming their appointment :-
“Dear Sirs,
Re: Commission formed under the 2013
IPL Operational Rules to enquire into
Complaints lodged by the BCCI
This Letter is addressed to you in formal confirmation
of your appointment to the three member Commission
that as been formed in accordance with the 2013 IPL
Operational Rules to enquire into complaints against
the following persons/entities ;
1. Mr.Gurunath Meiyappan ;
2. Indian Cements Ltd. the owner of the
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Chennai Super Kings Franchise ;
3. Jaipur IPL Pvt. Ltd. the owner of the
Rajasthan Royals Franchise ;
We enclose a copy of the 2013 IPL Operational
Rules, which contain the terms, which govern the
proceedings to be conducted by the Commission
specifically contained in Section 6 thereof. We will
provide the Commission copies of the various
Regulations referred to in the Operational Rules
separately along with the Complaint.
In accordance with Rule 3.1 of Section 6 of the
Operational Rules, we request the Commission to
kindly inform the BCCI as to the Chairman of the
Commission to whom the Complaints are to be filed
with along with such further documents and
information as may be required by the Commission.
Yours faithfully,
Board of Control for Cricket in India
Sd/-
Professor Ratnakar Shetty
Manager Game Development”
G)(i) On 31.05.2013 the said Sanjay Jagdale tendered his
resignation and stated that he did not want to continue as a member
of the commission.
(ii) To the affidavit in rejoinder, the petitioner annexed a letter
dated 29.06.2013 addressed by it to the said Sanjay Jagdale,
enquiring inter-alia as to who informed him about the constitution of
the probe panel and who informed him about the inclusion of his
name in the probe panel. By his e-mail dated 29.06.2013, the said
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Sanjay Jagdale stated that it was the deponent in the affidavit-in-
reply of respondent No.1, who informed him on the telephone on
28.05.2013 in the evening around 7:00 p.m. about his appointment.
He also stated that he was not aware of any IPL Governing Council
meeting held on 28.05.2013 to appoint the three member probe
panel.
H)(i) The affidavit states that a meeting of 22 out of 24
members of the Working Committee of respondent No.1 was held at
Chennai on 02.06.2013, at which he was also present. Respondent
No.2 announced that he would not be involved in the day to day
affairs of respondent No.1 till the said complaints had been heard
and decided by the commission and that in the meantime the day to
day affairs of respondent No.1 would be carried on by one Jagmohan
Dalmiya.
(ii) Dr.Tulzapurkar emphasized that respondent No.2
admittedly allegedly ceased to be involved in the day to day affairs
of respondent No.1 only after the commission was constituted.
I) The affidavit then states that on 06.06.2013, the said
Jagmohan Dalmiya decided that in view of the resignation of the said
Sanjay Jagdale, the commission would continue with only two
members and communicated this decision to the affiant. Pursuant
thereto, the affiant addressed a letter dated 08.06.2013 to the two
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remaining members. It is further stated that the Working Committee
of respondent No.1 ratified the decision at a meeting held on
10.06.2013.
J) On 14.06.2013, the complaints were made against one
Raj Kundra and Jaipur IPL Cricket Limited.
7. Dr.Tulzapurkar submitted that there was a clear conflict of
interest between respondent No.2 - the President of respondent No.1
and the persons / entities against whom the complaints are to be
investigated. This is correct. The respondents did not even contend
otherwise. In fact, respondent No.2, therefore, alleged that he had no
role to play in the formation of the Commission. Whether that is done
or not is the question before us.
We hasten to add that the alleged ills of one ought not to
be visited upon another even if they are closely, very closely related
or connected. There cannot be guilt by such association or
relationship alone. However, such a relationship or association
constitutes a conflict of interest when a person plays any role in a
process for the adjudication of or investigation into the conduct or
role of his relative or of a close associate of his. The respondents
have therefore, rightly not even contended that respondent No.2
could have taken any part in the investigation including the formation
of the probe commission. The question therefore, is whether, in fact
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he had any role in the formation of the commission.
8. Dr.Tulzapurkar submitted that it is inconceivable that
respondent No.2 had no role to play in the formation of the
commission including in the appointment of the members thereof.
There is no direct evidence in this regard. Indeed, it would be difficult
for there to be any direct evidence. He, however, relied upon several
factors/circumstances in support of this contention. They are as
follows.
9.(A) Dr. Tulzapurkar submitted that the issue being enquired
into is very serious. When the commission was appointed,
respondent No.2 was the President of respondent No.1. That he
subsequently announced that he would not be in day to day
management of respondent No.1 till an enquiry was concluded,
would not by itself establish that he had no role to play in the
formation of the commission.
(B) We agree, but on the other hand, merely because
respondent No.2 was the President of respondent No.1, it does not
follow that he took part in the formation of the commission. In other
words, whether respondent No.2 was the President and in-charge of
the day to day affairs of respondent No.1 or whether he ceased to be
in day to day management of respondent No.1, would not be
conclusive on the question as to whether or not, he played any role in
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the formation of the commission. His continued connection with
respondent No.1 only enhances the possibility of his having played a
role in the formation of the commission.
10. However, as Dr.Tulzapurkar submitted it does appear
curious that in a matter as important as this the General Manager -
Game Department of IPL and nobody else initiated the process and
thereafter virtually orchestrated the same single-handed. The entire
process was initiated and put in place by the affiant allegedly making
separate phone calls to each of the members of the Governing
Council of the IPL. It is not even the first respondent's case that the
members of the Government Council spoke to each other. Normally
on a matter of such importance, we would have expected the
Governing Council to have met and deliberated the issue at a
meeting or at least by way of video conferencing. There is no
explanation why they did not do so. As Dr.Tulzapurkar rightly pointed
out even the alleged ratification of the said Dalmiya's decision to
constitute a commission of the learned Judges alone is not supported
by any documentary evidence. In short the entire process leading to
the formation of the commission was undertaken orally.
11. Respondent No.1 has refused to furnish any details or
answer any of the questions raised in the affidavit in rejoinder. For
instance, respondent No.1 has not indicated who took the decision
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on the basis of which the announcement was made on 26.05.2013
that a commission comprising of two members of respondent No.1
and one independent member would be constituted to enquiry into
the allegations of betting and/or spot fixing.
12. Respondent No.1 has not even disclosed the names of
the legal advisor, who suggested the names of the members of the
commission.
13. It is not without significance that the affiant has been
barred for five years by his parent cricket association – Mumbai
Cricket Association from taking part in any activity of the association
including contesting the elections on account of the alleged misuse of
the association's money. On the other hand, the members of
respondent No.1 such as the said Sanjay Jagdale, who was the
Secretary of respondent No.1 and one Ajay Shirke, the then
Treasurer of respondent No.1, did not even know anything about the
process of appointment of the probe panel. They were both also
members of the Governing Council of the IPL by virtue of the
Memorandum and Rules and Regulations of respondent No.1 (Rule
27 M read with Rule 1 (k) set out later in this judgment). The said
Ajay Shirke by a letter dated 04.07.2013, in response to the
petitioner's letter, stated that he was not aware of any meeting of the
IPL Governing Council nor as to who suggested the names of the
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members of the probe panel.
The said Sanjay Jagdale and Ajay Shirke have not filed
affidavits themselves. However, their letters have been annexed to
the affidavit in rejoinder. The respondents have not denied the
contents thereof. It was therefore, not necessary for them to file an
affidavit. The said Sanjay Jagdale and Ajay Shirke resigned
immediately after the formation of the probe panel.
14. In paragraph 4(e) of the affidavit in reply, the affiant states
that he called the members of the Governing Council of IPL. In the
affidavit in rejoinder,the petitioner has expressly stated that there are
no details as to which of the members the affiant called. There is no
response to this by the respondents.
15. These facts and the failure of respondent Nos.1 and 2 to
deal with them or to even attempt to answer them are factors against
them. Although each of the factors by itself does not support
Dr.Tulzapurkar's inference, taken together they indicate at least that
the petitioner's case is not improbable. Absent anything else, they
indicate a degree of probability that respondent No.2 did have a role
to play in the appointment of the members of the commission.
16. However, in a matter such as this and in respect of
allegations, such as these, it would be neither safe nor fair to
respondent Nos.1 and 2 to draw a final conclusion against them on
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the basis of affidavit evidence. Mr.Dada and Mr.Chagla's contention
that this is a disputed question of fact is well founded. It is only in a
trial that the Court would be able to come to a final conclusion in this
regard. These are indeed very serious allegations in a matter which
is even more serious. On this issue the most that can be said in
favour of the petitioner at this stage and in this proceeding is that it
has made out a prima-facie case that respondent No.2 was involved
in the formation of the commission. The least that must be said in
favour of the petitioner is that the respondents have not established
that respondent No.2 had no role to play in the formation of the
commission.
17. We would normally, therefore, have relegated the
petitioner to filing a suit or any other proceedings in which it can be
ascertained with a greater degree of certainty whether or not
respondent No.2 played a role in the formation of the commission.
However, in view of our finding that the constitution of the
commission is not in accordance with the Rules and Regulations of
respondent No.1, this may not be necessary.
18. Least we may be misunderstood, it is of vital importance
to clarify an important aspect. What we have discussed thus far
does not reflect adversely upon the members of the commission. Our
observations do not even remotely suggest any collusion between
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respondent No.2 and the members of the commission.
Dr.Tulzapurkar himself did not make any allegations against the
members of the commission. For the purpose of this hearing, he
restricted himself to the point that respondent No.2 was instrumental
in the appointment of the members of the commission. For the
purpose of this hearing he did not go a step further and allege any
collusion. In fact he reiterated the statement in the petition that the
petitioner was not raising any issue of integrity of the members of
the commission. However, if in fact respondent No.2 had any role to
play in the appointment of the members of the commission, the
process would be vitiated, for being an interested party, he ought to
have had no role to play. This would be so even if there is no nexus
between the petitioner and the members of the commission
regarding their appointment.
19. However, as Mr.Dada and Mr.Chagla rightly pointed out,
the petition is replete with serious allegations and in any event
innuendos against the learned retired Judges. This is clear for
instance from paragraph 7.37, where it is alleged that the
appointment of the probe committee is only an eye wash and a
course of action adopted only to avoid any action against respondent
No.2. It is further stated that the ulterior motive of respondent No.2 is
to obtain a clean chit from the committee, including that his son-in-
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law is not the team owner or team principal of Chennai Super Kings
and that he has no connection whatsoever with Chennai Super
Kings. Then again in paragraph 7.39, the petitioner has averred that
the commission is being perceived by the public at large as a cover-
up exercise and hardly helps in restoring the faith of the public at
large in the integrity of the game.
20. We do not intend dealing with the allegations against the
learned Judges as they have not been impleaded. Moreover, the
allegations were not pressed by Dr.Tulzapurkar.
21. There is, however, no substance in the petitioner's
contention that it is surprising that the legal advisor recommended
the names of the retired Judges from Chennai. Where the members
of the commission are from is utterly irrelevant. It makes no
difference where they are from. Dr.Tulzapurkar of course rightly did
not press this point before us. We proceeded on the basis that there
was no collusion between respondent No.2 and the members of the
committee.
22. The hearing of this writ petition commenced on
12.07.2013. During the course of the hearing on 19.07.2013, we
were informed by Mr.Bhatt and Mr.Dwarkadas, the learned senior
counsel appearing on behalf of respondent Nos.3 and 4 that the
hearing before the Commission had concluded. This is what they
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stated. A preliminary meeting was held by the commission, whereat
only the procedure was decided. The hearing on merits was held on
only one day. On that day, respondent No.3 and the said Gurunath
Meiyappan were heard together but in the absence of the other
parties. Thereafter respondent No.4 and one Raj Kundra were heard
together but in the absence of the other parties. Some police officers
also appeared before the commission but in the absence of all the
other parties. The matter was closed / concluded by the commission
on that very day. Written submissions were tendered thereafter.
Respondent Nos.3 and 4 stated that they had no objection
to the Commission or to the manner in which it held the hearing.
None of the parties agreed to divulge any details
regarding the hearing stating that the same was an internal matter
with which neither the petitioner nor any member of the public is
concerned in any manner whatsoever.
23. We refrain from making any observations regarding the
nature of this hearing as it is not the subject matter of this petition.
24. This brings us to the next preliminary objection raised by
Mr.Dada and Mr.Chagla. They submitted that the petition is not
maintainable against respondent No.1, as respondent No.1 cannot
be considered to be state within the meaning of Article 12 of the
Constitution of India. Mr.Chagla further submitted that respondent
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No.1 owes no duty to the public. At least in so far as the IPL is
concerned it is a pure commercial activity. With respect to IPL
matches respondent No.1 only grants franchises, it does not select
any team and the only interest of BCCI is that the tournament goes
on successfully. So far as inquiries relating to IPL tournaments are
concerned, respondent No.1 owes no duty or explanation to the
public. Respondent No.1 is not obliged to keep the public informed
about anything connected with inquiries relating to IPL tournaments.
Respondent No.1, according to them, is an autonomous body. No
interference with its functioning is warranted. It follows therefore, that
the domestic enquiry conducted by BCCI is a purely private matter,
which does not impact any public interest. The public is not
concerned with and cannot be considered to be interested in any
enquiry connected with IPL tournaments. The results of the enquiry
do not go outside respondent No.1. They are not for public
consumption. This is irrespective of the nature of the allegations
that are being enquired into. The writ petition therefore, according to
respondent Nos.1 and 2, is not maintainable and ought to be
dismissed.
25. The question of maintainability of the writ petition is
answered against the respondents and in favour of the petitioner by
the judgment of a Division Bench of this Court dated 15.09.2010 in
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the case of Lalit Kumar Modi vs. BCCI & others, Writ Petition
No.1909 of 2010 . In that case the petitioner challenged the rejection
of his request for recusal of certain members of the Disciplinary
Committee constituted by respondent No.1. BCCI had issued notice
to the petitioner therein in respect of his conduct as Commissioner of
the Indian Premier League (IPL). The petitioner raised objections
with regard to some of the members of the Disciplinary Committee.
The grounds of objection are not relevant. It was contended on
behalf of BCCI even in that case that the writ would lie against BCCI
only when it was acting in public domain and its activities have a
public law element. Hence though a writ would lie against BCCI when
it has awarded contracts, no writ petition would lie under Article 226
of the Constitution of India against BCCI when it acts within the
domain of internal management. In paragraph 20, the Division Bench
noted the contention on behalf of BCCI that the writ petition in
respect of the challenge to the constitution of the Disciplinary
Committee would not be maintainable, as there is no public law
element. The Division held as under :-
“20. Mr. Sundaram's contention is that the
present Writ Petition in respect of the challenge to the
constitution of the Disciplinary Committee would not
be maintainable, as there is no public law element.
We are not inclined to reject this petition on the said
ground alone. In Rameshwar Prasad & Ors. v. Union
of India & Anr. (supra), the Apex Court has held that
though the Board is not created by a statute, and
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cannot be considered to be an authority within the
meaning of Article 12 of the Constitution, but
nevertheless, when a body has a public duty to
perform, the Court may entertain Writ Petition under
Article 226 of the Constitution.
21. The matter was again examined by the
Apex Court in Board of Control for Cricket in India &
Anr. v. Netaji Cricket Club & Ors., reported in (2005) 4
SCC 741, and was dealt with in the following
observations:-
"80. The Board (BCCI) is a society
registered under the Tamil Nadu Societies
Registration Act. It enjoys a monopoly status
as regards regulation of the sport of cricket in
terms of its Memorandum of Association and
Articles of Association. It controls the sport of
cricket and lays down the law therefor. It inter
alia enjoys benefits by way of tax exemption
and right to use stadia at nominal annual
rent. It earns a huge revenue not only by
selling tickets to viewers but also selling right
to exhibit films live on TV and broadcasting
the same. Ordinarily, its full members are the
State associations except Association of
Indian Universities, Railway Sports Control
Board and Services Sports Control Board. As
a member of ICC, it represents the country in
the international fora. It exercises enormous
public functions. It has the authority to select
players, umpires and officials to represent
the country in the international fora. It
exercises total control over the players,
umpires and other officers. The Rules of the
Board clearly demonstrate that without its
recognition no competitive cricket can be
hosted either within or outside the country. Its
control over the sport of competitive cricket is
deeply pervasive and complete.
"81. In law, there cannot be any
dispute that having regard to the enormity of
power exercised by it, the Board is bound to
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follow the doctrine of 'fairness' and 'good
faith' in all its activities. Having regard to the
fact that it has to fulfil the hopes and
aspirations of millions, it has a duty to act
reasonably. It cannot act arbitrarily,
whimsically or capriciously. As the Board
controls the profession of cricketers, its
actions are required to be judged and viewed
by higher standards."
22. In view of the above decision where the
Apex Court entertained the petition challenging the
election of office-bearers of BCCI, the second
preliminary objection of Mr. Sundaram need not
detain us further. In our view, the constitution of a
Disciplinary Committee and the decision of the
Disciplinary Committee of BCCI rejecting the
petitioner's request for recusal of some members
from the Disciplinary Committee are matters which
could be subject-matter of judicial scrutiny in Writ
Jurisdiction.” [emphasis supplied]
26. It was not contended that the judgment does not support
the maintainability of the petition. It was however contended that the
judgment of the Division Bench is per incuriam and that the judgment
of the Supreme Court in BCCI vs. Netaji Cricket Club relied by the
Division Bench, has been impliedly over ruled by the Supreme Court
in Zee Telefilms Limited & Anr. vs. Union of India & Ors. (2005) 4
SCC 649 . (Although reported earlier in the same volume of the
Supreme Court Cases, the judgment in Zee Telefilms Ltd. was
delivered after the judgment in BCCI v. Netaji Cricket Club .). Before
referring to this judgment, we must note that the appeal against the
judgment of the Division Bench was dismissed by the Supreme Court
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– (2011) 10 SCC 106. As pointed out on behalf of the respondents,
the judgment of the Supreme Court did not deal with the question of
the maintainability of the writ petition.
27. Zee Telefilms Limited & Anr. vs. Union of India & Ors. was
placed before a bench of five learned Judges of the Supreme Court.
The majority judgment was delivered by N. Santosh Hegde, J. and
the dissenting judgment was delivered by S.B. Sinha, J. The
Supreme Court considered the preliminary issue raised on behalf of
the respondents in regard to the maintainability of the petition on the
ground that under Article 32, a petition is not maintainable against
BCCI, since it is not state within the meaning of Article 12 of the
Constitution. The Supreme Court after analysing the constitution,
nature and functions of BCCI, held that it was not created by a
statute ; that no part of its share capital is held by the Government ;
that practically no financial assistance is given by the Government to
meet is expenditure and that there is no existence of a deep and
pervasive State control of BCCI and that control is only regulatory in
nature which is not exercised under any special statute applicable to
BCCI. It was also held that though BCCI enjoys monopoly status in
the field of cricket, such status is not State conferred or State
protected and that it is an autonomous body. It was further held that
all functions of the Board are not public functions nor are they closely
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related to governmental functions. Mr.Dada and Mr.Chagla relied
upon paragraphs 24, 25 and 36 of the judgment in respect of their
aforesaid contention. It is however, necessary to also read
paragraphs 31, 33 and 34.
“ 24. To these facts if we apply the principles laid
down by the seven-Judge Bench in Pradeep Kumar
Biswas (2002) 5 SCC 111, 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.
25. 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 (2002) 5 SCC 111. 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 (2002) 5 SCC 111, that by
itself would not suffice for bringing the Board within the
net of “other authorities” for the purpose of Article 12.
31. 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
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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.
33. Thus, it is clear that when a private body
exercises its public functions even if it is not a State,
the aggrieved person has a remedy not only under the
ordinary law but also under the Constitution, by way of
a writ petition under Article 226. Therefore, merely
because a non-governmental body exercises some
public duty, that by itself would not suffice to make
such body a State for the purpose of Article 12. In the
instant case the activities of the Board do not come
under the guidelines laid down by this Court in
Pradeep Kumar Biswas case (2002) 5 SCC 111
hence there is force in the contention of Mr Venugopal
that this petition under Article 32 of the Constitution is
not maintainable.
34. At this stage, it is relevant to note another
contention of Mr Venugopal that the effect of treating
the Board as State will have far-reaching
consequences inasmuch as nearly 64 other National
Sports Federations as well as some other bodies
which represent India in the international forum in the
field of art, culture, beauty pageants, cultural activities,
music and dance, science and technology or other
such competitions will also have to be treated as a
“State” within the meaning of Article 12, opening the
floodgates of litigation under Article 32. We do find
sufficient force in this argument. Many of the
abovementioned federations or bodies do discharge
functions and/or exercise powers which if not identical
are at least similar to the functions discharged by the
Board. Many of the sportspersons and others who
represent their respective bodies make a livelihood out
of it (for e.g. football, tennis, golf, beauty pageants,
etc.). Therefore, if the Board which controls the game
of cricket is to be held to be a State for the purpose of
Article 12, there is absolutely no reason why other
similarly placed bodies should not be treated as a
State. The fact that the game of cricket is very popular
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in India also cannot be a ground to differentiate these
bodies from the Board. Any such differentiation
dependent upon popularity, finances and public
opinion of the body concerned would definitely violate
Article 14 of the Constitution, as any discrimination to
be valid must be based on hard facts and not mere
surmises. (See State of Kerala v. T.P. Roshana (1979)
1 SCC 572). Therefore, the Board in this case cannot
be singly identified as an “other authority” for the
purpose of Article 12. In our opinion, for the reasons
stated above none of the other federations or bodies
referred to hereinabove including the Board can be
considered as a “State” for the purpose of Article 12.
36. In the above view of the matter, the second
respondent Board cannot be held to be a State for the
purpose of Article 12. Consequently, this writ petition
filed under Article 32 of the Constitution is not
maintainable and the same is dismissed.”
[emphasis supplied]
28. The judgment in Zee Telefilms Ltd. did not expressly over
rule the judgment of the Supreme Court in BCCI vs. Netaji Cricket
Club & Ors., reported in (2005) 4 SCC 741 . Nor can it be said that it
impliedly over ruled the judgment. Although the judgment in BCCI vs.
Netaji (supra) is not referred to in the majority judgment, it is referred
to in the minority judgment (paragraph 208 pg. 728). N. Santosh
Hegde, J. who delivered the majority judgment records in paragraph
1 that he had the benefit of reading the minority judgment of Sinha, J.
Thus, the majority judgment considered the judgment in BCCI v.
Netaji Cricket Club . It cannot therefore be said that the learned
Judges who delivered the majority judgment were unaware of and
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did not consider the judgment in BCCI vs. Netaji .
It is also significant to note that the learned Judge who
delivered the majority judgment and the learned Judge who delivered
the minority judgment were the two Judges, who constituted the
bench in BCCI vs. Netaji , which was delivered only three weeks
earlier.
Apart from that the issue in BCCI vs. Netaji was different.
In BCCI vs. Netaji , the original proceedings were suits filed by the
respondents, whereas Zee Telefilms Ltd vs. Union of India was filed
under Article 32 of the Constitution of India. It is in that context that
the above observations must be read. The observations in
paragraphs 80 and 81 in BCCI vs. Netaji, which were quoted by the
Division Bench of this Court in Lalit Kumar Modi vs. BCCI & Ors. also
cannot be said to have been over ruled in Zee Telefilms Limited.
Those observations were not even in relation to Articles 32 or 226 of
the Constitution. In fact paragraph 31 of the majority judgment in Zee
Telefilms Ltd. recognizes that respondent No.1 does discharge some
duties like controlling the activities of the players “and others”
involved in the game of cricket and that these activities can be said
to be akin to public duties or State function. The Supreme Court
went on to hold that even in respect of such functions, a petition
under Article 226 of the Constitution would lie. The question in each
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case therefore, would be whether the action relates or pertains to a
public duty or is akin to a public duty or State function.
29. The question then is whether the impugned action in the
present case constituted performance by respondent No.1 of a public
duty or a State function or can be said to be akin to a public duty or
State function. This question was answered in the affirmative by the
Division Bench of this Court in Lalit Kumar Modi vs. BCCI & Ors.
(supra). The Division Bench expressly held that “constitution of the
Disciplinary Committee …............... are matters which could be
subject-matter of Judicial scrutiny in Writ Jurisdiction.” In Zee
Telefilms Ltd, such an issue did not arise. The Supreme Court did
not consider whether constitution of a Disciplinary Committee by
respondent No.1 could be subject matter of judicial scrutiny in writ
jurisdiction. It cannot therefore, be said that the judgment of the
Division Bench is per-incuriam on account of the Division Bench not
having considered the judgment of the Supreme Court in Zee
Telefilms Ltd vs. Union of India .
30. We are bound by the judgment of the Supreme Court in
BCCI v. Netaji Cricket Club and by the judgment of the Division
Bench of this Court in Lalit Modi v. BCCI & Ors. Accordingly it is
neither necessary for nor open to us to consider the preliminary
objection on principle. It must be answered in favour of the petitioner
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on the authority of the judgment of the Division Bench in Lalit Kumar
Modi vs. BCCI & Ors .
31. The last preliminary objection is that this is not a bona-fide
PIL and that the petition is filed contrary to the Bombay High Court
Public Interest Rules, 2010.
32. The petitioner has in paragraph 1 of the petition disclosed
the pendency of an appeal between respondent No.1 and itself in the
Supreme Court relating to its membership with respondent No.1. It
contends however, that irrespective of this dispute, it is interested in
upholding the transparency, accountability, integrity and faith of the
public at large in the game of cricket. Recent events, according to
the petitioner, have eroded the faith of the public at large in cricket in
India. Some of the main objects of the petitioner are to promote,
encourage, organize or control the game of cricket throughout the
State of Bihar, to foster the spirit of sportsmanship and co-operation
among the members, officials and to advance and to safe guard the
interest of the game of cricket. The petitioner claims to be seriously
concerned about the quality and integrity of cricket in India and that it
has always taken action regarding all aspect of the game and has
promoted the game in India.
33. The respondents however, have referred to a series of
other litigations between the petitioner and respondent No.1 and
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respondent No.2. In support of their contention that the petition is not
in accordance with the Bombay High Court Public Interest Litigation
Rules, 2010 (hereinafter referred to as “the said Rules”) Mr.Dada,
relied upon Rules 3(e) and 5(e), which read as under :-
“3. Definition :- In these Rules, unless there is
anything repugnant to the subject or context, -
(e) “Public Interest Litigation Petition” means a
petition instituted pro bono publico and includes a
legal action initiated by or in the Court for enforcement
of public interest or general interest as distinguished
from individual interest, in which the public or a class
of the community have some interest by which their
legal rights or liabilities are affected or a petition filed
to protect the public law interest.
5. In the petition to be filed under Clause (e) of
Rule 4, the petitioner shall disclose :-
(e) details regarding any civil, criminal or
revenue litigation, involving the petitioner or any of the
petitioners, which has or could have a legal nexus
with the issue(s) involved in the Public Interest
Litigation.”
34. Mr.Dada and Mr.Chagla stated that the petitioner has
failed to disclose the following proceedings :-
A). The petitioner had filed Writ Petition No.2550 of 2009 in
this Court, seeking an order for full membership of respondent No.1
from the State of Bihar. The petition was dismissed by an order and
judgment of a Division Bench of this Court on 13.12.2010.
The petitioner filed Civil Appeal No.7445 of 2011 before
the Supreme Court, challenging the above order, which is pending.
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B). The Secretary of the petitioner claiming to be the
Secretary of Saran District Cricket Association filed CWJC No.7491
of 2008 before the Patna High court, challenging the report of a
second three member committee of respondent No.1, which in
substance assails the registration of Jharkhand State Cricket
Association under the Societies Registration Act, 1860 and sought a
revival of the Bihar Cricket Association as on 14.11.2000.
The said Secretary has filed a Transfer Petition, seeking a
transfer of the proceedings to the Supreme Court, which is also
pending.
C). The Inspector General of Registration, Bihar, cancelled
the registration of the Bihar Cricket Association, which is an
associate member of respondent No.1, under the Bihar Societies
Registration Act. Bihar Cricket Association filed a revision against
the said order. The petitioner's said Secretary again claiming to be
the Secretary of Saran District Cricket Association filed CWJC
No.2012 of 2009 before the Patna High Court, challenging the
jurisdiction of the Member, Board of Revenue to hear the said
revision.
The Member, Board of Revenue, set-aside the order of
the Inspector General of Registration, cancelling the registration of
the Bihar Cricket Association under the Bihar Societies Registration
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Act. The petitioner's said Secretary filed CWJC No.7117 of 2009
before the Patna High Court, to challenge this decision. The
proceeding was however, dismissed for default on 12.09.2012.
The petitioner's said Secretary claiming to be the
Secretary of Saran District Cricket Association, filed MJC No.4809 of
2011 before the Patna High Court under section 340 of the Code of
Criminal Procedure, praying for issuance of appropriate directions for
institution of a criminal case against respondent No.2 for having
allegedly made a false statement in an affidavit filed in the said
CWJC No.2012 of 2009. This proceeding was also disposed of by
the said order dated 12.09.2012. The Patna High Court observed as
under :-
“....Before parting with this order I may observe that
petitioner is not interested to pursue the main writ
petition which has already been dismissed for default
but is pressing the per jury application only with a
view to malign the highest Cricket Controlling Body in
the country and having appreciated such design, I am
not inclined to proceed with the per jury petition, which
is dismissed.”
SLP (Cri.) No.7989 of 2012 filed by the said Secretary
before the Supreme Court challenging the order dated 12.09.2012
was dismissed by an order dated 28.10.2012.
35. Mr.Chagla contended that this is a motivated litigation filed
with an ulterior motive on account of the personal and vested interest
of the petitioner and not by it as a public spirited litigant. The petition
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is an attack on respondent No.2, as a result of the petitioner's
grievance in respect of the acts done by respondent No.2 as a part of
the management of respondent No.1. The petition is nothing but an
attempt to extract vengeance against respondent Nos.1 and 2. Apart
from details of the litigation relied upon by Mr.Dada, Mr.Chagla relied
upon the contents of the petition itself in support of his contention.
Mr.Chagla submitted that prayers (c) and (d) of the petition establish
the same.
In prayer (c), the petitioner has sought an order directing
respondent No.1 to institute disciplinary proceedings against
respondent No.2 and an order directing respondent No.2 to vacate
the office of the President of respondent no.1 and the President of
Tamil Nadu Cricket Association pending the said disciplinary
proceedings.
In prayer (d), the petitioner has sought an order
restraining respondent No.2 from contesting for the post of President
of respondent No.1 in future and representing respondent No.1 in the
International Cricket Council.
36. In support of his contention that this is a proxy litigation on
behalf of one A.C. Muthiah, Mr, Chagla relied upon the petition itself.
The petitioner has referred in detail to the proceedings adopted by
the said A.C. Muthiah, who was the past President of respondent
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No.1, in relation to the alleged violation of clause 6.2.4 of the
Regulations. The allegation is that even while respondent No.2 was
the Treasurer of respondent No.1 and the President of the Tamil
Nadu Cricket Association, respondent No.3 of which respondent
No.2 is the Managing Director, was permitted to bid for the franchise
of IPL rights for the ownership of teams and respondent No.3 was
awarded the Chennai franchise named as Chennai Super Kings. This
was a conflict of interest and was prohibited by clause 6.2.4 of the
Regulations. Respondent No.2 was also ex-officio member of the
Governing Council of IPL and ex-officio of the Standing Committee of
IPL and the member of the Working Committee of respondent No.1.
The Governing and Standing Committee were incharge of selecting
the successful franchisees.
The said A.C. Muthiah raised the issue of conflict of
interest of respondent no.1 with the then President of respondent
No.1 and sought an enquiry against respondent No.2 and his
suspension pending the same as per the procedure laid down in
clause 38(ii) of the Rules and Regulations of respondent No.1 [The
same are now renumbered as 32(2) ]. As no action was taken, the
said A.C. Muthiah filed a suit being CS No.930 of 2008 before the
Madras High Court for various reliefs against respondent Nos.1 and
2. While the same was pending, at an annual general meeting held
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on 27.09.2008, respondent No.1's regulations were amended to
exclude events like IPL from the bar contained in clause 6.2.4, which
provided that no Administrator shall have directly or indirectly any
commercial interest in the matches or events conducted by
respondent No.1. The petitioner has referred to the suit being CS
No.1167 of 2009 filed by the said A.C. Muthiah before the Madras
High Court, challenging the said amendment. As no interim reliefs
were passed in the said suit, the said A.C. Muthiah filed Civil Appeal
No.3753 of 2011 and 3754-56 of 2011 in the Supreme Court. The
matter was heard by a Bench of two learned Judges. As the learned
Judges were unable to agree, the matter is listed before a Bench of
three learned Judges.
37. It is true that the petitioner has several disputes with
respondent Nos.1 and 2. That by itself however, ought not to
disentitle it to maintain this PIL. The petitioner has also referred to
various proceedings filed by the said A.C. Muthiah. That does not
indicate that the present petition has been filed on behalf of or at the
instance of the said A.C. Muthiah. The proceedings filed by the said
A.C. Muthiah are not the basis on which the reliefs have been sought
in the present petition. These reliefs have been sought at least
essentially on the grounds pressed by Dr.Tulzapurkar. The petitioner
has its own disputes with respondent Nos.1 and 2. The petitioner
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also has an interest in the game of cricket. But the fact that the
petitioner has disputes with respondent Nos.1 and 2, does not
disentitle it to file a public interest litigation. The grounds on the basis
of which the petitioner has sought the reliefs pertain to the manner in
which the Commission has been constituted - the petitioner's
allegations being that it is constituted essentially if not solely by
respondent No.2 and that its constitution is illegal. Respondent No.2,
according to the petitioner, ought not to have constituted the
Commission, as he was interested in the subject matter of the probe /
investigation entrusted to the Commission viz. the allegations of spot
fixing and betting of three entities – respondent No.3 of which he is
the Managing Director, respondent No.4 and the said Gurunath
Meiyappan, who is the son-in-law of respondent No.2.
38. The failure to disclose the proceedings adopted by the
Secretary of the petitioner claiming to be the Secretary of Saran
District Cricket Association does not constitute an infringement of the
Bombay High Court Public Interest Litigation Rules. Rule 5(e)
requires the petitioner to furnish the details regarding the
proceedings involving the petitioner which has or could have a legal
nexus with the issues involved in the PIL. The issues raised therein
do not have any nexus with the issues involved in this PIL.
39. Mr.Chagla however, contended that prayers (c) and (d)
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establish that this is not a bona-fide public interest litigation, but a
proxy fight between respondent No.2 and the said A.C. Muthiah. In
prayer (c), the petitioner has sought an order directing respondent
No.1 to institute disciplinary proceedings against respondent No.2
and an order that pending the same, respondent No.2 ought to be
directed to vacate the office of the President of respondent No.1 and
the President of the Tamil Nadu Cricket Association. Indeed,
respondent No.2 being the President of the Tamil Nadu Cricket
Association, has nothing to do with the issues raised in the present
petition. However, the mere fact that this relief has been claimed
would not be a ground for rejecting this petition, which otherwise
raises serious issues of general importance. Prayer (d), which seeks
an order preventing respondent No.2 from contesting for the post of
President of respondent No.1 in future and representing respondent
No.1 in the International Cricket Council, may or may not be granted,
may or may not be sustainable. That however, is not a ground for
rejecting all the reliefs in the PIL. Nor does the mere claim for such
reliefs render the PIL not maintainable. The mere fact that there is
animosity between the petitioner and the respondents, does not
ipso-facto result in the dismissal of the PIL. The grant of the reliefs
sought or pressed would not further the cause of the petitioner in its
other disputes with respondent Nos.1 and 2.
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40. Even if we had upheld the submissions of Mr.Dada and
Mr.Chagla, we would not have dismissed this PIL, as we are
satisfied that it raises serious issues. We would then have
considered appointing an Amicus Curiae and proceeding under Rule
4(b) or (d) which read as under :-
'4. Initiation / Commencement / Lodgment
of Public Interest Litigation :- A Public Interest
Litigation Petition may commence in any of the
following manners :-
(b) In pursuance of an order of the Chief
Justice or his nominee Judge, on a recommendation
made by any Judge of the High Court :-
(d) a petition may be directed to be treated as
a public interest litigation petition by a judicial order
passed by the Court ;”
41. Mr.Dada and Mr.Chagla relied upon a judgment of the
Supreme Court in the case of State of Uttaranchal vs. Balwant
Singh Chaufal & Ors. (2010) 3 SCC 402 [Paragraph 181 (7)] to
contend that the Court should ensure that the PIL is aimed at
redressal of genuine public harm or public injury and that there is no
personal gain, private or oblique motive behind the PIL. They also
relied upon the judgment of a Division Bench of this Court in the
case of R.S. Keluskar vs. Union of India & Ors. 2008(3) Mh.L.J. 133
paragraph 6 whereof refers to the Courts being flooded with a large
number of so called public interest litigations, which resulted in waste
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of valuable judicial time.
42. Mr.Chagla in particular contended that there can be no
harm or public injury in a purely domestic enquiry as the public is in
any event not interested in the same.
We do not agree.
43. The submission is contrary to the judgment of the
Supreme Court in BCCI vs. Netaji Cricket Club & Ors., reported in
(2005) 4 SCC 741, paragraphs 80 and 81.
44. Even assuming that the petitioner ought not to be
permitted to prosecute this PIL considering the nature of the matter,
this Court cannot turned a blind eye to the issues raised therein. In
Guruvayoor Devaswom Managing Committee vs. C.K. Rajan, (2003)
7 SCC 546, the Supreme Court held in paragraph 50 :-
“50. The principles evolved by this Court in this behalf
may be suitably summarized as under:
( vii ) The dispute between two warring groups
purely in the realm of private law would not be al-
lowed to be agitated as a public interest litigation.
(See Ramsharan Autyanuprasi v. Union of India )
( viii ) However, in an appropriate case, although
the petitioner might have moved a court in his private
interest and for redressal of personal grievances, the
Court in furtherance of the public interest may treat it
necessary to enquire into the state of affairs of the
subject of litigation in the interest of justice. (See
Shivajirao Nilangekar Patil v. Dr Mahesh Madhav
Gosav )
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( ix ) The Court in special situations may appoint a
Commission, or other bodies for the purpose of inves-
tigating into the allegations and finding out facts. It
may also direct management of a public institution
taken over by such Committee. (See Bandhua Mukti
Morcha , Rakesh Chandra Narayan v. State of Bihar
and A.P. Pollution Control Board v. Prof. M.V.
Nayudu )”
45. This brings us to Dr.Tulzapurkar's submission that the
constitution of the probe commission was contrary to and ultra vires
the Operational Rules including Rule 2.2 of Section 6 thereof under
or pursuant to which Mr.Dada contends the commission was
constituted. The submission is well founded.
46. As it was contended on behalf of the respondents that
there were no pleadings to support this contention, we must refer to
the same.
In paragraph 7.43 of the petition, it is averred that
respondent No.1 did not have power to constitute the said panel as
per its constitution and all other Rules and Regulations, franchisee
agreements and the Anti Corruption Code. It is also averred that the
Memorandum and Rules of respondent No.1 do not contemplate the
constitution of a purported independent probe panel for going into the
allegations of misconduct by a IPL franchisee/owner. The paragraph
goes on to demonstrate that rule 32 of the Rules and Regulations of
respondent No.1 does not contemplate the formation of such a probe
panel.
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47. It is only in the affidavit in reply that the letter dated
29.05.2013 was disclosed as Exhibit “B” thereto. In paragraph 6 of
the affidavit in reply, it is contended on behalf of respondent No.1
that the commission is validly constituted / appointed in terms of the
relevant provisions of the Operational Rules. The affidavit in reply
further states that the present enquiry could not have been
constituted under Rule 32. The affidavit in reply however, does not
state that the enquiry was under Rule 2.2 of Section 6. This
contention was raised by Mr.Dada during the course of the hearing of
this writ petition. We will however, assume that in view of the notice
dated 29.05.2013, addressed by respondent No.1 to the members of
the commission, it is open to the first respondent to raise this
contention during the hearing as the notice referred to clause 3.1 and
section 6 of the Operational Rules for 2013 IPL dated 15.03.2013.
48. In the affidavit in rejoinder to the affidavit of respondent
No.1, it is expressly denied that the constitution of the present two
member probe commission is valid in terms of the Operational Rules.
That it is also contended that the appointment of the present probe
commission and the manner in which it is constituted, is against
fairness and suffers from conflict of interest is another matter
altogether. For instance, in the affidavit in rejoinder to the affidavit in
reply by respondent No.2, both the contentions are taken, as is
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evident from the following sentence :-
“The procedure adopted by Respondent No.1 in
appointing the probe commission is completely, mala-
fide, illegal, lacking in transparency and ultra vires the
Respondent No.1's Rules and Regulations .
49. Mr.Dada submitted that the constitution of the probe
commission was under Rule 2.2 of the Operational Rules. He,
however, first referred to the following provisions of the Memorandum
and Rules and Regulations of respondent No.1 – BCCI :-
“1. INTERPRETATION
(a) “THE BOARD” means the Board of Control
for Cricket in India.
(h) '”WORKING COMMITTEE” means the
Working Committee, to whom is entrusted by these
rules, the management of the affairs of the Board.
(k) “OFFICE BEARER” means the President,
Honorary Secretary, Honorary Joint Secretary, and
Honorary Treasurer.
7. COMPOSITION OF THE BOARD :
(i) The Board shall be comprised of
(a) President
(b) Five Vice-Presidents, one from each
zone
(c ) An Honorary Secretary
(d) An Honorary Joint Secretary
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(e) An Honorary Treasurer
(ii) A Member, Associate Member and an
Affiliate Member shall be entitled to have one
representative on the Board. A representative may
be changed at any time by the Member, Associate
Member or Affiliate Member concerned, provided
that due intimation of such a change is given in
writing to the Hon. Secretary. A person shall not at a
time represent more than one affiliated member.
(iii) A Member, Associate Member or an
Affiliate Member shall inform annually to the Board
the names of its Office Bearers and the members of
their Executive Committee and the tenure during
which they shall remain as Office-Bearers and
members of the Executive Committee, and shall send
the Audited statement of Accounts and the Balance
Sheet to the Board. In case of a Member, Associate
Member, Affiliate Member failing to submit Audited
statement of Accounts and the Balance Sheet, the
Board may take such action against the Member or
Associate Member, Affiliate Member as it deems fit.
12. WORKING COMMITTEE
(COMPOSITION, POWERS AND DUTIES) :
The affairs of the Board shall be managed by a
Working Committee consisting of :
(a) The President,
The Hon. Secretary
The Hon. Joint Secretary
The Hon. Treasurer
(b) Representatives of (1) Mumbai Cricket
Association (2) Tamil Nadu Cricket Association, (3)
Cricket Association of Bengal, (4) Delhi & District
Cricket Association, (5) Uttar Pradesh Cricket
Association shall be permanent members of the
Working Committee.
If an Association who has been allotted a Test Match
and after a period of two years is on the normal
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rotation the following year, the association will
continue to be a member of the Working Committee.
However, if the normal rotation merges with the two
years period for having been allotted a Test match,
then the Association concerned will have to wait and
get elected on principles of rotation in the respective
zone.
(c) From amongst the remaining members,
one representative of a Member from each of the five
zones viz., (1) North, (ii) East, (iii) Central, (iv) South
and (v) West, to be elected on principle of rotation in
the respective zones.
(d) The meeting in each zone for all purposes
shall be convened by the Hon. Secretary of the Test
Centres in the zone by rotation.
(e) Vice Presidents may attend and take part
in the deliberations but will have no voting rights
unless they represent the Member on the Working
Committee.
POWERS AND DUTIES OF THE WORKING
COMMITTEE :
(a) The Working Committee shall have all the
powers of the Board and authority and discretion to
do all acts and things except such acts as by these
rules or statute expressly directed or required to be
done by a General Meeting of the Board, but exercise
of such powers, authorities and discretion shall be
subject to the control and regulation of any General
Meeting specially convened for the purpose provided
that no such regulations shall invalidate any prior act
of the Working Committee which would have been
valid, if such regulation has not been made.
27. THE STANDING COMMITTEES :
The following shall be the Standing Committee and
their powers :
M) Indian Premier League
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The Committee shall be appointed by the General
Body of the Board and the term of the members of the
committee shall be for a period of 5 years.
The Committee shall comprise of the following :
1) Chairman
2) Four members appointed by the Board
3) Three Ex-Cricketers of repute
The Office Bearers of the Board during their tenure
would be ex-officio members of the Committee.
All decisions relating to the League would be taken by
the Committee by majority and in case of equality of
votes the Chairman shall have a casting vote.
The Committee shall maintain a separate Bank
Account which shall be operated by the Treasurer,
BCCI.
The Committee shall submit a report of its annual
activities and decisions along with the audited
statement of accounts every year for the approval of
the General Body at the annual General Meeting.”
50. We will now refer to the relevant provisions of the
Operational Rules for 2013 IPL dated 15.03.2013. Rules 2 and 3 of
Section 6 are set out in their entirety as the respondents' case is that
the constitution of and the reference to the commission was under
these provisions. As Mr.Dada rightly stated they provide a very
detailed and intricate procedure for the investigation especially of
such complaints. He initially submitted that any interference by the
Court would only benefit respondent Nos.3 and 4 as they would not
have to face the inquiry. He referred to the elaborate procedure
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prescribed in Rule 3 to contend that “all this would be gone into in
detail by the commission”. The submission was before the Court
was informed that the entire hearing of the complaints concluded in
one day.
“SECTION 1 : DEFINITIONS / INTERPRETATION
1. Definitions
1.1 In these Operational Rules (unless the
context requires otherwise) the following expressions
shall have the following meanings :
BCCI means The Board of Control for Cricket in
India ;
Commission has the meaning set out in paragraph
2.2 of Section 6 ;
Commission Chairman has the meaning set out in
paragraph 2.2 of Section 6 ;
Complaint has the meaning in paragraph 3.1 of
Section 6 ;
IPL Code of Behavior Committee means the
Committee established, amongst other things, to carry
out and/or provide enquiries, investigations and
rulings in relation to matters brought to its attention
pursuant to these Operational Rules.
Person subject to these Operational Rules means
any Franchisee, any Player, any Team Official and/or
any Match Official ;
Team Official means any director, secretary, officer,
management staff, employee, coach, physio (or other
medical personnel) or duly authorised (express or
implied) agent of a Team or Franchisee or any
consultant to or other person serving in any official
capacity for any Franchisee including those persons
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who are accredited in connection with the League as
contemplated by paragraph 1.1 of Section 4 ;
SECTION 2 : FRANCHISEE AND TEAM/PLAYER
OBLIGATIONS – GENERAL
14. Conduct
Each Person subject to these Operational Rules shall
not, whether during a Match or otherwise, act or omit
to act in any way which would or might reasonably be
anticipated to have an adverse affect on the image
and/or reputation of such Person, any Team, any
Player, any Team Official, the BCCI, the League
and/or the Game or which would otherwise bring any
of the foregoing into disrepute.
SECTION 6 : REGULATIONS AND DISCIPLINARY
PROCEDURE
2 Disciplinary Procedure
2.1 All complaints and/or breaches of the
Regulations or charges of misconduct under the
Regulations and any dispute between a Player and
Franchisee in respect of such Player’s Player Contract
shall (unless BCCI in its absolute discretion decides
otherwise) be decided by BCCI in the manner set out
below unless any individual code contains a separate
disciplinary mechanism (such as, by way of examples,
the BCCI Anti-Doping Rules, the IPL Code of Conduct
for Players and Team Officials and the BCCI Anti-
Corruption Code) in which event such mechanism
shall apply to resolve or adjudicate upon complaint or
breach or other such matter. If any matter which
constitutes a breach of these Operational Rules also
constitutes a breach of any of the Regulations which
have their own disciplinary mechanism then BCCI
may, in its absolute discretion, decide whether to take
action in respect of such matter under these
Operational Rules or the relevant set of Regulations.
2.2 BCCI will establish a disciplinary procedure
Commission (the “ Commission ”) to hear and decide
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upon any complaint, alleged breach of or charges of
misconduct under these the Regulations or any
alleged breach of any Player Contract or any dispute
between any Franchisee and Player under or in
connection with the Player Contract between them.
The Commission may be established prior to and in
readiness for any matter to be decided by it under
these Operational Rules or it may be established
specifically to deal with any such matter. The
Commission will comprise up to three members of the
IPL Code of Behaviour Committee as selected by
BCCI. In the light of any specific matter, BCCI may
nominate additional people to join the Commission if,
in BCCI’s discretion, the circumstances render this
appropriate. If more than one person comprises the
Commission then such persons shall elect one of
them to act as chairman (the “ Commission
Chairman ” and each reference in this Section to the
Commission Chairman shall be deemed to be a
reference to such elected chairman or the sole
member of the Commission if only one person
comprises the Commission).
2.3 Any dispute to be heard by the Commission
shall be decided fairly and impartially and in
accordance with a reasonable interpretation of the
Regulations and/or the Player Contract and the
principles of natural justice.
2.4 The Commission shall have the right and
power (but not obligation) to investigate any breaches
of the Regulations or any Player Contract by any
Person subject to these Operational Rules. The
Commission may, in the course of or in connection
with any such investigation, require any Person
subject to these Operational Rules to provide any
evidence (such as documentation) or any particular or
general information (written or oral) on matters relating
to the Regulations and/or any Player Contract as the
Commission may request in writing or to attend any
hearing or interview to answer questions and produce
evidence such as documents or items.
2.5 Any failure by any Person subject to these
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Operational Rules to comply with any request or
investigation by the Commission under this Section of
these Operational Rules shall constitute misconduct.
3 Complaints Procedure
3.1 Any Person subject to these Operational
Rules (or BCCI) (being the “ Claimant ”) may make a
complaint against any other Person subject to these
Operational Rules that such Person has breached its
obligations under the Regulations and/or a Player
Contract (a “ Complaint ”) by notifying the BCCI
Honorary Secretary in writing. Following any such
notification BCCI will refer the matter to the
Commission to be dealt with as set out below and
BCCI will notify the Claimant as soon as practicable of
the identity and relevant contact details of the
Commission and the Commission Chairman. Upon
such notification of the identity of the Commission
Chairman, the Claimant shall as soon as practicable
and in any event within the deadline set by the
Commission (which shall be decided by the
Commission in its discretion in light of the
circumstances surrounding the Complaint) send to the
Commission Chairman such information/documents
relating to the Complaint as the Commission requests
including without limitation the following:
(a) full details of all facts forming the basis of
the Complaint;
(b) the identity of the Person(s) who is/are the
object of the Complaint (the “ Respondent ”);
(c) the identity of any witnesses (factual or
expert) on which the Claimant intends to rely in
connection with the Complaint; and
(d) copies of any supporting documentation in
relation to the Complaint
and the Claimant shall deliver to the Commission
Chairman such number of copies of the Complaint
and above-mentioned documents/information as the
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Commission Chairman requests. The Commission
Chairman shall provide the remaining members of the
Commission with copies of all of the above-mentioned
documents and information.
3.2 The Commission shall (unless it does not
believe that the Complaint has any merit) as soon as
practicable following receipt of the Complaint forward
a copy of it to the Respondent, together with (provided
that it is appropriate to do so) any supporting
documentation supplied to the Commission Chairman
under paragraph 3.1 above and the matter shall be
dealt with as contemplated by the remainder of this
Section 6. The Commission shall inform the Claimant
as soon as practicable if it does not believe that the
Complaint has any merit.
3.3 The Commission shall (unless it does not
believe the Complaint has any merit) as soon as
practicable following receipt of the documents referred
to in paragraph 3.1 and delivery of the Complaint and
any accompanying documents to the Respondent
request the Respondent to submit to the Commission
Chairman its response to the Complaint (the
“ Response ”) within a period of time which shall be
decided by the Commission in its discretion in light of
the circumstances surrounding the Complaint and
which shall include such information/documents
relating to the Complaint as the Commission requests
including without limitation the following:
(a) full details of the Response including
whether it accepts all or any part of the Complaint;
(b) the details of any counter-claim it may wish
to bring against the Claimant in relation to the
Complaint (a “ Counter-Claim ” and references to the
Response shall be deemed to include any such
Counter-Claim) and the circumstances surrounding it
but any such Counter-Claim must be related to the
Complaint and must not be an unrelated issue;
(c) the identity of any witnesses (factual or
expert) on which the Respondent intends to reply in
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connection with its Response; and
(d) copies of any supporting documentation in
relation to the Response
and the Respondent shall deliver to the Commission
Chairman such number of copies of the Response
and above-mentioned documents/information as the
Commission Chairman requests. The Commission
Chairman shall provide the remaining members of the
Commission with copies of all of the above-mentioned
documents and information.
3.4 The Commission shall as soon as
practicable following receipt of the Response forward
a copy of it to the Claimant together with (provided
that it is appropriate to do so) any supporting
documentation supplied to the Commission under
paragraph 3.3.
3.5 The Commission may, at its discretion and
if it feels it would be helpful, convene a preliminary
hearing with the Claimant and Respondent and, if they
so wish, their legal representatives together with any
third parties which the Commission feels would be
appropriate to attend the same. Any such preliminary
hearing shall take place via a telephone conference
call unless the Commission determines otherwise.
The Commission shall give the Claimant and
Respondent as much notice as is reasonably
practicable of any such preliminary hearing. The non-
participation of the Claimant or Respondent in any
such preliminary hearing, after the above-mentioned
notice thereof has been provided to them, shall not
prevent the Commission from proceeding with the
preliminary hearing.
3.6 The purpose of any preliminary hearing
may include all or any of the following matters
together with any other matters the Commission
considers appropriate but such matters may in the
Commission’s discretion be dealt with without such a
preliminary hearing:
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(a) to determine the date (if any) upon which
any full hearing (the “Hearing”) of the Complaint and
any Counter-Claim shall be held;
(b) to establish the date(s) (if any) by which the
Claimant and Respondent shall be obliged to serve
upon each other any documents or evidence which
the Commission considers appropriate or relevant in
relation to the Complaint, the Response and any
Counter-Claim;
(c) to decide upon other matters which the
Commission shall in its discretion consider
appropriate.
3.7 Unless it (in its discretion) decides
otherwise the Commission shall, as soon as
practicable after the delivery to the Claimant of the
Response, convene a Hearing at which the Claimant
and Respondent will be invited to state their
respective cases. The Commission shall give the
Claimant and Respondent as much notice of the
Hearing as is practicable in all the circumstances and
in light of the subject matter of the Complaint, the
Response and any Counter-Claim.
3.8 The procedure followed at the Hearing shall
be at the discretion of the Commission, provided that
the Hearing is conducted in a fair manner and in
accordance with the principles of natural justice. The
Claimant and Respondent will be provided with a fair
and reasonable opportunity to present evidence
(including the right to call and to question and cross-
examine witnesses in person or by telephone or
video-conference where necessary), address the
Commission and present its case.
3.9 The Hearing before the Commission shall
be in English, and certified English translations shall
be submitted of any non-English documents put
before the Commission and if there is any
disagreement about any such translation the
Commission may arrange for a second translation of
any such document by a suitably qualified
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independent translator. The cost of any such
translation shall be borne by the party offering the
document(s). The Commission may at its discretion
make arrangements to have the Hearing recorded or
transcribed. If reasonably requested by the Claimant
or Respondent, the Commission shall also arrange for
an interpreter to attend the Hearing.
3.10 Where video evidence of the alleged
offence is available at the Hearing before the
Commission, then it may be relied upon by any party,
provided that all other parties shall have the right to
make such representations in relation to it that they
may see fit.
3.11 Unless exceptional circumstances apply,
each of the Claimant and Respondent must attend
any Hearing before the Commission. Where any such
individual has a compelling justification for non-
attendance, then he/she shall be given the opportunity
to participate in the Hearing before the Commission by
telephone or video conference (if available). In the
event that the Claimant or Respondent is a Player
then without prejudice to such person’s ability to call
and to question such witnesses as may be necessary,
one of the Captain, Vice-Captain or Team Manager of
the Team that such Player represents may also attend
a Hearing before the Commission to provide support
and assistance to such person.
3.12 Each of the Claimant and Respondent shall
have the right (at its own expense) to be represented
at the Hearing before the Commission by such
representatives (including legal counsel) of its own
choosing but (save with the Commission’s prior written
consent and at its discretion) no more than an
aggregate total of two such representatives shall
accompany each of the Claimant and Respondent.
3.13 The non-attendance of the Claimant and/or
Respondent or its representative at a Hearing, shall
not prevent the Commission from proceeding with
such Hearing in its absence and issuing a ruling and
(if appropriate) applying a sanction in relation to the
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Claim, the Response and any Counter-Claim.
3.14 At the end of a Hearing, where the
Commission considers that further evidence is
necessary and/or further time is required to consider
the evidence that has been presented, it shall adjourn
the Hearing for an appropriate period of time and
make such directions as may be necessary.
3.15 Alternatively, at the end of the Hearing:
(a) the Commission shall adjourn the Hearing
(for a period of no less than ten (10) minutes and no
more than two (2) hours), following which it will
reconvene the Hearing and verbally announce its
finding in relation to the Complaint, the Response and
any Counter-Claim;
(b) where the Commission determines that all
or part of the Complaint or any Counter-Claim has
been proved (and therefore an “ Offence ” under the
Regulations and/or any Player Contract has been
committed), both the Claimant and Respondent may
request a short adjournment (of no more than thirty
(30) minutes) to prepare any submissions that it might
wish to make in relation to the appropriate sanction
that ought to be applied by the Commission in respect
thereof;
(c) as soon as possible after the conclusion of
the Hearing, the Commission will provide its decision
in writing, with reasons, setting out: (a) the finding as
to whether an Offence had been committed; (b) what
sanctions, if any, are to be imposed.
(d) the Commission shall have the discretion to
announce the substance of its decision prior to the
issue of the written reasoned decision referred to in
paragraph (c) above.
3.16 A copy of the above-mentioned written
decision will as soon as practicable be provided by the
Commission to the Claimant and Respondent and the
Commission shall at the same time send a copy to the
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BCCI Honorary Secretary.
3.17 Subject only to any appeal under
paragraph 5 below, the decision of the Commission
shall be the full, final and complete disposition of the
matter and will be binding on all parties
3.18 BCCI will (unless it decides otherwise in its
discretion) issue a public announcement regarding
any decision of the Commission, as soon as is
reasonably practicable after such decision has been
communicated to the parties. Any such public
announcement of the decision may include details of
the Offence(s) committed and of the sanctions
imposed, if any. Until such time as a public
announcement is published, all parties and
participants in the proceedings shall treat such
proceedings as strictly confidential, save that BCCI
may publicly confirm the date of the Hearing, the
Offence that is alleged to have been committed and/or
the name of the person charged. Following any such
announcement of the decision, no comment shall be
made in connection with the matter beyond the scope
of what has been included in such announcement.
3.19 Unless otherwise described herein, the
standard of proof in respect of all Complaints,
Responses and Counter-Claims brought under the
Regulations and/or any Player Contract shall be
whether the Commission is comfortably satisfied,
bearing in mind the seriousness of the allegation that
is made, that the alleged Offence has been
committed. This standard of proof in all cases shall be
determined on a sliding scale from, at a minimum, a
mere balance of probability (for the least serious
offences) up to proof beyond a reasonable doubt (for
the most serious Offences).
3.20 The Commission shall not be bound by
judicial rules governing the admissibility of evidence.
Instead, facts relating to an Offence committed the
Regulations and/or any Player Contract may be
established by any reliable means, including
admissions.
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3.21 The Commission may draw an inference
adverse to the Claimant and/or Respondent based on
his/her refusal, without compelling justification, after a
request made in a reasonable time in advance of the
Hearing, to appear at the Hearing (either in person or
telephonically as directed by the Commission) and/or
to answer any relevant questions”
51. As we noted earlier, the commission initially comprised of
the said Sanjay Jagdale, the then Hon. Secretary of respondent No.1
and two learned retired Judges. The said Sanjay Jagdale declined to
be a part of the commission. Respondent No.1 ultimately constituted
the commission comprising only of the two remaining members of the
commission. The question is whether the commission comprising of
the two learned retired Judges is valid as per rule 2.2 or the
Operational Rules.
52. Rule 2.2 mandates that : “The commission will comprise
upto three members of the IPL Code of Behavior Committee as
selected by BCCI. Rule 2.2 expressly permits a commission to be
comprised of three members of the IPL Code of Behavior Committee
as selected by BCCI. Rule 2.2 therefore mandatorily requires a
member of the IPL Code of Behavior committee to be on the
commission. In other words a commission cannot be constituted
without at least one member of the IPL Code of Behavior Committee.
53. BCCI did select five members on the IPL Code of
Behavior Committee. Respondent No.1 is entitled to nominate
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additional people to join the commission. It however, does not entitle
respondent No.1 to constitute the commission without any member of
the IPL Code of Behavior Committee.
54. Faced with this, Mr.Dada contended that respondent No.1
was compelled to constitute the commission without any member of
the IPL Code of Behavior Committee, as no such member was
available. He therefore, sought to support the constitution of the
committee which was contrary to Rule 2.2 on the doctrine of
necessity. The necessity, Mr.Dada submitted was due to none of the
members of the IPL Code of Behavior Committee being available to
join the commission. The said Sanjay Jagdale and Ajay Shirke were
not available for the reasons we have already mentioned. We will
presume that the said Rajiv Shukla was also not available.
55. However, two other members viz. one Ravi Shastri and
Arun Jaitely were also on the committee. There is no reason
furnished as to why they were not appointed on the commission.
There is no explanation why respondent No.1 did not appoint them.
Respondent No.1 did not even ask them to be on the commission.
56. As far as the said Ravi Shasti is concerned, Mr.Dada
sought to tender an explanation across the bar. He stated that Ravi
Shastri travels to various destinations as a commentator.
57. We do not accept this explanation. Firstly, this is not
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stated on affidavit. Secondly, his traveling to various destinations as
a commentator would not disable him from discharging his functions
as a member of the commission. After all as mentioned by the
learned counsel for respondent Nos.3 and 4, the commission sat on
only one day and closed the enquiry on the same day. There is
nothing to indicate that he could not have spared a single day.
Thirdly and most important is the fact that as his name appears on
the IPL Code of Behavior Committee, it must be presumed that he
would be in a position to discharge his function as a member of the
committee. It was not suggested that there were any special reasons
why the other members of the IPL Code of Behavior committee were
not available on this occasion.
58. Mr.Chagla contended that the petitioner is not entitled to
challenge the constitution of the commission as being contrary to
Rule 2.2 of the Operational Rules, as there was no pleading to this
effect in the petition.
59. The submission is not well founded. We have already
referred to the pleadings. In fact respondent No.1 did not specifically
state in its affidavit in reply that the commission was constituted
under Rule 2.2. We are left to infer this from the letter dated
29.05.2013 annexed as Exhibit “B” to the affidavit in reply. The
petitioner has alleged that the constitution of the commission was
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contrary to the Rules and Regulations. That is sufficient in the facts
of this case to permit the petitioner to raise this contention. No
evidence is required as far as the petitioner is concerned in support
of this contention. The petitioner is entitled to rely on the plain
language of Rule 2.2 of the Operational Rules that mandates that at
least one member of the IPL Code of Behavior Committee must be a
member of the commission constituted under Rule 2.2. Admittedly
the two learned Judges are not members on the IPL Code of
Behavior Committee.
60. It is the first respondent that seeks to deviate from this rule
and take advantage of an exception based on the doctrine of
necessity. It is for the party relying upon an exemption or an
exception to aver and prove that the facts justifying or entitling it to do
so exist. The burden was therefore, on respondent No.1 to aver and
prove that no member from the IPL Code of Behavior Committee was
available to be appointed on the said commission. Respondent No.1
has not even averred anything to this effect. It has not even sought to
establish the same except orally across the bar during the hearing.
61. It must be held therefore, that the said commission was
not duly constituted. It was constituted contrary to and in violation of
the provisions of Rules 2.2 and 3 of Section 6 of the Operational
Rules.
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62. Despite our conclusion that the constitution of the
commission was not in accordance with the Operational Rules, we
are not inclined to grant the further reliefs prayed for by the petitioner,
viz. to constitute a panel comprising of retired Judges to conduct an
enquiry against respondent No.3 and 4 and the said Gurunath
Meiyappan with regard to their alleged involvement in the spot fixing
and betting. Even if we are correct, in our view that the commission
has been constituted contrary to the Operational Rules, it would not
entitle this Court to constitute a fresh probe commission at least this
stage and in this writ petition.
63. The constitution of a probe commission under section 6 of
the Operational Rules is the prerogative of respondent No.1. We see
no reason to deprive it of the same at this stage and in this writ
petition. Respondent No.1 is at liberty to take such steps as it deems
in this regard.
64. The other reliefs are not pressed. This writ petition is,
accordingly, disposed of in the above terms.
Mr. Subramaniam's application on behalf of respondent
No.2 for the stay of this judgment is rejected.
There shall be no order as to cost.
(M.S. SONAK, J.) (S.J. VAZIFDAR, J.)
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