The Board of Control for Cricket in India got a major reprieve when a division bench of the Madras high court upheld its decision to cancel the tender process for telecast rights for international cricket matches till 2008.
A Division Bench, comprising Chief Justice Markandey Katju and Justice F M Ibrahim Kallifullah, set aside Justice K P Sivaubramanian's order of March 21, which held that the cancellation was "improper".
The single bench order had directed the Board to call for fresh tenders and permitted Zee Telefilms Ltd and ESPN to participate in the fresh tender proceedings.
The Division Bench held that records clearly demonstrate that there was no concluded contract between Zee Telefilms Ltd and the Board.
Taking exception to the single judge's remarks that the cancellation was vitiated by arbitrariness and unfair action of the BCCI and Dalmiya, in particular, the judges held "these remarks against the BCCI and Dalmiya are unjustified, uncalled for and unsustainable".
The Bench allowed an appeal by the BCCI challenging Justice Sivasubramanian's order directing it to call for fresh tenders. The Bench also allowed an appeal by Dalmiya against the single judge's remarks against him.
However, it dismissed a third appeal by Zee for a direction to the BCCI to allot the contract for telecasting cricket matches to it in the wake of the single judge's order that the cancellation was improper.
Stating that the cancellation was well within the rights of the BCCI, the judges observed that the decision, taken in a compelling situation, was approved by the Board's Marketing Committee on September 28, 2004 and by the General Body two days later.
Holding that the contract was only at the stage of negotiations, the Bench said from the very draft letter of intent of September 6 2004 and Zee's letter of September 11, it was evident that the television company itself had understood and accepted that there was no concluded contract.
On Zee's charge that after it came out the highest bidder with 260 million US dollars for telecasting rights from October 1, 2004 to September 30, 2008 the Board had called ESPN, which had bid 230 million US dollars and held negotiations, the judges held that there was nothing wrong in the BCCI holding negotiations with the first two highest bidders.
Following the talks, ESPN had increased the amount to 308 million US dollars and Zee was called and asked to match the amount.
Pointing out that it was well settled law that before any writ could be issued the petitioner had to show that he had a legal right which had been infringed upon, the Bench held that Zee had not been able to show any legal right whatsoever either statutory or contractual.
The judges said there was no statute governing the tender process and Article 14 of the Constitution did not apply as the Supreme Court had held that the BCCI was not a state under Article 12 of the Constitution.
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