The Board of Control for Cricket in India's panel to probe spot-fixing and betting charges in the Indian Premier League was declared "illegal" as it was set up in violation of its own rules, said the Bombay high court on Wednesday.
It went on to add that prima facie a case is made out that BCCI president-in-exile N Srinivasan was involved in its formation.
The two-member panel that looked into the charges had, on July 28, given a clean chit to India Cements Ltd, owners of IPL franchise Chennai Super Kings, its former Team principal Gurunath Meiyappan, son-in-law of Srinivasan, and Raj Kundra, co-owner of Rajasthan Royals.
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The court, which struck down as "illegal and unconstitutional" the panel in a severe blow to the BCCI and Srinivasan, however, refrained from ordering a new committee of retired judges.
It held that forming a new probe commission is the prerogative of the BCCI.
"The Commission was not duly constituted and was contrary to and in violation of the provisions of Rules 2.2 and 3 of Section 6 of the Operational Rules (of BCCI)," said Justices M S Sonak and S F Vajifdar in a 61-page verdict, delivered on Tuesday, which may thwart Srinivasan's bid to regain full control of the BCCI.
The court was hearing a PIL, filed by the Cricket Association of Bihar and its secretary Aditya Verma, challenging the constitution of the commission set up by the BCCI and IPL Governing Council after the betting and spot-fixing scandal surfaced.
"...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 Srinivasan was involved in the formation of the commission," the bench said.
The least that must be said in favour of the petitioner is that the respondents have not established that Srinivasan had no role to play in the formation of the commission, the judges added.
Armed with the panel's clean chit, Srinivasan was expected to reclaim his position in the BCCI after stepping aside for the duration of the inquiry.
The panel comprised two former judges of the Madras high court, Justices T Jayarama Chouta and R Balasubramanian.
"In our view the commission has been constituted contrary to the operational rules...," the judges observed while disposing the PIL.
The court said rule 2.2 of the Operational Rules mandated presence of at least one member of the IPL Code of Behaviour Committee on the Commission.
After the then BCCI secretary, Sanjay Jagdale, declined to be a part of the panel, Justices Chouta and Balasubramanian were left on the commission.
BCCI had selected five members on the IPL Code of Behavior Committee and is entitled to nominate additional people to join the commission. It, however, does not entitle it to constitute the commission without any member of the IPL Code of Behavior Committee, noted the judges.
BCCI counsel Rafiq Dada argued that the Board was compelled to constitute the commission without any member of the IPL Code of Behavior Committee as no such member was available. He defended the constitution of the panel, which was contrary to Rule 2.2, on the doctrine of necessity.
The necessity, Dada submitted, was due to none of the members of the IPL Code of Behaviour Committee being available to join the commission. Sanjay Jagdale, Ajay Shirke and Rajiv Shukla were not available.
However, the judges noted that two others -- 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 BCCI did not appoint them. The Respondent (Cricket Board) did not even ask them to be on the commission," added the bench.
Dada argued that Shastri travels to various destinations as a commentator and hence was not considered to be member on the panel. However, the court disagreed with his contention, saying travelling 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 lawyers, 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", the judges noted.
"The most important point is the fact that Ravi Shastri's name appears on the IPL Code of Behaviour Committee and 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 Behaviour committee were not available on this occasion," the bench said.
Counsel for Srinivasan Iqbal Chagla contended that the petitioner was 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. However, the judges held the submission was not well founded.
"We have already referred to the pleadings. In fact, BCCI 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 May 29, 2013, annexed to the affidavit-in-reply.
"The petitioner has alleged that the constitution of the commission was 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 court said.
The judges further said that 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 Behaviour 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 Behaviour Committee," they pointed out.
"It is the first respondent (BCCI) 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 BCCI to aver and prove that no member from the IPL Code of Behaviour Committee was available to be appointed on the said commission," the judges added.
"Respondent No 1 (BCCI) 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.
"It must be held therefore, that the said commission was not duly constituted and was contrary to and in violation of the provisions of Rules 2.2 and 3 of Section 6 of the Operational Rules", the bench ruled.
The Judges further said, "In a matter such as this and in respect of allegations such as these, it would be neither safe nor fair to BCCI and Srinivasan to draw a final conclusion against them on the basis of affidavit evidence.
"Dada and 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 Srinivasan was involved in the formation of the commission," the bench said.
The least that must be said in favour of the petitioner is that the respondents have not established that Srinivasan had no role to play in the formation of the
commission, the judges said.
They said normally they would 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 Srinivasan 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 BCCI, this may not be necessary," the bench said.
Photograph: BCCI
