BOARD OF CONTROL FOR CRICKET IN INDIA v. CRICKET ASSOCIATION OF BIHAR & ORS.

The following order of the Court was delivered by E ORDER DR. I>. Y. CHANDRACHUD, J. 1. On 7 October 2016, directions we:re issued by this Court pursuant to a status report dated 26 September 2016, submitted by the Committee consisting of Justice RM Lodha, Justic1e Ashok Bhan and Justice RV Raveendran. The status report filed by the Committee set out the sequence of events' that had taken place afte:r the final judgment and orderoffhis Court dated 18 Ju.IY 2016, which ac:cepted the report submitted by the Committee on 18 December 2015 with certain modifications. A gist of the status report has been set out 1in the earlier.Qrderdated 7 October 2016. After adverting to the sequence •Of events, the Committee has concluded that.BCCI has violated its directions: · " ... Directiions of this Hon'ble Court have been ignored, actions have been taken to present a fair accompli to the Committee, the directives of the Committee have been breached, :and member associations have not been-duly H

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A intimated about the directions of the Committee and the time lines fixed by it." The Committee has observed that "BCCI has repeatedly taken steps to undermine the Committee and this Court", with several statements and actions which "are grossly out of order and would even B constitute contempt". The Committee noted that despite several e-mails, as well as a direction to appear before it on 9 August 2016, the President ofBCCI did not furnish even a single response to the Committee. The Committee also observed that the President of BCCI had even gone to the extent of requesting ICC to issue a letter that "this Committee amounts to governmental interference" besides making several c objectionable statements in the press which undermined both the Court and the Committee.

2Copy pinpoint2. The Committee submitted the above status report in pursuance of the directions contained in the judgment of this Court dated 18 July 2016.This Court had by its judgment, while accepting the D recommendations made in the earlier report of the Committee, assigned to the Committee a supervisory role for ensuring the transition from the old to the new system recommended by the Committee. While this Court in its judgment expressed a hope that the process of implementing the directions contained in the judgment would be completed within a E period of four months or at best six months, the Committee was requested to draw appropriate timelines for the implementation of the ,,recommendations and to supervise the implementation process .. The Committee, while moving the status report observed that though the office bearers ofBCCI had furnished assurances to it on 9August2016, 25 August 2016 and 20 September 2016, that they would cooperate with F the Committee in fulfilling the directions of this Court (subject fo any modification or review) these assurances had not been fulfilled.

3Copy pinpoint3. ,n the previous Order of this Court dated 7 October 2016, the following primafacie, findings were recorded:- G " ... The sequence of events that have been taken place since 18'h July, 2016 and referred to in the status report prima facie give an impression that BCCI has tar from lending its fullest cooperation to the Committee adopted an obstructionist and at times a defiant attitude which the Committee has taken note of and described as an H

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ASSOCIATION OF BIHAR [DR. D. Y. C.HANDRACHUD, J.]

impediment undermining not onty the Committee but even the dignity of this Court with several statements and actions which according to the Committee are grossly out of order and may even constitute contempt". This Court has noted that in spite of a directjqn issued by the Committee on 21August2016 that theAGM ofBCCI which was to be held on 21 September 2016, may transact only routine business for 2015- 16 and that any business or matter relating to 2016-17 may be dealt with only after the adoption of the Memorandum of Association and rules in pursuance of the recommendations of the Committee, substantial amounts running into crores of rupees have been disbursed in favour of state associations. This Court expressed the view that BCCI could and c indeed ought to have avoided the disbursement of such a huge amount while the Committee was still examining the ne~d for formulating a . disbursement policy. '

4Copy pinpoint4. During the course of the hearing which resulted in the earlier order dated 7 October 2016, BCCI stated that one of the reasons for its D failure to adopt the proposed MOA was the reluctance of the state· associations to subscribe to it. In'this background, this Court observed that ifthat be the position, there is no reason why the state associations that are opposed to the reforms suggested by the Committee and accepted by this Court should either expect or draw any benefit from the release · E of grants by BCCI. The following directions have been.issued by this Court on 7 October 2016:- "i) No further amount in terms of the Resolution passed in AGM on 09.11.2015 or any subsequent resolution by the BCCI or its Working <:,;ommittee shall be disbursed to any" · F .State Association excep_t where the State Association concerned passes a proper resolution to the effect that it is agreeable to undertake and to support the reforms as proposed and accepted by this Court in letter and spirit. Upon such a Resolution being passed, a copy of the same shall be filed before Justice Lodha Committee with an G affidavit of the President of the State Asseciation concerned unequivocally undertaking to abide by the reforms as proposed by the Committee and accepted and modified by this Court. A similar affidavit with a copy of the ltesoluti~n shall be filed before this Court also: It is only after such H

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A affidavits are filed, that BCCI may. transfer the balance amount of Rs.16. 73. crores each payable to the State Association. As regards the I 3 State Associations to whom the payment has already been disbursed, we direct that the State B Association concerned shall not appropriate the said amount except after they have passed a resolution and filed an affidavit as J'nentioned above before Justice Lodha Committee and before this Court. In case the affidavits are not filed, the amount disbursed to the State Associations shall be invested by the Associations in a term deposit c subject to further directions of this Court. ii) Mr. Ratnakar Shivaram Shetty, General Manager, Admin and Game development shall, in the meanatime, place on record a copy of the authorization/resolution passed by the BCCI on the basis of which he has filed the affidavit supporting the response of the BCCI to the status report. iii) Mr. Anurag Thakur, President of the BCCI shall file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. iv) Mr. Arvind Datar, learned Senior Counsel to produce the original record on the basis of which the affidavit by Mr. Ratnakar Shivaram Shetty on behalf ofBCCI has been filed". F

5Copy pinpoint5. In. pursuance of these directions, Mr Anurag Thakur, President of BCCI has filed an affidavit specifically with reference to direction (iii) above. Before we consider the affidavit that has been filed by the President of BCCI, it is necessary to advert to the response to the status report of the Committee filed by Mr Ratnakar Shivaram Shetty, General G Manager, Admn.& Game Development, BCCI. In the sequence of events set out in his response to the status report, Mr Shetty has dealt with the statement made in an interview given to the electronic media by Mr David Richardson, CEO ofICC. Mr Richardson stated that the President of BCCI sot•ght a letter from ICC that the appointment of a nominee of CAG (which has been directed by this Courton 18 July 2016 in terms of H

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ASSOCIATION OF BIHAR [DR. D. Y. CHANDRACHUD, J .]

the Committee's recommendations) would amount to 'governmental interference' thereby inviting the suspension of BCCI from the membership of ICC. Mr Shetty's response was as follows: "It appears that an interview was given by Mr David Richardson the ICC CEO falsely stating that the BCCI President had requested the ICC to issue a letter stating that the intervention by this Hon'ble Court amounted to Governmental interference. It is submitted that no such letter or oral request was ever made to the said gentleman · either by the BCCI President or any office bearer of the BCCI. It is apparent that Mr. Richardson has confused himself in relation to the issue. This issue is required to be c considered in the light ofthe fact that Mr. Shashank Manohar Senior Advocate had clearly opined as the BCCI President that appointment of the CAG in the BCCI shall result in suspension of the BCCI as it would constitute governmental interference. In fact the same had been submitted on affidavit before this Hon'ble Court. However, as Chairman of the ICC, Mr. Manohar had taken a contrary stand and stated that it would. not amount to governmental interference. It was in this context that a discussion took place between Mr. Shashank Manohar and Mr. Anurag · Thakur during a meeting in Dubai wherein a clarification as sought by Mr. Anurag Thakur during an informal discussion on what the exact status would be if the' CAG was inducted by the BCCI as part of its management and whether it would amount to governmental interference as had been advised and affirmed by Mr. Manohar during his stint as BCCI President." Paragraph 7(d) of the response contains a statement that: "It is being incorrectly alleged that the President BCCI made a request to the ICC to issue a letter stating that this Committee amounts to Governmental interference. This G suggestion is denied".

6Copy pinpoint6. In the affidavit which has been filed by the President OfBCCI on 15 October2016, there is a deni~l that any such request was made.by him to the CEO oflCC. Paragraph 3 of the affidavit contains the version H

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A of the President of what transpired at Dubai on 6/7 Avgust 2016 during the course of a meeting convened by ICC: "In this context it is respectfully submitted that there was an ICC governance review committee meeting scheduled to be held in Dubai on 61h& 7m August 2016. There were B certain issues relating to financial model for which my inputs were required and as such I was invited by ICC for the said meeting. During the meeting with regard to the review of the constitutional provisions of!CC, I pointed out to the Chairman of the ICC, Mr. Shashank Manohar that when he was the President ofBCCI he had taken a view that the c recommendations ofthe Justice Lodha committee appointing the nominee of the CAG on the Apex Council would amount to governmental interference and might invoke an action of suspension from ICC.. I therefore requested him that he being the ICC Chairman can a letter be issued clarifying the position which he had taken as BCCI P1 esident. Mr. Manohar explained to me at the meeting that when the stand was taken by him, the matter was pending before this Hon 'ble Court and had not been decided. However, on 18.07.2016 this Hon'ble Court delivered its judgment in the matter. In the said judgment, this Hon'ble Court has rejected the submission that the appointment of the nominee ofCAG on Apex council would amount to Governmental interference and had also held that the ICC would appreciate the appointment as it would bring transparency in the finances of the Board."

7Copy pinpoint7. Mr Kapil Si.bal, learned senior counsel appearing on behalf of the, BCCI has tendered during the course of hearing draft minutes of a Working Committee meeting of BCCI held on 22 August 2016. The draft minutes purportedly contain a record of what is stated to have transpired between Mr Shashank Manohar, the Chairperson of!CC and the President of BCCI at the meeting on 6 and 7 August 2016. The relevant part is extracted below:-

"Mr. Anurag Thakur was in the Chair and called the meeting to order and welcomed the members. He briefed the members about his meetin.gwith the ICC Chairman at Dubai

BOARD 0.F CONTROL FOR CRICKET IN INDIA v. CRICKET 827 ASSOCIATION OF BIHAR [DR. D. Y. CHANDRACHUD, J.]

during the ICC governance review committee meeting on A 6th & 7m August 2016. Certain financial mode inputs were required during the said meeting which he gave. During the meeting with regard to the review of the constitutional provisions of ICC it was informed by Mr. Thakur that he asked Chairman ICC Mr. Shashank Manohar that when he B was the President of BCCI he had taken a view that the recommendations of Justice Lodha committee appointing the nominee of the CAG on the Apex Council would amount to governmental interference and might invoke an action of suspension from ICC. It was therefore requested from him that he being the ICC Chaii:man could a letter be issued c clarifying the position which he had taken as BCCI President. Mr. Manohar thereafter explained that when the stand was taken .iJ_y him the matter was pending before the Supreme Court and was not decided. However on 18'h of July 2016 the Hon. Supreme Court oflndia delivered its D judgment and the Court has rejected the submission that the appointment of the nominee ofCAG on Apex council will amount to Governmental interference and had also held that the ICC would appreciate the appointment as it would bring transparency in the finances of the Board. The discussion stopped in view of his explanation on this issue". E

8Copy pinpoint8. Prima facie, it appears from the response. that was filed by BCCI to the status report, that a clarification was sought by Mr Anurag Thakur from Mr Shashank Manohar on w~at the exact status would be if a nominee of CAG was inducted by BCCI as part of its mam1gement and whether it would amount to governmental interference. The statement made by BCCI in its response to the status report contains a denial that its President made a request to iCC to issue a letter stating that the Committee amounted to governmental interference. However, in the affidavit which has since been filed by the President ofBCCI in pursuance of the Court's directions of7 October 2016, it has been accepted that he had made a request to the Chairman of ICC for issuing a letter "clarifying the position which he had taken as BCCI President" (to the effect that the recommendations of the Committee for appointing a nominee of CAG would amount to governmental interference and might invoke an action for suspension from ICC). Significantly, Mr Shetty did not in the H

828 SUPREME COURT REPORTS [2016] .9 S.C.R.

A response filed earlier by BCCI to the status report disclose that there was a request for a letter by its President to the Chairman, ICC.

9Copy pinpoint9. The draft minutes of the Working Committee purportedly dated 22 August 2016, a copy of which has been placed on the record, are in tandem with the statement made by Mr Thakuron affidavit. Primafacie, B it appears that the draft minutes were not before Mr Shetty when he made a statement on behalf of BCCI in his response to the status report. If the draft minutes were before him, it would be natural to assume that the disclosure which has now emerged in pursuance of the order of this Court dated 7 October 2016 would have been contained in the response c submitted by Mr Shetty to the status report. Mr Shetty has stated that the response filed by BCCI to the status report was based on infomiation derived from the records. If that be so, the purported draft minutes of the Working Committee could not have missed his attention or knowledge.

10Copy pinpoint10. Be that as it may, it is a matter of seri.0115 concern that the D President ofBCCI, even after the declaration of the final judgment and order of this Court dated 18 July 2016, requested the Chairperson of ICC for a letter "clarifying" (as he states) the position which he had taken as BCCI President to the effect that the induction of a CAG nominee would amount to governmental interference and may result in BCCI being suspended from ICC. There was no occasion for the E President ofBCCI to do so once the recommendation of the Committee for the induction of a CAG nominee was accepted in the final judgment of this Court. In the judgment of this Court dated t8 July 2016, this Court observed as follows:-

"77. There is, in our view, no basis for the argument that any measure taken by the BCCI on its own or under the direction of a competent court specially when aimed at streamlining its working and ensuring financial discipline, transparency and accountability expected of an organization discharging public functions such as BCCI may be seen as governmental interference calling for suspension/ derecognition of the BCCI. Far from finding fault with presence of a nominee of the Accountant General of the State and C&AG, the ICC would in our opinion appreciate any such step for the same would prevent misgivings about

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ASSOCIATION OF BIHAR (DR. D. Y. CHANDRACHUD, J.]

the working of the BCCI especially in relation to management of its. funds and bring transparency and objectivity necessary to inspire public confidence in the fairness and the effective management of the affairs of the BCCI and the State Associations. The nominees recommended by the Committee would act as conscience keepers of the State Association and BCCI in financial matters and matters related or incidental thereto which will in no way adversely impact the performance or working of the BCCI for the promotion and development of the game. of cricket. The criticism levelled against the recommend\ltions of the Committee is, therefore, unfounded c and accordingly rejected".

11Copy pinpoint11. This finding which is contained in the final judgment and order of this Court binds BCCI. Primafacie, an effort has been made by the President of BCCI to create a record in order to question the legitimacy of the recommendation of the Committee for the appointment of a CAG D nominee after the recommendation was accepted by this Court on 18 July 2016. We presently defer further consideration of the action to be taken with reference to his conduct. Mr Shetty in his response to the status report claims that the CEO of ICC had "falsely" stated in his interview that the President ofBCCI had requested ICC to issue a letter stating that the intervention of this Court amounted to governmental interfer,ence. Th·e version of Mr Shetty is at variance to what is alleged to have been stated by the CEO ofICC. It may also become necessary for this Courtto assess the veracity of the version of Mr Shetty and that of Mr Richardson. Mr Shashank Manohar, the then President ofBCCI is presently the Chairman ofICC. A copy of this order shall be forwarded to him by the Secretary to the Committee .in order to enable him to consider filing a response setting out his version, to set the record straight and assist this Court. Mr Manohar is at liberty to obtain a report from Mr Richardson before filing his response.

12Copy pinpoint12. During the course of hearing, a grievance has been made on behalf ofBCCI that though in the judgment of this Court dated 18 July 2016, it had been hoped that the process of implementing the reforms suggested by the Committee "should be completed within a period of four months or at best six months from today", the Committee has hastened the process by indicating time lines for completion even within H

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A the said period. We find that the criticism of the Committee is not justified for more than one reason. Though this Court expressed the hope that the process of transition and implementation be completed within four months or at best within six months, this Court left it open to the Committee to draw "appropriate timelines for implementation of the recommendations" and to supervise the implementation thereof. The B Committee which was entrusted with the task of supervisin_g the implementation process was pennitted to lay down suitable timelines. The process of implementation requires a continuous process of monitoring and supervision and it would be only reasonable to assume, as did the Committee, that the process could not be completed in one c instalment.Hence, the Committee laid down timelines for implementation.

13Copy pinpoint13. Hence, the broad framework of time prescribed by this Court does not preclude the Committee from specifying timelines. On the contrary, the Committee was specifically allowed to do so to implement the judgment. The status report contains a record of proceedings before D the Committee dated 9 Augnst 2016 which indicates that when the first set of timelines was handed over to BCCI's Secretary on 9 August 2016, he stated before the Committee that a report of compliance would be furnished by 25 August 2016. Despite this, in the report dated 25 August 2016, submitted by the Secretary, BCCI to the Committee there appears the following statement furnished by BCCI by way of a E clarification at the Working Committee meeting held on 22 August 2016: "2 The Members queried as regards to the status of the review petition filed by the BCCI. It was clarified to the members that if the review petition as well as curative petition was dismissed, the recommendations of the Lodha F Committee, save those as amended by the court would become_binding".

14Copy pinpoint14. The statement made on behalf of BCCl to the Working Committee that it was only if the Review Petition, as well as Curative Petition were to be dismissed that the recommendations of the Committee G would be binding is patently misconceived. The recommendations of the Committee were endorsed in a final judgment and order of this Court dated 18 July 2016, subject to certain modifications. The judgment of this Court has to be implemented as it stands. A party to a litigation cannot be heard to say that it would treat a judgment of this Court as not H having binding effect unless the Review or Curative Petitions that it has

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ASSOCIATION OF BIHAR [DR. D. Y. CHANDRACHUD, J.]

filed are dismissed. A

15Copy pinpoint15. For the reasons 'Yhich have weighed with us in the earlier order of this Court dated 7 October 2016 and for those which we have adduced above, we are inclined to take a serious view of the conduct of BCCI in the present case. Despite the primafacie findings which were arrived at in the previous order, the further hearing w~s deferred. There B has been no change in the position ofBCCI. The intransigence continues. IfBCCI had any difficulties about adhering to the time lines laid down by the Committee, the appropriate course would have been to move the Committee. Even the grievance which was urged during this proceeding by BCCI, that some of the directions of the Committee have travelled beyond the parameters set by this Court can and ought to be urged c before the Committee in the first i11stance.

16Copy pinpoint16. During the course of the hearing, Shri Kapil Sibal, learned senior counsel appearing on behalf of BCCI has agreed to a course of action whereby in the first instance, BCCI would establish its bona fide!>: before theCommittee by demonstrating the complian.ce made by D it of those r~commendations which are stated to have been fulfilled. The Committee as the body appointed by this Court to monitor and supervise implementation of the judgment will verify whether there has been full compliance with the directions which \lre stated by BCCI to have been fulfilled. E

17Copy pinpoint17. The President and Secretary ofBCCI shall (within two weeks) file before the Committee on affidavit their statements of the compliance effo;:ted by BCCI thus far of those recommendations which have been fulfilled. The statement shall contain an elaboration of the manner in which compliance has been made and the steps proposed to be taken to F fulfil the remaining directions of this Court. The Committee is at liberty to verify the compliance statements filed on behalf of BCCI by its President and Secretary. Both the President and the Secretary shall appear before the Committee in person, and explain the steps taken for compliance and the course of action to be adopted hereafter. G

18Copy pinpoint18. Learned senior counsel appearing on behalf ofBCCI has stated that in respect of some of the recommendations, where state associations have not agreed to implement ~he recommendations of the Committee, as accepted by this Court, BCCI will make a genuine endeavour to persuade the state associations to effectuate compliance. Though BCCI H

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A is in default and breach of the directions of this Court, in order to enable it to have an additional opportunity to establish its bona fides and to secure compliance with the judgment of this Court dated 18 July2016,we grant time until 3 December 2016 for the purpose. Besides complying with the direction set out above of filing statements and appearing before the Committee, BCCI shall report compliance before this Court on 5 B December 2016.

19Copy pinpoint19. For the reasons which have been contained in the present order of the Court, we are of the view that the issuance of certain additional directions has become inevitable, over and above those that are contained in the previous order dated 7 October 2016. We have c presently come to the conclusion that, primafacie,.there is substance in the status report submitted by the Committee. Implementation of the final judgment of this Court dated 18 July 2016 has prima facie been impeded by the intransigence ofBCCI and its office bearers. However, having due regard to the submission made on behalf of BCCI that it D would make every genuine effort to persuade the state associations to secure compliance with the judgment of this Court, and having regard to the larger interests of the game of cricket, we are desisting from issuing a direction at this stage in terms of the request made by the Committee for appointment of administrators so as to enable BCCI to demonstrate its good faith and the steps taken for compliance both before the E Committee in the first instance and before this Court by the next date of hearing. However, certain additional directions are warranted in the interest of maintaining transparency in the functioning ofBCCI, having regard to the sequence of events after 18 July 2016.

20Copy pinpoint20. We accordingly issue the following additional directions:- F (i) BCCI shall forthwith cease and desist from making any disbursement of funds for any purpose whatsoever to any state association until and unless the state association concerned adopts a resolution undertaking to implement the recommendations of the Committee as accepted by this Court in its judgment dated 18 G July 2016. After such a resolution is passed and before any disbursement of funds takes place to the state association concerned, a copy of the resolution shalt be filed before the Committee and before this Court, together with an affidavit of the President of the $tate association undertaking to abide by the reforms contained in the report of the Committee, as modified by

BOARD OF CONTROL FOR CRICKET IN INDIA v. CRICKET 0 833 ASSOCIATION OF BIHAR [DR. D. Y. CHANDRACHUD, J.]

this Court. Any transfer of funds shall take place to the state associations which have accepted these terms only after compliance as above is effected. This direction is in addition to the previous direction of 7 October 2016 in regard to the disbursement to and appropriation by the state associations; (ii) (a) The Committee appointed by this Cou11 is requested to appoint an independent auditor lo scrutinise and audit the income received and expenditure incurred by BCCJ; (b) The auditor shall also oversee the tendering process that wi 11 hereinafter be unde11aken by BCCI, as well as the award of contracts above a threshold value to be fixed by the Committee; (c) The award of contracts by BCCI above the threshold fixed by the Committee c shall be subject to the prior approval of the Committee; (d) The Committee shall be at liberty to obtain the advice of the auditors on the fairness of the tendering process which has been adopted by BCCI and in regard to all relevant facts and circumstances; (e) The Committee will determine whether a proposed contract D ;:ibove the threshold value should or should not be approved; and (t) The Committee will be at liberty to formulate the terms of engagement and reference to the auditors having regard to the above directions. BCCI shall defray the costs, charges and expenses of the auditors. E (iii) The President and Secretary ofBCCI shall within two weeks from today file a statement on affidavit indicating compliance made by BCCI of those of the recommendations of the Committee which have been complied with, the manner of compliance and the steps adopted for securing compliance with the remaining recommendations. They shall appear before the Committee to F explain the manner of compliance. The President and Secretary, BCCI shall also keep the Committee apprised about the steps take11 pursuant to the statement recorded in paragraph 18 above. (iv) An affidavit of compliance shall be filed before this Court on or before 3 December 2016 by the President and Secretary to G BCCI in terms of paragraphs 17 and 18 above; and (v) The Secretary to the Committee appointed by this Court shall forward a copy of this order to Mr Shashank Manohar, Chairman ICC to facilitate the observations contained in paragraph 11 of H

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A this order. _ BC_CI shall cooperate with the Committee and with the auditors by granting, in particular, full access to records, accounts and other information as required to facilitate implementation of these directions.

21Copy pinpoint21. The hearing of the proceedings shall stand over to 5 December B 2016.

· Divya Pandey Matter adjourned.