ORDER
K.P. Sivasubramaniam, J.
1. The petitioner, Zee Telefilms Limited, prays for a Certiorarified Mandamus to call for the records relating to the first respondent in its communication dated 21.9.2004 cancelling the tender process dated 7.8.2004 and to quash the same and to consequently direct the first respondent to act in furtherance of the decision arrived at on 5.9.2004 in the matter of exclusive television rights for telecast of cricket matches in India under the aegis of the first respondent and the International Cricket Council.
2. In view of the urgency and by consent, the main writ petition itself is taken up for disposal.
3. I do not propose to extract the pleadings of both sides in detail in view of the scope of the points argued before me and in order to avoid the repetitive contentions raised by both sides in their respective pleadings. It is sufficient to briefly state the background in which this writ petition has been filed.
4. The petitioner is one of the vertically integrated media entertainment groups in India functioning since 1992. They claim that they have been telecasting live cricket on various occasions.
5. The Board of Control for Cricket in India, the first respondent herein, (hereinafter referred to as 'the Board'), had invited tenders for the telecast of cricket matches in India for a period of four years from 1.10.2004 to 30.9.2008 by an Invitation to Tender (I.T.T.) dated 7.8.2004. On 14.8.2004, the petitioner had submitted their bid. Five different establishments had submitted their bids and the details are as follows:
============================================================Sr.No. Bidder Amount (USD) (in million)============================================================1. Zee Telefilms Limited 260.762. ESPN Star Sports 2303. Prasar Bharati 1504. Sony Network 1325. Ten Sports 115============================================================
6. The petitioner emerged as the highest bidder followed by the third respondent. By a communication dated 29.8.2004, the Board had called upon the petitioner to attend the meeting of Television Rights Committee (TRC) to be held on 4.9.2004 at Chennai. The meeting was attended to by the representatives of the petitioner as well as the third respondent being the second highest bidder. After the petitioner had agreed to raise their bid to 281 Million US$, the third respondent also appears to have raised their bid to 308 Million US$, provided, the contract was given for a period of five years instead of four years. During negotiations, the third respondent is stated to have agreed to give up its demand for the fifth year. The petitioner being the highest bidder, was asked to match the higher offer of the third respondent. According to the petitioner, though the action of the Board was not proper, yet, they agreed to increase their bid to 308 Million US$ and thus became acknowledged as the highest bidder entitled to the award of the contract. The petitioner alleges that from the beginning, the then President of the Board, the second respondent herein, was consistently hostile towards the petitioner and was doing everything to favour the third respondent and to eliminate the petitioner. The petitioner was required to discharge a very onerous condition of making a payment of 20 Milli on US$ within 48 hours as a pre-condition for issuing the Letter of Intent (LOI). However, this requirement was complied with by the petitioner, though such a condition was not contemplated under the Invitation to Tender.
7. In the said background, the third respondent filed a writ petition before the Bombay High Court, challenging the award of the tender to the writ petitioner herein. Even on the first hearing, the Board came forward with a suggestion that both parties, namely, the petitioner and the third respondent herein, may be allowed to bid competitively and the contract can be awarded to the highest bidder. The petitioner was not agreeable to the said proposal while the third respondent readily agreed. It is further stated by the petitioner that after the Bombay High Court had heard the matter for a few days, the Board had made a statement before the High Court that in view of the situation that Australia/India cricket series was to commence on 6.10.2004 and to avoid disputes in Court and in view of the refusal on the part of the petitioner to agree for competitive bidding along with the third respondent herein, the Board contended that in the interest of the game, it had become necessary to cancel the whole process. But the petitioner contended that if the Board resorted to cancellation of the contract, they would have to challenge the cancellation. In this background, the third respondent (writ petitioner) took the stand that as no Letter of Intent has been issued till then and that there was no concluded contract, they were willing to withdraw the writ petition if the Board was willing to cancel the tender. Ultimately, the third respondent withdrew the writ petition and the objection by this writ petitioner was duly recorded by the High Court while disposing of the writ petition as withdrawn.
8. The writ petitioner, thereupon, moved the Supreme Court under Article 32 of the Constitution in W.P. (Civil) No. 541 of 2004. After admission of the writ petition, the writ petition was referred to a Constitutional Bench on the issue of maintainability of the writ petition against the Board and whether the Board could be treated as a ' State' under Article 12 of the Constitution. By a judgment dated 2.2.200 5, the majority of the Bench held that the Board cannot be held to be a 'State' for the purpose of Article 12 of the Constitution and hence, the writ petition under Article 32 of the Constitution was not maintainable. However, according to the petitioner, the majority of the Bench also held that as the Board was discharging public functions, the aggrieved party can seek remedy by way of writ petition under Article 226 of the Constitution. It is in the above background, the petitioner has approached this Court to quash the order of the Board dated 21.9.2004, cancelling the tender process.
9. Before filing this writ petition, the petitioner had also filed S.L.P. (c) No. 20186 of 2004 as against the order of the Bombay High Court, permitting the third respondent to withdraw the writ petition filed before that Court. As on date, the said S.L.P. is pending before the Supreme Court.
10. In the affidavit in support of the writ petition, the petitioner had contended that in the tender document, the petitioner had given all the details, which amply satisfy the required infrastructural facilities. On being fully satisfied with the eligibility criteria, the price bid was opened. The petitioner was, admittedly, the highest bidder having bid more than Rs.100 crores than the second highest bidder third respondent. The petitioner's bid also satisfied all the other requirements such as, an agreement with Prasar Bharathi ( Doordarshan) for the usage of its terrestrial network. Further, the petitioner was the only other Indian bidder apart from Prasar Bharathi who had bid at a very low rate. On 29.8.2004, the petitioner had received a communication from the Board, inviting the petitioner to attend the meeting of TRC of the Board to be held at Chennai on 4.9.2004 and that the representatives of the petitioner should be authorised to enter into negotiations with the Board. The petitioner confirmed its readiness. To their surprise, they saw the third respondent also, who was the next highest bidder, having been invited for negotiation, which procedure was not permissible according to the petitioner in terms of the directions of the Central Vigilance Commission (CVC). The said action of the Board smacked arbitrariness and impropriety and the petitioner clearly placed it on record by letter dated 5.9.2004 addressed to the Board. All the requirements as insisted by the Board for being awarded with the contract were satisfactorily complied with by the petitioner and the petitioner also undertook to comply with all the terms and conditions as may be insisted by the Board. The requirement to deposit a sum of 20 million US$ within a period of 48 hours as a pre-condition for issuing the LOI was also complied with by the petitioner on 7.9.2004 within a span of just 48 hours. By letter dated 11.9.2004, the petitioner informed the Board that they were fully ready to implement the contract and would like to discuss the terms proposed in the draft LOI for bringing them in conformity with the broad understanding reached between both the parties.
11. The petitioner had also expressed in their affidavit that the second respondent, the then Chairman, was very hostile towards them from the very beginning. When the petitioner entered into the fray, he had asked the President of the petitioner as to whether they would bid 'aggressively', to which the President of the petitioner had replied that they would not bid aggressively in the bid. However, as the petitioner had taken part in the negotiations aggressively, the same had upset the calculations of the Board. Though the petitioner emerged as the highest bidder, the petitioner was not declared as the highest bidder. On the other hand, he was forced into a long and arduous negotiation process contrary to the terms of the tender and the guidelines issued by the CVC, which allowed negotiation only with the highest bidder. The said process consumed valuable time of 20 days. The action of the second respondent was only with a view to thwart the petitioner from winning the contract by pitting the third respondent against the petitioner, namely, the financial might of a global giant (third respondent being a partner of Star TV and Walt Disney) against the petitioner, resulting in the third respondent increasing the bid from 230 million US$ to 308 million US$. During the entire renegotiation process, the second respondent was explicitly hostile to the representatives of the petitioner for some hidden reasons. Yet, the rest of the Tender Committee and the Marketing Committee took a decision to award the tender to the petitioner. However, the second respondent saw to it that very onerous pre-conditions were required to be fulfilled by the petitioner, namely, to deposit 20 million US$ within 48 hours.
12. The petitioner further alleges that having failed to prevent the petitioner from emerging as the successful bidder, efforts were taken to somehow scuttle the entire process to start the process afresh. The third respondent, in an attempt to perpetuate their monopoly in the international/Asiatic area, had to achieve its purpose of not allowing a private channel in India to enter the field. This explains the third respondent filing a writ petition before the Bombay High Court questioning the award of tender to the petitioner. Curiously, in the first hearing itself, the Board came forward with the suggestion for re-bid and the re-bid being confined to the petitioner and the third respondent. The third respondent readily agreed for the same. The petitioner, however, realising the game-plan of the respondents, refused to agree to the suggestion.
13. The petitioner also submits that after he had won the bid, reports appeared in the newspapers, raising the issue of the petitioner's qualification for the bid. But when the third respondent had participated in the bid process, the petitioner's qualification was never disputed. It was only subsequently after the petitioner was chosen for the award of the contract, the third respondent had moved the writ petition before the Bombay High Court.
14. The petitioner further submits that the involvement of M/s. Price Water House Coopers (P.W.C.), an international audit firm, in the tender process, would clearly establish and expose the manner in which the entire tender process had been handled by the respondents in an improper manner. Petitioner contends that the writ petition before the Bombay High Court by the third respondent was entirely based on a letter written by P.W.C. on 6.9.2004, (the date on which the said writ petition was filed) to ESPN Software Pvt. Ltd., an associate of the third respondent. According to the petitioner, P.W.C. was the Auditor of ESPN Software Pvt. Ltd. and also ESPN and Walt Disney, from whom P.W.C. was receiving a huge audit fee of over 12 million US$ per year. In the letter, P.W.C. had stated that P.W.C. was not required to and did not evaluate the tender as stipulated in the invitation to tender, though the Board had requested P.W.C. to evaluate the tender. P.W.C. declined to evaluate the tender and did not evaluate. This was expressly mentioned to all the bidders on the opening of the tender and no bidder had objected. The petitioner would further state that this was the sole ground on which the third respondent had moved the Bombay High Court for filing the writ petition. The third respondent had contended that the tender issued was violative of the conditions and the petitioner herein (Zee) was not qualified, in view of the fact that no assessment was carried out in terms of the invitation to tender. In the writ petition, the third respondent did not disclose that P.W.C. was their own Auditors. It was, therefore, evident that P.W.C. had issued the letter dated 6.9.2004 only to oblige the third respondent in violation of its professional ethics and confidentiality to the Board and to provide the third respondent a cause of action to approach the Bombay High Court. In contrast, when the petitioners wrote to P.W.C. subsequently for information, P.W.C. refused to disclose any information on the ground that they could not disclose their client's (Board) confidential information to anyone.
15. Before the Bombay High Court, the Board had confirmed that the petitioner herein was the highest bidder and had also denied in its pleadings, the contention that the petitioner was not qualified. That being so, the subsequent conduct of the Board before the Bombay High Court was very strange. Even while the hearing commenced, the Board made a statement that as the Australian/Indian series was to commence on 6.10.2004, the Board would opt for re-bidding in which, the petitioner and the third respondent would participate. This offer was readily accepted by the third respondent, but rejected by the petitioner. This led to the Board taking a stand that there was no option except to cancel the tender process. Consequently, the petitioner had to express that in the event of cancellation, they would challenge the cancellation. All these events happened after the Bombay High Court had heard the arguments on various dates. After hearing the third respondent and the petitioner, the Board had commenced its submissions on 20.9.2004 when the above events took place. On the very next day on 21.9.2004, the Board filed an affidavit enclosing a letter of the Australian Cricket Board, stating that unless the issue of telecast was decided expeditiously, the tour may have to be cancelled. Hence, it was imperative that both the contesting parties have to come to an understanding. The Board also took the stand that there was no concluded contract and hence, the tender has to be cancelled. This was followed by third respondent taking the stand that as there was no concluded contract, they were willing to withdraw the writ petition, provided, the tender was cancelled. This resulted in the Bombay High Court recording the statement of all the parties, including the objection by the petitioner herein, and permitted the third respondent to withdraw the writ petition. According to the petitioner, the said events were the result of a strategy devised to oust the petitioner's legitimate claims. The entire action was a gross abuse of process of the Court. The withdrawal of the writ petition was theatrically enacted behind the scene by the Board and the third respondent, only for defeating the rights of the petitioner after the petitioner had committed themselves by investing high capital. The petitioner also avers that the entire sequence of events was the result of clear collusion between the second respondent and the third respondent. The petitioner, therefore, submits that they are greatly affected by the actions of the respondents. The petitioner being the highest bidder, had already gone ahead making and committing investments of a value of Rs.20 0 crores for launching a sports channel. Hence, the writ petition.
16. Subsequently, an additional affidavit has been filed by Subhash Chandra, the Chairman of the petitioner. In the said affidavit, the deponent has stated that the affidavit originally filed by the Vice President (Legal) of the petitioner had been filed only on instructions from him and the contents stated therein are true. The deponent would also state that the contentions regarding the petitioner's participation in the bid presentation and the meetings of the Board at Chennai are true, as he was personally present in those meetings. In fact, he had sworn to an affidavit affirming the factual averments in W.P. No. 541 of 2004, which was filed before the Supreme Court of India. The allegations in the affidavit regarding the conduct and motive of the second respondent are true and the allegation of malice was a clear inference therefrom. The present additional affidavit was filed by way of abundant caution, as the petitioner was advised to state that certain objections have been raised on the maintainability of the allegations of mala fides against the second respondent on an affidavit sworn to by the Vice President of the petitioner, who was not personally present during the tender proceedings.
17. In the counter affidavit filed by the first respondent/Board, certain preliminary objections have been raised regarding the maintainability of the writ petition. It is stated that the issue is purely contractual and hence, not enforceable under Article 226. Further, the alleged contract itself stands frustrated and admittedly, there was no concluded contract. The function of televising cricket matches is neither in public domain nor was it a public duty or public function, so as to invoke Article 226. The tendering process was rejected by invoking the specific provisions under the invitation to tender. The Constitution Bench of the Supreme Court had declared that the Board was not a 'State' within the scope of Article 12 of the Constitution. The writ petition was also beyond the territorial jurisdiction of the Madras High Court.
18. The first respondent would further state that there was no concluded contract and the petitioner cannot claim any rights only by virtue of the payment of 20 million US$ which was made voluntarily by the petitioner by wire transfer from bank to bank. The said deposit was also returned to the petitioner on 22.9.2004 which was duly acknowledged by the petitioner. The decision to revoke the entire tender process was also approved unanimously by the Marketing Committee in the meeting held on 28.9.2004 at Calcutta. The termination was inevitable, following the uncalled for and vexatious litigations initiated by vested interests and the tender having become frustrated. The writ petition was also liable to be dismissed, in view of the fact of their filing a Special Leave Petition before the Supreme Court for the same relief, challenging the validity of the termination of the entire tender process. The petitioner had also suppressed the fact that the deposit of 20 million US$ was done voluntarily. By such wilful suppression, the petitioner had misled this Court. The Specific Relief Act provides for adequate remedy in contractual matters and Article 226 cannot be invoked on a complaint of breach of contract.
19. Apart from the above preliminary objections, the various allegations raised by the petitioner are also denied. It is further stated that the petitioner does not fully satisfy the eligibility criteria and in the course of negotiations, the petitioner had admitted that they had no production unit of their own. The third respondent also admitted that while it has a full production unit, it was also not fully equipped with all the machineries and requirements, which had to be hired. The respondent has also listed about 15 machineries which are essential for proper telecasting, and the petitioner, admittedly, did not possess all the said equipments and the required manpower.
20. The first respondent denies the allegation of malice in its decision to cancel the entire tender process. The said decision had to be taken only taking into account the uncalled for litigations, mala fide acts and conduct of parties who intended only to make wrongful commercial gain. In the Working Committee Meeting on 16.9.2004, it was unanimously decided to empower the President to deal with all the eventualities arising out of the tender process. The decision to cancel was also unanimously ratified by the Marketing Committee. Again, in the Annual General Body Meeting held on 30.9.2004, the decision was accepted and acknowledged. The meeting was, in fact, convened only on the demand of 27 out of 30 members and the second respondent was nominated as Patron-in-Chief, taking into account his exemplary services to the game of cricket and not as contended by the petitioner.
21. The claim that the petitioner satisfied all the eligibility criteria was denied. It is further stated that the petitioner did not satisfy the requirement of agreement with Prasar Bharathi for the use of the terrestrial network. Reference is also made to Clause 3.8(b)( c) of the Invitation to Tender, which clearly emphasises unfettered discretion in the Board to decide or to reject the tender, which condition having been accepted by all the bidders, it is not open to the petitioner to question the decision of the Board. Reliance placed on the guidelines issued by C.V.C. is also incorrect. The Board is not a 'State' within the scope of Article 12 of the Constitution nor a Governmental organisation.
22. Dealing with the process of negotiations, it is stated that the petitioner was called first to increase the bid to 281 million US$ for the rights and to cast the production through and out of the two available production houses which may be selected by the respondent Board. However, the third respondent increased its offer to 308 million US$ and intended to cast production through its own experienced personnel and by hiring some of the equipment and other related personnel. As a result, most of the members were in favour of awarding the contract to ESPN Star Sports, who did qualify all other criteria. However, as the tender offered by the petitioner was higher, it was decided that the petitioner should be asked whether it was agreeable to meet the offer of 308 million US$ of the ESPN and the other requirements. In the said process of negotiation, the representative of the petitioner was informed about the requirements of due evaluation of the offer and nothing beyond that. The petitioner was also asked as to whether it would be in a position to deposit 20 million US$ within 48 hours from the date of issuance of the Letter of Intent. The respondent further states that no Letter of Intent was ever given to the petitioner. There was no acceptance or grant of any Letter of Intent by the Board. Mere information of the requirements of the Marketing Committee does not amount to a concluded contract. Further, as could be seen from the petitioner's letter dated 6.9.2004, the amount was to be deposited only after the Letter of Intent was finalised. However, on 6th September 2004, when ESPN filed the writ petition before the Bombay High Court, the petitioners, despite t he fact that no Letter of Intent was finalised, attempted to create fait accompli by depositing 20 million US$ to the account of the respondent by way of wire transfer. This amount was returned by the respondent on 22nd September 2004, which fact has been suppressed by the petitioner.
23. The contention that the petitioner was fully ready to implement the contract was also denied. The further contention that the first respondent was simply acting on the directions of the second respondent was also denied. The second respondent never exercised his influence on anyone. Only after it became known that none of the parties had full-fledged production unit and there being no other alternative, both the petitioner and the third respondent were called for negotiations in a perfectly legal and bona fide manner.
24. The allegations made against the President of the Board were also denied as baseless and were termed as motivated. Nobody was hostile towards the petitioner. The Marketing Committee, in its meeting on 5.9.2004, was only evaluating the offers and not finalising or considering the grant of the award. On the other hand, it is only the conduct of the petitioner which exhibits malice. There was no attempt on the part of anyone to scuttle the tender process.
25. As regards the happenings before the Bombay High Court, the respondent contended that as the India/Australia series was to commence from 6.10.2004 and the writ petition was being heard, in the larger interest to resolve the impasse and to ensure that the important series was not cancelled as threatened by the International Cricket Council (ICC) and Cricket Australia, a workable suggestion was offered to both the parties to secure any amount over and above the sum of 308 million US$ in sealed covers before the High Court and the highest offerer would be provided with the rights. The said bona fide gesture on the part of the Board was appreciated by the High Court. While the third respondent expressed its consent, the petitioner sought for time to consider the same and ultimately, refused. Therefore, the allegation relating to re-bidding was baseless.
26. As regards the allegations relating to P.W.C., the respondent had contended that it was expressly informed at the time of opening of the tender that in view of the notarised undertakings given by the tenderers on the issue of eligibility criteria, P.W.C. would not be empowered to verify the eligibility criteria and they would submit only a tabular form of financial prices mentioned in the bids. None of the representatives had raised any objection to the same. It was only after the third respondent realised that the petitioner's offer was higher, the third respondent raised disputes with regard to the eligibility of the petitioner. The petitioner not only participated in the process of negotiation, but also admitted that it has no experienced personnel for producing live cricket events. It was only before the High Court of Bombay it was revealed that P.W.C. were the Auditors of the third respondent. Had it been made known to the first respondent, it would not have nominated P.W.C. to undertake the evaluation of the tenders. In any event, P.W.C. did not evaluate the bids and hence, the imputations alleged against the respondent were baseless and motivated.
27. In the matter of the proceedings before the Bombay High Court, it is further stated that in view of the India/Australia series, it was imperative that arrangements were to be made well in advance for telecast of matches of international standard. It was one of the mandatory stipulations of the International Cricket Council that there must be a live telecast of the matches and for Third Umpire decisions. On account of the ongoing litigations, the Board apprised the International Cricket Council and by their letter dated 10.9.2004 and by a reply on the same date, the International Cricket Council made it clear that they would be reluctant to consider any request from the Board for the conduct of test matches without broadcast on television. Australian Cricket Board also took the same stand. In the light of the above events and as the obstructive approach on the part of the petitioner continued unabated, the decision was taken to cancel the entire bidding process on 21st September 2004. The said decision was unanimously approved by the Marketing Committee. In the meeting, it was decided that the production and telecasting of the Australia/South Africa series as well as One Day International between India and Pakistan will be done by the Board itself by producing the same through Ten Sports and telecasting the same in India by Doordarshan and by Sony at the International level. It was expressly clarified that the grant of the rights would remain subject to any order being passed by the Hon'ble Supreme Court, where the petition was pending.
28. The contention that the respondents were trying to create foreign monopoly was also incorrect. Reference is made to the judgment of the Supreme Court in SECRETARY, INFORMATION AND BROADCASTING v. CRICKET ASSOCIATION OF BENGAL , in support of the contention that it is within the right of the Board to choose the best method to earn the maximum revenue possible.
29. In the separate counter affidavit filed by the second respondent, the then President of the Board against whom the petitioners had alleged malice, the second respondent has also raised the issue of maintainability of the writ petition on various grounds, namely, the territorial jurisdiction, scope of the writ petition under Article 226 in contractual matters, suppression of the pendency of the Special Leave Petition before the Supreme Court, etc. After stating that he had been legally advised to deal only with the contentions relating to him personally, he has stated that he was traversing only with them specifically. The allegations made against him were false and highly malicious and defamatory and he had reserved his rights to initiate appropriate proceedings. The petitioner had wilfully suppressed the fact that the deposit of 20 million US$ was done by the petitioner voluntarily on their own volition by bank to bank wire transfer. The fact of the return of the amount has also been wilfully suppressed by the petitioner.
30. The contention that he had arranged to have himself appointed as Patron-in-Chief of the Board was frivolous and false. Such allegations are made vexatiously by persons with false and malicious motives. The petitioner did not satisfy the eligibility criteria, as it has no production unit. Though the petitioner claims that it had arrived at an understanding with Prasar Bharathi, the same was never produced.
31. The allegation that he had enquired the Chairman of the petitioner whether they are going to make aggressive bid and that he was hostile etc., are false and such allegations are malicious and defamatory, and made only with a motive to defame him, his credibility and reputation. In the affidavit, he has stated about his long services to the game of cricket and to the Board, which have been enlisted in detail in paragraph 10 of his affidavit, right from the year 1983 when he became Honorary Secretary of Cricket Association of West Bengal till he became recognised in the International Journal of History of Sports (2005) and declared as one of the Top five Sports Administrators in the world of sports and how in between he had contributed to the growth of cricket in India, of having conducted several tours, achieving commercial success in several crores of rupees and when he laid down his office as President of the Board in September 2004, he left a surplus of Rs.100 crores as surplus.
32. The second respondent would further state that the Chairman of the petitioner made repeated attempts to influence him and having failed to succeed, had resorted to such baseless and motivated aspersions.
33. As regards the tender process, the second respondent states that as the Board was not a 'State' within the scope of Article 12 of the Constitution, the circular by the C.V.C. was not at all applicable. In terms of the specific conditions prescribed under the invitation to tender, duly accepted by all the bidders including the petitioner, the Board called both the petitioner and ESPN for negotiation. In the discussion, it was revealed that while the petitioner did not have any experience to produce cricketing events on its own, it was seen that ESPN also lacked full-fledged production unit of its own. Most of the members were inclined to award the contract to ESPN. However, it was decided that the petitioner should also be asked whether it was agreeable to match the offer of ESPN. In the said process, the representative of the petitioner was informed about the due evaluation and nothing beyond that. Neither a Letter of Intent nor any contract was executed by the Board. Therefore, there was no question of any implementation of any contract. The contention that the petitioner's agreeability to match the offer of ESPN had upset his calculation and that he had turned hostile to the petitioner was not correct. The bona fides of the respondent are well demonstrated by the fact that options were given to both the petitioner and ESPN to submit any bid higher than 308 million US$ in sealed covers before the Bombay High Court. While ESPN accepted the offer, the petitioner refused the same.
34. With reference to the averment relating to the involvement of P.W.C., the second respondent states that it was for the first time during the course of hearing before the High Court, it came to light that P.W.C. were also Auditors of ESPN and had it been made known to the Board or its functionaries earlier, such reputed international firm of auditors would not have been appointed by the respondent to evaluate the tender process. The chain of correspondence exchanged by and between the Board and P.W.C. would reveal how the issue was taken up and evaluation done.
35. As regards the happenings before the Bombay High Court, the second respondent states that the order of status quo, which was passed by the High Court, related to the grant of television right in respect of India/Australia Series and not otherwise. The faith and trust imposed by the members in favour of the second respondent clearly demonstrated the bona fides and the legality of the conduct on his part. It was wrong to state that he had violated the solemn order of status quo passed by the Bombay High Court. The decisions taken by the second respondent were duly approved and ratified by the Members of the Committee and subsequently by the General Body. Therefore, according to the second respondent, whatever was done by himself and the Board were legal and bona fide in the best interest of the game of cricket.
36. In their separate counter affidavit, the third respondent had contended that the petitioner did not at all satisfy the eligibility criteria and the details of issues relating to the petitioner's ineligibility are given in the counter affidavit.
37. Regarding the involvement of P.W.C., the third respondent states that P.W.C. is an independent and reputed international firm of auditors and the invitation to tender itself prescribes that the eligible bids would be opened and that P.W.C. will initially examine as to whether the tenderers fulfil the prescribed requirements and only subject to due compliance thereof, qualified tender documents would be opened and examined. In response to a query raised by ESPN Software India Pvt. Ltd. in their letter dated 6.9.2004, P.W.C. had clarified that their scope of work did not require them to examine whether the bidders fulfil the requirements, but only required them to tabulate the bids which were received. Therefore, it was clear that the Board did not examine the eligibility criteria of the petitioner in a proper manner before the bid of the petitioner was considered. But the petitioner had taken a stand as though P.W.C. and the Board were of the view that the petitioner had satisfied all the eligibility criteria and now, contrary to the said assertion, the petitioner had sought to contend that P.W.C. did not evaluate the tenders.
38. Third respondent further contends that the bid of the petitioner was never accepted nor was there any concluded contract. The petitioner's deposit of 20 million US$ has also been returned and hence, the petitioner cannot claim any equities.
39. Three separate and lengthy rejoinder affidavits have been filed on behalf of the petitioner dealing with the various contentions already raised on behalf of the petitioner as well as each of the respondents. It is not necessary to deal with them in detail, considering that the statements made therein are only in elucidation or for substantiating the earlier pleadings which have been stated above in detail. If necessary, reference may be made to the rejoinder affidavit subsequently while discussing the various issues.
40. Mr. Harish Salve, learned senior counsel appearing for the petitioner, contended that the admitted facts will disclose that the petitioner was the highest bidder as per the tender quotations. Therefore, if any further negotiation was warranted, propriety requires that the Board should have called only the highest bidder for negotiations, inclusive of any proposal by the Board to have the bid raised. On the contrary, the Board had simultaneously invited the third respondent also who was the next higher bidder. This was wrong and the Chief Vigilance Commission (CVC) had issued certain guidelines to all Government offices and Public Sector Undertakings to put an end to the practice of calling the other bidders also for negotiations. Such a practice was deprecated and stated to be the reason for corruption and unfairness in public tenders. Learned senior counsel fairly states that strictly speaking, the C.V.C. guidelines will not be applicable to the Board. Nevertheless, as the Board was discharging public functions, the principles stated in the guidelines issued for the purpose of maintaining purity in the administration of public institutions would apply to the tenders floated by the Board as well.
41. The objections relating to maintainability of the writ petition, as raised by the respondents, was also without any substance. As regards territorial jurisdiction, the Board had, in fact, been registered only at Chennai under the Tamil Nadu Societies Registration Act and the deliberations of the Marketing Committee, which is relied upon in this writ petition, and the negotiations took place only at Chennai and therefore, it was incorrect to raise a technical objection of territorial jurisdiction.
42. As regards the invocation of Article 226 in contractual matters, that too against the Board, which is not a 'State' within the scope of Article 12 of the Constitution, learned senior counsel contended that the Supreme Court, in several cases, had categorically held that the Cricket Board was discharging public duties and functions and dealing with several crores of public money. Such observations have been made in the very cases relating to the respondent Board. Though the Constitution Bench held that in terms of Article 12 of the Constitution the Board was not a 'State', it has been positively held that as the Board was discharging public functions, actions of the Board were amenable to writ jurisdiction under Article 226. The petitioner was not seeking for any specific performance simpliciter pursuant to any agreement or to enforce a concluded contract between the parties, but on the basis of a larger issue of the need of a public body to act fairly and the Court is entitled to exercise its power under Article 226, if the public body fails to act fairly and its decisions are tainted with malice and impropriety. What the petitioner has sought for is a direction to the Board to comply with its own decision taken on 5.9.2004 which had been reversed due to extraneous reasons. The crux of the issue was abuse of power and not enforcement of contractual rights. Therefore, the objections raised in the context of maintainability of the writ petition were clearly unsustainable.
43. In support of his contention that the decision of the Board was vitiated by malice, learned senior counsel took me through various materials, correspondence and minutes of the meeting held on 5.9.2004, after stating that the then President/the second respondent, for reasons known to himself, was, from the beginning, consistently trying to eliminate the petitioner from the tender process. Firstly, calling the second highest bidder was contrary to C.V.C. guidelines. Secondly, though the third respondent had enhanced the bid to 308 million US$, they had specifically made it clear that the period was for five years, which was contrary to the specific terms of the tender. The period of tender itself was only for four years. Hence, the Board ought to have rejected the negotiation proposals of the third respondent and should have disqualified the third respondent for any further negotiation. On the other hand, the Board permitted the third respondent to re-negotiate and to accept the same bid amount for a period of four years. Thirdly, as the minutes of the meeting discloses that it is only due to the insistence and pressure of the other members of the Board, it was ultimately decided to give opportunity to the petitioner to match the enhanced offer of the third respondent. Even so, with the sole motive to eliminate the petitioner, and on the expectation that the petitioner will not be able to comply with certain onerous conditions, the second respondent had prevailed upon the Board to stipulate very unfair conditions, such as that the petitioner should deposit 20 million US$ within a period of 48 hours and only thereafter (L.O.I.) Letter of Intent will be issued. Such a condition was, on the face of it, not only unfair, but also not contemplated under the invitation to tender (I.T.T.). Imposition of such a condition was by itself a clear proof of malice against the petitioner. Yet, the petitioner complied with the conditions to the disappointment of the second respondent and the Board was left with no other alternative except to recognise the petitioner as the successful bidder and had sent the draft L.O.I. to the petitioner, after accepting the payment of 20 Million US$.
44. Respondents-2 and 3, not willing to give up their collusive operation, followed it up by enacting a subsequent drama before the Bombay High Court. Though in the counter affidavit the Board took the stand to justify the decision to award the contract in favour of the petitioner, the Board was not sincere in their conduct. At the very first opportunity, the Board came forward with a suggestion that both the petitioner and the third respondent may submit their competitive bids and the highest bidder could be declared as successful. According to the learned senior counsel, this seemingly innocent action was a well-thought out scheme to favour the third respondent again, who was already eliminated from the field. After having decided to award the contract to the petitioner, there can be no question of allowing the third respondent to enter the bidding area. The Board knew very well that the petitioner establishment had certain financial constraints and limitations and cannot match the onslaught of a multinational establishment and that the petitioner will not be able to accept the proposal. The next part of the drama was to plead the need to cancel the tender process on a pretended excuse of the urgent requirement to telecast the impending Australian/Indian series, by stating the correspondence from Cricket Australia and I.C.C. The said excuse was not at all bona fide and was meant only to wriggle out of the finalised tender process, more so when the petitioner had, in fact, made a clear offer to telecast the Australia/India series as an interim measure, which would also be subject to the result of the writ petition and that accounts can be audited by the Auditors named by the Cricket Board. In the said background, there was absolutely no reason to reject the offer of the petitioner and to have taken a decision to cancel the entire tender process. The final outcome was thus the result of a well-planned collusive drama between the second respondent and the third respondent. The series of facts disclose that at every stage, unfair attempts were made to thwart the legitimate claims of the petitioner and ultimately, after it was found that it was not possible to ignore the claims of the petitioner as the highest bidder, Australia/ India series came in as an excuse for the Board to cancel the entire tender process. The litigation before the Bombay High Court was not at the instance of the petitioner but only at the instance of the third respondent and therefore, there was no basis for the Board to have taken the critical stand against the petitioner in the counter affidavit filed by the Board, which only betrays the unfair attitude of the Board against the petitioner.
45. Learned senior counsel also referred to the stand taken by the Board in the counter affidavit that the payment of 20 million US$ by the petitioner was voluntary. Such a stand was contrary to truth. The said condition was laid only as a pre-condition for issuing L.O.I., and to be complied within 48 hours, which had to be complied with by the petitioner and the payment by the petitioner was also readily accepted by the Board and the petitioner was not informed that the petitioner could make the deposit only after the issue of L.O.I.
46. Learned senior counsel further contended that it was obligatory on the part of the Board, as they are patronised mostly by the Indian spectators to not only encourage domestic cricket in India, but also give due preference to Indian based telecasting company rather than granting an international monopoly which was not consistent with the national interest. In their bid, the petitioners had also made several positive proposals to encourage domestic tournaments much in line with the county tournaments held in England, by inviting foreign players to take part so that Indian players will gain better exposure and training. Such tournaments would help the cricket, the talent of the Indian players and concrete proposals in the said direction were made in the bid of the petitioner, which was totally absent in the bid of the third respondent. If the Board was genuinely interested in cricket and development of Indian cricket, it ought to have given preference to the claim of the petitioner, instead of viewing the bid only from commercial and revenue angle.
47. Learned senior counsel expressed that in this writ petition, the third respondent had been formally impleaded as a party and it has no right to question the decision of the Board taken on 5.9.2004, as they have chosen to withdraw the writ petition before the Bombay High Court without reserving their right to institute proceedings later, if necessary. It was an unconditional withdrawal and hence, the third respondent cannot be heard to question the decision of the Board to award the contract to the petitioner. He would further contend that the entire series of facts and evidence clearly establish malice-infact and in-law, for which no direct proof was required.
48. Mr. K.K.Venugopal, learned senior counsel appearing for the Board, made it clear at the outset that he was not raising the issue of territorial jurisdiction of this Court. However, learned senior counsel questions the maintainability of the writ petition on certain other grounds, besides contending that the affidavit filed by the Executive Vice President Legal of the petitioner cannot be sustained. Many averments pertaining to the negotiations which took place between the petitioner and the Board are referred to with allegations of malice and the deponent was not a person directly concerned with the said facts. He had nothing to do with the negotiations and hence, the statements of the deponent as regards what happened during negotiations cannot be looked into.
49. Learned senior counsel also pointed out that the petitioner had not come to Court with a consistent case as regards whether according to the petitioner there was a concluded contract or not. While in some portions of the pleadings the petitioner claims that there was an enforceable concluded contract, in other portions of the pleadings, the reference is only to the tender process. Reference was also made to the submissions made by the learned senior counsel for the petitioner and various portions of the pleadings, affidavit, counter affidavit and the rejoinder of the petitioner and Mr. Venugopal, learned senior counsel, contends that the petitioner was not sure as to whether there was a concluded contract or not.
50. At this stage, learned senior counsel for the petitioner intervened and contended that while their basic pleading is that the contract between the petitioner and the Board had become concluded and enforceable, the issue whether the contract was a concluded one or not was irrelevant in this writ petition and that the main plank of their submission is that the Board being a public institution, should have followed principles of fairness and transparency in their actions and if the Board did not act fairly and had acted with malice, a writ will issue irrespective of the fact that there was a concluded contract or not.
51. Mr. Venugopal, learned senior counsel, continuing his submissions, would state that if there was no concluded contract, then the petitioner had no legal right and cannot seek for a writ in order to enforce an inchoate and uncertain right.
52. Dealing with the circumstances under which the tender process had to be cancelled, learned senior counsel traced the events from the decision to award the tender to the petitioner which was immediately followed up by the third respondent approaching the Bombay High Court and consequently stalling the proceedings by obtaining an order of status quo. The Board was faced with an ultimatum from the Cricket Australia to cancel the tour if the matches could not be telecast and also similar message from the I.C.C. The Board was, therefore, thrown against the wall and had no other alternative. It became too late to import the required machinery for the Board itself to make arrangements for the telecast and the match between India and Australia was one of the most popular events from the point of view of the enthusiastic lovers of the game. Therefore, the Board had to take a drastic decision in order to be free to proceed further without being locked up with the litigation. A bona fide offer was made to both parties with a genuine motive to put an end to the stalemate by suggesting competitive bid between the two contesting parties. While the third respondent agreed, the petitioner refused. It is only in those circumstances, there was no other alternative to the Board except to cancel the entire process failing which, at the international level, the country's claim for the very holding of the international matches would have suffered very much. In fact, it is the Board which had also suffered loss consequently, as a result of the litigation by both the petitioner and the third respondent.
53. Mr. Venugopal, learned senior counsel, further contended that there was absolutely nothing wrong in the tender process as adopted by the Board. The guidelines of C.V.C. is neither binding on the Board nor could be stated to be the ultimate solution for eliminating corruption or unfairness in the conduct of the tender process. In fact, our Courts have recognised public institutions calling the highest bidders for negotiations in the interest of securing better revenue, provided, there was no discrimination or denial of opportunity for the various bidders. Opportunity was given to the petitioner being the highest bidder in the sealed tender. Hence, the criticism advanced against the tender process was unwarranted, much less can any bad motive be attributed against the Board, in view of the fact that the procedure adopted by the Board is the same as adopted by many public institutions. It was only because of the action taken by the respondents, the revenue was increased from 260 million US$ to 308 million US$.
54. While dealing with the allegations of malice and partiality, learned senior counsel would state that the said allegations were not fair, considering that notwithstanding the fact that the petitioner was not fully qualified on many technical requirements, its experience, etc., the Board had decided to ignore the said deficiencies only because the petitioner was the highest bidder. Before the Bombay High Court, the Board filed a counter affidavit, defending the decision to consider the claims of the petitioner and it was uncharitable for the petitioner to accuse the Board with malice or partiality. There is also no basis for the attack against the second respondent that he had preference for the third respondent. It was only at the intervention of the second respondent it was decided to give an opportunity to the petitioner being the highest bidder. Learned senior counsel also took me through the correspondence and the counter affidavit filed before the Bombay High Court and contended that the stand taken by the Board against the third respondent would positively disprove the allegations of collusion between the Board and the third respondent.
55. On the controversy relating to the circumstances under which the petitioner was required to deposit 20 million US$, learned senior counsel submits that the understanding was clear, namely, that the deposit was to be made only 48 hours after the issue of L.O.I., and not before that. However, the petitioner had voluntarily and hastily paid the amount on their own by wire transfer. No communication had been sent to the petitioner from the Board demanding such payment as a pre-condition. When once it was decided by the Board to cancel the tender process, the amount was returned to the petitioner promptly and simultaneously. There is no question of the Board want-only putting any undue pressure on the petitioner with a view to eliminate him from the tender process. If only the Board was anxious to ease out the petitioner, the Board could have easily done so, even at the stage of assessment of the technical bid itself, as admittedly, the petitioner did not satisfy many of the requirements and also lacked the minimum experience of producing and telecasting international events.
56. Learned senior counsel also contended that there was no right or any concluded contract which was capable of being enforced. No Court can enforce an inchoate and incomplete right or an incomplete agreement. Reference was made to the correspondence between the Board and the petitioner relating to the draft L.O.I. sent to the petitioner and that it was clear that the petitioner has not fully accepted the same. The petitioner had contended that the draft L.O.I. did not reflect the essential ingredients of the understandings reached between both parties. There was, therefore, no consensus ad idem between the two. That being so, there was nothing to be enforced in a Court of law, much less in a writ petition. Even so, the Board was anxious to save the situation in view of the stalemate which was created as a result of the writ petition before the Bombay High Court and the suggestion of the Bombay High Court was accepted by the Board and the Board had agreed to both the petitioner and the third respondent submitting their final offer in a sealed cover before the Court. As the petitioner had turned down the offer, there was no further scope of dissolving the stalemate. There was also an order of status quo and both the Cricket Australia and the I.C.C. had made it clear that in the absence of telecasting, there was no other alternative except to cancel the entire series.
57. Mr. Ashok Desai, learned senior counsel for the second respondent, contended that there was no enforceable contract, and at any rate, the contract as was originally contemplated under the I.T.T., cannot be visualised. A part of the series contemplated under the I.T.T. was already over. Matches with Australia and South Africa were over. Also, the One Day International match with Pakistan was already over and as such, a fragmented contract cannot be enforced at all by any Court of law. Contract cannot be implemented, as part of the scope of the contract was already over. Reliance is placed on the judgment of the Supreme Court in , in support of the contention that no decree can be issued to enforce a fragmented contract.
58. Dealing with the criticism against the tender process, learned senior counsel contended that if so, the petitioner should have approached the Court immediately. On the other hand, the petitioner took part in the negotiations and raised the bid to 308 million US$. Reference was made to Clauses 5.3, 5.4(c) and (d) of the I.T.T., which entitle the Board to cancel the tender process before the contract is actually awarded to anyone. The stage of grant of contract in favour of the petitioner never arose and no Letter of Intent had been issued. Having regard to the said specific terms of agreement entitling the Board to cancel the tender process, the petitioner cannot be heard to challenge the same.
59. Mr. Iqbal Chagla, learned senior counsel appearing for the third respondent, had raised a preliminary objection on maintainability of the writ petition and has questioned the maintainability on the following grounds:
(i) The party coming to Court should approach with clean hands by disclosure of all the necessary facts, failing which, the writ petition itself was liable to be dismissed without any further enquiry of any other issues. According to the learned counsel, the issue of eligibility of the petitioner was raised even before the writ petition was filed before the Bombay High Court and therefore, the statement in paragraph 28 of the affidavit of the petitioner which raises a contention to the contrary was a false one.
(ii) The pleadings of the petitioner proceed mainly on the basis of the claim that there was a concluded contract in favour of the petitioner. Reference was made to portions of the affidavit of the petitioner stating that the contract in favour of the petitioner was complete and concluded. However, in contrast, the correspondence between the petitioner and the Board would disclose that even L.O.I. had not been issued and what was exchanged between the two was only a draft letter of intent. It is also seen that the draft sent by the Board was not fully acceptable to the petitioner, who, by their letter dated 11 .9.2004, complained that the draft was not consistent with the understanding between the parties. Therefore, the pleading that there was a concluded contract was false to the knowledge of the petitioner.
(iii) The proceedings which were initiated by the petitioner and pending before the Supreme Court are also on the same issue as raised by the petitioner in this writ petition and therefore, the petitioner ought to have disclosed the same. As against the third respondent's withdrawal of the writ petition before the Bombay High Court, the petitioner had filed S.L.P. (Civil) No. 20186 of 2004. The said S.L.P. was pending and the very same issues raised in this writ petition, namely, the validity of the cancellation of the tender process by the Board was also an issue before the Supreme Court. Apart from the fact that the petitioner cannot be permitted to move another forum for the same relief, the petitioner should have at least disclosed about the pendency of the S.L.P., which has not been done. This suppression is very vital, as it goes to the root of the maintainability of the writ petition. Further, interim relief prayed for by him was not granted by the Supreme Court in the S.L.P., whereas, without disclosing the same, the petitioner had obtained an order of status quo before this Court.
60. On the merits of the contentions raised by the petitioner, learned senior counsel for the third respondent contended that there was nothing improper in the processing of the tender and the negotiations which took place between the Board, the petitioner and the third respondent. Learned counsel also referred to Clause 2 of the tender conditions, requiring that only entities owning existing in-house production and telecasting units and channel network alone are entitled to be selected. The minimum required experience of two years should be of their own and not as a licensee. The petitioner, admittedly, lacked the said qualification and ought to have been disqualified at the assessment of the technical bid itself. This was duly taken note of during the meeting of the Marketing Committee, but the Board had failed to disqualify the petitioner. Learned counsel, then, referred to the bid of the petitioner, in particular, the details relating to eligibility. Though the petitioner claimed that they have their own inhouse production and telecasting units, later, the Board itself found that the petitioner did not have all the requisite eligibility criteria. A perusal of the schedule of the petitioner's tender would show that the petitioner had only telecasting experience and not of production.
61. Reference was also made to the companies with whom the petitioner claimed tie-up. All of them were foreign based companies and therefore, the claim that the petitioner's bid was an indigenous one was not correct. Even if they are to be considered as subsidiary or sister companies of the petitioner, the experience of such companies was irrelevant. In terms of I.T.T., the bid by a consortium was not permissible. The Supreme Court had positively held that when a tender is floated on the basis of specific stipulation as to the qualifications, then no relaxation was possible. Any relaxation or modification was possible only prior to the last date for submission of the bids as specified in Clause 3.1.(b) of the tender conditions. It was further pertinent to bear in mind that in a petition under Article 226, the petitioner cannot be heard to plead that the petitioner's lack of eligibility should be ignored. Learned counsel also pointed out that the petitioner had not given any list of Commentators, in contrast to the third respondent. It is also seen that the petitioner had not produced any agreement with the Doordarshan for terrestrial telecasting.
62. In contrast, the only deficiency pointed out against the third respondent is that they did not have their own cameras and men to operate the cameras. This should be viewed from a practical point of view. Such cameras were highly sophisticated and specialised products of selected companies throughout the world and only persons who are technically qualified, can operate those gadgets/cameras. Such individuals were a select few. It was the uniform practice of all telecasting companies throughout the world only to hire such cameras along with their own operators and cameramen. Such costly and sophisticated cameras will not be left in the hands of others to be operated. No other telecasting establishment can claim to possess such cameras by themselves. Therefore, the deficiency, if any, pointed out as against the third respondent, is not at all material.
63. Therefore, according to Mr. Iqbal Chagla, while the third respondent was fully qualified, the petitioner did not satisfy many essential and basic requirements. Hence, the petitioner had no right to question the cancellation of the tender process.
64. Mr. A.L. Somayaji, learned senior counsel, supplementing the submissions on behalf of the second respondent, contended that there was absolutely no basis for the contention of the petitioner that the second respondent's role was tainted with either malice in fact or malice in law. As far as negotiations were concerned, both L-1 and L-2 were invited, as is the usual practice. Reference to the Board's proceedings will disclose that it was the petitioner who was first called for discussion, as would be evident from the minutes of the meeting itself. The ultimate decision to cancel the tender process was taken on compelling situation, which decision was not only approved by the Marketing Committee on 28.9.2004, but also by the General Body on 30.9 .2004.
65. The petitioner cannot, as a matter of right, insist on the enforcement of the decision of the Marketing Committee, which was only tentative and dependent on fulfilment of various requirements which were, admittedly, not complied with by the petitioner, such as the absence of agreement with Prasar Bharathi and the admitted fact that the draft L.O.I. was not acceptable to the petitioner. Therefore, there was no enforceable right in favour of the petitioner.
66. Mr. Somayaji also contended that the petitioner, having taken part in the negotiations, is estopped from questioning the process of negotiation as adopted by the Board. The petitioner ought to have questioned the process at the earliest point of time.
67. In the above circumstances, there was absolutely no justification for the contention that the actions of the second respondent were tainted with malice. The members of the Committee are well-placed persons in the society and not the type of persons who would surrender their discretion to anyone if they felt that the decision of the second respondent was improper. They are not persons who can be accused of meekly submitting to the decision of the second respondent without their own independent application of mind. No malice had been alleged by the petitioner as against the General Body which had ratified the decisions taken by the second respondent.
68. Learned senior counsel also referred to the relevant portions of the Board's proceedings to show that there was no dissent or protest from any one of the members. The ultimate decision was taken in the best interest of the Board and the game. Reference was also made to the achievements of the second respondent after he took over as the President of the Board and the generation of enormous funds and contributions to the Board and the game, which had been appreciated not only in this country, but throughout the cricket world at the international level. His services as Chairman of the Board had also been widely appreciated. There was no necessity for him to indulge in any unfair dealing. The pleadings before the Bombay High Court by the Board would amply establish that the Board had, in fact, pleaded the case of the petitioner. The ultimate decision to cancel was inevitable, due to the endless wrangling between the competing bidders, and in particular the petitioner, who refused to agree to the fair offer to permit both the parties to submit their further bid before the Bombay High Court.
69. Mr. T.R. Rajagopalan, learned senior counsel, supplementing the submissions on behalf of the Board, stated that the Constitution Bench did not lay down that the Board was discharging any obligation either towards or on behalf of the public so as to be treated as a public function. Commercial interest of the Board and the game was of paramount consideration. In SECRETARY, MINISTRY OF INFORMATION AND BROADCASTING v. CRICKET ASSOCIATION OF BENGAL AND ORS. , the Supreme Court was only dealing with the right to telecast vis-a-vis the claims of the Ministry and that is the issue which was decided by the Supreme Court. Therefore, by no stretch of imagination, the commercial activity of the Board could be treated as a public function. The issues which are raised for consideration in this writ petition are purely contractual and disputed questions of facts which require to be considered in the light of evidence and cannot be gone into in a writ petition. Disputes relating to cancellation of the tender or termination of contract are purely civil in nature and cannot be gone into in a writ petition under Article 226. Learned senior counsel also laid stress on the expertise and contribution of the services of the second respondent to the game of cricket in this country, which was also duly recognised at the international level. It was unfair to attribute any motives to the second respondent. The level of Indian cricket not only from the point of view of the game but also at the commercial level became elevated to a very high pedestal due to his dynamism and it was uncharitable to attribute malice to him. While all his actions had found acceptance and endorsed by the Marketing Committee and also the General Body, which is the supreme body of the Board, there was nothing in the minutes of the meeting on 5.9.2004 to blame the second respondent as though he was adopting any negative approach towards the claims of the petitioner.
70. Mr. P.S. Raman, learned senior counsel, replying on behalf of the petitioner, after referring to the decision of the Constitution Bench in support of the contention that a writ petition against the Board was maintainable, also referred to the judgment in and contended that the Supreme Court had duly recognised the functions of the Board as public functions and the Board had to act reasonably and fairly in all its affairs.
71. On the controversy as to whether the petitioner had pleaded their case as a concluded contract or not, learned senior counsel contended that there was no contradiction in the submissions of the petitioner. It is only in the context of the submission of the respondents that there was no concluded contract, it was made clear on behalf of the petitioner that the grounds on which the petition had been filed vis-a-vis the relief sought for, render the issue irrelevant. The stand of the petitioner is that the action of the Board in having terminated the contract was unreasonable and arbitrary and unbecoming of an institution discharging public functions so as to invoke judicial review by this Court. It was irrelevant as to whether the contract had become concluded or not. The petitioner had not abandoned its claim of concluded contract, which is also one more point in their favour. In fact, the respondents themselves have repeatedly pleaded that the contract had been 'frustrated' due to subsequent events and his perception was that a contract cannot be stated to be frustrated unless it had been concluded earlier.
72. Regarding the contention that the petitioner lacked eligibility criteria, firstly, the third respondent had no right to raise the said issue, having withdrawn the writ petition before the Bombay High Court unconditionally without reserving any right to question the decision of the Board to award the contract to the petitioner. Secondly, there was no basis for such a contention at all. Agreement with Prasar Bharathi was available and now filed before this Court. There was no necessity for the petitioner to file the same before the Bombay High Court, as the Board did not challenge the readiness of the petitioner to obtain necessary agreement from Prasar Bharathi. Before the Bombay High Court, the Board did not take up the stand that the petitioner was technically disqualified. It is rather strange that the Board should now take such a stand. It would only expose the unethical attitude of the Board. Regarding experience on the production side, it was not correct to say that the petitioner lacked experience and the required period of experience. The overseas companies with which they were coordinating are their own sister companies, namely, Zee TV, U.S.A. Inc. and Zee TV, London. They are not separate entities and hence, there is no question of the bid of the petitioner being on behalf of a consortium. In fact, it was the third respondent who lacked the requisite experience and till today, the proof of experience has not been filed. Having found the petitioner technically qualified, it was not proper for the Board to raise a contention to the contrary.
73. Learned senior counsel was also highly critical of the involvement of P.W.C. and there was absolutely no explanation till now either from the Board or the third respondent as to how P.W.C. came into the picture at all. Did the Board call for or issue any advertisement for the purpose of evaluation of the bids? Though the issue had been raised seriously by Mr. Harish Salve, learned senior counsel, neither in the arguments on behalf of the Board nor on behalf of the third respondent, there was any explanation at all as to how P.W.C. was brought in as the evaluator.
74. Learned senior counsel further contended that while the proceedings before the Bombay High Court was pending, in the beginning itself, the Board had come forward with a suggestion that the petitioner and the third respondent can give their further offer, whereas, the authority was given to the second respondent only on 16.9.2004. The malice on the part of the second respondent become more apparent by his conduct in having falsely reported to the Board/ Committee as though the suggestion came from the Court, while in fact, no such suggestion had come from the Court and it was only the Board which had made the offer. By such misrepresentation, the second respondent had successfully prejudiced the minds of the members of the committee against the petitioner. The clandestine operation of the second respondent to get rid of the petitioner stage by stage was more than clear. Regarding the readiness of the offer of the petitioner to telecast India/ Australia series as an interim arrangement during the pendency of the writ petition, the said fact was neither taken into account nor disclosed to the members of the Board/Committee.
75. I have considered the submissions on behalf of all the contesting parties. Though several decisions were relied on by both sides, all dealt only with the issue of maintainability of the writ petition on different grounds. As the issue vis-a-vis the Cricket Board is dealt with elaborately in three judgments of the Supreme Court discussed hereunder, I am not referring to the other decisions.
76. The maintainability of the writ petition was questioned on several grounds as follows:
(i) Territorial jurisdiction of the Madras High Court.
(ii) The Board is not a 'State' and hence, not amenable to writ jurisdiction.
(iii) The Board is not discharging any public functions.
(iv) The issue raised for consideration is purely contractual which could be decided only on evidence and hence, the petition under Article 226 was not the appropriate remedy.
(v) The affidavit in support of the writ petition does not disclose vital facts and hence, the writ petition was liable to be dismissed on the ground that the petitioner had approached the Court with unclean hands.
77. On the issue of territorial jurisdiction, though the said issue had been raised at the threshold of the pleadings of all the three respondents very seriously and mentioned as one of the preliminary objections at the beginning of the arguments, Mr. K.K.Venugopal, learned senior counsel for the Board, made it clear that they were not pressing the objection. Learned senior counsel representing the second respondent and the third respondent also, in their arguments, did not specifically press for the said issue.
78. The next ground of attack on the maintainability was that the Constitution Bench, in ZEE FILMS LIMITED AND ANR. v. UNION OF INDIA AND ORS. 2005 (1) Scale 666, while dealing with the very same contentions, have held that the Cricket Board was not a 'State'. Hence, the writ petition under Article 226 cannot be entertained.
79. On this issue, though the contesting parties relied on several decisions in support of their mutual contentions, it is sufficient to refer to the final observations of the majority judgment itself. The judgment was rendered by the Supreme Court in the very writ petition filed by the petitioner herein under Article 32 of the Constitution in which, the very same relief, as in this writ petition, was sought for, namely, for setting aside the communication of the Board dated 2 1.9.2004, terminating the contract and also for a Mandamus commanding the Board to act in terms of the decision of the meeting on 5.9.2004 . The Bench which had dealt with the petition earlier, referred the matter to a Constitution Bench for decision as to whether the Cricket Board could be construed as a 'State' for the purpose of Article 12 of the Constitution and whether a petition under Article 32 can be maintained. In the judgment by the majority of the Bench (3:2), it was held that the Board cannot be treated as a 'State' within the scope of Article 12 and hence, the petition under Article 32 was not maintainable. At the same time, the majority view also held that it cannot be denied that the Board discharged activities which are akin to public duties or State functions and that though the remedy under Article 32 was not available, an aggrieved party can always seek a remedy under Article 226, which is very much wider than Article 32. The relevant observations are as follows:
' 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 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.
32. This Court in the case of Andi Mukta Sadguri Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V.R. Rudani and Ors. has held:
'Article 226 confers wide powers on the High Courts to issue writs in the nature of prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be issued to 'any person or authority'. The term 'authority' used in the context, must receive a liberal meaning unlike the term in Article 12 which is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers powers on the High Courts to issue writs for enforcement of the fundamental rights as well as nonfundamental rights. The words 'any person or authority' used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owned by the person or authority to the affected party, no matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied. '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 (supra), hence there is force in the contention of Mr. Venugopal that this petition under Article 32 of the Constitution is not maintainable.'
80. The above observations make it abundantly clear and admit of no doubt that the Cricket Board thus discharges public functions and thus amenable to writ jurisdiction under Article 226. As the said judgment is directly in relation not only to the Cricket Board but also in the context of the very same cause of action, it would be unnecessary to refer to any other decision relied on by both sides.
81. In the backdrop of the decision of the Constitution Bench, I am also unable to sustain the further objection raised on behalf of the respondents that at any rate, the subject matter of the dispute in this writ petition, namely, the tender proceedings for granting televising rights is purely contractual in nature and is not a public function of the Board. I am afraid that this submission totally ignores the clear verdict of the Constitution Bench. The majority judgment itself clearly states 'that the Board thus discharge some duties like the selection of an Indian Cricket Team, controlling the activities of the players, ..... these activities can be said to be akin to public duties and State functions. '
82. The right to telecast cricket matches cannot be stated to be of purely contractual or commercial venture of the Cricket Board, as sought to be contended by all the respondents. The issue is no more res integra and the Supreme Court had categorically held that the B.C.C.I. cannot be placed in the same scale as business organisations, whose only intention is to make much profit by telecasting the game. The Supreme Court also held that the fact that B.C.C.I. may incidentally earn some revenue, will not convert the Board as a commercial organisation or the right to telecast, a commercial right or interest vide the judgment in . The relevant observations are as follows:
'75. It can hardly be denied that sport is an expression of self. In an athletic or individual event, the individual expresses himself through his individual feat. In a team event such as cricket, football, hockey etc., there is both individual and collective expression. It may be true that what is protected by Article 19(1)(a) is an expression of thought and feeling and not of the physical or intellectual prowess or skill. It is also true that a person desiring to telecast sports events when he is not himself a participant in the game, does not seek to exercise his right of self-expression. However, the right to freedom of speech and expression also includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. The former is the right of the telecaster and the latter that of the viewers. The right to telecast sporting event will therefore also include the right to educate and inform the present and the prospective sportsmen interested in the particular game and also to inform and entertain the lovers of the game. Hence, when a telecaster desires to telecast a sporting event, it is incorrect to say that the free-speech element is absent from his right. The degree of the element will depend upon the character of the telecaster who claims the right. An organiser such as the BCCI or CAB in the present case which are indisputably devoted to the promotion of the game of cricket, cannot be placed in the same scale as the business organisations whose only intention is to make as large a profit as can be made by telecasting the game. Whereas it can be said that there is hardly any free-speech element in the right to telecast when it is asserted by the latter, it will be a warped and cussed view to take when the former claim the same right and contend that in claiming the right to telecast the cricket matches organised by them, they are asserting the right to make business out of it. The sporting organisations such as BCCI/CAB which are interested in promoting the sport or sports are under an obligation to organise the sports events and can legitimately be accused of failing in their duty to do so. The promotion of sports also includes its popularization through all legitimate means. For this purpose, they are duty-bound to select the best means and methods to reach the maximum number of listeners and viewers. Since at present, radio and TV are the most efficacious methods, thanks to the technological development, the sports organisations like BCCI/CAB will be neglecting their duty in not exploring the said media and in not employing the best means available to them to popularize the game. That while pursuing their objective of popularizing the sports by selecting the best available means of doing so, they incidentally earn some revenue, will not convert either them into commercial organisations or the right claimed by them to explore the said means, into a commercial right or interest. It must further be remembered that sporting organisations such as BCCI/CAB in the present case, have not been established only to organise the sports events or to broadcast or telecast them. The organisation of sporting events is only a part of their various objects, as pointed out earlier and even when they organise the events, they are primarily to educate the sportsmen, to promote and popularize the sports and also to inform and entertain the viewers. The organisation of such events involves huge costs. Whatever surplus is left after defraying all the expenses is ploughed back by them in the organisation itself. It will be taking a deliberately distorted view of the right claimed by such organisations to telecast the sporting event to call it an assertion of a commercial right. Yet the MIB has chosen to advance such contention which can only be described as most unfortunate. It is needless to state that we are, in the circumstances, unable to accept the ill-advised argument. It does no credit to the Ministry or to the Government as a whole to denigrate the sporting organisations such as BCCI/CAB by placing them on a par with business organisations sponsoring sporting events for profit and the access claimed by them to telecasting as assertion of commercial interest. '
83. In B.C.C.I. AND ANR. v. NETAJI CRICKET CLUB AND ORS. , the Supreme Court went further to hold that the Board exercises enormous public functions and hence, the Board was bound to follow the doctrine of fairness and good faith in all its activities and cannot act arbitrarily, whimsically and capriciously.
' 80. The Board is a society registered under the Tamil Nadu Societies Registration Act. It enjoys a monopoly status as regard 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 the 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 foras. 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 deep 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 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. '
84. On the very same issue as before this Court, as stated earlier, the Constitution Bench had taken a positive view, as expressed in both the majority and minority judgments that the Board was discharging public functions. Though the majority took the view that the Board was not a 'State', yet it was held that the Board was discharging public functions and was amenable to writ jurisdiction under Article 226. In the minority judgment, there is reference to the Board being in a position to expend crores of rupees and the tender in question would show that the amount which was involved in distributing its telecasting rights, both the competing bidders having offered 308 million US$. The majority view has no disagreement with the view thus expressed by the minority. The majority had, in fact, held that for violation of the public functions of the Board, the aggrieved party can approach the High Court under Article 226.
85. In the face of the above three judgments of the Supreme Court, it would be very idle to contend that this writ petition under Article 226 is not maintainable against the Board and that the telecasting rights being commercial in nature, the issue cannot be raised in a writ petition. There was an attempt on the part of the respondents to read down the judgment of the Constitution Bench and in , as though the observation of the Supreme Court in terming the activity of the Board as a public function was limited only to the selection of players, umpires and officials, etc., and such observations cannot be extended to the granting of telecasting rights. Apart from the fact that in the judgment in supra, the Supreme Court had dealt with only the issue of telecasting right, which had been held to be a public function and not a commercial function of the Board, the said submission of the respondents does not also stand to reason. The observation by the Constitution Bench that the Board was discharging some duties like the selection of a team, controlling the activities of the players and others is an expression which is illustrative. The expression 'some duties like' is sufficient to show that the Court did not limit it only to the Board's function of selection of a team etc. In fact, at least, the function of the selection of players can be stated to be an issue, which should be within the exclusive discretion of the Board. The issues regarding who will be a better player to face a particular team and whether importance was to be given to the bowling side or the batting side and whether the team should have spinners or fast bowlers are all matters for the selectors and experts to decide. If even such functions of the Board could be termed as public functions and could be subject to judicial review, lest there should be any arbitrariness in the selection process, it is unimaginable that the granting of telecasting rights involving hundreds of crores of rupees/mainly generated from the public, should be outside the purview of judicial review.
86. Therefore, I am unable to sustain either the contention that the Board is not amenable to writ jurisdiction or the objection that the tendering process being purely a commercial venture of the Board, no public function was involved so as to maintain a writ petition.
87. I am also unable to agree with the contention that the issue of tender process would require consideration of disputed questions of fact involving consideration of detailed evidence which cannot be gone into in a writ petition. Law reports are full of judgments of the Supreme Court and the High Courts, interfering with and setting aside tender process or quashing decisions granting or refusing to grant tender. Whether in a particular case, the contested issues would require examination of the evidence in detail and cannot be decided on the affidavits, counter affidavits and materials on record, are all matters which would depend upon facts of each case and there can be no hard and fast rule. In this case as could be seen from the discussion below, the conclusions are based on materials available on record which are more than sufficient.
88. The further objection to entertain the writ petition is the alleged suppression of material particulars, as pointed out on behalf of the third respondent.
89. The first alleged suppression is that the petitioner had raised a plea that the third respondent did not raise any objection regarding the eligibility of the petitioner during the tender process and negotiation and had contended as though the third respondent had raised the issue of the petitioner's lack of eligibility for the first time only before the Bombay High Court. Reference was made particularly to Paragraph No. 28 of the affidavit and also the letter of the third respondent to the Board dated 16.8.2004 in which, the third respondent had definitely raised objections regarding the eligibility of the petitioner. It is relevant to see that the said letter is addressed by the third respondent only to the Board and a copy of the same is not marked to the petitioner. There is no proof that the petitioner was aware of that letter. All that the petitioner had stated in paragraph 28 is that while participating in the negotiations, the third respondent did not contest the qualification of the petitioner and only subsequently, the third respondent had moved the Bombay High Court after the petitioner was chosen for the contract. No further materials are shown to establish knowledge on the part of the petitioner of the objections raised by the third respondent. I do not also find anything in paragraph 28 of the affidavit, as could be treated as a deliberate suppression of any material fact. In fact, it is the stand of the Board also that only after it came to be known to the third respondent that the offer of the petitioner was higher, the third respondent had raised disputes regarding eligibility of the petitioner vide paragraph 26 of the counter affidavit of the Board.
90. The second alleged suppression is the stand of the petitioner regarding whether the contract was a concluded contract. The pleading of the petitioner on this issue, assuming the worst against the petitioner can be stated to be an unsustainable and contradictory pleading and not a suppression of any fact. Both Mr. Harish Salve and Mr. P.S. Raman have made it clear that though their claim is that the contract is a concluded one, that was really not a crucial or relevant factor from the angle of the relief sought for by them, which is based on the averment that the actions of the Board are vitiated by unfairness and impropriety.
91. The next alleged suppression is non-mentioning of the Special Leave Petition filed by the petitioner before the Supreme Court in S.L.P. No. 20186 of 2004 and also the fact that no interim relief was granted by the Supreme Court and that the petitioner was not justified in moving different authorities for the same relief. I am unable to sustain the said objection also, apart from the fact that Mr. Harish Salve, in his submissions, made repeated references to the Special Leave Petition. It is also pertinent to bear in mind that the scope of the S.L.P. is the validity of order of the Bombay High Court permitting the third respondent to withdraw the writ petition. A perusal of the main prayer in the S.L.P. discloses (Paragraph 7) that Special Leave is sought for against the impugned final order dated 21.9.2004 in W.P. No. 2462 of 2004 of the High Court of Judicature at Bombay. There is no other prayer in the Special Leave Petition. It is true that in the grounds of Special Leave Petition, they have questioned several other incidental issues, which related to the withdrawal of the writ petition, cancellation of the tender process, etc. We can only go by the main prayer in the S.L.P. and not by the collateral points raised by the petitioner so as to find out whether the petitioner had really sought for any relief which is the same as before this Court. It is further pertinent to bear in mind that the Constitution Bench of the Supreme Court having held that only a writ petition under Article 226 can be filed, the petitioner had no other alternative except to approach this Court or to go before the civil Court. The S.L.P. can have no relevance nor can the petitioner obtain in the S.L.P., the reliefs sought for in this writ petition before this Court. The cause of action for this writ petition is a subsequent event of the cancellation of the tender process, while the subject matter of the S.L.P. is the correctness or otherwise of the withdrawal of the writ petition before the Bombay High Court. For the same reason, non-mentioning of the fact that the Supreme Court did not grant any interim order would also be immaterial. Further, as stated earlier, on the very first occasion when the writ petition was moved before this Court, Mr. Harish Salve, learned senior counsel, had referred to all the proceedings initiated before the Supreme Court.
92. Consequently, I am unable to sustain any of the objections relating to the maintainability of the writ petition and also the contentions regarding the alleged suppression of material facts.
93. One of the main grounds of attack by the petitioner against the action of the Board is the process of negotiation adopted by the Board after the sealed tenders were opened and the bids were ascertained. The admitted position is that the petitioner being the highest bidder and the third respondent being the next highest bidder, both were invited for negotiations and were asked to match against each other and the petitioner, after having agreed to match the offer of the third respondent at 308 Million US$, the petitioner was declared as successful bidder being the highest bidder in the sealed offer. Learned senior counsel, relying on C.V.C.'s instructions, contended that the action of the Board in having called the third respondent for negotiations was irregular and that only the highest bidder should have been called if the Board felt that the bid amount has to be raised further. Mr. Harish Salve fairly agreed that C.V.C.'s instructions were not directly applicable to the Board, but contended that all institutions discharging public functions should comply with those instructions, in order to maintain a clean process of tender by public institutions. Per contra, apart from the contention that C.V.C.'s instructions were not applicable to the Board, Mr. Venugopal also contended that the direction that only the highest bidder should be called for negotiations was not realistic and Courts have recognised public institutions calling the first two or three highest bidders for negotiations, which is ultimately in the interest of the institution. Mr. Ashok Desai pointed out that having taken part in the negotiations, it is not open to the petitioner to question the process of negotiation and the petitioner ought to have approached the Court immediately. I had put a specific question to Mr. Harish Salve, learned senior counsel, as to whether it was not a fact that permitting negotiation with the first two or three highest tenderers had always resulted in the ultimate benefit to the institution and whether it was wrong on the part of the institution to adopt a process which is meant to augment better income to the public institution as in this case, namely, the increase from 260 Million US$ to 308 Million US$. Learned senior counsel contended that the ultimate aim of C.V.C.'s instructions was to maintain purity in the tender process and to avoid corruption in public institutions, which was more important and should outweigh and prevail over other considerations. I am unable to accept the objection that the petitioner having taken part in the negotiation process, cannot be permitted to raise the issue. It is true that on general principles, a person who takes part in the tender process or selection process and on a set of explicit rules relating to selection process, cannot be permitted to question the same at a later point of time. In this case, the facts disclose that the petitioner had no time to think of approaching the Court for redressal and the fact of the third respondent having been invited was known only at the negotiation table. Therefore, the petitioner had no choice or time for approaching the Court and the only choice was either the petitioner should take part in the negotiation or should lose the contract.
94. However, I am unable to sustain the attack on the process of negotiation by inviting the third respondent also. Facts disclose that both the first and second highest bidders had been invited for negotiation and it is the petitioner who was first called for negotiations and secondly, the third respondent. So far there can be no complaint of unfairness or discrimination. This is the process which is being followed by almost all the public institutions and the process is bound to result in increasing the revenue to the Institution. In fact, even when disputes regarding tender process are brought before the Courts, Courts have agreed for suggestions and to give directions to facilitate negotiations with the competing bidders to give their competitive offers. How far C.V.C.'s guidelines are complied with by the other public institutions is not known. How best to implement the C.V.C.'s instructions in a purposeful manner, giving priority to maintenance of purity in tender process and make it corruption-free and at the same time, ensure improved inflow of revenue to the institution, is a matter for administrative experts to consider and find a solution. But, going by the usual practice prevailing as on date and considering the fact situation in this case that it was the petitioner who was called first and the third respondent was called next for negotiation, I do not think that on C.V.C.'s instructions alone it should result in holding that the process of negotiation was bad and illegal. I am inclined to hold that the only fact that the third respondent was also called for negotiation cannot by itself alone vitiate the tender process.
95. Now, we come to the more crucial part of the petitioner's case that from the beginning, the Board, or to be more specific, the second respondent, the then President of the Board, was adversely disposed towards the petitioner and his approach was to somehow get rid of the petitioner from the field and he finally saw to it that in spite of being the highest bidder, the petitioner has been very cleverly deprived of the contract and that the entire operation was vitiated by unfairness and malice, both in fact and law, of the second respondent. On an analysis of the various issues raised before me, there appears to be considerable force in the submission that the petitioner had not been treated fairly and that there are certain specific charges which are not properly explained and answered by the respondents, which are as follows. Involvement of P.W.C.:
A serious issue, as raised by the petitioner, which is very unsatisfactorily answered is how Price Waterhouse Coopers (P.W.C.), an international audit firm, came to be appointed by the Board to assist the Board for evaluating the tender. It is not explained as to how the Board chose P.W.C. for evaluating the tender. A letter dated 30.7.2004 appears to have been addressed to P.W.C. to receive the sealed bids on behalf of the Board and that the bids could be opened on the designated date in the presence of a high functionary of P.W.C., representatives of the Board along with the bidders. The said letter does not contain any reference to the nature of work assigned to P.W.C., except for stating that the Board wishes to take 'active assistance' of P.W.C. P.W.C., by its letter dated 3.8.2004, informs the Board that if it was merely for being present to receive the sealed bid, they will do so free for the cause of cricket. This is followed by the Board's letter dated 4.8.2004, stating that the originals of the bid documents will be taken away by the Director of P.W.C. and furnish a report to the President on 14th or 16th of August, 2004 by fax and that the Director of P.W.C. shall also be present as a special invitee at the meeting of Marketing Committee and present his report. In their letter dated 5.8.2004, P.W.C. had expressed that as it was evident from the Board's letter that there was a change in the scope of services expected from P.W.C., the Board's official was requested to speak to the Chairman of P.W.C. This is followed by a letter of P.W.C. to the Board, stating that pursuant to the discussion with the President on 7.8.2004, it was agreed that a senior officer from P.W.C. would be physically present at the time of opening of the bid. Then, the notarised bids shall be handed over to the officer from P.W.C., who will simply tabulate the financial price mentioned in the bids and return the bids along with the tabulation of B.C.C.I. and that P.W.C. would do it free of charge for the cause of cricket.
96. In contrast to the correspondence as above, the specific clause in I.T.T. relating to P.W.C. causes confusion. Under Condition No. 3.8(a)(i), it is stated as follows:
' M/s. Price Waterhouse Coopers will initially examine as to whether the Tenderers fulfill the requirements of Condition No. 2 above and only subjective to due compliance thereof, the Tender documents of the 'qualified' tenderers would be opened and examined. '
97. The above extracted clause shows that a very positive and decisive role was assigned to P.W.C. to examine the tenders and report as to whether the tenderers fulfil the requirements of Condition No. 2 and only after the compliance thereof, the tender documents of the qualified tenderers will be opened. Condition No. 2 relates to Restriction of eligibility. It is under Condition No. 2 all the basic requirements of eligibility are prescribed, such as experience, infrastructure, having in-house production unit and telecasting units, channel network, etc. It is further made clear that experience only as 'Arranger', 'Event Operator', 'Holding entity', 'Franchisee' and 'Consortium', etc., will not be sufficient to qualify. Therefore, in terms of the conditions of I.T.T., the role of P.W.C. i s very vital, namely, P.W. C. will have the power to reject the bid even before the price bid is opened and if according to P.W.C. the bidder does not satisfy the requirements under Clause No. 2, he shall not be qualified.
98. But, strangely, neither the Board nor the second respondent are prepared to place all the facts before the Court even in the face of serious averments by the petitioner in view of the professional relationship of P.W.C. and E.S.P.N. Group of Companies. Correspondence referred to above find place only in the typed set filed by the petitioner probably filed in the writ petition before the Bombay High Court. But no details are forthcoming from the respondents regarding the manner in which P.W.C. was contacted and engaged and what is the work which was actually assigned to P.W.C. when the I.T.T. was issued and why later P.W.C. did not carry out the work assigned to them, are all questions which go unanswered by respondents-1 and 2 and the reasons given are conflicting. The fact that P.W.C. was assigned to evaluate the eligibility criteria is obvious from the condition mentioned above. The very first letter dated 30.7.2004 by the second respondent requires 'assistance' from P.W.C. In their reply dated 3.8.2005, P. W.C. expresses its understanding of the works assigned to them only for the purpose of opening the bids and handing it over to the Board. It sounds very strange that an internationally reputed firm of auditors is to be engaged only for the purpose of opening the bid covers and to hand it over to the Board. Then comes the letter of the Board dated 4.8.2004 regarding P.W.C. that P.W.C's Director would take away the original bid documents and furnish a report to the President. This letter comes a little bit nearer to Condition No. 3.4(b)(i) of I.T.T., but even so, the letter is not clear about the actual job assigned to P.W.C. Then, P.W.C. is surprised by the Board's letter dated 4.8.2004 and sends back the reply dated 5.8.200 4, expressing that there is a total change in the scope of services expected from P.W.C. and the Secretary was directed to talk to the Chairman of P.W.C. through mobile phone. Then comes the last letter dated 9.8.2004 from the Chairman of P.W.C. to the Board, stating that pursuant to the discussion with the second respondent on 7.8.2004, the scope of P.W.C's work will be only to receive the notarised bids from the officer of the Board and after the bids are opened and notarised, the P.W.C. official ' will simply tabulate the financial prices mentioned in the bids and return the bids along with tabulation to B.C.C.I.' The whole sequence of events is so strange, which leaves much to be said against the Board, and very particularly, against the second respondent, who is the only person who has been personally discussing the issue with P.W.C. That an internationally reputed auditor firm should have been engaged only for tabulating the price bids which are not going to exceed 10 in number and do nothing else is not so simple an issue which deserves to be ignored as of no consequence. There are many unanswered questions in the background of the nature of allegations projected by the petitioner which are very serious in the background of the fact that P.W.C. happens to be one of the auditors of ESPN Group of Companies, and according to the petitioner, receiving over 12 Million US$ per year as audit fee. The only answer by respondents-1 and 2 in their respective counter affidavits is that they did not know about P.W.C. being Auditors of ESPN Group and had they known about it earlier, they would not have engaged them, and that at any rate, P.W.C. did not carry out any evaluation and hence, no damage has been done. It is true that ultimately, no evaluation was done by P.W.C. But that cannot detract respondents-1 and 2 from their responsibility to properly explain the episode.
99. The episode of P.W.C's involvement was no less curious in the writ petition filed by the third respondent before the Bombay High Court. As pointed out by the petitioner, the main basis on which the decision of the Board to award the tender in favour of the petitioner was questioned is that the petitioner lacked the eligibility criteria and there was no proper evaluation of the qualifications by P.W.C. as stated in the I.T.T. For this purpose, when the third respondent had written a letter to P.W.C., asking for the particulars on 6.9.2004 by fax, requesting to clarify the role played by P.W.C. in the tender process, on the same day, P.W.C. obliges the third respondent by sending a reply stating that they were not required to and did not evaluate whether the entries were qualified to participate or not and that all that they did was to tabulate the financial portion of the bids. A reading of the letter shows that they have carried out only the work assigned to them. No other reasons have been stated. It is only relying on this issue, mainly, writ petition No. 2462 of 2004 was filed in the Bombay High Court on the same day, namely 6.9.2004. In contrast, when the solicitors of the petitioner wrote to P.W.C. on 1.9.2 004 and requested for copies of the correspondence between P.W.C. and the Board, a very crisp reply is sent on behalf of P.W.C., stating that they have to obtain consent from their client (Board) before parting with the correspondence, which was of privileged nature. Though the release of correspondence may require the consent of the client, P.W.C. could have at least stated the gist of the correspondence in the same manner as they had obliged the third respondent promptly on the same day. This attitude on the part of P.W.C. is rightly commented on by the petitioner.
100. In the writ petition by the third respondent, P.W.C. was also impleaded as one of the respondents. In their affidavit, after referring to the conditions in I.T.T. assigning P.W.C. for the work of evaluation of eligibility, the third respondent proceeded further to state that on enquiry by them, they have been categorically informed that the role of P.W.C. was only to tabulate the bids and they were not required to examine whether the tenderers were qualified. In an additional affidavit filed by the third respondent, specific reference has been made to the letter of P.W.C. dated 6.9.2004 and third respondent contended that there was thus no evaluation as stated in I.T.T. The Board, in their counter affidavit, had taken the stand (Paragraph 1 0) that when the bids were opened in the presence of all the bidders, they were expressly informed that P.W.C. would only be tabulating the financial bids and none of the representatives have raised any objection. In paragraph 24, after referring to the correspondence with P.W.C., the Board had stated that after discussions with the Chairman of P.W.C. and the time frame between the afternoon of 14th August and the deadline fixed on 16th August 2004 being short, M/s. P.W.C. expressed its inability to submit the detailed evaluation report. By the time when the petitioner herein had filed their counter affidavit, the fact of P.W.C. being the Auditor for ESPN Group appears to have come to light, and in their counter affidavit, the petitioner herein had commented on the manner in which the third respondent had obtained the letter from P.W.C. and the fact of P.W.C. being the Auditor of the third respondent's partnership. The third respondent, in their reply to the Board, while observing silence on their professional relationship with P.W.C., had reiterated the fact of non-evaluation by P.W.C. in terms of I.T.T. In reply to the petitioner herein, the third respondent took a strange stand that they are not aware of P.W.C. being the Auditor of the partnership and that the said details are 'in any event, not germane' and that the letter of P.W.C. was not obtained for reasons as alleged in the counter affidavit by Zee TV.
101. We have already seen the stand taken by the parties in this writ petition regarding the involvement of P.W.C. and it is relevant to observe the following overall features:
(i) There is no explanation as to how the Board picked P.W.C. for carrying out the evaluation work. Was it by any advertisement or by a process of selection is the question asked by the learned counsel for the petitioner and is not answered by either the first respondent or the second respondent. No particulars are given even after serious challenge and adverse comment by the petitioner regarding P.W.C. being the Auditor of ESPN Group.
(ii) The letter of P.W.C. to the third respondent clearly discloses that they were not required by the Board to evaluate the bid and as they were required only to tabulate the bids, which they had done so free of cost. It is, therefore, clear that according to P.W.C., the Board did not ask P.W.C. to carry out the evaluation. They do not say that they did not want to carry out the evaluation for any reason of their own.
(iii) In contrast, the reason given by the Board in their counter affidavit before the Bombay High Court is that because of time factor, P.W.C. had expressed their inability to evaluate. That reason is not consistent with P.W.C's letter to the third respondent.
(iv) The stand of the Board in the counter affidavit before this Court makes the issue more complicated, namely, that when the tenders were opened, it was informed that as each and every tenderer had expressly submitted notarised undertakings that all of them fulfil the eligibility criteria, P.W.C. would not be required to verify the eligibility criteria and they would only submit a tabulated form of the price bids.
102. I am ignoring the other aspects of the issue such as P.W.C. obliging the third respondent by a letter which forms the main basis for the writ petition before the Bombay High Court, the third respondent taking the stand that the issue of P.W.C. being their Auditor was not germane, etc. But, I have not been able to reconcile and give a clean chit to the Board, in view of their deliberate silence regarding how they chose P.W.C. and the glaring contradictions not only with P.W.C., but also in their own counter affidavits before the Bombay High Court and this Court as regards how ultimately P.W.C. was required not to evaluate the eligibility criteria. It is true that ultimately no evaluation was done by P.W.C. and therefore, no harm was done to the tender process. But, when the issue is focussed from the angle of the positive allegations by the petitioner that there was collusion between the second respondent and the third respondent from the beginning and that the second respondent wanted to favour the third respondent, the Board as well as the second respondent owe a lot of explanation which they have failed to submit. It was the second respondent who was in direct touch and contact with the Chairman of P.W.C. and the second respondent should have explained the issue in detail and why the assignment to P.W.C. could not be complied with, instead of the Board giving contradictory reasons. Another perspective of the conflicting stand in the matter of P.W.C. is the information given to the Marketing Committee in its meeting held on 5.9.2004. The minutes disclose that the President informed the Committee that as P.W.C. had expressed its inability to evaluate the bids, the T.V. Rights Committee scrutinised both the bids of Zee and E.S.S. and decided that as both of them have specifically stated that they had their own channel and production experience and had submitted notarised undertakings, both parties should be called for clarification and negotiations. This statement of the Chairman to the Committee is contrary to the stand of P.W.C. as reflected in the letters of P.W.C., namely they had never refused or stated any inability to evaluate the bids. According to P.W.C., the Board did not require them to evaluate the bids. It is therefore clear that the Marketing Committee had not been informed the real position by President. Moreover, the excuse of the bids being accompanied by notarised undertakings is also of no meaning, which is no more than a self-serving piece of paper and cannot be a substitute for evaluation by an independent body. Reasons for involvement or the later non-involvement of P.W.C. are neither cogent nor acceptable. In the absence of proper explanation and in view of the contradictory stand as pointed out above, it is very probable that P.W.C., after a particular stage, should have felt that its involvement in the selection process resulting in the selection of the third respondent would eventually lead to greater complications. This is only a guess, but the disappointment of the third respondent in the ultimate noninvolvement of P.W.C. in the selection process, is visible in their pleadings before the Bombay High Court. The third respondent's pleading ignorance of the fact of P.W.C. being the Auditor of their partnership and that it was not germane to the issue is evasive and not fair.
103. The entire episode of P.W.C's involvement gives rise to some baffling questions lending credence to the criticism by the petitioner. Firstly, how far a firm of auditors would be competent or relevant to assess the technical eligibility of television-telecasting rights of sports events? Secondly, how the Board chose P.W.C. is not explained in spite of serious allegations. Thirdly, having engaged P.W.C. for the work of evaluation, why the work was ultimately reduced to a mere tabulation work of five or six financial bids, which work could have been done by a Clerk of the Board. Fourthly, why should there be so much of inconsistencies and contradictions regarding the engagement of P.W.C. and the nature of work to be assigned to them? Fifthly, assuming that the Board was not aware of P.W.C. being Auditors of ESPN partnership, did not the third respondent owe a duty to disclose the same to the Board instead of asking P.W.C. to give information to them to be used for filing the writ petition in the Bombay High Court and then contend that P.W.C. being their Auditors was not germane to the disputes between the parties? None of the questions have been properly answered by any of the respondents. Meeting of the Marketing Committee on 5.9.2005:
The petitioner had made certain allegations against the second respondent and the role played by him as amounting to a negative approach towards the petitioner and reliance is placed upon certain facts to substantiate the petitioner's contention that the ultimate decision to cancel the tender was only the final act of a series of mala fide steps taken against the petitioner. For proper appreciation of what happened at the meeting, it would be necessary to reproduce the minutes of Item No. 2 which are as follows. Though the original minutes do not contain paragraph numbers, the paragraphs are numbered for easy reference:
ITEM 2: To discuss the matter pertaining to invitation of bids for the Television Rights in India from 1 October 2004 to September 2008.
1) The Chairman informed the members that pursuant to the decision of the Marketing Committee in its meeting held on 17 August 2004 at Kolkata, the Television Rights Committee consisting of M/s Jyoti Rajpai (Chairman), Kishore Rungta, N. Srinivasan and himself had met on 4 September 2004 at Chennai. He stated that Mr. S.K. Nair was also in the Committee, but since he was in Monaco to attend the ICC meetings, he was absent. He further stated that the TV Rights Committee had discussions with the two highest bidders Zee and ESPN STAR Sports (ESS).
2) The Chairman informed that as Price waterhouse Coopers had expressed its inability to evaluate the offers, the TV Rights Committee scrutinized both the offers of ZEE and ESS and decided that as both of them specifically stated that both were having own channels, production units and experience of producing and telecasting international cricket matches in the last two years and had submitted notarized undertakings to that effect, both parties should be called for clarifications and negotiations in terms of the conditions of the ITT.
3) The Chairman informed that the representatives of Zee were called first in the morning.
4) The representatives of Zee had made a presentation before the members of the TV Rights Committee and its main thrust was on improving the brand image of BCCI and the game of cricket. The representatives of Zee were informed that BCCI already had an extremely powerful brand and that, the business should be restricted to TV Rights rather than branding.
5) During the discussion with the Zee representatives, the TV Rights Committee pointed out at the outset that in its offer, Zee had mentioned that if their tender was accepted, they would enter into an Agreement with the BCCI either directly or through its subsidiaries or shareholder entities or their respective parent companies or a company controlled by the majority shareholding interest of their promoters. The Chairman informed that it was clarified to the Zee representatives that should their bid be accepted, BCCI would not enter into any Agreement with any other party, except Zee Telefilms.
6) The TV Rights Committee enquired from the Zee representatives about their experience of covering cricket matches. The representatives of Zee stated that they had enormous experience in covering events connected with the entertainment media. When enquired about cricket events, they had stated that they had covered some matches in Nepal, but had their presence in all cricket playing nations around the world through telecast of some matches.
7) The TV Rights Committee enquired whether as per Clause 2 of the Invitation to Tender (ITT), Zee had its own production unit that had experience in producing cricket matches. The Zee representatives opined that technically, BCCI was the Event Owner, while all other parties were Licensees and in view of this, Clause 2 of the ITT was redundant. They stated that they did not have their own production unit for producing cricket matches and for that matter, no other channel except Ten Sports had their own production unit. They also observed that they did not have any experience of producing any international cricket match on their own. The Zee representatives however, assured that they would have their own production unit for cricket within one year.
8) It was then enquired how Zee proposed to produce the matches. The Zee representatives had informed that they would furnish the names of five world renowned production agencies, out of which BCCI could choose two and inform Zee, so that they could enter into a production contract with one of these two agencies.
9) The TV Rights Committee enquired the names of the commentators in Zee's panel. The Zee representatives stated that they could cause commentary through four selected commentators by BCCI from a panel of eight commentators that would be provided by Zee.
10) The TV Rights Committee pointed out that in its offer Zee had stated that it would cover 'All domestic events of whatever nature played in India during the term'. The Committee wanted to know how many channels Zee proposed to use for the coverage of domestic tournaments since most of the times several matches were played on same dates. The representatives of Zee observed that there was some anomaly in their calculations for Domestic Tournaments and this required a reassessment.
11) The TV Rights Committee further sought a clarification that there were two financial offers in Zee's bid one of USD 260 million and the other of USD 281 million. The Zee representatives observed that they would be prepared to raise their offer to USD 281 million, subject to BCCI revamping its Domestic Cricket structure as advised by Zee.
12) When enquired as to how they proposed to revamp the Domestic Cricket structure, the Zee representatives stated that foreign players should be allowed to participate in the Domestic Tournaments and the present zonal concept of tournaments should be changed to city concept. It was amply clarified to Zee representatives that BCCI was satisfied with its existing structure of Domestic Tournaments and therefore, Zee's offer should be on the basis of the existing structure.
13) The TV Rights Committee further enquired about the proposed move of Zee to maximize coverage amongst the Indian audience. The Zee representatives informed that they had an in-principle Agreement with Prasar Bharati for the Terrestrial rights and would furnish a copy of the same immediately.
14) The TV Rights Committee enquired about an unconfirmed report of Zee's associate Buddha Films getting into litigation with Prasar Bharati for a default in the range of Rs.100 crores. The Zee representatives stated that litigations were possible in any commercial transaction.
15) The TV Rights Committee pointed out that there was no schedule of payments by Zee in its offer. It was clarified that the schedule of international matches in India as per the ICC Calendar was such that 144 days of cricket would be available, out of which 109 days would be from October 2004 to March 2006, while the remaining 35 days would be from April 2006 to April 2008. In view of this, should Zee's offer be accepted by BCCI, they would have to make a down payment initially and thereafter make payments in quarterly instalments. They would also be required to furnish a Bank Guarantee for four years. This was agreed upon by the representatives of Zee.
16) It was further clarified to Zee that they would have to offer the first right of refusal for telecast sponsorship to the BCCI sponsor for a particular series and that, no advertisements would be shown at the lower part of the screen when the match was being telecast. This was also agreed upon by the Zee representatives.
17) The Zee representatives agreed to furnish their revised bid in a sealed cover by 9 A.M. on 5 September 2004 along with a copy of their Agreement with Prasar Bharati, names of the producing agencies, names of the commentators and payments schedule.
18) The Chairman stated that after the Zee representatives left the meeting room, the representatives of ESS were called by the TV Rights Committee in the afternoon. The representatives of Zee also made a presentation before the members of the TV Rights Committee.
19) The TV Rights Committee enquired whether they fulfilled the conditions stipulated under Clause 2 of the ITT. The representatives of ESS admitted that except for the Asia Cup that was held in July 2004, they were sub-licensees to other events. They however, stated that while they hire the production equipment during a specific series, they have their own crew like producers, directors, cameramen etc. They emphasized that they had two dedicated sports channels ESPN and Star Sports of their own.
20) The TV Rights Committee enquired about the experience of ESS in producing international cricket matches. ESS gave the details of their experience and observed that they curently held the exclusive rights to cricket in Australia, Bangladesh, England, New Zealand, South Africa and Zimbabwe.
21) The ESS representatives emphasized that in the past, they had a contract with BCCI for TV Rights from 1994 to 1999 as well as Pakistan and West Indies and that, while successfully telecasting the same, they were not involved in any dispute or controversy or litigation.
22) On being asked to furnish the names of the commentators, the ESS representatives stated that M/s. Sunil Gavaskar, Geoffrey Boycott, Ravi Shastri, Wasim Akram, Arun Lal and Syed Saba Karim amongst others were contracted with them.
23) The TV Rights Committee sought the clarification about the two figures in the ESS bid USD 230 million and USD 308 million. The ESS representatives clarified that if the rights were offered to them for four years, the figure would be USD 230 million and if it was for five years, the figure would be USD 308 million. It was clarified to ESS that BCCI would restrict the rights on offer for four years only.
24) It was also mentioned to ESS that the proposal of coverage of Domestic Tournaments in their bid was rather vague and that, they should be more specific on this count.
25) The TV Rights Committee further enquired about the proposed move of ESS to maximize coverage amongst the Indian audience. The ESS representatives furnished a copy of their Agreement with prasar Bharati for the terrestrial rights.
26) The TV Rights Committee clarified that the schedule of international matches in India as per the ICC Calendar was such that 144 days of cricket would be available, out of which 109 days would be from October 2004 to March 2006, while the remaining 35 days would be from April 2006 to April 2008. In view of this, should the offer of ESS be accepted by BCCI, they would have to make a down payment initially and thereafter make payments in quarterly instalments. They would also be required to furnish a Bank Guarantee for four years. This was agreed upon by the ESS representatives.
27) it was further clarified to ESS that should the offer of ESS be accepted, they would have to offer the first right of refusal for telecast sponsorship to the BCCI sponsor for a particular series and that, no advertisements would be shown at the lower part of the screen when the match was being telecast.
28) The ESS representatives had agreed to furnish their revised bid in a sealed cover by 9 A.M. on 5 September 2004 along with the payments schedule.
29) The Chairman thereafter informed the members of the Marketing Committee that accordingly the two revised bids were received from Zee and ESS. The revised bids revealed that both parties had furnished unconditional offers. While ESS had offered USD 308 million, the revised offer of Zee was USD 281 million. Both the parties had also submitted their respective plans to cover Domestic Cricket.
30) the members observed that since USD 308 million was a higher offer resulting out of the revised bids, the offer of ESS could be accepted. But since Zee was the highest bidder initially, they should be provided an opportunity to match the highest offer.
31. The Committee thereafter decided that subject to the acceptance of the terms and conditions of BCCI, it could agree to give the Television Rights to Zee Telefilms Limited, subject to their unconditional acceptance of the other terms and conditions including the payment terms within the stipulated time frame, should they agree to match the offer of USD 308 million. The Committee stated that the payment terms would be as follows: Zee would be required to pay USD 20 million upfront within two days. BCCI would thereafter issue a Letter of Intent. A binding Heads of Agreement would be finalized within ten days and before its execution, Zee would furnish a Bank Guarantee of USD 75 million. Quarterly payments would be made in advance of the concerned quarter, with the first quarterly payment commencing on 30 September 2004.
32) The representatives of Zee were called to the meeting and the decision of the Committee was conveyed to them. The representatives of Zee stated that they were prepared to match the offer of USD 308 million along with all other terms and conditions stated above.
33) The Zee representatives also informed the names of TWI, Channel Nine, CSI and Sunsetter & Wire as production agents. It was informed to them that they should do the production either through TWI or Channel Nine.
104. We may ignore disputes relating to eligibility criteria as raised by both sides for the simple reason that none of the bidders appear to satisfy all the requirements under Condition No. 2 of I.T.T. Agreements with other establishments, hiring of certain machinery like camera and men to operate the camera, etc., had been acknowledged as inevitable. Therefore, there is no purpose in dilating on the mutual complaints of each other regarding the eligibility criteria. The negotiations were restricted to the first two highest bidders and the required assurances were extracted from them to fulfil the requirements of eligibility criteria. With the result, it is sufficient for us to restrict the discussion about the financial bid between the two, how the issue was handled by the Committee ultimately, and informing the petitioner as the awardee of the contract subject to certain conditions. The petitioner is called first and the petitioner agreed to raise the offer to 281 million US$. The third respondent is next called and agreed to raise their offer to 308 million US$, provided, the period of contract was five years. But, on the Board making it clear that the period shall be only for four years, the third respondent agreed.
105. In the said background of the facts thus represented to the Committee, the President/Chairman informs the members (paragraph 29) that the revised bids revealed that while the third respondent had offered 308 million US$, the petitioner had revised the bid to 281 million US$. It is pertinent to bear in mind that the petitioner and the third respondent were contacted separately and not together (Paragraph 18). After the petitioner left, enhancing the bid to 281 million US$, the third respondent is called for discussion and the third respondent hiked the bid to 308 million US$. It is in this background, the conduct of the Chairman/President becomes relevant. Either the negotiations should have been held in the presence of both the competing bidders so that the highest offer will be known to the other party and the highest revenue could be secured without unnecessary delay. The other alternative is that the petitioner being the highest bidder, should have been given the last opportunity to match the offer of the rival. Without doing so, the bid is closed at the stage of the third respondent having increased its offer. The matter is brought before the Committee for confirmation. The Chairman informs the Committee (paragraph 29) that the third respondent is the highest bidder. The intentions of the Chairman is, therefore, very clear, after having brought forth a situation whereby the second highest bidder is made the highest bidder and negotiations are closed and the matter is brought before the Committee, declaring the third respondent as the highest bidder. But, it is heartening to find that the members have chosen to approach the issue in a conscientious manner and had expressed themselves at paragraphs 29 and 30 as follows:
29) The Chairman thereafter informed the members of the Marketing Committee that accordingly the two revised bids were received from Zee and ESS. The revised bids revealed that both parties had furnished unconditional offers. While ESS had offered USD 308 million, the revised offer of Zee was USD 281 million. Both the parties had also submitted their respective plans to cover Domestic Cricket.
'30) the members observed that since USD 308 million was a higher offer resulting out of the revised bids, the offer of ESS could be accepted. But since Zee was the highest bidder initially, they should be provided an opportunity to match the highest offer. '
106. There was an attempt on behalf of the second respondent to take credit for the decision of the Committee as under Paragraph 30 as though it was only due to the suggestion of himself, it was decided to give a chance to the petitioner to match the offer of the third respondent. A reading of paragraphs 29 and 30 would sufficiently bring out that in paragraph 29, the statement of the Chairman is recorded and in paragraph 30, the members have politely recorded their dissent that while the offer of the third respondent 'could' be accepted, since the petitioner was the highest bidder initially, they would be provided an opportunity to match the highest offer. It is very obvious that the members have rightly sensed the injustice which would be caused to the petitioner if they had proceeded recognising the third respondent as the highest bidder, as sought to be represented by the Chairman. To accept the contention on behalf of the second respondent that the decision to give a chance to the petitioner to match the bid of the third respondent was his own, would be doing violence to the simple language and the meaning of the words in paragraphs 29 and 30. Such a defence is no more than a desperate excuse invented to buttress the glaring unfair attitude adopted against the petitioner by the Chairman. If the members had also blindly sailed with him, it would have been a very bad example of allowing the second highest bidder to walk over the highest bidder in a clandestine manner. Fortunately, the other members have put the tender process on the right track by insisting that the petitioner should be given an opportunity to match the third respondent's bid. Onerous condition to deposit 20 million US$:
Immediately after the attempt to eliminate the petitioner failed, a very strange and onerous condition is imposed, namely, that once the petitioner agrees to match the highest offer and agrees to comply with all the conditions, the petitioner should be asked to pay 20 million US$ as upfront within two days and that the Board would, thereafter, issue L.O.I. It is pertinent to note that the I.T.T. does not lay down any such condition that the successful bidder, immediately on being identified, should deposit 20 million US$ within two days as a pre-condition for issuing L.O.I.
107. Nextly, such a condition is very difficult for compliance, unless the bidders had already been put on notice in the I.T.T. itself. The Board, either by itself or at the instance of the disappointed Chairman, had chosen to impose such an onerous condition without any justification. The said condition is nothing but a sadistic stipulation with the fond hope that the petitioner will not be able to comply with the said condition. But the petitioner managed to comply with the said condition by wire transfer and the same was also accepted by the Board readily.
108. The stand taken by the respondents in their counter affidavits in this context is one of adding insult to injury. The stand of the respondents is that the Board never wanted the petitioner to deposit the amount within 48 hours, but it was the tioner who wanted to create a fait accompli and had, on his own volition, deposited the amount and that what they meant was only that the deposit has to be made only within two days after the L.O.I. is issued. This is again another desperate defence invented by the respondents being faced with their own glaring arbitrary action. It is very unfortunate that a responsible institution like the Cricket Board should resort to such unconscionable defence on oath in the solemn affidavits before the Courts. A reading of the condition would reveal that it can admit of no doubt at all that the payment has to be made forthwith: Zee would be required to pay USD 20 million upfront within 2 days. BCCI would thereafter issue a Letter of Intent.
109. The expression 'upfront' would clearly signify that it has to be complied with immediately. The expression has been given the following meaning in the Concise Oxford Dictionary Tenth Edition at Page 1 576 as follows:
' Upfront informal adv. (usu. up front) 1 at the front; in front. 2 (of a payment) in advance. Adj. 1 bold and frank. 2 (of a payment) made in advance. 3 chiefly N. Amer. Front or most prominent. '
110. Therefore, the deposit was meant to be an advance and as a pre-condition for the issue of L.O.I. The further expression ' thereafter' would remove any possible doubt as to when the amount should be paid. The condition is very clear, namely, that the amount was to be paid as an advance and as a pre-condition for being issued with L.O.I., failing which, L.O.I. cannot be issued. That is how the respondents themselves have understood the conditions. Pursuant to the directions, the petitioner had the amount credited through bank transfer, as could be seen from the letter of the petitioner dated 7.9.2004, stating that the amount has been transferred to B.C.C.I.'s State Bank of Travancore S.B. Account No. 1800, Jaipur, and that they were looking forward to receive the Letter of Intent by reply, as agreed in the meeting on 5.9.2004. In reply, by letter dated 8th September, 2004, the Board had stated as follows:
' Dear Sir,
We confirm the receipt of the equivalent of US$ 20 million as per our agreement.
We enclose the draft Letter of Intent to be issued to you by B.C.C. I. for your acceptance. '
111. A reading of the above letter is enough to clearly indicate as to how the conditions were understood by the Board itself. Not only the amount is accepted, but also the draft Letter of Intent is enclosed for the acceptance of the petitioner as a follow-up of the receipt of 20 million US$. The amount was returned only after decision to terminate the tender process.
112. It is rather unimaginable that a mighty institution like the Board, in order to sustain their actions, should put forward such unconscionable pleadings, totally ignoring the obvious. They could have even tried to explain the condition by stating that they had to impose the said condition to test the bona fides of the petitioner and their financial capacity or that they were running against time to conclude the contract at the earliest. But the defence taken by the respondents on oath that it was never meant that the amount should be paid within two days and that the petitioner had deliberately committed an error or misconduct by volunteering the payment as a fait accompli reflects only absolute lack of bona fides and regard for truth.
Proceedings before the Bombay High Court leading to termination of tender:
The sequence of events then shift to the Bombay High Court in the writ petition filed by the third respondent. According to the petitioner, at the earliest stage of the hearing itself, the Board comes forward with a suggestion that both the petitioner and the third respondent can submit their competitive bids. Though this offer may look harmless on the face of it, from the point of view of the petitioner there is no necessity for the petitioner to abandon the valuable rights which had clearly accrued in their favour and to bargain for a risk as against a multi-national giant. As far as the attitude of the Board is concerned, as an institution involved in public duties and functions, it has to honour its commitments to the petitioner who had, pursuant to their directions, made a deposit of 20 million US$. On the action of an unsuccessful bidder/party who had gone before the Court, the Board cannot have justifiedly ventured into an unprofessional attitude of letting down a party who had acted on their words.
113. It is true that the India Australia match was round the corner and the Cricket Australia as well as I.C.C. were insisting that there should be telecasting and that without telecasting, the tour may have to be cancelled. Even otherwise, the Board has a duty to telecast the games, in public interest. But the remedy was not by cancelling the tender process. In the writ petition, unless a prima facie case had been made out by the petitioner, (Bombay High Court), there should have been no difficulty for the Board to have obtained interim orders of the Court in such a manner without cancelling the tender process. There were many alternatives. The petitioner, having been declared as the successful bidder, could have been asked to telecast with a direction to maintain proper accounts. In fact, the petitioner had offered to do so and also to have the accounts audited by the auditors named by the Board itself. In the alternative, the Board could have sought for an interim relief as granted by the Supreme Court or before this Court for engaging another telecasting establishment, to render proper accounts, subject to the result of the writ petition. There was absolutely no need to cancel the tender process after it had reached a final stage, except for the fulfilment of certain minor requirements to be complied with by the successful bidder. The most important issue which the Board should have kept in mind is that, believing the direction of the Board, the petitioner had made arrangements for depositing 20 million US$ as advance and the deposit was, in fact, made. On the other hand, in the writ filed by the unsuccessful bidder, on the first opportunity, an offer is made by the Board for both parties to once again enter into the fray for re-bidding, thereby treating unequals as equals, in the sense that a promise had been made to the petitioner and the petitioner had acted on the promise, and in contrast, the third respondent, who was not successful in the auction, and the Board had no commitment to the third respondent. Third respondent cannot be put on an advantage for having filed the writ against the Board. I am mentioning this only on the assumption that the third respondent was unable to make out a prima facie case in his favour before the Bombay High Court. From the angle of the Board, the mere fact that the third respondent had started a litigation, cannot result in a public institution like the Board indulging in such unfair conduct, which is not expected of even a purely commercial minded establishment. The situation was not, however, without a remedy, as the Board had pretended to be more than the Board, the Chairman in particular. Even before the decision for cancellation of the tender process was announced before the Bombay High court, the members of the Committee had surrendered their discretion to the Chairman. The alternatives available had already been pointed out, which, for reasons best known to the second respondent, had not been pursued deliberately. It is the decision to cancel the tender in spite of warning of legal action by the petitioner which had resulted in stalemate.
Decision by the Working Committee on 16.9.2004:
The Working Committee met on 16.9.2004 and was informed by the Chairman that the offer of re-bid was declined by the petitioner on 14.9.2 004 and therefore, the Court had directed that status quo has to be maintained and further proceedings will continue from 16.9.2004. The manner in which the Chairman had presented the issues before the Working Committee is a sad example of how a highly placed personality, on the strength of the sheer trust reposed on him, could deliberately mislead a group of equally highly placed and well informed persons. He had presented a story/picture by clear misrepresentation of what had happened before the Court at Bombay and thereby successfully prejudiced the Committee against the petitioner and wrested from them a blank cheque to do whatever he liked. The following extract of the minutes of the meeting of the Working Committee would be relevant. After referring to the intimation to the petitioner, pursuant to the decision of the Marketing Committee to allow the petitioner to match the third respondent's bid, the Chairman proceeds further to deal with the proceedings in the Bombay Court.
' 1. The representatives of Zee were called to the meeting and the decision of the Committee was conveyed to them. The representatives of Zee stated that they were prepared to match the offer of USD 308 million along with all other terms and conditions stated above.
2. The Zee representatives also informed the names of TWI, Channel Nine, CSI and Sunsetter & Wire as production agents. It was informed to them that they should do the production either through TWI or Channel Nine.
3. The Chairman informed the Working Committee members that the day after the meeting of the Marketing Committee (6 September 2004,) ESS had filed a case before the Hon'ble High Court at Mumbai challenging the eligibility of Zee Telefilms.
4. The Chairman stated that the Court had asked both the parties to re-bid before the Court which would be opened at the Court itself and the rights could be granted to the highest bidder. He stated that Zee Telefilms had asked for time from the Court till 14 September 2004.
5. The Chairman stated that the matter was again discussed in the Marketing Committee meeting on 12 September 2004 when the members felt that if both parties agreed to re-bid, the matter would be sorted out. If however, one of the parties refused to bid, the legal proceedings would be prolonged and it was necessary to think of the steps ahead in case the legal proceedings were prolonged, especially since the Australian team's tour of India was knocking at the door with the first Test Match being scheduled to start on 6 October 2004. The Chairman stated that the Marketing Committee had decided that in such event, an emergent meeting of the Working Committee could be convened to take further decisions.
6. He stated that on 14 September 2004, Zee Telefilms had informed the Hon'ble High Court that they were not prepared to furnish a revised bid. Under the circumstances, the Court directed that status quo be maintained and the legal proceedings would continue from 16 September 2004.
7. The Chairman mentioned that in the meanwhile, a letter was written by BCCI to ICC to explore the possibilities of having the Test series in India without television coverage. He stated that ICC responded by stating that television coverage was a must in view of the Television (Third) Umpire playing a major role in modern-day cricket. Furthermore, ICC observed that lack of television coverage would attract massive media and public criticism and resentment. The ICC therefore, had stated that it would be extremely reluctant to even consider a request from the Board that there would be no television coverage for the India v Australia Test series.
8. The members referred to a letter dated 14 September 2004 received from Zee Telefilms and observed that there were unfair imputations in the letter about the Chairman and were in bad taste. They observed that the action of Zee Telefilms should be condemned.
9. The members noted the status quo order of the Hon'ble High Court at Mumbai and observed that the Board should advise its lawyers to assist the Hon'ble Bombay High Court for expeditious disposal. They also observed that the Board should have a contingency plan to have television coverage of the series against Australia and other series at home, so that the Test Matches were not deprived of their official status in the absence of Television (Third) Umpires.
10. The members endorsed all actions taken by the Chairman as the BCCI President and authorized him to take any further action in the matter in the best interest of the Board. '
114. Paragraph 4 of the minutes deal with the offer of re-bid before the Court. In the course of arguments, Mr. Harish Salve repeatedly contended that the offer of re-bid emanated only from the Board, while on the side of the Board, Mr. Venugopal contended that the Court had made the suggestion. I, therefore, put a specific question to all the counsel as to what was the correct position. Mr. Iqbal Chagla, learned senior counsel for the third respondent, very fairly stated that the suggestion came only from the Board and not from the Court. Thereafter, Mr. Venugopal did not pursue the said contention. It is also pertinent to note that the Board itself had taken the stand in its counter affidavit (Paragraph 25) that the Board had made a workable suggestion to both parties to secure any amount over and above 308 million US$ in sealed covers and that the said bona fide gesture on the part of the Board was duly appreciated by the Court. That being so, now let us see what the President had told the Working Committee in Paragraph 4 above. The statement that the suggestion came from the Court is not only contrary to truth, but also a clear design to prejudice the minds of the members. Firstly, the impression given is that he never made any proposal which would be unfair to the petitioner, having assured the petitioner and after having received 20 million US$, but it is only the Court which gave the suggestion. Secondly, in spite of suggestion from the Court itself, it was the petitioner who was unnecessarily stalling the issue by being very stubborn and unfair and would not agree even to the proposal by the Court. Reference is made to a letter of the petitioner dated 14.9.2004 to the President which appear to contain some imputations against the President. No such letter is enclosed in any of the typed sets before me. It is not known as to what are the contents of the letter and whether they have any relevance to the suggestion before the Bombay High Court for re-bidding. The fact remains that the President had deliberately misled the Committee on that issue, thereby damaging the cause of the petitioner. The members of the Committee fell into the trap, having been impressed that the attitude of the petitioner was very unreasonable and the situation of ensuing Australia - India series was so desperate and the Committee therefore gives a free hand to the President, authorising the President to take any further action in the matter in the best interest of the Board. Even so, the Working Committee did not authorise the President to terminate the tender process, which is a vital fact to be noted. The only decision taken by the Committee is that in view of the status quo order by the Bombay High Court, the Board should advise its lawyers to assist the Court for expeditious disposal and also that the Board should have a contingency plan to have television coverage of the series against Australia. The authority given to him can only relate to the directions as contained in paragraph 9 and not for taking a drastic decision of termination of the entire tender process. Such a contingency was not at all visualised by the Committee, as could be seen from the minutes. Yet, the Chairman had utilised the authority given to him to terminate the contract.
Defences by respondents-1 and 2:
How far all these allegations have been met by these respondents, has to be seen.
115. At the outset, I make it clear that strangely on two specific and serious allegations, there is no answer from the respondents.
(i) As regards involvement of P.W.C., except for stating that had they known that they were Auditors of ESPN Group, they would not have engaged them and in fact, they did not do any evaluation, there was no explanation at all as to how P.W.C. came to be engaged and why so many contradictions and inconsistent statements.
(ii) No whisper of explanation about the statement of the second respondent to the Working Committee on 16.9.2004 about the suggestion of re-bidding having emanated from the Court in spite of Mr. P.S. Raman having made scathing comments about the conduct of the President.
116. Regarding the conduct of the Board/President vis-a-vis the petitioner, all the learned counsel for the respondents have pointed out that if the Board was against the petitioner, they would not have supported the cause of the petitioner before the Bombay High Court. I do not think that the only fact that the Board had to defend its decision before the Bombay High Court, which they had to do, could really wipe out the overall conduct of the Board and the second respondent, as pointed out above. The decision to call the petitioner to match the bid of the third respondent was forced by the Marketing Committee, ignoring the attempt on the part of the President to project the third respondent as the highest bidder. The Board having taken a stand in the tender proceedings, could not have taken a contrary stand against their own decision.
117. The further defence is that the president is a very dynamic person and he had contributed enormously to Indian cricket. The popularity of the game of cricket and the financial and commercial stakes are independent of the dynamism of any single individual/personality. Yet, while giving full credit to his contributions and achievements, they are not effective and proper answers for the specific questions and issues raised before the Courts. Issues and allegations have to be properly met and cannot be swept under the magic carpet of surplus of Rs.100 crores in the bank accounts of the Board. If the termination of the tender process is the result of the collective decision and the second respondent alone cannot be blamed, how does it stand to reason that the second respondent alone is to be given the credit for the development of the resources of the Board?
118. Yet another defence is that the decision of the President was endorsed and ratified by both the Committees as well as the General Body and that the Working Committee and Marketing Committee comprised of stalwarts and men of high caliber, capable of independent decision. Firstly, here again, I have to point out that the mere fact of endorsement by the Committees or the General Body alone cannot validate a decision if found to be wrong otherwise legally or factually. Secondly, the Working Committee was misled about what happened before the Bombay High Court and thereby, the case of the petitioner was wrongly projected and prejudiced. Thirdly, a desperate picture was given to the Committee in the context of the impending Australia - India series and the directions from I.C.C. Even so, the Working Committee had only directed that the Board should advise its lawyers for expeditious disposal of the writ petition and that the Board should have a contingency plan to have the television coverage of the match against Australia. Committee did not authorise termination of the tender specifically.
119. It is true that the Committees are comprised of eminent people and men of status and culture. It is their status and culture, which, many a times, stand in the way of being very plain and frank. It is so as regards many great institutions and collective bodies in which each member is entitled to express his independent views. But, in reality, in the interest of discipline, respect to the leader, to maintain cohesion, to avoid collision and in the interest of smooth functioning, many choose not to create problems to the Chairman. Even so, in the meeting of the Committee on 5.9.2004, the members did assert that the petitioner should be given liberty to match the bid of the third respondent. The subsequent meetings of the Working Committee, Marketing Committee and the General Body held on 14th, 28th and 30th of September, 2004 respectively, were held in a totally different atmosphere in background of the cases before Courts and the impending matches. Unanimous decisions had to be taken in the larger interest of the Board and the game. In the said background, the interest of the petitioner naturally takes the back-seat. To repeat what I had already observed, these are not proper answers for the specific allegations and acceptable proof of the allegations.
120. With the result, I am inclined to conclude that the series of events which have ultimately ended in the termination of the tender process is unjust and illegal and is the result of bias against the petitioner. The reasons for such an attitude is not known. I am even prepared to assume that the second respondent did not have a good opinion about the petitioner's capacity to be capable of satisfying the international standard and quality of televising the matches and had honestly believed that the petitioner was not up to the expectation. Even so, the conduct of the President of such a big institution should be above board and cannot act in clandestine or unethical manner, resulting in causing expectation and loss to the petitioner. If he had sincerely felt that the petitioner was not capable of registering a high level of international telecasting, the easiest and honest way of preventing the petitioner would have been to adjudge the petitioner as incapable of international telecasting. It is settled proposition that the tendering authority is not bound by the highest or lowest bidding, provided, sufficient reasons are given and the decision to ignore the highest bid is not arbitrary. But in this case, the petitioner has been adjudged as eligible. Therefore, the manner in which the second respondent had operated does not inspire confidence or reflect sufficient transparency or the expected level of ethics.
121. Another example of false and misleading pleading is the denial of the allegation of the petitioner that what was attempted by the Board before Bombay High Court was for re-bidding. This statement is denied in the counter affidavit of the first respondent in paragraphs 2 5 and 27 of the counter affidavit and the contention is that there was no 're-bidding'. In contrast, if the minutes of the meeting of the Working Committee on 16.9.2004 as extracted above is perused, paragraph 4 states that the Chairman had stated that the Court had asked both parties to re-bid. There appears to be no compunction for putting forth false pleadings on oath.
122. That the second respondent is in desperation and losing his composure is evident from his allegation in paragraph 11 of his counter affidavit that repeated attempts were made by the Chairman of the petitioner to influence him and having failed, he was making baseless allegations. It is a serious allegation and if true, why no action was taken against the petitioner and reject their petition in terms of Condition No. 3.1.(a) which states that any attempt by the tenderers to influence the officials of the Board would result in rejection of the tender? Why the said allegation was not pleaded at any early stage, at least before the Bombay High Court?
123. One of the issues which was raised by the petitioner is that the petitioner being a national/Indian establishment, preference should be given to the petitioner. When once global tender is authorised and permitted, it will not be possible to claim that only a national channel should be engaged. It is true that priority has to be given to domestic cricket and any offer which would facilitate importance to domestic cricket should be encouraged. But in a global tender, foreign bidders cannot be ignored.
124. Though I have found that the cancellation of the tender process is unjust and illegal, it is not also possible to grant any positive relief to the petitioner for the following reasons:
(i) In view of the fact that a firm Letter of Intent had not been issued, the Court cannot order the issue of the contract on its own wisdom and tell the parties to accept any term of the contract against his or their wish.
(ii) The prayer is to enforce the decision of the Board on 5.9.2004. In view of the subsequent events, it is not practically possible to put the parties and the terms of the contract back in the very same position as it prevailed on 5.9.2004.
(iii) The grant under the tender contemplates cricket season commencing from 1st October 2004 and ending with 30.9.2008 with a minimum of 27 days of international cricket in India, each season/year and first class domestic matches, as per the Board's schedule. As on date, the series of matches between Australia and India are over. Another series of matches with South Africa and One-Day International with Pakistan are also over. The current series with Pakistan is nearing completion. In this background, there can be no effective enforcement of the contract as on 5.9.2004, for which a specific amount has been quoted and agreed. Now, it is not possible to give effect to the said contract in its full shape.
(iv) The actual nature of relief which is asked for is akin to specific relief under common law. Even before a civil Court it is only a discretionary remedy and the Court cannot grant a relief which is either fragmented or incapable of proper implementation in its original shape or where damages can be awarded. In the case of an extraordinary remedy under Article 226 of the Constitution, the scope of exercising such a discretion has to be still more restricted.
(v) It is not as though the petitioner is without any remedy. The petitioner is certainly entitled to sue the appropriate respondent for damages suffered by them, if any. The petitioner had contended that they had spent considerable amounts and had incurred other commitments. The petitioner is certainly entitled to sue the respondents for damages.
(vi) As the petitioner has not sought for any relief of damages in this writ petition, it is not possible to award damages, more so assessment of actual damages will not be possible in a writ petition.
125. For all the above-said reasons, though I have held that the petitioner is a victim of unfair action of the Board, it is a matter of regret that no positive relief can be provided, in view of the above features.
126. It is also made clear that in the event of the petitioner taking any proceeding for damages, the observations contained in this order will be disregarded. It is for the petitioner to make out a proper case before the appropriate forum. The findings rendered in this writ petition are only on the basis of the materials produced before this Court.
127. With the result, this writ petition is disposed of with the following observations:
A) The objections regarding maintainability are over-ruled. The writ petition is maintainable.
B) The cancellation of the tender process by the Board is improper and vitiated by arbitrariness and unfair action of the Board and the second respondent in particular.
C) However, no relief can be granted to the petitioner, for reasons contained in Paragraph 124, above.
D) It is open to the petitioner to sue the appropriate respondent(s) for damages.
E) After the current series with Pakistan is over, telecasting of subsequent series/matches will be only after calling for fresh tender. It is to be hoped that the members of various Committees will realise that they are performing duties which are akin to quasi-judicial functions and they cannot abandon their rights to assert their views and duty to act independently.
F) Both the petitioner and third respondent are entitled to take part in fresh tender.
G) No costs.