TaxTMI 
TaxTMI 
2018 (8) TMI 2062
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....dv., Dr. Ashutosh Garg, Adv., Mr. Pratik R. Bombarde, AOR, Mr. Vikas Mehta, AOR, Mr. Rauf Rahim, AOR For the Respondent : Mr. Senthil Jagadeesan, AOR, Mr. Nirnimesh Dube, AOR, Mr. Abhishek Singh, AOR, Mr. Venkita Subramoniam T.R, AOR, Mr. V. K. Biju, AOR, Mr. Abhay Pratap Singh, Adv., Mr. A.K. Upadhyay, Adv., Mr. Tushar Mehta, Sr. Adv., Mr. Siddharth Garg, Adv., Mr. Snehasish Mukherjee, AOR, Mr. Aditya Soni, Adv., Mr. Shree Pal Singh, AOR, Mr. Sarvesh Singh, AOR, Mr. Santosh Mishra, AOR, Mr. Santosh Kumar, AOR, Mr. Ritesh Kumar Chowdhary, AOR, Mr. Rashmi Singh, AOR, Mr. Rameshwar Prasad Goyal, AOR, Mr. Rajiv Nanda, AOR, Mr. Raghavendra S. Srivatsa, AOR, Mr. R. Chandrachud, AOR, Mr. Praveen Swarup, AOR, Ms. Pragya Baghel, AOR, Mr. Mukesh Kumar Maroria, AOR, Mr. Manju Sharma, AOR, Mr. Liz Mathew, AOR, Ms. Neela Gokhale, Adv., Mr. Ilam Paridi, Adv., Ms. Shradha Agrawal, Adv., Ms. Kamakshi S. Mehlwal, AOR, Mr. K. K. Mohan, AOR, Mr. Gaurav Sharma, AOR, Mr. Gagan Gupta, AOR, Mr. E. C. Agrawala, AOR, Mr. Chirag M. Shroff, AOR, Mr. Rahul Mehra, Adv., Ms. Neha Sangwan, Adv., Ms. Sanjana Nangia, Adv., Mrs. Monisha Suri, Adv., Mr. Sachin Das, Adv., Mr. Rajiv Narain, Adv., Mr. Chandra Bhush....
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.... nearly perfect. Be it noted, the issue with regard to disqualification or qualification of the representative is kept open." (Emphasis supplied) On 23 August 2017, the CoA was entrusted to prepare a draft constitution in accordance with the judgment rendered on 18 July 2016 and the order dated 24 July 2017. Modalities were evolved by this Court to consider the concerns of stakeholders by ensuring that the draft constitution is duly circulated between all the counsel so that their suggestions could be evaluated. This Court observed : "we...direct the Committee of Administrators to prepare a draft Constitution in terms of the main judgment as well as the order dated 24th July, 2017. A copy of the draft Constitution shall be handed over to Advocate-on-Record assisting the learned counsel for the respondents. A copy of the draft Constitution be also handed over to Mr. B.K. Prasad, learned counsel assisting Mr. Ranjit Kumar, learned Solicitor General . Suggestions, if any, to the draft Constitution be handed over to the learned counsel assisting the learned Amicus Curiae and Mr. Parag P. Tripathi so that they can prepare a chart and will be in a position to give th....
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....ng note of the suggestions, to make it final for the purpose of approval by this Court, the Office Bearers of B.C.C.I shall not hold a General Body Meeting." (Emphasis supplied) 3 On 27 October 2017, the CoA filed a draft constitution for BCCI and its office bearers. Suggestions to the draft received from state cricket associations and other parties were filed by the CoA together with comments on the proposed suggestions, in a status report dated 12 January 2018. On 1 May 2018, this Court noted that suggestions to the draft constitution have been filed and would be finalized by the Court. In the interest of fairness, it was however observed that any further suggestions that a state cricket association may have, could still be forwarded to the amicus. Accordingly, the following directions were issued : "A draft Constitution meant for the B.C.C.I. and its Office Bearers has been filed on 27.10.2017. Suggestions to the same by various State Cricket Associations have also been filed and the same have been attached to the draft Constitution. The draft Constitution shall be finalized by this Court. In the meantime, if any State Cricket Association intends to....
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....iae and counsel. 5 Broadly speaking, the suggestions which have been received to the draft constitution have been divided by Mr Gopal Subramanium, learned amicus Curiae under the following heads : a) Issues relating to membership and Associate Membership; a) Number of members in Selection Committee and related matters; b) Cooling off period; c) Disqualifications; d) Constitution of the Apex council; e) Conditions imposed on State Associations; f) Power/Duties of Office Bearers and Professional Management (CEO); g) No interference at all in the functioning of BCCI; and h) Binding value of Frequently Asked Questions issued by the Hon'ble Justice Lodha committee. We propose to examine the issues which have been raised during the course of hearing. A. Issues relating to membership and Associate Membership: One State - One Vote 6 Rule (3)(a)(i) of the draft constitution contemplates that membership of BCCI shall consist of (i) Full members and; (ii) Associate members. The text of the draft constitution provides thus : "(ii) Full Members A. Each State shall be represented ....
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....ke Maharashtra and Gujarat hold three full memberships each. The Committee noted that the Services Sports Control Board ("Services"), Railway Sports Promotion Board ("Railways") and Association of Indian Universities ("Universities") do not as such represent any specified territory but are actively involved in the game of cricket whereas some members like the National Cricket Club at Kolkata and the Cricket Club of India at Mumbai do not represent any territory. The Lodha Committee relied upon territoriality as a determining factor for the grant of full membership. Railways, Services and Universities not being tied to the territory of one state were denied full membership. Though Gujarat fielded three cricket teams (Gujarat, Saurashtra and Baroda) and so did Maharashtra (Mumbai, Maharashtra and Vidarbha) both states would each have one Full membership. The Lodha Committee recommended that the status of associate member should be granted to those members who do not represent any territory. 8 In the principal judgment of this Court dated 18 July 2016, the one state - one vote norm was accepted. While doing so this Court observed thus : "62. That brings us to the question ....
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.... (ii) Mumbai and; (iii) Vidarbha. Similarly, in the State of Gujarat, there have been three associations representing: (i) Gujarat; (ii) Baroda; and (iii) Saurashtra. In both the states, these associations have made a signal contribution to the cricketing history of the nation. Besides, fielding teams for the Ranji Trophy, these associations have produced players of national and international repute. The amicus has responded to the plea before this Court for allowing full membership to the three associations each in the States of Maharashtra and Gujarat. The amicus submits that the order of this Court mandates that there should be an annual rotation of the constituent members of Maharashtra and Gujarat so that every year, one of the three constituent members would be capable of voting and participating in the general body. Moreover, it has been submitted that for the elections to the Apex Council which take place once every three years, the first member association which has already cast a vote should not be able to cast a vote at the end of three years but must pass it on to the next association in turn. In this manner, it has been suggested that all the three constituent associat....
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....al limits extending from Sind in the north to Karnataka (excluding Mysore State) in the South. In the year 1935 it was re-christened as 'Bombay Cricket Association' as the newly formed Gujarat and Maharashtra Cricket Association receded from the territorial limits of the Bombay Presidency (Proper) Cricket Association. The present day Mumbai Cricket Association or MCA is the governing body for cricket in Mumbai and its surrounding regions like Thane and Navi Mumbai. The Mumbai cricket team is the team for The Mumbai Cricket Association in the Ranji Trophy. The team has won over 41 titles, the most recent being in 2015-16. It has also come runner-up in the final of the Ranji Trophy a total of 4 times. The association owns the Wankhede Stadium. Famous cricketers produced by MCA, amongst others, include Abey Kuruvilla, Ajinkya Rahane, Ajit Wadekar, Ashok Mankad, Chandu Borde, Dilip Sardesai, Dilip Vengsarkar, Eknath Solkar, Farokh Engineer, Jatin Paranjpe, Polly Umrigar, Ravi Shastri, Rohit Sharma, Rustomji Jamshedji, Rusi Modi, Sachin Tendulkar, Sandeep Patil, Sanjay Manjrekar, Sunil Gavaskar, Vijay Manjrekar, Vijay Merchant, Vinod Kambli, Wasim Jaffer etc." "SUARASH....
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....i-B). This becomes a principle of inclusion. To utilise territoriality as a basis of exclusion is problematic because it ignores history and the contributions made by the above associations to the development of cricket and its popularity. Having due regard to the contributions made by Mumbai and Vidarbha in the State of Maharashtra and by Baroda and Saurashtra in the State of Gujarat to the game of cricket, it would be appropriate to also grant them full membership of the BCCI. We however, maintain the decision not to grant the status of full members to the National Cricket Club and the Cricket Club of India. Neither of the two Clubs fields teams in the Ranji Trophy. They cannot be placed at par with the other state associations. Railways 11 The contribution of Railways to the cause of Indian Cricket is noteworthy. It has been pointed out before the Court that : "RAILWAYS SPORTS PROMOTION BOARD Railways Sports Promotion Board (RSPB) is a sports board run by the Indian Railways. It promotes 29 sporting disciplines and owns the Karnail Singh Stadium in New Delhi. RSPB is a member of the Board of Control for Cricket in India and RSPB fields t....
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....son nominated by the government or the Railway Sports Promotion Board. Services and Association of Indian Universities 15 The amicus has not suggested the grant of full membership to Services and the Association of Indian Universities. For Services, he submits that sufficient material is not available and that having regard to the need for insulation from government control, 'as at present advised', it is not possible to recommend the grant of a full membership status. As regards the Association of Indian Universities, it has been submitted that since they do not field a team for the Ranji Trophy, full membership status should not be granted. On the contribution by the Services team to the cause of Indian cricket, we take note of the following : "SERVICE SPORTS CONTROL BOARD The aim of the Service Sports Control (SSCB) is to conduct inter-services sports championships to select and to train services sports persons. The board initially was known as the Army Sports Control Board and was established in 1919. Postindependence, it was rechristened as Service Sports Control Board and all the three services are running the organization on a rotational basis. The....
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....he responsibility of selecting cricket teams for participation at various levels. For the men's teams, there are two committees which look after the selection of teams for tournaments in various formats of the game. These are: " I All India Senior Selection Committee: International matches - Test Matches, ODI Matches and T20 matches India 'A' teams - both for home and away series President's XI / BCCI XI to play visiting international teams II All India Junior Selection Committee: Under-23 cricket Under-19 cricket Under-16 cricket" 19 With twenty-eight teams, India is reported to have the highest number of first class teams in the world. Senior selectors watch over several tournaments during the course of the domestic cricketing season, from August to April every year. These are : "1. Ranji Trophy league matches 2. Ranji Trophy knock out matches 3. Vijay Hazare League matches 4. Vijay Hazare knock out matches 5. Mustaq Ali league matches 6. Mustaq Ali Knock out matches 7. Irani Trophy 8. Du....
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....d to the number of selectors to five. 22 We may note that the amicus has also supported the suggestion that the number of selectors be increased to five. He however also indicated that this should be subject to the criteria of a selector having played a minimum of (a) seven test matches; or (b) thirty first class matches; or (c) ten One Day Internationals in the fifty over format and a minimum of twenty first class matches. We accordingly accept the proposed amendment as suggested by the amicus in the following terms : "Clause 26(2)A(i) "The Men's Selection Committee shall select the Senior National Team for representation in Tests, One Day Internationals. T20 and any other format. This Committee shall also be responsible for providing evaluation reports of the respective team performances to the Apex Council on a quarterly basis." "Clause 26(2)A(ii) The Men's Selection Committee shall consist of five persons to be appointed by a Cricket Advisory Committee comprising of reputed former international cricketers identified by the BCCI at the annual General Meeting, subject to the following criteria: (a) Every member of the Men's Selectio....
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.... tenure of each term for office bearers of the BCCI and state associations should be three years; (ii) a maximum of three terms should be allowed regardless of the post held; and (iii) there should be a mandatory 'cooling off period' after each term. In making these recommendations, the Committee has been guided by the need to ensure that vested interests do not emerge out of the indefinite continuation in office of one or more individuals. These recommendations seek to enforce a rule against self-perpetuation by stipulating the period of each term of office, the number of terms which a single individual may hold and the requirement of a break between successive terms. The recommendations can be construed as an effort to ensure a dispersal of authority so that control over BCCI and the state associations is not concentrated in the hands of one or a limited group of persons. The proposals for setting limits on tenures and terms were incorporated in a section which the Committee describes as the "end of the innings". 25 In the principal judgment of this Court, the recommendations of the Lodha Committee have been accepted for the following reasons: "20....
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.... unable to utilise the experience gained (as a result of a cooling off period of three years) which would be a loss to the game of cricket. "Continuity of service", it has been submitted, subserves the interest of the game and a person who has "enriched himself" over a period of three years should be allowed to contribute even thereafter without a break. This, it has been submitted, would enable office bearers to develop their networks with other cricketing nations and the ICC. Moreover, since an upper age limit of seventy years is in place, it has been submitted that the requirement of a cooling off period may be dispensed with. The nature of cricket, it has been urged, is rapidly evolving and an endeavour must be made to ensure that individuals with requisite experience are able to contribute to the game. 28 While dealing with the objections to a cooling off period, it is necessary at the outset to emphasise that the term of an office bearer cannot be regarded either as an opportunity "to enrich himself" or as a matter involving "continuity of service". The expression "enriched himself" may have a legitimate connotation if it adverts only to experience gained. Otherwise, enric....
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....amicus has earnestly supported the cooling off requirement as being necessary, having regard to the spirit of the Lodha Committee recommendations. A cooling off period, it has been urged is necessary to ensure that after a period of three years, a person is not able to migrate to another association and occupy the position of an office bearer or to occupy any other position in the same association. The amicus also submits that the expression 'office bearer' should not be allowed to be circumvented by being a member of any other committee. Subject to these safeguards, the amicus agrees that a person may be able to serve for a period of nine years in the BCCI and nine years in a state association. 32 Having carefully evaluated the submissions which have been urged before us, we are of the view that a cooling off period should be observed. A cooling off period has several features which are of utmost importance : (i) it is a safeguard against the development of vested personal interests; (ii) it ensures against the concentration of power in a few hands; (iii) it facilitates a dispersal of authority; and (iv) it encourages the generation of a wider body of experienced administrators....
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....ll be three years; (ii) No person shall hold the position of an office bearer in any state association, regardless of post, for a period in excess of nine years in the aggregate; (iii) No person shall hold the post of office bearer in BCCI, regardless of post, for a period in excess of nine years in the aggregate; (iv) There shall be a cooling off period of three years after an individual has held the post of an office bearer for two consecutive terms either in a state association or in the BCCI or a combination of both; and (v) The expression 'office bearer' should not be permitted to be circumvented by being a member of any other committee or of the Governing Council in BCCI or any state association, as the case may be. D. Division of Functions, Professional Management and Disqualifications 35 The report of the Lodha Committee postulates that the General body of the BCCI would consist of full members and associate members. The report provides for an Apex Council which is responsible for the administration of the Board. 36 This functional distinction between the General body and the Apex Council is an institutional safeguard to ensure p....
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....e notice of an Annual General or Special General Meeting or Meetings of the Apex Council or of any of the Committees to any member entitled thereto or the non-receipt thereof by such individual shall not invalidate the proceedings of such meetings. Clause 33(1) At least four weeks prior to the Annual General Meeting at which an election is to be held, the Apex Council shall appoint an Electoral Officer, who shall be a former member of the Election Commission of India. Clause 33 (2) The Electoral Officer shall oversee and supervise the entire election process including scrutiny of the electoral rolls for Councillors and the Players' Cricket Association, which shall include all nominations and candidatures being subject to his scrutiny in accordance with the Rules. Clause 45 These Rules and Regulations of the BCCI shall not be repealed, added to, amended or altered except when passed and adopted by a 3/4th majority of the members present and entitled to vote at a Special General Meeting of the General Body convened for the purpose or at the Annual General Meeting. Any such amendment will not be given effect to without the leave of....