Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4235 OF 2014

BOARD OF CONTROL FOR CRICKET IN INDIA ....APPELLANT

VERSUS

CRICKET ASSOCIATION OF BIHAR &ORS. .....RESPONDENTS

WITH

CIVIL APPEAL No. 4236 OF 2014

WITH

CIVIL APPEAL No. 1155 OF 2015

O R D E R

Dr D Y CHANDRACHUD,J

1 On 7 October 2016, directions were issued by this Court pursuant

to a status report dated 26 September 2016, submitted by the Committee

consisting of Justice R M Lodha, Justice Ashok Bhan and Justice RV

Page 2 2

Raveendran. The status report filed by the Committee set out the

sequence of events that had taken place after the final judgment and

order of this Court dated 18 July 2016, which accepted the report

submitted by the Committee on 18 December 2015 with certain

modifications. A gist of the status report has been set out in the earlier

order dated 7 October 2016. After adverting to the sequence of events,

the Committee has concluded that BCCI has violated its directions:

“…Directions of this Hon’ble Court have been ignored,

actions have been taken to present a fait accompli to

the Committee, the directives of the Committee have

been breached, and member associations have not been

duly intimated about the directions of the Committee

and the timelines fixed by it.”

The Committee has observed that “BCCI has repeatedly taken steps to

undermine the Committee and this Court”, with several statements

and actions which “are grossly out of order and would even constitute

contempt”. The Committee noted that despite several e-mails, as well as

a direction to appear before it on 9 August 2016, the President of BCCI

did not furnish even a single response to the Committee. The

Committee also observed that the President of BCCI had even gone to

the extent of requesting ICC to issue a letter that “this Committee

amounts to governmental interference” besides making several

objectionable statements in the press which undermined both the Court

and the Committee.

Page 3 3

2 The Committee submitted the above status report in pursuance of

the directions contained in the judgment of this Court dated 18 July

2016. This Court had by its judgment, while accepting the

recommendations made in the earlier report of the Committee, assigned

to the Committee a supervisory role for ensuring the transition from the

old to the new system recommended by the Committee. While this

Court in its judgment expressed a hope that the process of implementing

the directions contained in the judgment would be completed within a

period of four months or at best six months, the Committee was

requested to draw appropriate timelines for the implementation of the

recommendations and to supervise the implementation process. The

Committee, while moving the status report observed that though the

office bearers of BCCI had furnished assurances to it on 9 August 2016,

25 August 2016 and 20 September 2016, that they would cooperate with

the Committee in fulfilling the directions of this Court (subject to any

modification or review) these assurances had not been fulfilled.

3 In the previous Order of this Court dated 7 October 2016, the

following prima facie, findings were recorded:-

“… The sequence of events that have been taken

place since 18

th

July, 2016 and referred to in the

status report prima facie give an impression that

BCCI has far from lending its fullest

cooperation to the Committee adopted an

obstructionist and at times a defiant attitude

Page 4 4

which the Committee has taken note of and

described as an impediment undermining not

only the Committee but even the dignity of this

Court with several statements and actions which

according to the Committee are grossly out of

order and may even constitute contempt”.

This Court has noted that in spite of a direction issued by the Committee

on 21 August 2016 that the AGM of BCCI which was to be held on 21

September 2016, may transact only routine business for 2015-16 and

that any business or matter relating to 2016-17 may be dealt with only

after the adoption of the Memorandum of Association and rules in

pursuance of the recommendations of the Committee, substantial

amounts running into crores of rupees have been disbursed in favour of

state associations. This Court expressed the view that BCCI could and

indeed ought to have avoided the disbursement of such a huge amount

while the Committee was still examining the need for formulating a

disbursement policy.

4 During the course of the hearing which resulted in the earlier

order dated 7 October 2016, BCCI stated that one of the reasons for its

failure to adopt the proposed MOA was the reluctance of the state

associations to subscribe to it. In this background, this Court observed

that if that be the position, there is no reason why the state associations

that are opposed to the reforms suggested by the Committee and

Page 5 5

accepted by this Court should either expect or draw any benefit from the

release of grants by BCCI. The following directions have been issued

by this Court on 7 October 2016:-

“i) No further amount in terms of the Resolution

passed in AGM on 09.11.2015 or any

subsequent resolution by the BCCI or its

Working Committee shall be disbursed to any

State Association except where the State

Association concerned passes a proper

resolution to the effect that it is agreeable to

undertake and to support the reforms as

proposed and accepted by this Court in letter

and spirit. Upon such a Resolution being

passed, a copy of the same shall be filed before

Justice Lodha Committee with an affidavit of

the President of the State Association concerned

unequivocally undertaking to abide by the

reforms as proposed by the Committee and

accepted and modified by this Court. A similar

affidavit with a copy of the Resolution shall be

filed before this Court also. It is only after such

affidavits are filed, that BCCI may transfer the

balance amount of Rs.16.73 crores each payable

to the State Association.

As regards the 13 State Associations to whom

the payment has already been disbursed, we

direct that the State Association concerned shall

not appropriate the said amount except after

they have passed a resolution and filed an

affidavit as mentioned above before Justice

Lodha Committee and before this Court. In

case the affidavits are not filed, the amount

disbursed to the State Associations shall be

invested by the Associations in a term deposit

subject to further directions of this Court.

ii) Mr. Ratnakar Shivaram Shetty, General

Manager, Admin and Game development shall,

in the meanatime, place on record a copy of the

authorization/resolution passed by the BCCI on

Page 6 6

the basis of which he has filed the affidavit

supporting the response of the BCCI to the

status report.

iii) Mr. Anurag Thakur, President of the BCCI

shall file a personal affidavit whether he had

asked the CEO of the ICC to state that the

appointment of Justice Lodha Committee was

tantamount to Government interference in the

working of the BCCI.

iv) Mr. Arvind Datar, learned Senior Counsel

to produce the original record on the basis of

which the affidavit by Mr. Ratnakar Shivaram

Shetty on behalf of BCCI has been filed”.

5 In pursuance of these directions, Mr Anurag Thakur, President of

BCCI has filed an affidavit specifically with reference to direction (iii)

above. Before we consider the affidavit that has been filed by the

President of BCCI, it is necessary to advert to the response to the status

report of the Committee filed by Mr Ratnakar Shivaram Shetty, General

Manager, Admn. & Game Development, BCCI. In the sequence of

events set out in his response to the status report, Mr Shetty has dealt

with the statement made in an interview given to the electronic media by

Mr David Richardson, CEO of ICC. Mr Richardson stated that the

President of BCCI sought a letter from ICC that the appointment of a

nominee of CAG (which has been directed by this Court on 18 July 2016

in terms of the Committee’s recommendations) would amount to

Page 7 7

‘governmental interference’ thereby inviting the suspension of BCCI

from the membership of ICC. Mr Shetty’s response was as follows:

“It appears that an interview was given by Mr

David Richardson the ICC CEO falsely stating that

the BCCI President had requested the ICC to issue a

letter stating that the intervention by this Hon’ble

Court amounted to Governmental interference. It is

submitted that no such letter or oral request was

ever made to the said gentleman either by the BCCI

President or any office bearer of the BCCI. It is

apparent that Mr. Richardson has confused himself

in relation to the issue. This issue is required to be

considered in the light of the fact that Mr. Shashank

Manohar Senior Advocate had clearly opined as the

BCCI President that appointment of the CAG in the

BCCI shall result in suspension of the BCCI as it

would constitute governmental interference. In fact

the same had been submitted on affidavit before this

Hon’ble Court. However, as Chairman of the ICC,

Mr. Manohar had taken a contrary stand and stated

that it would not amount to governmental

interference. It was in this context that a discussion

took place between Mr. Shashank Manohar and Mr.

Anurag Thakur during a meeting in Dubai wherein

a clarification as sought by Mr. Anurag Thakur

during an informal discussion on what the exact

status would be if the CAG was inducted by the

BCCI as part of its management and whether it

would amount to governmental interference as had

been advised and affirmed by Mr. Manohar during

his stint as BCCI President.”

Paragraph 7(d) of the response contains a statement that:

“It is being incorrectly alleged that the President

BCCI made a request to the ICC to issue a letter

stating that this Committee amounts to

Governmental interference. This suggestion is

denied”.

6 In the affidavit which has been filed by the President of BCCI

on 15 October 2016, there is a denial that any such request was made by

Page 8 8

him to the CEO of ICC. Paragraph 3 of the affidavit contains the

version of the President of what transpired at Dubai on 6/7 August 2016

during the course of a meeting convened by ICC:

“In this context it is respectfully submitted that

there was an ICC governance review committee

meeting scheduled to be held in Dubai on 6

th

& 7

th

August 2016. There were certain issues relating to

financial model for which my inputs were required

and as such I was invited by ICC for the said

meeting. During the meeting with regard to the

review of the constitutional provisions of ICC, I

pointed out to the Chairman of the ICC, Mr.

Shashank Manohar that when he was the President

of BCCI he had taken a view that the

recommendations of the Justice Lodha committee

appointing the nominee of the CAG on the Apex

Council would amount to governmental interference

and might invoke an action of suspension from ICC.

I therefore requested him that he being the ICC

Chairman can a letter be issued clarifying the

position which he had taken as BCCI President.

Mr. Manohar explained to me at the meeting that

when the stand was taken by him, the matter was

pending before this Hon’ble Court and had not been

decided. However, on 18.07.2016 this Hon’ble

Court delivered its judgment in the matter. In the

said judgment, this Hon’ble Court has rejected the

submission that the appointment of the nominee of

CAG on Apex council would amount to

Governmental interference and had also held that

the ICC would appreciate the appointment as it

would bring transparency in the finances of the

Board.”

7 Mr Kapil Sibal, learned senior counsel appearing on behalf of the

BCCI has tendered during the course of hearing draft minutes of a

Working Committee meeting of BCCI held on 22 August 2016. The

draft minutes purportedly contain a record of what is stated to have

Page 9 9

transpired between Mr Shashank Manohar, the Chairperson of ICC and

the President of BCCI at the meeting on 6 and 7 August 2016. The

relevant part is extracted below:-

“Mr. Anurag Thakur was in the Chair and called the

meeting to order and welcomed the members. He

briefed the members about his meeting with the ICC

Chairman at Dubai during the ICC governance

review committee meeting on 6

th

& 7

th

August 2016.

Certain financial mode inputs were required during

the said meeting which he gave. During the

meeting with regard to the review of the

constitutional provisions of ICC it was informed by

Mr. Thakur that he asked Chairman ICC Mr.

Shashank Manohar that when he was the President

of BCCI he had taken a view that the

recommendations of Justice Lodha committee

appointing the nominee of the CAG on the Apex

Council would amount to governmental interference

and might invoke an action of suspension from ICC.

It was therefore requested from him that he being

the ICC Chairman could a letter be issued clarifying

the position which he had taken as BCCI President.

Mr. Manohar thereafter explained that when the

stand was taken by him the matter was pending

before the Supreme Court and was not decided.

However on 18

th

of July 2016 the Hon. Supreme

Court of India delivered its judgment and the Court

has rejected the submission that the appointment of

the nominee of CAG on Apex council will amount

to Governmental interference and had also held that

the ICC would appreciate the appointment as it

would bring transparency in the finances of the

Board. The discussion stopped in view of his

explanation on this issue”.

8 Prima facie, it appears from the response that was filed by BCCI

to the status report, that a clarification was sought by Mr Anurag Thakur

from Mr Shashank Manohar on what the exact status would be if a

nominee of CAG was inducted by BCCI as part of its management and

Page 10 10

whether it would amount to governmental interference. The statement

made by BCCI in its response to the status report contains a denial that

its President made a request to ICC to issue a letter stating that the

Committee amounted to governmental interference. However, in the

affidavit which has since been filed by the President of BCCI in

pursuance of the Court’s directions of 7 October 2016, it has been

accepted that he had made a request to the Chairman of ICC for issuing

a letter “clarifying the position which he had taken as BCCI President”

(to the effect that the recommendations of the Committee for appointing

a nominee of CAG would amount to governmental interference and

might invoke an action for suspension from ICC). Significantly, Mr

Shetty did not in the response filed earlier by BCCI to the status report

disclose that there was a request for a letter by its President to the

Chairman, ICC.

9 The draft minutes of the Working Committee purportedly dated 22

August 2016, a copy of which has been placed on the record, are in

tandem with the statement made by Mr Thakur on affidavit. Prima

facie, it appears that the draft minutes were not before Mr Shetty when

he made a statement on behalf of BCCI in his response to the status

report. If the draft minutes were before him, it would be natural to

assume that the disclosure which has now emerged in pursuance of the

Page 11 11

order of this Court dated 7 October 2016 would have been contained in

the response submitted by Mr Shetty to the status report. Mr Shetty has

stated that the response filed by BCCI to the status report was based on

information derived from the records. If that be so, the purported draft

minutes of the Working Committee could not have missed his attention

or knowledge.

10Be that as it may, it is a matter of serious concern that the

President of BCCI, even after the declaration of the final judgment and

order of this Court dated 18 July 2016, requested the Chairperson of ICC

for a letter “clarifying” (as he states) the position which he had taken as

BCCI President to the effect that the induction of a CAG nominee would

amount to governmental interference and may result in BCCI being

suspended from ICC. There was no occasion for the President of BCCI

to do so once the recommendation of the Committee for the induction of

a CAG nominee was accepted in the final judgment of this Court. In the

judgment of this Court dated 18 May 2016, this Court observed as

follows:-

“77. There is, in our view, no basis for the

argument that any measure taken by the BCCI on

its own or under the direction of a competent court

specially when aimed at streamlining its working

and ensuring financial discipline, transparency and

accountability expected of an organization

discharging public functions such as BCCI may be

seen as governmental interference calling for

suspension/derecognition of the BCCI. Far from

Page 12 12

finding fault with presence of a nominee of the

Accountant General of the State and C&AG, the

ICC would in our opinion appreciate any such step

for the same would prevent misgivings about the

working of the BCCI especially in relation to

management of its funds and bring transparency

and objectivity necessary to inspire public

confidence in the fairness and the effective

management of the affairs of the BCCI and the

State Associations. The nominees recommended by

the Committee would act as conscience keepers of

the State Association and BCCI in financial

matters and matters related or incidental thereto

which will in no way adversely impact the

performance or working of the BCCI for the

promotion and development of the game of cricket.

The criticism levelled against the

recommendations of the Committee is, therefore,

unfounded and accordingly rejected”.

11This finding which is contained in the final judgment and order of

this Court binds BCCI. Prima facie, an effort has been made by the

President of BCCI to create a record in order to question the legitimacy

of the recommendation of the Committee for the appointment of a CAG

nominee after the recommendation was accepted by this Court on 18

July 2016. We presently defer further consideration of the action to be

taken with reference to his conduct. Mr Shetty in his response to the

status report claims that the CEO of ICC had “falsely” stated in his

interview that the President of BCCI had requested ICC to issue a letter

stating that the intervention of this Court amounted to governmental

interference. The version of Mr Shetty is at variance to what is alleged

to have been stated by the CEO of ICC. It may also become necessary

Page 13 13

for this Court to assess the veracity of the version of Mr Shetty and that

of Mr Richardson. Mr Shashank Manohar, the then President of BCCI is

presently the Chairman of ICC. A copy of this order shall be forwarded

to him by the Secretary to the Committee in order to enable him to

consider filing a response setting out his version, to set the record

straight and assist this Court. Mr Manohar is at liberty to obtain a report

from Mr Richardson before filing his response.

12During the course of hearing, a grievance has been made on

behalf of BCCI that though in the judgment of this Court dated 18 July

2016, it had been hoped that the process of implementing the reforms

suggested by the Committee “should be completed within a period of

four months or at best six months from today”, the Committee has

hastened the process by indicating timelines for completion even within

the said period. We find that the criticism of the Committee is not

justified for more than one reason. Though this Court expressed the hope

that the process of transition and implementation be completed within

four months or at best within six months, this Court left it open to the

Committee to draw “appropriate timelines for implementation of the

recommendations” and to supervise the implementation thereof. The

Committee which was entrusted with the task of supervising the

implementation process was permitted to lay down suitable timelines.

Page 14 14

The process of implementation requires a continuous process of

monitoring and supervision and it would be only reasonable to assume,

as did the Committee, that the process could not be completed in one

instalment. Hence, the Committee laid down timelines for

implementation.

13Hence, the broad framework of time prescribed by this Court does

not preclude the Committee from specifying timelines. On the contrary,

the Committee was specifically allowed to do so to implement the

judgment. The status report contains a record of proceedings before the

Committee dated 9 August 2016 which indicates that when the first set

of timelines was handed over to BCCI’s Secretary on 9 August 2016,

he stated before the Committee that a report of compliance would be

furnished by 25 August 2016. Despite this, in the report dated 25 August

2016, submitted by the Secretary, BCCI to the Committee there appears

the following statement furnished by BCCI by way of a clarification at

the Working Committee meeting held on 22 August 2016:

“2 The Members queried as regards to the

status of the review petition filed by the

BCCI. It was clarified to the members that

if the review petition as well as curative

petition was dismissed, the

recommendations of the Lodha

Committee, save those as amended by the

court would become binding”.

Page 15 15

14The statement made on behalf of BCCI to the Working Committee

that it was only if the Review Petition, as well as Curative Petition were

to be dismissed that the recommendations of the Committee would be

binding is patently misconceived. The recommendations of the

Committee were endorsed in a final judgment and order of this Court

dated 18 July 2016, subject to certain modifications. The judgment of

this Court has to be implemented as it stands. A party to a litigation

cannot be heard to say that it would treat a judgment of this Court as not

having binding effect unless the Review or Curative Petitions that it has

filed are dismissed.

15For the reasons which have weighed with us in the earlier order of

this Court dated 7 October 2016 and for those which we have adduced

above, we are inclined to take a serious view of the conduct of BCCI in

the present case. Despite the prima facie findings which were arrived at

in the previous order, the further hearing was deferred. There has been

no change in the position of BCCI. The intransigence continues. If

BCCI had any difficulties about adhering to the timelines laid down by

the Committee, the appropriate course would have been to move the

Committee. Even the grievance which was urged during this proceeding

by BCCI, that some of the directions of the Committee have travelled

Page 16 16

beyond the parameters set by this Court can and ought to be urged

before the Committee in the first instance.

16During the course of the hearing, Shri Kapil Sibal, learned senior

counsel appearing on behalf of BCCI has agreed to a course of action

whereby in the first instance, BCCI would establish its bona fides before

the Committee by demonstrating the compliance made by it of those

recommendations which are stated to have been fulfilled. The

Committee as the body appointed by this Court to monitor and supervise

implementation of the judgment will verify whether there has been full

compliance with the directions which are stated by BCCI to have been

fulfilled.

17The President and Secretary of BCCI shall (within two weeks) file

before the Committee on affidavit their statements of the compliance

effected by BCCI thus far of those recommendations which have been

fulfilled. The statement shall contain an elaboration of the manner in

which compliance has been made and the steps proposed to be taken to

fulfil the remaining directions of this Court. The Committee is at liberty

to verify the compliance statements filed on behalf of BCCI by its

President and Secretary. Both the President and the Secretary shall

appear before the Committee in person, and explain the steps taken for

compliance and the course of action to be adopted hereafter.

Page 17 17

18Learned senior counsel appearing on behalf of BCCI has stated

that in respect of some of the recommendations, where state associations

have not agreed to implement the recommendations of the Committee,

as accepted by this Court, BCCI will make a genuine endeavour to

persuade the state associations to effectuate compliance. Though BCCI

is in default and breach of the directions of this Court, in order to enable

it to have an additional opportunity to establish its bona fides and to

secure compliance with the judgment of this Court dated 18 July 2016,

we grant time until 3 December 2016 for the purpose. Besides

complying with the direction set out above of filing statements and

appearing before the Committee, BCCI shall report compliance before

this Court on 5 December 2016.

19For the reasons which have been contained in the present order of

the Court, we are of the view that the issuance of certain additional

directions has become inevitable, over and above those that are

contained in the previous order dated 7 October 2016. We have presently

come to the conclusion that, prima facie, there is substance in the status

report submitted by the Committee. Implementation of the final

judgment of this Court dated 18 July 2016 has prima facie been impeded

by the intransigence of BCCI and its office bearers. However, having

due regard to the submission made on behalf of BCCI that it would

Page 18 18

make every genuine effort to persuade the state associations to secure

compliance with the judgment of this Court, and having regard to the

larger interests of the game of cricket, we are desisting from issuing a

direction at this stage in terms of the request made by the Committee for

appointment of administrators so as to enable BCCI to demonstrate its

good faith and the steps taken for compliance both before the Committee

in the first instance and before this Court by the next date of hearing.

However, certain additional directions are warranted in the interest of

maintaining transparency in the functioning of BCCI, having regard to

the sequence of events after 18 July 2016.

20We accordingly issue the following additional directions:-

(i)BCCI shall forthwith cease and desist from making any

disbursement of funds for any purpose whatsoever to any state

association until and unless the state association concerned adopts

a resolution undertaking to implement the recommendations of the

Committee as accepted by this Court in its judgment dated 18 July

2016. After such a resolution is passed and before any

disbursement of funds takes place to the state association

concerned, a copy of the resolution shall be filed before the

Committee and before this Court, together with an affidavit of the

President of the state association undertaking to abide by the

Page 19 19

reforms contained in the report of the Committee, as modified by

this Court. Any transfer of funds shall take place to the state

associations which have accepted these terms only after

compliance as above is effected. This direction is in addition to

the previous direction of 7 October 2016 in regard to the

disbursement to and appropriation by the state associations;

(ii) (a) The Committee appointed by this Court is requested to

appoint an independent auditor to scrutinise and audit the income

received and expenditure incurred by BCCI; (b) The auditor shall

also oversee the tendering process that will hereinafter be

undertaken by BCCI, as well as the award of contracts above a

threshold value to be fixed by the Committee; (c) The award of

contracts by BCCI above the threshold fixed by the Committee

shall be subject to the prior approval of the Committee; (d) The

Committee shall be at liberty to obtain the advice of the auditors

on the fairness of the tendering process which has been adopted

by BCCI and in regard to all relevant facts and circumstances; (e)

The Committee will determine whether a proposed contract above

the threshold value should or should not be approved; and (f) The

Committee will be at liberty to formulate the terms of engagement

and reference to the auditors having regard to the above

Page 20 20

directions. BCCI shall defray the costs, charges and expenses of

the auditors.

(iii) The President and Secretary of BCCI shall within two weeks

from today file a statement on affidavit indicating compliance

made by BCCI of those of the recommendations of the Committee

which have been complied with, the manner of compliance and

the steps adopted for securing compliance with the remaining

recommendations. They shall appear before the Committee to

explain the manner of compliance. The President and Secretary,

BCCI shall also keep the Committee apprised about the steps

taken pursuant to the statement recorded in paragraph 18 above.

(iv) An affidavit of compliance shall be filed before this Court on

or before 3 December 2016 by the President and Secretary to

BCCI in terms of paragraphs 17 and 18 above; and

(v) The Secretary to the Committee appointed by this Court shall

forward a copy of this order to Mr Shashank Manohar, Chairman

ICC to facilitate the observations contained in paragraph 11 of this

order.

Page 21 21

BCCI shall cooperate with the Committee and with the auditors by

granting, in particular, full access to records, accounts and other

information as required to facilitate implementation of these directions.

21The hearing of the proceedings shall stand over to 5 December

2016.

............................................CJI

[T.S. THAKUR]

................................................J

[A.M. KHANWILKAR]

................................................J

[Dr D Y CHANDRACHUD ]

New Delhi

October 21, 2016