National

Dalmiya tainted sanctity of tender process: counsel

By Our Staff Reporter

CHENNAI, FEB. 17. The former chairman of the Board of Control for Cricket in India (BCCI), Jagmohan Dalmiya, "tainted the sanctity of the entire tender process" by ensuring cancellation of the tender after Zee Telefilms Limited (ZTL) emerged successful, senior counsel Harish Salve told the Madras High Court today.

Advancing arguments on behalf of ZTL, Mr. Salve submitted that Mr. Dalmiya undermined the tender process by inviting the second highest bidder, ESPN-Star, for post-tender negotiations and permitting it to revise its bid from $230 million to $308 million. It was only at the insistence of the members of the BCCI's marketing committee that ZTL was given a chance to match the re-bid quoted by ESPN, he added.

Describing the cancellation as an "act of favouritism by the then Chairman," Mr. Salve said the present case was not to enforce contractual rights but against the abuse of power by a public body, the BCCI.

He said three factors were in favour of ZTL — the Board had already decided to award the contract to the ZTL; it was the highest bidder; and it had paid an advance of $20 million "as per the agreement." According to him, the entire process was cancelled only "for extraneous reasons and to favour somebody."

CVC circular

He said that a circular issued by the Chief Vigilance Commissioner banned any form of post-tender negotiations, and added that if at all there could be some talks it should be only with the top bidder. "Inviting the second top bidder is inviting corruption. It is a tainted act," Mr. Salve submitted.

Taking "very strong objection" to the BCCI averment that ZTL had created a fait accompli by depositing $20 million and that it was required to pay the sum only after receiving the letter of intent from the Board, Mr. Salve said the ZTL was asked to "pay upfront" 20 million dollars as advance within 48 hours. The agreement specifically stated that the letter of intent would be issued "thereafter." He added: "Had the ZTL not paid the advance within 48 hours it would have been comfortably thrown out of the entire process."

Mr. Salve further submitted that the Madras High Court had the jurisdiction to hear the case as the Board decision to cancel the tender process was taken at a meeting convened in Chennai.

People's right

As for the BCCI contention that televising cricketing events was its private domain, Mr. Salve said a Division Bench of the Madras High Court had already decided that watching cricket was the people's right. The Supreme Court had also ruled that telecasting sports events was the integral part of "public function of a public body" such as the BCCI.

As regards the BCCI justification that the process was cancelled owing to "vexatious litigation by vested interests for unlawful commercial gains," Mr. Salve said it was the ESPN that went to court. For the fault of the ESPN, the ZTL could not be deprived of its rights. "It is legally untenable," he said, adding, "I allege that the ESPN and the BCCI are acting in unison."

Even if the BCCI had the power to cancel the tender process, such power should be used fairly and without any arbitrariness, he said, and added: "This is a classic case for judicial review as the manner in which the public body acted is tainted by favouritism."

Arguments in the matter will continue tomorrow.

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