Besides, the Board of Control for Cricket in India (BCCI), as a public body, had acted arbitrarily while discharging its duty and violated a central vigilance commission(CVC) direction, stating that during the grant of contracts, discussions should not be held with the second highest bidder, senior advocate Harish Salve claimed in the Madras High Court.
Arguing on behalf of 'Zee Telefilms India Pvt Ltd', on a petition filed by the firm, challenging the Board's decision to cancel the tender process after it came out the successful bidder, Salve pointed out that after his client had quoted the highest amount of $260 million for telecasting cricket matches between October 1, 2004 and September 30, 2008 the Board had called the second highest bidder ESPN-Star Sports (ESS) for discussions. ESS had bid $230 million.
He said Zee was called and asked if it could match $308 million offered by ESS after its meeting, to which it agreed and was told to deposit $20 million within 48 hours. The amount was deposited by wire transfer within the deadline on September 7 last.
Salve contended that the offer was made to the Board due to the insistence of the Board's marketing committee, which said that since Zee was the highest bidder it should be given a chance to raise its offer.
Stating that the CVC had banned post tender negotiations, except in respect with the highest bidder, Salve claimed that the commission issued its guidelines with a view to eradicating corruption in public bodies, as tenders were generally a major source for corruption.
The Board, being a public organisation, was required to plough back the money earned for promotion of the sport and to act with a degree of transparency, he said.
When it was pointed out by the Judge K P Sivasubramanian that post tender negotiations can prove monetarily beneficial, he said 'it may in a few cases but not in the long run.'
Pointing out that ESS had told the Board that its raised offer of $308 million was not the final offer, Salve said if the Board had made it clear that there would be no second chance, then perhaps the sports TV channel may have gone up to even $500 million.
He alleged that the Board was acting in unison with ESSto ensure that the telecasting rights were not bagged by Zee.
On the charge that Zee had attempted to create a fait accompli by depositing the $20million, Salve quoted extensively from a communication sent to Zee by the Board telling it to deposit the amount and later acknowledging receipt of the amount. "It (Board) is now twisting its own minutes around," he alleged.
Defending his client's move to file the petition in Madras High Court, Salve pointed out that since the decision to accept Zee's offer was taken in Chennai it fell under the jurisdiction of Madras High Court.
Referring to the Board's claim that the Madras High Court did not have the jurisdiction to hear the petition, he said if the Board's claim that it did not carry out any business in Chennai was true, then it would have to handover its property in the city to the state authorities and quit.
Stating that Zee was not questioning the Board's right to cancel the process but the arbitrary manner in which it was effected, he charged that a foreign evaluator Price Water, which was among those incharge of evaluating the tender, had suppressed the fact from the board that ESPN was one of itsclients.
Zee, being the only private Indian TV telecasting cricket matches, had the viewers interests at heart and had committed to telecast international cricket and domestic matches, he claimed.