A Division Bench, comprising chief justice Markandey Katju and justice F M Ibrahim Kallifullah, set aside justice K P Sivaubramanian's order that held that the cancellation was 'improper.'
The March 21 order had directed the Board to call for fresh tenders and permitted Zee Telefilms Ltd and ESPN to participate in the fresh tender proceedings.
The Bench held that records clearly demonstrate that there was no concluded contract between Zee Telefilms Ltd and the Board.
Stating that the single judge's remarks that the cancellation was vitiated by arbitrariness and unfair action of the BCCI and Dalmiya in particular, the judges held "these remarks against the BCCI and Dalmiya are unjustified, uncalled for and unsustainable."
The Bench allowed an appeal by the BCCI challenging justice Sivasubramanian's order directing it to call for fresh tenders. The Bench also allowed an appeal by Dalmiya against the single judge's remarks against him. However, it dismissed a third appeal by Zee for a direction to the BCCI to allot the contract for telecasting cricket matches to it in the wake of the single judge's order that the cancellation was improper.
Stating that the cancellation was well within the rights of the BCCI, the judges observed that the decision, taken in a compelling situation, was approved by the Board's marketing committee on September 28, 2004 and by the general body two days later.
Holding that the contract was at the stage of negotiations only, the Bench said from the very draft letter of intent of September 6 last and Zee's letter of September 11, it was evident that the television company itself had understood and accepted that there was no concluded contract.
On Zee's charge that after it came out the highest bidder with $260 million for telecasting rights from October 1, 2004 to September 30, 2008 the Board had called ESPN, which had bid $230 million and held negotiations, the judges held that there was nothing wrong in the BCCI holding negotiationswith the first two highest bidders.
Following the talks, ESPN had increased the amount to $308 million and Zee was called and asked to match the amount.
Pointing out that it was well settled law that before any writ could be issued the petitioner had to show that he had a legal right which had been infringed upon, the Bench held that Zee had not been able to show any legal right whatsoever either statutory or contractual.
The judges said there was no statute governing the tender process and Article 14 of the Constitution did not apply as the Supreme Court had held that the BCCI was not a state under Article 12 of the Constitution.
The Bench said the single judge instead of going into details "should have thrown out Zee's petition" on the ground that there was no contract to enforce.
Holding that the single judge had passed disparaging and intemperate and harsh remarks, the Bench said the language of the court should ordinarily be mild, restrained and moderate.
The single judge had indiscriminately labelled the act of Dalmiya and BCCI as actuated by bias and malpractice although the documents and other material on record totally contradict the assumption on which he had given his finding of bias and malafide, the Bench said.
"In our opinion these findings are based on mere suspicion, surmises and conjectures and cannot be sustained," the judges said adding the single judge could have dismissed Zee's writ petition straightaway without making anyobservations.
"The court must realise that such censorious and vituperative strictures can cause irreparable damage to a person and hence judges must refrain from making them," the Bench held and said the appeals by BCCI and Dalmiya deserved to be allowed.