Questioning Lodha Committee's fresh clarifications, Cricket Association of Bengal (CAB) legal advisor Ushanath Banerjee today pleaded for a review saying it made a clear departure from the earlier stand and misconstrued the order.
In a second set of Frequently Asked Questions put up in its website, the Justice RM Lodha Committee made it clear that former India captain Sourav Ganguly whose name was prominently levelled as the next president, would have to undergo a compulsory cooling-off period of three years after competing three years at the state association as secretary and president.
It was also clarified that total tenure in cricket administration (state+BCCI) will be nine years cumulative and not 18 years as it was mentioned earlier.
"Having highest respect towards the Hon'ble Supreme Court Committee and their valued decision making processes, with utmost humility, I believe that such fresh modus as informed on January 12, 2017 is not merely a complete departure from the prudent stand of qualifying the "disqualifications", but also misconstruing the expression "OR" in the solemn order of January 3, 2017 of the Hon'ble Apex Court.
"I would humbly state that construing the word "OR" as "AND" is misreading resulting severe adverse implication," Banerjee, who was the Board's legal advisor for 16 years during 1989-2005, wrote in his statement to PTI.
"As a law student, I'm unable to grasp how could the honourable Committee consisting one of the most respected former Chief Justice of India and esteemed honourable Judges of the Apex Court could arrive at such decisions-making making process?" the senior advocate of Government of West Bengal asked.
"I feel that reasonableness in the decision making process is of utmost necessity and imperative."
"Based on the order dated January 3, 2017 of the Hon'ble Apex Court, the Hon'ble Supreme Court Committee has now completely overturned the entire modus claiming that nine years cumulative period would include 'both the period as office bearer/councillor of the State Association as well as of the BCCI', having far reaching consequences."
"While the Hon'ble Apex Court by virtue of powers under Article 142 of the Constitution is empowered to pass any overreaching biding order so as to provide "complete justice" and the same must be faithfully complied with and observed without an iota of disrespect, but exercise of such power has to be used sparingly, but in my humble and respectful view, such order cannot be passed under the garb of "an inadvertent error" requiring modification/correction, he said.
"While the Hon'ble Supreme Court Committee has observed that "Position has been now altered" in view of the order dated January 2, 2017 as amended by the order dated January 3, 2017, I am unsure as to how could a Judgement and Order (July 18, 2016) passed by the Hon'ble Highest Court of the Country which attended "finality" since rejection of the Review Petition, could be either modified or altered or changed subsequently and that too without going through the rigmarole of required process by a separate findings of the Hon'ble Bench after detailed hearing of the parties?" he asked.
He further wrote:"No sooner a Judgement and order of the Hon'ble Supreme Court attends finality, everyone in the Country is duty bound to ensure strict faithful compliance of the same, irrespective of the same being liked or disliked by anyone."
"Any mode of disrespect to the order or obstructive or disruptive attitude or misconstruing approach is impermissible, apart from being gross contemptuous.
"I most humbly feel that while making correction of inadvertent error on January 3, 2017, the Hon'ble Apex Court did not pass any "new" or "fresh" or even "altered" Order than that of the order dated July 18 2016 and there has been misreading of the said corrections by construing word "OR" as "AND" and impliedly including 'conjointly'."
Pleading for a review, he stated: "As the effect of reading "OR" as "AND" would have far reaching consequences in entire administration of the discipline of the Cricket, I feel that the Hon'ble Supreme Court Committee would be extremely gracious to review the subject in the larger interest of reasonableness and equity."
He further referred to the "Cooling-off" period, saying both in the recommendations as well as in the solemn order dated July 18, 2016 and reiterated in the order dated January 2, 2017 it has been expressly recorded that the "no person shall hold or be entitled to any Post or Position for "two consecutive" terms, i.E. To contest a succeeding election, without undergoing a "Cooling-off" period of the Term.
"With humility, such modus could only be reasonably applicable following proper 'elections' subsequent to effecting the "amendments of the Constitutions" and not prior thereto.
"While in respect of disqualification after completion of cumulative period "nine years", emphasis has been given to the effect that "regardless of the capacity in which such position "was" or "is occupied" (that is to say retrospectively), no such importance or stress has been provided for "Cooling-off" period and on the contrary expressions "shall hold" have been provided, which mean "prospective" only and not retrospective.
"Once by the solemn order of the Hon'ble Supreme Court dated July 18, 2016 the recommendations as then expressly provided for have been accepted and directed to be complied with, any subsequent deviation in the form of clarification or addition, in my humble and respectful view is misplaced and may not be appropriate, primarily when such deviations would have far reaching effects and consequences.
"I feel that reasonableness in the decision making process is of utmost necessity and imperative," he added.
