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The petitioners who are challenging the appointment of the Interim Committee are true members of the ex-co and were not nominees to their posts Mr. K. N. Choksy PC, their senior counsel told the Court of Appeal yesterday.

He was winding up his submissions in the Cricket Board case where eight members who were not injunct by the District Court are challenging the appointment of the Interim Committee by Sports Minister S. B. Dissanayake to oversee the Cricket Board functions, Mr. Choksy was referring to the objections filed by Solicitor General K. C. Kamalsabeyson PC appearing for Minister Dissanayake that the eight members referred were only nominees to the ex-co and not elected members.

Mr. Kamalasabeyson said that it was a threshold issue on which he would be making submissions. Mr.Choksy maintained that the petitioners are persons elected by the representative bodies and that the only nominees were those appointed by the minister. His clients were elected by an electoral college like in the USA, Mr. Choksy stated after explaining to court the mechanism electing ex-co members to the BCCSL.

Justice Yapa: But in the US they are not elected by a show of hands.

Mr. Choksy: That is one of the draw facts we have.

Mr. Choksy said: The minister cannot suspend an association of sports at his own whim and fancy. There has to be a fault or failure on the part of Board Members, to do this. Section 32 states this can be done in case of malpractice irregularities and inactivity. ``There has to be a fault or some misdemeanour. But such a situation is absent in this case'. Counsel submitted he said trader's licences can be cancelled only if he acts in breach of the conditions.

Similarly the Minister can cancel or suspend a Sports Association only if it is at fault or due to inactivity. Here the ex-co could not be active since its hands were tied by the District Court order. Therefore the Minister acted ultra vires by appointing the Interim Committee.

``If the Minister was of the view that because of the pending case he can not suspend the Board, then he can not proceed to appoint the Interim Committee.

``On the other hand despite the court order the thinks it is within his powers to do so it is open for him to suspend or cancel the Board which he had not done.

Justice Kulatunga: If he acted under Section 32 what would be the impact.

Mr. Choksy: Then he cannot act on one of he specified grounds i.e. malpractice, inactivity and failure. There is no malpractice and in any case the minister has to give them notice of an inquiry which is not the case. There also cannot be failure because even if the ex-co wanted to function they could not do so being debarred by the District Court order.

The only remedy is for the Minister was to act under regulation 41 empowering the eight member ex-co to function without hinderance or in the alternative to legislate in Parliament for a change in the Sports Law. Mr. Choksy also took objection to certain contents in the affidavits of the 2nd respondent Interim Committee Chairman Rienzie Wijetilake in which it was stated that former President Thilanga Sumathipala had drawn a cheque for Rs. 1 million in favour of the instructing Attorneys to the petitioners and also to a reference to the effect that the salary of Chief Executive Dhammika Ranatunga was increased from Rs. 30,000 to Rs. 80,000.

Mr. Choksy stated that Mr. Sumathipala was not a party in the present case and that the Rs. 1 million never reached the instructive Attorney as cheque drawn in his favour on the Board Account of the Hatton National Bank of which the 2nd respondent was chairman had been held back. There is also no mention as to when this cheque was made out whether it was before the 30th March, the date of the AGM.

He also said that the so-called salary raise of the CEO took place in January '99 and had no relevance to this case.

Counsel prayed for a writ of certiorari for quashing the appointment of the Interim Committee.

The Bench comprised Justices Hector S. Yapa and P. H. K. Kulatilaka

The petitioners are Anura Weerasinghe, Shammi Silva, Jayananda Warnaweera, Kamal Dharmasiri and B. S. Perera, office-bearers and members of the BCCSL ex-co elected at the Board AGM of 28th March 1999.

They have cited Minister of Samurdhi, Youth Affairs and Sports S. B. Dissanayake, Rienzie T. Wijetilleke, Chairman Interim Committee, Michael Tissera, Sidath Wettimuny, Asantha de Mel, S. Skandakumar, Gehan Siribaddana, Upali Kumarasiri and Dhammika Ranatunga as respondents.

Solicitor General K.C. Kamalasabeyson PC appeared with State Counsel Uditha Egalahewa for the first respondent, Sports Minister S.B. Dissanayake.

President's Counsel K.N. Choksy with Messrs L.C. Seneviratne PC, S.L. Gunasekera, Ronald Perera instructed by M/s Paul Ratnayake Associates appeared for the petitioners.

President's Counsel Ikram Mohamed with Messrs. Shammil Perera and Thisath Wijegunewardena instructed by M/s Julius and Creasy appeared for the second to sixth respondents.

The case will come up again on September 10.