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2007 DIGILAW 1608 (SC)

Veneet Agrawal v. Union of India

2007-10-31

ASHOK BHAN, V.S.SIRPURKAR

body2007
judgment BHAN, J. — 1. This judgment shall dispose off Civil Appeal No. 2565 of 2005 directed against the judgment of the High Court of Bombay in Writ Petition No. 1414 of 2004 dated 29.06.2006 and Civil Appeal No. 7574 of 2005 directed against the judgment of the High Court of Uttaranchal at Nainital in Civil Misc. Writ Petition No. 606(M/B) of 2002 dated 17.10.2003. The point involved being the same, the appeals are disposed off by a common order. 2. By the impugned judgments, the High Court of Bombay and Uttaranchal have upheld the vires and constitutionality of SEBI (Stock Brokers and Sub Brokers) Rules and Regulations, 1992 (for short “the Rules & Regulations of 1992). The facts are taken from Civil Appeal No. 2565 of 2005. Although in the writ petition several other points were also taken but at the time of argument before the High Court, the learned counsel appearing for the writ petitioners confined his submissions to the question of vires of the rules and regulations only. 3. Principal challenge to the Rules & Regulations of 1992 is based on the contention that the Rules & Regulations were not laid before each Houses of the Parliament as mandated by Section 31 of the Securities and Exchange Board of India Act, 1992 (for short “the Securities and Exchange Act). It will therefore be essential to reproduce Section 31 of the said Act as the entire argument is placed on the requirement of the said Section. It will therefore be essential to reproduce Section 31 of the said Act as the entire argument is placed on the requirement of the said Section. Section 31 reads as under: “Rules and regulations to be laid before Parliament.—Every rule and every regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule of regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.” 4. SEBI is a regulatory body which has been established under the SEBI Act with the objective of protecting the interest of investors in the securities and of promoting the development of and to regulate, the securities market and for matters connected therewith or incidental thereto. Under Section 29 of the SEBI Act, the Central Government is empowered to frame rules for carrying out the purposes of the Act. Under Section 30 of the SEBI Act, the SEBI is empowered to frame regulations consistent with the SEBI Act and the rules made thereunder to carry out the purposes of the Act. Section 31 of the SEBI Act, however, provides that every rule and regulation made under the Act would be required to be laid before each House of the Parliament, while it is in session, for a total period of 30 days which may comprise in one session or two or more successive sessions. It is further provided therein that if after such laying, both the houses agree that the rules/regulations should not be made then the same would be of no effect. In case, if both the Houses agree in making any modification in the said rules or regulations, then the rules or regulations shall have effect only in such modified form. It is further provided therein that if after such laying, both the houses agree that the rules/regulations should not be made then the same would be of no effect. In case, if both the Houses agree in making any modification in the said rules or regulations, then the rules or regulations shall have effect only in such modified form. However, any such modification or annulment shall be without prejudice to the validity of any act previously done under that rule or regulation. 5. Before proceeding further, it may be mentioned that under Regulation 10 of the SEBI Act, 1992, the Registration fee is levied on the annual turnover of the stock brokers and sub brokers. Levy of turnover fee as well as the vires of Regulation 10 was challenged in different high courts by filing writ petitions soon after the said regulation came into force. In a transfer petition filed by the SEBI before this Court for consolidating the said cases, this Court had transferred one such petition from the Bombay High Court to this Court while staying the other cases pending before the various high courts. After hearing the said case, this Court upheld the vires of Regulation 10 of SEBI Regulation as well as the levy of turnover fee. This Court while deciding the said case, had also taken into consideration the “Bhatt Committee report” which had been submitted by an expert committee constituted by SEBI to examine the issue of turnover fee. This is reported as 2001 (3) SCC 482 , BSE Brokers Forum, Bombay and others V. SEBI.1 On the basis of the judgment rendered by this Court, all other similar writ petitions pending in the various high courts were disposed off. Having failed in their challenge to the levy of turnover fee, the brokers and sub brokers have been repeatedly filing petitions on one or other grounds while their actual grievance is the turnover fee imposed by the Regulation 10 which has been upheld by this Court. In the writ petition from which the present appeal arises, similar attempt has been made. 6. In the present case, rules and regulations in question were laid on the table of the Lok Sabha on 27.11.1992 while on the table of the Rajya Sabha on 16.12.1992. In the writ petition from which the present appeal arises, similar attempt has been made. 6. In the present case, rules and regulations in question were laid on the table of the Lok Sabha on 27.11.1992 while on the table of the Rajya Sabha on 16.12.1992. The copies of the proceedings in both the Houses showing the tabling of the said rules and regulations in both the Houses have been annexed. Both the Houses were adjourned sine die on 23.12.1992 and later on prolonged. New session of both the Houses of Parliament started on 22.2.1993. It is submitted on behalf of the appellant that the rules and regulations in question are ultra vires on the ground that they were not laid before both the Houses for a total period of 30 days, as required under Section 31. 7. It is submitted on behalf of the appellants that all the proceedings pending in both the Houses lapsed after the adjournment of the House sine die and since the rules and regulations were not re-laid either in the Lok Sabha or in the Rajya Sabha after the calling of the new session, the procedure mandated under Section 31 of the SEBI Act was not complied with. It is also submitted that, for these reasons the rules and regulations were illegal and ultra vires of the SEBI Act as also the provision of the Constitution of India and consequently all the actions, orders and directions issued by the respondent against the petitioner under the said rules and regulations were illegal and liable to be quashed. 8.It is important to mention here that the laying of the rules/regulations framed under a particular statute for a specific period which that particular statute may warrant is governed by the Rules of Procedure and Conduct of Business in Lok Sabha given in Parliamentary Procedure Volume 2, page 1107. The Rule 234 of the said Rules which is relevant in the present case is reproduced hereunder:- “Rule 234. Laying of Regulations, Rule etc. on table: (1)Where a regulation, rule, sub rule, bye laws etc. The Rule 234 of the said Rules which is relevant in the present case is reproduced hereunder:- “Rule 234. Laying of Regulations, Rule etc. on table: (1)Where a regulation, rule, sub rule, bye laws etc. framed in pursuance of the Constitution or of Legislative functions delegated by parliament to a subordinate Authority is laid before the House, the period specified in the Constitution or the relevant Act for which it is required to be laid shall be completed before the House is adjourned sine-die and later prorogued unless otherwise provided in the constitution or the relevant Act (2)Where the specified period is not so completed, the regulation, rule, sub rule, bye law etc. shall be re-laid in the succeeding session or sessions until the said period is completed in one session.” 9. From the perusal of the above mentioned rule, it is clear that Rule 234 (1) is applicable in the facts and circumstances of the present case. Wherever the period required to be completed under the statute under which a rule or regulation may have been framed has to be completed in one session only, sub clause 2 of Rule 234 would not apply. In the present case, the rules and regulations in question have been framed