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2011 (1) TMI 707 - HC - Indian LawsClassification of exporters into member exporters and registered exporters - Writ petition against AEPC even if AEPC is not state - Held that - when a private body exercises its public functions even if it is not a State the aggrieved person has a remedy not only under the ordinary law but also under the Constitution by way of a writ petition under Article 226. Regarding appeal before Company Law Board (CLB) - Held that - the challenge to the validity of the Membership Regulations cannot be raised before the CLB in a petition before the CLB under Section 111 of the CA. Distinction between Registered Exporters and Member - Held that - the Regulations of Membership made by the AEPC to the extent they are inconsistent with the Exim Policy are unconstitutional and ultra vires para 13.8 read with para 13.7 of the Exim Policy (effective from 1st April 1997 to 31st March 2002). They are accordingly struck down as such. Any further amendments made to the AOA of the AEPC to bring about the classification of exporters into member exporters and registered exporters granting them different rights and privileges will stand invalidated for the above reasons.
Issues Involved:
1. Restoration of the petition. 2. Distinction between 'registered' exporters and 'member' exporters by AEPC. 3. Validity of AEPC's Membership Regulations. 4. Maintainability of writ petition under Article 226 against AEPC. 5. Validity of AEPC's regulations under the Exim Policy. 6. Relief sought by the petitioners. Detailed Analysis: 1. Restoration of the Petition: The court allowed CM APPL. No. 10922/2010 for restoration, restoring the petition to its original number and disposing of the application. 2. Distinction between 'Registered' Exporters and 'Member' Exporters: The petitioners sought to restrain AEPC from making any distinction between 'registered' exporters and 'member' exporters, challenging the Articles of Association (AOA) and Rules and Regulations of AEPC that created such classifications. They also sought to invalidate the elections to the Executive Committee (EC) of AEPC for 1998-99 due to this classification. 3. Validity of AEPC's Membership Regulations: The court examined the Membership Regulations of AEPC, which created two classes of exporters: those eligible to vote and those who were not. The court found that the AEPC persisted with two classes of exporters even after a previous court judgment in 1983 had struck down such distinctions. The court ruled that AEPC's Membership Regulations, particularly Regulation 1(d), which required a minimum export performance of Rs. 20 lakhs for membership, were ultra vires the Exim Policy and violated Articles 14 and 19(1)(g) of the Constitution. 4. Maintainability of Writ Petition under Article 226 Against AEPC: The court overruled the preliminary objection that AEPC was not a 'State' under Article 12 of the Constitution and hence not amenable to a writ petition under Article 226. The court cited the Supreme Court's decision in Zee Telefilms Limited, which acknowledged that bodies performing public duties could be subject to writ jurisdiction under Article 226. 5. Validity of AEPC's Regulations Under the Exim Policy: The court held that AEPC, being a body created under the Exim Policy, must adhere to its provisions. The Exim Policy envisaged that upon registration, an exporter becomes a member of the AEPC. The court found that AEPC's Membership Regulations, which created a distinction between 'registered' and 'member' exporters, were inconsistent with the Exim Policy and therefore invalid. 6. Relief Sought by the Petitioners: The court struck down AEPC's Membership Regulations to the extent they were inconsistent with the Exim Policy. However, the court clarified that this judgment would have only prospective effect and would not invalidate past elections to the EC of AEPC. Future elections would be held based on Membership Regulations consistent with the Exim Policy. Conclusion: The writ petition was allowed, and the court declared AEPC's Membership Regulations creating distinctions between 'registered' and 'member' exporters as unconstitutional and ultra vires the Exim Policy. The court awarded costs of Rs. 5,000 to the petitioners, to be paid by AEPC within four weeks.
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