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TMI Blog1999 (10) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... Bye-laws have to be approved by the SEBI and also by the Central Government, which can also direct carrying out of amendments. The SEBI can nominate upto three members on the Governing Board of the Exchange. Under section 11 of the said Act, the Central Government can supersede the Governing Board of the Exchange and under section 12, it can suspend all the business of the Exchange. Under section 22 of the said Act, an appeal lies to the Central Government, against refusal to list securities of public companies. The SEBI is fully empowered to conduct enquiries into the affairs of the Exchange, Governing Board and its members. 4. Under section 11 of the Securities and Exchange Board of India Act, 1992, the SEBI can regulate the business and the functions of the Exchange, its Governing Board and the members of the Exchange. Under sections 16, 17 and 18 of the SEBI Act, the Central Government has total control over the SEBI. Even the appointment of the Exchange s Executive Director has to be approved by the SEBI. 5. Shri Ramabhadran, the learned counsel for the respondent No. 2, has relied on the following judgments, to contend that no writ under article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erforming public duty. Second judgment relied upon was from this Court, in Mrs. Sejal Rikeen Dalal v. Stock Exchange AIR 1991 Bom. 30, by Mrs. Justice Sujata Manohar, J., as she then was. 8. In Mrs. Sejal Rikeen Dalal s case ( supra ), this Court was dealing with the issue whether a writ would lie against Stock Exchange, Bombay in the sense whether it is amenable to the writ jurisdiction under article 226. This Court in the said judgment has referred to some of the recent judgments, rules, bye-laws and regulations of the Bombay Stock Exchange which are statutory bye-laws approved by the Government of India in the Securities Contracts (Regulation) Act. The rule 4 of the said Rules lays down the main object of the Stock Exchange as under : ". . . To support and protect in the public interest the character and status of brokers and dealers and to further the interests both of brokers and dealers and of the public interested in securities, to assist, regulate and control in the public interest dealings in securities, to ensure fair dealing, to maintain high standards of commercial honour and integrity, to promote and inculcate honourable practices and just and equitable pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to note the judgment of the Supreme Court in Dwarka Nath v. ITO AIR 1966 SC 81. In this judgment the Supreme Court was interpreting the scope of article 226 and has held as under : "This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writ as understood in England; but the scope of those writs also is widened by the use of the expression nature , for the said expression does not equate the writs that can be issued in India with those in England, but only draws as analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under article 226 of the Constitution with that of the English Courts to issue prerogative writs is to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this law, Professor De Smith states: To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract. ( Judicial Review of Administrative Action 4th Edn., p. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found . Technicalities should not come in the way of granting that relief under article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition." (p. 1613) 17. In another recent judgment, the Apex Court in Air India Statutory Corpn. v. United Labour Union [1997] 9 SCC 377 has held as under : "The public law remedy given by article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority , within the meaning of article 226 of the Constitution. What is material is the nature of the statutory duty placed upon it, and the Court is to enforce such statutory public duty." 19. In another case of the Supreme Court in Engineering Mazdoor Sabha v. Hind Cycles Ltd. AIR 1963 SC 874 it has observed as under : ". . . Article 226 under which a writ of certiorari can be used in an appropriate case, is in a sense, wider than article 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the orders of Courts or Tribunals. Under article 226(1), an appropriate writ can be issued to any person or authority, including inappropriate cases any Government, within the territories prescribed. Therefore, even if the arbitrator appointed under section 10A is not a Tribunal under article 136 in a proper case, a writ may lie against his award under article 226. . . ." (p. 881) 20. In an earlier judgment of our High Court in Corporation of the City of Nagpur v. Nagpur Electric Light Power Co. Ltd. AIR 1958 Bom. 498, it is held as under : "47. As pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld fetch Rs. 1.50 crores in auction. 25. The Mumbai Stock Exchange informed the petitioner by its letter dated 2-8-1999, that the Governing Board at its meeting held on 29-7-1999 had decided that the Full Bench of the Arbitration Committee would consider petitioner s appeal, provided she deposited a sum of Rs. 50 lakhs. 26. The petitioner by her letter dated 4-8-1999, again made a fervent plea for total exemption, in view of her precarious financial condition. The Board at its meeting held on 12-8-1999, agreed to a condition that the petitioner should deposit securities worth Rs. 50 lakhs instead of a cash deposit. The Board had also agreed to take into account her deposits lying with the Stock Exchange. 27. At the hearing the learned counsel for the Stock Exchange pointed out that in all cases full amount of deposit is being taken, and in the petitioner s case more than 50 per cent concession has been already given. Over and above, the facility of deposit of securities is also given. He also pointed out that the Membership Cards cannot be sold by a member. 28. The learned counsel for respondent No. 2 has also pointed out that his client has been waiting for the las ..... X X X X Extracts X X X X X X X X Extracts X X X X
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