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TMI Blog2009 (7) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed - W.P. (MAD.) NO. 6090 OF 2009 AND M.P. (MAD.) NO. 1 OF 2009 - - - Dated:- 24-7-2009 - R.S. RAMANATHAN, J. AR.L. Sundaresan for the Petitioner. P.S. Raman, Ms. T.K. Baskaran, K. Govindarajan and Devaraj Ashok. ORDER 1. The above writ petition came up for admission on 14-7-2009 and on being satisfied prima facie about the merits of the case, this Court admitted the writ petition and passed an order of interim injunction. 2. At the instance of the learned Senior Counsel, Mr. P.S. Raman appearing for the 2nd respondent, the matter was listed on 21-7-2009 and the learned Senior Counsel submitted that the petitioner without disclosing that there is a statutory appeal available against the order of the 1st respondent under the Securities and Exchange Board of India Act, 1992 and as per 46 of the Regulation, an appeal lies to the Securities Appellate Tribunal, which is presided over by a retired Judge of the High Court and hence, the writ petition should not have been entertained. 3. The learned Senior Counsel appearing for the 2nd respondent further submitted that he does not want to argue the case on merits as he has not filed any counter affidav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued and without calling for records, the Court should not proceed further, Mr. P.S. Raman, learned Senior Counsel appearing for the 2nd respondent submitted that he has only brought to the notice of the Court about the availability of alternative remedy, which is efficacious and statutorily provided and only on that ground, the writ petition is not maintainable and therefore, irrespective of the issuance of rule nisi, the Court can entertain the plea of the 2nd respondent. 8. Though, this Court admitted the writ petition and issued the rule nisi and also granted injunction, having regard to the nature of the plea that has been made by the learned Senior Counsel Mr. P.S. Raman appearing for the 2nd respondent about the maintainability of the writ petition itself, this Court can go into their aspects and heard the parties about the maintainability of the writ petition on the ground of availability of alternative remedies. 9. I am also fortified by the judgment of the Hon ble Supreme Court in the case of State of Uttar Pradesh v. Uttar Pradesh Rajaya Khanki Vikas Nigam Sangharsh Samiti [2008] 12 SCC 675 wherein it has been held in para 38 that : "True it is that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Jahan Khan AIR 2007 SC 3153; 10. Chemplast Sankar Ltd. v. Appellate Authority 2008 (4) CTC 793; 11. Morgan Stanley Mutual Fund v. Kartik Das [1994] 1 SCL 19 (SC). 11. According to the learned Senior Counsel, the availability of the alternative remedy is only a rule of discretion and not one of compulsion and in proper cases, even in the case of availability of alternative remedy, the High Court can still exercise its writ jurisdiction in atleast three contingencies. ( i )where the writ petition seeks enforcement of any of the fundamental rights; ( ii )where there is failure of principles of natural justice; or ( iii )where the orders or proceedings are wholly without jurisdiction or the vires of an Act. 12. A perusal of those judgments, no doubt would make it clear that the availability of alternative remedy is not a bar for invoking the writ jurisdiction of this Court and in proper cases, the High Court can entertain the writ petition if there is violation of three principles as stated above. 13. According to the learned Senior Counsel appearing for the petitioner, Mr. AR. L. Sundaresan, in this case there is violation of principles of natural ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r representation dated 25-4-2009 wherein he has narrated how the price is fixed by the 1st respondent is not proper and the 1st respondent ought to have fixed the price at Rs. 160 per share. 20. The petitioner has also submitted a letter dated 7-5-2009 to the 1st respondent. According to the learned Senior Counsel for the petitioner that he made his submissions before Mr. Sharma and the 6th respondent, who passed the impugned order did not hear him and without hearing him, the 6th respondent has passed the order. Therefore, there is violation of natural justice. 21. It is seen from the various correspondence sent by the petitioner that he informed the 1st respondent that he would attend the personal hearing with his lawyers and on 4-5-2009 his submissions were heard by Mr. Santhosh Kumar Sharma and he was permitted to make his submission in the presence of his lawyers. Further, it is admitted by the petitioner in his letter dated 7-5-2009 that the petitioner was also informed about the response to the complaint of the petitioner made by the ICICI Securities Limited and Mr. Sharma informed the petitioner that the 1st respondent had examined the various issues highlighted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns made by the petitioner. Hence, the argument of the learned Senior Counsel, Mr. AR.L. Sundaresan for the petitioner that the principles of natural justice was violated in this case and therefore, the writ petition is maintainable cannot be accepted. 26. The learned Senior Counsel, Mr. P.S. Raman, appearing for the 2nd respondent, relied upon the judgment of the Hon ble Supreme Court in AIR 1957 SC 882 in the case of Union of India v. T.R. Varma wherein, it has been held "It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ. But the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefor. 27. He further relied upon the judgment of the Hon ble Supreme Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Act, 1992, further appeal is provided only to the Hon ble Supreme Court against any decision rendered by the Securities Appellate Tribunal and therefore, when the statute provides appeal remedy and further appeal to Hon ble Supreme Court, it is not open to the petitioner to ignore those appeal remedy and seek remedy on the ground that the appeal remedy provided under the Act is not efficacious or effective alternating remedy. 30. The learned Senior Counsel further submitted that the petitioner was not fair to the Court and in the affidavit, he has not stated that there is an appeal remedy available under Regulation 46 and despite that he is invoking the jurisdiction of this High Court as there was violation of principles of natural justice. The petitioner has only stated in the affidavit that the petitioner is left with no other alternative or effective remedy and hence, approached this Court. 31. It is a fact that the petitioner has not stated in the affidavit about the availability of appeal remedy. It is also a fact that this Court was not informed about the Regulation 46, by which, the appeal is provided against the order of the 1st respondent. I must also admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice. We may add that where the proceedings themselves are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 17. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain v. ITO 1970 (2) SCC 355 that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies, unless the High Court finds that factual disputes are involved and it would not be desirable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the 1st respondent to take action on the complaint of the petitioner therein, by which he questioned the price fixation of the share by the 1st respondent at Rs. 113.62 and in that writ petition after hearing the parties, this Court has held that having regard to the appellate remedy, the writ petition is not maintainable and it has been held in the above judgment as follows : "9. The prayer in the writ petition is to take action on the complaint preferred by the petitioner dated 21-1-2009. The stand taken by the learned counsel for respondents 1 and 2 is that investigation has been done and a finding has also been given. But the same has not been communicated to the petitioner. Though the learned Senior Counsel for the petitioner relied on Regulation 42 of SEBI Regulations, 1997 to contend that the result of the investigation has to be communicated to the person concerned, but, as rightly contended by the learned Senior Counsel, Regulation 42 only contemplated that the result of the investigation has to be communicated to the acquirer or seller or target company or merchant bankers, as the case may be. As far as the petitioner is concerned, as on date, his status is only as a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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