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TMI Blog2013 (4) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order dated 31.12.2012 has been passed by the respondent in both the writ petitions under Sections 11 and 11(b) of the Securities and Exchange Board of India Act, 1992 against the company M/s. Ram Kaashyap Investment Limited and its promoter Mr. A. Venkatramani. 4. When both the writ petitions were taken up for final hearing, the learned senior counsel Mr. Masilamani, appearing for the respondent raised a preliminary objection with regard to the maintainability of these two writ petitions, as they have been filed against the order passed by the Securities and Exchange Board of India (in short Act 15 of 1992). According to the learned senior counsel appearing for the respondent, appeal has been provided under Section 15(T) Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the points raised before this Court. Further he submits that neither the notification issued by the Government nor the rules have been challenged by them, questioning the existence of the Tribunal functioning with one non-Judicial Member. Therefore, he submits that the writ petitions before this Court are not maintainable under Article 226 of the Constitution of India, as there is an alternative remedy available by way of Appellate Tribunal. 6. Per contra, the learned counsel, Mr. Ravi, appearing for the petitioner in W.P.No.1214 of 2013, filed by the company, would submit that when the impugned order has been passed under Section 11(1), 11(2) and 11(4) and when there is a jurisdictional error in the order passed, the same can be agit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 1 3. Union of India v. R. Gandhi [2010] 5 SCL 142 (SC) 4. Babu Verghese v. Bar Council of Kerala [1999] 3 SCC 422 8. Mr. R. Gandhi, the learned senior counsel appearing for the petitioner in W.P.No.1292 of 2013, the promoter, would reiterate that having a single non-judicial member in the Tribunal would be of no avail to anyone as question of complexity could never be dealt with by him. He further adds that when the statute prescribes a thing to be done in a particular manner, it shall be done in such a manner only and not in any other manner. Therefore, when the Act prescribes constitution of the Tribunal with three members, the same cannot function with one member, that too, a non-ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners is a competency of a single member Appellate Tribunal which is not the issue in the writ petition. Both the petitioners have not challenged nor questioned the functioning of the single member Appellate Tribunal. The issue raised before him is that whether alternative remedy of appeal as provided in Act 15 of 1992 is a bar to entertain these writ petitions. On a perusal of the Act and the Rules made thereunder, I am of the considered view that a fully-fledged appeal is provided under the Act, that too, with member having special and technical knowledge in the relevant field. In such circumstances, I do not find any reason to waive on the appeal remedy and to entertain the writ petition. 12. Let me refer to the judgments relied on by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field." (3) The unreported Judgment dated 11.05.2010 (cited supra) the Hon'ble Supreme Court held that as the National Company Law Tribunal (NCLT) taken over the functions of the High Court, the members should as nearly a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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