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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 ..... hat too, a non-judicial member is functioning as on today would not hold water as the Appellate Tribunal is functioning as on today and discharging its functions as per law. Any rule has to be read meaningfully and what is applicable to two members is applicable to one member. It is a necessity which has to be accepted. It is an admitted fact that, a number of appeals have been filed before the Appellate Tribunal and the same are heard and orders passed. Whether alternative remedy of appeal as provided in Act 15 of 1992 is a bar to entertain these writ petitions - Held that:- On a perusal of the Act and the Rules made thereunder, it is a considered view that a fully-fledged appeal is provided under the Act, that too, with member having s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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, 1992. Further as per Section 15-T(3), 45 days time has been provided to file an appeal before the Appellate Tribunal. According to him, the Tribunal as on today, is functioning with a non-judicial member. He adds that a number of appeals have been filed before the Tribunal and the same are being heard and disposed of. He has also in this connection refers to the notification of the Government dated 05.12.2011 issued by the Government of India, Ministry of Finance, Department of Economic Affairs, issued in respect of sittin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 agitated only before this Court and not before the Tribunal. According to him, as per Section 15(i) of the Act, 1992, no enquiry has been conducted by the adjudicating officer and when any order has been passed in violation of Section 15(i), then such an order is deemed to be an order passed by the Board without jurisdiction and as it goes to the root of the matter, alternative remedy is not a bar and the writ petition is very much maintainable. He also refers to Section 15(k) and 15(l) of the Act 15 of 1992 to contend that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner. Therefore, when the Act prescribes constitution of the Tribunal with three members, the same cannot function with one member, that too, a non-judicial member. Therefore according to him, filing of writ petitions is the only remedy available and the same is maintainable. 9. I have heard the rival submission carefully with regard to facts and citations. 10. Admittedly, these two writ petitions have been filed challenging the orders passed by the respondent SEBI under Sections 11 and 11(b) of the Act 15 of 1992 against the company as well as Mr. A. Venkatramani, the promoter. As against that, an appeal has to be filed before the Appellate Tribunal. Further Section 29 of the Act, 1992, enables the Government to make Rules for carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances, 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 the learned counsel appearing for the writ petitioner in W.P.No.1214 of 2013: (1) L. Chandrakumar (supra) wherein, the Hon'ble Supreme Court held that jurisdiction conferred on the High Courts under Article 226/227 of the Constitution of India is a part of the basic structure of the Constitution and therefore the decisions of the Tribunals created under Article 323A and 323B will be subject to scrutiny before a Division Bench of the High Court. (2) In Whirlpool Corpn. (supra) the Hon'ble Supreme Court has held as follows: "14. The power to issue prerogative writs under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany Law Tribunal (NCLT) taken over the functions of the High Court, the members should as nearly as possible have the same position and status as High Court Judges. Therefore only officers who are holding the ranks of Secretaries or Additional Secretaries alone can be considered for appointment as Technical member of NCLT. Therefore the clauses (c) and (d) of sub-section (2) and clauses (a) and (b) of sub-section (3) of Section 10FD of the Companies Act, 1956 is invalid and the Hon'ble Supreme Court further held that Two-Member Benches of the Tribunal should always have a judicial member and whenever any larger or special benches are constituted, the number of technical members shall not exceed the judicial members. (4) In Babu Verg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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