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TMI Blog2010 (9) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the decisions of Respondent No. 1 dated November 9, 2009 relating to three orders of the Committee; c. The Hon'ble Court be pleased to issue a writ of certiorari or any other writ, order or direction in the matter thereof quashing the decisions/orders dated 9th November, 2009 and 02nd February 2010; and Order dated 22.6.2010 of the Securities Appellate Tribunal, Mumbai in Appeal No.21 of 2010; d. The Hon'ble Court be pleased to declare that the decisions of Respondent No. 1 dated November 9, 2009 relating to three orders of the Committee and the orders of the Board of Respondent No. 1 dated 02 nd February, 2010 as non est; e. The Hon'ble Court be pleased to issue a writ of mandamus or any other writ, order or direction in the matter thereof directing Respondent No. 1 to implement the orders issued by the Committee; f. The Hon'ble Court be pleased to declare that the opinion opined by Mr. C. Achuthan is biased as he is a Director on Board of National Stock Exchange of India Limited, a SEBI regulated entity and which is the promoter and major shareholder of NSDL; g. The Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biased person, to clothe with the power of review or relook as obtainment of a biased opinion was fundamentally an eye-wash. The learned senior counsel further submitted that the petitioner organisation which is dedicated and devoted to the social cause has felt obliged to arouse the judicial conscience of this Court under Article 226 of the Constitution of India to look into the functioning of the SEBI, the manner, the method and the modus operandi adopted by it to arrive at decisions. Mr. G.E. Vahanwati, the learned Attorney General, combating the aforesaid submissions, urged that the present public interest litigation is a remarkable phenomenon inasmuch as an attempt has been made to unsettle and dislodge the orders which have been passed inter se parties which is unthinkable and inconceivable. The learned Attorney General has submitted that when the respondent No.3 had recused himself at all points of time as the orders and proceedings do clearly reveal, it is unfortunate that a social organization would come up and make unwarranted allegations since mudslinging is impermissible and unallowable in a court of law. It is his further submission that if this kind of writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. That apart, except making a bald allegation we perceive nothing how the respondent No.3 is disqualified to hold the post. In fact, on a query being made, the learned senior counsel candidly admitted that he is not really challenging the appointment of the respondent as the chairman of SEBI. To put it differently, it is beyond the scope of writ of quo warranto. Thus understood, the hub of the matter is whether this Court should entertain a public interest litigation of this nature and direct an enquiry to be conducted by a third party agency with regard to the activities of the SEBI. On a perusal of the proceedings it is luminescent that the respondent No.3 has recused and constituted a committee. Hence, he had, in actuality, recused himself from the initial stage. A submission has been canvassed by the learned senior counsel for the petitioner that though the respondent No.3 had recused himself yet he had taken care to see that the interest of the NSDL is protected inasmuch as all officers do report to him. The Chairman of an institution, if we allow ourselves to say, has a dual role. When he functions as the administrative authority all officers are expected to be guided by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to say, such an order is assailable in appeal before the Supreme Court under Section 15Z of the Act. In this context, we may profitably quote a passage from L. Chandra Kumar v. Union of India and others, AIR 1997SC1125 wherein the Apex Court has held thus - 99. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the exclusion of jurisdiction clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/221 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained public interest litigations where the collective good, environment pollution, matters relating to right to life under Article 21 of the Constitution, etc. are sought but when question of the present nature arises, as the learned Attorney General would submit, is an attempt, an endeavour, a deliberate and calculated effort to create a concavity and crack in the functioning of the institutions. The same is not permissible. We cannot grant, despite our best efforts, a liberty to the petitioner organization which has pleaded that it is committed to the cause of poor and cause of the people in plight when allegations have been made painting others by ascribing dis-reputation to them and causing a dent in the functionalism in the institutions. The said attempt can be compared to one building a castle in Spain. If such kind of public interest litigations are entertained, we are afraid, the people who really need the intervention of the court will be kept at bay. The registered society might have nurtured an ambition to bring a litigation of this nature but there is an old saying ambition must be combined with acceptance . The petitioner-society has not accepted its limitation and cr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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