TaxTMI 
TaxTMI 
2010 (4) TMI 602
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....es Registration Act and is espousing the cause of all the members of the said Association. The members of the said Association being the share brokers were required to register themselves with the appellant and for such registration the Board had earlier levied fees by notification dated 10-4-1992 since modified from time-to-time. In order to realise registration fee the turnover data of all the brokers are required to be collected. The appellant herein by Circular No. SMD/Policy/Cir. 07/2002, dated 28-3-2002, circulated a format of auditors certificates for furnishing turnover data and break-up thereof. The term "turnover" given in the said notifica- tion was not acceptable to the various stock brokers so writ petition was filed by one stock broker, namely, Lalit Kumar Marodia for declaratory relief of true construction and interpretation of the word 'turnover' mentioned in the said regulation. 3. In the said writ petition it was contended that word 'turnover' meant not what had been stated in the said regulation, but "the net amount" receivable after day's transaction, should be treated as turnover for the purpose of levying registration fee. In the said writ petition an inter....
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....ee. In view of refusal as above the aforesaid writ petition was filed for the following reliefs : "(a)A declaration that clauses 2 and 3 of Part II of the Securities and Exchange Board of India (Interest Liabilities Regularisation) Scheme, 2004 insofar as the same prevents stock brokers from filing turnover data with break-up with exchange thereby depriving them of concessional rates of fee, is void. (b)A writ of and/or in the nature of mandamus do issue commanding the respondent No. 2 to forthwith recall, rescind and/or revoke clauses 2 and 3 of Part II of the Securities and Exchange Board of India (Interest Liabilities Regularisation) Scheme, 2004, insofar as the same prevents the stock brokers from filing turnover data with break-up with exchanges and the exchanges thereby depriving them of concessional rates of fee. (c)A writ of and/or in the nature of Mandamus do issue commanding the respondent No. 3 to forthwith accept the turnover data prepared by the members of the Stock Brokers Welfare Association of India, and to submit the same to the respondent No. 2 for the purpose of payment of outstanding registration fees by the members of the Stock Brokers Welfare Associat....
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....f the benefit of the said scheme. The appellant has preferred appeal against the part of the judgment as against the declaration of ultra vires of the said rate, whereas the writ petitioner filed cross-objection against the portion of the judgment not granting relief as prayed for, for deposit of the registration fee. 7. Mr. Soumen Sen learned counsel appearing for the appellant submits that learned trial Judge has erred in holding that the said flat rate of 0.01 per cent of the gross turnover reported by stock exchange for levying registration fee as provided in the scheme being ultra vires of the Regulations. 8. He submits that under the Act and the Rules framed thereunder the appellant has wide authority to regulate the functioning of the stock brokers and in furtherance of such legal provision in the said scheme was framed to cover not only to tackle a special situation but to compel the brokers to comply with the stipulation and directive contained in such regulation. The said scheme was evolved for one time amnesty for a limited period because of the large-scale default. The said regulation provided computation of fee on the basis of turnover on each type of transaction....
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....olly invalid and illegal. According to him the SEBI could not take unilateral decision breaching order of status quo and they should have approached the court for clarification before taking any action. In this connection he has invited attention of this court to the two decisions of the Supreme Court in Satyabrata Biswas v. Kalyan Kumar Kisku AIR 1994 SC 1837. All the stock brokers including the members of the first writ petitioner were not notified nor do they have their knowledge about the aforesaid scheme as such they should have allowed to submit turnover data and to pay registration fee. 14. He urges that clauses 2 and 3 of Part II of the said Scheme is contrary to regulation and as such void and learned trial Judge has held so rightly. The portion of the said scheme that provides for filing of turnover data without the registration fee being contrary to the Regulations of 1992 which has statutory force, is liable to be declared void. It is not within the competence of SEBI under the regulation to call for or accept turnover data independent of registration fee. Such action is ultra vires of the said regulation. In this context reference has been drawn to a decision of the....
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....visions, here there is none. In view of the aforesaid circumstances the portion of the judgment declaring the said flat rate of 0.01 per cent for payment of Registration Fee being ultra vires does not require any interference. 18. On the other hand, it is, thus, clear that because of the difficulty beyond the control of the writ petitioners/respondents, the benefit of other portion of the Scheme could not be availed of. Therefore, the respondents/writ petitioners should be allowed to file turnover data and also to pay the Registration Fee. Hence, the appeal should be dismissed and the cross-objection filed by the respondents/writ petitioners should be allowed. 19. After hearing learned counsel for the parties and having gone through the records in this appeal and cross-objection following points for decision of this court have been raised : (i)Whether learned trial Judge has correctly held that the writ petitioner and the members of the stock broker association represented by the writ petitioner is not entitled to get the benefit of the scheme being the subject-matter of the writ petition or not? (ii)Whether the declaration of the learned trial Judge that the provision ....
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....l not substitute its own interpretation even if there be another possible interpretation. We accept the interpretation recorded by the learned trial Judge regarding scope and purport of the order of status quo. We have gone through the notice of 13-10-2003 nowhere it says that one must make payment of registration and in default of payment, penal measure is to be taken. The decisions cited by the learned counsel for the appellant quoted above in our view are no manner of application as action taken by the SEBI appellant issuing the said notice nowhere near touching nor violating order of status quo. According to us, one is to approach court for clarification when the litigant entertains genuine doubt in his/her mind, or in given fact and situation when there is apparent possibility that any action taken may fall in breach of the order passed by the court on understanding of the ratio of the two decisions Satyabrata Biswas' case (supra). 23. Learned trial Judge has factually found that even after the order of status quo being vacated on dismissal of the writ petition on 22-4-2004 or even after effect of the conditional order of the appeal court stood extinguished no action was ta....
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....rned trial Judge is legally correct in holding an order passed on consent or concession in any court does not create any justifiable right. Hence, it is possible for sometimes before the court of law for settling a dispute some concession is made and this concession in our view would be applicable to the parties concerned in the same lis as order passed on concession is not a precedent to follow to grant relief to the parties in any subsequent proceedings. Therefore, we think that the learned trial Judge has correctly come to conclusion on law that going by the provision of the scheme writ petitioners/respondents are not entitled to get any benefit, but the learned trial Judge having noted there has been concession and/or relaxation of time limit in favour of one set of stock and share brokers, should have held that there has been discrimination. 26. Now turning to the question of declaration of the portion of the scheme, namely, provision for levy registration fee at a flat rate of 0.01 per cent in case of default of furnishing turnover data within the time, we find that the learned trial Judge has held correctly in this case that said provision for levy of Registration Fee at ....