TaxTMI 
TaxTMI 
2013 (1) TMI 360
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....till date; that treating the absence of the Presiding Officer as temporary, the Ministry of Finance has vide order dated 5th December, 2011, invoking Rule 5(2) of the Securities Appellate Tribunal (Procedure) Rules, 2000, permitted the sittings of Tribunal to be presided over by one of the technical members; that since then the Tribunal comprising only of technical members has been entertaining, adjudicating and disposing of appeals. 2. It is the contention of the petitioner that such functioning of the Tribunal without the Presiding Officer and the order dated 5th December, 2011 are illegal and the Rule aforesaid invoking which the order dated 5th December, 2011 has been issued is ultra vires the SEBI Act and the law. Reliance in this regard is placed on L. Chandra Kumar v. UOI [1997] 3 SCC 261, R.K. Jain v. Union of India [1993] 4 SCC 119, Union of India v. R. Gandhi [2010] 100 SCL 142 and judgment dated 13th September, 2012 of the Supreme Court in W.P.(C) No.210/2012 titled Namit Sharma v. Union of India. 3. It is further the contention of the petitioner that the cases before the said Tribunal involve intricate questions of law and which cannot be adjudicated without a per....
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....ourt or Chief Justice of High Court, sitting or retired, have shown willingness to take up the appointment as Presiding Officer of the Tribunal and which has led to the proposal for amendment of the SEBI Act to make even a sitting or a retired Judge of the High Court eligible for appointment as the Presiding Officer. It is contended that amendment to the said effect is proposed to be moved in the Parliamentary session underway. 9. In the face of the aforesaid, we can only direct the Government to ensure that the proposed amendment to the SEBI Act is moved within the current Parliamentary session and the consequent steps also taken in right earnest to ensure appointment of the Presiding Officer of the Tribunal at the earliest. We direct accordingly. 10. The counsel for the petitioner has pressed for other reliefs claimed in the petition, of quashing of the order dated 5th December, 2011 supra, of declaration of Rule 5(2) supra as ultra vires and unconstitutional, of quashing of process of selection of member and issuance of directions to ensure that civil servants or bureaucrats who have retired or are on the verge of retirement are not inducted as members of the Tribunal. ....
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....it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all...". The judgments mentioned in preceding paragraph, can thus not be treated as precedents to the maintainability of this petition filed in public interest though by an Advocate but who is not a practitioner in the field and before the Tribunal grievance with respect to functioning whereof is made. 15. The Supreme Court recently in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra [Civil Appeal No. 7728 of 2012, dated 8-11-2012] has again cautioned the courts against entertaining public interest litigation filed by unscrupulous persons, as such meddlers do not hesitate to abuse the process of the court. It was held that the right of effective access to justice, which has emerged with the new social rights regime, must be used to serve basic human rights, which purport to guarantee legal rights and, therefore, a workable remedy within the framework of the judicial system must be provided. The courts, whenever any public interest is invoked, must examine the case to ensure that there is in fact, genuine public interest in....
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....rtained in as much as those lawyers would have locus to the extent of being directly affected by the functioning of the said courts/foras. However as aforesaid, the petitioner herein who is represented through another counsel who is registered with the Bar Council of Rajasthan and has given the address of his Jaipur office also are indeed strangers and not concerned with the Tribunal qua functioning whereof grievance has been made. We are thus not inclined to entertain the present petition, which appears to be for the benefit of persons interested in delaying the proceedings before the Tribunal, rather than in public interest. It is the averment in the petition itself that the Tribunal deals with matters of high monetary value and we are sure that any of the parties to the said matters is competent to, if aggrieved, have access to courts. 19. We also do not find the reliefs claimed in this petition, aimed at bringing the functioning of the Tribunal to a standstill to be in public interest. We however hasten to clarify that our observations herein are in the context of locus standi to maintain the petition only and are not meant to come in the way of any person aggrieved by the o....