TMI Blog2013 (3) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... ch scheme or arrangement in any field and such scheme or arrangement provides for the various consequences to result there from. As a matter of fact the provision does not make any reference to agricultural or any other specific activity and, therefore, at the very outset it will have to be held that the submission based on Entry 18 of List II, while challenging the vires of Section 11AA, is wholly misconceived. The fallacy in the submission of the PGF Limited is that it proceeds on the footing as though the said provision, namely, Section 11AA was also intended to cover an activity relating to agriculture and its development and, therefore, the provision conflicts with Entry 18 of List II of the State List to be struck down on that score. Inasmuch as the said Section 11AA seeks to cover, in general, any scheme or arrangement providing for certain consequences specified therein vis-a-vis the investors and the promoters, there is no question of testing the validity of Section 11AA in the anvil of Entry 18 of List II. The said submission made on behalf of the appellants is, therefore, liable to be rejected on that sole ground. Seeking to cover any scheme or arrangement by way of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its multiples offered to develop the land by planting plant, trees etc., and thereby the customers were assured of a high amount of appreciation in the value of the land after its development and attracted by such anticipated appreciation in land value, which is nothing but a return to be acquired by the customers after making the purchase of the land based on the development assured by the PGF Limited, part with their monies in the fond hope that such a promise would be fulfilled after successful development of the bits of land purchased by them. The above conclusion can be culled out from the sample documents placed by the appellants before the Court. The appellants, however, failed to supply any material till date to demonstrate as to how and in what manner any of the lands said to have been sold to its customers were developed and thereby any of the customer was or would be benefited by such development. It is quite apparent that the customers who were attracted by such schemes/arrangement invested their monies by way of contribution with the fond hope that the various promises of the PGF Limited that the development of the land pooled together would entail high amount of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Ibrahim Kalifulla, J. - This appeal is directed against the Division Bench Judgment of the High Court of Punjab Haryana at Chandigarh in Civil Writ Petition (CWP) No.188/2003 dated 26.07.2004. Since the Division Bench has dealt with elaborately the background of the case for filing the writ petition at the instance of the appellant, we do not wish to state the same in detail in our judgment. However, we only wish to refer such of those bare facts required to support our decision and conclusion. At the very outset, we wish to note that though this appeal has been preferred by PGF Limited, its Chairman-cum-Managing Director and two other individuals who are stated to be residents of village Khabra and Samaspur of Punjab but the same has been really contested by the appellant No.1 whom we will hereinafter refer to as 'PGF Limited'. 2. The appellant, known as Pearls Green Forests Limited and called PGF Limited from 1997, is having its registered office at S.C.O. No.1042-43, Sector 22-B, Chandigarh and its Head Office at 2nd Floor, Vaishali Building, Community Centre, Paschim Vihar, New Delhi. Though the Memorandum and Articles of Association of the Company provide for carrying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 20.02.2002 was also directed to be kept in abeyance, till the final order was passed. Subsequent to the said order of the High Court dated 29.04.2002, after following the directions contained in the said order, the second respondent passed its order on 06.12.2002, by which it was held that the business activity of the PGF Limited, namely, the sale and development of agricultural land, as well as its joint venture schemes, were all collective investment schemes and since the PGF Limited failed to comply with the statutory requirement as provided under the SEBI (Collective Investment Schemes) Regulation, 1999, directed the PGF Limited not to collect any money from investors nor to launch any new scheme with a further direction to refund the money collected under the schemes, which were due to the investors as per the terms of the offer within a period of one month from the date of its order and failing which threatened to initiate actions as available under the SEBI Act and SEBI (Collective Investment Schemes) Regulation, 1999. 5. Aggrieved by the said order of the second respondent dated 06.12.2002, the appellants preferred the writ petition before the High Court of Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of adding Section 11AA of the SEBI Act pointed at investors' protection, not agriculture and consequently the first respondent-Union of India had every competence to introduce the said provision in the SEBI Act. 8. We heard Mr. A.K. Ganguli, learned senior counsel for the appellants, Mr. Sidharth Luthra, learned Additional Solicitor General for respondent No.1 Mr. Parag P. Tripathi, learned senior counsel for respondent No.2. Mr. Ganguli while assailing the order of the Division Bench after taking us through the material documents, in particular, the specimen application form submitted by the investors along with its annexures, copies of certain sale deeds between the vendor and the investors, submitted that once the joint venture operations carried on by the PGF Limited, were stopped by them on and from 01.02.2000, its other activity of sale of agricultural land nor the sale and development of agricultural land can be brought within the category of collective investment schemes. The learned senior counsel by referring to the definition of 'security' under the Securities Contracts (Regulation) Act, 1956, which definition was adopted for the purpose of application of SEBI Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation) Act, 1956, which expression was 'mutatis mutandis' applied for the definition of 'securities' under the provisions of the SEBI Act. According to learned senior counsel since those documents would not fall within the definition of 'securities' as defined under the SEBI Act read along with Securities Contracts (Regulation) Act, 1956 there is absolutely no scope to invoke the definition of Section 2(ba) read along with Section 11AA of the SEBI Act. 11. The learned senior counsel strenuously contended that the stand of the respondents as accepted by the Division Bench, namely, that the collective investment scheme would fall within the expression 'investor protection' and thereby governed by Entry 97 of List I of the Seventh Schedule read along with Article 248 of the Constitution was wholly misconceived and, therefore, on the ground of legislative competence, Section 11AA of the SEBI Act is liable to be struck down. In support of the said submission learned senior counsel also made detailed reference to various State enactments dealing with the protection of rights of depositors in financial establishments and contended that having regard to such initiatives taken by various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the second respondent dated 06.12.2002 and in the said circumstances the conclusions drawn by the Division Bench to the contrary cannot be accepted and the same cannot form the basis for upholding the order of the second respondent dated 06.12.2002. 15. In support of his submissions learned senior counsel relied upon the decisions in K.K. Baskaran v. State represented by its Secretary, Tamil Nadu and others - (2011) 3 SCC 793, Sonal Hemant Joshi and others v. State of Maharashtra and others - [2012] 10 SCC 601, State of Maharashtra v. Vijay C. Puljal and others - [2012] 10 SCC 599, New Horizon Sugar Mills Ltd. v. Government of Pondicherry and another [2012] 10 SCC 575, Naga People's Movement of Human Rights v. Union of India [1998] 2 SCC 109, Union of India v. Shri Harbhajan Singh Dhillon [1971] 2 SCC 779, S.P. Mittal v. Union of India and others [1983] 1 SCC 51, Kartar Singh v. State of Punjab [1994] 3 SCC 569, Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others [1978] 1 SCC 405 and Commissioner of Police v. Gordhandas Bhanji [1952] SCR 135. 16. Mr. Luthra, learned Additional Solicitor General appearing for the Union of India after ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land of the PGF Limited was in pith and substance a collective investment scheme and that the contention of the PGF Limited that its business related to transaction concerning agricultural land simplicitor cannot be accepted. The learned counsel, therefore, contended that the submission that there was no competence for the Parliament to enact Section 11AA of the SEBI Act and based on the said provision SEBI cannot control the business of the PGF Limited, cannot be countenanced. According to learned senior counsel the salient features of the business of the PGF Limited, namely, sale and development of agricultural land in reality was an investment simplicitor by the gullible public under the guise of sale and development of agricultural land and, therefore, Section 11AA of the SEBI Act was valid in law and the PGF Limited is bound to comply with the requirements of the SEBI Act in order to protect the interests of the investors. 18. While highlighting the salient features, the learned senior counsel referred to the application to be submitted by the investors and the various stipulations contained in the agreement of the PGF Limited, which disclose that while the sale of agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter three years in case of deferred schemes and after one year in case of a lump sum scheme. It was also pointed out that when a specific question was put by the High Court to the PGF Limited as to how many investors had in fact proceeded to cultivate the land and put it for agricultural use or developed it by themselves, nothing was placed before the High Court to substantiate the claim of the PGF Limited. It was pointed out that the investors mostly belonged to the rural areas and were uneducated, who were lured with a return of 12.3%, as against the comparative investment option of 8.9%, while in reality there was no development of the land and the alleged promise of distribution of return was from out of the investment, from new investors. In the light of the above features contained in the application and the agreement placed before the Court, it was contended that the activity of the PGF Limited was not a mere sale and purchase of land, but in actuality was an investment scheme wherein land was being used only as a resource, which was promised to be worked on and developed by the PGF Limited and the exploitation of the land would result in return to the investors. It was, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, the sale of land in multiple units could always be sold or disposed of after getting a No Objection Certificate from the PGF Limited and, therefore, from that angle as well the contention of the PGF Limited was liable to be rejected. The learned senior counsel also referred to the 'Blue Sky Laws' in the United States of America, which sought to regulate and control frauds in securities, largely at the initiative of the agrarian population and its small bankers against the fraudulent transactions of financiers in agricultural/plantation lands and submitted that the SEBI (Collective Investment Schemes), Regulations are more or less parallel to such 'Blue Sky Laws', which was carried out in the interest of the investors, who were lured to part with their hard earned savings under the disguised promise of the PGF Limited to provide a higher value for the investment, by way of development and, therefore, the second respondent as a statutory authority had every duty to ensure that such schemes were controlled and regulated by the Regulation of 1999. The learned senior counsel, therefore, contended that the PGF Limited cannot be allowed to wriggle out of the control of SEBI Act by con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aring for the appellants fairly submitted that no material was either placed before the Division Bench of the High Court or before this Court till the conclusion of the hearing. The learned senior counsel, however, made a feeble contention that there was no occasion for the appellants to produce those materials though he was not able to satisfactorily explain to us as to why no such material could be placed before us when we repeatedly called upon the appellants to place such materials. 25. With the above prelude to the nature of litigation launched by the appellants in the High Court and pursuing the same in this Court, when we consider the submission of the appellants, we find that the submission was fivefold. According to the appellants while the appellants as a company provided in the Memorandum and Articles of Association, various objects and business ventures, it was actually involved in the business of joint venture schemes, sale of agricultural lands and sale and development of agricultural lands. While the sale of agricultural land and sale and development of agricultural land was continued to be operated upon, according to the PGF Limited, its business of joint venture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llective investment scheme in order to invoke Section 11AA of the SEBI Act. 27. The third contention was that the other activities of sale and development of agricultural land of the PGF Limited was governed by Entry 18 of List II of the Seventh Schedule and, therefore, the connected developmental activity of the PGF Limited in regard to those agricultural land sold to its investors cannot form the subject matter of legislation by the Parliament and consequently even if the validity of Section 11AA of the SEBI Act can be upheld, the PGF Limited's activity of the development of agricultural land should stand excluded from its coverage. In other words, according to learned counsel, even if the activities of the PGF Limited based with land sold and its further development, if at all any legislation could be passed, the same could have been done only by the State Legislature and not under Section 11AA of the SEBI Act. 28. It was then contended that having regard to the fact that agricultural land, which was the subject matter of development of PGF Limited's business activity along with the incidence of sale, the same being governed by Entry 18 of List II of the Seventh Schedule, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial institution at all and even according to PGF Limited it has not collected any deposits from the public at large. The PGF Limited though a company incorporated under the Companies Act, was not receiving deposits under any scheme or arrangement or in any other manner and hence, it will not fall under the definition of 'financial establishment' of the said Act. The purported intent of almost all the other State enactments were identical. It is a common ground that many of the statutes brought out by the respective States were upheld, except in some States where the Act was struck down, which is stated to be a subject matter of consideration pending before this Court. These State enactments in order to protect the depositors being duped under the garb of granting extraordinary returns, were sought to be protected by providing certain machineries, including certain prosecuting machinery and appropriate judicial forum for redressing their grievances. According to the PGF Limited it is not a financial institution and was not collecting any deposits and that its sole activity apart from sale of agricultural land was development of such lands sold to its customers. The extreme con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempts made by invoking the extraordinary jurisdiction of the writ Courts of many such challenges, mostly result in rejection of such challenges. However, at the same time, while taking advantage of the long time gap involved in the pending proceedings, such unscrupulous litigants even while suffering the rejection of their stand at the end as to the vires of the provisions, always try to wriggle out of their liabilities by stating that the time lag had created a situation wherein those persons who were lured to part with huge sums of money are either not available to get back their money or such unscrupulous petitioners themselves are not in a position to refund whatever money collected from those customers or investors. It is, therefore, imperative and worthwhile to examine at the threshold as to whether such challenges made are bonafide and do require a consideration at all by the writ courts by applying the principle of 'lifting the veil' and as to whether there is any hidden agenda in perpetrating such litigation. With that view, we lay down some of the criteria to be kept in mind whenever a challenge to a provision of law is made before the Court. 32. The Court can, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The main contention of the PGF Limited was that since indisputably the business of the PGF Limited was sale and development of agricultural land, the same would be governed by Entry 18 of List II, namely the State subject and, therefore, the Central Legislation brought about by the Parliament in introducing Section 11AA of the SEBI Act cannot be sustained. It was alternatively contended that even assuming that the Section can be held to be valid, inasmuch as the business is solely sale and development of agricultural land again falling under Entry 18 of List II section 11AA it can be read down to the effect that the said provision will have no application to the business activity of the PGF Limited. 34. As far as the main contention is concerned, when we test the said submission, we find that the said submission is wholly misconceived. In order to appreciate the first contention, it will be worthwhile to extract Section 11AA which reads as under: "11AA. Collective investment scheme-(1) Any scheme or arrangement which satisfies the conditions referred to in sub-section (2) shall be a collective investment scheme. (2) Any scheme or arrangement made or offered by any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the conditions specified in Section 11 AA. Under sub-Section (2) of Section 11AA, it is stipulated that any scheme or arrangement made or offered by any company by which the contribution, or payment made by the investors, by whatever name called, are pooled and utilized for the purposes of scheme or arrangement; contributions or payments are made by the investors with a view to receive profits, income, produce or property, whether movable or immovable, based on the scheme or arrangement, any property, contribution or investment which forms part of the scheme or arrangement is identifiable or not is managed by someone on behalf of the investors shall be collective investment scheme. Further the investors should not have day to day control over the management and operation of the scheme or arrangement. A detailed analysis of sub-section (2) of Section 11 AA, which defines a collective investment scheme disclose that it is not restricted to any particular commercial activity such as in a shop or any other commercial establishment or even agricultural operation or transportation or shipping or entertainment industry etc. The definition only seeks to ascertain and identify any scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 is to the following effect: "2. Recently many companies especially plantation companies have been raising capital from investors through schemes which are in the form of collective investment schemes. However, there is not an adequate regulatory framework to allow an orderly development of this market. In order that the interests of investors are protected, it has been decided that the Securities and Exchange Board of India would frame regulations with regard to collective investment schemes. It is, therefore, proposed to amend the definition of "securities" so as to include within its ambit the derivatives and the units or any other instrument issued by any collective investment scheme to the investors in such schemes." 37. Therefore, the paramount object of the Parliament in enacting the SEBI Act itself and in particular the addition of Section 11AA was with a view to protect the gullible investors most of whom are poor and uneducated or retired personnel or those who belong to middle income group and who seek to invest their hard earned retirement benefits or savings in such schemes with a view to earn some sustained benefits or with the fond hope that such investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tipulated under sub-Section (2) of Section 11AA, when the Parliament specifically carved out such of those schemes or arrangements governed by other statutes to be excluded from the operation of Section 11AA, one can easily visualize that the purport of the enactment was to ensure that no one who seeks to collect and deal with the monies of any other individual under the guise of providing a fantastic return or profit or any other benefit does not indulge in such transactions with any ulterior motive of defrauding such innocent investors and that having regard to the mode and manner of operation of such business activities announced, those who seek to promote such schemes are brought within the control of an effective State machinery in order to ensure proper working of such schemes. 40. It will have to be stated with particular reference to the activity of the PGF Limited, namely, sale and development of agricultural land as a collective investment scheme, the implication of Section 11AA was not intended to affect the development of agricultural land or any other operation connected therewith or put any spokes in such sale-cum-development of such agricultural land. It has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timately having regard to the legal entangles in which such investors would have to undergo by spending further monies on litigations, ultimately prefer to ignore their investments cursing themselves of their fate. More than 90 per cent of such investors would rather prefer to forget such investments than making any attempt to secure their money back. Thereby, the promoters put to unlawful gain who always thrive on other peoples money. 42. Therefore, in reality what sub-section (2) of Section 11AA intends to achieve is only to safeguard the interest of the investors whenever any scheme or arrangement is announced by such promoters by making a thorough study of such schemes and arrangements before registering such schemes with the SEBI and also later on monitor such schemes and arrangements in order to ensure proper statutory control over such promoters and whatever investment made by any individual is provided necessary protection for their investments in the event of such schemes or arrangements either being successfully operated upon or by any mis-fortune happen to be abandoned, where again there would be sufficient safeguards made for an assured refund of investments made, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany who is stated to be engaged in the business of sale, purchase or development of agricultural land. After noting down the desire of the investor for purchase of the number of units/plots based on the payment plan, the agreement in the forefront states that the PGF Limited would arrange for the allotment of the land within a reasonable period and not exceeding 270 days in respect of cash down payment plan and not exceeding 90 days after the receipt of 50 per cent of consideration in respect of installment payment plans. It is worthwhile to note that while money is received either by way of cash down or 50 per cent through installment facility only an allotment will be intimated by way of a letter without any assurance as to when the sale deed in favour of such applicant customer would be executed. After the allotment letter without prescribing any specific time stipulation, the agreement mentions that sale deed would be executed in favour of the customer and will be duly registered. Such execution was, however, to the condition that if transfer of such small plot of land as prescribed by law is not otherwise possible, practicable or feasible, even such transfer of title would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, would be refunded together with simple interest @ 12.5% per annum from the date of contract and the PGF Limited shall not be liable to pay any cost/expense/damage whatsoever in any case other than what has been provided under Clause 13(a) (b). 48. But when it comes to the question of breach by the customer under Clause 14(A) as many as sub-clauses (a) to (f) are stipulated and if it related to any default before allotment of land under Clauses 14(B) sub-clauses (a) to (e) providing for stringent conditions have been laid down. Under Clause 18 all possible situations are mentioned in order to ensure that under no circumstance PGF Limited will be liable for any consequence for non-performance of its part of the contract. Under Clause 20 it is stipulated that any dispute pertaining to the agreement would be referred for arbitration to a retired judicial officer appointed by the PGF Limited as sole arbitrator and settled in accordance with the Arbitration and Conciliation Act, 1996 and the jurisdiction for any further agitation of legal rights would be only in the Civil Courts at Delhi, to the exclusion of all other Courts. 49. Thus, as rightly pointed out by Shri Tripathi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and South by Plot No.142. Along with the document a site plan is annexed and the authenticity of the said plan is not disclosed, while the name of the person who drew the sketch alone is mentioned. Thus, in very many respects the genuineness of the document appears to be doubtful. In fact, the Division Bench has dealt with this aspect of the nature of document in extenso in paragraph 56 of the judgment impugned with which observation we fully concern. 51. A conspectus consideration of the scheme of development of the land purchased by the customers at the instance of the PGF Limited and the promised development under the agreement disclose that there was wholesale uncertainty in the transactions to the disadvantage of the investors' concerned. The above factors and the factors, which weighed with the Division Bench in this respect definitely disclose that PGF Limited under the guise of sale and development of agricultural land in units of 150 sq. yrds. i.e. 1350 sq. ft. and its multiples offered to develop the land by planting plant, trees etc., and thereby the customers were assured of a high amount of appreciation in the value of the land after its development and attracted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on behalf of the customers. Having regard to the location of the lands sold in units to the customers, which are located in different states while the customers are stated to be from different parts of the country it is well-neigh possible for the customers to have day to day control over the management and operation of the scheme/arrangement. In these circumstances, the conclusion of the Division Bench in holding that the nature of activity of the PGF Limited under the guise of sale and development of agricultural land did fall under the definition of collective investment scheme under Section 2(ba) read along with Section 11AA of the SEBI Act was perfectly justified and hence, we do not find any flaw in the said conclusion. 53. We, therefore, hold that Section 11AA of the SEBI Act is constitutionally valid. We also hold that the activity of the PGF Limited, namely, the sale and development of agricultural land squarely falls within the definition of collective investment scheme under Section 2(ba) read along with Section 11AA (ii) of the SEBI Act and consequently the order of the second respondent dated 06.12.2002 is perfectly justified and there is no scope to interfere wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us in every respect, right from its initiation in the High Court by challenging the vires of Section 11AA of the SEBI Act without any substantive grounds and in that process prolonged this litigation for more than a decade and thereby provided scope for defrauding its customers who invested their hard earned money in the scheme of sale of land and its development and since we have found that the appellants had not approached the Court with clean hands and there being very many incongruities in its documents placed before the Court as well as suppression of various factors in respect of the so called development of agricultural land, we are of the view that even while dismissing the Civil Appeal, the PGF Limited should be mulcted with the exemplary costs. We also feel it appropriate to quote what Mahatma Gandhi and the great poet Rabindranath Tagore mentioned about the greediness of human being which are as under: "Earth provides enough to satisfy every man's need, but not every man's greed. -Mahatma Gandhi- The greed of gain has no time or limit to its capaciousness. Its one object is to produce and consume. It has pity neither for beautiful nature nor for living human beings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tors/customers of the PGF Limited, who have parted with their valuable savings and earnings by falling a prey to the promise extended to them are deprived of their investments, we feel it just and necessary to direct for proper investigation both by the Central Bureau of Investigation as well as the Department of Income Tax and in the event of any malpractice indulged in by the PGF Limited, to launch appropriate proceedings, both Civil, Criminal and other actions against the PGF Limited, as well as, all those who were responsible for having indulged in such malpractice. We also direct the second respondent to proceed with its investigation/enquiry and inspection of the PGF Limited as well as all its other officers and other premises and after due enquiry to be carried out in accordance with law, take necessary steps for ensuring the refund of the monies collected by the PGF Limited in connection with the sale and development of land to its various customers. In order to enable the second respondent to carry out the various directions contained in this judgment, we direct the PGF Limited to appoint a nodal officer, not below the rank of a Director, of its company who shall be respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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