TMI Blog1997 (2) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... an actionable claim, under the existing provisions of law under which SEBI functions. This issue is similar to one raised in [Special Civil Application No. 5483 of 1996] DM. Investment. SEBI, which also has been heard along with this petition. 3. The petitioner is a company registered under Indian Companies Act, 1956 and is having its registered office at Ahmedabad. As per the case set out in the petition, in pursuance of notice No. B. 20 of 1996 dated 7-2-1996 issued by the Bombay Stock Exchange ('the Stock Exchange') inviting from the members of the Exchange offers for sale of shares of Magan Industries Ltd. (for short, "MIL") because transaction of purchases of shares of MIL, remaining outstanding for want of availability of adequate number of shares with the sellers to fulfil their corresponding selling obligation. In response to the said notice dated 7-2-1996 (Annexure A), the petitioner who was holding shares in MIL offered 50,000 shares for sale at auction to the Stock Exchange through its member, respondent No. 3 Inderlal Agarwal. The transaction of sale of petitioner's shares at auction was at Rs. 118 per share inclusive of chargeable expenses. After deducting charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a very fundamental issue whether even in case investigation results in indiction of petitioner, SEBI has a jurisdiction to make a final order for confiscating or depriving the petitioner of consid-eration which has already become due in respect of transaction about its scrips and which has been received by Stock Exchange from respective parties from whom consideration was to be received, without there being any specific provision of law to that effect. 6. Keeping in view the pleadings and respective contentions on 6-5-1996 it was directed by way of interim relief that SEBI shall complete the investigation in respect of the share transactions of MIL latest by 3-6-1996 (which was extended later on an application being made in this behalf). Respondent No. 1 was also directed to consider whether the petitioner has any role to play in the alleged irregularities in the transaction under investigation. It was also stated in the order that if the petitioner is not involved in the alleged malpractices and irregularities, respondent No. 2 shall modify its order pertaining to retention of the amount in question by the Stock Exchange and permit the Stock Exchange to release the proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided by a committee to be set up by SEBI, which would exclude the members of the investigating team to be on adjudicating committee. Though this order was made on 4-7-1996 the same was not communicated to the petitioner or any of the affected parties. However, on the direction of the court a copy of the order was delivered to the counsel for the petitioner by the counsel for the respon- dent in the court during the course of hearing, and thereafter amendment was sought by the petitioner for challenging the order dated 4-7-1996 as well, on various grounds to be noticed hereafter. 9. However, before proceeding further, the learned counsel for respon- dent No. 1 raised preliminary objections which may be considered at this stage. Firstly, it has been urged that as no part of cause of action has arisen within the State of Gujarat, petition under Article 226 challenging the impugned orders are not maintainable, in the High Court of Gujarat. Clause (2) of Article 226 provides that the power conferred by clause (1) to issue directions, orders and writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to arrive at a conclusion in his favour." 12. This principle has been approved by the Supreme Court in Oil Natural Gas Commission v. Uptal Kumar Basu 1994 (4) SCC 711, wherein the Court said after quoting the aforesaid principle: "Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words the question whether a High Court has territorial jurisdiction to entertain a Writ Petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the petition." 13. If we examine the pleading of the petitioner in this respect, the salient features which may be called bundle of facts of which claim for relief of the petitioner is founded are (1) that on 7-2-1996 petitioner offered 50,000 shares of MIL for sale at auction as per invitation by the Stock Exchange; (2) the price settled for such transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action in pursuance of notice dated 7-2-1996 is not disputed and the facts about service of summons, recording of statement, and recovery of documents in connection with the said investigation against the petitioner company at Ahmedabad on 2-4-1996 are also not disputed. 15. In these circumstances, the conclusion is irresistible that holding of investigation in the affairs of buying and selling and dealing with the shares by the petitioner company qua the shares of MIL, is an integral part of the whole cause of action giving rise to the present claim of the petitioner and therefore citus of investigation will obviously be a citus of at least a part of cause of action giving territorial jurisdiction to the court exercising jurisdiction over that citus. On the facts averred by the petition-er, which remain undisputed, lending additional support to the pleadings about investigation, if part of investigation at least has been held at Ahmedabad and the investigation being the foundation of the impugned order and such investigation in the case of petitioner for bringing into existence the impugned order has taken place at Ahmedabad, which undisputedly and undeniably is within the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since the SEBI itself was not to serve the order but it was to be served by Stock Exchange its furnishing copy in the court will not furnish cause of action. 18. Once it is held that, as it must be, that the order was required to be served on petitioner, the fact whether author of the order itself effects the service or someone else is directed to discharge the ministerial duty of service will not affect the position. What is required to be seen is where the order was required to be served on person whose rights are affected by it. If the order was required to be served within the territory, where this Court exercises jurisdiction, it will not alter the situation if the order has been served in Court during proceedings at Ahmedabad. Position may be otherwise, if but for court proceedings the order on the affected party would not be served at a place within the court's territorial jurisdiction. 19. In the present case, it is not disputed that petitioner's registered office is at Ahmedabad within the territorial jurisdiction of this Court. The notice of investigation were served at Ahmedabad. Statements in pursuance of that were recorded at Ahmedabad. As a result of sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but where order itself has been served at Ahmedabad in Swaika Properties 'case ( supra ) was not a case of service of final order. Nor it was a case where final order was required to be served, nor was it a case of quasi judicial order, which unlike a statutory order of acquiring land does not depend on its efficacy on service. The Court found as a matter of law that order under section 52(2) became effective as soon as it was published inasmuch as the property affected by it vests in State on its publication. A judicial order pronounced in open court becomes effective as soon as it is pronounced. Where the order made by quasi judicial authority, and is not made in the presence of parties ordinarily becomes effective, when served on affected parties. 23. Moreover present case, the order has been made as a result of enquiry. It had been made without hearing of affected parties. It envisaged post- decisional hearing to affected parties. Therefore service of the order, in the very nature of things, was an essential part of whole gamut. To save it from being void for want of fair procedure, in fact, the order itself made it requisite for its effectiveness, that it be served on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of termination of service was communicated to the concerned employee." 25. The petitioner company has its registered office at Ahmedabad. Citus of its movable property is at Ahmedabad. By impugned order the right of the petitioner company arising out of transaction of that movable proper- ty are affected. Thus applying the test in Modern Food Industries ( India ) Ltd.'s case ( supra ) it can well be said that consequence of the impugned order fell on the petitioner at Ahmedabad where the order was served, where the citus of petitioner's property in share was situated. The princi-ples applicable to determine the jurisdiction of court in a suit for recovery of movable property cannot be applicable, obviously because this lis is not for recovery of movable property. The petition is to protect petitioner's right in movable property which has been impaired not by a person possessed of such property but by an act of statutory authority in purported exercise of its powers under the Act. The citus where such right is affected or where the effect of such order to affect the right becomes the relevant consideration. 26. In Damomal Kausomal Raisinghani v. Union of India AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s popularly and legally understood and the machinery of assessment has been set in motion and the impact of that motion is felt by the petitioners within the territorial limits of this State. We have therefore no hesitation in holding that a part of the cause of action has arisen in the State of Tamil Nadu." (p. 161) 28. This decision gives a clear indication that wherever issuance of a notice is necessary part of setting a machinery in motion for the purpose of affecting the rights of the person against whom the machinery is to be mobilized and the service of the ultimate order affecting the rights of the person concerned, forms part of cause of action, in relation to a dispute challenging the final order affecting the rights affected by that order. Mere issuance of a notice to a person concerned may not be a necessary part of cause of action but where issuance of such notice is a pre-condition for setting the machinery in motion and not the conditions subsequent for the purpose of furthering the cause which has already been set in motion, the service of notice itself becomes part of cause of action. It has also been noticed that the place ultimately where the order is served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice before making any effective order has to be accepted. Thus service of the order itself furnished part cause of action for raising objections against the impugned order. The fact that the petitioner instead of availing of the opportunity of post-decisional hearing before the Committee has chosen to challenge the order by invoking extraordinary jurisdiction of this Court does not detract from the fact that order itself envisaged service of the order to furnish a cause of action for challenging the same. 32. In this connection the plea that if the petitioner were to file a suit for recovery of the claim, he might have to file a suit at Bombay has no bearing on the question of jurisdiction in the present case. It has to be borne in mind that present is a case which concern relief about impairing of the right of the petitioner in movable property distinct from a suit for the recovery of the money simpliciter. 33. Hence where suit for recovery of suit against his would lie cannot ipso facto govern the question of jurisdiction about claim where right to such recovery has itself been affected, not by debtor but by an act of statutory function. In the latter case what furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for making of the final order nor it could be equated with the service of the final order which affects the person's rights effectively at the place of service, as is the case in the present case, as discussed above. Therefore, for the reasons discussed above, the case is clearly distinguishable on facts. 37. I therefore find no substance in the preliminary objection about lack of territorial jurisdiction and the same is hereby overruled. 38. Another contention is that the petitioner has no privy of contract with respondent No. 1 SEBI. He has dealt in Stock Exchange only through respondent No. 3, a member of Stock Exchange. All dealings having been done through respondent No. 3, and respondent No. 3 having accepted the position that all disputes relating to dealing at Bombay Stock Exchange are subject to Bombay Courts, the petition can avail of remedy only at Bombay and not any where else. Argument look felicitous but is fallacious. The petition is not to enforce the agreements. What is the subject matter of the petition? According to petitioner transaction of 50,000 shares of Magan Industries offered by him for sale at auction has culminated in certain right accruing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suitor or respondent, depends upon his freedom. 39. The next preliminary objection which has been raised by the learned counsel for the respondents is that the impugned order dated 4-7-1996 be treated only as an interim order until decision is taken on the representa- tion made before it by respondent No. 1, the petition is premature and must not be entertained. Having carefully read the impugned order, I am unable to sustain the objection. Firstly, the order read as a whole leaves no room of doubt that the authority has reached its conclusion finally about the course of action to be adopted by it of impounding that part of auction proceeds received by Stock Exchange on completion of transaction in question could be used as per its (SEBIs) directions which represents the difference between the price which it considers to be the fair market price to be paid to the petitioner for the shares offered by him at auction for sale, to complete the pending transaction and the actual price received by the Stock Exchange by concluding the pending transactions by delivering those shares to the purchasers on recovering the purchase price from the purchasers at the transaction rate and diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change by dispensing with the requirement of adhering of the affected parties and has after making final order left it open for those who are aggrieved to seek post-decisional hearing. Thus, post-decisional hearing has been offered to those who are desirous of availing the opportunity of post-decisional hearing for review of their cases but is not an interim order as such subject to final decision after hearing all concerned. It may be noticed that so far as SEBI, it has not even thought it fit to inform about this order to affected parties when it admits of the fact that members as well as other persons are affected, nor even discloses who are the affected parties but left it to Stock Exchange to find out and inform such parties about the order. 41. Secondly, the contention which has been raised and requires consid-eration in the present petition and the other petition which has been heard along with it is whether SEBI had authority of law to make such order which results in depriving a person of his property. If it is not authorised by law, the authority cannot have such power to bring this result by way of interim order as well. Without going into the merits of the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances, ordinarily Court do not insist on availing of alternative remedy before entertaining the petition under Article 226. 45. In this connection enunciation of principle by the Apex Court in A.V. Venkateswaran, Collector of Customs v. Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 may be usefully referred to. The Court said: "The rule that the party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which courts have laid down for the exercise of their discretion. The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the Writ Petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, courts should not entertain peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties appearing in both the petitions and have argued at length on the common question of law having substantial importance. In the other petition, the impugned order passed by SEBI has been challenged before the appellate authority, and the appellate authority has sustained the authority of respondent No. 1 SEBI to impound proceeds of a transaction recovered by the Stock Exchange whether as a result of having recourse to auction or on closing up of transactions as a whole or in part on the ground of not permitting the holders of security, excess profits which tainted with illegality or are result of abnormal market conditions in the view of SEBI. Thus apart from the fact that ordinarily after matter has been argued fully on merit, it is not desirable to throw out the petition solely on the ground of availability of alternative remedy, insisting upon the present petitioner to avail of alternative remedy, before the appellate authority whose views are already known will be a futile exercise. 51. In my opinion, therefore in the circumstances of the present case, it is not a case, in which discretion ought to be exercised in favour of the objectors. Therefore this preliminary obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2-1994, at Bombay Stock Exchange it was Rs. 101/25; and on 11-10-1995 at National Stock Exchange was Rs. 345 between 18-10-1994 to 24-10-1995, the petitioner with the help of Lloyds Finance Limited and with the help of others purchased in all 94,800 equity shares of the RIL and during the same period he sold 32,900 shares of the RIL through Lloyds Brokerage Ltd. As a net result of these transactions petitioner was to receive delivery in all of 61,900 shares of RIL through Lloyds Brokerage Limited at an overall price of Rs. 471.06. Because of the failure of sellers in honouring their commitment about the delivery of shares, petitioner received only 5,200 shares resulting into transactions for purchase for remaining 5,6700 shares remain outstanding, for which petitioner was to pay consideration of Rs. 2,67,09,102. On 25-10-1995, that is to say after the date when petitioner had already entered into transac- tions of purchases and sales SEBI (Prohibition of Fraudulent and Unfair Trade Practice Relating to Security Markets) Regulations, 1995 (herein after called the Regulations of 1995) were promulgated. On 30-10-1995, Chairman of the Board directed that an investigation about buying a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 25-1-1996 issued by the Executive Director of the Board that monies collected in adherence of circular dated 30-10-1995 be transferred to investor protection fund of the concerned Stock Exchange. It also recorded that the investigation has been completed, necessary auction is being taken against the persons involved in the price manipulation under sections 1 IB and 24 of the Act for violation of the Regulations of 1995, and the trading in RIL was allowed to continue from 29-1-1996. The petitioner was not named as a person responsible for alleged manipulated market condition. This order was made without affording an opportunity of hearing to the petitioner and resulted in forfeiting his claim to get the difference price collected by the Stock Exchange as a result of closing up of a transaction at Rs. 565. 57. The petitioner appealed before the Central Government who by its order dated 22-5-1996 (Annexure A) were rejected. The appellate author- ity did not decide the question raised by the petitioner that since Regula-tions of 1995 promulgated and came into force after the close of trading period, during which the transactions aforesaid were conducted and therefore had no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter. 61. To complete the narration of facts it may be noticed that the petitioner has been contending that while SEBI directed per its order dated 30-10- 1995 to conduct the auction or close out the transaction at the last highest price, the Stock Exchange has violated these directives by closing out the transactions at Rs. 565, the price prevailing on 24-10-1995 instead of at Rs. 669, the highest price prevailing before the date of closing out. Suffice it to say that so far as this contention of the petitioner was concerned, another investor has on earlier occasion come before this Court challeng- ing fixation of the price at which squaring up has taken place by way of Special Civil Application No. 9450 of 1995 which was rejected by order of this Court dated 22-1-1996. Moreover, that act of violating the SEBI direction is attributed to National Stock Exchange which is not a party before us in this Special Civil Application. 62. In its reply the facts about the issuance of direction of SEBI on 30-10- 1995, the transactions having been ultimately settled by way of closing out at the price referred to above, and collection of the difference in transac- tion price and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directly affected at Ahmedabad as its effect fell on the petitioners at Ahmedabad and secondly that in view of the increased volume of activities of members of National Stock Exchange of India Limited, in view of its nation wide operations has with the permission of SEBI linked to offices of its members at various cities including Ahemdabad whereby the members have been provided full-fledged trading facilities through National Stock Exchange terminal installed in the offices of the respective members situated in various cities including the cities of Ahmedabad, Calcutta, Delhi, Madras, etc., it was under the said set up the petitioner placed his orders for purchase of share of RIL with Lloyds Brokerage Limited, Ahemdabad, a member of NSE at Ahmedabad only it was in furtherance of the said orders of the petitioner that the said member of National Stock Exchange through its National Stock Exchange Terminal at Ahmedabad entered into a contract for pursuance of 94,800 equity shares on behalf of the petitioner against the payment made by the petitioner at Ahmedabad for the said equity shares. Respondents have not thought it fit to deny these averments in the rejoinder affidavit of B.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck Exchange which is required to be gone into. Stock Exchange merely acted under the directions of the SEBI and if the directions failed, the consequence would follow automatically. Therefore, this objection is also not sustained. It is further made clear that in case petitioner succeeds he is free to pursue his remedies in accordance with law to enforce his claims in appropriate forum if occasion for the same arises. 66. It was also urged that at best the impugned order can be treated to be cancellation of the transaction of purchase entered by the petitioner and by cancellation of transaction he has suffered no loss, nor he has deprived of any of his property because he has never acquired shares or right in the shares delivered of which was not available. At best if the order of transferring the price recovered by the Stock Exchange is held to be illegal, the persons entitled to refund would be short sellers. 67. Arguments on the fact of it though felicitious does not stand the test of scrutiny. Firstly, this cannot be termed as preliminary objection but concerns the merit of the order. Secondly, orders having come into existence as a result of holding an enquiry and/or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laced for the perusal of the Court by the learned counsel for the respondents Regulation 9 in part B deals with closing out. Clause 9.1-1 states that a contract for securities made subject to rules, bye laws and regulations of the exchange may be closed out by buying in or selling out against a clearing member on his failure to comply with any of the provisions relating to delivery, payment and settlement of deals or on any failure to fulfil the terms and conditions subject to which the deal has been made. Closing out for deals settled through Clearing House is dealt with in clause 9.3 which entitles Stock Exchange to close out the transactions against any party in default on behalf of the receiving or delivering member as the case may be. Clause 9.8 says that the closing out by buying-in or selling-out shall be effected by Exchange initiated auction or by any other method which the Executive Committee or delegated authority may decide from time to time. Clause 9.9 makes it clear that save as otherwise provided the member at whose instance or on whose behalf the buying-in or selling-out is effected by the Exchange for the purpose of closing-out shall be responsible for the deal mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire price as per the highest price within the last six months or as fixed by the Exchange which consists of the recoveries made from the purchasers at the transaction price and short sellers of the difference becomes payable to the person who is entitled to purchase the security under transaction, if available. That is to say he not only gets refund of his part of consider-ation paid but also the difference recovered from short sellers. 70. Auction procedure or closing out is a method by which outstanding transactions are concluded, and not a process of cancellation of transac- tion and the purchaser who is entitled to buy the securities becomes entitled to such amount as a result of conclusion of his contract of purchase by closing out. It also clearly indicates that price at which closing out is to take place is highest prevalent price during last six months, that is to say on failure of short sellers to deliver the scrips, the ingredient of earning profit at the difference of highest price prevailing during last six months and the transaction price is the legitimate expectancy of profit, in case of close out. No ground for assuming a windfall of illegitimate profit can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Civil Application 2224 of 1996,1 reach to the conclusion that right to receive the full consideration by the offerer of shares at auction or right of purchaser to receive differential amount received by the Stock Exchange as a result of closing out of the transaction or non availability of scrips for delivery is an actionable claim of the offerer of scrips at the auction or the purchaser whose transaction has not been honoured and forms his property which as a result of directives of the Board to retain that amount to be utilised at the directions of the Board instead of it being paid to the persons who are entitled to it. As the rights of the petitioner to enforce such actionable claim is adversely affected by intervention of SEBI, their locus standi to maintain this petition cannot be doubted. 73. Before proceeding further to the discussions, it may be noticed common premise about which there is no dispute between the parties. Firstly, on the culmination of the transactions in the manner they have been culminated, the amount affected by the impugned orders would be property of the respective petitioners as their actionable claim which they were entitled to recover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or public purpose and save by authority of law which provides for compensation for the property acquired or requisitioned. With the 44th Amendment of Constitution, right to property lost its place as fundamental right guaranteed under part III of the Constitution. It did not lose its recognition nonetheless as a right which was protected. While Article 19(1)( f ) and Article 31 both were omitted by 44th Amendment. Article 31 clause ( 1 ) was re-enacted by inserting it as Article 300A reproduced hereinabove. This omission from part III and insertion as Article 300A affected the remedies available to citizen against its violation and took the right away from the inhibition of Article 13. At the same time, it did not alter the precondition required before a person is deprived of his property that there must exist authority of law. The scope and ambit of this requirement, did not alter with aforesaid amendment. 77. First question that calls our attention is what is meant by deprivation of property. Deprivation of property may take place in various ways. It may take place by way of destruction of property, by way of confiscation; by way of revocation of property rights granted by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w made by appropriate legislative process but not by way of executive instructions or by exercise of administrative discretion. 81. It was pointed out by the Supreme Court as early as in 1954 in Wazir Chand v. State of Himachal Pradesh AIR 1954 SC 415: "that State or its executive officers cannot interfere with the rights of others unless they can point to some specific rule of law which authorises their acts." 82. In Rai Sahib Ram Jawaya Kapur v. State of Punjab [1955] (2) SCR 225, Mukherjee, C.J., speaking for the court while considering the provisions of Article 266(3) of the Constitution which provides that no money out of the consolidated fund of India or consolidated fund of the State shall be appropriated except in accordance with law opined: "...Under article 266(3) of the Constitution no moneys out of the consolidated funds of India or consolidated fund of the State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution. The expression 'law' here obviously includes the Appropriation Act...." (p. 238) 83. In Bishan Das v. State of Punjab AIR 1961 SC 1570 the Court reiterated its vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry 54 of List II nor can be State Legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly .." (p. 922) 87. A controversy of the like nature again came up before the Supreme Court in a different circumstances in R.S. Joshi v. Ajit Mills Ltd. AIR 1977 SC 2279. That was in relation to section 37 of the Bombay Sales tax Act which provide for forfeiture of sum collected by dealers by way of sales tax though not exigible to the public exchequer punitively. The Court, while generally agreeing with the principles enunciated in R. Abdul Quader Co.'s case ( supra ) , drew a distinction between the ratio laid down in Abdul Quader Co. 's case ( supra ) on the ground that while it was construing a provision providing for recovery simpliciter, the case is Bombay Sales tax arose out of a provision for forfeiture of sum collected by a dealer which was not tax payable under the Act was construed as punitive measure for something done by the dealer contrary to the provisions of sales tax concerning the authority of the dealer to collect the amount of tax payable to the State exchequer of sales transacted by him from the purchasers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the State Legisla-ture is competent to legislate and is not confined to the matter over which the Legislation has been passed already. It was urged before the Supreme Court in Thakur Bharat Singh's case ( supra ) that even if there is no Legislation in support of the impugned act, as the State has Legislative power to enact in respect of the subject matter in respect of which the State action has been challenged, hence, it has necessary authority to support the action while exercising its executive power which is coexten-sive with legislative power. The Court repelled the contention and explained the observation made in Rai Sahib Ram Jawaya Kapur's case ( supra ) by pointing out that though the action in Rai Sahib Ram Jawaya Kapur's case ( supra ) was not supported by legislation but it did not operate to prejudice of any citizen and the court had held that by the action of State Government no rights of the petitioners were infringed since a mere chance of having particular customers cannot be said to be a property or to any interest or undertaking. It is clear that the State of Punjab had done no act which infringed a right of any citizen; the State has merely en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State under article 162, deprive the person of his property. Such power can be exercised only by authority of law and not by an executive order. Art. 162 as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore necessarily subject to Art. 300A. The word law in the context of Art. 300A must mean an act of Parliament or of a State Legislature, a rule or a statutory order having the force of law, i.e. , the positive or state made Law. " 93. The Court also reaffirmed the view stated in Wazir Chattel's case ( supra ) and Bishan Das's case ( supra ) that an illegal seizure amounts to deprivation of property without authority or law. It clearly spells that an order of seizure of property by any authority dealing with enforcement of law or as an investigating agency as a measure of making law effective amounts to deprivation of property and unless such seizure is authorised by statute under which it is acting, the seizure will be illegal and cannot be considered authorised by law which could be saved, merely because it can be said to be to fulfil the object of the enactment as being remedial against breach of law. 94. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged. The duty was sought to be defended on the ground that this was a measure to recoup the State of the charges of appointing officers in charge of the various breweries in the State by demanding a sum equal to the duty leviable. The provision of the rule was sought to be defended on the basis of the generality of the powers of framing the rules for the purposes of the Act. Whether such delegation satisfy the test of article 265 of a tax imposed to the authority of law. The Court negatived the contention by holding: "10. Now with regard to the suggested wide amplitude of section 62(2)( h ) and section 28 and condition of licence, all we need to say is that though under section 28 licences are issued on the prescribed forms and on payment of such fee as prescribed and licences containing such particulars as the State Government may direct etc., this power even though wide is yet confined within its frame and can in no event assume the power to impose or levy a tax or excise duty by means of a rule without the sanction of the Act...." (p. 1397) 98. In Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla AIR 1992 SC 2038, affirming the view tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me view was expressed by Lord Porter when he opined: "A man is not to be put in peril upon ambiguity however much or little the purpose of the Act appeals to the predilection of the Court." 102. Construing the provisions of Bombay Act No. 57 of 1947, in the case of Tolaram Relumal v. State of Bombay AIR 1954 SC 496, the Court approved the opinion of Lord Macmillan in Berriman's case ( supra ) by holding: "It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the function of the Legislature." 103. These were with reference to interpreting existing penal provision. It is a clear indication that even where a provision for levy of penalty exists and is ambiguous in its expression a person cannot be subjected to such provision by stretching the same. Therefore, it is not possible to subject a person to penal consequences of his acts without there being a specific provision at all on the basis of intendments alone. 104. Decision in Indian Council for Enviro Legal Action v. Union of India, AIR 1996 SC 1446 was also referred to, where the Apex Court in a petition under article 32 directed the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded hereinbefore, that respondent Nos. 4 to 8 are absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove the sludge and other pollutants lying in the affected area...." (p. 1465) The Court further said: "67. The question of liability of the respondents to defray the costs of remedial measures can also be looked into from another angle, which has now come to be accepted universally as a sound principle, viz., the 'Polluter Pays' Principle. 'The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution. Under the principle it is not the role of Government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer ."(p. 1466) 105. Thus the obligation to defray the cost of remedial measures of removing pollution was held to be of the polluter under common law. Issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status. Property, therefore, within the constitutional protection, denotes group of rights inhering citizen's relation to physical thing, as right to possess, use and dispose of it in accordance with law...." (p. 160) It reiterated: "The word "property" used in article 300A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and expropriated the property. No abstract principles could be laid. Each case must be considered in the light of its own facts and setting. The phrase 'deprivation of the property of a person' must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Article 300A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by the Parliament or of a State Legislature, a rule of a statutory order having force of law... Public interest has always been considered to be an essential in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot acquisition is not deprivation of property and could be sustained without authority of law envisaged under article 300A contrary to principle enunciated in Wazirchand's case ( supra ) and in Bishambhar Dayal Chandra Mohan's case ( supra ) which laid down that forfeiture of property for alleged breach of law amounted to deprivation of property and unless authorised by specific law could not be sustained under article 31(1)/300A. 112. The decision rather reaffirms and reiterates the principle above the necessary requisites of authority of law laid down by Supreme Court in each case as discussed above, and has also drew attention to effect of omission of clause (2) of article 31 in resuscitated provision of article 31 in article 300A on the question of requirement of payment of compensation on assuming eminent domain of any property by way of acquisition. The question of finding the ambit and scope of deprivation through taking possession or acquisition of property by assuming eminent domain not arising in this case. The question, whether impounding, full or part of amount, otherwise recoverable in law from a person, amounts to depriva-tion was not the subject matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the learned counsel about drawing a distinction of requisite authority under article 265 or under article 300A, where the Constitution requires a like pre-condition before a tax is imposed or a person is deprived of his property. I may also notice that since a separate provision has been made for imposition of tax under article 265, the imposition of tax has not been held to be deprivation of property to be governed by article 300A. 114. The learned counsel for the respondent placed reliance in this connection on decisions in District Council of the Jowai Autonomous District Jowai v. Dwet Singh Rymbai AIR 1986 SC 1930 and in Khargram Panchayat Samiti v. State of West Bengal 1987 (3) SCC 82 distinguished in the decision in Ahmedabad Urban Development Authority on the ground that the Supreme Court itself has distinguished the two cases relied on by the Ahmedabad Urban Development Authority in its favour to come to a different conclusion. The fact that the decision in Ahmedabad Urban Development Authorities case distinguishes the two authorities does not lead to the conclusion that it supports the respondents plea about inferring an authority of law withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential to the power itself." 116. It is this later part of the aforesaid ratio which is emphsised by learned counsel for the respondents for making a distinction between the decision in AUDA which concern levy of fee from the person which concerns deprivation of property. With all the deference to the learned counsel it may be noticed that reason for inapplicability of the case to such require-ment of a specific provision has been stated by the Supreme Court in the following words: "That the decision in Khargram Panchayat Samiti also deals with exercise of incidental and consequential and the same does not impose tax and fee the same can be said with respect to the present proviso. Here we are concerned with the power of authority to deprive a person of the property and in exercise of power in the field of administrative law by way of making orders incidental or ancillary power actually conferred on it." 117. In view of the consistent view taken by the Supreme Court as discussed above whether under article 265 or article 31 as it existed prior to its deletion in Constitution 44th Amendment Act, 1978 or under article 300A it is not possible to accept the plea of distingu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that the control held and exercised by the Central Government by virtue of provisions of Industrial Development and Regulation Act is not a field far removed from the tax under Entry 54 list 2 so long as it is within the control of the Central Government in its power under the Act in respect of a controlled industry falling under Entry 52 of the list 1 cannot in any manner prevent the State from imposing the tax on the sales or purchase of goods which are the products of such industry and which are referred to in Entry 33 of list 3. As seen above, the taxing power of the State under Entry 21 of the power of control, Sahai, J. concurring with Justice Thomas held: "Therefore the entire basis for striking down the levy that even though the State had plenary power to impose tax on sales/purchase of goods it can exercise taxing power under Entry 54 of List II so long as it does not militate against the legislative field occupied by the Central Government under the IDR Act or any other enactment made under Entry 53 of List I proceeded on complete misconception of taxing powers of State. In fact as stated earlier the entire theory of occupied field or State legislation being rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstraints on the State action for bringing about a desired result, the scope and ambit of such restraints cannot be different while construing the exercise of State power in that regard. As has been noticed above, and about which there is no dispute either that the impugned action results in depriving the petitioners of their property within the meaning of article 300A of the Constitution and for bringing about that desired result, the authority of law is needed. It is also not in serious dispute that the authority of law required must be an authority conferred by legislative process and not by way of administrative discre-tions. In fact the learned counsel in his written submissions has candidly stated that authority of law envisaged under article 265 for the purpose of imposing tax requires a specific power before it can be imposed. What is contended by the learned counsel is that interpretation of a taxing provision, with this well accepted principle of being strictly construed and requiring of a specific power before a tax can be imposed, is a different proposition compared to the interpretation of a remedial legislation concerned inter alia while taking action to remedy a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in applying the observations in Heydon's case to the provisions of any statute, it must always be borne in mind that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothe-tical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. 126. It was further pointed out that the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of section 25F of the Industrial Disputes Act, 1947. In the context of relief to be granted where termination was held to be contrary to the provisions of section 25F. Against the claim of the workman whose retrenchment was found to be in breach of the provisions of section 25F of the Industrial Disputes Act to reinstatement with full backwages, a plea was put forward by the management that Industrial Disputes Act did not render the termination of a service of the workman void ab initio and would make it invalid and inoperative that the Court without setting aside the termination of the services of the workman on the ground of failure to apply the provisions of workman with full backwages may would the relief to reinstatement with payment of suitable compensation. Parity was drawn between the cases under sections 33 and 33A of the Industrial Disputes Act. 132. It is in the context of the said contention, the court made it clear: "... the Court is not to make inroads by making etymological excursions. 'Void ab initio', 'invalid and inoperative' or call it what you will, the workmen and the employer are primarily concerned with the consequence of striking down the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 135. Reliance was also placed on Krishnachandra Gangopadhyaya v. Union of India AIR 1975 SC 1389. It was a case where in the first instance rule 20(2) of Bihar Minor Mineral Concession Rules, 1954 framed by the Bihar Government under section 15 of Mines and Minerals (Regulation and Development) Act, 1957 were held by the Supreme Court to be ultra vires the authority of the Bihar Government's power to frame Rules under section 15 in Baijnath Kedia v. State of Bihar AIR 1970 SC 1436. The Parliament enacted thereafter Validation Act, 1969 which provides the laws specified in the laws and objects as valid as if the provisions contained therein has been enacted by Parliament. The Act also validated the action taken under the Rules which have been declared invalid by the above referred decision of the Supreme Court. The Court held: "If a validating law by Parliament merely validates invalid State law which is outside the State list, such a Validating Act would be invalid. It is for the Constitution, not Parliament, to confer competence on State Legislatures. But where Parliament which has power to enact on a topic actually legislates within its competence but, as an abbrevi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be found by tools of statutory interpretation. Statutory interpretation, when conflicting rules operating in different directions becomes a murky area. One contention raised was that constitutional provisions must be construed literally and rules of interpretation of statutes applied to legislation made by Parliament may not be applied to interpretation of Constitution. It is in that context the court said: "... What is true of the interpretation of an ordinary statute is not any the less true in the case of a constitutional provision, and the same rule applies equally to both. But if the words of an instrument are ambiguous in the sense that they can reasonably bear more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision, if read literally, is patently incompatible with the other provisions of that instrument, the court would be justified in construing the words in a manner which will make the particular provision purposeful...." (p. 2328) 139. In saying so that Court referred to its earlier decision in M. Pentiah v. Muddala Veeramallappa AIR 1961 SC 1107, wherein the court quoted with approval the words of Lord Denning's ill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next decision to which reference in this connection has been made in N.K. Jain v. C.K. Shah AIR 1991 SC 1289. 142. Again that was not a case where question of having necessary authority of law required for the purpose of taking action resulting in deprivation of property or imposition of tax etc., was at issue. The question that specifically had arisen was a provision of levying penalty on an exempted establishment under Provident Funds and Miscellaneous Provisions Act, 1952 was existing under section 14(2A) of the Act where such exempted establishment has contravened any of the conditions subject to which exemption was granted. A question has arisen in the circumstances on such contravention of conditions exemption certificate has been cancelled, whether cancellation of such exemption amount to levy of another penalty envisaged under section 14(2A) so as to render section 14(2A) inapplicable to such exempted establishment. The Court after referring to the principle enunciated by Lord Denning referred to above, and considering the meaning of penalty has stated categorically that while considering the scope of section 14(2A) they have proceeded adhering to the language of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the issuance of certain directions as additional regulatory measure, which were incidental to directions already issued and were to be effective having force of law and the question raised was about the ambit of provision of parent statute to have within its sweep authority for making such provision regulating the conduct of non-banking companies as a matter of law, quite distinct from making an order as a result of enquiry bringing home desired conse- quences on a person, without there being an existing rule of discipline or Code of Conduct having force of law authorising making of such order. 146. It will be necessary in the context to note some facts in the RBI's case. It related to challenge to validity of direction contained in paragraph 4-A inserted in Residency Non-Banking Companies (Reserve Bank) Direc-tions, 1987 by notification dated 19-4-1993 as under as ultra vires the RBI Act, 1934. "4A. No residuary non-banking company shall take from any depositor/ subscriber to any schemes run by the company, with or without his consent, any amounts towards processing or maintenance charges or any such charges, by whatever name called, for meeting its revenue expenditure: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as law on the one hand and making an order depriving a person of his property without first laying down such legal authority. A measure which could be treated as a positive law laying down a rule of discipline and providing also for consequences of breach of discipline which is incidental and necessary for its main purpose, can be treated within the authority, conferred on such authority for making such orders, rules, regulations, directions or orders having force of law. As seen above, the Supreme Court was dealing with a case where a direction issued by it inserting paragraph 4A, designed to have force of law, laying down the Code of Conduct for the institutions covered by it was challenged on the ground of it being ultra vires the Act. Whether laying of such a Code of Conduct was within the authority of RBI under the Act or not, the court answered the question in affirmative by referring to sections 45K and 45L of the Act. Likewise if SEBI were to lay down a code of conduct to be applied by persons who could be dealt with by it under the Act, and also prescribes consequences of breach thereof, the question will be SEBI's competence to lay such code of conduct with all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on following observation of Supreme Court in Delhi Development Authority v. Skipper Construction Co. (P.) Ltd. AIR 1996 SC 2005 wherein the Court directed restitution of position arising out of fraud of DDA officers which action included forfeiture of their ill-gotten money and acquisition of assets through bribes: "The absence of statutory provision will not inhibit this Court while acting under the said Article from making appropriate orders for doing complete justice between the parties. The fiduciary relationship may not exist in the present case nor is it a case of a holder of public office, yet, it is found that someone has acquired properties by defrauding the people and it is found that the persons defrauded should be restored to the position in which they would have been but for the said fraud, the Court can make all necessary orders. This is what equity means and in India the Courts are not only Courts of law but also Courts of equity." 154. However, one is unable to find any support for the plea of the learned counsel to read the provision of statute to include power to forfeit even if the same does not exist or to confer power on the statutory authority c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no person shall be deprived of his property save by authority of law and as we have seen above the law in the context means positive statutory law, whether framed by the Legislature under its preliminary powers or by the Subordinate Legislature of being authorised to make such law, one thing must be accepted that existence of law must be antecedent to actual act of deprivation takes place, enabling the authority to take that action. Such a power cannot be exercised in the absence of pre-existing authority or such a power cannot be deemed to exist merely on the ground that action taken by the authority can be related to the purposes of the Statute for which the power has been in fact, exercised unless Statute under which power has been exercised, also authorises such action which has the effect of depriving a person of his property. 158. When we speak about the law under article 300A or under article 265 or under article 266(3), it means the statutory law or rules or code of conduct prescribed by the legislative process. Legislation itself signifies the act of giving or enacting laws, the function of the Legislature is to frame and enact laws or formulation of rules for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is; or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a Resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom, we hold that a law cannot come into being in this way. Promulgation or publication of some reasonable sort i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the parties on the ground of being unjust enrichment. 170. The Securities and Exchange Board of India ('The Board') was established under section 3 of the Securities and Exchange Board of India Act, 1992. The preamble reads to provide establishment of the Board to protect the interest of the investors in securities, to promote the develop-ment of and to regulate the securities market and for matters connected therewith or incidental thereto. Section 11 casts a duty on the Board to achieve aforesaid objectives by such measures as it thinks fit subject to provisions of this Act. Sub-clause (2) provides that without prejudice to the generality of the foregoing provisions, the measures referred to in sub-section (1) may provide for various specified matters enumerated therein which includes under clause ( e ) 'prohibiting fraudulent and unfair trade practices relating to securities markets'. Section 11B empowers the Board to issue such directions as may be appropriate in the interest of investors in securities and securities market, if after making or causing to be made an enquiry, it is satisfied that it is necessary in the interest of investors or orderly development of the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight, to recover the amount which has crystallised into actionable claim as the result of completion of transactions of securities, whether by actual execution of contract through delivery of securities or by act of Stock Exchange in settling the transactions by inviting auction or closing out the transactions, under any provision of Act, Rules or Regulations. 171. The argument in the broadest sense is that section 11 which cast a duty on the Board to achieve the objectives and purposes of the Act and for that purpose empowers the Board to adopt and take such measures as it think fit embraces within its fold in appropriate cases to forfeit the profit which it considers are result of a manipulated market, particularly in respect of those persons about whom it is satisfied that they are respon- sible for such manipulation, and the contention at its narrower point is two fold that in regulation 12, there has been specific empowerment of depriving a person of his profits arising out of such manipulated market and even if it is not covered by Regulation 12, such power is to be read in provision of section 11B which empowers the Board to issue such direc-tions as may be appropriate i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to precede before subsequent acts are required to conform to such action plan devised. 176. Thus, constituted the ambit of authority of Board under section 11 is to make a plan or adopt a course of action for regulating securities market or safeguard interests of investors in securities. The action plan of the Board to achieve the objectives may be in the form of executive instruc-tions, it may be by way of subordinate legislation or in the form of directions or order which the Board is otherwise specifically authorised to make under various provisions of the Act or rules framed thereunder or even if authorised by any other law for the time being in force as envisaged under section 32 of the Act. However, before action in terms thereof is taken in order to be a touchstone to which any actions of persons to be dealt with by the Board are to be tested and action of the Board to dealing with such persons can be tested. Such plan or course of action which the Board may adopt to achieve its object, shall obviously have to be delineat-ed. Such plan or action or measure envisaged may be in the form of a legislative act or direction which may be issued on arising of such a situati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 919)' 179. In this connection, it may also be noticed that Church of England Assembly Powers Act, 1919 empowered. The National Assembly of the Church of England to take measures concerning the Church of England. The measure passed by the National Assembly of Church of England by itself was not a Statute, but if such a measure was laid before the Parliament and presented to the Queen in pursuance of the resolution of each House of Parliament, it had the force and effect of an Act of Parliament. It was also the case that the Parliament had no power to amend such measure passed by National Assembly of the Church. This distinction was clearly made in Halsbury's Law of England, IVth Edition, 44th Volume in Para 802 where it said that a general Synod measure is not a Statute. However, if such a measure is laid before the Parliament and is then presented to the Queen in pursuance of the resolution of each House of Parliament, it has the force of law. It has force and effect of the Act of a Royal assent being given to it. 180. In 34th Volume Para 1226 of Halsbury's Law of England stated the proposition about power of General Synod of the Church of England to take measures as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers so given are no doubt very extensive and very drastic but they do not include the power to levying upon any man payment of money; which the Food Controller must receive as part of national fund can only apply under proper sanction for national purposes. However the character of this payment may be clothed .. the result in that the money so raised can only be described as a tax the varying of which can never be imposed upon subjects of this country by anything except plain and direct statutory measure." Lord Wrenbury express the same view in slightly different language when he opined: "The Crown in my opinion cannot here succeed except by maintaining the proposition that where statutory authority has been given to executive to make regulations controlling acts to be done by Her Majesty's subjects or some of them may without express authority so to do demand and receive money as the price of exercising power of control in a particular way, such money to some public purpose to be determined by the Executive." 182. Thus it is apparent that House of Lord did not agree with the contention of Attorney General, that wide executive power to regulate and make any order it dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o legal basis for these demands by Government we consider that it is not possible to characterise them an anything else than as taxes. They were imposed compulsorily by executive and are sought to be collected by the State by the exercise inter alia of coercive statutory powers, though these latter are vested in Government for very different purposes..." (p. 1790) 187. The ratio of the aforesaid decision comprehensively repels the contention of the Board to justify the order by treating it not a measure of penalty, as falling under the authority of section 11 read with section 11B. 188. From the tenor of orders and pleadings it is apparent that primary object of the orders in present case is to reach the funds generated as a result of close up/auction transaction by carrying them to Investor's Protection Fund. On specific query it was stated that as on that day no such Fund has been created or is existing which is administrated by SEBI. That is to say action of the Board was clearly directed to object of getting funds for the purpose of establishing a fund for the protection of investor's interest, which is one of the object for it to fulfil. It betrays that action was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty has been cast on it. The measures may be of legislative character as well as of administrative character. Sub-section (2)( e ) specifically authorises the Board to take measures for prohibiting fraudulent and unfair trade practices. This provision unfolds the scheme that the Board can make a plan or provide for such prohibition. This necessarily implies that Board while prohibiting may have to define what are fraudulent and unfair trade practices vis-a-vis any security market. As an ancillary measure it may also provide for consequences of indulging in practices prohibited. It may be noticed that the Act itself has not provided for any such prohibition of fraudulent or unfair trade protection, nor has defined the same, but has left such measure to be taken by the Board. Hence, some positive act by the Board providing prohibition of such practices must precede before any action could be taken against any person for alleged crossing the prohibiting lines. Only on breach of such prohibition by such person question would arise for determining whether the act of that person is in breach of such prohibitory measure and for taking a decision on what consequences to be visited on defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent Board that the fact that Board is authorised to frame regula-tions, does not oblige the Board to frame regulations. It is mere enabling provision. It can take appropriate measures even without framing regula-tions, which it is empowered to take under the Act and that by framing certain regulations, ambience of its power generally to take measures to fulfil its objectives are not exhausted. Hence even if the impugned orders do not fall within the Regulations of 1995, the same do not become beyond its authority to take measures under section 11. As already discussed the power to take measures can be considered akin to executive power of State to do and act in all the fields to which legislative power of the State or Union, as the case may be extends. 197. In such cases, the executive authority extends to entire field not covered by statutory provisions. However, that is subject to one inhibition. If doing of certain act or exercise of certain power in particular field is required by constitutional provision to be sanctioned by legislative pro- cess, the exercise of authority in that field can only be subject to existence of such legislative sanction and cannot be tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such measures as desired to be taken by the Board is not necessary requirement for action taken to enforce the breach of measure adopted by the Board. The issue had arisen in connection with the power of Electricity Board to ration the supply of electricity the action of the Board in fixing higher rates for consumption of excess of ration quota consumed by a consumer which was challenged. The Supreme Court was called upon to decide the issue in the context of the contention that the Board had no power under section 49 of the Act of 1948 either to impose rationing and introduce the different categories of rationing without framing Regulations. It was in that context, the Court had observed that the recognition of the fact that the Board can introduce rationing amounts to concession that Board has power to enforce ration- ing and to enunciate the principles for determining the scheme of such rationing, and the source of power to introduce rationing flew from the Act itself. For exercise of that power framing of Regulation was not necessary. It may be noticed that when power to rationing was given under the statute and power to frame Regulations was also given, the question was whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oni Cotton Mills Ltd.'s case ( supra), Ahmedabad Kelavani Trust v. State of Gujarat 1996 (1) GLR 671 and AIR 1971 Guj. 62 (sic) do not carry further the contention of the learned counsel. 202. Section 11B to which reference has been made closely read, indicates that it is in the nature of issuing command to persons referred in the provision. If as a result of an enquiry, the Board is satisfied about the necessity of issuing such direction for the twin purpose viz., if the same is considered to be in the interest of investors in the securities and the orderly development of securities market. Obviously it is not a power in the nature of adjudication by way of imposing penalty or bringing civil consequences to an affected party as a result of adverse finding in an enquiry in particular, but for commanding a person to do certain act or to forebear from doing such an act, such commands for the purposes of furthering the interest of investors in the securities in general or further- ing the interest of the orderly development of securities market or for preventing the affairs of any intermediary or other persons referred to in section 12 being conducted in a manner detriment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule of the Constitution. The court construed the provision of 'forfeiture' to be penalty and not a civil liability to pay tax. When forfeiture was treated as a penalty for committing breach of taxing statute. Such provision for penalty were held to be within the scope of power to levy and collect tax on principle that power to legislate for levy and collect tax include power to make all incidental and ancillary provision to make the levy effective. It was not a case where the order of forfeiture was made by taxing authorities without any specific provision but was supported on the avail of substantive power to tax itself to include power to do all acts which are incidental and ancillary for levy and collection of tax. 206. The context in which the power to issue directions have been conferred on the Board under section 11B to any person or class of persons referred to in section 12 or persons associated with the Securities Market or to any company in respect of matters specified in section 11A further goes to show that while section 11 authorises, empowers and enables the Board to lay down whether an action plan to be adopted for the various purposes whether in the form o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain acts to whom such directions are aimed. 208. Term 'directions' denotes issuance of instructions to be followed by the persons who are subjected to such direction. The New Shorter Oxford Dictionary gives the meaning of direction as ( i ) action or function of directing guidance, instruction, management; ( ii ) instruction of what to do, how to proceed or where to go. 209. The Oxford English Dictionary Vol III also defines expression 'direc-tion' as guidance, conduct; of instruction how to proceed or act right; authoritative guidance, instruction. 210. In Black's Law Dictionary, the meaning assigned to word 'direction' is as that which is imposed by directing; a guiding or authoritative instruc- tion or command. 211. In view of the above, it cannot be said that section 11 by itself or section 11B by itself or both read together furnish specific authority of law needed before a person could be deprived of his right to recover the sale price of scrip sold by him which has been recovered and reached the Stock Exchange, in terms of article 300A, though it can be said that by adopting legislative method which may result in coming into force of a regulation or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storing the status quo ante ; because rest of the entire provision reflects the nature of directions that can be issued to any person who is concerned with compliance of any provisions of the Act, Rules or Regulations as a result of finding in the enquiry. The Regulations thus directly deal with the person, who is found to be concerned with non-compliance of the Act, Rules or Regulations to be dealt with by the Board for the purposes of ensuring due compliance with the provisions of the Act, Rules and Regulations as a result of enquiry and the whom specific type of directions can be issued for the purposes of securing the compliance. One way of reading clause 12 is to read for restoring the status quo ante with each of class as a purpose for which direction can be issued. Another way of reading the provision is to limit the condition of issuing directions for the purpose of restoring status quo ante only to sub-clause ( d ) and other sub-clauses of Regulation 12 to operate independently. We shall examine from both the points of view. 214. At the first instance it was urged that clause ( a ) of Regulation 12 empowers issuing of directing of a person not to deal in security ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with the Stock Exchange regulation at existing market rate or market situation and then to direct the person entitled to such amount to be paid a part of amount only and impound the balance. The very fact that the balance price is to be impounded inhers into it that the transaction as carried out stands valid requiring passing of the stipulated consider- ation in accordance with the transaction and Stock Exchange regulations. Once that stage has reached the seller becomes entitled to the sale proceeds and thereafter directing him to take part of the consideration and retaining part of it by the Board defies the logic of contention of the respondents that it is the manner in which the person concerned has been directed to deal in securities as it would directly amount to selling of the scrips at price 'A' and then split it between the seller and the Board; whether by way of imposing penalty on the seller or sharing the proceeds earned by him. In either way, such a direction cannot be a direction for the concern to deal securities in any particular manner, but is a clear case of sharing consideration, or profit. Therefore, the contention that clause ( a ) spells the authority of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re recovered, the recipients becomes the acquirer of proceeds and he loss all rights, interests in the securities which have been sold by him and delivered to the parties. The rights or interests in such securities vests in the transferee and not in the transferor whose only right or interest that survive as a result of sale transactions is to be receive the consideration and not the securities. 221. Moreover, the regulation envisages direction to 'deal in' the securities concern. The term 'deal in' indicates to a commodity that may be subject to dealing in Stock Exchange in the context of whole scheme. It cannot be said that proceeds of scrips is commodity which can be dealt with by a person as security at Stock Exchange. Therefore on the plain reading of the provision and also in the context of the facts and circumstances raised before me it is not possible to accede to the contention of the learned counsel for the respondents that under clause ( d ) the Board could issue directives in respect of consideration of securities arising out of a com- plete transaction, by treating the proceeds of a complete transaction as 'security' for the purpose of clause ( d ) . 222. Assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent the only directives in any case which can be issued must have relation to restoration of status quo ante. In a power to issue directives to restore status quo ante there cannot be any room for forfeiture of the amounts received by the Stock Exchange to be utilised at the behest of the Board as that cannot be a directive for restoring status quo ante. That can only be in the nature of curtailing right of the someone. If as a result of directions certain transactions can be cancelled or held to be void, the consideration recoverable under the directives would be nil and there will be nothing left for the Board to impound. If the transactions are directed to be completed at a particular price, then the transaction would be completed at that price crystallizing the rights of the two parties at which the transfer of shares had taken place, and there will be no occasion for recovery of additional consideration which could be avail- able for impounding. The question can only arise in a case of completed transaction and proceeding have reached someone's hands. Thereafter, if the impounding of any sum is to be made, in the event such impounding would be of the property of perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Board could be sustained as authorised by law within the meaning of article 300A when the action of the Board results in depriving a person of his property. As discussed above, authority of law required for sustain-ing the deprivation of a person of his property so as to be valid it must be an authority of law made through some legislative process, or so to say, of a positive law, within the scope of legislative competence of law making authority. 229. It may be viewed from yet another point of view. The parent Act had provide for consequences of breach of any regulation, framed under the Act as an offence punishable under section 24. It also provided for penalties for breaches of certain Regulations under Chapter IV-A. In exercise of its powers, particularly with reference to section 11(2)( e ), it has particularly framed Regulations of 1995 in the field of providing for prohibition of a fraudulent and unfair trade practices. These regulations also provided for certain consequences to flow to a person concerned who are found to be concerned with fraud or unfair trade practices as a result of enquiry held under Regulation 8. Therefore, the field of providing consequences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board if it is satisfied after an enquiry and after affording an opportunity to the person concerned that a person has acted in breach of Regulations by dealing in the manner which can be considered as a fraudulent or adoption of unfair trade practices. The authority conferred on the Board is to issue directions to restore status quo in respect of the transactions which have been conducted fraudulent- ly or adopting unfair trade practices, and to restrict the person concerned to deal in securities in any particular manner, but it neither authorises imposition of any penalty for breach of such regulation nor authorities SEBI to retain the amounts recovered by the Stock Exchange as a result of completion of transactions which have become actionable claims in the hands of offerers, for the purposes of its user at the direction of SEBI. It is also clear that action under regulation does not reach any person who is not person concerned with the alleged irregularities. Therefore, it is difficult to hold that there exists an authority of law whether under Regulations or under the Act in favour of the Board to retain the amount of completed transactions in accordance with the prevalen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share such windfall profits it has resorted to statutory provisions within its legislative field by enacting appropriate taxing provisions. Windfall profits are as much amenable to taxing statutes as earned profits. The statute, in my opinion, does not take within its sweep the measures, which are intended to regulate prices for limiting profits that can be earned by trading activity. This is not to say that Board cannot take measures to regulate market to ensure fairness in trading activity and to keep it free from fraudulent or manipulative practices and to provide for penal consequences as ancillary measure, as distinct from measure primarily to curb profits. Though in either case there will be deprivation of profits, the one will be in the realm of ancillary and incidental to achieve the object of regulatory measure under a statute the other will be collated to levy of tax. Former may be justified exercise of legislative authority delegated under the Act the latter may not be except as a levy of tax authorised by law under appropriate entry, by parent Legislature. 235. In Bombay Dyeing Mfg. Co. Ltd. v. State of Bombay AIR 1958 SC 328, the court held the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of penalty but for restoring the market condition. 239. The Central Government while hearing appeal has found it unneces-sary to afford an opportunity of hearing at all in respect of the impugned order, because in its opinion it did not at all affect the petitioner adversely to raise any grievance about it. Since I have reached conclusion that the orders do affect petitioners adversely, ordinarily this lack of opportunity to the persons affected by order would alone be sufficient to vitiate the order and render them void ab initio unless adherence to principles of natural justice can be deemed to have been excluded by statutory provisions expressly or by necessary implication. In the instant case, there is no plea, nor it can be that there is any such exclusion of applying the principles of natural justice before making orders affecting the rights of parties. On the contrary it will be seen presently that there is express mandate in the parent statute itself as well as in the regulations for affording an opportunity of hearing before orders can be made. However, two alternative pleas have been raised by the respondent to save the situation. Firstly, it has been urged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that process of selection was stinking, conceived in fraud and delivered in deceipt, and Anand Kumar Pandey's case {supra) dealt with a case where candidates at Selection examination adopted mass scale unfair means obviously cannot apply to the facts of the present case inasmuch as it is not a case where transactions which have taken place during the manipulated market conditions or culminated in manipulated market conditions are sought to be cancelled so as to leave a clean slate to start again. It is a case where the transactions in question in respect of which impugned orders of impound-ing considerations received on conclusion of outstanding transactions by the respective Stock Exchanges have not been made to score out the transactions that took place during manipulated conditions as a result of irregularities or illegalities. 243. Biswa Ranjan Sahoo v. Sushanta Kumar Dinda JT 1996 (6) SC 515 also was a case in which the principle of natural justice was held to be excluded where cancellation of entire selection was directed as a result of mass malpractice. The Court observed: "That in the case of selection of an individual his selection is not found correct i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rations as would have taken place on completion of trans actions in ordinary market even without intervention of the Stock Ex change. In fact the order in one case results in splitting up of the consideration between the party to transaction and the statutory func- tionary by allowing payment of part consideration to the claimant and impounding the balance to be used at its direction and in the second forfeiture of the amount difference recovered by Stock Exchange which was required to be handed over to the purchasers whose transaction could not be carried out due to breach of contract by the other party, on the ground that the wind fall profits are not liable to be retained by the person concerned irrespective of the fact whether he is party to manipulation or not. Such an order by no means can be construed to restore status quo leaving the slate clean for future operations. Therefore principles applied to set at naught the results en mass as a result of mass scale irregularities, without fixing individual liability or responsibility on person concerned so as to charactise it as a penalty cannot be applicable to present circumstances. 246. As has been seen earlier in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for post decisional hearing or in the absence of necessary provision of pre-decisional hearing in the rule itself it cannot be held that purpose of exercise of the power may itself be defeated if pre-decisional hearing is insisted upon that the post-decisional hearing is required to be given and if that is done in such cases the exercise of power would not be vitiated. 250. It can be seen that in the precedents relied on by respondents in none of the cases there was any specific requirement of hearing in statute. Post decisional hearing was considered to be proper only as an exceptional measure in very emergent nature of action required to be taken, in the absence of statutory requirement. 251. In Olga Tellis' case ( supra ) the Court was interpreting provision of Bombay Municipal Corporation Act which provided that Municipal Com missioner may without notice take steps for removal of encroachments. Thus it was a case in which pre-decisional hearing was not necessary part of statutory requirement and statutes also enabled the authority to act even without notice. It is in these circumstances court held that it being enabling provision conferring power on the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat oral evidence should be adduced. Indeed, it is not even imperative that written statements should be called for. Disclosure of the prominent circumstances and asking for an immediate explanation orally or otherwise may, in many cases, be sufficient compliance. It is even conceivable that an urgent meeting with the concerned parties summoned at an hour's notice, or in a crisis, even a telephone call, may suffice. If all that is not possible as in the case of a fleeing person whose passport has to be impounded lest he should evade the course of justice or a dangerous nuisance needs immediate abatement, the action may be taken followed immediately by a hearing for the purpose of sustaining or setting aside the action to the extent feasible. It is quite on the cards that the Election Commission if pressed by circumstances, may give a short hearing. In any view, it is not easy to appreciate whether before further steps got under way be could not have afforded an opportunity of he aring the parties, and revoke the earlier directions. We do not wish to disclose our mind on what, in the critical circumstances, should have been done for a fair play of fair hearing. This is a matter pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned person a reasonable opportunity of being heard for the purpose of imposing any penalty. In Regulations 1995 to which also the authority for making impugned order has been traced, while insisting of pre-decisional hearing under Regula- tion 8 when causing investigation under Regulation 7, by providing that Board is required to give notice before such investigation but also under power to dispense with the requirement of issuing notice before investi-gation if the Board is satisfied that it is not in the interest of investors or in the public interest to issue notice, but when it comes to take decision and issue directions after completion of the investigation as a consequence thereof, such order cannot be made without giving a reasonable opportu-nity of hearing to concerned person. This is mandatory requirement of Regulation 11. It clearly obliges the Board that it can issue directions for the purposes of Regulation 12 only after considering the report referred to in Regulation 10 i.e., the report of the investigation officer and after giving a reasonable opportunity of hearing to person concerned, issue directions specified in Regulation 12. However, unlike Regulation 8 it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing from K.I. Shepherd's case ( supra ): "The view that has been taken by this Court in the above observation is that once a decision has been taken, there is a tendency to uphold it and a representation may not yield any fruitful purpose. Thus, even if any hearing was given to the employees of CORIL after the issuance of the impugned circular, that would not be any compliance with the rules of natural justice or avoid the mischief of arbitrariness as contemplated by article 14 of the Constitution. The High Court, in our opinion, was perfectly justified in quashing the impugned circular." 260. In this connection a contention was also raised that an appeal has been provided against the orders made by the Board before the Central Government and since appeal has been provided it must be construed as a provision of post decisional hearing and even if the original authority has committed the breach of principles of natural justice it should be deemed to have been cured by affording an opportunity of hearing before the appellate authority who is competent to set aside that order. 261. There is ample authority for the proposition that if natural justice is violated by the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Rowland 1977 (2) NZLR 472 favoured the view. The aforesaid view of Megarry, J. found its approval with Supreme Court in Institute of Char-tered Accountants of India v. L.K. Ratna 1986 (4) SCC 537. The like plea has been made before me was rejected by the Apex Court after quoting with approval the aforesaid observations of Megarry, J. by adding another dimension: "But perhaps another way of looking at the matter lies in examining the consequences of the initial order as soon as it is passed. There are cases where an order may cause serious injury as soon as it is made, an injury not capable of being entirely erased when the error is corrected on subsequent appeal .'Not all the King's horses and all the King's men' can ever salvage the situation completely, notwithstanding the widest scope provided to an appeal ..And, therefore, it seems to us, there is manifest need to ensure that there is no breach of fundamental procedure in the original proceeding, and to avoid treating an appeal as an overall substitute for the original proceedings." 264. The impugned orders therefore suffer from the vice of procedural unfairness inasmuch as they have been made in breach of prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderlining doctrine of unjust enrichment is that one person should not be permitted to enrichment at expense of another, but should be required to make restitution of or for property or benefits received, retained or appropriated where it is just and equitable that such restitution be made and where such action involves no violation or frustration of law or opposition to public policy. Unjust enrichment of a person occurs when he has and retained money or benefits which injustice and equity belong to another. Reference may be made to Black's Law Dictionary. 269. The principle of unjust enrichment requires first that the person against whom this principle is to be applied has been enriched by receipt of a benefit. Secondly that such enrichment is at the expense of another person by whom refund has been claimed, and thirdly, that the retention of the enrichment by the person so enriched is unjust. Reference in this connection may be made to Mahabir Kishore v. State of Madhya Pradesh AIR 1990 SC 313. In commercial transaction therefore the principle of unjust enrichment can be applied for refund of the amount to someone at whose cost the alleged unjust enrichment has taken pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had not to pay the amount from their coffers. The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund. . . ." (p. 905) 272. Like wise in U.P. State Electricity Board v. City Board AIR 1985 SC 883, the Court denied the relief under article 26 on the ground ". . . The learned counsel for the City Board was not able to state that the City Board had not recouped itself by collecting the charges from the consumers. In this situation, we have to presume that the City Board had not suffered any loss by the levy of seven and half per cent by way of additional charges. We are of the view that in cases of this nature where there is little or no possibility of refunding the excess amount collected from the ultimate consumer to him and the granting of the relief to the petitioner would result in his unjust enrichment, the Court should not ordinarily direct any refund in exercise of its discretion under article 226 of the Constitution...." (p. 886) 273. The same principle was reiterated in the context of commercial transaction Renusagar Power Co. Ltd. v. General Electric Co. report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o come into existence which in its opinion should not at all have arisen and then proceeded to exact it for its own purposes and deprived the person who were otherwise entitled to receive it. This does not warrant the invocation of principle of under enrichment in the present case. Likewise, in Special Civil Applica-tion No. 5483 of 1996 the auction purchase or the close out of the transaction on the close of the period were carried out at the direction of the Board itself. Therefore in the squaring up of the transaction either by calling in offers at auction or by closing out the transactions by recovering the difference of price between the transaction price and the highest price prevailing during the last six months is no part of resorting to any manipulation, on the part of anyone. In this latter case, even there is no suggestion that the petitioner was at all concerned with the manipulation of the market price even otherwise. How in the circumstances, a person securing a profit unaware of any manipulation in the market can be held to be holding claim to an undue enrichment. No power has been either conferred under the statute on the Board to limit the margin of profits which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant of availability of delivery with shortsellers, through the intervention of Stock Exchange by adopting well established practice, recognised by regulations of Stock Exchange itself, of squaring up transaction either by auction call or by closing up. On such lawful conclusion of squaring up process, the proceeds recovered by Stock Exchange lawfully belongs to deliverer of scrips/purchaser of shares as the case may be. The amount held by Stock Exchange was only for the benefit of those in respect of whose transactions it has acted. The buyer of the scrips or deliverer of scrips at auction sale, does not receive or hold consideration proceeds for benefit of anyone else. The consider-ation also did not reach SEBI. If the transaction were to be cancelled, no proceeds will at all arise to give occasion for applying doctrine of unjust enrichment. If transactions are allowed to be completed in regular manner then only person lawfully entitled to receipts made by Stock Exchange is the person who has offered the shares at the auction of Stock Exchange or of the buyer in whose transaction difference in price has been recovered from shortsellers only for the benefit of buyer. In either case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision has been made for recovery of sum collected by a manufacturer from his customers as excise duty to be handed over to exchequer for the benefit of consumer, and to deny refund of such amount to a manufacturer, if paid, unless he proves that he has not recovered the amount from his customers. The like provision have also been made in various State Sales Tax Laws. These provisions are pointer to fact that unless the claim to money can be said to be not belonging to claimant, the principle of unjust enrichment cannot apply, nor exaction of alleged windfall profits can be made, as distinguished from retention, without authority of law. Present cases are neither of the nature where the proceeds belong to somebody other than the petitioner, nor is a case of retention, but is a clear case of exaction. Hence relief cannot be denied on the anvil of doctrine of unjust enrichment. Conclusion 278. As a result of the aforesaid discussion it is held that the Board has no authority of law under the existing statute to impound or forfeit the monies received by Stock Exchange as concluded transactions for squaring up the outstanding transactions under its procedure and to use for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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