TMI Blog2012 (4) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ith effect from 31st March, 2000 deliberately repealed the requirement of democratization in the EPCs from the Exim Policy and which shows that it was not the requirement of the Exim Policy – Held that:- Once the Model Bye- Laws provide for two kinds of membership, a right to membership can be read only as a right to non-voting membership till the member qualifies to become a voting member. The Exim Policy has to be read as a whole -The concepts of "Associate Member" without voting rights and of placing restrictions on the right to vote were upheld. Restriction on the right to vote provided with the avowed object of better welfare and convenience of regular practitioners directly concerned with the day-to-day affairs is Constitutional and valid - if no such restrictions were to be placed the possibility of a rival industry/trade snatching away the management of an EPC to destroy the same also cannot be ruled out – in favour of appellant company - the appellant which is a Company incorporated under Section 25 of the Companies Act, 1956 is entitled to have two kinds of memberships as aforesaid. - LPA NO. 356 OF 2011 - - - Dated:- 25-1-2012 - A.K. SIKRI, RAJIV SAHAI ENDLAW, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the appellant, the exporter was required to have exports of the minimum value of Rs. 20 lacs for the previous three years. Needless to state that the respondents/writ petitioners are exporters who do not fulfill the said criteria. Their contention was/is that laying down such a criteria to become a voting member creates a small caucus which has appropriated the management of the affairs of the appellant unto itself. 5. The learned Single Judge has allowed the writ petition holding/on the ground:- A. that Clause 5(a) of the Articles of Association (AOA) of the appellant permits any person who is an exporter of garments whether manufacturer exporter or merchant exporter or otherwise interested in the actual export of garments to become a member of the appellant and thus does not permit classification of members into voting members and non-voting members; B. that appellant owes its existence to the Exim Policy which provides for formation of Export Promotion Council (EPC); appellant is recognized by the Government as the EPC for garments; the Exim Policy also requires all exporters to become members of such EPC and the appellant thus has to abide by the Exim Policy and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is otherwise autonomous and as per its Memorandum and Articles of Association. The amended Exim Policy in para 13.5 requires the EPCs to be autonomous and regulate their own affairs. g. that the Exim Policy though prior to the amendment in March, 2000, made financial assistance from the Government to EPC dependent on democratization of the membership and democratic elections of office bearers on a regular basis but post amendment on 31st March, 2000 had done away with the requirement of democratization of membership and holding of democratic elections by the EPC. Rather the Model Bye- Laws themselves provided for two classes of members i.e. voting members and non-voting members and prescribed achievement of export performance during the previous three years of Rs. 25 lacs, since amended to Rs. 1 crore; h. that the appellant had framed its Membership Regulations (which have been struck down by the Learned Single Judge) in accordance with the Model Bye-Laws prescribed under the amended Exim Policy; i. that the Government itself had with effect from 31st March, 2000 deliberately repealed the requirement of democratization in the EPCs from the Exim Policy and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed targets from management does not make it any less democratic; s. that the appellant is neither owned nor controlled or substantially financed by the Government and its entire income and expenditure is borne out of membership subscription and the Council fee received from its members and the surplus amounts are re-utilized in improvement and development of garment industry. 7. The respondent no.4 Union of India in its counter affidavit supports the case of the appellant in entirety. It has also pleaded that with the end of the quota regime in the year 2005 the requirement for an exporter to register with the EPC in order to avail export benefits has also ended and it is not even compulsory for garment exporter to register with the appellant to export garments and get benefits under the Exim Policy and the judgment of the learned Single Judge on the situation which though existed at the time of filing of the writ petition in the year 1998 but has since changed is not correct. Union of India has supported the dual membership as aforesaid of EPCs. 8. The senior counsel for the respondents/writ petitioners besides supporting the judgment of the Learned Single Judge contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he context of the situation as prevailing at the time of filing of the writ petition i.e. the year 1998. Suffice it is to state that the subsequent changes of the year 2000 knock off the basis laid in the writ petition for the relief claimed and granted by the learned Single Judge. No purpose however would be served in our pronouncing on the correctness or otherwise of the judgment of the Learned Single Judge on the situation prevailing at the time of filing of the writ petition and which now no longer prevails. 11. What stares one in the face is that notwithstanding the amendment of the year 2000 knocking off the basis of the relief claimed by the respondents/writ petitioners and expressly providing for classification of voting and non-voting members, the respondents/writ petitioners did not take any steps whatsoever for challenging the said amendment of Exim Policy. We are unable to agree with the contention of the senior counsel for the respondents that the said amendments are of no avail. The amendments to the Exim Policy, doing away with the requirement of democratization and holding of democratic elections on a regular basis in the EPCs and providing for Model Bye-Laws of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts in other Bar Associations being not entitled to exercise such rights in the Supreme Court Bar Association and which condition has withstood the legal challenge in Supreme Court Bar Association v. B.D. Kaushik MANU/SC/1116/2011. It was held that enrolment of Advocates not practicing regularly in the Supreme Court was inconsistent with the aim and object of the Association. It was further held that the right to vote is neither absolute right nor a Fundamental Right nor a common law right but is purely statutory right governed by the statute, rules regulations; the right to contest an election and to vote can always be restricted and/or abridged if statute/rules regulations prescribe so. It was yet further held that limitations/restrictions on exercise of right to vote and contest the election do not amount to changing the aims and objects of an Association. The concepts of "Associate Member" without voting rights and of placing restrictions on the right to vote were upheld. It was yet further held that restriction on the right to vote provided with the avowed object of better welfare and convenience of regular practitioners directly concerned with the day-to-day affairs is C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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