1.That notice dated Public notice date was issued by Respondent No. 1, and the Appellant further sought the appointment of an independent government official to conduct the elections to the Executive Committee in a fair and transparent manner.
2.That the Appellant impugns the Election Rules for the nomination of Executive Committee members adopted by the Apparel Export Promotion Council at its Annual General Meeting dated AGM date adopting election rules (hereinafter referred to as "the Rules"), together with the subsequent public notice dated Public notice date (hereinafter referred to as "the Notice"), on the ground that both the Rules and the Notice are contrary to the amended provisions of Section 160 of the Companies Act, 1956 (hereinafter referred to as "the Act"), read in light of Notification No. G.S.R. 466(E) dated Notification G.S.R. 466(E) date issued by the Ministry of Corporate Affairs (hereinafter referred to as "the Notification").
3.That the Apparel Export Promotion Council (hereinafter referred to as "Respondent No. 1") is a company registered under Section 8 of the Companies Act, 2013 (erstwhile Section 25 of the Companies Act, 1956). The principal objects of Respondent No. 1 were to undertake export promotion measures, to assist all its members in a fair and considerate manner, and to formulate action plans for the promotion of exports and the development of export markets, amongst others. However, contrary to its aims and objects, Respondent No. 1 is acting in breach not only of the mandate of Section 160 of the Act, but the Election Rules adopted by it by way of the decisions taken at the 236th Executive Committee meeting of the AEPC held at Gurgaon, Haryana, on 236th executive committee meeting date, are also tainted by arbitrariness, unreasonableness and conflict of interest.
4.That the Election Rules as well as the public notice issued by Respondent No. 1 require a deposit of Rs. Pre-deposit amount (₹)/- (Rupees One Lakh only) as a pre-requisite for filing a nomination for the election to the Executive Committee of Respondent No. 1. Further, in the event that the applicant is not elected, or in the event that the applicant member fails to secure 25% of the total votes polled, the pre-deposited amount of Rs. Pre-deposit amount (₹)/- shall stand forfeited.
5.That the Election Rules as well as the Notice are founded upon the pre-amended Section 160 of the Act. The statutory language of Section 160 of the Act, as modified by the Notification dated Notification G.S.R. 466(E) date, unequivocally clarifies that the mandatory deposit of Rs. Pre-deposit amount (₹)/- under Section 160 of the Act shall not be applicable to companies registered under Section 8 of the Act (erstwhile Section 25 of the Act). Evidently, notwithstanding the categorical, unequivocal and unambiguous modification in the statutory language of Section 160 of the Act read with the Notification, the aforesaid requirement of depositing Rs. Pre-deposit amount (₹)/- as a pre-condition has been adopted by Respondent No. 1 for its elections at its Annual General Meeting (AGM) held as recently as AGM date adopting election rules, and in its 236th Executive Committee meeting, by incorporating the same into its Election Rules. The aforesaid conduct of Respondent No. 1 came into the public domain only vide the public notice dated Public notice date. It is pertinent to note that the Election Rules were adopted on Election rules adoption date, and the public notice was issued on Public notice date, i.e., more than six months after the Notification clarifying the applicability of Section 160 to companies registered under Section 8 of the Act had been released by Respondent No. 4.
6.Therefore, the use of the provisions of the un-amended Section 160 of the Act betrays ulterior motives on the part of Respondent No. 1. It is trite that the aforesaid pre-condition of a deposit of Rs. Pre-deposit amount (₹)/- as an eligibility criterion for filing a nomination for membership of the Executive Committee deters eligible and interested members from filing their nominations, as there is an inherent fear of losing Rs. Pre-deposit amount (₹)/-. Such a modus operandi has been adopted to discourage any potential competition from eligible members who may wish to seek nomination to the Executive Committee of Respondent No. 1, and the Appellant is certainly amongst such potential contenders. Therefore, the Election Rules as well as the public notice are liable to be quashed on this ground alone.
7.It is further submitted that although Respondent No. 1 claims to have introduced a transparent Electronic Voting System (EVS) for the forthcoming Executive Committee elections at its AGM scheduled on AGM election date, a bare perusal of the provisions contained in the Election Rules makes it clear that the Electronic Voting System (EVS) has been incorporated only in letter, in order to mislead the authorities and stake its claim to continue as the RCMC registering authority for apparel exporters beyond RCMC registration expiry date, and to continue enjoying grants from the Ministry of Commerce and the Ministry of Textiles; and most certainly not in spirit.
8.That Respondent No. 1 has incorporated the Electronic Voting System (EVS) in two ways, namely: (a) remote electronic voting for members who are unable to be present in person at the venue of the general voting; and (b) electronic voting by members present in person or through proxy at the venue of the Annual General Meeting.
9.That under the scheme of remote e-voting, members who cannot personally attend the venue of the Annual General Meeting have the facility to vote electronically on a flexi-location and flexi-timing basis by using the specific username and password allotted to them, from any place where they have access to an internet connection, and such votes are expected to be IP mapped. The whole purpose of the introduction of remote e-voting was to enable members who could not be present in person at the venue of the general meeting to nevertheless vote electronically from any place where they have access to an internet connection. In light of such a facility extended to the members, it is untenable as to why the Election Rules still provide for voting through proxy at the venue of the general voting.
10.That the Election Rules are further shrouded in mystery insofar as they permit members to vote at the general meeting through proxy, but fail entirely to stipulate any proxy form or mechanism so as to align the same with the Electronic Voting System (EVS). The Election Rules are completely devoid of any proxy form or any mechanism to synchronise proxy voting with electronic voting. Therefore, in the absence of such a procedure or mechanism, it is incomprehensible as to how a proxy would register and vote on behalf of a member.
11.That Clause 27(d) of the Election Rules, read with the definition of "Scrutinizer" in Clause 2 of the Election Rules adopted by Respondent No. 1, entrusts the responsibility of conducting the elections in a fair and transparent manner to the Scrutinizer. However, it is incomprehensible as to how the Scrutinizer can act in a transparent manner when the Executive Committee of Respondent No. 1 directly controls the appointment of the Scrutinizer. The Election Rules are entirely oblivious of the fact that there exists a direct conflict of interest, inasmuch as the Executive Committee plays a direct role in the appointment of the Scrutinizer.
12.That the Scrutinizer, who is portrayed as the embodiment of transparency and fairness, is completely divested of the power to decide any objection pertaining to the counting of votes, and of the power to accept or reject any vote, even in cases where suspicious voting is detected. The Scrutinizer further has no power even to ascertain whether the votes cast through electronic voting were cast by members themselves or by their proxies. In light of the aforesaid, it is incomprehensible as to how the Scrutinizer would be able to conduct the elections in a free, fair and transparent manner. Interestingly, under Clause 25, Clause 26(b) and Clause 27(e) of the Election Rules, the Chairman of the AEPC has been made the final authority to decide the acceptance or rejection of votes and to adjudicate objections arising during the counting of votes, although he is an interested party, and therefore there is a direct conflict of interest. Further, blanket powers have been conferred upon the Chairman of the Council to accept or reject votes, and such unbridled discretionary powers have been made unchallengeable. No rules have been laid down as to when, and in what circumstances, the Chairman may accept or reject a vote. Further, Clause 27(e) of the Election Rules designates the Chairman as the final adjudicating authority for deciding any dispute pertaining to the election rules. In view of the aforesaid, it can clearly be asserted that the Election Rules, as well as the subsequent public notice, are tainted by arbitrariness and unreasonableness, and have been craftily framed to serve the vested interests of a select few members presently at the helm of affairs.
It is, therefore, most respectfully submitted that the Election Rules and the public notice issued by Respondent No. 1 suffer from patent illegality, inasmuch as they impose an illegal and arbitrary financial burden of a pre-deposit of ₹ Pre-deposit amount (₹)/- (Pre-deposit amount in words) upon any interested member seeking to contest the elections. Such a requirement is not only an undesirable barrier for new entrants but is also ultra vires Section 160 of the Act read with the notification. Accordingly, both the Election Rules and the public notice issued in consequence thereof are liable to be struck down. In view of the aforesaid glaring illegalities and irregularities, it is imperative that the elections be conducted, only after rectifying the inherent incongruities in the biased Election Rules, under the supervision and guidance of an independent government body or officials.
However, the Hon'ble Single Judge, vide order dated Single judge dismissal order date, was pleased to dismiss the writ petition, which order is impugned in the present appeal.
LIST OF DATES AND EVENTS
Serial numberThat Respondent No. 1 was incorporated under Section 8 of the Act (erstwhile Section 25 of the Act). The principal objects for which Respondent No. 1 was incorporated were to undertake export promotion measures, to render assistance to all its members in a fair and sensitive manner, and to formulate action plans for the promotion of exports and the development of export markets, among other things.
Serial numberThat the Central Government, in exercise of its powers, issued a notification bearing No. S.O. 902(E) dated Notification S.O. 902(E) date, whereby Section 160 of the Companies Act was notified. The provisions of the said section statutorily required a pre-deposit of ₹ 1,00,000/- in the event any person or member applied for nomination to become a director of the company.
Serial numberThat the Ministry of Corporate Affairs (hereinafter referred to as "Respondent No. 4") published a notification bearing No. G.S.R. 466(E), which unequivocally exempted all companies registered under Section 8 of the Act from the application of the statutory requirement stipulated under Section 160 of the Act. The clear and unambiguous effect of the said notification was that Section 8 companies were not required to insist upon a pre-deposit of ₹ Pre-deposit amount (₹)/- as a pre-condition while entertaining a nomination.
Serial numberThat Respondent No. 1, vide its 236th meeting of the Executive Committee, framed and approved the impugned Election Rules. The said Election Rules lay down the modalities, procedures and rules governing the election of the Executive Committee of Respondent No. 1. A bare perusal of the Election Rules demonstrates that they are not only ultra vires Section 160 of the Act, but that the procedure and mechanism governing the election of the Executive Committee are also arbitrary and unreasonable.
Serial numberThat Respondent No. 1 issued a public notice bearing No. COORD/XII/2015 (hereinafter referred to as "the Notice") in pursuance of the aforementioned Election Rules, wherein the modalities, process, and the date and venue of the elections to the Executive Committee were set out. The Notice requires a pre-deposit of ₹ Pre-deposit amount (₹)/- (Pre-deposit amount in words) as a pre-requisite for the filing of nominations by interested members. The aforesaid demand is ultra vires the amended/modified Section 160 of the Act. Therefore, the public notice dated Public notice date is liable to be quashed.
Serial numberThereafter, the Appellant filed a Writ Petition (Civil) bearing No. Writ petition number/2015 seeking quashing of the Election Rules dated Election rules adoption date adopted by Respondent No. 1, along with the public notice dated Public notice date issued by Respondent No. 1, and further seeking the appointment of an independent government official to conduct the elections to the Executive Committee in a fair and transparent manner.
Serial numberThat, by the impugned order dated Single judge dismissal order date, the Ld. Single Bench of this Hon'ble Court dismissed Writ Petition (Civil) No. Writ petition number/2015 on the ground that the Appellant had no cause of action to challenge the aforementioned rule.
__.05.2016Hence, the present Letters Patent Appeal.
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016.
IN THE MATTER OF:
**Appellant's name: APPELLANT**
VERSUS
Respondents' names: RESPONDENTS
I N D E X
S.NO.PARTICULARS PAGES
A –
B –
C –
D –
1 –
1.Notice of Motion
2.Urgent Application
3.Memo of Parties
4.List of Dates and Events
5.Certificate
6.Appeal under Clause 10 of the Letters Patent against the order dated Single judge dismissal order date passed by the Hon'ble High Court of Delhi in Writ Petition (C) No. Writ petition number of 2015, along with the supporting affidavit.
7.Impugned order dated Single judge dismissal order date passed by the Hon'ble High Court of Delhi in Writ Petition (C) No. Writ petition number of 2015.
8.ANNEXURE A-1
Copy of the Certificate of Incorporation of Respondent No. 1
9.ANNEXURE A-2
Memorandum of Association and Articles of Association of Respondent No. 1
10.ANNEXURE A-3
Copy of the notification of the Ministry of Corporate Affairs bearing No. G.S.R. 466(E) dated Notification G.S.R. 466(E) date
11.ANNEXURE A-4
Copy of the Election Rules — for the election of Executive Committee members of Respondent No. 1 — as framed and passed by the Executive Committee on Election rules adoption date
12.ANNEXURE A-5
Copy of the public notice dated Public notice date published by Respondent No. 1 intimating the time, details and modalities of the election to the Executive Committee of the respondent-company.
13.ANNEXURE A-6
Copy of Writ Petition (C) No. Writ petition number of 2015 filed by the Appellant.
14.Application under Section 151 of the C.P.C. for stay, along with affidavit.
15.Application under Section 151 of the C.P.C. for exemption from filing certified copies and dim annexures, along with supporting affidavit.
16.Vakalatnama
DELHIFILED BY
DATED:
Date of filing
(ADVOCATES)
Advocate's name,
New Delhi – 110013
Mobile No.: Advocate's mobile number
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016.
IN THE MATTER OF:
**Appellant's name: APPELLANT**
VERSUS
Respondents' names: RESPONDENTS
URGENT APPLICATION
TO,
The Registrar,
Delhi High Court,
New Delhi
Sir,
You are kindly requested to treat the accompanying petition as urgent. In terms of the Rules of this Hon'ble Court, the grounds of urgency are as follows:
It may kindly be pleased to set aside the impugned order dated Single judge dismissal order date passed by this Hon'ble Court in W.P. (C) No. Writ petition number of 2015.
Thanking you,
DELHIAPPELLANT
THROUGH:
DATED:
Date of filing
(ADVOCATES)
Advocate's name
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016.
IN THE MATTER OF:
**Appellant's name: APPELLANT**
VERSUS
Respondents' names: RESPONDENTS
NOTICE OF MOTION
TO,
Notice of Motion addressee name
Addressee address line 1
Addressee address line 2
Sir,
Kindly take note that the above-mentioned LPA is being filed before the Delhi High Court, and the same is likely to be listed on Listing date of appeal, May 2016, or thereafter. A copy of the LPA, along with the applications and the annexures, is being supplied herewith.
Thanking you,
DELHIAPPELLANT
THROUGH:
DATED:
Date of filing
(ADVOCATES)
Advocate's name
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016.
IN THE MATTER OF:
**Appellant's name: APPELLANT**
VERSUS
Respondents' names: RESPONDENTS
MEMO OF PARTIES
Appellant's name: APPELLANT
VERSUS
1.Respondent no.1's name
Respondent no.1's address: RESPONDENT No.1
2. Respondent no.2's name: RESPONDENT No.2
3. Respondent no.3's name: RESPONDENT No.3
4. Respondent no.4's name: RESPONDENT No.4
DELHIAPPELLANT
THROUGH
DATED
Date of filing
(ADVOCATES)
Advocate's name
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:-
**Appellant's name: APPELLANT**
VERSUS
Respondents' names: RESPONDENTS
CERTIFICATE
It is certified that all the papers relating to Writ Petition (C) No. Writ petition number of 2015 filed before the learned Single Bench have been annexed to this appeal, and that no document other than those forming part of the record of the appellant and of Writ Petition (C) No. Writ petition number of 2015 has been filed in this appeal.
Place: New Delhi.
Filed on:
APPELLANT
THROUGH
Advocate's name
ADVOCATES
Advocate's address,
New Delhi-110013.
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:-
Appellant's name: APPELLANT
VERSUS
1.Respondent no.1's name
Respondent no.1's address: RESPONDENT No.1
2. Respondent no.2's name: RESPONDENT No.2
3. Respondent no.3's name: RESPONDENT No.3
4. Respondent no.4's name: RESPONDENT No.4
AN APPEAL UNDER CLAUSE 10 OF THE LETTERS PATENT AGAINST THE ORDER DATED Single judge dismissal order date PASSED BY THE HON'BLE HIGH COURT OF DELHI IN WRIT PETITION (CIVIL) NO. Writ petition number OF 2015.
TO,
HON'BLE THE CHIEF JUSTICE OF THE HIGH COURT OF DELHI AND HIS COMPANION JUDGES OF THE HIGH COURT OF DELHI,
The humble appeal of the
Appellants above named,
MOST RESPECTFULLY SHOWETH: -
1.The Appellant, by way of the present appeal, seeks to challenge the order dated Single judge dismissal order date passed by the learned Single Judge of the High Court of Delhi in Writ Petition (Civil) No. Writ petition number of 2015, whereby the learned Single Judge was pleased to dismiss the petition on the ground that the Appellant has no cause of action to challenge the rule impugned in the said petition.
2.That by way of the impugned order, the learned Single Judge rejected the contention of the Appellant, seeking quashing of the election rules dated Election rules adoption date adopted by Respondent No.1 together with the public notice dated Public notice date issued by Respondent No.1, without due consideration of the same. In spite of the categorical and unequivocal amendment/modification of Section 160 of the Act vide notification dated Notification G.S.R. 466(E) date, to the effect that the pre-condition of deposit of Rs. Pre-deposit amount (₹)/- for filing an application for nomination of members is not applicable to companies registered under Section 8 of the Act, Respondent No.1 has mandated the deposit of Rs. Pre-deposit amount (₹)/- as a pre-requisite for filing nomination by members for the elections of the executive committee. Respondent No.1 adopted the aforesaid illegal condition vide the election rules dated Election rules adoption date and also issued the same vide the public notice dated Public notice date.
3.That the facts leading to the filing of the present appeal are set out hereunder in brief:-
3.1That Respondent No.1 was incorporated under Section 8 of the Companies Act, 2013 (erstwhile Section 25 of the Companies Act, 1956). The principal aim of Respondent No.1 was to undertake export promotion measures, to render assistance to all its members in a fair and sensitive manner, and to formulate action plans for the promotion of exports, development of export markets, etc. However, contrary to the aims and objectives of Respondent No.1, Respondent No.1 is not only acting contrary to the mandate of Section 160 of the Act, but the election rules adopted by Respondent No.1 vide its 236th meeting of the executive committee held at Gurgaon, Haryana, on 236th executive committee meeting date are also fraught with arbitrariness, unreasonableness and conflict of interests.
The copy of the certificate of incorporation, articles of association and memorandum of association is attached hereto and annexed herewith as Annexure A-1 & Annexure A-2.
3.2That Respondent No.1 has for long been carrying out activities contrary to the objects for which it was established. In the past, Respondent No.1 has conducted the elections of its executive committee members in a reprehensible manner. Various writ petitions have in the past been filed against Respondent No.1 challenging the mode and unfair manner in which Respondent No.1 conducts its elections. However, in the present petition, the subject matter of the controversy pertains to the election rules dated Election rules adoption date and the public notice dated Public notice date issued subsequent to Respondent No.1's 236th executive committee meeting dated 236th executive committee meeting date, whereby not only an illegal demand of Rs. Pre-deposit amount (₹)/- has been made as a pre-requisite to file nomination for the election of the executive committee at its next AGM scheduled on AGM election date, but the provisions of the election rules governing the manner and conduct of the elections are also highly questionable.
The copy of the notification bearing No. G.S.R. 466 (E) dated Notification G.S.R. 466(E) date issued by Respondent No.4 is attached hereto and annexed herewith as Annexure A-3.
3.3That Respondent No.1, vide its 236th meeting of the executive committee, framed and approved the impugned Election Rules. The framed Election Rules set out the modalities, procedures and rules for the election of the executive committee of Respondent No.1. A bare perusal of the election rules would show that the election rules, as framed, are not only ultra vires Section 160 of the Act, but the procedure and mechanism governing the election of the executive committee is also arbitrary and unreasonable. Some of the glaring instances of arbitrariness and unreasonableness, inter alia, include:
a).The illegal and arbitrary requirement mandating a pre-deposit of Rs. Pre-deposit amount (₹)/- as a pre-condition to apply for nomination for membership of the executive committee:
i.That in spite of the categorical amendment/modification of Section 160 of the Act vide the notification, to the effect that the statutory pre-deposit of Rs. Pre-deposit amount (₹)/- shall not apply in the case of companies registered under Section 8 of the Act, the election rules as well as the public notice mandate the requirement of a pre-deposit of Rs. Pre-deposit amount (₹)/- as a pre-condition to apply for membership of the executive committee. Such an illegal and arbitrary act is borne out of the evil motives of the executive committee, with intent to eliminate maximum competition at the preliminary stage of the application itself.
ii.That the aforesaid act of Respondent No.1 cannot even be considered a bona fide mistake, since prior to the adoption and release of the election rules, Respondent No.1 mandatorily consults the company secretary as well as the legal advisor before formulating the election rules. Further, there are chartered accountants as well as full-time legal advisors on the panel of Respondent No.1. Therefore, in such circumstances, Respondent No.1's insistence upon a pre-deposit of Rs. Pre-deposit amount (₹)/- points only to the mala fide intent of the executive committee.
b).Application of electronic voting only in letter and not in spirit:
That Respondent No.1 has introduced the scheme of electronic voting so as to give the impression that Respondent No.1 intends to conduct the elections of the executive committee in a fair and reasonable manner. However, to the contrary, a bare perusal of the election rules as well as the public notice reveals the extent of the illegality, arbitrariness and unreasonableness involved. Some of the glaring instances are as follows:
i.That the election rules do not prescribe any procedure or mechanism clarifying the manner in which a proxy shall vote on behalf of a member. No proxy form has been issued along with the election rules, and the election rules are silent as to how a proxy is to vote on behalf of a member in electronic voting at the general meeting. There is thus no pre-determined procedure or mechanism aligned with the scheme of electronic voting. In these circumstances, it is likely that the executive committee may entertain manual entries of proxy persons at the time of the annual general meeting, in which event the entire election, notwithstanding that it is conducted through the electronic voting system (EVS), shall stand jeopardised.
ii.That the election rules expressly introduced the concept of remote electronic voting principally for the reason that, where members are unable to remain present in person at the general meeting, they have an alternative means of casting their votes electronically on the basis of a secure username and password. The rationale of remote electronic voting was to curb the menace of voting through proxy. However, despite providing the facility of remote electronic voting, the election rules nonetheless retain voting through proxy.
c).That the role and powers of the Scrutiniser stand substantially jeopardised.
As per the election rules, the Scrutiniser has been appointed to conduct the elections in a free, fair and transparent manner. However, on a bare perusal of the election rules, it is clear that the Scrutiniser effectively possesses no power to ensure transparency and fairness in the conduct of the elections. The reasons, inter alia, include the following:
i.That key powers, such as taking decisions pertaining to objections to the counting of votes and deciding whether a vote is to be declared valid or invalid, ought to have been conferred upon the Scrutiniser alone. On the contrary, all such key powers have been conferred exclusively upon the Chairman, AEPC, despite his being an interested party and thus having a direct conflict of interest.
ii.That the role of the Scrutiniser is confined to the mere tabulation of the votes cast by the members. It is submitted that the Scrutiniser ought to have been conferred independent powers so as to effectively function as a watchdog for the elections of the members to the executive committee.
iii.That the Scrutiniser, as per clause 27(d) of the election rules, is to be appointed by the executive committee. In such a case, the Scrutiniser owes allegiance to the executive committee appointing it. Therefore, the appointment of the Scrutiniser ought to be an independent function falling exclusively within the domain of the Government of India. The Scrutiniser ought to be a person fluent in electronic mechanisms and procedures so that he may effectively check any lapse or mala fide in the electronic voting process.
d).That glaring instances of conflict of interest, arbitrariness and unreasonableness are widespread in the election rules:
i.That the powers conferred upon the Chairman are wide and discretionary. For instance, clause 26(b) of the election rules confers blanket powers upon the Chairman to accept or reject votes, without stating any grounds on the basis of which the Chairman may reject votes. Further, clause 25(e) of the election rules confers a discretion upon the Chairman to decide the acceptance or rejection of objections pertaining to the counting of votes. It is incomprehensible as to why the Chairman, AEPC has been accorded such blanket powers, and how such powers could ensure free and fair elections. Such powers ought to have been conferred upon independent and unbiased scrutinisers, and not upon the Chairman, AEPC.
ii. Further, it is incomprehensible as to why the Chairman, AEPC has been given the final say in deciding the admissibility or non-admissibility of votes, when an independent Scrutiniser is required to be appointed to conduct the elections under the EVS in a fair and transparent manner. In fact, clause 27(l) confers authority upon the Chairman to decide any dispute pertaining to the interpretation of the election rules. The aforesaid blanket powers conferred upon the Chairman, AEPC not only have the potential to create serious conflicts of interest, but are also likely to create prejudice and negative bias against others, when he himself, along with his colleagues, is a contender. Further, such a practice shall also seriously jeopardise the fairness and transparency of the election process.
A copy of the election rules adopted by respondent no. 1 at its annual general meeting dated AGM date adopting election rules is attached hereto and annexed herewith as Annexure A-4.
3.4That respondent no. 1 thereafter issued a public notice dated Public notice date bearing no. Public notice number prefix/Public notice number middle part/2015 (hereinafter referred to as "the notice") in pursuance of the abovementioned election rules, whereby the modalities, process, and the date and venue of the elections to the executive committee were stated. The notice requires a pre-deposit of ₹ Pre-deposit amount (₹)/- (Pre-deposit amount in words only) as a pre-requisite for the filing of nominations by interested members. That the last date for submitting names for nomination as members of the executive committee is Nomination deadline date. The aforesaid demand as a pre-requisite for submitting names for nomination as members of the executive committee is ultra vires the amended/modified Section 160 of the Act. Therefore, the public notice dated Public notice date is liable to be quashed.
A copy of the public notice issued by respondent no. 1 is attached hereto and annexed herewith as Annexure A-5.
4.Feeling aggrieved, the appellant filed a Writ Petition (Civil) before this Hon'ble Court against the respondents seeking quashing of the election rules dated Election rules adoption date adopted by respondent no. 1, together with the public notice dated Public notice date issued by respondent no. 1, and further seeking the appointment of an independent government official to conduct the elections of the members of the executive committee in a fair and transparent manner.
A copy of the Writ Petition (Civil) No. Writ petition number of 2015 filed by the appellant is attached hereto and annexed herewith as Annexure A-6.
5.That the learned Single Judge, after going through the entire material and arguments, was pleased to dismiss the petition on the ground that the appellant is not entitled to any relief from this Hon'ble Court, vide order dated Single judge dismissal order date.
6.Being aggrieved by the impugned order dated Single judge dismissal order date passed by the learned Single Judge, on the following grounds, amongst others:-
- : G R O U N D S : -
A.That the learned Single Judge of this Hon'ble Court failed to appreciate that Article 26 of the Constitution of India envisages and grants the right to establish and maintain institutions for religious and charitable purposes.
B.That the learned Single Judge of this Hon'ble Court failed to appreciate that the impugned election rules, as well as the public notice, raise an illegal and arbitrary requirement mandating a pre-deposit of ₹ Pre-deposit amount (₹)/- as a pre-condition for applying for nomination for membership of the executive committee. The aforesaid demand is ultra vires Section 160 of the Act, inasmuch as, notwithstanding the categorical amendment/modification of Section 160 of the Act vide the notification, to the effect that the statutory pre-deposit of ₹ Pre-deposit amount (₹)/- shall not apply in the case of companies registered under Section 8 of the Companies Act, 2013, the election rules as well as the public notice mandate the requirement of a pre-deposit of ₹ Pre-deposit amount (₹)/- as a pre-condition for applying for membership of the executive committee. Such an illegal and arbitrary act is borne out of the evil motives of the executive committee, with the intent of discouraging maximum competition from potential candidates at the preliminary stage of application itself.
That the aforesaid act of Respondent No. 1 cannot by any stretch be considered a bona fide mistake, since prior to the adoption and release of the election rules, Respondent No. 1 is mandatorily required to consult its Company Secretary as well as its Legal Advisor before formulating the elections. Further, chartered accountants as well as full-time legal advisors are also on the panel of Respondent No. 1. Therefore, in these circumstances, the insistence of Respondent No. 1 upon a pre-deposit of ₹ Pre-deposit amount (₹)/- only points to the mala fide intent of the executive committee.
C.That the Learned Single Judge of this Hon'ble Court failed to appreciate that the election rules have adopted the scheme of electronic voting only in letter and not in spirit. Respondent No. 1 has introduced the scheme of electronic voting merely to create an impression that it intends to conduct the elections of the executive committee in a fair and reasonable manner. However, on the contrary, a bare perusal of the election rules as well as the public notice reveals the extent of the illegality, arbitrariness and unreasonableness therein.
D.That the Learned Single Judge of this Hon'ble Court failed to appreciate that the election rules prescribe no procedure or mechanism clarifying the manner in which a proxy shall vote on behalf of a member. No proxy form has been released along with the election rules, and the rules do not so much as indicate how a proxy shall vote on behalf of a member in the electronic voting at the general meeting. In the absence of any pre-determined procedure or mechanism aligned with the scheme of electronic voting, it is likely that the executive committee may entertain manual entries of the proxies at the time of the annual general meeting. In such an event, the entire spirit of electronic voting would stand jeopardised.
E.That the Learned Single Judge of this Hon'ble Court failed to appreciate that once the election rules prescribe the provision of remote electronic voting, there remains no rationale for introducing the concept of voting through proxy. The election rules categorically introduced the concept of remote electronic voting chiefly for the reason that, in cases where members are unable to remain present in person at the general meeting, the members have an alternative means of casting their vote electronically on the basis of a secure username and password. The rationale of remote electronic voting was to curb the menace caused by voting through proxy. However, despite having the facility of remote electronic voting, the election rules nonetheless retain voting through proxy.
F.That the Learned Single Judge of this Hon'ble Court failed to appreciate that the election rules are completely devoid of the existence of an independent body or person to manage and conduct the elections of the members of the executive committee in a transparent and fair manner. Respondent No. 1 has adroitly portrayed that it has appointed a Scrutinizer to conduct the elections in a fair and transparent manner. However, on a bare perusal of the election rules, it is crystal clear that the Scrutinizer effectively possesses no power to ensure transparency and fairness in the conduct of the elections. Key powers, such as taking decisions pertaining to objections to the counting of votes and deciding whether to declare a vote valid or invalid, have been conferred upon the Chairman instead of the Scrutinizer.
G.That the Learned Single Judge of this Hon'ble Court failed to appreciate that the role of the Scrutinizer is limited merely to the tabulation of the votes cast by the members. It is submitted that the Scrutinizer ought to have been vested with independent powers so as to effectively function as a watchdog for the elections of the members to the executive committee. Further, under clause 27(d) of the election rules, the Scrutinizer is required to be appointed by the executive committee. In such an event, the Scrutinizer owes its allegiance to the executive committee appointing it. Therefore, the appointment of the Scrutinizer ought to be an independent function falling exclusively within the domain of the Government of India.
H.That the Learned Single Judge of this Hon'ble Court failed to appreciate that the Scrutinizer appointed ought to be a person fluent in electronic mechanisms and procedures, so that the Scrutinizer could effectively check upon any lapse or mala fide in the electronic voting process. However, in the present case, the Scrutinizer possesses no expertise whatsoever in such mechanisms and procedures.
I.That the Learned Single Judge of this Hon'ble Court failed to appreciate that glaring instances of conflict of interest, arbitrariness and unreasonableness are profusely woven into the election rules. The powers conferred upon the Chairman are wide and discretionary. For instance, clause 26(b) of the election rules confers blanket powers upon the Chairman, AEPC, to accept or reject votes, without mentioning any grounds on the basis of which the Chairman, AEPC, may reject votes. Further, clause 25(e) of the election rules confers a discretion upon the Chairman, AEPC, to decide upon the acceptance or rejection of objections pertaining to the counting of votes. It is incomprehensible why the Chairman has been accorded such blanket powers. Such powers ought to have been conferred upon the Scrutinizer and not upon the Chairman.
J.That the Learned Single Judge of this Hon'ble Court failed to appreciate that the Chairman has been given the final say in deciding the admissibility or non-admissibility of votes, despite the fact that a Scrutinizer has been appointed to conduct the elections in a fair and transparent manner. In fact, clause 27(l) confers authority upon the Chairman to decide any dispute pertaining to the interpretation of the election rules. The aforesaid blanket powers conferred upon the Chairman not only have the potential to create a conflict of interest, but the transparency in the conduct of the elections would also suffer immensely.
K.Because the Learned Single Judge, without appreciating the facts, passed the impugned order without considering the material on record.
7.That the Appellant submits that it has no other equal or efficacious remedy other than to approach this Hon'ble Court by way of the present appeal.
8.That the Appellant has not filed any other similar appeal before this Hon'ble Court or before the Hon'ble Supreme Court challenging the impugned order dated Single judge dismissal order date in Writ Petition (C) No. Writ petition number of 2015.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:
(i)Set aside the impugned order dated Single judge dismissal order date passed by the Learned Single Judge in Writ Petition (C) No. Writ petition number of 2015, and further allow the prayers of the Writ Petition filed by the Appellant, bearing Writ Petition (C) No. Writ petition number of 2015;
(ii)Pass such other or further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
DELHIAPPELLANT
THROUGH
DATED: Date of filing
(ADVOCATES FOR THE APPELLANT)
Advocate's address
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' names: RESPONDENTS
AFFIDAVIT
Affidavit of Mr. Deponent's name, aged about Deponent's age years, Partner of M/s. Deponent's firm name, resident of Deponent's address, do hereby solemnly affirm and declare as under:-
1.That I am the Partner of the Appellant firm and I am conversant with the facts and circumstances of the present case, and as such I am competent to swear this affidavit.
2.That the submissions as to facts made in the accompanying appeal under Clause 10 of the Letters Patent have been drafted by my counsel as per my instructions, and the facts stated therein are true and correct to my knowledge, while the legal submissions made therein are based on legal advice received and are believed to be true.
3.That the annexures annexed to the accompanying appeal are true copies of their respective originals.
DEPONENT
VERIFICATION
Verified at Delhi on this Verification date that the contents of this affidavit are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.
DEPONENT
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
C.M. NO. CM application number (stay) OF 2016
IN
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' names: RESPONDENTS
APPLICATION FOR STAY OF THE PUBLIC NOTICE DATED Public notice date ISSUED BY RESPONDENT NO. 1 AND OF THE CONSEQUENT DEADLINE FOR SUBMISSION OF NOMINATIONS FOR MEMBERS OF THE EXECUTIVE COMMITTEE, TOGETHER WITH THE DEPOSIT OF RS. Pre-deposit amount (₹)/-, TILL Nomination deadline date, UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA
MOST RESPECTFULLY SHOWETH:
1.That the Appellant has filed the aforementioned appeal for setting aside the order dated Single judge dismissal order date passed by the learned Single Bench of this Hon'ble Court, whereby the petition bearing Writ Petition (C) No. Writ petition number/2015 filed by the Appellant was dismissed, and the said appeal is pending before this Hon'ble Court. The contents of the said appeal may be read as part and parcel of this application.
2.That the above-mentioned appeal is likely to take some time in its disposal, and until its disposal, this Hon'ble Court may be pleased to stay the operation of the public notice dated Public notice date and the consequent deadline for submission of nominations for members of the executive committee, together with the deposit of Rs. Pre-deposit amount (₹)/-, failing which the Appellant shall suffer irreparable loss and injury which cannot be compensated in any other manner.
3.That the balance of convenience lies in favour of the Appellant and against the Respondents; further, the Appellant shall suffer substantial loss if the stay is not granted until the pendency of the accompanying appeal.
4.That the Appellant has a good prima facie case in his favour and against the Respondents, and there is every likelihood that the Appellant will succeed in the present case.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to:
a.Grant an ad-interim stay of the public notice dated Public notice date and of the consequent deadline for submission of nominations for members of the executive committee, together with the deposit of Rs. Pre-deposit amount (₹)/-, till Nomination deadline date, issued by Respondent No. 1, in the interest of justice.
b.Pass any other order or grant any other relief which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case, in favour of the Appellant.
DELHIAPPELLANT
THROUGH
DATED:
Date of filing
(ADVOCATES)
Advocate's name
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
C.M. NO. CM application number (exemption) OF 2016
IN
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' names: RESPONDENTS
AFFIDAVIT
Affidavit of Mr. Deponent's name, aged about Deponent's age years, Partner of M/s. Deponent's firm name, S/o Sh. Deponent's father's name, R/o Deponent's house number, Delhi, who does hereby solemnly affirm and declare as under:
1.That I am the Partner of the Appellant firm, and I am conversant with the facts and circumstances of the present case and, as such, am competent to swear this affidavit.
2.That the submissions as to facts made in the accompanying application under Section 151 of the Code of Civil Procedure have been drafted by my counsel as per my instructions, and the facts stated therein are true and correct to my knowledge, while the legal submissions made therein are based on legal advice received and are believed to be true.
3.That the annexures annexed to the accompanying application are true copies of their respective originals.
DEPONENT
VERIFICATION
Verified at Delhi on this Verification date that the contents of this affidavit are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.
DEPONENT
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
C.M. NO. CM application number (exemption) OF 2016
IN
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' names: RESPONDENTS
APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL PROCEDURE FOR EXEMPTION FROM FILING CERTIFIED COPIES OF THE Documents needing exemption from certified copies, AND FOR FILING LEGIBLE COPIES OF DIM AND MARGINED COPIES OF THE ANNEXURES
MOST RESPECTFULLY SHOWETH:
1.That the Appellant has filed the annexures along with the main appeal in support thereof, and the annexures so filed are true, correct and compared copies of the originals.
2.That due to paucity of time and the urgency of the matter, the Appellant is unable to file the certified copies of the annexures and legible copies of the dim and margined copies of the annexures before this Hon'ble Court. The Appellant therefore seeks exemption from filing the same in the interest of justice.
3.That the Appellant further undertakes to file the same as and when this Hon'ble Court may direct.
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to exempt the Appellant from filing the certified copies of the annexures and legible copies of the dim and margined copies of the annexures, in the interest of justice.
DELHIAPPELLANT
THROUGH
DATED:
Date of filing
(ADVOCATES)
Advocate's name
IN THE HIGH COURT OF DELHI AT NEW DELHI
(CIVIL APPELLATE JURISDICTION)
C.M. NO. CM application number OF 2016
IN
L.P.A. NO. LPA number OF 2016
IN THE MATTER OF:
Appellant's name: APPELLANT
VERSUS
Respondents' names: RESPONDENTS
AFFIDAVIT
Affidavit of Mr. Deponent's name, aged about Deponent's age years, Partner of M/s. Deponent's firm name, S/o Sh. Deponent's father's name, R/o Deponent's address, Delhi, who does hereby solemnly affirm and declare as under:
1.That I am the Partner of the Appellant firm, and I am conversant with the facts and circumstances of the present case and, as such, am competent to swear this affidavit.
2.That the submissions as to facts made in the accompanying application moved under Section 151 of the Code of Civil Procedure seeking exemption from filing certified copies have been drafted by my counsel as per my instructions, and the facts stated therein are true and correct to my knowledge, while the legal submissions made therein are based on legal advice received and are believed to be true.
3.That the annexures annexed to the accompanying application are true copies of their respective originals.
DEPONENT
VERIFICATION
Verified at Delhi on this Verification date that the contents of this affidavit are true and correct to the best of my knowledge and belief, and nothing material has been concealed therefrom.
DEPONENT