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SYNOPSIS & LIST OF DATES &
EVENTS
Through
the present appeal, appellant is seeking the setting aside of the order dated __________
passed by Ld. Single Judge of this Hon’ble Court in a writ petition, where in appellant
has sought the quashing
of election rules dated _________ adopted by the respondent no.1 along with the
public notice dated __________ issued by the respondent no.1
and to further to
appoint and independent government official to conduct the elections of the
members of the executive committee in a fair and a transparent manner.
The Appellant impugns the election
rules for the nomination of the executive committee members adopted by the
Apparel Export Promotion Council vide its annual general meeting dated __________
(hereinafter referred to as “the rules”) along with the subsequent public
notice dated __________ (hereinafter referred to as the “notice”) as both the
rules as well as the notice are contrary to the amended provisions of Section
160 of the Companies Act, 1956 (hereinafter as “the act”) read in light of the
notification bearing no. G.S.R. 466 (E) dated ____________ issued by the
Ministry of Corporate Affairs (hereinafter “the notification”).
The Apparel Export Promotion Council
(hereinafter as the Respondent no.1) is a registered company under the Section
8 of the Companies Act, 2013 (erstwhile section 25 of the Companies Act, 1956).
The main aim of the respondent no.1 was to undertake export promotion measures,
to give assistance to all the members in a fair and sensitive manner, to make
action plans for the promotion of exports, development of export markets, etc.
However contrary to the aims and objectives of the respondent no.1, the respondent
no.1 is not only acting contrary to the mandate of Section 160 of the act but
also the election rules adopted by the respondent no.1 vide the decisions taken
in the 236th executive committee meeting of AEPC at Gurgaon,
Haryana, on ____________ are woven with the threads of arbitrariness,
unreasonableness and conflict of interest.
The election rules as well as the
public notice issued by the Respondent no.1 require deposit of Rs ____________ /-(One
Lakh) as a pre-requisite to apply for nomination in the election of the
executive committee of the Respondent no.1. Further, in a case where the
applicant does not get elected or in case the applicant member is not able to
garner 25 per cent of the total votes polled; the pre-deposited amount of Rs_________/-
shall be forfeited.
The election rules as well as the
notice are based upon the pre-amended section 160 of the act. The statutory
language of Section 160 of the act as modified by the notification-dated
05.06.2015 unequivocally clarifies that the mandatory deposit of Rs ____________/-
under section 160 of the act shall not be applicable upon the companies
registered under the Section 8 of the act (erstwhile section 25 of the act).
Evidently, in spite of categorical, unequivocal and unambiguous modification in
the statutory language of section 160 of the act read along with the
notification; the aforesaid requirement of depositing Rs ___________/- as a
pre-condition has been adopted by the respondent no.1 for elections at its
annual general meeting (AGM), as latest as on ________ in its 236th
executive committee meeting by installing the same in its election rules. The
aforesaid unscrupulous activity of the respondent no.1 came in to the public
domain vide public notice dated __________ only. It is interesting to note that
the elections rules were adopted on __________ and the public notice was issued
on ___________ i.e. more than six months after the notification clarifying the
applicability of Section 160 over the companies registered under section 8 of
the act had been released by the Respondent no.4.
Therefore, the usage of the
provisions of the un-amended Section 160 of the act hints at ulterior motives
of the respondent no.1. It is trite to mention that the aforesaid pre-condition
of deposit of Rs __________/- as an eligibility criterion to apply for
nomination for the executive committee membership refrains the eligible and
interested members from giving their nomination, as there is inherent fear of
losing Rs _________/-. Such modus-operandi has been adopted to discourage any
potential competition from the eligible list of members who may want to apply
for the nomination in the executive committee of the respondent no.1 and the appellant
is certainly included in the list of such potential contenders. Therefore, the
election rules as well as the public notice are liable to be quashed on this
ground alone.
It is further submitted that the
respondent no.1 though claims to have introduced a transparent electronic
voting system (EVS) for the forthcoming executive committee elections at its
AGM scheduled on _____________; but a bare perusal of the provisions enshrined
in the election rules would make it clear that the electronic voting system
(EVS) has been incorporated only in letter to dodge the authorities for staking
its claim to continue as RCMC registering authority beyond __________ for
apparel exporters and enjoying government grants from Ministry of Commerce and
Ministry of Textiles; and most certainly not in the spirit at all.
The respondent no.1 has incorporated
the execution of electronic voting system (EVS) in two ways i.e., – a). Remote
electronic voting for the members who could not be present in person at the
venue of general voting and b). Electronic voting by the members in person or
through proxy at the venue of the annual general meeting.
In the scheme of remote e-voting, the
members who cannot personally come to the venue of annual general voting have
the leverage to vote electronically in a flexi-location and flexi-timing manner
by using specific username and password allotted to them from any place, where
they have access to an internet connection and these are expected to be IP
mapped as well. The whole purpose of the introduction of remote e-voting was
that the members who could not be present in person at the venue of general
meeting would still have the opportunity to electronically vote from the any
place, where they have an access to the internet connection. In light of such facility given to the
members, it is untenable as to why the election rules still provide for the
provision of voting through proxy at the venue of general voting.
That election rules are further
shrouded in mystery as they allow the voting of members at the general meeting
through proxy but miserably fail to stipulate any proxy form/ mechanism so as
to align the same vis-à-vis the electronic voting system (EVS). The election
rules are completely devoid of any proxy form or any mechanism so as to
synchronize the mechanism of proxy voting with the electronic voting. Therefor
in vacuum of such procedure/mechanism; it is incomprehensible as to how the
proxy shall register and vote on behalf of the member.
The clause 27(d) of the election
rules read with the definition of Scrutinizer in clause 2 of the election rules
adopted by the respondent no.1 has given 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 in
case the executive committee of the respondent no.1 directly controls the
appointment of the Scrutinizer. The election rules are completely oblivious of
this fact that there is a direct conflict of interest, as the executive
committee has a direct role in the appointment of the Scrutinizer.
The Scrutinizer who is portrayed as
an embodiment of transparency and fairness is completely divested of its from
its power to decide any objection pertaining to the counting of votes, power to
accept/reject any vote even in cases where he finds suspicious voting. The
Scrutinizer further has no power to even know, whether the votes cast through
electronic voting have been cast through members or their proxy. In light of
the aforesaid, it is incomprehensible as to how the Scrutinizer shall be able
to conduct the elections in a free, fair and transparent manner. Interestingly,
the Chairman, AEPC vide clause 25, clause 26(b) and clause 27(e) of the
election rules, has been has been made the final authority to decide, to
accept/reject the vote, to decide the objection while counting of the votes,
who is an interested party and therefore there is direct conflict of interests.
Further blanket powers have been given to the Chairman of the Council to
accept/reject the vote and such unbridled discretionary powers have been made
unchallengeable. Further no rules have been laid down as to when and in what
circumstances the Chairman can accept/reject vote. Also, the clause 27(e) of
the election rules makes the Chairman as the final adjudicating authority to
decide any disputes pertaining to the rules of election. In lieu of the above,
it can be clearly asserted that the election rules as well as the subsequent
public notice are woven with the threads of arbitrariness, unreasonableness and
in a crafty manner to serve the vested interests of select few members at the
helm of affairs presently.
Therefore, it is humbly submitted
that election rules and the public notice issued by Respondent No.1 along with
the bare patent illegality as they impose an illegal as well as an arbitrary
financial burden of depositing Rs. _____________/- (One Lakh only) by any
interested member for contesting elections which is not only an undesirable
barrier for newcomers but also ultra vires the section 160 of the act read with
the notification. Hence, both the election rules as well as the Public notice
given in consequence are liable to be struck down. In light of such glaring
illegalities and irregularities, it is pertinent that the election be conducted
under the supervision and guidance of an independent government body /
officials and only after rectifying the inherent incongruities and biased
election rules.
However,
the Hon’ble Single Judge vide order dated ____________ pleased to dismiss the
petition, which is impugned in this appeal.
LIST
OF DATES & EVENTS :-
_________ : That Respondent No.1 was incorporated
under section 8 of the act (erstwhile Section 25 of the act). The main purpose
for which the respondent no.1 was incorporated was to undertake export
promotion measures, to give assistance to all the members in a fair and
sensitive manner, to make action plans for the promotion of exports,
development of export markets, etc.
____ : That
the Central Government vide its power issued a notification bearing no. S.O. 902(E) dated _________ notified Section
160 of the companies act. The provision of this section statutorily required a
pre-deposit of Rs 1,00,000/- in case any person or member wants to
applies for nomination to become director of the company.
__________: The Ministry of
Corporate Affairs (hereinafter referred to as (“the respondent no.4”) published
a notification bearing no. G.S.R. 466(E) which unequivocally exempted all the
companies registered under section 8 of the act from the application of the
statutory requirement stipulated under section 160 of the act. Therefore, a clear and unambiguous outcome of this
notification was that the section 8 companies were not required to insist on a
pre-deposit of Rs. __________/- as a
pre-condition, while giving name for nomination.
_________ : The respondent no.1 vide its 236th meeting of the Executive
Committee framed and approved the impugned Election Rules. The framed Election
Rules include the modalities, procedures and rules of the election of Executive Committee of
Respondent No.1. A bare perusal of the election rules would show that the
election rules have been framed arte not only ultra vires Section 160 of the
act but also the procedure and mechanism guiding the election of the executive
committee is arbitrary and unreasonable.
__________ : That Respondent no.1 (Company) issued a public notice bearing
no. COORD/XII/2015 (hereinafter referred to as the notice”) in pursuance of the
abovestated Election Rules, whereby the modalities, process and date and venue
of elections to Executive Committee were stated. The notice requires a
pre-deposit of Rs_________/- (________) as a pre-requisite for filing of
nominations by interested members. The aforesaid demand is ultravirys to the
amended/modified Section 160 of the act. Therefore, the public notice dated __________
is liable to be quashed.
______ : Thereafter appellant has
filed the Writ Petition (Civil) bearing No. _______/2015 for quashing of
election rules dated _______ adopted by the respondent no.1 along with the
public notice dated __________ issued by the respondent no.1
and to further to
appoint and independent government official to conduct the elections of the
members of the executive committee in a fair and a transparent manner.
_______ : Impugned order dated _________ passed
by the Ld. Single Bench of this Hon’ble Court in Writ Petition (Civil) No. _____/2015
thereby dismissing the petition on the ground that the appellant has no cause
of action to challenge the rule supra.
__.05.2016 : Hence, the present Letters Patent
Appeal.
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
__________________________________ :
APPELLANT
VERSUS
________________ : RESPONDENTS
I N D E X
S.NO. PARTICULARS PAGES
|
1. Notice of Motion
2. Urgent Application
3. Memo of Parties
4. List of Dates & Events.
5. Certificate.
6. Appeal under Clause 10 of the Letters
Patent Against the Order Dated ________ passed by the Hon’ble High Court of
Delhi in Writ Petition (C) No. ______ of 2015. Supporting Affidavit.
7. Impugned Order dated _____ passed by
Hon’ble High Court of Delhi in Writ Petition (C) no._________ of 2015.
8. ANNEXURE
A-1
Copy of the Certificate of Incorporation of Respondent No.1
9. ANNEXURE
A-2
Memorandum of Association and Article of Association of
Respondent No.1
10. ANNEXURE
A-3
Copy of the notification of Ministry of Corporate Affairs
bearing no. G.S.R. 466(E) dated _____________
11. ANNEXURE
A-4
Copy of the Election Rules- For Election of Executive
Committee Members of Respondent No.1 as framed and passed by the Executive
Committee on ____________
12. ANNEXURE
A-5
Copy of the Public Notice dated _______________
published by Respondent No.1 intimating the time, details and modalities of
election to the Executive Committee of the respondent-company.
13. ANNEXURE
A-6.
Copy of
Writ Petition (C) No. ________ of 2015 filed by the appellant.
14. Application Under Section 151 of C.P.C. for
stay alongwith affidavit.
15. Application under Section 151 of CPC for
Exemption from filing certified copies and dim Annexures alongwith supporting
affidavit.
16. Vakaltnama.
----------------------------------------------------------------------
DELHI FILED BY
DATED
_____________________
(ADVOCATES)
___________________,
New Delhi-110013.
Mob.No._____________
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
________________________________ :
APPELLANT
VERSUS
__________________
: RESPONDENTS
URGENT APPLICATION
TO,
The Registrar,
Delhi High Court,
New
Delhi
Sir,
Would you kindly
treat the accompanying Petition as urgent one as the High Court rules and
regulations: the Ground of urgency are :-
May kindly be pleased to set aside the impugned order dated
______________ passed by this Hon’ble Court in W.P. (C) No. ________ of 2015.
Thanking you,
DELHI APPELLANT
THROUGH
DATED
________________________
(ADVOCATES)
________________
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_________________________________ :
APPELLANT
VERSUS
________________
: RESPONDENTS
NOTICE OF MOTION
TO,
_______________
_______________
_______________
Sir,
Kindly take
note that the abovementioned LPA is being filed before Delhi High Court and the
same is likely to be listed on ___, May, 2016 or thereafter. A copy of the LPA alongwith the Applications
and the Annexures is being supplied along with this letter.
Thanking you,
DELHI APPELLANT
THROUGH
DATED
____________________
(ADVOCATES)
__________________
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_____________________________________ :
APPELLANT
VERSUS
__________________ : RESPONDENTS
MEMO OF PARTIES
___________________________ : APPELLANT
VERSUS
1.
____________________________________________________
______________________ : RESPONDENT No.1
2.
_________________________ : RESPONDENT NO.2
3.
______________ :
RESPONDENT No.3
4.
_____________________ :
RESPONDENT NO.4
---------------------------------------------------------------------------
DELHI APPELLANT
THROUGH
DATED
________________
(ADVOCATES)
_____________
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
________________________________ :
APPELLANT
VERSUS
__________________
: RESPONDENTS
CERTIFICATE
It is
certified that all the papers qua Writ Petition (C) No.11201 of 2015 filed
before the Single Bench have been annexed to this appeal and no other documents
other than from the record of the appellant and Writ Petition (C) No.11201/2015
have been filed in this appeal.
Place : New
Delhi.
Filed on :
APPELLANT
THROUGH
_____________________
ADVOCATES
_______________________,
New Delhi-110013.
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
______________________ : APPELLANT
VERSUS
1. ________________________________________________
___________________ :
RESPONDENT No.1
2. ___________________ : RESPONDENT NO.2
3. __________________ :
RESPONDENT No.3
4. __________________ : RESPONDENT NO.4
AN APPEAL UNDER CLAUSE 10 OF THE LETTERS PATENT
AGAINST THE ORDER DATED _________ PASSED BY THE HON’BLE HIGH COURT OF DELHI IN
WRIT PETITION (CIVIL) NO. ______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 ________
passed by the Ld. Single Judge of High Court of Delhi in Writ Petition (Civil)
No. ______ of 2015 whereby Ld. Single Judge, was
pleased to dismiss the petition on the ground that appellant has no cause of
action to challenge the rule supra, which is impugned in this petition.
2. That
by way of the impugned order, the Ld. Single Judge has rejected the contention
of the Appellant without considering it as raised by the Appellant for quashing of election rules dated ____________
adopted by the respondent no.1 along with the public notice dated _________
issued by the respondent no.1 whereby in spite of categorical and
unequivocal amendment / modification of Section
160 of the act vide notification dated ________ that the pre-condition of
deposit of Rs._________/- for filing application of nomination of members is
not applicable over the companies registered under section 8 of the act; the
respondent no.1 has mandated the deposit
of Rs ______/- as a pre-requisite for filing nomination by members for the
elections of the executive committee. The Respondent has adopted the aforesaid
illegal condition vide election rules dated __________ and has also
issued the same vide public notice dated ________.
3. That the facts leading to the filing of the
present appeal are set out hereunder in brief:-
3.1
That Respondent No.1
was incorporated under section 8 of the Companies Act, 2013 (erstwhile Section 25
of the Companies Act, 1956). The main aim of the
respondent no.1 was to undertake export promotion measures, to give assistance
to all the members in a fair and sensitive manner, to make action plans for the
promotion of exports, development of export markets, etc. However contrary to
the aims and objectives of the respondent no.1, the respondent no.1 is not only
acting contrary to the mandate of Section 160 of the act but also the election
rules adopted by the respondent no.1 vide its 236th meeting of the executive committee at Gurgaon, Haryana, on __________
are woven with the threads of arbitrarinss, unreasonableness and conflict of
interests.
The
copy of the incorporation certificate and articles of association and memorandum of association are attached
hereto and annexed herewith as Annexure
A-1 & Annexure A-2
3.2
The respondent no.1 for
long has been carrying out illegal activities contrary to the objects for which it was established. In the
past the respondent no.1 has been conducting its elections of the executive
committee members in reprehensible manner. Various writ petitions in the past
have been filed against the respondent
no.1 challenging the mode and unfair manner in which the respondent no.1
conducts the elections. However, in the present petition the subject matter of
the controversy pertains to the election rules dated ______________ and public
notice dated __________ issued subsequent
to Respondent no.1’s 236th
executive committee meeting dated ________, whereby
not only illegal demand of Rs _________/- as a pre-requisite to file nomination for the
election of the executive committee at its next AGM scheduled on __________, had been made
but also the provisions of the election rules guiding the manner and conduct of
the elections is highly questionable.
The copy of the
notification bearing no. G.S.R. 466 (E) dated ________ issued by the Respondent
no.4 is annexed herewith and attached hereto as Annexure A-3
3.3 The respondent no.1
vide its 236th meeting of the Executive Committee framed and
approved the impugned Election Rules. The framed Election Rules include the
modalities, procedures
and rules of the
election of Executive Committee of Respondent No.1. A bare perusal of the
election rules would show that the election rules have been framed, are not
only ultra vires Section 160 of the act but also the procedure and mechanism
guiding the election of the executive committee is arbitrary and unreasonable.
Some of the glaring instances of arbitrariness and unreasonableness inter-alia
includes:
a). Illegal and arbitrary requirement
mandating pre-deposit of Rs ____________/- as pre-condition to apply for
nomination for the membership of executive committee:
i.
That
in spite of categorical amendment / modification in the section 160 of the act
vide the notification to the effect that statutory pre-deposit of Rs _________/-
shall not apply in the case of companies registered under section 8 of the act;
the election rules as well as the public notice mandates the requirement of
pre,-deposit of Rs _________/- as a pre-condition to apply for the membership
of the executive committee. Such an illegal and arbitrary act is borne out of
evil motives of the executive committee with intent to shun out maximum
competition at the preliminary stage of application itself.
ii.
That
the aforesaid act of respondent cannot be even considered as bonafide mistake
as prior to the adoption and release of the election rules; the respondent no.1
mandatory consults the company secretary as well as the legal advisor before
formulating election rules. Also, there are chartered accountants as well as
full time legal advisors on the panel of respondent no.1. Therefore, in such
case, the respondent no.1’s insistence upon pre-deposit of Rs _________/- hints
only at malafide intent of the executive committee.
b).
Application of electronic voting only
in letter and not in spirit:
The respondent
no.1 has introduced the scheme of electronic voting to give an impression as if
the 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 show the extent of illegality,
arbitrariness and unreasonableness. Some of the glaring instances are as
follows:
i.
There
is no prescribed procedure or mechanism installed in the rules which clarifies
the mechanism in which the proxy shall vote on behalf of the members. No proxy
form has been released along with the election rules and election rules don’t
even whisper as to how the proxy shall vote on behalf of the member in
electronic voting at the general meeting. In the absence of any pre determined
procedure or mechanism aligned with the scheme of electronic voting. In lieu of
the above, it is likely that the executive committee may entertain the manual
entries of the proxy persons at the time of annual general meeting. In such
case, the whole election albeit conducted through electronic voting system
(EVS) shall be jeopardized.
ii.
The
election rules had categorically introduced the concept of remote electronic
voting mainly for the reason that in cases where the members are not able to
remain present in person at the general meeting; the members have an
alternative approach to cast their vote electronically on the basis of secured
username and password. The rationale of remote electronic voting was to curb
the menace caused by the voting through proxy. However, in spite of having the
facility of remote electronic voting, the election rules retain the voting
through proxy.
c).
Role and powers of Scrutinizer is
hugely jeopardized.
As per the
election rules, the Scrutinizer had been appointed to conduct the elections in
a free, fair and a transparent manner. However, on a bare perusal of the
election rules, it is crystal clear that the Scrutinizer effectively does not
have any power to ensure transparency and fairness in the conduct of the
elections. The reasons inter-alia includes:
i.
The
key powers such as taking decisions pertaining to the objection to the counting
of votes, to decide whether to declare a vote valid or invalid ought to have
been conferred to the Scrutinizer only. On the contrary, all such key powers
have been conferred exclusively on the Chairman, AEPC only, despite him being
an interested party and thus having a direct conflict of interests.
ii.
The
role of Scrutinizer is limited only for mere tabulation of the votes casted by
the members. It is submitted that Scrutinizer ought to have been given
independent powers for it to effectively function as a successful watchdog for
the elections of the members to the executive committee.
iii.
The
Scrutinizer as per clause- 27 (d) of the election rules has to be appointed by
the executive committee. In such case, the Scrutinizer owes its allegiance to
the executive committee appointing it. Therefore, the appointment of the
Scrutinizer ought to be an independent function exclusively in domain of the
government of India. The Scrutinizer ought to be a person fluent in the
electronic mechanisms and procedures so that the Scrutinizer could effectively
check upon any lapse/malafide in the electronic voting process.
d).
Glaring instance of conflict of
interest, arbitrariness and unreasonableness. Widespread in the election rules:
i. The powers conferred upon the Chairman are
wide and discretionary. For instance, the clause 26(b) of the election rules
gives blanket powers to the Chairman to accept or reject vote. No grounds on
the basis of which the Chairman can reject votes are mentioned. Also, the
clause 25(e) of the election rules further gives the discretion to the chairman
to decide about the acceptance/rejection of objection pertaining to the
counting of votes. It is incomprehensible as to why the Chairman, AEPC is
accorded with such blanket powers and how could this ensure free and fair
elections. Such powers ought to have been conferred upon the independent and
unbiased scrutinizers and not the Chairman, AEPC.
ii. Further, it is incomprehensible as to why the
Chairman, AEPC has been given a final say to decide the admissibility and
non-admissibility of votes, when an independent Scrutinizer has to be appointed
to conduct the elections under EVS in a fair and a 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
conflict of interests but also likely to create prejudice and negative bias for
others when he himself along with his colleagues are contenders. Further, this
practice shall also seriously jeopardize the fairness and transparency in the process
of elections.
The copy of the
election rules adopted by the respondent no.1 during its annual general meeting
dated ________ are attached hereto and annexed herewith as Annexure A-4.
3.4 That
Respondent no.1 thereafter vide a public notice dated _________ bearing no. _____/_____/2015
(hereinafter referred to as the notice”) in pursuance of the abovestated
Election Rules, whereby the modalities, process and date and venue of elections
to Executive Committee were stated. The notice requires a pre-deposit of Rs. __________/-
(________ Only) as a pre-requisite for filing of nominations by interested
members. That the last date for giving the name for nomination of executive
committee members is _________. The aforesaid demand as a pre-requisite to give
the name for nomination of executive committee members is ultravires to the
amended/modified Section 160 of the act. Therefore, the public notice dated _______
is liable to be quashed.
The copy of the public
notice issued by the respondent no.1 is attached hereto and annexed herewith as
Annexure A-5.
4. Feeling aggrieved, appellant filed the
Writ Petition (Civil) before the this Hon’ble Court against the respondents for
quashing of election rules dated _______ adopted by the respondent no.1 along
with the public notice dated __________ issued by the respondent no.1
and to further to
appoint and independent government official to conduct the elections of the
members of the executive committee in a fair and a transparent manner.
The
copy of the Writ Petition (Civil) No. ________ of 2015 filed by the appellant
is attached hereto and annexed herewith as Annexure
A-6.
5. That Ld. Single Judge after going through
the entire material and arguments, pleased to dismiss the petition with the
ground that the appellant is not entitled to any relief from this Hon’ble Court
vide order dated ________.
6. Being
aggrieved by the impugned order dated _________ passed by the Learned Single
Judge on the following grounds, amongst others:-
- : G R O U N D S : -
A.
That the
Ld. Single Judge of this Hon’ble Court has failed to appreciate that as per
articles 26 of Constitution of India envisages grants right to establish and
maintain institution for religious for charitable purposes.
B. That the Ld. Single Judge of this Hon’ble Court has failed to
appreciate that the impugned election rules as well as public
notice raise an illegal and arbitrary requirement mandating pre-deposit of Rs ______/-
as pre-condition to apply for nomination for the membership of executive
committee. The aforesaid demand is ultra vires to Section 160 of the act as in
spite of categorical amendment/modification in the section 160 of the act vide
the notification to the effect that statutory pre-deposit of Rs _________/-
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 mandates
the requirement of pre -deposit of Rs ________/- as a pre-condition to apply
for the membership of the executive committee. Such an illegal and arbitrary
act is borne out of evil motives of the executive committee with intent to
discourage maximum competition from potential at the preliminary stage of
application itself.
That the
aforesaid act of the respondent no.1 cannot be even considered as bonafide
mistake as prior to the adoption and release of the election rules; the
respondent no.1 mandatory consults the company secretary as well as the legal
advisor before formulating election. Also, there are chartered accountants as
well as full time legal advisors on the panel of respondent no.1. Therefore, in
such case, the respondent no.1’s insistence upon pre-deposit of Rs _______/-
hints only at malafide intent of the executive committee
C. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that the election rules have adopted the scheme of electronic voting only in letter and not in spirit.
That respondent no.1 has introduced the scheme of electronic voting to give an
impression as if the 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 show the extent of illegality, arbitrariness and
unreasonableness.
D. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that there is no
prescribed procedure or mechanism installed in the election rules, which
clarifies the mechanism in which the proxy shall vote on behalf of the members.
No proxy form has been released along with the election rules and the rules
don’t even whisper as to how the proxy shall vote on behalf of the member in
electronic voting at the general meeting. In the absence of any pre determined
procedure or mechanism aligned with the scheme of electronic voting. I, it is
likely that the executive committee may entertain the manual entries of the
proxy persons at the time of annual general meeting. In such case, the whole
spirit of electronic voting shall be jeopardized.
E. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that once the election rules have prescribed the
provision of remote electronic voting; there is no rationale to introduce the
concept of vote through proxy. The election rules had categorically introduced the concept of remote
electronic voting mainly for the reason that in cases where the members are not
able to remain present in person at the general meeting; the members have an
alternative approach to cast their vote electronically on the basis of secured
username and password. The rationale of remote electronic voting was to curb
the menace caused by the voting through proxy. However, in spite of having the
facility of remote electronic voting, the election rules retain the voting
through proxy.
F. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that the election
rules are completely devoid of the existence of an independent body/person to
manage and conduct the elections of the members of the executive committee in a
transparent and a fair manner. The respondent no.1 has very cunningly portrayed
that the respondent no.1 has appointed Scrutinizer to conduct the elections in
a fair and a transparent manner. However, on a bare perusal of the election
rules, it is crystal clear that the Scrutinizer effectively does not have any
power to ensure transparency and fairness in the conduct of the elections. The
key powers such as taking decisions pertaining to the objection to the counting
of votes, to decide whether to declare a vote valid or invalid have been
conferred to the Chairman, instead of the Scrutinizer.
G. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that the role of
Scrutinizer is limited only for mere tabulation of the votes casted by the
members. It is submitted that Scrutinizer ought to have been given independent
powers for it to effectively function as a successful watchdog for the
elections of the members to the executive committee. Further, the Scrutinizer as per clause- 27
(d) of the election rules has to be appointed by the executive committee. In
such case, the Scrutinizer owes its allegiance to the executive committee
appointing it. Therefore, the appointment of the Scrutinizer ought to be an
independent function exclusively in domain of the government of India.
H. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that the appointment
of Scrutinizer ought to be a person fluent in the electronic mechanisms and
procedures so that the Scrutinizer could effectively check upon any
lapse/malafide in the electronic voting process. However, in the instant case,
the Scrutinizer is not at all expert in the mechanism and procedures.
I. That the Ld. Single Judge of this Hon’ble Court has failed to appreciate
that there are
glaring instance of conflict of interest, arbitrariness and unreasonableness
profusely woven in the election rules. The powers conferred upon the Chairman
are wide and discretionary. For instance, the clause 26(b) of the election
rules gives blanket powers to the Chairman, AEPC to accept or reject vote. No
grounds on the basis of which the Chairman, AEPC can reject votes are
mentioned. Also, the clause 25(e) of the election rules further gives the
discretion to the Chairman, AEPC to decide about the acceptance / rejection of
objection pertaining to the counting of votes. It is incomprehensible as to why
the Chairman is accorded with such blanket powers. Such powers ought to have
been conferred upon the scrutinizers and not the Chairman.
J. That
the Ld. Single Judge of this Hon’ble Court has failed to appreciate that the
Chairman has been given a final say do decide the admissibility and
non-admissibility of vote, in spite of the fact that a Scrutinizer has been
appointed to conduct the elections in a fair and a 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
conflict of interest but also the transparency in the conduct of elections
would hugely suffer.
K. Because the Ld. Single Judge without
appreciating the facts passed the impugned order without considering the
material on record.
7. That
the appellant submits that they have 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 _________
in Writ Petition (C) No. ___________ of 2015.
P
R A Y E R
In the
light of the above-mentioned submissions it is most respectfully prayed that
this Hon’ble Court may be pleased to:
(i)
Set aside the impugned order
dated ___________ passed by the Learned Single Judge in Writ Petition (C) No. _________
of 2015 and further allow the prayer of the Writ Petition filed by the appellant
bearing Writ Petition (C) No. ________ 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.
DELHI APPELLANT
THROUGH
DATED
___________________
(ADVOCATES)
F-8, Nizamuddin
West,
New Delhi-110013.
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_____________________________ : APPELLANT
VERSUS
___________________ : RESPONDENTS
Affidavit of
Mr. ___________ about 51 years, Partner of M/s. ______________ R/o ________________110051,
do hereby solemnly affirm and declare as under :-
2. That
the submissions as to facts made in the accompanying Appeal Under Clause 10 of
the Letters Patent has been drafted by my counsel as per my instructions and
the facts are true and correct to my knowledge, while the legal submissions
made therein are based on legal advice received and believed to be true.
3. That the annexures annexed to the
accompanying petition are true to their respective originals.
DEPONENT
VERIFICATION :-
Verified
at Delhi on this ____, day of May, 2016 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. _______ OF 2016.
IN
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_________________________________ : APPELLANT
VERSUS
APPLICATION FOR STAY OF THE PUBLIC NOTICE DATED _____________
ISSUED BY THE RESPONDENT NO.1 AND CONSEQUENT DEADLINE FOR GIVING THE NAME FOR
NOMINATIONS FOR EXECUTIVE COMMITTEE MEMBERS ALONGWITH THE DEPOSIT OF RS _____________/-
TILL ________, UNDER SECTION UNDER ARTICLE 226 OF THE CONSTITUTION.
MOST RESPECTFULLY SHOWETH ;-
1.
That
the Appellant filed the aforementioned appeal for setting aside the order dated
____________ passed by Ld. Single Bench of this Hon’ble Court filed by the Appellant
whereby dismissed the petition bearing Writ Petition (C) No.______/2015 and the
same is pending before this Hon'ble Court and the said contents of the appeal
may be read as part and parcel of this application.
2.
That
the above said petition may take some time in its disposal and till the
disposal of the said petition the Hon'ble Court may be pleased to stay the
application of public notice dated ___________ and consequent deadline for
giving the name for nominations for executive committee members alongwith the
deposit of Rs _______/- or otherwise the
Appellant shall suffer an irreparable loss and injuries which cannot be
compensated in any other form.
3.
That
the balance of convenience lies in favour of the appellant and against the
respondents, moreover the appellant has suffer from huge loss if the stay is
not granted in favour of the appellant till the pendency of the accompanying
appeal.
4.
That
the Appellant has good prima facia case in his favour and against the
respondents and there are chances that he will definitely succeed in this case.
PRAYER :-
It is therefore most respectfully
prayed that this Hon’ble Court may pleased to :-
a. Grant and ad-interim stay the public
notice dated _________ and consequent deadline for giving the name for
nominations for executive committee members alongwith the deposit of Rs _______/-
till __________ issued by the respondent no.1, in the interest of justice.
b. Any other order / relief which this
Hon’ble Court may kindly deem fit and proper under the facts and circumstances
of the case and the also be passed / granted in favour of the appellant.
DELHI APPELLANT
DATED
__________________
(ADVOCATES)
__________.
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE
JURISDICTION)
C.M. NO. _______ OF 2016.
IN
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_________________________________ :
APPELLANT
VERSUS
Affidavit of
Mr. _________ about ___ years, Partner of M/s. _________, S/o Sh. _______, R/o
J________ Delhi-110051, do hereby solemnly affirm and declare as under :-
2. That
the submissions as to facts made in the accompanying Application Under Section
151 of CPC has been drafted by my counsel as per my instructions and the facts
are true and correct to my knowledge, while the legal submissions made therein
are based on legal advice received and believed to be true.
3. That the annexures annexed to the
accompanying petition are true to their respective originals.
DEPONENT
VERIFICATION :-
Verified
at Delhi on this ____, day of May, 2016 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. _______ OF 2016.
IN
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_______________________________ : APPELLANT
VERSUS
APPLICATION UNDER SECTION 151 OF THE CODE OF CIVIL
PROCEDURE FOR EXEMPTION FROM FILLING CERTIFIED COPIES OF THE ANNEXXURES,
LEGIBLE COPIES OF DIM & MARGINED COPIES OF ANNEXURES.
MOST RESPECTFULLY SHOWETH ;-
1. That the appellant has filed Annexures along
with the main appeal in order to support the appeal and the Annexures filed are
the true, correct and compared copies of the original.
2. That due to paucity of time and urgency in
the matter, the appellant is unable to file the certified copies of annexures,
legible copies of dim & margined copies of annexures before this Hon’ble
Court. Therefore, the appellant is seeking exemption from filing the same in
the interest of justice.
3. That the appellant further undertake to
file the same as and when this Hon’ble Court will direct.
It is most respectfully
prayed that this Hon’ble Court may pleased to exempt the appellant from filing
certified copies of annexure, legible copies of dim & margined copies of
annexures in the interest of justice.
DELHI APPELLANT
DATED
_________________
(ADVOCATES)
___________________.
IN THE HIGH COURT OF DELHI AT NEW
DELHI.
(CIVIL APPELLATE JURISDICTION)
C.M. NO. _______ OF 2016.
IN
L.P.A. NO. ________ OF 2016.
IN THE MATTER OF :-
_______________________________ : APPELLANT
VERSUS
___________________ : RESPONDENTS
Affidavit of
Mr. _________ about ___ years, Partner of M/s. ________, S/o Sh. ________, R/o __________
Delhi-110051, do hereby solemnly affirm and declare as under :-
2. That
the submissions as to facts made in the accompanying application moved Section
151 of the Code of Civil Procedure seeking exemption from filling certified
copies are based on legal advice received and believed to be true.
5.
That
the annexures annexed to the accompanying application are true to their
respective originals.
DEPONENT
VERIFICATION :-
Verified
at Delhi on this ____, day of May, 2016 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.
DEPONEN
