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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5173 OF 2006

NATIONAL SECURITIES DEPOSITORY LTD. … Appellant

VERSUS

SECURITIES AND EXCHANGE BOARD OF INDIA … Respondent

WITH

CIVIL APPEAL NO. 186 OF 2007

SECURITIES AND EXCHANGE BOARD OF INDIA … Appellant

VERSUS

NATIONAL SECURITIES DEPOSITORY LTD. … Respondent

J U D G M E N T

R.F. Nariman, J.

1.The present appeal raises an interesting question as to whether

an administrative circular that is issued by SEBI under Section 11(1) of

the Securities Exchange Board of India Act, 1992, can be the subject

matter of appeal under Section 15T of the said Act.

2.By an administrative circular dated 9

th

November, 2005, SEBI

under the caption “review of dematerialization charges” issued an

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administrative circular under Section 11(1) of the SEBI Act to protect

the interests of investors in securities and to promote the development

of, and to regulate the securities market. Depositories were advised

by the said circular to amend all relevant bye-laws, rules and

regulations in order to see that with effect from 9

th

January, 2006, no

charges shall be levied by a depository on DPs and consequently by a

DP on a beneficiary owner when a beneficiary owner transfers all

securities lying in his account to another branch of the same DP or to

another DP of the same depository or another depository, provided the

BO account at transferee DP and that transferor DP are identical in all

respects.

3.A preliminary objection was raised in the appeal filed by the

respondent before the Securities Appellate Tribunal. It was urged that

under the SEBI Act, SEBI has administrative, legislative and

quasi-judicial functions. Appeals preferred to the Securities Appellate

Tribunal can only be from quasi-judicial orders and not administrative

and legislative orders. This preliminary objection was turned down by

the impugned judgment dated 29

th

September, 2006, by the Securities

Appellate Tribunal. According to the Tribunal, the expression “order”

is extremely wide, and there being nothing in the Act to restrict an

appeal only against quasi-judicial orders, appeals would lie against all

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three types of orders under the Act i.e. administrative orders,

legislative orders as well as quasi-judicial orders. This was held

purportedly following the decision in Clariant International Ltd. &

Anr. vs. Securities & Exchange Board of India [(2004) 8 SCC 524].

The Tribunal, therefore, rejected the preliminary objection and went

into the merits of the arguments against the impugned circular, and

dismissed the same.

4.Cross appeals have been filed before us. Civil Appeal No.5173

of 2006 has been filed by the National Securities Depositories Ltd. Vs.

SEBI on the merits of the dismissal, whereas Civil Appeal No.186 of

2007 has been filed by the SEBI against the rejection of the

preliminary objection raised before the Securities Appellate Tribunal.

We will take up the second appeal first inasmuch as if the preliminary

objection were to succeed, it is clear that the merits would not have to

be gone into.

5.It was urged on behalf of the appellant in the second civil appeal

that the appeal filed under Section 15T of the SEBI Act is only

restricted to quasi-judicial orders and not administrative or legislative

orders or directions passed by SEBI under the 1992 Act. According

to the learned counsel on behalf of the appellant, the Appellate

Tribunal judgment is wrong and needs to be reversed inasmuch as it

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has clearly stated that even against legislative regulations, the

Appellate Tribunal would have jurisdiction, which is contrary to two

direct judgments under allied Acts namely, PTC India Ltd. vs.

Central Electricity Regulatory Commission [(2010) 4 SCC 603]

under pari materia provisions under the Electricity Act, 2003, and

Bharat Sanchar Nigam Ltd. vs. Telecom Regulatory Authority of

India & Ors. [(2014) 3 SCC 222] under the Telecom Regulatory

Authority of India Act, 1997. He stated that the same fate would await

administrative orders as well and that the reasoning of these two

judgments would lead us necessarily to this conclusion.

6.On the other hand, learned counsel for the respondent urged

before us that the word “order” not having been defined is extremely

wide and would, therefore, include all orders of the Board which, as

has been pointed out, would be administrative and legislative orders

as well. The controversy being in a narrow compass, it is necessary

for us to lay down the law with some clarity.

7.Section 15T of the Act reads as follows :

“15T. Appeal to the Securities Appellate Tribunal.

(1) Save as provided in sub-section (2), any person

aggrieved,—

(a) by an order of the Board made, on and after the

commencement of the Securities Laws (Second

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Amendment) Act, 1999, under this Act, or the rules or

regulations made thereunder; or

(b) by an order made by an adjudicating officer under this

Act, may prefer an appeal to a Securities Appellate

Tribunal having jurisdiction in the matter.

(2) ********

(3) Every appeal under sub-section (1) shall be filed within

a period of forty-five days from the date on which a copy of

the order made by the Board or the Adjudicating Officer, as

the case may be, is received by him and it shall be in such

form and be accompanied by such fee as may be

prescribed :

Provided that the Securities Appellate Tribunal may

entertain an appeal after the expiry of the said period of

forty-five days if it is satisfied that there was sufficient

cause for not filing it within that period.

(4) On receipt of an appeal under sub-section (1), the

Securities Appellate Tribunal may, after giving the parties to

the appeal, an opportunity of being heard, pass such

orders thereon as it thinks fit, confirming, modifying or

setting aside the order appealed against.

(5) The Securities Appellate Tribunal shall send a copy of

every order made by it to the Board, the parties to the

appeal and to the concerned Adjudicating Officer.

(6) The appeal filed before the Securities Appellate Tribunal

under sub-section (1) shall be dealt with by it as

expeditiously as possible and endeavour shall be made by

it to dispose of the appeal finally within six months from the

date of receipt of the appeal.”

This Section appears in Chapter VIB inserted by an amendment

Act of 1995. It is interesting to note that under Section 15M, a person

shall not be qualified for appointment as the Presiding Officer of the

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three member Appellate Tribunal unless he is a sitting or retired Judge

of the Supreme Court, or a sitting or retired Chief Justice of a High

Court, or is a sitting or retired Judge of a High Court who has

completed not less than 7 years of service as a Judge in a High Court.

This is one indicia of the fact that the Appellate Tribunal, being

manned by a member of the higher judiciary, is intended to hear

appeals only against quasi-judicial orders.

8.Also, appeals are to be filed by persons aggrieved not only by

an order of the Board made under the SEBI Act, Rules or Regulations,

but by orders made by an adjudicating officer under the Act. Under

Section 15-I, the Board can appoint an officer not below the rank of a

Division Chief to be an adjudicating officer to hold an inquiry, give a

hearing to the person concerned and thereafter impose a penalty, all

of which points to only quasi-judicial functions being exercised by such

officers. Under sub-section (3) of Section 15T, every appeal is to be

filed within a period of 45 days from the date on which a copy of the

order made by the Board or the adjudicating officer, as the case may

be, is received by him. Generally administrative orders and legislative

regulations made by the Board are never received personally by “the

person aggrieved”. This is another pointer to the fact that the order

spoken of in sub-section (1) of Section 15T is only a quasi-judicial

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order. Also, it is important to note under sub-section (4) that the

Appellate Tribunal may ultimately pass orders confirming, modifying or

setting aside the order appealed against. In the Clariant judgment

referred to hereinabove, paragraph 74 clearly states that “the

jurisdiction of the appellate authority under the Act is not in any way

fettered by the statute and thus it exercises all the jurisdiction as that

of the Board”. This being the case, it is clear that the appeal being a

continuation of the proceeding before the Board, the proceeding can

only be quasi-judicial in nature.

9.Yet another indicator can be found under sub-section (5) of

Section 15T by which a copy of every order made by the Appellate

Tribunal is to be sent to the Board, the parties to the appeal and to the

concerned adjudicating officer. The concerned adjudicating officer

and the parties to the appeal obviously refer only to persons involved

in a quasi-judicial proceeding.

10.Under Section 15Z of the Act, an appeal lies from any “decision

or order” of the Securities Appellate Tribunal to the Supreme Court on

questions of law arising out of such orders. Obviously, these orders

are also quasi-judicial in nature. All this leads to distinctions between

quasi judicial and administrative orders that have to be made on first

principles.

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11. For this we have to hearken back to the classic case of The

King vs. Electricity Commissioners [(1924) 1 KB 171]. In a

celebrated judgment given by Lord Justice Atkin, the definition of a

quasi-judicial order is

“Whenever any body of persons having legal authority to

determine questions affecting rights of subjects, and having

the duty to act judicially, act in excess of their legal

authority, they are subject to the controlling jurisdiction of

the King’s Bench Division exercised in these writs.”

12.This celebrated passage has been referred to time and again in

the Supreme Court’s judgments. Thus in Province of Bombay vs.

Kushaldas S. Advani [(1950) SCR 621], it was held

“(i) That, if a statute empowers an authority, not being a

Court in the ordinary sense, to decide disputes arising out

of a claim made by any party under the statute which claim

is opposed by another party and to determine the respect-

ive rights of the contesting parties who are opposed to

each other, there is a lis and prima facie, and in the ab-

sence of anything in the statute to the contrary it is the duty

of the authority to act judicially and the decision of the au-

thority is a quasi-judicial act; and

(ii) that if a statutory authority has power to do any act

which will prejudicially affect the subject, then, although

there are not two parties apart from the authority and the

contest is between the authority proposing to do the act

and the subject opposing it, the final determination of the

authority will yet be a quasi-judicial act provided the author-

ity is required by the statute to act judicially.”

13.This statement of the law has been followed in Shivji Nathubhai

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vs. Union of India & Ors. [(1960) 2 SCR 775], where the question

which faced the Supreme Court was whether the Central

Government’s power under Rule 54 of the Mineral Concession Rules,

1949, to review administrative orders could be stated to be in a

quasi-judicial capacity. After setting out Lord Justice Atkin’s passage

in Advani’s case (supra), this Court held that three requisites were

necessary in order that the act of an administrative body be

characterized as quasi-judicial :

(i)There must be legal authority;

(ii)This authority must be to determine questions affecting the rights

of subjects; and

(iii)There must be a duty to act judicially.

Applying the aforesaid tests, it was held that the Central

Government’s power of review under Rule 54 was quasi-judicial in that

there is legal authority to determine questions affecting the rights of

subjects and the duty to act judicially which involves a hearing and a

decision on the merits of the case.

14.Similarly, in Indian National Congress (I) vs. Institute of

Social Welfare & Ors. [(2002) 5 SCC 685], this Court held that the

exercise of powers under Section 29A of the Representation of the

People Act, 1951 by the Election Commission is a quasi-judicial

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power. After referring to R. vs. Electricity Commissioner (supra)

and Province of Bombay vs. Kushaldas S. Advani (supra), this

Court laid down :

“The legal principles laying down when an act of a stat-

utory authority would be a quasi-judicial act, which emerge

from the aforestated decisions are these:

Where (a) a statutory authority empowered under a statute

to do any act (b) which would prejudicially affect the subject

(c) although there is no lis or two contending parties and

the contest is between the authority and the subject and (d)

the statutory authority is required to act judicially under the

statute, the decision of the said authority is quasi-judicial.

Applying the aforesaid principle, we are of the view that the

presence of a lis or contest between the contending parties

before a statutory authority, in the absence of any other

attributes of a quasi-judicial authority is sufficient to hold

that such a statutory authority is quasi-judicial authority.

However, in the absence of a lis before a statutory

authority, the authority would be quasi-judicial authority if it

is required to act judicially.” [paras 24 and 25]

It can be seen from the aforesaid decision that in addition to the

tests already laid down, the absence of a lis between the parties

would not necessarily lead to the conclusion that the power conferred

on an administrative body would not be quasi-judicial – so long as the

aforesaid three tests are followed, the power is quasi-judicial.

15.In Shankarlal Aggarwala vs. Shankarlal Poddar [(1964) 1

SCR 717], the question posed before this Court was whether an order

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of a Company Judge which confirms a sale is administrative or

judicial. This Court held -

“It is perhaps not possible to formulate a definition which

would satisfactorily distinguish, in this context, between an

administrative and a judicial order. That the power is

entrusted to or wielded by a person who functions as a

Court is not decisive of the question whether the act or

decision is administrative or judicial. But we conceive that

an administrative order would be one which is directed to

the regulation or supervision of matters as distinguished

from an order which decides the rights of parties or confers

or refuses to confer rights to property which are the subject

of adjudication before the Court. One of the tests would be

whether a matter which involves the exercise of discretion

is left for the decision of the authority, particularly if that

authority were a Court, and if the discretion has to be

exercised on objective, as distinguished from a purely

subjective, consideration, it would be a judicial decision. It

has sometimes been said that the essence of a judicial

proceeding or of a judicial order is that there should be two

parties and a lis between them which is the subject of

adjudication, as a result of that order or a decision on an

issue between a proposal and an opposition. No doubt, it

would not be possible to describe an order passed deciding

a lis before the authority, that it is not a judicial order but it

does not follow that the absence of a lis necessarily

negatives the order being judicial.” [at pages 728- 729]

16.Two other decisions give us an interesting insight into the

difference between administrative and quasi-judicial orders. In

Jayantilal Amrit Lal Shodhan vs. F.N. Rana & Ors. [(1964) 5 SCR

294], this Court held that the report of a Collector made under Section

5A of the Land Acquisition Act is an administrative decision despite the

fact that the Collector has to give the objector an opportunity of being

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heard. This was held because the Collector is not required to arrive at

any decision on the lis presented to him. He has to submit the case

for the decision of the appropriate Government together with a report

containing recommendations on objections. It is thus clear that the

Collector’s report would not determine any question that affects rights

even though there may be a duty to act judicially in the sense that the

Collector has to hear objectors before him before making his report.

Similar is the case in Govindbhai Gordhanbhai Patel & Ors. vs.

Gulam Abbas Mulla Allibhai & Ors.[(1977) 2 SCR 511]. This

judgment decided that the function of a Collector under Section 63(1)

proviso of the Bombay Tenancy and Agricultural Lands Act is

administrative and not quasi-judicial. In arriving at this conclusion this

Court referred to various earlier decisions of this Court, which had

held that an Advocate General granting or refusing sanction under

Section 92 of the Civil Procedure Code was an administrative

decision, just as granting or withholding sanction to file a suit under

Section 55(2) of the Muslim Wakfs Act, 1954, is also an administrative

decision. An order made in a reference under Section 10 of the

Industrial Disputes Act is similarly an administrative order. In each of

these three cases no lis is decided on merits affecting the rights of the

subject, and this is the reason why these decisions have been held to

be administrative and not quasi-judicial in nature. One other judgment

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may be referred to. In N. Misra vs. Dr. H.K. Paintal [(1990) 2 SCR

84] this Court held following a passage in Wade’s Administrative Law

that a judicial decision is made according to law, whereas an

administrative decision is made according to administrative policy. A

quasi-judicial function lying somewhere in between is an

administrative function which the law requires to be exercised in some

respects as if it were judicial. A quasi-judicial decision is, therefore, a

decision which is subject to a certain measure of judicial procedure.

17.We now come to two judgments of this Court under Acts which

deal with expert bodies like SEBI. In PTC India Ltd. vs. Central

Electricity Regulatory Commission [(2010) 4 SCC 603], this Court

had to construe various sections of the Electricity Act, 2003, and

ultimately came to the conclusion that the Appellate Tribunal for

Electricity has no jurisdiction to decide the validity of Regulations

framed under the Central Electricity Regulatory Commission under

Section 178 of the Electricity Act, 2003. The validity of the

Regulations may, however, be challenged by seeking judicial review

under Article 226 of the Constitution of India.

18.In so stating, a summary of findings is given in paragraph 92 of

the said judgment. Sub-paras (iii), (iv), and (v) are important from our

point of view, and it is stated as follows :

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“(iii) A regulation under Section 178 is made under the

authority of delegated legislation and consequently its

validity can be tested only in judicial review proceedings

before the courts and not by way of appeal before the

Appellate Tribunal for Electricity under Section 111 of the

said Act.

(iv) Section 121 of the 2003 Act does not confer power of

judicial review on the Appellate Tribunal. The words

“orders”, “instructions” or “directions” in Section 121 do not

confer power of judicial review in the Appellate Tribunal for

Electricity. In this judgment, we do not wish to analyse the

English authorities as we find from those authorities that in

certain cases in England the power of judicial review is

expressly conferred on the tribunals constituted under the

Act. In the present 2003 Act, the power of judicial review of

the validity of the regulations made under Section 178 is

not conferred on the Appellate Tribunal for Electricity.

(v) If a dispute arises in adjudication on interpretation of a

regulation made under Section 178, an appeal would

certainly lie before the Appellate Tribunal under Section

111, however, no appeal to the Appellate Tribunal shall lie

on the validity of a regulation made under Section 178.”

[para 92]

19.This judgment was followed in Bharat Sanchar Nigam Ltd. vs.

Telecom Regulatory Authority of India & Ors. [(2014) 3 SCC 222].

The Telecom Authority of India Act, 1997 had been amended in the

year 2000 to take away from the expert body under the Act, viz. TRAI,

all quasi-judicial functions. Post amendment, the question posed

before this Court was whether TDSAT, viz. the Appellate Tribunal had

in exercise of powers under Section 14(b) of the TRAI Act, the

jurisdiction to entertain a challenge to regulations framed by TRAI

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under Section 36 of the TRAI Act. This Court referred in detail to the

PTC India judgment (supra) and ultimately held that TDSAT does not

have such jurisdiction, regulations being framed by TRAI under

Section 36 of the TRAI Act being legislative in nature.

20.A judgment of this Court dealing with the very Act we are dealing

with is reported as Clariant International Ltd. & Anr. vs. Securities

& Exchange Board of India [(2004) 8 SCC 524]. In our view certain

observations made in this judgment almost conclude the matters

raised in this appeal. While discussing the effect of the Board being

an expert body, this Court in paragraph 71 stated -

“The Board is indisputably an expert body. But when it ex-

ercises its quasi-judicial functions, its decisions are subject

to appeal. The Appellate Tribunal is also an expert

Tribunal.”

In paragraph 77 this Court further went on to state -

“The Board exercises its legislative power by making

regulations, executive power by administering the

regulations framed by it and taking action against any entity

violating these regulations and judicial power by

adjudicating disputes in the implementation thereof. The

only check upon exercise of such wide-ranging powers is

that it must comply with the Constitution and the Act. In that

view of the matter, where an expert Tribunal has been

constituted, the scrutiny at its end must be held to be of

wide import. The Tribunal, another expert body, must, thus,

be allowed to exercise its own jurisdiction conferred on it by

the statute without any limitation.”

21.We have now to determine on a conspectus of the authorities as

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to whether Section 15T refers only to quasi-judicial orders, quite apart

from the construction placed upon the Section earlier in this judgment.

SEBI is an expert body created by the Act which, as has been stated

earlier, has administrative, legislative and quasi-judicial functions.

Some of the Sections which deal with the Board’s quasi-judicial

functions are set out hereinbelow:-

“11. Functions of Board.

(4) Without prejudice to the provisions contained in

sub-sections (1), (2), (2A) and (3) and section 11B, the

Board may, by an order, for reasons to be recorded in

writing, in the interests of investors or securities market,

take any of the following measures, either pending

investigation or inquiry or on completion of such

investigation or inquiry, namely:—

(a) suspend the trading of any security in a recognised

stock exchange;

(b) restrain persons from accessing the securities market

and prohibit any person associated with securities market

to buy, sell or deal in securities;

(c) suspend any office-bearer of any stock exchange or

self-regulatory organisation from holding such position;

(d) impound and retain the proceeds or securities in

respect of any transaction which is under investigation;

(e) attach, after passing of an order on an application made

for approval by the Judicial Magistrate of the first class

having jurisdiction, for a period not exceeding one month,

one or more bank account or accounts of any intermediary

or any person associated with the securities market in any

manner involved in violation of any of the provisions of this

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Act, or the rules or the regulations made thereunder :

Provided that only the bank account or accounts or any

transaction entered therein, so far as it relates to the

proceeds actually involved in violation of any of the

provisions of this Act, or the rules or the regulations made

thereunder shall be allowed to be attached;

(f) direct any intermediary or any person associated with

the securities market in any manner not to dispose of or

alienate an asset forming part of any transaction which is

under investigation :

Provided that the Board may, without prejudice to the

provisions contained in sub-section (2) or sub-section (2A),

take any of the measures specified in clause (d) or clause

(e) or clause (f), in respect of any listed public company or

a public company (not being intermediaries referred to in

Section 12) which intends to get its securities listed on any

recognised stock exchange where the Board has

reasonable grounds to believe that such company has

been indulging in insider trading or fraudulent and unfair

trade practices relating to securities market :

Provided further that the Board shall, either before or after

passing such orders, give an opportunity of hearing to such

intermediaries or persons concerned.

11B. Power to issue directions. Save as otherwise

provided in section 11, if after making or causing to be

made an enquiry, the Board is satisfied that it is necessary,

—

(i) in the interest of investors, or orderly development of

securities market; or

(ii) to prevent the affairs of any intermediary or other

persons referred to in section 12 being conducted in a

manner detrimental to the interest of investors or securities

market; or

(iii) to secure the proper management of any such

intermediary or person, it may issue such directions,—

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(a) to any person or class of persons referred to in section

12, or associated with the securities market; or

(b) to any company in respect of matters specified in

section 11A, as may be appropriate in the interests of

investors in securities and the securities market.

Explanation.—For the removal of doubts, it is hereby

declared that the power to issue directions under this

section shall include and always be deemed to have been

included the power to direct any person, who made profit or

averted loss by indulging in any transaction or activity in

contravention of the provisions of this Act or regulations

made thereunder, to disgorge an amount equivalent to the

wrongful gain made or loss averted by such contravention.

11D. Cease and desist proceedings. If the Board finds,

after causing an inquiry to be made, that any person has

violated, or is likely to violate, any provisions of this Act, or

any rules or regulations made thereunder, it may pass an

order requiring such person to cease and desist from

committing or causing such violation: Provided that the

Board shall not pass such order in respect of any listed

public company or a public company (other than the

intermediaries specified under section 12) which intends to

get its securities listed on any recognised stock exchange

unless the Board has reasonable grounds to believe that

such company has indulged in insider trading or market

manipulation.

12. Registration of stock brokers, sub-brokers, share

transfer agents, etc.

(3) The Board may, by order, suspend or cancel a

certificate of registration in such manner as may be

determined by regulations:

Provided that no order under this sub-section shall be

made unless the person concerned has been given a

reasonable opportunity of being heard.

15-I. Power to adjudicate. (1) For the purpose of

adjudging under sections 15A, 15B, 15C, 15D, 15E, 15F,

15G 87[,15H, 15HA and 15HB, the Board shall appoint any

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officer not below the rank of a Division Chief to be an

adjudicating officer for holding an inquiry in the prescribed

manner after giving any person concerned a reasonable

opportunity of being heard for the purpose of imposing any

penalty.

(2) While holding an inquiry the adjudicating officer shall

have power to summon and enforce the attendance of any

person acquainted with the facts and circumstances of the

case to give evidence or to produce any document which in

the opinion of the adjudicating officer, may be useful for or

relevant to the subject-matter of the inquiry and if, on such

inquiry, he is satisfied that the person has failed to comply

with the provisions of any of the sections specified in

subsection (1), he may impose such penalty as he thinks fit

in accordance with the provisions of any of those sections.

(3) The Board may call for and examine the record of any

proceedings under this section and if it considers that the

order passed by the adjudicating officer is erroneous to the

extent it is not in the interests of the securities market, it

may, after making or causing to be made such inquiry as it

deems necessary, pass an order enhancing the quantum of

penalty, if the circumstances of the case so justify:

Provided that no such order shall be passed unless the

person concerned has been given an opportunity of being

heard in the matter:

Provided further that nothing contained in this sub-section

shall be applicable after an expiry of a period of three

months from the date of the order passed by the

adjudicating officer or disposal of the appeal under section

15T, whichever is earlier.”

22.Administrative functions of the Board are broadly referable to

Section 11(1) of the Act, which states as follows :

“11. Functions of Board. (1) Subject to the provisions of

this Act, it shall be the duty of the Board to protect the

interests of investors in securities and to promote the

development of, and to regulate the securities market, by

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such measures as it thinks fit.”

23.Legislative functions, namely that of making of Regulations is

referable to Section 30 of the Act which reads as follows :

“30. Power to make regulations. (1) The Board may, by

notification, make regulations consistent with this Act and

the rules made thereunder to carry out the purposes of this

Act.

(2) In particular, and without prejudice to the generality of

the foregoing power, such regulations may provide for all or

any of the following matters, namely :—

(a) the times and places of meetings of the Board and the

procedure to be followed at such meetings under

sub-section (1) of section 7 including quorum necessary for

the transaction of business;

(b) the terms and other conditions of service of officers and

employees of the Board under sub-section (2) of section 9;

(c) the matters relating to issue of capital, transfer of

securities and other matters incidental thereto and the

manner in which such matters shall be disclosed by the

companies under section 11A;

(ca) the utilisation of the amount credited under sub-section

(5) of section 11;

(cb) the fulfilment of other conditions relating to collective

investment scheme under subsection (2A) of section 11AA;

(d) the conditions subject to which certificate of registration

is to be issued, the amount of fee to be paid for certificate

of registration and the manner of suspension or

cancellation of certificate of registration under section 12;

(da) the terms determined by the Board for settlement of

proceedings under sub-section (2) and the procedure for

conducting of settlement proceedings under sub-section (3)

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of section 15JB;

(db) any other matter which is required to be, or may be,

specified by regulations or in respect of which provision is

to be made by regulations.”

24.It may be stated that both Rules made under Section 29 as well

as Regulations made under Section 30 have to be placed before

Parliament under Section 31 of the Act. It is clear on a conspectus of

the authorities that it is orders referable to Sections 11(4), 11(b), 11(d),

12(3) and 15-I of the Act, being quasi-judicial orders, and quasi judicial

orders made under the Rules and Regulations that are the subject

matter of appeal under Section 15T. Administrative orders such as

circulars issued under the present case referable to Section 11(1) of

the Act are obviously outside the appellate jurisdiction of the Tribunal

for the reasons given by us above. Civil Appeal No.186 of 2007 is,

therefore, allowed and the preliminary objection taken before the

Securities Appellate Tribunal is sustained. The judgment of the

Securities Appellate Tribunal is, accordingly, set aside.

25.In this view of the matter, Civil Appeal No.5173 of 2006 being a

challenge to the merits of the impugned circular, has necessarily to be

dismissed. We make it clear that liberty is granted to take appropriate

steps in judicial review proceedings to challenge the aforesaid circular

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in accordance with law. Civil Appeal No.5173 of 2006 is disposed of

accordingly.

............................................... J.

(PINAKI CHANDRA GHOSE)

…............................................. J.

(R. F. NARIMAN)

New Delhi;

March 7, 2017.