IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION (LODG) NO. 1402 OF 2008 PETITION (LODG) NO. 1402 OF 2008 PETITION (LODG) NO. 1402 OF 2008 M.Z. Khan ] .. Petitioner Versus 1. Securities & Exchange Board of India] and 3 ors. ] .. Respondents Mr. Prakash Shah i/b M/s. PDS Legal for the petitioner. Dr. Poornima Advani with Ravindra Lokhande i/b The Law Point for respondent No.1. Mr. Soli Cooper with Tejas Karia and Indranil Deshmukh i/b M/s.Amarchand Mangaldas & S.A. Shroff & Co. for the respondents No.2 and 3. Mr. Iqbal M. Chhagla, senior counsel with Mr. Prashant Beri i/b M/s. Beri & Co. for the respondent No. 4. CORAM: S.B. MHASE & A.A. KUMBHAKONI, JJ. DATED: 13TH JUNE, 2008 P.C. : 1. Heard. 2. The petitioner has approached this court for a relief that the complaint and/or representation made by him to the respondent No.1 - Securities Exchange Board of India (for short "SEBI") be disposed of on merits by SEBI after carrying out appropriate investigation and : 2 : adjudication of those complaints. 3. The learned counsel for the petitioner submitted that these complaints are made under three heads. He stated that (1) his complaint under Regulation No.12 has not been considered, (2) the complaint under Regulation No.23(3) has not been considered and (3) his complaint under Regulation 22(7) has not been adjudicated. 4. As far as the complaint under Regulation No.22(7) is concerned, later on it was clarified by the learned counsel for the petitioner that the said complaint was filed by some other share-holder. However, it was adjudicated by SEBI and it was held that there is violation of Regulation No.22(7). The said order was challenged before the Appellate Authority and the Appellate Authority has set aside the order of SEBI. The matter, thereafter, went to the Supreme Court and when it was tried to be withdrawn, the petitioner has made an application for impleading the petitioner in the said proceeding. The said application of the petitioner for impleadment is pending. Ultimately, it is clarified that the grievance in respect of violation of Regulation No.22(7) is already pending before the Supreme Court and, therefore, no directions are required to be issued : 3 : to SEBI to consider the violation of Regulation No.22(7). 4. Now, the grievance remains in regard to the aforesaid two grounds. In respect of this, SEBI has filed an Affidavit and has stated that the application under Regulation No.12 has been considered by SEBI when SEBI considered the grievance raised by Hardy Oil & Gas PLC, intimation in respect of which was issued to the said company on August 29, 2003. We also find that SEBI has observed in the said letter thus: "We do not agree with your interpretations that the provisions of regulation 12 would apply where control is acquired without acquiring any shares or acquiring shares with in the limits in which case the provisions of regulation 10 and 11 will not be attracted. In this regard, please refer to provisions of regulation 12 which applies irrespective of whether or not there has been any acquisition of shares or voting rights." 5. Thus, though there was no adjudication on the complaint of the petitioner, on account of the complaint of Hardy Oil & Gas PLC, the issue in respect of Regulation No.12 has been considered and negatived by SEBI. 6. The next point is in respect of the complaint : 4 : made under Regulation No.23(3). In this regard, the Affidavit of SEBI states in paragraph 13 thus: "That there is no question of violation of Regulation No.23(3) of the Takeover Regulations. It has been mentioned by the petitioner that the only difference between Regulation No.22(7) and Regulation No.23(3) is that the offender in respect of the former is acquirers whereas in respect of the latter the offender is target company. Therefore, if SEBI had initiated adjudication for Regulation No.22(7) it should have also initiated adjudication for violation of Regulation No.23(3). This interpretation given by the petitioner is wrong as Regulation No.22(7) creates a prohibition on the acquirers on appointing directors on the Board of the target company during the offer period whereas Regulation No.23(3) prohibits the target company from appointing any director on its Board as representing or having interest in the acquirer after making of public announcement. Since in the present case acquirers appointed their two directors on the Board of the target company before making of public announcement, Regulation No.23(3) was not attracted." 7. Therefore, this part of the Affidavit is actually an adjudication of the point raised by the petitioner. Hence we observe that keeping in mind this Affidavit and treating this as an order of SEBI, the petitioner may follow an appropriate remedy available to him, in law. 8. In the result we find that all the points which have been raised by the petitioner for being : 5 : considered as SEBI have been answered directly and/or impliedly by SEBI and this Petition seeking directions against SEBI to consider these grievances of the petitioner does not survive. 9. In view of what is stated above, we find that the Petition is without any merit and we, accordingly, dispose of the same. 10. However, in view of the above observations and findings that the petitioner is entitled to follow alternate remedies available to him. We make it clear that if any proceedings are initiated by the petitioner before an appropriate forum, the petitioner and the respondents are both entitled to raise all the points which they have raised in this Petition and in the Affidavits filed in reply to the Petition. We further make it clear to both the sides that if they want to raise any additional points, which have not been raised in the Petition and/or in the reply Affidavits, it will be open for them to raise the same before the said authority. 11. Petition, accordingly, stands disposed of. : 6 : Sd/- Sd/- [A.A. [A.A. [A.A. KUMBHAKONI, J.] KUMBHAKONI, J.] KUMBHAKONI, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]