WP(C) 887/2002 BEFORE HE HON’BLE MR JUSTICE B.P. KATAKEY JUDGMENT AND ORDER (ORAL) 1. The petitioner, which is a public limited company registered und er the Indian Companies Act, by the present petition, has challenged the fixatio n of the date of reference by Securities and Exchange Board of India (SEBI) as 1 2.7.2001, as reflected in the letter of offer made by Foseco (UK) Ltd., for dete rmination of offer price for purchase of 12,77,292 shares of Foseco India Ltd., which is 20% of the voting shares capital of Foseco India Ltd., with a further d irection to SEBI to refix the date of reference for the purpose of fixation of o ffer price. 2. I have heard Ms M Hazarika, learned senior counsel assisted by M s A Ajitsaria, learned counsel for the petitioner as well as Mr. M Bhuyan, learn ed counsel appearing for the respondent Nos. 1 and 2. The other respondents are not represented despite service of notice. 3. Ms Hazarika, learned senior counsel for the petitioner challengi ng the decision of SEBI in fixing 12.7.2001 as the reference date for the purpos e of fixation of offer price has submitted that the same is contrary to Regulati on 20 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeover) Regulations, 1997 (in short the 1997 Regulation), which pro vides that for the purpose of fixation of minimum offer price the highest price paid by the acquirer or any person acting in concert with him for any acquisitio n, including by way of allotment in a public or rights issue, if any, during the 26 weeks period prior to the date of public announcement, has to be taken into account. According to Ms Hazarika, learned senior counsel, Burmah Castrol plc by letter of offer for purchase of 20% of the paid up equity share capital by Fose co India Ltd., offered to acquire the shares at the rate of Rs. 221.86 per share , which public announcement was issued on 27.9.2001 and since the public announc ement was issued by Foseco India Ltd., on 3.12.2001, the price fixed on the basi s of the reference date fixed by SEBI would at least be Rs. 221.86. Ms Hazarika further submits that had the SEBI rightly fixed the date of reference, Fosco Ind ia Ltd., would not have fixed Rs. 69.05 as the price per share for acquisition o f 20% of the paid up equity share capital of Foseco India Ltd., The learned seni or counsel, therefore, submits that the SEBI may be directed to refix the date o f reference and consequently Foseco (UK) Ltd., may be directed to refix the rate per share and pay the additional amount to the share holders, who purchased the shares pursuant to the public announcement made by Foseco India Ltd., on 10.1.2 002 (Annexure 1 to the writ petition). 4. Mr. Bhuyan, learned counsel appearing for the respondent Nos. 1 and 2 on the other hand has submitted that SEBI has rightly fixed the date of re ference as required under Regulation 20 of the 1997 Regulation, which was inform ed to the acquirer vide communication dated 17.10.2001 and accordingly public an nouncement as required under Regulation 10 and 12 of the 1997 Regulation was iss ued at offer price of Rs. 69.05 per share for the purpose of acquisition of full y paid up equity share capital representing 20% of the voting share capital. It has also been submitted that pursuant to such offer the share holders agreed to sell 5,41,560 shares and accordingly the said shares were acquired by Foseco (UK ) Ltd., which represented 8.84% of the paid up equity share capital of Foseco In dia Ltd. Mr. Bhuyan further submits that those share holders having satisfied wi th the price offered by Foseco (UK) ltd., in the public announcement dated 10.1. 2002, sold the shares and the petitioner being not satisfied with the price offe red by such public announcement did not sell their shares pursuant to the public announcement made by Foseco (UK) Ltd. It has also been submitted that since t he aforesaid 5,41,560 shares have already been acquired on 10.1.2002 this Court may not interfere with such acquisition as it may lead to the consequence of ret urning the shares to the share holders who are not party to the present proceedi ng or payment of more amount to such share holders who never raised any objectio n to sell their share at the price as offered by public announcement dated 10.1. 2002. 5. I have considered the submissions of the learned counsel for the parties and also perused the pleadings. 6. Pursuant to the directions contained in the communication dated 17.10.2010 issued by SEBI the public announcement for acquisition of shares of F oseco India Ltd., in terms of the Regulation 10 and 12 of the 1997 Regulation wa s made on 10.1.2002 by Foseco (UK) Ltd., expressing its intention to acquire 12, 77,292 fully paid up equity shares representing 20% of the voting share capital of Foseco India Ltd., at Rs. 69.05 per fully paid up share along with interest a t the rate of 15% per annum for the period starting from 15.11.2001 till the dat e of payment i.e. 2.3.2002. In the said public announcement it has also been mad e clear that the maximum interest payable for the aforesaid period amounts to 3. 04 per share and as such Rs. 72.09 was the aggregate offer price per fully paid up shares. It is evident from the said public announcement that 12,77,292 fully paid up equity shares represent 20% voting share capital. It is not in dispute t hat pursuant to the said public announcement made 5,41,560 shares of Foseco Indi a Ltd., were acquired by Foseco (UK) Ltd., which represented 8.48% of the voting share capital by Foseco India Ltd. 7. Regulation 10 of the 1997 Regulation, as amended on 28.10.1998 p rovides that no acquirer shall acquire shares or voting rights which (taken toge ther with shares or voting rights, if any, held by him or by persons acting in c oncert with him), entitle such acquirer to exercise 15% or more of the voting ri ghts in company, unless such acquirer makes public announcement for acquiring su ch shares in accordance with the Regulation. 8. Regulation 12 speaks about the acquisition of control over a com pany. It provides that irrespective of whether or not there has been any acquisi tion of shares or voting rights in a company no acquirer shall acquire control o ver the target company, unless public announcement to acquire shares and acquire s such shares in accordance with the Regulation. 9. In the case in hand the public announcement was made on 10.1.200 2 by Foseco (UK) Ltd., with the intention to acquire more than 12 lakh shares wh ich represent 20% of voting share capital of Foseco India Ltd at the rate of 69. 05 per share, pursuant to which 5,41,560 shares were acquired by Foseco (UK) Ltd . The share holders having satisfied with the price offered sold the said shares , as noticed above representing only 8.48 % of the voting share capital of Fosec o India Ltd. 10. As discussed above, those share holders have transferred their s hares in favour of Foseco (UK) Ltd., pursuant to the public announcement made on 10.12.2002 and the petitioner having not satisfied with the price offered did n ot transfer the shares to Foseco (UK) Ltd., pursuant to such public announcement . The petitioner has not impleaded those share holders, who have transferred the ir shares pursuant to the public announcement and have not complained about the price offered. The petitioner cannot represent the interest of those shareholder s. Even if the SEBI had wrongly fixed the date of reference, such decision havin g not been challenged by those shareholders, the petitioner cannot challenge the same, he having not transferred the share. That apart no body can be compelled to sell his share. 11. That being the position, I do not find any merit in this writ pe tition to issue the direction as sought for. 12. The writ petition is, therefore, dismissed. No cost.