Companies Act Case Law Swedish Match AB & Anr Vs Securities & Exchange Board India & Anr

CASE NO.:
Appeal (civil) 2361 of 2003

PETITIONER:
Swedish Match AB & Anr.

RESPONDENT:
Securities & Exchange Board, India & Anr.

DATE OF JUDGMENT: 25/08/2004

BENCH:
N. Santosh Hegde,S.B. Sinha & A.K. Mathur

JUDGMENT:
J U D G M E N T

S.B. SINHA, J:
BACKGROUND FACTS:

Wimco Limited (Wimco) is a target company. Its shares are listed on
the stock exchanges at Mumbai, Delhi, Calcutta, Kanpur as also on the
National Stock Exchange. It is engaged in the business of manufacture and
sale of a broad range of safety matches.

The Appellant No. 1 herein (Swedish Match) is incorporated in
Sweden. It is a holding company of the Appellant No. 2 (S.M.S) holding its
entire paid up capital. It is also a holding company of Haravon Investments
Private Limited (Haravon) and Seed Trading Private Limited (Seed). These
four companies hereinafter would be called and referred to as the Swedish
Match Group. It had acquired in the target company 52.11% shares, i.e.,
46.18% by Haravon and 5.93% by Seed. AVP Trading Private Limited
(AVP) and Plash Floods P. Ltd. (Plash) were Indian promoters of the target
company. They belong to one Jatia Group of companies holding 24.11% of
the share capital of the target company, i.e., AVP holding 6.03% and Plash
holding 18.08%.

The Swedish Match entered into an agreement with the Jatia Group to
acquire majority shoreholding in Haravon and Seed and to make a public
announcement of offer to acquire 20% shares in Wimco. The obligation to
make a public announcement of offer arose in view of indirect acquisition
of more than 10% shares in Wimco (in view of the law as prevailing thence)
attracting the provisions of Regulation 10 of the SEBI (Substantial
Acquisition of Shares and Takeovers) Regulations, 1997 (hereinafter called
and referred to for the sake of brevity as “the Regulations”).

On or about 17th December, 1997, the public announcement of offer
was made by S.M.S. together with the Jatia Group of Companies, viz., Plash
and AVP as “acquirers” and “persons acting in concert”. In the letter of
offer, it was specified that both Swedish Match Group and Jatia Group
intend to exercise joint control over the affairs of Wimco. For the purpose
of the public announcement of offer, ‘Haravon’ and ‘Seed’ being
subsidiaries of Swedish Match Singapore were deemed to be “persons acting
in concert” in terms of Regulation 2(e)(2)(i) of the ‘Regulations’.

Upon completion of the process of public offer, the share holding in
Wimco was as under : Haravon 28.28%, Seed 10.33%, AVP 5% and Plash
15%. The aggregate of total share holding of both the groups, thus, came to
58.61%.

It is not in dispute that subsequent to April, 1998 the said Groups were
exercising joint control over the affairs of Wimco. By a Special Resolution
adopted in this behalf, the target company allotted shares on a preferential
allotment basis to ‘Haravon’, ‘AVP’ and ‘Plash’ purported to be in terms of
Section 81(1)(A) of the Companies Act, 1956 whereupon the share holding
in Wimco came to as under:
Haravon  46.18%, AVP  6.03%, Plash  18.08%.

As no preferential shares were allotted to Seed, its shareholding was
diluted to 5.93%.

Swedish Match Group, thus, held 52.11% and Jatia Group held
24.11% of the total shares in Wimco. The aggregate shareholding of both
the Groups came to 76.22%. The Government of India by an order dated 5th
July, 1999 permitted increase in foreign equity participation in the target
company from 38.61% to 52.11%.

S.M.S. thereafter acquired from Jatia Group (as the latter was desirous
of exiting from the joint control over Wimco) the following extent of share:
AVP  5.47%, Plash  16.42%, at a price well above the market price.

Pursuant to or in furtherance of the letter of the Government of India
dated 19th May, 2000 increasing foreign collaboration to the extent of
74.00438%; the Swedish Match Group acquired 74% shareholding and Jatia
Group was left with 2.22% in Wimco.

It is also not in dispute that although the market value of each
acquired share of the target company was only Rs. 9.55; the consideration
paid to Jatia Group by the Swedish Match Group was Rs. 35/- per equity
share. Pursuant to or in furtherance of the said arrangement, the Directors
belonging to Jatia Group resigned as a result whereof, their joint control with
Swedish Match Group ceased leading to sole control of the latter.
Allegedly, the cessation of joint control was approved in a general meeting
of the shareholders of Wimco held on 27th September, 2000. S.M.S.
thereupon by a letter dated 27th September, 2000 in terms of Regulation 7 of
the Regulations disclosed to WIMCO its holding of more than 5% of the
equity share capital. The said transaction was also brought to the notice of
the SEBI (the Board) by a letter dated 28th September, 2000. It also agreed
to adhere to the ‘lock-in’ restrictions applicable to the locked in shares
forming part of 21.89% shares purchased from AVP and Plash (Jatia Group
of Companies). Upon receipt of the said information, SEBI by a letter dated
17th October, 2000 made a query as to whether the said transaction took
place in accordance with Regulation 20 (pricing guidelines), Regulation 7
(mandatory disclosures) and Regulation 12 (change in control) of the
Regulations, in response whereto, Swedish Match by a letter dated 1st
November, 2000 submitted its replies thereto. An additional query by SEBI
was made as regard calculation of market price and compliance of the
provisions of the Regulations by a letter dated 30th November, 2000; to
which a reply was given on 8th January, 2001.

 
PROCEEDINGS BEFORE SEBI :
A show-cause notice was served upon the Appellants by SEBI asking
them to show cause as to why no public announcement of offer had been
made in terms of Regulations 10 and 11(1) of the Regulations stating:

“4. As you have acquired the shares of WL in the
manner as stated above without making a public
announcement as required by the provisions of the
captioned regulations, you have, prima-facie,
violated the provisions of Regulation 10
individually and Regulation 11(1) collectively of
the captioned Regulations and, therefore, you are
liable for penal action under the Regulations and
SEBI Act, 1992.

5. In view of the above, you are called upon to
show cause as to why one or more or all action (s)
under Regulation 44 and Regulation 45(6) of the
Regulations and Section 11B of the SEBI Act
1992, should not be initiated against you for
violation specified above.”
The Appellants herein filed a show cause before the Board.

ORDER OF SEBI :

The Chairman, SEBI upon hearing the Appellants by an order dated
4th June, 2002 observed that Regulation 12 has no application.

It was, however, held:

“In view of the above, the submission of the
Acquirers that Regulation 11(1) should exclude a
transaction involving a transfer of shares as part of
cessation of participation in joint control,
particularly where such persons in joint control
acquired shares as persons acting in concert is not
tenable.

Therefore, if an Acquirer triggers either of the
Regulations, i.e., Regulations 10, 11 or 12, he has
to make a public announcement unless the
acquisition is specifically exempt in terms of the
Regulations. Therefore, each of the Regulations
10, 11 & 12 has to be complied with independently
by the Acquirers. The acquisition falling under
proviso to Regulation 12 is not automatically
exempt from the applicability of Regulations 10 &
11.”

Consequent upon the said findings, the following directions were
issued :

“In view of the above the exercise of the powers
conferred upon me under sub-section (3) of
Section 4 read with Section 11B SEBI Act 1992
(hereinafter referred to as the Act) read with
Regulation 44 & 45 of the Regulations, I hereby
direct the Acquirers to make public announcement
in terms of Chapter III of the Regulations in terms
of sub-Regulation (1) of Regulation 11 taking
27/9/2000 as the reference date for calculation of
offer price within 45 days of passing of this order.”
THE TRIBUNAL :
Aggrieved by and dissatisfied with the said order, an appeal was filed
by the Appellants herein before the Securities Appellate Tribunal (Tribunal).
The Tribunal took notice of the Appellant’s letter dated 28.9.2000
contending “We wish to inform you that we have through our wholly owned
subsidiary Swedish Match Singapore Pte. Ltd. and pursuant to the requisite
approvals acquired an additional 11382800 equity shares from the
aforesaid Indian companies such that we are not in sole control of WIMCO
Ltd.” and held:

“Sequence has been mentioned correctly thus that
they acquired additional shares and thereby
acquired sole control of WIMCO Ltd. As the
control is relatable to the shareholding in the
instant case and to nothing else and cessation of
control was due to divesting of the said ownership
of shares in the absence of any other evidence to
the contrary it can be safely concluded that the
Acquirers acquired shares from the Jatia Group
and consequently Jatia Group ceased to be in joint
control of the target company. Assuming that if
the Jatia Group had been in joint control due to
some other factors, then section 11 would not have
attracted. In the instant case, it is a clear case of
acquisition of shares and cessation of control
consequential to divestment of shares held by the
person in control.”
(Emphasis supplied)
Holding that the provisions of Regulations 11(1) and 12 are not in
conflict with each other in any manner and further holding that the
Regulation is a beneficial legislation, the Tribunal held:

“The legislative intent behind the Regulations is
clear. The objective is to protect the interests in
securities. It is with the said objective that
regulations 10, 11 and 12 have been framed
providing an opportunity to the existing
shareholders of a company under acquisition and
that exit opportunity cannot be denied by resorting
to a narrow and technical interpretation of the
regulations. As already stated in this order
regulations 10, 11 and 12 are put in position to
meet different situations. Which one of these
regulations is attracted to an acquisition, would
depend on the specific facts. In my opinion in the
light of the facts, as the Respondent has held, the
acquisition in question attracts the provisions of
regulation 11(1).”

This appeal has been filed by the Appellants herein before this Court
in terms of Section 15-Z of the Securities and Exchange Board of India Act,
1992 (for short “the Act”)

SUBMISSIONS :

Mr. F.S. Nariman, learned senior counsel appearing on behalf of the
Appellants would contend that although each one of the Regulation 10, 11
and 12 of the Regulations require making of public announcement, but the
same are mutually exclusive and independent of one another as they address
different types of acquisitions (as found by SEBI) and should necessarily,
thus, be limited to the context of the situation with which it deals and should
not be projected into the other.

The learned counsel would point out that Regulation 10 applies to
initial acquisition of shares or voting rights by an acquirer whereas
Regulation 11 having been captioned as “Consolidation of Holdings” deals
with consolidation of existing shareholder (s) by way of acquisition of
additional shares, i.e., such acquisition must be by way of combined
shareholding of acquirer and persons who previously acted in concert with
him resulting in increase of more than 5% and in case of Regulation 11(1),
by acquisition of any additional shares.

Regulation 11, Mr. Nariman would submit, does not cover purchase
of shares by the acquirer from the persons who have previously acquired
shares in concert with him as in such a case there is no acquisition of
additional shares as the aggregate shareholding of the parties does not
increase at all and far less by 5%. Elaborating his submission, Mr. Nariman
would argue that as both Swedish Match Group and Jatia Group had 76.22%
which was reduced to 74%, there had been no acquisition of additional
shares and in that view of the matter the purported admission by the
Appellants in its letter dated 28.9.2000 should be ignored. Proviso appended
to Regulation 12, according to Mr. Nariman, is squarely attracted in the
instant case, in view of the fact that the shareholders in a general meeting
had approved the change in control in favour of the Swedish Match Group
from the joint control of Swedish Match Group and Jatia Group and in that
view of the matter, no public announcement therefor was required. In the
alternative it was submitted that Regulation 11 does not envisage inter se
transfer between one group to the another. The Scheme of the statute is
such, it was urged, that the requirement of public announcement is not
attracted in all cases which would be evident from Regulation 3 of the
Regulations and in that view of the matter it cannot be said that the proviso
appended to Regulation 12 will have no application in the instant case. In
this connection our attention has also been drawn to the subsequent
amendments made to the regulations. The learned counsel would argue that
also in a situation like death or bankruptcy of a person in joint control may
lead to sole control of the target company in which event also the rigours of
Regulation 12 will have no application. Pointing out the difference between
Regulations 11 and 12, it was urged that whereas in terms of Proviso to
Regulation 12 the change in control is exempted from the applicability
thereof (which otherwise requires the making of a public announcement) by
a resolution passed by the shareholders in the General Meeting, but the
necessity of making a public offer under Regulation 11 cannot be condoned
by the shareholders because a right to have the shares offered under the
public offer is conferred upon the remaining shareholders as even a majority
of them cannot barter away the right of a minority. The position, however,
would be different in a case where change in control of the target company
is approved by the majority of the shareholders in a general meeting, as
therein the question as regard protection of the interest of the shareholders
would fall for cosnideration.

Regulations 10, 11 and 12 having been intended for the benefit of the
shareholders of the target company, the learned counsel would argue, only a
letter of offer is required to be sent to all the shareholders of the target
company in terms of Regulation 22(3) for the purpose of allowing and
enabling the existing shareholders to avail of the opportunity to offer their
shares for purchase to the acquirers at a price specified in the public
announcement and the letter of offer. Requirement of change from joint
control to sole control would be fulfilled if all the existing shareholders
approved the change from joint control to sole control, urged Mr. Nariman,
as by reason of such a resolution, the transfer from joint control to the sole
control would be offered which would amount to an election not to exit from
the company and to remain therein under the management of the sole
controller.

It was urged that Explanations (i) and (ii) are explanations to the
proviso appended to Regulation 12 and not to the main part thereof, which
had been inserted only for the purpose of clarifying the phrase “change in
control” occurring therein.

The learned senior counsel would submit that where there is a mere
cessor of control by one out of two persons already in control or where any
person or persons are given joint control and the combined degree of control
is not greater than being presently exercised, a resolution in a general
meeting is not necessary; since there is no change in control and, thus, the
question of any acquisition of control within the meaning of the main part of
Regulation 12 would not arise. Proviso to Explanation (i) i.e. cessor of
control by one or more persons already in control, according to Mr.
Nariman, imposes a further restriction if the transfer of joint to sole control
is through sale of shares at less than the market value of the shares, in which
an event only a special Resolution is required to be passed at a specially
called meeting of the shareholders of the target company.

Without prejudice to the submissions as referred to hereinbefore, Mr.
Nariman would argue that once a direction has been issued by the Board, the
penalties specified in Regulation 44 including (a) criminal prosecution under
Section 24 of the Act; (b) monetary penalty under Section 15H of the Act
and (c) directions under the provisions of Section 11B of the Act may ensue
but in the facts and circumstances of the case penal provisions should not
have been directed to be resorted to having regard to the fact that the
Regulations contained no clear and unambiguous words to indicate the true
legal position. The penal provisions, it was contended, are required to be
strictly construed. Reliance in this connection has been made on Francis
Bennion’s Statutory Interpretation, Third Edition, at page 637, Avais Vs.
Hartford Shankhouse and District Workingmen’s Social Club and Institute,
Ltd. [1969 (1) All ER 130 at 135], The Seksaria Cotton Mills Ltd. Vs. the
State of Bombay [1953 SCR 825 at 834] and State of Bihar Vs. Bhagirath
Sharma and Another[(1973) 2 SCC 257 at 261].

Mr. Kirit N. Raval, learned senior counsel appearing on behalf of the
Respondent, on the other hand, would contend that the language in
Regulations 10, 11 and 12 of the Regulations being clear and unambiguous,
this Court should apply the principles of literal interpretation. He would
urge that having regard to Explanation I appended to Regulation 12, the
question of application of Regulation 12 would not arise inasmuch as by
reason thereof a transfer of control from joint owners (Swedish Match A.B.
and Jatia Group) to a single sole owner (Swedish Match Group) stands
excluded from the concept of “Change in Control”.

Mr. Raval would submit that although the Board has accepted the
position that there was no violation of Regulation 12, relying on or on the
basis of proviso appended thereto, the Tribunal has clearly held that there
has been no change in control in terms of the Regulations and in that view of
the matter the opinion of the Tribunal shall prevail over that of the Board.
Reliance in this connection has been placed on S. Shanmugavel Nadar Vs.
State of T.N. [(2002) 8 SCC 361].

The learned counsel would strenuously urge that the application of
Regulation 11 cannot be excluded by bringing the transaction in question as
having been made under Regulation 12 in terms whereof an additional
liability was required to be incurred by the Appellants. It was pointed out
that no disclosure has ever been made by the Appellants that in fact they
had intended to purchase the shares belonging to the Jatia Group at a price of
Rs. 35 as against the then prevailing market price of Rs. 9.55 per equity
share. In fact the stand of the Appellants had all along been that they would
not sell the shares below the market price and, thus, indicating that the
shares would be sold at the prevailing market price.

Mr. Raval would urge that the Appellants withheld a very valuable
information from the shareholders i.e. the actual price of share being paid to
Jatia Group which would have otherwise become known to them if a public
announcement of offer was made. If it is to be held that even in a case of
this nature no public announcement is to be made, the intent and purport of
the legislature in bringing Regulations 10, 11 and 12 to the statute book with
a view to protect the interest of the investors shall be frustrated.

The learned counsel would further submit that the regulations were
amended only for the purpose of plugging the loopholes which existed in the
1994 Regulations in terms of the recommendations of a Committee
consisting of experts in the fields of law, securities market, accounts,
finance, management etc. and, thus, if the interpretation of regulations as
suggested by Mr. Nariman, is accepted, the same would frustrate the object
of bringing the said regulations. Reliance in this behalf has been placed on
Reserve Bank of India Vs. Peerless General Finance & Investment Co. Ltd.
[(1987) 1 SCC 424] and Shashikant Laxman Kale & Ors. Vs. Union of India
and Anr. [(1990) 4 SCC 366].

The learned counsel would urge that Regulations 14, 15 and 16 clearly
make a distinction in the timing of offer to be made between Regulations 10
and 11 on the one hand and Regulation 12, on the other, having regard to the
fact that process of action initiating the operation of Regulations 10, 11 and
12 would be different.

In a given case, Mr. Raval would submit, a transaction may trigger
both Regulations 11 and 12, in which event, an appropriate combined notice
of public announcement of offer may be issued.

Drawing our attention to Regulation 44, the learned counsel would
contend that in terms thereof the Board is not obliged to issue any direction
only in terms of Clauses (a) to (d) thereof as the words “give such directions
as it deems fit including” must be held to be of wide amplitude. Clauses (a)
to (d) are only illustrative and not exhaustive and in that view of the matter,
the Board was within its jurisdiction to issue the impugned directions.

It was contended that the penal provisions contained in Section 15H
are not the subject matter of the present proceedings. Further, an order
which may be passed under Section 15H of the Act would be separate and
distinct.

ISSUE FOR DETERMINATION :

The core issue which falls for our determination is the interpretation
of Regulations 10, 11 and 12.

STATUTORY PROVISIONS :
The Securities and Exchange Board of India Act, 1992 was enacted to
provide for the establishment of a Board to protect the interests of investors
in securities and to promote the development of, and to regulate, the
securities market and for matters connected therewith or incidental thereto.
Section 11 of the Act provides for functions of the Board which would
include registering and regulating the working of persons specified in
Clauses (b) and (ba). Section 11A provides for the matters which are to be
disclosed by the companies. Section 11B empowers the Board to issue
directions as specified therein.
Chapter VIA of the Act deals with penalties and adjudication whereas
Section 15A provides for penalty for failure to furnish information, return
etc., Section 15H provides for penalty for non-disclosure of acquisition of
shares and takeovers which include a case where public announcement to
acquire shares at a minimum price is not made as required under the Act or
the rules or the regulations. Section 15H of the Act provides for a penalty of
twenty-five crores or three times the amount of profits made out of such
failure, which is higher. Section 15I confers power upon the Board to
adjudicate in the event a penalty proceeding is directed to be initiated.
Section 15T deals with appeal to the Securities Appellate Tribunal. Section
15Z, which has been brought in the statute book by Act 59 of 2002, provides
for an appeal to this Court from any decision or order of the Tribunal on any
question of law arising thereunder.

Regulation 2(e) of the Regulations defines “person acting in concert”.
Regulation 3 inter alia contains an exclusionary clause stating that the
matters specified therein shall not apply to Regulations 10, 11 and 12.

Regulations 10, 11(i) and 12 of the Regulations read as under:
“10. Acquisition of [15%] or more of the shares or
voting rights of any company. No acquirer shall
acquire shares or voting rights which (taken
together with shares or voting rights, if any, held
by him or by persons acting in concert with him),
entitle such acquirer to exercise fifteen percent or
more of the voting rights in a company, unless
such acquirer makes a public announcement to
acquire shares of such company in accordance
with the Regulations.
11. Consolidation of holdings (1) No acquirer
who, together with persons acting in concert with
him, has acquired, in accordance with the
provisions of law, 15 per cent or more but less than
75 per cent of the shares or voting rights in a
company, shall acquire, either by himself or
through or with persons acting in concert with him,
additional shares or voting rights entitling him to
exercise more than 5% of the voting rights, in any
period of 12 months, unless such acquirer makes a
public announcement to acquire shares in
accordance with the Regulations.
12. Acquisition of control over a company –
Irrespective of whether or not there has been any
acquisition of shares or voting rights in a company,
no acquirer shall acquire control over the target
company, unless such person makes a public
announcement to acquire shares and acquires such
shares in accordance with the Regulations.
Provided that nothing contained herein shall apply
to any change in control which takes place in
pursuance to a resolution passed by the
shareholders in a general meeting.
Explanation : (i) For the purposes of this
Regulation where there are two or more persons in
control over the target company, the cessor of any
one such person from such control shall not be
deemed to be a change in control of management
nor shall any change in the nature and quantum of
control amongst them constitute change in control
of management.

Provided however that if the transfer of joint
control to sole control is through sale at less than
the market value of the shares, a shareholders
meeting of the target company shall be convened
to determine mode of disposal of the shares of the
outgoing shareholder, by a letter of offer or by
block-transfer to the existing shareholders in
control in accordance with the decision passed by a
special resolution. Market value in such cases shall
be determined in accordance with Regulation 20.

(ii) where any person or persons are given joint
control, such control shall not be deemed to be a
change in control so long as the control given is
equal to or less than the control exercised by
person(s) presently having control over the
company.”
Regulation 14 provides for the timing of public announcement of
offer to the effect that the same shall be made not later than four working
days of entering into an agreement for acquisition of shares or voting rights
or deciding to acquire shares or voting rights exceeding the respective
percentages specified therein. Clause (3) of Regulation 14 provides for
public announcement referred to in Regulation 12 to be made not later than
four working days after any such change or changes are decided to be made
as would result in the acquisition of control over the target company by the
acquirer.

Regulation 14 provides for the mode and manner of the public
announcement to be made under Regulations 10, 11 or 12 whereas
Regulation 16 specifies the contents thereof.

Regulation 44 of the Regulations reads as under:

“44. Directions by the Board – The Board may, in
the interests of the securities market, without
prejudice to its right to initiate action including
criminal prosecution under section 24 of the Act
give such directions as it deems fit including :
(a) ***

(b) ***

(c) directing the person concerned to sell the
shares acquired in violation of the provisions
of these Regulations;”

 

Regulation 44, as amended in the year 2002, provides for several
directions. Clauses (f) and (i) thereof are in the following terms:
“44. Directions by the Board. Without prejudice to
its right to initiate action under Chapter VIA
and section 24 of the Act, the Board may, in
the interest of securities market or for protection
of interest of investors, issue such directions as it
deems fit including: –
(f) directing the person concerned to make
public offer to the shareholders of the target
company to acquire such number of shares
at such offer price as determined by the
Board;
(i) directing the person concerned, who has
failed to make a public offer or
delayed the making of a public offer in
terms of these Regulations, to pay to the
shareholders, whose shares have been
accepted in the public offer made after the
delay, the consideration amount along with
interest at the rate not less than the
applicable rate of interest payable by banks
on fixed deposits.”
ANALYSIS :

Establishment of independent regulatory agencies and need for expert
regulations were long felt primarily as a response to the growing complexity
in human affairs and trade and business in particular. It was felt that a
regulator who was aware of the realities of that field should be ready to
regulate that field. Demand for regulators who were not mere Government
officials but people who are experts in the field came up. Regulations
framed by an expert body like SEBI was felt to be an effective substitute for
government regulation. The evolution in respect whereof can be traced back
to the Great Depression of 1930s. As a part of the new deal, several expert
bodies were established like the Federal Communications Commission and
Securities Exchange Commission. In the Indian context, this rationale was
invoked for the establishment of an expert body to regulate the securities
market after the Securities Scam in 1992.

The statement of Objects and Reasons of the Act are as under :

“Securities and Exchange Board of India (SEBI)
was established in 1988 through a Government
resolution to promote orderly and healthy growth
of the securities market and for investors’
protection. SEBI has been monitoring the
activities of stock exchanges, mutual funds,
merchant banks, etc., to achieve these goals.

The capital market has witnessed tremendous
growth in recent times, characterized particularly
by the increasing participation of the public.
Investors’ confidence in the capital market can be
sustained largely by ensuring investors’ protection.
With this end in view, Government decided to vest
SEBI immediately with statutory powers required
to deal effectively with all matters relating to
capital market. As Parliament was not in session,
and there was an urgent need to instill a sense of
confidence in public in the growth and stability of
the market, the President promulgated the
Securities and Exchange Board of India
Ordinance, 1992 (Ord. 5 of 1992) on 30th January,
1992. The Bill seeks to replace the aforesaid
Ordinance”.

Section 30 of the 1992 Act empowers the Board (the expert body) to
make regulations consistent with the Act and the rules made thereunder to
carry out the purposes of the Act inter alia providing for :

“(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;”

SEBI made Regulations in the year 1994. The said regulations were
said to have many loopholes and, thus, the Bhagwati Committee consisting
of experts in different fields was set up to suggest amendments therein.
Regulations 1997 indisputably were made pursuant to or in furtherance of
the recommendations made by the said Committee. It is also not in dispute
that whereas most of the recommendations made by the Bhagwati
Committee were accepted, some were not.
In the aforementioned backdrop, this Court has been called upon to
interpret the scope and ambit of Regulations 10, 11 and 12.
Before we advert to the said question, we must bear in mind that the
said Regulations seek to protect the interests of the shareholders. Public
announcement of offer is one of the modes of protecting the interests of the
shareholders.
Interpretation  Principles of :
It is a well-settled principle of law that where wordings of a statute are
absolutely clear and unambiguous recourse to different principles of
interpretations may not be resorted to but where the words of a statute are
not so clear and unambiguous, the other principles of interpretation should
be resorted to.
SEBI was an expert body. It made regulations which were meant to
sub-serve the interests of investors as also promote and regulate the
securities market.
Regulations 10, 11 and 12 ex-facie operate in three different fields.
They seek to control creeping acquisition which may lead to substantial
acquisition and ultimately total control of the company. There may,
however, be a case where control of the company is sought to be taken over
by transfer of share only i.e. by a single transaction, in which event
Regulations 11 and 12 both may apply.
We would at the outset proceed to consider the admitted fact of the
matter that both Swedish Match Group and Jatia Group were acquirers “in
concert with each other”. They were in joint control of Wimco. Jatia Group
intended to transfer the control of the target company by transferring their
shares in favour of Swedish Group.
APPLICABILITY OF REGUALTIONS 11 AND 12:

With a view to arrive at an answer to the question, we may begin with
Regulation 12. The said Regulation like Regulations 10 and 11 also speaks
of public announcement. Such public announcement is required to be made
irrespective of whether or not there has been any acquisition of shares or
voting rights in a company. In either of the case, the acquirer is statutorily
required to make public announcement of acquisition of shares and control
of the target company in accordance with the regulations. The proviso
appended to Regulation 12 curves out an exception as regard necessity of
making public announcement. Explanation appended to Regulation 12,
however, states that it would have no application where a change in control
takes place pursuant to a resolution passed by the shareholders in a general
meeting. As would be noticed shortly hereinafter, the proviso to Regulation
12 cannot be said to have any application in the instant case as by reason of
the Explanation appended thereto, Regulation 12 would have no
application.. Result in change in control over the target company in terms of
Regulation 12 would come into being in two situations; viz. (i) by
acquisition of share, or voting rights; or (ii) where there has been none.
A control over the target company may be achieved by amending the
memorandum of association or by any other mode which necessitates a
resolution to be passed by the shareholders in a general meeting. The
expressions “in pursuance to a resolution passed by the shareholders in a
general meeting” are crucial as the proviso will apply only when the change
of control over the target company takes place otherwise than by acquisition
of shares or voting rights.
The primal question would be as to whether Explanation (i) appended
to Regulation 12 would bring the matter out of the purview of the
regulation? In the fact of the present case, it does. Explanation appended to
Regulation 12 postulates that where there are two or more persons in control
over the target company (here Swedish Match Group and Jatia Group), the
cessor of any one such person (Jatia Group) from such control shall not be
deemed to be a change in control of management nor shall any change in the
nature and quantum of control amongst them constitute change in control of
management. By reason of the said Explanation, a legal fiction has been
created pursuant whereto or in furtherance whereof applicability of
Regulation 12 is excluded. Change of control contemplated under
Regulation 12 calls for a public announcement when the same is sought to
be achieved by acquiring shares or voting rights. A change of control in
terms of Regulation 12 may also take place pursuant to a resolution passed
by the shareholders in a general meeting. Only in the latter case the proviso
which carves out an exception would be attracted. The effect and purport of
the first proviso may also be construed having regard to the second proviso
appended thereto. The second proviso appended to Regulation 12 takes
within its fold a case where the joint control to sole control is through sale at
less than the market value of the share. It, therefore, speaks of a different
situation, namely, control by transfer of joint control to sole control through
sale was at less than the market value of the shares. In a case where the
second proviso is attracted, the Explanation (1) will have no role to play.
Situation, however, would be different when the transfer of joint
control to sole control takes place through sale at a price which is higher
than the market value of the shares leading to change in control over the
target company, which cannot be done pursuant to a resolution passed by
the shareholders in a general meeting in terms of the first proviso. In other
words, in the event, the change in control is sought to be achieved by sale of
shares at a price higher than the market value of the share, Regulation 12
will clearly be attracted making public announcement imperative. Such
public announcement evidently is required to be made having regard to the
fact that the interest of investors is required to be protected; pursuant
whereto and in furtherance whereof the shareholder would be informed of
the value of the share at which the transfer of control would take place so as
to enable him to exercise his option to sell his shares at the price offered by
the acquirer or continue to keep the same.
A general meeting of the shareholders of the target company had
taken place but the same does not sub-serve the requirements of law
inasmuch as, it would bear repetition to state, when transfer of control over
the target company takes place by reason of acquisition of shares at a price
higher than the market price the acquirer has a statutory obligation to make
the public announcement. Such a statutory requirement is not capable of
being waived by the majority shareholders. In this case, the records reveal
that the shareholders were not informed that although the market value of
the share was about Rs. 9.55, Jatia Group was offered the price of Rs. 35/-
per equity share. It was merely disclosed that such acquisition would not be
at a price lower than the market price. If such transfer was to take place at a
price less than the market price, the second proviso appended to Regulation
12 would have been attracted. It was, therefore, obligatory on the part of the
acquirer to furnish correct information as regard the price which was being
offered to Jatia Group.
There may be cases where to some extent Regulations 11 and 12 may
overlap. But Regulations 14, 15 and 16 clearly postulate that public
announcement is required to be made in relation to transfer of shares
attracting Regulations 10 or 11 not later than four working days of entering
into an agreement for acquisition of shares or voting rights or deciding to
acquire shares or voting rights exceeding the respective percentage specified
therein and in case of acquisition of control in terms of Regulation 12; not
later than four working days after any such change or changes are decided to
be made as would result in the acquisition of control over the target
company by the acquirer.
In a given situation, a public announcement can be made upon
compliance of both Regulations 11 and 12.
It is also not a case where Regulation 3 will have any application.
Admittedly, the Appellants did not claim any exemption in terms of
Regulation 3 nor were they eligible therefor. It is also not a case where
change in control had taken place by reason of inheritance or succession but
by reason of conscious act of transfer of shares by one acquirer from
another.
In a case of this nature, thus, Regulation 12 would not apply, the
logical corollary whereof would be that Regulation 11 will apply.
Let us now consider the legal principles as regard ‘Proviso and
Explanation’.
In S. Sundaram Pillai, etc. Vs. V.R. Pattabiraman [AIR 1985 SC 582],
a 3-Judge Bench of this Court held that proviso may serve four different
purposes, namely:
“(1) qualifying or excepting certain provisions
from the main enactment;
(2) it may entirely change the very concept of the
intendment of the enactment by insisting on certain
mandatory conditions to be fulfilled in order to
make the enactment workable;
(3) it may be so embedded in the Act itself as to
become an integral part of the enactment and thus
acquire the tenor and colour of the substantive
enactment itself; and
(4) it may be used merely to act as an optional
addenda to the enactment with the sole object of
explaining the real intendment of the statutory
provision.”

Proviso to Regulation 12 exempts only a part of the main enactment.
It does not take within its umbrage both the situations contemplated under
Regulation 12.
As regard functions of an Explanation, it was opined:
“52(a) to explain the meaning and intendment of
the Act itself,
(b) where there is any obscurity or vagueness in
the main enactment, to clarify the same so as to
make it consistent with the dominant object which
it seems to subserve,
(c) to provide an additional support to the
dominant object of the Act in order to make it
meaningful and purposeful,
(d) an Explanation cannot in any way interfere
with or change the enactment or any part thereof
but where some gap is left which is relevant for the
purpose of the Explanation, in order to suppress
the mischief and advance the object of the Act it
can help or assist the Court in interpreting the true
purport and intendment of the enactment, and
(e) it cannot, however, take away a statutory right
with which any person under a statute has been
clothed or set at naught the working of an Act by
becoming an hindrance in the interpretation of the
same.”

The Explanation was inserted evidently with a view to clear the
obscurity occurring in Regulation 12 as regard a class of cases of cessation
of joint control to sole control.
In Laxminarayan R. Bhattad and Others Vs. State of Maharashtra and
Others [(2003) 5 SCC 413] this Court held that the proviso acted as an
exception to the main provision but such an exception must be strictly
construed and confined to the intent of the legislature.
[See also Ali M.K. and Others vs. State of Kerala and Others  (2003) 11
SCC 632 and Union of India vs. Sanjay Kumar Jain  JT 2004 (6)
SC 318].
In Dipak Chandra Ruhidas Vs. Chandan Kumar Sarkar [(2003) 7 SCC
66] it was held that in a case where a legal fiction created in the Explanation
was construed to be validly made as thereby main provision was made
absolutely clear and explicit, the legal fiction so created must also be given
its full effect.
It is true that Regulation 12 could have been better worded but the
application of Regulations 11 and 12 in a case of this nature is free from
doubt. This is not a case where having regard to the explanations in the
provisos and reading the provision in the manner we have done, it stands
obscure. The Explanations (i) and (ii) are not Explanations to the provisos
but the main part thereof.
It would, therefore, be not correct to contend that where there is a
mere cessor of control by one out of two persons already in control or where
any person or persons are given joint control and the combined degree of
control is not greater than being presently exercised, a Resolution in general
meeting would sub-serve the purpose, is devoid of any merit as change in
control has taken place by reason of acquisition of shares from another
person in control. Having regard to the fact that the price offered to Jatia
Group was higher than the market price, a public announcement was
imperative so as to enable the shareholders to elect as to whether to sell their
shares held by them or not. No exemption from public announcement has
been carved out by reason of the proviso appended to Regulation 12 as in
terms of the Explanation, Regulation 12 would have no application.
The purported resolution dated 27.9.2000 reads as under:
“Resolved that the cession of their participation in
the joint control of the company by the Jatia Group
as of the date hereof such that Swedish Match AB
and its subsidiary are in sole control of the
company be and is hereby approved.”

The said resolution is of no avail in the fact of the matter as neither
the proviso nor the second explanation appended to Regulation 12 is
attracted.
Furthermore, only because Regulation 12 also speaks of public
announcement, the same by itself would not exempt the acquirer from
making a public announcement in terms of clause (1) of Regulation 11.
WAS THERE ANY REQUIREMENT TO COMPLY WITH
REGULATION 11?

With a view to advert to the question, the admitted facts may be
noticed.
Swedish Match Singapore agreed to acquire majority shareholding in
Haravon and Seed subsequent to 17th December, 1997 wherefor the public
offer was made. S.M.S. comprising of Haravon and Seed had 28.28% and
10.33% whereas Jatia Group comprising of AVP and Plash had 5% and 15%
respectively whereas public/others had 41.39% shares. In concert with each
other the two Groups acquired shares from public. On or about 25th August,
1999 by acquiring preferential shares the Swedish Match Group obtained
52.11% and Jatia Group obtained 24.11% as a result whereof in Wimco the
shares held by public/others came down to 23.78%. Both Swedish Group
and Jatia Group were exercising the joint control. By reason of Jatia Group
opting out of the joint control by transfer of shares in favour of Swedish
Match Singapore, a subsidiary of Swedish Match AB (a part of Swedish
Match Group) obtained 74% of shares whereas shares i.e. Haravon 
46.18%, Seed  5.93% and SMS  21.89%. Thus, the extent of shares of
Jatia Group came down to 2.22%. Jatia Group sold their shares to public as
a result whereof shares of public became 23.78%. S.M.S. is a subsidiary of
the Singapore Match Group. The Swedish Match is the holding company
being the owner of the 100% shares of SMS. It stands categorically admitted
by the Appellants herein that acquisition of shares from Jatia Group in
favour of SMS was done by the Swedish company as a group and not as an
individual company. Factually, therefore, it is not correct to contend,
although in its notice dated 28.1.2002, SEBI had given indication thereof,
that SMS had acquired 21.89% shares of its own. Even if SMS had done so,
Regulation 10 would apply as no public announcement was made therefor.
S.M.S. was a part of the Swedish Match Group and they acquired
21.89% shares from Jatia Group. On or about 25th August, 1999,
indisputably, Swedish Group and Jatia Group acted in concert with each
other. By reason of acquisition made in September, 2000, Swedish Group,
as acquirer, together with Jatia Group, had acquired more than 15% but less
than 75% of shares. Any of those acquirers whether Swedish Match Group
or Jatia Group, therefore, was prohibited from acquiring by itself any
additional share entitling it to exercise more than 5% of the voting rights.
Regulation 11 does not brook any other interpretation. If additional shares
are acquired entitling an acquirer to exercise more than 5% of the voting
rights, the statutory embargo to the effect that the acquirer (in this case
Swedish Match Group) must make a public announcement to acquire shares
in accordance with the Regulation comes into operation.
The words “additional shares” are not terms of art. It speaks of
acquisition of shares in addition to what it had got. Such acquisition of
additional shares may be either from public or from a person with whom at
one point of time the acquirer had acted in concert. If such a meaning is not
assigned, the disjunctive clauses contained in the expressions “either by
himself or through or with person acting in concert with him” may not carry
a true and effective meaning.
The pre-conditions attracting Regulation 11 are: (i) that an acquirer
had acquired shares in concert with another; (ii) such acquisition was more
than 15% but less than 50% of the shares or voting rights in a company; (iii)
in the event, the acquirer intends to acquire such additional shares or voting
rights which would allow him to exercise more than 5% of the voting rights
within a period of 12 months, public announcement is required to be made
therefor. (iv) such acquisition of additional shares contemplates three
different situations, i.e., the acquisition may be by acquirer himself or
through or with the person acting in concert with the person with whom they
had acquired shares earlier in concert with each other.
Regulation 11, therefore, contemplates both situations, namely, where
substantial acquisition of shares may result in change of control and where it
does not. Only because in a case where acquisition of additional shares may
result in change of control, the same by itself would not exempt the acquirer
from complying with the statutory requirement of Regulation 11. Primarily,
Regulations 10, 11 and 12 operate in different fields which is manifested
from a plain reading of Regulations 14, 15 and 16. We may, however,
hasten to add that there may be a situation where Regulations 11 and 12 may
overlap with each other, in which event, it would be open to the acquirer to
issue a combined notice fulfilling the requirement of both Regulations 11
and 12.
Indisputably, the purport and object of which a regulation is made
must be duly fulfilled. Public announcement is at the base of Regulations
10, 11 and 12. Except in a situation which would bring the case within one
or the other ‘exception clause’, the requirement of complying with the
mandatory requirements to make public announcement cannot be dispensed
with.
Admittedly in this case no public announcement has been made.
It may be true that the Board in its impugned order dated 4th June,
2002 proceeded on a wrong premise that having regard to the proviso
appended to Regulation 12, Regulation 12 would be attracted. But the SAT,
in our opinion, rightly construed the provisions of Regulations 11 and 12 in
arriving at a finding that Regulation 11 would be attracted and Regulation 12
would not be. The tribunal was entitled to take a different view of the matter
from that of the Board with a view to sustain the ultimate result in the appeal
in exercise of its appellate power. Such a power in the appellate court/
tribunal is akin to or analogous to the principles contained in Order 41 Rule
33 of Code of Civil Procedure. Even otherwise before us the judgment of
the Tribunal is in question, this Court is required to consider the correctness
or otherwise of the Tribunal. In any event, the reasonings of the tribunal
shall prevail over the Board. (See S. Shanmugavel Nadar (supra), para 17)
Although we do not find any difficulty in construing the provisions of
Regulations 11 and 12 but assuming Regulations 11 and 12 are not clear, the
rule of purposive construction should be taken recourse to.
It is now trite that when an expression is capable of more than one
meaning, the Court would attempt to resolve that ambiguity in a manner
consistent with the purpose of the provisions and with regard to the
consequences of the alternative constructions. (See Clark & Tokeley Ltd.
(t/a Spellbrook) Vs. Oakes [1998 (4) All ER 353].

In Anwar Hasan Khan Vs. Mohd. Shafi and Others [(2001) 8 SCC
540], this Court held:

“8It is a cardinal principle of construction of a
statute that effort should be made in construing its
provisions by avoiding a conflict and adopting a
harmonious construction. The statute or rules
made thereunder should be read as a whole and
one provision should be construed with reference
to the other provision to make the provision
consistent with the object sought to be
achieved.”

In Inland Revenue Commissioners Vs. Trustees of Sir John Aird’s
Settlement [1984] Ch. 382, it is stated:
“Two methods of statutory interpretation have at
times been adopted by the court. One, sometimes
called literalist, is to make a meticulous
examination of the precise words used. The other
sometimes called purposive, is to consider the
object of the relevant provision in the light of the
other provisions of the Act  the general
intendment of the provisions. They are not
mutually exclusive and both have their part to play
even in the interpretation of a taxing statute.”

It was also observed:
“Where there is an exemption provision in a fiscal
statute the onus is on a taxpayer to show that the
exemption applies: Barron v. Littman [1953] A.C.
96 and Imperial Chemical Industries Ltd. v. Caro
[1961] 1 W.L.R. 529.”

In Indian Handicrafts Emporium and Others Vs. Union of India and
Others [(2003) 7 SCC 589] this Court referred to various decisions including
Peerless General Finance (supra) whereupon the Appellate Tribunal as also
Mr. Raval placed strong reliance expounding the theories of purposive
construction. (See also Ramesh Mehta Vs. Sanwal Chand Singhvi and Ors,
JT 2004 (Suppl.1) SC 274)
Regulations 10, 11 and 12 were amended in the year, 1997 having
regard to the fact that the 1994 Regulations contained many loopholes, and,
thus, the mischief rule should be resorted to so as to suppress the mischief
which would have surfaced had the literal rule been allowed to cover the
field. [See Reema Aggarwal Vs. Anupam and Others, (2004) 3 SCC 199]

IS STRICT CONSTRUCTION OF THE REGULATION CALLED FOR?

A penal statute indisputably is required to be strictly construed. But a
different situation may arise if the penalty is sought to be levied as a result of
failure on the part of the person statutorily obliged to comply with the
statutory provisions which are imperative in nature.

There may not be any doubt or dispute as regard the proposition that
when words employed in a penal statute employs are not clear, the principle
‘against doubtful penalisation’ would be applied.

In Francis Bennion’s Statutory Interpretation, Fourth Edition, at page
704, Section 271 it is stated that principle against penalization under a
doubtful statute is a legal policy which would apply in a given situation but
the learned Author himself states that different consequences of enactments
are possible depending upon the text and context of the statute. In the same
treatise at page 367, it is stated:

“(2) A construction put forward may rely entirely
on the literal meaning, or may elaborate (but still
correspond to) the literal meaning, or may depart
from the literal meaning in favour of a strained
meaning. The court, where it considers (or prefers
to say) that the literal meaning is unambiguous,
will tend to decide in favour of what it regards as
the unglossed literal meaning and reject other
versions.”

Referring to Trustees of Sir John Aird’s Settlement (supra), the
learned Author at pages 368 & 369 states:
“Subsection (2) Where the enactment is
grammatically ambiguous, the opposing
constructions put forward are likely to be
alternative meanings each of which is
grammatically possible. Where on the other hand
the enactment is grammatically capable of one
meaning only, the opposing constructions are
likely to contrast an emphasized version of the
literal meaning with a strained construction. In the
latter case the court will tend to prefer the literal
meaning, wishing to reject the idea that there is
any doubt.

Example 149.2 In a tax avoidance case concerning
capital transfer tax, the Court of Appeal were
called on to construe the Finance Act 1975 Sch 5
para 6(7) as originally enacted. Counsel for the
Inland Revenue put forward several alternative
arguments on construction, but the court preferred
the one based on the unglossed literal meaning. It
may be conjectured however that the other
arguments helped to convince the court that the
Inland Revenue’s case was to be preferred.”
Failure to comply with a statute may attract penalty. But only because
a statute attracts penalty for failure to comply with the statutory provisions,
the same in all situations would not call for a strict construction. A statute
ordinarily must be literally construed. Such a literal construction would not
be denied only because the consequence to comply the same may lead to a
penalty. This aspect of the matter has been considered by this Court in
Indian Handicrafts Emporium (supra). Proceeding on the basis that there
existed a dichotomy, the Court ultimately held that the resolution will have
to be reached by reading the entire statute as a whole. [See also Reema
Aggarwal (supra)]

In Balram Kumawat Vs. Union of India and Others [(2003) 7 SCC
628] this Court held:
“The Courts will therefore reject that construction
which will defeat the plain intention of the
Legislature even though there may be some
inexactitude in the language used. [See Salmon vs.
Duncombe [(1886) 11 AC 627 at 634]. Reducing
the legislation futility shall be avoided and in a
case where the intention of the Legislature cannot
be given effect to, the Courts would accept the
bolder construction for the purpose of bringing
about an effective result. The Courts, when rule of
purposive construction is gaining momentum,
should be very reluctant to hold that the Parliament
has achieved nothing by the language it used when
it is tolerably plain what it seeks to achieve. (See
BBC Enterprises Vs. Hi-Tech Xtravision Ltd.,
(1990) 2 All ER 118 at 122-3)”

Referring to its earlier decisions, this Court :

“36. These decisions are authorities for the
proposition that the rule of strict construction of a
regulatory/penal statute may not be adhered to, if
thereby the plain intention of the Parliament to
combat crimes of special nature would be
defeated.”

Let us now consider the decisions relied upon by Mr. Nariman.

In Avais (supra), the House of Lords was concerned with the
construction of the meaning applied in Gaming machine. In that case itself,
it was held:

“The task of the courts is to ascertain in any
particular case whether the conditions have been
(or, as in this case, would be) complied with or
not. There is no evident reason for interpreting the
conditions otherwise than according to their
natural meaning. Indeed, there is this point to be
borne in mind in favour of a literal construction. If
the conditions are not complied with, the club
officials who allow the club premises to be used
for the gaming are guilty of criminal offences. The
Act would be setting a trap for them, if by some
artificial construction of the provisions an
apparently innocent financial agreement (such as
accepting from the owner of the machines a
guarantee of the club’s takings) were held to
involve or lead to a breach of the conditions.”
The said decision, thus, runs counter to the submissions of Mr.
Nariman. In this case also conditions are imposed in the matter of
acquisition of shares. If the conditions have not been complied with, the Act
having set up a trap for them, the logical consequences would ensue.

In The Seksaria Cotton Mills Ltd. (supra), the Court was dealing with
the activities of a welfare agent vis-`-vis the meaning of ‘possession’ in the
relevant Act. The Court found:

“The facts are truly and accurately given according
to the popular and natural meaning of the words
used; nothing was hidden. The goods did reach the
quota-holder in the end, or rather his proper agent,
and we cannot see what anyone could stand to gain
in an unauthorised way over the very natural
mistake which occurred owing to what seems to
have been a time-lag in the consequences of a
change of agency. So, even if there was a technical
breach of the law, it was not one which called for
the severe strictures which are to be found in the
trial court’s judgment and certainly not for the
savage sentences which the learned Magistrate
imposed. In the High Court also we feel a nominal
fine would have met the ends of justice even on the
view the learned Judges took of the law.”

In the aforementioned backdrop only, it was held:

“In a penal statute of this kind it is our duty to
interpret words of ambiguous meaning in a broad
and liberal sense so that they will not become traps
for honest, unlearned (in the law) and unwary men.
If there is honest and substantial compliance with
an array of puzzling directions, that should be
enough even if on some hypercritical view of the
law other ingenious meanings can be devised.”

This is a case of non-compliance of mandatory statutory provisions
and not of substantial compliance. It is also not a case involving unlearned
or unwary men.

In Bhagirath Sharma (supra), the question which fell for consideration
was whether ‘tube’ is included within the expression ‘tyre’. Keeping in
view the provisions of the Essential Commodities  Prices and Stocks
(Display and Control) Order, 1967, this Court applied the rule of strict
construction.

Regulations being regulatory in nature, the intent and object sought to
be achieved thereby must be firmly applied with. In this view of the matter,
we are of the opinion that Regulations do not deserve strict constructions so
as to hold that even a public offer was not necessary.

ANOTHER FACET OF THE CASE:

Having held so, would it be proper for this Court to direct the Board
not to take any penal action against the Appellants?
The Board is an expert body. As a legislature, it makes the
regulations, as an executive, it implements the legislation and in case of a
breach it takes upon a quasi-judicial function. While functioning in its
judicial capacity, it has wide discretion. It can initiate criminal proceedings
in terms of Section 24 of the Act, issue directions in terms of Section 11-B
and Regulation 44 as also take recourse to penal provisions as contained in
Section 24 and Chapter VI-A of the Act. Its decision is final subject to the
decision of the Tribunal. But the sequences of events, as noticed
hereinbefore, clearly go to show that even the Board was not sure of the
legal position.
It in no uncertain terms held:
“As the said change from joint to sole control took
place in pursuance to a resolution passed by the
shareholders in general meeting, the same would
not trigger Regulation 12, same being covered
under proviso to Regulation 12.”

The Board even did not think it fit to apply the Explanation appended
to Regulation 12 in its proper perspective.
It is only the Tribunal at a later stage came to a clear finding that
proviso appended to Regulation 12 will have no application and Explanation
would.
Before us also the Counsel read the regulations in question over and
over again. Focus on certain words was placed differently at different times.
It is only after considering the matter from different angles, we have been
able to arrive at a definite conclusion.
In Trustees of Sir John Aird’s Settlement (supra) upon taking into
consideration several alternative arguments on construction of the Finance
Act 1975 Schedule 5 para 6(7) as originally enacted, the Court preferred the
one based on the unglossed literal meaning.
The adversarial system prevailing in India allows a counsel to put
forward construction of the enactment in question relying on several
alternative arguments and the Court may ultimately base its judgment on
unglossed literal meaning. (See Example 149.5 of Francis Bennion’s
Statutory Interpretation, Fourth Edition, page 371).
In the aforementioned backdrop, this Court thought it fit to consider as
to whether in exercise of its jurisdiction under Article 142 of the
Constitution of India a direction should be issued directing the Board to
forbear from proceeding under Section 15H of the Act against the Appellant.
It is accepted that once a public offer is made the investors would be
entitled to elect to transfer their shares at a higher price which may be
offered by the acquirer with a view to acquire control over the target
company. The investors would also be entitled to interest at such rate as the
Board may determine. The provisions of Section 15H of the Act mandates
that a penalty of rupees twenty-five crore may be imposed. The Board does
not have any discretion in the matter and, thus, the adjudication proceeding
is a mere formality. Imposition of penalty upon the Appellant would, thus,
be a forgone conclusion. Only in the criminal proceedings initiated against
the Appellants, existence of mens rea on the part of the Appellants will
come up for consideration.
We, therefore, are of the opinion that it is a fit case where this Court
should exercise its jurisdiction under Article 142 of the Constitution to direct
the Board to forbear from proceedings with the adjudication proceeding
against the Appellants. This may not, however, be treated to be a precedent.
These appeals are allowed in part and to the extent mentioned
hereinbefore. In the facts and circumstances of this case, there shall be no
order as to costs.

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