Point of law: Even if we reject this writ-application on such ground asking the writ-applicants to file an appeal, the Appellate Authority would also be faced with the same problem or rather difficulty as regards determining a particular amount. In such circumstances relegating the writ-applicants, at this stage, to avail the alternative remedy and challenge the recovery notice by way of an appeal would not serve any good purpose. Instead we should quash the recovery notice and remit the matter to the authority concerned with a direction to give an opportunity of hearing to the writ-applicants and thereafter appropriately determine the amount to be paid to the depositors. Of course, it would be open to the writ-applicants to point out to the authority concerned that as on date they have discharged their liabilities in toto.

JUDGMENT :

J.B.PARDIWALA, J.

1. By this writ-application under Article 226 of the Constitution of India the writ-applicants have prayed for the following reliefs :-

“(a) To quash and set aside the demand notice dated 05.11.2020 bearing Certificate No.RC3134/2020 at ANNEXURE-A passed by the Respondent No. 2;

(b) Pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay implementation and operation of demand notice dated 05.11.2020 bearing Certificate No.RC3134/2020 at ANNEXURE-A and restrain respondents from taking any coercive action against the Petitioners herein;

(c) Any other and further relief, which is just and proper, may kindly be granted as may be deemed expedient by this Hon'ble Court in the facts and circumstances of the case.

(d) Award cost of the present petition.”

2. The facts giving rise to this writ-application may be summarised as under :-

2.1 It appears from the materials on record that the present litigation is an off shoot of the earlier litigation between the parties. We are talking about the Special Civil Application No.4895 of 2003 filed by the writ-applicants herein in this High Court seeking the following reliefs :-

“(A) To issue an appropriate writ, order or direction in the nature thereof and declare sub section (1B) of Section 12 of the Securities and Exchange Board of India Act, 1992 ultra vires the Constitution of India, in so far as it includes Collective Investment Scheme.

(B) To issue an appropriate writ, direction or order in the nature thereof and declare Section 11(2)(c) and 11AA of the Securities and Exchange Board of India Act, 1992 ultra vires the Constitution of India.

(C) To issue a writ, order or direction of quashing the impugned Regulation (Securities and Exchange Board of India (Collective Investment Scheme) Regulation 1999) to the extent aforesaid as being ultra vires the Constitution of India i.e. violative of Article 14, 19(1)(g) and 19(1)(c) of the Constitution of India and being inconsistent with and in derogation of the Companies Act, 1956, Indian Trust Act, 1882 and the Income Tax Act, 1961 and are inherently inconsistent, and contradictory and vague.

(D) To issue a writ of Mandamus, or a writ, order or direction in the nature of mandamus commanding Respondent No.2 not to give effect to the impugned Regulation (Securities and Exchange Board of India (Collective Investment Schemes) Regulations, 1999) and to withdraw their instructions as indicated inter alia in their letter dated 14.3.2003 against the petitioner.

(E) Pending the hearing and final disposal of this petition,

(a) stay the operation of the order dated 14.3.2003 issued by Respondent No. 2 to Petitioner No.l;

(b) stay the operation of SEBI (Collective Investment Schemes) Regulations, 1999 in so far as its applicability is concerned on Petitioner No.1;

(c) restrain Respondent No. 2s from taking any adverse or coercive action against Petitioner No.1 under the SEBI (Collective Investment Scheme) Regulations, 1999 Securities Contracts (Regulations) Rules, 1956 and Securities Exchange Board India Act, 1992;

(F) Any other orders or directions which this Hon'ble Court deems fit and proper passed in favour of humble petitioner,

(G) Cost of the writ petition be awarded in favour of humble petitioner.”

2.2 The first order that came to be passed in the Special Civil Application No.4895 of 2003 referred to above is dated 21.4.2003. The same reads thus :-

“1. Notice returnable on 07-05-2003. Notice to Attorney General of India. During the course of hearing, Mr.R.P.Bhatt, learned Senior Advocate appearing for the petitioners, states that the review application of the order dated 05-04-2003 on behalf of the petitioning-Company shall be withdrawn as not pressed.

2. Notice as to interim relief. In the meantime, by way of ad-interim relief, the impugned order dated 14-03-2003 shall stand stayed.”

2.3 The second order tha