JUDGMENT :

Subramonium Prasad, J.

(Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Declaration, to declare the “Proviso” in Section 167(1)(a) of the Companies Act 2013, as inserted vide the Companies (Amendment) Act 2017 as ultra vires the Articles 14, 19(1)(g) of the Constitution of India and declare illegal and null and void.)

1. The challenge in the instant writ petition is to the vires of the proviso to Section 167(1)(a) of the Companies Act, as inserted by the Companies (Amendment) Act 2017. The same is extracted hereunder:-

“167. Vacation of office of director.

(1) The office of a director shall become vacant in case— (a) he incurs any of the disqualifications specified in section 164;

2. The petitioner is a Company Secretary. The petitioner herein had previously challenged the impugned proviso before this Court through WP.No.22813 of 2018. However, the same was withdrawn on 19.11.2019 with the permission of the Court as the same was filed in the nature of a Public Interest Litigation. The petitioner has subsequently filed the instant writ petition. It is to be noted that the petitioner was not granted any liberty to institute a fresh petition for the same relief upon the earlier writ petition being withdrawn. The permission to withdraw the Public Interest Litigation was granted by this Court, without prejudice to the rights of any person aggrieved or otherwise entitled to file such a petition relating to the vires of the proviso, which has been questioned herein. Even though the present petition is not labelled as Public Interest Litigation, it in fact is a Public Interest Litigation. The petitioner’s rights have not been in any manner affected by the insertion of the proviso in as much as the petitioner is not a Director in any company and has not had to vacate his office by virtue of the proviso inserted in Section 167(1)(a) of the Companies Act by the Companies (Amendment) Act 2017. The petitioner therefore has no locus to institute the present writ petition. The conduct of the petitioner in repeatedly approaching the Court by filing petitions for same relief is not appreciated. The writ petition deserves to be dismissed on this score alone.

3. Learned counsel for the petitioner however contends that in order to challenge the vires of a provision as being unconstitutional, the locus test cannot be applied to non-suit the petitioner. We propose to relieve the petitioner of this burden by proceeding to deal with the mater as we find it more imperative to settle the legal position rather than limit the contours of locus more so when the issued raised can be conveniently answered by devoting more time to the substance of challenge rather than its form.

4. Chapter XI of the Companies Act 2013 deals with appointment and qualification of the Directors. Section 164 prescribes the disqualifications for appointment of Directors and Section 167 enumerates the instances which lead to vacation of the office of Director. Section 164 and Section 167 of the Companies Act 2013 read as under:-

“164. Disqualifications for appointment of director.

(1) A person shall not be eligible for appointment as a director of a company, if — (a) he is of unsound mind and stands so declared by a competent court; (b) he is an undischarged insolvent; (c) he has applied to be adjudicated as an insolvent and his application is pending; (d) he has been convicted by a court of any offence, whether involving moral turpitude or otherwise, and sentenced in respect thereof to imprisonment for not less than six months and a period of five years has not elapsed from the date of expiry of the sentence: Provided that if a person has been convicted of any offence and sentenced in respect thereof to imprisonment for a period of seven years or more, he shall not be eligible to be appointed as a director in any company; (e) an order disqualifying him for appointment as a director has been passed by a court or Tribunal