Securities and Exchange Board of India v. National Stock Exchange Members Association and Anr
RASTOGI, J.
Civil Appeal No. 435 of 2007
1. The instant appeal is directed against the judgment and order
dated 7th November, 2005 passed by the Division Bench of the High
Court of Delhi, setting aside the finding returned by the learned Single
Judge of the High Court under judgment dated 26th October, 2004. The
Division Bench has arrived at a conclusion that in terms of Section 12(1)
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION
of the Securities and Exchange Board of India Act, 1992 (here inafter
referred to as “the Act 1992”), a single registration with Securities and
Exchange Board of India (hereinafter referred to as “SEBI”) is sufficient
even if the stock broker has various memberships and function s from
several stock exchanges and, therefore, will have to pay the fee for the
initial registration with SEBI and, accordingly, set aside paragraph (vi)
of Part A of the Circular dated 28th March, 2002 issued by SEBI.
Factual backdrop
2. SEBI has been established under provisions of the Act, 1992
with an object to protect the interest of investors in the securities market
and to promote the development of, and to regulate the securities market.
SEBI was created as a regulator to regulate the securities’ market which
includes dealing in shares, debentures, derivates, etc. in recognised stock
exchanges. It may be relevant to note that before SEBI was formed,
each stock exchange admitted members and the brokers/sub-br okers
could deal in securities in accordance with bye-laws of ea ch of such
stock exchanges. The law that governed prior to the Act, 1992 was the
Securities Contracts (Regulation) Act, 1956 read with Securities Contracts
(Regulation) Rules, 1957. The Act and the Rules provide for recognition
of the stock exchange and qualifications of members o f the stock
exchange.
3. After the formation of SEBI, the Central Government in exercise
of power under Section 29 of Act, 1992 framed Securities and Exchange
Board of India(Stock Brokers and Sub-Brokers) Rules, 1992 and i n
exercise of powers conferred under Section 30, the Boa rd framed
Securities and Exchange Board of India(Stock Brokers and Sub-Brokers)
Regulations, 1992 (hereinafter referred to as “Regulations 1992”).
4. When SEBI levied the fees on the stock brokers in terms of
Regulation 10 read with Schedule III, it was challenged before this Court
in BSE Brokers’ Forum, Bombay and Others v. Securities and
Exchange Board of India and Others1. This Court upheld the validity
of Regulation 10 read with Schedule III to the Regulations, 1992 and
further held that the fees charged by SEBI is not a tax b ut is a fee and
that is regulatory in nature and the element of quid pro quo is not strictly
necessary. This Court passed further directions requiring SEBI to amend
1 (2001) 3 SCC 482
915
Regulations to incorporate the recommendations of the R .S. Bhatt
Committee.
5. That keeping in view the directions of this Court in the afore-
stated judgment, SEBI issued a Circular dated 28th March, 2002 clarifying
that every stock broker who has a certificate of registration ha s to pay
the fees prescribed in Schedule III for each and every cer tificate of
registration that he holds. The relevant extract of the Circul ar dated
28th March, 2002 is reproduced hereunder:
“SMD/POLICY/Cir-07/2002
March 28, 2002
The Executive Directors/Managing Directors
All Stock Exchanges
Dear Sir/Madam,
SUB : FEES PAYABLE BY STOCK BROKERS
SEBI has notified the SEBI (Stock Brokers and Sub-brokers)
Regulations in 1992. Schedule III of the SEBI (Stock Brokers
and Sub-brokers) Regulations 1992 which deals in detail with the
payment of the fees was challenged by the brokers of t he stock
exchanges in their individual and representative capacity . The
Hon’ble Supreme Court was pleased to deliver a judgment on
February 01, 2001 on this issue inter alia directing SEBI to amend
the Regulations incorporating the recommendations of the R. S.
Bhatt Committee Report.
SEBI has amended the regulations on February 20, 2002 as per
the judgment of the Hon’ble Supreme Court incorporating the
recommendations of R. S. Bhatt Committee.
It may be mentioned that the incidence of fees payable t o SEBI
by brokers has been reduced by the R. S. Bhatt Committee. R. S.
Bhatt Committee has suggested different rates of payment o f
fees depending on nature of the transactions entered into. SE BI
has accepted the recommendations of the R. S. Bhatt Committee
and many brokers have paid fees in the past as per schedule III
read down with the recommendations of the R. S. Bhatt Committee
and such fees have been accepted by SEBI.
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
Following the judgment of the Hon’ble Supreme Court, SEBI has
received representations from the brokers in their ind ividual
capacities as well as their representative capacity. The issues
have been examined by SEBI. Part A of this circular contains
clarifications on the issues sought by the brokers.
xxx xxx xxx
PART A
CLARIFICATIONS ON THE ISSUES ARISING OUT OF THE
VARIOUS REPRESENTATIONS ON FEES TO BE PAID BY
BROKERS TO SEBI.
xxx xxx xxx
vi. Fees payable by composite corporate members :
It is clarified that Regulations require every broke r who
wants to receive a Certificate of registration from SEBI to
make payment of fees to SEBI. This is irrespective of the
number of cards which are held by the broker on the stock
exchange. In case the broker has more than one
registration certificate from SEBI on any stock exchan ge
then he will be required to pay fees as per the Regulatio ns
for each and every certificate that he holds. In ca se the
broker holds only one registration certificate and more than
one card on any exchange it is clarified that registra tion
fees are payable on the registration certificate and not on
the number of cards held by the broker. The brokers ’
turnover will be the aggregate turnover of all cards.”
(Emphasis supplied)
6. Respondent no.1 is an association of the trading members of
the National Stock Exchange and as alleged, its members dea l in sale
and purchase of shares and securities in India and each stoc k broker
has been registered under the Act, 1992 and pay fee for registration in
accordance with the Regulations, 1992.
7. The association of trading members challenged the Circula r
dated 28th March, 2002 to the extent that paragraph (vi) of Part A provides
the fees payable by a composite corporate member and re quires that
the stock broker who held more than one registration with SEBI,
917
structured fee would be required to be paid for each registration. It was
contended by the association that even if a stock broker has more than
one registration from SEBI, he was required to pay fees only with respect
to the initial registration with SEBI irrespective of the number of cards
held by the broker from the stock exchange and accordingly it was prayed
that the clarification made by SEBI under its Circular dated 28th March,
2002 of which a reference has been made, is in contravention to the
scheme of the Act, 1992 and deserves to be set aside.
8. Learned Single Judge of the High Court, after examining t he
scheme of Regulations and the Circular dated 28 th March, 2002 and
Reg. 6 read with Reg. 9 in particular along with Form ‘A’, arrived at the
conclusion that multiple registrations are envisaged under the scheme of
Regulations, and upheld the impugned Circular dated 28th March, 2002
holding that it only determines the mode and manner of the calculation
and dismissed the petition by judgment dated 26th October, 2004.
9. On a Letters Patent Appeal being preferred by respon dent
no.1, the Division Bench of the High Court was of the view that t he
scheme only manifests one certificate of registration from SEBI even if
a stock broker operates from several stock exchanges in the co untry
and was primarily influenced by the expression ‘a certificate’ as referred
to in Section 12(1) of the Act, 1992 and while setting aside the finding
returned by the learned Single Judge, allowed the appeal by a judgment
dated 7th November, 2005 and held that single registration of SEBI is
required even if a stock broker has a membership and funct ions from
several stock exchanges and will have to pay registration f ee for the
first initial registration with SEBI even if he operates in several other
stock exchanges with a further direction that if any of the stock broker
has paid fees to SEBI for any subsequent registration afte r his first
initial registration, the said fee has to be refunded by SEBI forthwith and
declared paragraph (vi) of Part A of the Circular dated 28th March, 2002
to be inconsistent with Section 12(1) of the Act 1992. That became the
subject matter of challenge in appeal before us.
10. It may be noticed that the procedure of requiring registration
with SEBI for each stock exchange separately continued till th e year
2014 and by amending the Regulations, SEBI now requires a single
registration for a stock broker with one registration number. The broker
has to apply to individual stock exchanges for approval to trade in their
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
exchange. Therefore, from 2014 onwards, the scheme requ ires one
registration for multiple approvals from individual stock exchanges.
11. Learned counsel for the appellant submits that this is the second
round of litigation initiated by the respondents having failed i n their
challenge to the validity of Regulation 10 read with Schedule III of the
Regulations providing for imposition of fee, which was upheld in BSE
Brokers’ Forum, Bombay and Others (supra) and the Circular dated
28th March, 2002 is nothing but a clarification and in terms thereof, the
fee is to be paid by the stock broker which is in conformi ty with the
scheme of Regulations 1992.
12. Learned counsel for the appellant further submits that the
imposition is held to be a fee and not a tax and being a levy which is also
regulatory in nature, in view of various activities of SEBI to regulate the
business of the securities market mentioned in Section 11 of the Act,
quid pro quo was not held to be a condition precedent for levy to
constitute fee.
13. Learned counsel further submits that the scheme of the
securities contracts clearly postulates that the application is to be made
through a stock exchange for registration with SEBI and each stock
exchange is separately registered under the Act and it was further
emphasised that the scheme demonstrates that SEBI endorses different
stock exchanges and so the fee has to be separate as its pa rt of the
regulatory mechanism.
14. Learned counsel further submits that the multiple registrations
are envisaged and a bare reading of the scheme of Regulations indicates
that wherever there is singular phraseology, the same is in reference to
the registration in respect of a particular stock exchang e and it is not
disputed that stock brokers are enrolling themselves in different categories
of memberships in stock exchanges, for example, like an equity segment,
debt, derivative commodity segment etc., and thus brokers are conscious
of the different nature of activities required and the ex pertise which
may entitle them for registration to trade in one nature of securities but
may not be so in respect of another nature of security.
15. In that background, learned counsel for the appellant further
submits that the emphasis that has been laid by the Divis ion Bench of
the High Court on the expression “a certificate” as ref erred to under
Section 12(1) of the Act appears to be a misnomer for th e reason that
919
the same term can be used for singular or plural expression and the High
Court has completely overlooked the scheme of Regulations, 1992 and
Form ‘A’ annexed to Reg.3 thereto and if the scheme of the Act, Rules
and Regulations framed thereunder are examined in a holistic manner, it
clearly manifests that the stock broker has to get the cer tificate of
registration from SEBI for each of the stock exchange where he operates
and accordingly the fee is to be paid pursuant to the Circular dated 28th
March, 2002 which was only a clarification made, according to which
the fee was payable by the composite corporate broker.
16. Learned counsel for the appellant further submits that the
complaint of the association was only with respect to the fee payable
under Schedule III and the computation of five years’ period fr om the
date of initial registration but the scheme of Regulations, 1992 makes it
explicit that an application has to be made by the stock broker through
each of the stock exchanges where he wishes to be a memb er and the
respective stock exchange forwards the application with its
recommendations to SEBI, who will consider the application under Reg.
5 and grant registration under Reg. 6 after the necessar y requirements
are satisfied and an intimation of registration is to be sent to the individual
stock exchanges, that enabled broker/sub-broker to apply to SEBI for
reconsideration of his case of registration for a particular e xchange, if
refused.
17. Learned counsel further submits that a stock broker who had
been a member of the Madras, Calcutta and Bombay Stock Exchanges,
has to get himself separately registered with SEBI in respect of each of
such stock exchanges and a certificate of registration may be applicable
to each of such stock exchanges and it has been wrongly claimed by the
respondents that one certificate of registration is requi red which is
applicable to multiple stock exchanges.
18. Per contra, learned counsel for the respondents, on the other
hand, while supporting the finding recorded by the Division Bench of the
High Court under the judgment impugned submits that the sch eme of
the Act and the Regulations framed thereunder nowhere suggest that
separate registration is required with respect to e ach of the stock
exchanges and has referred to certain provisions of t he scheme of
Regulations and Rules, 1992 and submits that only a semblance o f a
suggestion of multiple registrations can be found in Schedule III, wherein
paragraph 1(1)(c), the word “initial registration” has been employed to
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
indicate the starting point for the reckoning of five years for whic h ad
valorem fees has to be paid.
19. Learned counsel further submits that the schedule annexed to
the Regulations cannot override the scheme of the Regulations and further
submits that the then prevailing practice of multiple r egistrations was
sought by the stock brokers only out of abundant caution, after th eir
initial registration, since the certificate issued in Form ‘D’ reflected the
names of such stock exchanges of which they are members on the date
of such initial registration. That apart, there is no provision to amend and
insert the name of more stock exchanges in the certificate and this being
a settled principle of law, this practice cannot be used in aid of
interpretation if it is contrary to the plain language of the statute and took
assistance of the judgment of this Court in K.P. Varghese v. Income
Tax Officer, Ernakulam and Another 2.
20. Learned counsel for the respondents further submits tha t
irrespective of whether a stock broker is required to h old a single
registration or multiple registrations with each stock e xchange, the
payment of ad valorem fee will nonetheless happen only once, i.e., for
five years from the first of such multiple registrations and further submits
that there is no indication in the scheme i.e., the Act, Rules and
Regulations, that a stock broker ought to register separately with respect
to each stock exchange of which he is a member and even if mul tiple
registrations are contemplated, still the ad valorem fee payable for five
years can only be reckoned from the initial registration, i.e. the first of
said multiple registrations with SEBI and on this premise a t least the
Circular dated 28th March, 2002 is ultra vires to the Act, 1992 insofar as
it compels the stock brokers to pay ad valorem fee for multiple blocks of
five years from the dates of their multiple registrations which is otherwise
not legally permissible and this what the Division Bench has examined in
light of expression ‘a certificate’ in Section 12(1) of the Act, 1992 which
does not call for further interference.
21. We have heard the submissions of the learned counsel for the
parties and with their assistance perused the material on record.
22. From the arguments advanced before us, the following two
questions arise for our consideration:-
2 (1981) 4 SCC 173
921
(i) Whether under the Act 1992, a stock broker has to obtain a
certificate of registration from SEBI for each of the st ock
exchanges where he operates or whether a single certificate
of registration from SEBI is sufficient and the same would
enable him to trade in all other stock exchanges?
(1) Whether the ad valorem fee to be paid for an initial period
of five years will recur with every such registration?
23. Before we proceed to examine the questions that emerge for
our consideration, it will be apposite to first have a bird’s eye view of the
scheme of the Act and the rules/regulations framed thereunder that will
facilitate this Court to appreciate the submissions made by the parties.
24. The Board has been established under Section 3 of the Act,
1992 and it has various functions to discharge. The primary duty of the
Board is to protect the interests of the investors in sec urities and to
promote the development of, and to regulate the securities market, by
such measures as it thinks fit. Section 11 provides various functions of
the Board, including to register and regulate the working of stock brokers,
sub-brokers and such other intermediaries who intend to associate with
the securities market. Section 12 of Chapter V reinforces that every
stock broker who fulfils the conditions of eligibility has to obtain a
certificate of registration from the Board in accor dance with the
regulations made thereunder. Section 12 reads as under:-
“Registration of stock brokers, sub-brokers, share transfer
agents, etc.
12. (1) No stock broker, sub-broker, share transfer agent, banker
to an issue, trustee of trust deed, registrar to an issue, mer chant
banker, underwriter, portfolio manager, investment adviser a nd
such other intermediary who may be associated with securit ies
market shall buy, sell or deal in securities except unde r, and in
accordance with the conditions of a certificate of regist ration
obtained from the Board in accordance with the (regulations) made
under the Act :”…………
[Emphasis Supplied]
25. Every stock exchange has to obtain recognition by the Central
Government under Section 4 of the Securities Contracts (Reg ulation)
Act, 1956 and the scheme contemplates/recognises such of the stock
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
brokers who are members of the stock exchange. No stock b roker or
sub-broker shall abide by and deal in securities unless he holds a certificate
of registration granted by the Board. The Central Government has laid
down the conditions of eligibility which the stock broker has to fulfil for
the purpose of obtaining certificate of registration under the guiding
principles prescribed under Rule 4 of Rules 1992.
26. That in exercise of power under Section 29 of the Act 1992,
the Central Government framed the Rules for carrying out the purpose
of this Act called the Securities and Exchange Board of In dia (Stock
Brokers and Sub-Brokers) Rules, 1992.
27. It will be apposite to take note of Rules 2(d), 2(e), 3 and 4 of
the Rules, 1992 which have been extracted as under:-
“2. In these rules, unless the context otherwise requires :
(a) ……..……….
(b) ..…………….
(c) ………………
(d) “stock exchange” means a stock exchange which is for the
time being recognised by the Central Government under
section 4 of the Securities Contracts (Regulation) Act, 1956
(42 of 1956);
(e) “stock broker” means a member of a stock exchange;
(f) …………
(g) …………
Not to act as stock broker or sub-broker without
registration.
3. No stock broker or sub-broker shall buy, sell, deal in securities,
unless he holds a certificate granted by the Board under the
Regulations :
Provided that such person may continue to buy sell or deal in
securities if he has made an application for such registration till
the disposal of such application.
Conditions for grant of certificate to stock broker.
923
4. The Board may grant a certificate to a stock-broker subject to
the following conditions namely :-
(a) he holds the membership of any stock exchange;
(b) he shall abide by the rules, regulations and bye-laws of the
stock exchange or stock exchanges of which he is a
member;
(c) In case of any change in the status and constitution, the
stock broker shall obtain prior permission of the Board to
continue to buy, sell or deal in securities in any stoc k
exchange;
(d) He shall pay the amount of fees for registration in the manner
provided in the regulations; and
(e) He shall take adequate steps for redressal of grievanc es of
the investors within one month of the date of the receipt of
the complaint and keep the Board informed about the
number, nature and other particulars of the complaints
received from such investors.”
28. The scheme of rules clearly postulates that a stock broker
who is a member of any stock exchange, has to abide by the rules,
regulations and bye-laws of the stock exchange or the stock exchanges
of which he is a member apart from other conditions, for the grant of
certificate of registration.
29. The Board, in exercise of its power under Section 30 of the
Act has framed its Regulations 1992, which are duly notified in the
Gazette. It provides a procedure/mechanism according to which the stock
broker (in terms of Rule 2(e) a member of stock exchange), has to apply
for grant of a certificate in Form ‘A’ which is to be routed through the
stock exchange or stock exchanges of which he is a member a nd after
the fee being deposited in terms of Reg. 10 as specified in Schedule III,
such applications are considered by the Board in terms of the conditions
of eligibility prescribed under Reg. 5 and after following the procedure
for registration, as referred to under Reg. 6, the stock br oker becomes
eligible for grant of certificate of registration with the Board. The relevant
extract of the provision of Regulations, 1992 is reproduced hereunder:-
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
“CHAPTER II
REGISTRATION OF STOCK BROKERS
Application for registration of stock broker .
3. (1) An application by a stock broker for grant of a cer tificate
shall be made in ‘Form A’ through the stock exchange or st ock
exchanges, as the case may be, of which he is admitted as a
member.
(2) The stock exchange shall forward the application form to the
Board as early as possible but not later than thirty days from the
date of its receipt.
(3) Notwithstanding anything contained in sub-regulation (1), any
application made by a stock broker prior to coming into force of
these regulations containing such particulars or as near thereto as
mentioned in the ‘Form A’ shall be treated as an application made
in pursuance of sub-regulation (1) and dealt with accordingly :
Provided that the requirement of the payment of fees shall be the
same as is referred to in sub-regulation (1) of regulation 10.
Furnishing of information, clarification, etc.
4. …………….
Consideration of application.
5. The Board shall take into account for considering the grant of
a certificate all matters relating to buying, selling, or dealing in
securities and in particular the following, namely, whether the stock
broker—
(a) is eligible to be admitted as a member of a stock exchange;
(b) has the necessary infrastructure like adequate office space,
equipments and man power to effectively discharge his activities;
(c) has any past experience in the business of buying, sel ling or
dealing in securities;
(d) is subjected to disciplinary proceedings under the rules,
regulations and byelaws of a stock exchange with respect to his
business as a stock-broker involving either himself or any of his
partners, directors or employees;
(e) is a fit and proper person.]
925
Procedure for registration .
6. The Board on being satisfied that the stock-broker is eligible,
shall grant a certificate in ‘Form D’ to the stock-broker and send
an intimation to that effect to the stock exchange or stock
exchanges as the case may be.
Effect of refusal of certificate of registration.
9. A stock-broker, whose application for grant of a certificate has
been refused by the Board, shall not, on and from the date of the
receipt of the communication under sub-regulation (2) of regulation
8 buy, sell, or deal in securities as a stock-broker.
Payment of fees and the consequences of failure to pay fees .
10. (1) Every applicant eligible for grant of a certificate shall pay
such fees and in such manner as specified in Schedule III
Provided that the Board may on sufficient cause being shown
permit the stockbroker to pay such fees at any time befor e the
expiry of six months from the date on which such fees beco me
due.
(2) Where a stock-broker fails to pay the fees as provid ed in
regulation 10, the Board may suspend the registration certificate,
whereupon the stock-broker shall cease to buy, sell or d eal in
securities as a stock-broker.”
30. It may be relevant to note that the application for registration
prescribed in Form ‘A’ annexed to Reg. 3 has to be filled up by the stock
broker for seeking registration with the Board. Apart fr om the details
which the stock broker has to indicate, recommendation has to be made
by the stock exchange of which he is a member and through whom the
application is processed/forwarded to the Board for the purpose of
registration. After the compliance is made, the certificate of registration
is issued to the stock broker in Form ‘D’ annexed to Reg. 6.
“SCHEDULE I
FORMS
FORM A
Securities and Exchange Board of India (Stock Brokers and
Sub-brokers) Regulations, 1992
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
[Regulation 3]
Application Form for Registration as Stock Brokers
with Securities and Exchange Board of India
Name of the Stock Exchange :
1. Name of Member with Code No.
2. Address of Member
3. Trade name of Member
4. Form of Organisation—Sole proprietorship, partnership,
corporate body, financial institution. Please give names of
proprietor/partners/directors.
5. Educational Qualifications.
6. Date of admission to membership.
7. Whether member of more than one Stock Exchange? If so,
please give name(s) of the Stock Exchange(s) with Code
Number(s).
8. Indicate Fax, Telex and Phone Number(s) of office and
residence.
9. In the case of members admitted on any Stock Exchange
after February 21, 1992, the copy of the information given to
the Stock Exchange at the time of admission.
I declare that the information given in this form is true to the best
of my knowledge and belief.
..............................................
Dated.....................
Signature
Recommendation of the Stock Exchange
This is to certify that..................is a member of this Exchang e
and is recommended for registration with the Securi ties and
Exchange Board of India.
Signature
Name
Designation”
927
“FORM D
Securities and Exchange Board of India (Stock Brokers and Sub-
brokers)
Regulations, 1992
[Regulation 6]
Certificate of Registration
In exercise of the powers conferred by sub-section (1) of section
12 of the Securities and Exchange Board of India Act, 1992, read
with the rules and regulations made thereunder, the Board hereby
grants a certificate of registration to....................a m ember of
the................Stock Exchange(s) as a Stock Broker for carrying
on the activities of buying, selling or dealing in securities and
carrying on such other activities as are permitted by such S tock
Exchange(s) subject to conditions prescribed in the rules and in
accordance with the regulations.
Registration number allotted is as under :
............................................................................................................
This certificate shall be valid till it is suspended or canc elled in
accordance with the regulations.
Date.............
By Order
For and on behalf of
Securities and Exchange Board of India”
31. At the given time, Schedule III annexed to Regulation 10
prescribes the fee to be paid by the stock broker for the purpose of
seeking registration which is reproduced hereunder:-
“SCHEDULE III
Securities and Exchange Board of India (Stock Brokers and Sub-
brokers)
Regulations, 1992
[Regulation 10]
I. Fees to be paid by the Stock Broker .
1. Every stock broker shall subject to paragraphs 2 and 3 of this
Schedule pay registration fees in the manner set out below :
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
(a) where the annual turnover does not exceed rupees one crore
during any financial year, a sum of rupees five thousand for each
financial year;
(b) where the annual turnover of the stock-broker exceeds rupees
one crore during any financial year, a sum of rupees five thousand
plus one hundredth of one per cent of the turnover in excess of
rupees one crore for each financial year;
[(bb) Notwithstanding anything contained in clause (b) it is clarified
that the fee shall be recoverable as computed as under :
(i) in respect of jobbing transactions that is to say all transactions
which are squared off during the same day which have not been
undertaken by the broker on behalf of clients, the fees sh all be
computed at the rate of one two hundredth of one per cent in
respect of the sale side of such transactions;
(ii) in respect of transactions in Government securities, the bonds
issued by any Public Sector Undertaking and the units traded in a
similar manner, the fee payable shall be computed at the r ate of
one thousandth of one per cent of the turnover;
(iii) in case of carry forward, renewal or badla transacti ons the
fees shall be computed at the rate of one hundredth of one per
cent of the turnover and the reverse off setting transactions shall
not be counted as part of the turnover;
(iv) if brokers are carrying out transactions in securities without
reporting them to the stock exchange, those transactions shall be
taken into account for the purpose of turnover and the fees shall
be computed at the rate of one hundredth of one per cent of the
turnover;
(v) the trade put through on other stock exchanges shall be included
in the turnover of that exchange if market for that securit y does
not exist on the exchange of which he is a member and the fees
shall be computed at the rate of one hundredth of one per cent of
the turnover;
(vi) activity such as underwriting and collection of deposits shall
not be taken into account for the purpose of calcula ting the
turnover;]
929
(c) after the expiry of five financial years from the date of initial
registration as a stock-broker, he shall pay a sum of rupees five
thousand for [every] block of five financial years commencin g
from the sixth financial year after the date of grant of i nitial
registration to keep his registration in force.”
[Emphasis supplied]
32. It is not disputed that the rules and the regulations have been
notified with the previous approval of the Competent Authorit y in the
Official Gazette, of which a reference has been made ab ove. Before a
certificate of registration is issued as referred to under Section 12 of the
Act 1992, the procedure has been prescribed for a stock broke r who
indeed to be a member of the stock exchange as defined/codified under
Rule 2(e) of Rules 1992. The stock broker not only has to comply with
the conditions for grant of certificate under Rule 4, but at the same time,
has to disclose all the relevant information as required in the application
form for registration in Form ‘A ’, which has to be filled by him as referred
to under Reg. 3.
33. The Board, after recording satisfaction that the stock broker
is eligible, on fulfilment of the conditions as being disclosed by him in
Form ‘A’, may issue a certificate of registration as prescrib ed in Form
‘D’ annexed to Reg. 6 of Regulations 1992. For obtaining the certificate
of registration, the stock broker has to pay such registra tion fees as
prescribed in Schedule III annexed to Reg. 10 of Regulations 1992. If
we look into Schedule III, it has been completely structured prescribing
the fee to be deposited by the stock broker; not only the initial registration
fee but also the fee which has to be paid by the stock broker for renewal
of his registration.
34. Clause 1(1)(c) of Schedule III to Regulation 10 postulates
that after expiry of five financial years from the ‘date of initial
registration’, a stock broker, for the sixth financial year, after the grant
of initial registration, has to pay the prescribed fee to retain registration
in force. In reference to the expression ‘date of initial registration’ to
which emphasis been made, it leaves no ambiguity that if more than one
registration is permissible in terms of the scheme of rules /regulations
framed by the Central Government/Board, as the case may be, the stock
broker has to comply with the conditions prescribed in Form ‘A’ annexed
to Regulation 3 and if he holds multiple registrations with the Board in
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
his basket, after expiry of five years of the certificat e of registration
from the initial registration in reference to the stock exchange of which
he is a member, a fee has to be paid/deposited by him t o keep his
registration in force. In other words, each certificate of registration with
SEBI remains co-terminus with the stock exchange(s) to which the stock
broker is a member.
35. In the earlier round of litigation, the stock brokers throug h
their brokers’ forum challenged the validity of Regulation 10 read with
Schedule III of the said regulations prescribing the fee to be charged for
the purpose of obtaining certificate of registration with the Board. The
objection was that the same is in the nature of a turnover tax but not a
fee being charged by the Board for the purpose of obtaining certificate
of registration.
36. This Court in B.S.E. Brokers’ Forum, Bombay and Others
(supra) held in paras 45 and 47 as under:-
“45. It cannot be disputed that the annual turnover of a broker is
not the subject matter of the levy but is only a measure of the
levy. In other words, the fee is not being levied on the turnover as
such but the fee is being levied on the brokers making their annual
turnover as a measure of the levy which is a fee for regulating the
activities of the securities market and for registration of the brokers
and other intermediaries in the said market. Therefore, it is futile
to contend that such levy would be either a tax or a fee on turnover.
It is a settled principle in law that if the State has the authority to
impose a levy then it has a wide discretion in choosing the measure
of levy provided, of course, it withstands the test of
reasonableness. Many levies may have a similar measure but by
such similarity in the measure, the levies do not become the same.
Therefore, if the impugned levy adopts a measure which is either
similar to the one adopted while levying turnover tax or income-
tax, the impugned levy ipso facto by adoption of such measur e,
would not become either an income-tax or a turnover tax or even
a fee on income or a fee on turnover.
47. Therefore, it would be futile to contend that the impugned fee
merely because it is levied on the basis of the turnover of the
brokers would either amount to a turnover tax or a tax on income.
While we accept the levy based on annual turnover of the brokers
931
as valid, we have to notice that the Expert Committee appointed
by the Board has in its report held that there should be cert ain
changes brought about in the definition of annual turnover as also
in the quantum of the levy pertaining to certain specific transactions
which are treated as part of the turnover. It has recommende d
that for jobbing transactions the scale of fees may be reduced to
One Two hundredth of 1 per cent, and in regard to carry forward,
renewal or badla transactions, the off-setting entries made by the
Exchange, may not be counted as part of the turnover, and further
on Government securities, PSU Bonds and Units, the turnover
will have to be calculated separately and a fee of one thousandth
of one per cent may be charged on such turnover than the present
scale of one hundredth of one per cent. It has also recommended
that the activities such as underwriting and collection of deposits
should not be taken into account for the purpose of calculating the
turnover of the brokers. These recommendations of the Committee
were, as a matter of fact, accepted by the Government of India
also but as on date, the necessary changes have not been brought
about by the Board in its Regulations. Consequently, to the extent
of the recommendations made by the Expert Committee, we are
of the opinion that the Board is bound to bring about corresponding
changes so as to remove the anomalies pointed out b y the
Committee. This was pointed out to learned counsel f or the
respondents when it was submitted that the Board has accept ed
these recommendations and the proposed changes were not
brought about because of the pendency of this petition and the
necessary changes to incorporate the recommendations of the
Bhatt Committee would be done after disposal of these petitions.
We record this submission on behalf of the Board and direct that
the said changes recommended by the Bhatt Committee will b e
incorporated in the Regulations. Subject to the above, we are of
the view that the challenge made to the levy based on the measure
of turnover has to be rejected.”
37. This Court, in the earlier round of litigation, has approved the
mechanism which was being followed by the Board in charging fees in
terms of the procedure prescribed under Schedule III based on “annual
turnover”.
38. While accepting the anomalies pointed out by the R.S. Bhatt
committee, this Court was of the view that the Board may make certain
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
corresponding changes so as to remove those anomalies pointed out by
the Committee and directed to incorporate the condi tions/
recommendations with regard to the levy based on the turnover.
39. In furtherance of the judgment of this Court in B.S.E. Brokers’
Forum, Bombay and Others (supra), the appellant came out with a
circular dated 28 th March, 2002 providing the procedure according to
which the structure for obtaining the certificate of registration has been
laid down providing the fees to be deposited by the stock broker based
on the ‘annual turnover’.
40. The grievance of the respondents was in referen ce to
paragraph (vi) of Part A to the Circular dated 28 th March, 2002 which
prescribed the fees payable by composite corporate me mbers. It only
clarifies that every stock broker who wants to obtain certificate of
registration from SEBI irrespective of the number of registration cards
which are held by the stock broker under stock exchange or stock
exchanges, will be required to pay the fees, for each and every certificate
of registration which he holds. That appears to be the primary cause of
grievance which was assailed by the respondents through the association
by filing of a writ petition before the High Court of Delhi and after
examining the scheme of regulations and the circular of which reference
has been made dated 28th March, 2002, and taking note of the judgment
of this Court, while repelling the contentions advanced by the respondents,
the learned Single Judge of the High Court upheld the Circula r dated
28th March, 2002.
41. The Division Bench of the High Court was primarily persuaded
with the expression ‘a certificate’ as referred to under Section 12(1) of
the Act, 1992 and arrived at a conclusion that the expression ‘a certificate’
signifies a single certificate of registration irrespective of the fact that a
stock broker is a member of various stock exchanges and the rul es/
regulations which are being framed either by the Central Government or
the Board in exercise of power under Sections 29 and 30 of the A ct,
1992 have to be in conformity with the mandate of the Act, 1992 a nd
that will prevail over the subordinate legislation. Proceeding on the said
premise, the Division Bench of the High Court arrived at the conclusion
that only initial registration with SEBI is required for a stock broker even
if he is a member of multiple stock exchanges and accordingly directed
the appellant to refund the fee which had been deposited by each of the
stock broker for multiple registrations.
933
42. The High Court, in our view, appears to be influenced by the
expression ‘a certificate of registration’ referred to under Section 12(1)
of the Act, 1992 but has failed to notice that the expression ‘a certificate’
is not in reference to any number and it can be considered th at the
words in the singular shall include plural as well, and has failed to notice
that certificate of registration has to be obtained from the Board in
accordance with the regulations framed in exercise of power under
Section 30 of the Act 1992. In this context, the very sche me of rules
framed by the Central Government in exercise of power under Section
29 and regulations framed by the Board under Section 30 of the Act ,
1992 has been completely misplaced which indeed has a statutory force.
Although the scheme may be in the nature of subordinate legislation, the
same has superior force and supplements a mechanism/ procedure
according to which the member (stock broker) of the stock ex change
has to obtain certificate of registration from the Boa rd and issuance of
certificate of registration from SEBI remain co-terminus with the stock
exchange to which the stock broker is a member and that be ing the
reason, Reg. 10 read with Schedule III lays down the procedure according
to which the fees has to be paid/deposited by the stock broker in obtaining
certificate of registration from SEBI in reference to the stock exchange
and for its renewal at a later stage for keeping its registration in force.
43. When the law has to be applied in a given case, it is for the
Court to ascertain the facts and then interpret the law to apply o n such
facts. Interpretation, indeed, cannot be in a vacuum or in relation to
hypothetical facts. It is always the function of the legislature to say what
shall be the law and it is only the Court to say what the law is and this
Court applied the principle of purposive construction while interpreting
the law to apply to such facts. A statute has to be construed according to
the intent that makes it and it is always the duty of the Court to act upon
the true intention of the legislature. If a statutory pro vision is open to
more than one interpretation, it is always desirable of the Court to choose
the interpretation which represents the true intention of the legislature.
It is also well-settled that to arrive at the intention of the legislation, it is
always depending on the objects for which the enactment is made, the
Court can resort to historical, contextual and purposive interpre tation
leaving textual interpretation aside. Thus, while interpreting the statutory
provisions, the Court is always supposed to keep in mind the object or
purpose for which the statute has been enacted.
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
44. Barak in his exhaustive work on “Purposive Construction”
explains various meanings attributed to the term “purpose”. It would be
in the fitness of discussion to refer to “Purposive Construction” in Barak’s
words:
“Hart and Sachs also appear to treat ‘purpose’ as a subje ctive
concept. I say ‘appear’ because, although Hart and Sachs cla im
that the interpreter should imagine himself or hersel f in the
legislator’s shoes, they introduce two elements of objectivity : First,
the interpreter should assume that the legislature is composed of
reasonable people seeking to achieve reasonable goals in a
reasonable manner; and second, the interpreter should accept the
non-rebuttable presumption that members of the legislative body
sought to fulfil their constitutional duties in good faith . This
formulation allows the interpreter to inquire not into the subjective
intent of the author, but rather the intent the author would have
had, had he or she acted reasonably.”
(Aharon Barak, Purposive Interpretation in Law , (2007) at p.
87.)
45. Francis Bennion in his book Statutory Interpretation
described “purposive interpretation” as under:
“A purposive construction of an enactment is one which gives
effect to the legislative purpose by—
(a) following the literal meaning of the enactment where that
meaning is in accordance with the legislative purpose, or
(b) applying a strained meaning where the literal meaning is not in
accordance with the legislative purpose.”
46. In Chief Justice of Andhra Pradesh and Others v. L.V.A.
Dixitulu and Others3, a Constitution Bench of this Court observed as
under:
“66. The primary principle of interpretation is that a constitutional
or statutory provision should be construed ‘according to the intent
of they that made it’ (Coke). Normally, such intent is gat hered
from the language of the provision. If the language or the
3 (1979) 2 SCC 34
935
phraseology employed by the legislation is precise and plain and
thus by itself proclaims the legislative intent in unequivocal terms,
the same must be given effect to, regardless of the consequences
that may follow. But if the words used in the provision are imprecise,
protean or evocative or can reasonably bear meanings more than
one, the rule of strict grammatical construction ceases t o be a
sure guide to reach at the real legislative intent. In such a case, in
order to ascertain the true meaning of the terms and phr ases
employed, it is legitimate for the court to go beyond the arid literal
confines of the provision and to call in aid other well-recognised
rules of construction, such as its legislative history, the basic
scheme and framework of the statute as a whole, each portion
throwing light on the rest, the purpose of the legislation, the object
sought to be achieved, and the consequences that may flow from
the adoption of one in preference to the other poss ible
interpretation.”
47. Thus, in our considered view, the conjoint reading of the
expression “a certificate” as referred to in Section 12(1) of the Act read
with the scheme of Rules, 1992 and Regulations 1992, leads t o an
inevitable conclusion that the stock broker not only has to o btain a
certificate of registration from SEBI for each of the stoc k exchange
where he operates, at the same time, has to pay ad valorem fee prescribed
in terms of Part III annexed to Regulation 10 of the Regulations, 1992 in
reference to each certificate of registration from SEBI in terms of the
computation prescribed under Circular dated 28 th March, 2002 and fee
is to be paid as a guiding principle by the stock broker w hich is in
conformity with the scheme of Regulations 1992.
48. So far as the emphasis which was made to the expression
‘date of initial registration’ as referred to in Schedule II I(I)(1)(c) is
concerned, it is in relation to a certificate of registration which has been
obtained by the stock broker from SEBI, which in turn is in relation to
the stock exchange of which he is a member. After the expi ry of five
financial years from the date of initial registration, in reference to the
stock exchange, the fee has to be deposited for the purpose of sixth
financial year to keep his registration in force.
49. Insofar as the procedure of charging fees as prescribed under
Schedule III annexed to Regulation 10 of the Regulations, 1992 is
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]
concerned, it has already been examined by this Cour t, in B.S.E.
Brokers’ Forum, Bombay and Others (supra) and needs no further
deliberation of this Court.
50. During the course of arguments, and for our own clarification,
we put a query to the learned counsel for the appellant that in consequence
of refusal to grant certificate of registration to a stock broker in relation
to one stock exchange, whether this disqualification will give adverse
impact on registrations granted to the stock broker in other stock
exchanges for the reason that the certificate of registration was granted
based on membership of different stock exchanges, it has been contended
by the appellant that certificate of registration was g ranted based on
membership of different stock exchanges, and the applicant was to be
admitted as member of different stock exchanges as per their own bye-
laws, rules and regulations. However, in the case where stock broker is
declared defaulter or disqualified to continue as a st ock broker in
reference to one of the stock exchanges, in terms of SEBI Circular
SEBI/MIRSD/Master Cir-04/2010 dated 17 th March, 2010, it has been
notified that such stock exchange shall immediately inform all other stock
exchange(s) the details of the defaulter member such as n ame of the
member, the names of the proprietors/partners/ promoter s/dominant
shareholders, as applicable. This may be a mechanism according to which
if the stock broker who is a member of the stock exchange comm its
default, or on being disqualified to continue as a member, consequential
actions could be taken against him pursuant to the circular to which a
reference has been made. However, this is not a question to be examined
by this Court in the instant proceedings.
51. Consequently, the appeal deserves to succeed an d is
accordingly allowed and the judgment and order passed by the Division
Bench of the High Court is hereby quashed and set aside. No co sts.
52. Pending application(s), if any, shall stand disposed of.
CIVIL APPEAL NO.5076 OF 2007
CIVIL APPEAL NO.3003 OF 2011
53. In view of the judgment passed by this Court in Civil Appeal
No.435 of 2007, the appeals are allowed and the judgment and order
937
passed by the Division Bench of the High Court impugned is hereby set
aside. No costs.
54. Pending application(s), if any, shall stand disposed of.
Bibhuti Bhushan Bose Appeals allowed.
(Assisted by : Neha Sharma, LCRA)
SECURITIES AND EXCHANGE BOARD OF INDIA v. NATIONAL
STOCK EXCHANGE MEMBERS ASSOCIATION [AJAY RASTOGI, J.]