Sri Pulicherla Ganesh V. Union of India

WP/22321/2020

AI Insights

The case involves Sri Pulicherla Ganesh, who challenged the disqualification imposed on him as a director and the deactivation of his DIN by the Registrar of Companies, Telangana. The disqualification was based on alleged defaults in filing financial statements and annual returns for three consecutive years, as per Section 164(2)(a) of the Companies Act, 2013. The petitioner argued that the action was arbitrary, illegal, and violated principles of natural justice, as it was applied retrospectively. The court examined the legislative intent and relevant circulars, concluding that the disqualification and DIN deactivation were improperly applied retrospectively and set aside the orders against the petitioner.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 677375 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 18-07-2019
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax (Central)-1 New Delhi v. Vatika Township Private Limited, Yashodhara Shroff vs. Union of India, Gaurang Balvantlal Shah s/o Balvantlal Shah vs. Union of India, Bhagavan Das Dhananjaya Das vs. Union of India
• Laws Referred To: Companies Act, 2013, Companies (Appointment of Directors) Rules, 2014, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: NAMAVARAPU RAO
• Assessee Lawyers: ANGOTHU NEHRU
• Keywords: Deactivation; Director Identification Number; Disqualification; Natural Justice; Writ of Mandamus
• Section: 151; 164(2); 226; 248; 252

Judgement Text

"HIGH COURT FOR THE STATE OF TELANGANA (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF DECEN/BER TWO THOUSAND AND TWENTY Between: Sri Pulicherla Ganesh, S/o. Pulicherla Satyanarayana Reddy, Aged about 41 years. R/o. 61-66/1/CEO/13, Ramky CEO Enclave, Villa No.'13, Anjaiah Nagar, Eieside Rolling Hills, Gachibowli, K.V Ranga Reddy, Tela nagana-500032. ,..PETITIONER AND 1 Union of India, Represented by its Ministry of Corporate Affairs, Shastri Bhawan, Dr. Rajender Prasad Road, New Delhi - 1 '1 0001 The Registrar of Companies, Telangana 2nd Floor. Corporate Bhawan, Thattiannaram, G.S.l Post, Bandlaguda, Nagole, Hyderabad - 500068 ...RESPONDENTS Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to pass an order or direction or any other proceedings one in the nature of Writ of Mandamus declaring the action of respondents in deactivating the petitioner Director ldentification Number 01487819 and restricting the petitioners from filing statutory returns. i.e., the annual returns and financial statements of the Companies in which they are Direptors as arbitrary, illegal, without jurisdiction, contrary of the provisions of the Companies Act, 2013 and Rule 11 of the Companies (Appointment or Directors) Rules, 2014, violative of the principles of natural justice besides violating the petitioners' rights guaranteed under Article 14 and Article 19 (1) (g) of the Constitution of lndia. Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the 1st Respondent to restore the petitioner Director ldentification Number (DlN) 01487819 so as to enable him to submit pending annual returns and financial slatements for the Company in which he is appointed as director. Counsel for the Petitioner: SRI ANGOTHU NEHRU Counsel for the Respondents: SRI NAMAVARAPU RAJESHWAR RAO, ASSISTANT SOLICITOR GENERAL The Court made the following: ORDER 2 PRESENT THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM WRIT PETITION No. 22321 OF 2020 lA NO: 1 OF 2020 THE HON'BLE SRI JUSTICE CHALLA KODANDA RAM WRIT PETITION No. 22321 of 2O2O ORDER: The petitioner challenges his disqualification lrom Directorship under Section 164(2) of the Companies Act, 20 13, for the alleged default in filing financial statement/ Annual Returns, and consequentl5,' seek restoration of his Director Identification Number (DIN) viz., O 1487819. Learned counsei ibr rhc petitioner subrnits that the issue ririscd in thr: prcserrt Writ [)r'tition is srlutrrcl-r' covt:red b1' thc common ordur ciated 18.07.2L1 19 in W.P.No..i-l 22 of 20 18 and batch Learned Assistant Solicitor General appearing for the 2\"d respondent - Registrar of Companies does not dispute the aforesaid submission. \"For the foregoing reasons, the impugned orders in the writ petitions to the extent of disqualifying the petitioners under Section 16a(2)(a) of the Act and deactivation of their DINs, are set aside, and the 2\"d respondent is directed to activate the DINS of the petitioners, enabling them to function as Directors other than in strike off companies. It is made clear that this order will not preclude the 2\"d respondent from taking appropriate action in accordance with law for violations as envisaged under Section 16412) of the Act, giving the said prowision prospective effect from OL.O4.2OL4 and for necessary action against DIN in case of violations of Rule 1l of the Rules. It is also made clear that if the petitioners are aggrieved by the action of the respondents in striking off their cornpanies under Section 248 of the Act, they are at Operative portion of the aforesaid order reads as under: i liberty to avail alternative remedy under Section 252 of the Act. All the writ petitions are accordingly allowed to the extent indicated above.\" In view ol the said Order dated 18.07.2019 and for the reasons recorded therein, this Writ Petition is also allowed in terms thereof. No costs. Miscellaneous Petitions, if any pending, shall stand closed. SD/. V.SUDHA ASSISTANT REGISTRAR V- SECTION OFFICER To, ,TRUE COPY// 1. The lVinistry of Corporate Affairs, Union of lndia, Shastri Bhawan, Dr. Rajender Prasad Road, New Delhi - 1 10001 2. The Registrar of Companies, Telangana 2nd Floor, Corporate Bhawan, Thattiannaram, G.S.l. Post, Bandlaguda, Nagole, Hyderabad - 500068 3. One CC to Sri. Angothu Nehru, Advocate [OPUC] 4, One CC to Sri. Namavarapu Rajeshwar Rao, Assistant Solicitor General [OPUC] (along with a copyof Orderdated: 1810712019 in WP. No. 5422of 2018 and batch) 5. Two CD Copies ',q-7 HIGH COURT DATED:0811212020 ORDER WP.No.22321 ol 2020 Allowing the WP. without costs. 15 Dtc 2$20 1iiE SrArA, q 5 o o ? 6) J) -a,=: * .r( , -.^.,r( (#,\"a I rr-r r''-.-- '-- THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY W.P.NOs.5422, 12184, 13520, 137a3, 13a55. 14166. 24051, 30993, AND 40953 0F 2018. 5547. 558 , 5669, 5687, 5785, 6047. 60A7. 6t40, 64A4, 6753, 6a5A. 695a, 69AL, 700L. 7008,70L4,7046,7069, 11 3 81 9468 9563 9584 2 9726. 9737. 1005a 10099, 11208, 11223, rL23 89, 20 8 12036 L2040 L2069 1210 t2 o L2262 12288 t2 42 t2350. t24L7. L2432. 12472. 1249A. 12506, t2574, t2598. 1262t, t2702. 12735, L2740, L284s. 12850, 12865. 12866. 13013. 13618. 14409,14582 AND 14597 0F 20L9 COMMON ORDER Since, the issue involved in all the writ petitions is one and the same, they are heard together and are being disposed of by this common order. 2. The petitioners are the directors of the private companies, registered under the Companies Act, 2013 (18 of 2013) (for short 'the Act'). Some of the such companies are active, and some of them have been struck off from the register of companies under Section 248(1)( c ) of the Act, for not carrying on any business operation for the specified period mentioned in the said provision, and for not making any application within the specified period, for obtaining the status of a dormant company under Section 455 of the Act. 3. The petitioners, who were directors of the struck off companies, and who are presently directors of active companies, during the relevant period in question, failed to file financial statements or annual returns for a continuous perlod of three years. Therefore, the 2nd respondent passed the impugned order under Section 764(2) ot the Act, disqualifying them as directors, and further making them ineliglble to be re-appointed as directors of that company, or any other company, for a period of five years from the date on which the respective companies failed to do so. The Director Identification Numbers (DINs) of the petitioners were also deactivated. Aggrieved by the same, the present writ petitions have been filed. 7073. 7LOs, 7432, 7454, 7572. 7595. 7732. 776s,776A, 7A24.797A, t3730. 13749, 13779, L37aa. L3439. L3Ass, t3A7A. t39L2. L3917. 13945. L41OL. 14L74, L4207. t4350, t436t, 14390, t4392, L4397. II 4. This court granted interim orders in the writ petitions directing the 2nd respondent to activate DINs of the petitioners, to enable them to function other than in strike off companies, 5. Heard the learned counsel appearing for the petitioners in all the writ petitions, Sri K.Lakshman, learned Assistant Solicitor General appearing for the respondents - Union of lndia. 6. Learned counsel for the petitioners, contend that before passing the impugned order, notices have not been issued, giving them opportunity, and this amounts to vlolation of principles of natural justice, and on this ground alone, the impugned orders are liable to be set aside. 7. Learned counsel submits that Section 164(2)(a) of the Act empowers the authority to disqualify a person to be a director, provided he has not filed financial statements or annual returns of the company to which he is director, for any continuous period of three financial years. Learned counsel further submits that this provision came into force with effect from 1.4.2014, and prior thereto i.e., under Section 274(1)(9) of the Companies Act, 1956 (1 of 1956), which is the analogous provision, there was no such requirement for the directors of the private companies. They contend that this provision under Act 18 of 2013, will have prospective operation and hence, if the directors of company fail to comply with the requirements mentioned in the said provision subsequent to the said date, the authority under the Act, is within its jurisdiction to disqualify them. But in the present cases, the 2nd respondent, taking the perlod prior to 7.4.2014, i.e., giving the provision retrospective effect, disqualified the petitioners as directors, which is illegal and a rb itra ry. 8. With regard to deactivation of DINs, learned counsel for the petitioners submit that the DINs, as contemplated under Rule 2(d) of the Companies (Appointment and Qualification of Directors), Rules, 2074 (for I : short'the Rules), are granted for life time to the applicants under Rule 10(6) of the said Rules, and cancellation of the DIN can be made only for the grounds mentioned in clauses (a) to (f) under Rule 11 of the Rules, and the said grounds does not provide for deactivation for having become ineligible for appointment as Directors of the company under Section 164 of the Act. Learned counsel further submits that as against the deactivation, no appeal is provlded under the Rules, and appeal to the Tribunal under Section 252 of the Act is provided only against the dissolution of the company under Section 248 of the Act. 9. Learned counsel further submits that 1st respondent - Government of India represented by the Ministry of Corporate Affairs, has floated a scheme dated 29.t2.20t7 viz., Condonation of Delay Scheme - 2018, wherein the directors, whose DINs have been deactivated by the 2\"d respondent, allows the DINs of the Directors to be activated. However, such scheme is not applicable to the companies which are struck off under Section 2a8(5) of the Act. In case of active companies, they can make applicatlon to National Company Law Tribunal under Section 252 oF the Act, seeking for restoration, and the Tribunal can order for reactivation of DIN of such directors, whose DIN are deactivated. However, under Section 252 only the companies, which are carrying on the business, can approach the Tribunal and the companies, which have no business, cannot approach the Tribunal for restoration. They submit that since the penal provision is given retrospective operation, de hors the above scheme, they are entitled to invoke the jurisdiction of this court under Article 226 of the Constitution of India. 10. With the above contentions, learned counsel sought to set aside the impugned orders and to allow the writ petitions. 11. On the other hand learned Assistant Solicitor General submits that failure to file financial statements or annual returns for any continuous period 4 of three financial years, automatically entail their disqualification under Section 164(2)(a) of the Act and the statute does not provide for issuance of any notice. Hence, the petitioners, who have failed to comply with the statutory requirement under Section 164 of the Act, cannot complain of violation of principles of natural justice, as it is a deeming provision. Learned counsel further submits that the petitioners have alternative remedy of appeal under Section 252 of the Act, and hence writ petitions may not be entertained. 12. To consider the contention of the learned Assistant Solicitor General with regard to alternative remedy of appeal under Section 252 of the Act, the said provision is required to be considered, and the same is extracted as under for better appreciation: 252. Appeal to Tribu na I (1) Any person aggrieved by an order of the Registrar, notifying a company as dissolved under Section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removai of the name of the company from the register of compan es is not justified in view of the absence of any of the grounds on which the order was passed by the Registrar, lt may order restoration of the name of the company in the register of com pa n ies; Provided that trefore passlng an order under this sect on, the TrLbunal sha I g ve a reasonable opportunity of making representat ons and of being heard to the Registrar, the company and all the persons concerned: Provided further that if the Registrar is satisfied, that the name of the company has been struck off from the register of compan es either rnadvertently or on basis of incorrect rnformation furnrshed by the company or its directors, which requires restoration rn the register of companies, he may within a period of three years from the date of passing of the order d ssolving the company under Section 248, file an application before the Tflbunai seeking restoration of name of such com pa ny. (2) A copy of the order passed by the Tribunal shall be filed by the company with the Registrar within thirty days from the date of the order and on receipt of the order, the Registrar shall cause the name of the company to be restored in the register of companies and shall issue a fresh certificate of incorporation. (3) If a company, or any member or creditor oT workeT thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal or an application made by the company, member, creditor or workman before the expiry of twenty years from the publication ln the Official Gazette of the notice under sub-section (5) of Section 248, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company has not been struck off from the register of companies. -5 A reading oF above provision goes to show that if the company is dissolved under Section 248 of the Act, any person aggrieved by the same, can file an appeal. Thus the said provision provides the forum for redressal against the dissolution and striking off the company from the register of companies. It does not deal with the disqualification of the directors, and deactivation of their DINs. In the present case, the petitioners are only aggrieved by their disqualification as directors and deactivation of DINs, but not about striking off companies as such. Hence, Section 252 of the Act, cannot be an alternative remedy for seeking that relief, and the contention of the learned Assistant Solicitor General, in thls regard, merits for rejection. 13. Under Section 16a(2)(a) of the Act, if the Director of a company fails to file financial statements or annual returns for any continuous period of three financial years/ he shall not be eligible to be re-appointed as a director of that company or appointed in other company for a period of five years from the date on which the said company fails to do so. The said provision under the Act 18 of 2013, came into force with effect from Ol.O4.2Ol4, and the petitioners are disqualified as directors under the said provision. At this stage, the issue that arises for consideration is - whether the disqualification envisaged under Section 16a(2)(a) of the Act, which provision came into force with effect from 01,.O4.2014, can be made applicable with prospective effect, or has to be given retrospective operation? In other words, the issue would be, from which financial year, the default envisaged under Section 164(2)(a) of the Act, has to be calculated, to hold the director of the company Iiable? In this regard, the learned counsel brought to the notice of this Court, the General Circular No.08/14 dated 4.4.2Of4 issued by the Ministry of Corporation affairs, which clarifies the applicability of the relevant financial years. The relevant portion of the said circu la r is as under: \"A number of provisions of the Companies Act, 2013 including those relating to maintenance of books of account, preparation, adoption and filing of financial statements (and documents required to be attached thereto), Auditors reports and the Board of Directors report (Board's report) have been brought into force with 6 effect from 1st Aprii, 2014. Provisions of Schedule II (useful lives to compute depreciation) and Schedule III (format of financial statements) have also been brought into force from that date. The relevant Rules pertaining to these provisions have also been notified, placed on the website of the Ministry and have come into force from the same date. The Ministry has received requests for clarification with regard to the relevant financial years with effect from which such provrsrons of the new Act relating to maintenance of books of account, preparation, adoption and filing of financral statements (and attachments thereto), auditors report and Board's report will be a pplica ble. Although the posrtion in this behalf is quite clear, to make things absolutely clear it is hereby notiFied that the frnancial statements (and documents required to be attached thereto), auditors report and Board's report in respect of financial years that commenced earlier than 1st April shall be governed by the relevant provisions/schedules/rules of the Companies Act, 1956 and that in respect of financial years commencing on or after 1st April, 2014, the provisions of the new Act shall apply. \" A reading of the above circular makes it clear the financial statements and the documents required to be attached thereto, auditors report and Board's report in respect of financial years that commenced earlier than 07.04.2074, shall be governed by the provisions under the Companies Act, 1956 and in respect of financial years commencing on or after 01.04.2074, the provisions of the new Act shall apply. 14. At this stage it is required to be noticed that the analogous provision to Section 164(2)(a) of the Act 18 of 2013, is Section 274(L)(g) of Act 1 of 1956. The said provision under Act 1 of 1956 is extracted as under for ready reference: Section 274(1) A person shall not be capable of bernq appointed director of a company, if - (g) such person is already a director of a public company which, - (A) has not filed the annual accounts and annual returns for any continuous three financial years commencing on and after the first day of April, 1999; or (B) Provided that such person shall not be eligible to be appointed as a director of any other public company for a period of five years from the date on which such public company, in which he is a director, failed to file annual accounts and annual returns under sub-clause (A) or has failed to repay its deposits or interest or redeem its debentures on due date or pay dividend referred to in clause (B). A reading of the above provision under Act 1 of 1956, makes it clear that if a person capable of being appointed director of a company and such person is already a director of a public company, which has not filed annual accounts and annual returns for any continuous three financial years commencing on re 1 /, and after the first day of April 1999, shall not be eligible to be appointed as a director of any other public company for a period of five years from the date on which such public company, in which he is a director, failed to file annual accounts and annual returns. So the statutory requirement of filing annual accounts and annual returns, is placed on the directors of a 'public company'. There is no provision under the Act 1of 1956, which places similar obligations on the directors of a 'private company'. Therefore, non- filing of annual accounts and annual returns by the directors of the private company/ will not disqualify them as directors under the provislons of Act 1 of 1956. 15. Under Section 764(2) of the new legislation i.e., Act 18 of 2013, no such distinction between a 'private company' or a 'public company' is made and as per the said provision goes to show that no person who is or has been a director of a 'company', fails to file financial statements or annual returns for any continuous period of three financial years, will not be eligible for appointment as a director of a company. As already noted above, the said provision, came into force with effect from 07.O4.20L4. 16. Coming to the facts on hand, the 2nd respondent has disqualified the petitioners under Section 16a(2)(a) of the Act 18 of 2013, for not filing financial statements or annual returns, for period prior to 01.04.2014. The action of the 2\"d respondent runs contrary to the circular issued by the It4inistry of the Corporate Affairs, and he has given the provisions of Act 18 of 2013, retrospective effect, which is impermissible. 17. The Apex Court in COMMISSIONER OF INCOME TAX (CENTRAL)-L NEW DELHI V. VATIKA TOWNSHIP PRIVATE LIMITEDL has dealt with the general principles concerning retrospectivity. The relevant portion of the judgment is thus: 27. A legislation, be it a statutory Act or a statutory Rule or a statutory Notification, may physically consists of words printed on papers. However, '(:ots)t scc r conceptually it is a qreat deal more than an ordinary prose. There iS a special peculrarty rn the mode of verbal communrcation by a legislation. A legislation is not Just a Series of staternents, such as one finds in a work of fiction/non fiction or even in a ludgment of a court of law. There is a technique required to draft a legrslation as weli as to understar)d a legtslation. Former technique iS known aS legislative draftrng and latter one is to be found in the various princjples of ,lnterpretation of Statutes'. Vis-a-vrs ordinary prose, a le9 slation differs in its provenance, lay-out and features as also in the implication as to its meaning that arises by presumptions as to the intent of the maker thereof. 28, Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in the law of today and in Force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bed rock that every human beinq is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in phillips vs. Eyre [(1870) LR 6 QB 1], a retrospective legistation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to dear with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 29. The obvious basis of the principle against retrospectivity is the principle of 'fairness', which must be the basis of every legal rule as was observed in the decision reported in L'Office Cherifien des phosphates v. yamashita-shinnihon Steamship Co. Ltd. [{1994) 1 Ac 486]. Thus, legistations which modrfied accrued rights or which impose obligations or impose new duties or attach a new disabrlity have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omtssron in a former legislation or to explain a former legislation. Wi need not note that cornucopia of case lavv avatlable on the sublect because aforesaid legal position cleariy emerges from the various decislons and ihis legat position was conceded by the counsei for the parties. In any case, we shall refer to Few JUdgments containrng thrs dicta, a iittle later. 30. We would also like to point out, for the sake of completeness, that where a benefit is conferred by a legislation, the rule agarnst a retrospectrve construction is different. If a legislation confers a benefrt on some peTsons but without inflictino a correspondlng detnment on some other person or on the public generaliy, and whire to confer such benefit appears to have been the legislators object, then the presumptlon would be that such a legislation, giving tt a purposive construction, would warrant it to be given a retrospective effect. This exacfly is the justification to treat procedural provisions as retrospective. In Government of India & Ors. v. Indian Tobacco Association, [(2005) 7 SCC 396], the doctrine of fairness was hetd to be relevant factor to construe a statute conferrjng a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of l4aharashtra & Ors., [(2006) 6 SCC 289]. It was hetd that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are (s/c not) confronted with any such situation here. 31. In such cases, retrospectivity is attached to benefit the persons in contradistinction to the provision imposing some burden or Iiability where the presumption attached towards prospectivity. In the instant case, the proviso added to Section 113 ofthe Act is not beneficial to the assessee. On the contrary, it is a provision which is onerous to the assessee, Therefore, in a case like this, we have to proceed with the normal rule of presumption against retrospective operation. Thus, the rule against retrospective operatron is a fundamentar rure of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by out weighing factors. 43. There is yet another very interesting piece of evidence that clarifies that provision beyond any pate of doubt viz., the understanding of CBDT itself regarding this provision. it rs contained in cBDT circurar No.g of 2o-02 dated 27.g.200), witi the sublect \"Finance Act, 2OO2 - Explanatory Notes on provision relating to Direct Taxes\". Thrs circuiar has been is^sued after the passing oi the F,nunce Act, 2002, by which amendment to sectton 113 was made. In thrs:ircular, various amendments to the Income tax Act are dtscussed amply demonstrating as to which amendments are clarificatory/retrospective in operalion and which amLndments are prospective. o For examp e, Explanatron to section 158-BB is stated to be c arifrcatory in nature. Likewise, it rs mentioned that amendments in Section 145 whereby provisions of that section aTe made applicable to block assessments is rnade clarificatory and would take effect retrospectively from 1't day of luly, 1995. When it comes to amendment to Secton 113 of the Act, this very circular provides that the said amendment along with the amendments in Section 158-BE, would be prospective i.e., will take effect from 7.6.2002.\" 18. Thus, the Apex Court in the above judgment, has made it clear that unless a contrary intention appears, a legislation has to be presumed to have prospective effect. A reading of Section 164 of the Act does not show that the legislation has any Intention, to make the said provision applicable to past transactions. Further, the Apex Court in the above judgment at paragraph No.43, found that the circular issued by the authority after passing of the legislation, clarifying the position with regard to applicability of the provlsions, has to be construed as an important piece of evldence, as it would clarify the provislon beyond any pale of doubt. In the present case/ as already noted above, the lvlinistry of Corporation affairs has issued the circular No,08/2014 .daled 4.4.2O74 clarifyinq that financial statements commencing after 01.04.2014, shall be governed by Act 18 of 2013 i.e., new Act and in respect of financial years commencing earlier to 01.04.2014, shall be governed by Act 1 of 1956. At the cost of repetition, since in the present cases, as the 2\"d respondent / competent authority, has disqualified the petitioners as directors under Section 164(2)(a) of the Act 18 of 2013, by considering the period prior to 07.o4.2074, the same is contrary to the circular, and also contrary to the law laid down by Apex Court in the above referred judg ment. provision is given prospective effect, as per the circular the law laid down by the Apex Court, as stated in the first financial year would be from 01-04-2014 to 19. If the sa id dated 4.4.2014 and writ affidavits, the 31.03.2015 and the second and third years .o3.2077 . 2016 and 31 financial years would be for the The annual returns and financial years ending 31.03 statements are to be filed with Registrar of Companies only after the conclusion of the annual general meeting of the company, and as per the first l0 proviso to Section 96(1) of the Act, annual generat meeting for the year ending 31.03.2017, can be held within six months from the ctosing of financiar year i.e., by 30.o9.2oL7. Further, the time limit for filing annual returns under Section 92@) of the Act, is 60 days from annual general meeting, or the last date on which annuar generar meeting ought to have been herd with normar fee, and within 270 days with additionar fee as per the proviso to Section 403 of the Act. Learned counsel submit that if the said dates are calculated, the last date for filing the annuar returns would be 30'r7'2017, and the barance sheet was to be fired on 30.10.2017 with normar fee and with additionar fee, the rast date for firing annuar returns is 27.07.2018. In other words, the disqualjflcation could get triggered only on or after 27.O7.2018. But the period considered by the 2\"d respondent in the present writ petitions for crothing the petitioners with disqualification, pertains prior to 0L.04.2OL4. Therefore, when the omission, which is now pointed out, was not envisaged as a ground for d isq ua lification prior to 7.4.2074, the petitioners cannot be disqualified on the said ground. This analogy is traceabre to Articre 2o(1) of the constitution of India, which states that \"/vo person sha, be convicted of any offence except for vioration of a raw in force at the time of the commission of the act charged as an offence, nor be subjected to a penarty greater than that which might have been infticted under the law in force at the time of the commission of the offence,,. In view of the same, the ground on which the petitioners were disqualified, cannot stand to legal scrutiny, and the same is ljable to be set aside. 20. A learned Single Judge YASHODHARA SHROFF vs. of the High UNION OF Court of Karnataka in INDIA2 considering section rcaQ)@) of the Act and other provisions of the Act, and various judgments, passed an eraborate order and herd that the said provision has no retrospective operation. The observations of the learned Judge, pertaining to - W.P.No.529l I of20l7 and batch dated 12.06.2019 tl 'r,/Special Liivil Application No.l2.ll5 ol20l7 and batch dated lii 1l l0lE private companies, which are relevant for the present purpose, are extracted as u nder: 208, In view of the aforesaid discussion, I have arrived at the following conclusions: (a) It is held that Section 164(2)(a) of the Act is not u/tra vtrus Articte 14 of the Constitution. The said provision is not manifestly arbitrary and also does not fall within the scope of the doctrine of proportionality, Neither does the said provision violate Article 19(1)(g) of the Constitution as it is made in the interest of general public and a reasonable restriction on the exercise of the said right. The object and purpose of the said provision is to stipulate the consequence of a disqualification on account of the circumstances stated therein and the same is in order to achieve probity, accountability, and transparency in corporate goveTna nce. (b) That Article fsic) Section 164(2) of the Act applies by operation of law on the basis of the circumstances stated therein, the sard provision does not envisage any hearing, neither pre-disqualification nor post-disqualification and this is not in violation of the principles of natural justice, is not ultra yfes Article 14 of the Constitution. (c) That Section 164(2) of the Act does not have retrospective operation and is therefore, neither unreasonable nor arbitrary, in view of the interpretation placed on the same. (d) (e) Insofar as the pnvate companies are concerned, disqualification on account of the circumstances stated under Section 164(2)(a) of the Act has been brought into force for the first time under the Act and the consequences of disquallficatron could not have been imposed on directors of prlvate companies by taking into consideration any period prior to 01.04.2014 for the purpose of reckoning continuous period of three financal years under the said provision. The sald conclusron is based on the principal drawn by way ofanalogy from Artlcle 20(1) of the Constitution, as at no point of time prior to the enforcement of the Act, a disqualification based on the circumstances under Section !6a(2) of the Act was ever envisaged under the 1956 Act vis-;-vis directors of private companies. Such a disqualification could visit a director of only a public company under Section 274(l)(9) of 1956 Act and never a director of a private company. Such disqualification of the petitioners who are directors of private companies is hence q u ash ed. (f) (g) Consequently, where the disqualification under Section l6a(2) ot the Act is based on a continuous period of three financial years commencing from 01.04.2014, wherein financial statements or annual returns have not been filed by a public or private company, the directors of such a company stand disqualified and the consequences of the said disqualification would apply to them under the Act. 2L. A learned Single of the High Court of Gujarat at Ahmedabad in GAURANG BALVANTLAL SHAH S/O BALVANTLAL SHAH VS. UNION OF INDIA3 expressed similar view as that of the leaned single Judge of High Court of Karnataka (1 supra), and held that Section 164(2) of the Act of 2013, which had come into force with effect from 1.4.2074 would have prospective, and not retrospective effect and that the defaults contemplated under Section $aQ)G) with regard to non-fillng of financial statements or 12 \"r.. annual returns for any continuous period of three financial years would be the default to be counted from the financial Year 2074-!5 only and not 2013-74. 22. A learned single ludge of the High Court of Madras in BHAGAVAN DAS DHANANJAYA DAS vs. IINION OF INDIA4 also expressed similar view. The relevant portion is as under: 29. In fine, (a) When the New Act 2013 came into effect from 1.4.2014, the second respondent herein has wrongly given retrospective effect and erroneously disqualified the petitioner - directors from 1.1.2016 itself before the deadline commenced wrongly fixing the first financial year from 1.4.2073 to 31.3.2014. (b) By virtue of the new Section 164(2)(a) of the 2013 Act using the expression 'for any continuous period of three financial year\" and in the light of section 2(41) defining \"financial year\" as well as their own General circular No.08/14 dated 4.4.2074, the first financial year would be from 1.4.2074 to 31.3.2015, the second financial year would be from 1.4.2015 to 31.3.2016 and the third financial year would be from 7.4.2076 to 31.3.2017, whereas the second respondent clearly admitted in paras 1,5 and 22 of the counter affidavit that the default of filing statutory returns for the final years commences from 2073-14, 2Ol4-75 and 2015-16 i.e, one year before the Act 2013 came into force. This is the basic incurable legal infirmity that vitiates the entire impugned proceedings. ..: t 23. In view of the above facts and circumstances and the judgments referred to supra, as the impugned orders in present writ petitions disqualifying the petitioners as directors under Sectlon l6+(2)(a) of the Act, have been passed considering the period prior to 01.04.2014, the same cannot be sustalned, and are liable to be set aside to that extent, 24. As far as the contentlon regarding issuance of prior notice before disqualifying the petitioners as directors is concerned, Section 164(2)(a) is required to be noticed, and the same is extracted as under for ready refere n ce: 164, Disqualification for appointment of director: ' W.P.No.25a55 of 2017 and batch dated 2'l .O':, .2018 li (2) No person who rs or has been a director of a company which- (a) has not filed financial statements or annual returns for any continuous period of three financial years; or (b) Shall be eligible to be re-appotnted as a drrector of that company or appointed in other companies for a period of five years from the date on wh ch the said company fails to do so. A reading of the above provision makes it clear that it provides d isq ua lification on happening of an event i.e., if a person who is or has been a director of a company has not filed financial statements or annual returns for any continuous period of three financial years, shall be ineligible to be re- appointed as a director of that company or appointed in any other company for a period of five years from the date on which the said company fails to do so. The provision does not provide for issuance of any prior notice or hearing. A learned single Judge of the High Court of Karnataka in Yashodara Shroff v. Union of India (l supra), as well as the learned single Judge of the High Court of Gujarat at Ahmedabad in Gaurang Balvantlal Shah s/o Balvantlal Shah vs. Union of India (2 supra), after analyzing various provisions of the Act and Rules framed thereunder, and by relying on various judgments of the Apex Court, held that Section r6a(2)(a) of the Act applies by operation of law on the basis of the circumstances stated therein, the said provision does not envisage any hearing, neither pre-disqualification nor post-disqualification and this is not in violation of the principles of natural justice and hence, is not ultra vires Article 14 of the Constitution. I concur with the said reasoning. 25. Thus, from the above, it is clear that Section l6aQ)@) of the Act is a deeming provision and the disqualification envisaged under the said provlsion comes into force automatically by operation of law on default and Legislature did not provide for issuance of any prior notice, but the respondents notified disqualification even before it incurred, and deactivated DINs, which is illeqal arbitrary and against provisions contalned in Section 16a(2)(a) of the Act. (a) 26. The next grievance of the petitioners is with regard to deactivation of their DiNs. The contention of the learned counsel for the petitioners is that except for the grounds mentioned under Rule 11 (a) to (f) of the Rules, the DINs cannot be cancelled or deactivated, and the violation mentioned under Section rc Q)@) of the Act, is not one of the grounds mentioned under clauses (a) to (f) of Rule 11, and hence for the alleged violation under Section L6+(2)(a) of the Act, DIN cannot be cancelled. 27. Rule 10 of the Rules provide for allotment of DIN and under sub rule (6) of Rule 10, it is allotted for life time. Rule 11 provides for cancellation or deactivation. Rule 11, which is relevant for the present purpose/ is extracted as under for ready reference: the DIN is found to be duplicated in respect of the same person provided the data related to both the DIN shall be merged with the validly retained number; the DIN was obtained in a wrongful manneT oT by fraudulent means; of the death of the concerned individual; the concerned individual has been declared as a person of unsound mind by a com petent Court; if the concerned individual has been adjudicated an nsolvent; Provided that before cancellatron or deactivaton of DIN pursuant to clause (b), an opportunity of belng heard shall be grven to the concerned individual; on an application made rn Form DIR-5 by the DIN holder to surrender his or her DIN along with declaration that he has never been appointed as director in any company and the said DIN has never been used for filing of any document wrth any authority, the Central Government may deactrvate such DIN; Provlded that before deactivation of any DIN in such case, the Central Government shall verify e- records. I1 Explanation: for the purposes of clause (b) - said grounds, are dlfferent from the ground envisaged under (b) (c) (d) (e) (r) o The terms \"wrongful manner\" means if the DIN is obtained on the strength of documents which are not legally valid or incomplete documents are furnished or on suppression of material information or on the basis of wrong certification or by making misleading or false nformation or by misrepresentation; (ii) the term \"fraudulent means\" means if the DIN is obtained with an intent to deceive any other peTSon or any authority including the Central Government. 28. Clauses (a) to (f) of Rule 11, extracted above, provides for the circumstances under which the DIN can be cancelled or deactivated. The 11. Cancellation or surrender or deactivation of DIN: The Central Government or Regional Director (Northern Region), Noida or any officer authorized by the Regional Director may, upon being satisfied on verification of particulars or documentary proof attached with the application received from any person, cancel or deactivate the DIN in case - Section 16a(2)(a) of the Act. Therefore, for the alleged viotation under Section 164 of the Act, DINs cannot be cancelled or deactivated, except in accordance with Rule 11 of the Rules. 29, Learned Single Judge of the Gujarat High Court in the decision cited 2 supra, held as under: \"29. Thrs takes the Court to the next questron as to whether the respondents could have deactivated the DINS of the petitioner as a consequence of the impugned list? In this regard, it would be appropnate to refer to the relevant provisrons contained in the Act and the said Rules. Section 153(3) provrdes that no person shall be appointed as a Director of a company, unless he has been allotted the Director Identification Number under Section 154. Section 153 requires every individual intending to be appointed as Director of a Company to make an application for allotment of DIN to the Central Government in such form and manner as may be prescribed. Section 154 states that the Central Government shall within one month from the receipt of the application under Section 153 allot a DIN to an applicant in such manner as may be prescribed. Section 155 prohibits any individual, who has already been allotted a DIN under Section 154 from applying for or obtaining or possessing another DlN. Rules 9 and 10 of the said Rules of 2014 prescribe the procedure for making application for allotment and for the allotment of DIN, and further provide that the DIN allotted by the Central Government under the said Rules would be valid for the life time of the applicant and shall not be allotted to any other person. 30, Rule 11 provides for cancellation oT suTrender or deactivation of DIN. Accordingly, the Central Government or Regional Director or any authorized officer of Regional Director may, on being satisfied on verification of particulars of documentary proof attached with an application from any person, cancel or deactivate the DIN on any of the grounds mentioned in Clause (a) to (f) thereof. The said Rule 11 does not contemplate any suo motu powers either with the Central Government or with the authorized officer or Regional Director to cancel or deactivate the DIN allotted to the Director, nor any of the clauses mentioned in the said Rules contemplates cancellatron or deactivation of DIN of the Director of the \"struck off company\" or of the Director having become ineligible under Section 164 of the said Act. The reason appears to be that once an individual, who is lntending to be the Director of a partrcular company is allotted DIN by the Central Government, such DIN would be valrd for the lrfe time of the applicant and on the basis of such DIN he could become Director in other companies also. Hence, if one of the companies in which he was Director, is \"struck off\", his DIN could not be cancelled or deactrvated as that would run counter to the provisions contained ln the Rule 11, which specifically provides for the crrcumstances under which the DIN couid be cancelled or deactivated. 31. In that view of the matter, the Court is of the opinron that the action of the respondents in deactivatinq the DINs of the petitioners - Directors along with the publication of the rmpugned list of Directors of \"struck off\" companies under Section 248, also was not legally tenable. Of course, as per Rule 12 of the said Rules, the individual who has been allotted the DIN, in the event of any change in his particulars stated in Form DIR -3 has to intimate such change to the Central Government within the p.escribed time in Form DIR-6, however, if that is not done, the DIN could not be cancelled or deactivated. The cancellation or deactivation of the DIN could be resorted to by the concerned respondents only as per the provisions contained in the said Rules,\" 30. In view of the above facts and circumstances and the judgment referred to supra, the deactivation of the DINs of the petitioners for alleged violations under Sectlon 164 of the Act, cannot be sustained. l6 31. For the foregoing Teasons, the lmpugned orders in the writ petitions to the extent of disqualifylng the petitioners under Section 164(2)(a) of the Act and deactivation of their DINs, are set aside, and the 2'd respondent is directed to activate the DINs of the petitioners, enabling them to function as Directors other than in strike off companies. 32. It is made clear that this order will not preclude the 2\"d respondent from taking appropriate action in accordance with Iaw for violations as envisaged under Section 164(2) of the Act, giving the said provision prospective effect from 07.O4.2O14 and for necessary action against DIN in case of violations of Rule 11 of the Rules. 33. It is also made clear that if the petitioners are aggrieved by the action of the respondents in striking off their companies under Section 248 of the Act, they are at liberty to avail alternative remedy under Section 252 of the Act. 34. All the writ petitions are accordingly allowed to the extent in d icated a bove. 35. Interlocutory applications pending, if any, shall stand closed. No order as to costs. A.RAJASHEKER REDDY,J DATE:18-07-2019 AVS "