Case Law Details
CA Sandeep Kanoi, CS PC Agrawal
Bombay High Court in scheme of amalgamation between Wadala Commodities Limited with Godrej Industries Limited has stated that gazetted copy of many MCA rules are not available, hence in the opinion of the court they are not binding so far or at least from 1st April 2014.
The order says: “..till such time as these rules are gazette, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazette can be said to be in force.”
In Para 23 of the Order Court held as follows :-
23. A final word about the manner in which these rules and sections are purportedly being brought into force. The website of the Ministry of Corporate Affairs3 has, on its front page, a link to a single scanned PDF file entitled “COMPANIES ACT 2013 – STATEMENT OF NOTIFICATION OF RULES”. Some 21 rules are listed. They are all said to be effective 1st April 2014. Several of these are not yet gazetted; at least I have not been able to find any gazette. I do not see how any such rules can be made effective on this basis where a ministry simply puts up some scanned document under the signature of one of its officers but sans any publication in the official gazette. That publication is not an idle formality. It has a well-established legal purpose. That purpose is not and cannot be achieved in this ad-hoc manner. Therefore, till such time as these rules are gazetted, or there is some provision made for the dispensation of official gazette notification, none of the rules in the Ministry of Corporate Affairs PDF document that are not yet gazetted can be said to be in force.
Author Bio
There is a concept of ‘back-date’ which is very popular with this Ministry i.e MCA. The Rules which are available through Gazette Notification are also applicable from 01.04.2014 although they have been published at a latter date. MCA will do the same thing with respect of other Rules and the said Rules will also be applicable from 01.04.2014. With the concept of ‘Back-Date’, MCA will validate the Rules, which are available in the Statement of Notification at MCA portal. The said statement is not a legal paper having no legal relevance. The Rules will be applicable from 01.04.2014 but will be published at later date. Same act MCA has already done with respect to Rules which are already available…STRANGE BUT REALITY…!!!