1991 ALLMR ONLINE 408
M.L. PENDSE AND A.V. SAVANT, JJ.
INDER CHAND JAIN Vs. INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA, BOMBAY
W. P. No. 1926 of 1991
25th June, 1991
Petitioner Counsel: Ashok Desai, S. A. Diwan, Malvi Ranchhoddas and Co.
Respondent Counsel: Virendra V. Tulzapurkar, S. C. Dharmadhikari, Kanga and Co.
Headnote not Available
Shri Tulzapurkar waives service on behalf of the respondents.
Petition is taken up immediately for hearing in view of urgency of the matter.
1. The Institute of Chartered Accountants of India is a body incorporated under section 3 of the Chartered Accountants Act, 1949, and has been formed with the object of regulating the profession of Chartered Accountants. Respo-ndent No. 2 is the Secretary of the Association. Section 9 of the Act provides for constitution of the Council of the Institute and prescribes that the affairs of the Institute shall be managed by the Council. The Council comprises of not more than 24 persons elected by members of the Institute from amongst the fellows of the Institute and six persons nominated by the Central Government. Sub-section (1) of section 10 provides that elections shall be conducted in the prescribed manner. Section 30 of the Act confers power upon the Council to make regulations for the purpose of carrying out the objects of the Act and in exercise of these powers the Council has framed regulations known as 'The Chartered Accountants Regulations, 1988'. Chapter VI of these Regulations deals with the subject of "Elections". Regulation 82 provides that the Council shall decide and notify in the Gazette of India at least three months before the date of election, the dates fixed for various stages of election of members to the Council. The various stages of election are the last date and time forreceipt of nominations, scrutiny of nomination, withdrawal, polling etc. Regula-tion 87(1) provides that at least 3 months from the date of election, the Council shall publish in the Gazette of India a notice stating the number of members to be elected and calling for nominations of candidates for election by a specified date. Sub-Regulation (2) of Regulation 87 reads as under :-
"(2) the nomination of a candidate shall be -
(i) in the appropriate form duly signed by the candidate and by the proposer and the seconder both of whom shall be persons entitled to vote in the election in the relevant regional constituency; and
(ii) forwarded by registered post to the Secretary by name so as to reach him not later than 5 P.M. on the specified date :
Provided that a nomination delivered against an acknowledgment before the aforesaid time and date shall be deemed to have been so forwarded and so having reached if the Secretary is satisfied that the nomination has been duly forwarded by registered post at least 48 hours before the aforesaid time and date."
2. In accordance with provisions of Regulation 87(1) Notification dated April 10, 1991 was published in the Gazette of India on April 27, 1991 inviting nominations of candidates for election to eight seats of Members of Council. The nominations were to be forwarded to the Secretary so as to reach him not later than 5 p.m. on May 20, 1991. Subsequently, the date was extended to May 21, 1991 and therefore nominations were required to be forwarded before 5.00 P.M. on May 21, 1991. The petitioner, who is resident of Bombay, forwarded his nomination papers duly signed by the petitioner and his proposer and the seconder by registered post acknowledgment due to respondent No. 2 on May 17, 1991. The petitioner forwarded two more nominations on May 18, 1991 by registered post acknowledgment due. The petitioner also gave intimation of forwarding the nomination through a courier and that intimation was received by respondent No. 2 on May 21, 1991. The nomination sent by the petitioner by registered post A. D. reached the Secretary only on May 23, 1991. It is required to be stated at this juncture that due to unfortunate assassination of the former Prime Minister late in the evening on May 21, 1991, the Government of India declared May 22,1991 as a public holiday and therefore the nomination forwarded by the petitioner reached respondent No. 2 only on May 23, 1991. By letter dated June 3, 1991, a copy of which is annexed as Exhibit 'E' to the petition, respondent No. 2 informed the petitioner that as the nomination was received after the closing time and date fixed for receipt of nomination, the requirement of Regulation 87 had not been complied with and consequently the nomination is not entertained. The denial to entertain the nomination has given rise to filing of this petition under Article 226 of the Constitution of India.
3. Shri Tulzapurkar, learned counsel appearing on behalf of the respo-ndents, raised preliminary objection to the maintainability of the petition on the ground that there is an alternate efficacious remedy available to the petitioner and therefore the petition under Article 226 of the Constitution of India should not be entertained. Shri Tulzapurkar submitted that sub-section (2) of section 10 of the Chartered Accountants Act, 1949 provides that where any dispute arises regarding any election, the matter shall be referred by the Council to a Tribunal appointed by the Central Government and the decision of the Tribunal shall be final. The sub-section also provides that no reference shall be made except on an application made to the Council by an aggrieved party within thirty days from the date of the declaration of the result of election. It was urged by the learned counsel that as a specific machinery has been set up by provisions of sub-section (2) of section 10 of the Act for dealing with the election disputes, the Court should not entertain the dispute raised by the petitioner in regard to rejection of nomination. We are unable to accede to the submission for more than one reason. In the first instance it must be borne in mind that the dispute raised is in respect of election to a body of professionals and the strict rules applied in respect of holding of election under the Representation of People's Act or other statutory authority should not be applied. Secondly, rejection of the nomination of the petitioner is entirely in violation of Proviso to sub-regulation (2) of Regulation 87 and refusal to entertain the grievance at this juncture would lead to multiplicity of litigation. The voters' constituency is spread all over the country and unless the wrong is corrected at this juncture the correction subsequently would not give any relief to the petitioner. The elections are held for the professional body after every three years. Thirdly, sub-section (2) of section 10 does not create a permanent forum for deciding the election disputes. An aggrieved party is required to move the Council and thereupon the Council has to move the Central Government for appointment of a Tribunal. The modus provided for appointment of a Tribunal is time consuming and the alternate remedy suggested by Shri Tulzapurkar is certainly not efficacious. It also cannot be overlooked that sub-section (3) of section 10 provides that the expenses of the Tribunal are to be borne by the Council. We do not see any reason why the Council should be saddled with the expenses of election dispute by constitution of a Tribunal when the dispute is of such a nature for which there is hardly any answer. Shri Tulzapurkar relied upon decision of a Single Judge of the Madras High Court delivered on June 12, 1991 in Writ Petition No. 8046 of 1991. The learned Single Judge was considering the grievance of a candidate whose nomination was rejected on identical ground. The learned Judge declined to entertain the petition holding that the petitioner had an efficacious remedy by filing election petition after declaration of the result. The learned Judge heavily drew upon the decision recorded by the Supreme Court under the Representation of People's Act and also under the Panchayats Act. We are afraid we cannot share the view of the learned Single Judge because in our judgment for the reasons recorded hereinabove it would be inappropriate to drive the petitioner to file an election petition when the grievance can be resolved at this juncture and that would save the undue expenses which the Council is required to incur for holding of election and which election is bound to be set aside subsequently. Shri Desai, learned counsel for the petitioner, invited our attention to an unreported decision of the Division Bench of this Court in Writ Petition No. 1542 of 1982. The Division Bench of this Court, while examining the objection raised to the maintainability of the petition by reference to section 10(2) of the Act, observed that though the High Court should be slow to interfere in election dispute in exercise of powers under Article 226 of the Constitution of India, still it is advisable to exercise such powers to cure patent errors in the rejection of nomination papers, if the same can be done without upsetting the scheduled election programme. We are in respectful agreement with the view taken by the Division Bench and consequently the preliminary objection raised by Shri Tulzapurkar is overruled.
4. Shri Desai, learned counsel appearing on behalf of the petitioner, relied upon proviso to sub-regulation (2) of Regulation 87 and submitted that as it is not in dispute that the petitioner had forwarded by registered post the nomination paper 48 hours before May 21, 1991, the mere fact that the nomination was received after 5.00 P.M. on May 21, 1991 is not enough for respondent No. 2 to decline to entertain the nomination. In our judgment the submission is correct and deserves acceptance. The perusal of sub-regulation (2) of Regulation 87 makes it clear that the nomination is required to be forwarded by registered post to the Secretary so as to reach before a specified date and specified time. The plain reading of the sub-regulation makes it clear that the only mode prescribed by the regulation is to tender the nomination by registered post. The rigour of the rule that the nomination must reach before the specified date and specified time is relieved by insertion of proviso. The proviso enables acceptance of nomination if the Secretary is satisfied that the nomination has been duly forwarded by registered post at least 48 hours before the specified date or time. The proviso is inserted in the regulation with a healthy approach that a candidate who had forwarded his nomination by registered post should not be deprived of an opportunity to contest the election merely because the nomination was not tendered to the Secretary before specified date by the postal authorities. By sub-regulation (2) of Regulation 87 the Council created the postal authority as agent and the proviso prescribes that delivery of nomination against the acknowledgment to the agent 48 hours before the expiry of the specified date and the time is enough compliance with the requirement of sub-regulation (2)(ii) of Regulation 87. In the present case the petitioner had admittedly delivered the nomination against the acknowledgment on May 17, 1991 and May 18, 1991 to the postal authorities in Bombay and that is a sufficient compliance with the requirement of the proviso to sub-regulation (2) of Regulation 87. In our judgment, rejection of the nomination on the ground of non-compliance with Regulation 87 in these circumstances cannot be sustained.
5. Shri Tulzapurkar submitted that the requirement of sub-regulation (2) of Regulation 87 that the nomination must be forwarded before the specified date and time must be read as mandatory and the nomination must reach the Secretary before the specified date and time. It was contended that it is not suffice that the nomination should be merely forwarded before the specified date and time, but it must also reach respondent No. 2. The learned counsel urged that the only mode of forwarding or tendering the nomination to the Secretary is by the registered post and there was no other mode available to the candidate for tendering the nomination paper. Shri Tulzapurkar submits that the proviso was inserted only to enable the candidate to tender the nomination in person to the Secretary, but such tender is permissible provided a copy of the nomination is forwarded by registered post within 48 hours of the cut-off time for acceptance of nomination. We are unable to find any substance in this submission. The learned counsel is reading something in the proviso which is not there. Shri Tulzapurkar tried to draw support to the submission by reference to the Minutes of meeting of the Council and urged that the intention to enact Regulation 87 was to permit tender of nomination in person. The submission has no merit, because the statutory provisions, like Regulation 87 cannot be read by reference to what transpired in the meeting of the Council. The rights of the parties flow from the plain reading of the statutory provisions and such rights cannot be curtailed or defeated by resort to what was discussed in the meeting of the Council. The contention that proviso enables the nomination to be tendered personally and the copy to be forwarded by registered post is not correct. There cannot be any valid nomination if only a copy is to be forwarded and we are unable to appreciate what is the merit in forwarding a copy of the nomination when the original itself is tendered to the Secretary. In our judgment, what the proviso contemplates is that the original nomination should be delivered against an acknowledgment to an agent, in the present case the postal authorities, within 48 hours prior to the specified time and the date and in such cases, even if the nomination is received by the Secretary subsequent to the specified date and time, still the nomination shall be deemed to have been forwarded within the stipulated period. In our judgment, on the facts and circumstances of the present case, which are not in dispute, the petitioner had complied with the requirements of Regulation 87 in its entirety and the action of the Secretary in declining to entertain the nomination is totally incorrect and contrary to Regulation 87. It is therefore necessary to quash the decision communicated by letter dated June 3, 1991 and direct the respondents to entertain the nomination filed by the petitioner and then process it in accordance with the Regulations.
6. Accordingly, rule is made absolute in terms of prayers (a) and (b). The election schedule was published by Notification dated March 19, 1991 and the date of scrutiny of nomination was fixed as May 30, 1991 and the last date for withdrawal of nomination as June 14, 1991. As the petitioner has succeeded and it is necessary for the respondents to forward the nomination of the petitioner to the Panel constituted under the Regulations for scrutiny, the election schedule will have to be recast. The respondents shall do so and then proceed with the election. It is made clear that respondent No. 2 is required to examine the nominations which are received prior to the date of forwarding the nominations to the Panel for scrutiny to determine whether such nominations, though received after the stipulated date and time were valid in accordance with the proviso of sub-regulation (2) of Regulation 87. In case any nomination paper is received by respondent No. 2 after the date of forwarding nominations to the Panel, then even though the nomination may be valid in accordance with the proviso, the same can be ignored.
There will be no order as to costs.
Shri Tulzapurkar orally applies for stay of the order. Prayer refused.