The Institute of Chartered Accountants of India vs P. Baskaran

K.A. Swami, C.J.—At the stage of admission, the Respondent has put in appearance. As the appeal lies in a narrow compass, it is admitted

and heard for final disposal.

This appeal is preferred against the order dated 14.11.1994 passed by the learned single Judge in W.P. 18362 of 1994.

The Petitioner sought for quashing the order dated 28.09.1994 bearing number 54/EL(1)/17/RC/S.94 passed by the 1st Respondent and the

consequential communication bearing reference number 54-EL(1)/17/RC/S/94 issued by the Secretary of the 1st Respondent By the first order

dated 28.09.1994, the nomination paper filed by the Respondent from the Southern Regional Council to the Institute of Chartered Accountants of

India was rejected.

3.1 The notification bearing 54/EL(1)/17/RC/S.94 was issued by the secretary of the 1st Appellant for holding the election to the Council of the

Institute of Chartered Accountants of India. According to the said notification which was issued on 20th Jury, 1994, the last date for receipt of

nomination was 16.09.1994 till 5 p.m. the date of scrutiny of nominations was between 23rd and 26th September, 1994, the last date for

withdrawal of nominations was 08.10.1994 till 5.00 p.m. the date of polling for Bombay, Madras, Bangalore, Calcutta and Delhi/New Delhi is

03.12.1994 and for other Cities/Towns it is 02.12.1994, the last date for receipt of applications for permission to vote by post under the regulation

was 30.09.1994, the last date for receipt of ballot papers by post is 05.12.1994 till 5.00 p.m. and the date of declaration of the result is

16.12.1994. Though the nomination of the Respondent/Petitioner in the writ petition was rejected as long back as 24.09.1994 and the order

rejecting the nomination was communicated to him on 03.10.1994, he chose to invoke the jurisdiction of this Court only on 28.10.1994. Learned

single Judge has allowed the writ petition, quashed the order rejecting the nomination paper and directed the Appellants who are Respondents in

the writ petition to include the name of the Petitioner after holding that the nomination paper filed by the Petitioner is valid and to carry on the

election as scheduled in accordance with the Act and Regulations.

It is contended before us that a writ petition could not have been entertained, when the election process had already begun and there is an

alternative remedy, provided under Sub-regulation (9) of Regulation 134 of the Chartered Accountants Regulations, 1988 (hereinafter referred to

as the Regulations), that it is not at all possible to comply with the direction issued by the learned single judge without postponing the election and

as the election is at the final stage, it would not be possible to postpone the election.

On the contrary, it is contended by Learned Counsel for the Respondent who is the Petitioner in the writ petition that the alternative remedy

provided under Sub-regulation (9) of Regulation 134 is not at all effective and efficatious as the dispute has to be settled by the President of the

Institute of Chartered Accountants of India and that the Petitioner is not guilty of laches in-as-much as be immediately on receipt of the

communication addressed a letter on 04.10.1994 to the Secretary of the Institute of Chartered Accountants of India and a reply was received by

him to the effect that the letter of the Petitioner would be examined and further communication will follow in due course, that thereafter by the

communication dated 18th October, 1994, the Secretary of the Institute has informed that the request of the Petitioner in view of the decision of

the Panel in the light of the requirements of the Regulations cannot be acceded to. Therefore, it is submitted that the Petitioner is not guilty of

laches. It is also contended that the nomination paper has been rejected on a flimsy ground and therefore, it is a fit case for interference, at the

initial stage to avoid setting aside of the election in a petition challenging the election.

Having regard to these contentions, the following points arise for considerations:

i) In the light of the provisions contained in Sub-regulation (9) of Regulation 134, whether it would be appropriate to interfere with the election

process, which has commenced long prior to the filing of the writ petition?

ii) Whether the Petitioner can be considered to be guilty of laches?

Point (i)

Sub-regulation (9) of Regulation 134 reads thus:

Where any dispute arises regarding any election to a Regional Council, the matter shall be referred within thirty days from the date of declaration of

the result of the election, to the President and his decision shall be final.

Thus, it is clear from the aforesaid Regulation that any dispute arising as to any election to the Regional Council shall be referred within 30 days

from the date of the declaration of the result of the election. The President of the Institute will decide the same and his decision is final The principle

that once the election process commences, normally the Court should refrain from interfering with the election process and allow the election

process to be completed, is well settled even in the case of an election held under various State enactments.

In Nanhoo Mal and Others Vs. Hira Mal and Others, , the Supreme Court was called upon to decide regarding the election to the Office of

President of the Municipal Board. In a petition under Article 226 of the Constitution, the High Court had interfered with the election and allowed

the writ petition. The same was challenged before the Supreme Court. It was held thus:

Thus the only way by which the election of a President can be called in question is by means of an election petition presented in accordance with

the provisions of this Act The election itself can be questioned only on one of the three grounds mentioned above. The only ground in the present

case on the basis of which the election of the Appellant was questioned is that mere was a non-compliance with the provisions of Rule 6, already

referred to. Under the Act, the non-compliance with any role or order made under the Act or any provision of the Act does not lipse facts result in

the election being set aside. That result can be set aside only if the Election Tribunal comes to the conclusion that the result of the election has been

materially affected by such non-compliance. The jurisdiction to decide the validity of the election of a President is an exclusive one conferred on the

District Judge In the circumstances there was no room for the High Court exercising its powers under Article 226 in order to set aside the election.

In setting aside the election the High Court plainly erred because it did not consider whether the result of the election had been materially affected

by non-compliance with the rule in question, many case that is a matter within the exclusive jurisdiction of the District Judge. ...It follows that the

right to vote or stand for election to the office of the President of the Municipal Board is a creature of the statute, that is, the U.P. Municipalities

Act and it must be subject to the limitations imposed by it Therefore, the election to the office of the President could be challenged only according

to the procedure prescribed by that Act and that is by means of an election petition presented in accordance with the provisions of the Act and in

no other way. The Act provides only for one remedy, that remedy being an election petition to be presented after the election is over and there is

no remedy provided at any intermediate stage. These conclusions follow from the decision of this Court in N.P. Ponnuswami Vs. Returning

Officer, Namakkal Constituency and Others, in its application to the facts of this case.

But the conclusions above stated were arrived at without taking the provisions of Article 329 into account. The Provisions of Article 329 are

relevant only to the extent that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal

effect above set forth of the provision of law which we are concerned with is taken into account there is no room for the High Courts to interfere in

exercise of their powers under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts

could exercise their power under Article 226 in relation to elections, it is not now necessary to consider. All the considerations applied in coming to

the conclusion that elections to the legislatures should not be delayed or protracted by the interference of courts at any intermediate stage before

the results of the election are ever, apply with equal force to elections to local bodies.

Again, in Gujarat University Vs. N.U. Rajguru and Others, which related to the case of election to one of the bodies to the University, it was

specifically held,

where a statute provides for election to an office, or an authority or institution and further provides a machinery or forum for determination of

dispute arising out of election, ordinarily the aggrieved person should pursue his remedy before the forum provided by the statute. The right to vote,

contest or dispute election is neither a fundamental nor common law right, instead it is a stating right regulated by the statutory provisions. It is not

permissible to invoke the jurisdiction of the High Court under Article 226 by passing the machinery designated by the Act for determination of the

election dispute.

However, there is an observation made to the effect that there may be cases where exceptional or extraordinary circumstances may exist to justify

by passing the alternative remedies. Learned Counsel appearing for the Respondent has laid great stress on this observation and contended that the

case on hand is the one which falls within the aforesaid observation, therefore the jurisdiction under Article 226 can be exercised. It is not possible

to accept this contention. There is nothing special about this case. Just as any other Chartered Accountant, the Petitioner/Respondent has filed his

nomination paper and it has been rejected. The fact that according to the Petitioner, the ground of rejection is not tenable, does not make the case

as an extraordinary one.

Again, in S.T. Muthusami Vs. K. Natarajan and Others, , the same principle is reiterated. This case related is an election is the Office of

Chairman, Panchayat Union, Madathukkulam, Udamalpet Taluk, Coimbatore District It was held thus:

It is thus seen that in the above decision (which was rendered by the Full Court) this Court first laid down as a matter of General principle that

interference with an election process between the commencement of such process and the stage of declaration of result by a court would not

ordinarily be proper and next laid down that Article 329(b) of the Constitution had the effect of taking away the jurisdiction under Article 226 of

the Constitution also in respect of the disputes arising out of election during the said period.

Following the above decision in N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, in Nanhoo Mal and Others Vs.

Hira Mal and Others, the court held that the right to vote or stand for election to the office of the President of a Municipal Board is a creature of

the statute, that is the U.P. Municipalities Act and it must be subject to the limitations imposed by it Accordingly this Court held that the election to

the office of the president of the Municipal Board could be challenged only according to the procedure prescribed by that Act and that is by means

of an election petition presented in accordance with the provisions of that Act and in no other way. The Court further held that the said Act

provided only for one remedy, that remedy being an election petition to be presented after the election was over and there was no remedy

provided at any intermediate state. Referring to the decision in N.P. Ponnuswami''s case (supra) this Court observed in the above decision at page

814 (at SCR) : at pp. 2143-44 of AIR thus:

Thus conclusions follow from the decision of this Court in Ponnuswami''s case (supra) in its application to the facts of this case. But the conclusions

above stated were arrived at without taking the provisions of Article 329 into account The provisions of Article 329 are relevant only to the extent

that even the remedy under Article 226 of the Constitution is barred as a result of the provisions. But once the legal effect above set forth of the

provision of law which we are concerned with is taken into account, there is no room for the High Courts to interfere in exercise of their powers

under Article 226 of the Constitution. Whether there can be any extraordinary circumstances in which the High Courts could exercise their power

under Article 226 of the Constitution in relation to elections it is not now necessary to consider. All the considerations applied in coming to the

conclusion that elections to the legislatures should not be delayed or protracted by the interference of Courts at any intermediate stage before the

results of the election are ever, apply with equal force to elections to local bodies.

In the light of the rule laid down by the Supreme Court in the various decisions referred to above, we find it difficult to agree with the view

expressed by the High Court of Karnataka in D.L. Suresh Babu v. Institute of Chartered Accountants of India and Ors. AIR 1983 Kar 43. The

principle is well settled and it has been reiterated again and again by the Supreme Court That being so, we are of the view that as there is an

alternative remedy provided, there is no justification to interfere with the election process.... It is open to the Petitioner/Respondent to invoke the

remedy available under sub-regulation (9) of Regulation 134 of the Regulations. Point (i) is answered accordingly.

POINT (ii):

In the matters relating to election, every day is important, The party approaching the Court seeking relief to interefere with the election process

should be vigilant, should approach the Court without any loss of time. In the instant case, the Petitioner was communicated with the order of

rejection on 3/10/1994. According to him, he corresponded with the Secretary of the Institute and in that process, time was spent and the letter

was also considered by the Secretary. Therefore, he cannot be held to be guilty of laches. It is relevant to notice that the Petitioner is not an

ordinary layman. He is a Chartered Accountant He is expected to know the provisions of the Act and the Regulations which govern his profession.

There is no provision either in the Act or in the Regulation which is pointed out to us that the course adopted by the Petitioner was permissible. The

Secretary to the Institute could not have done anything in the matter, as he could not have reviewed the nomination paper and accepted the same.

For the purpose of scrutiny of nomination papers, the Council appoints a Panel, consisting of 3 persons, of whom one shall be the Secretary and

the other two shall be persons nominated by the Council from among the members of the Council. That being so, the Secretary of the Council

though being one of the members of the Panel, cannot be considered to be the Panel and further there is no provision in the Regulations to review

the order passed rejecting or accepting the nomination papers. Therefore, the fact that the Petitioner spent time with the Secretary of the Council

from 4th October, 1994 to 18th October, 1994 cannot be considered as the one spent according to law so as to hold that there is no delay

caused by the Petitioner in approaching this Court. It may also be relevant to point out that it is this delay that has resulted in making it impossible

to carry out the direction of the Court As per Regulation 113, at least 21 days before the last date and time notified for receipt of ballot papers by

post, the Secretary shall send by registered post to the voters permitted to vote by post the ballot paper, together with a letter explaining the

manner in which the vote shall be recorded there on and specifying the date and hour by which it shall reach the Secretary, provided that in the

case of voters residing outside India, the ballot papers shall be sent by registered post at least thirty days before the last date and time notified for

receipt of ballot papers by post We have already pointed out that the last date for receipt of ballot papers by post is 5.12.1994 and also that the

date of poll in some places is on 2.12.1994 and in some places it is on 3.12.1994. If the name of the Petitioner is to be included in the ballot

papers and printed afresh as on today or even on the date the writ petition was filed, it was not at all possible to comply with the statutory

requirements without issuing the fresh calendar of events or at any rate without postponing the date of poll, which also would not have been

possible, because many of the voters might return the ballot papers casting their votes as soon as they receive them. In fact, it is submitted on

behalf of the Appellants that several ballot papers have already been received. That being the position, we are of the view that the reasoning of the

single Judge that the polling is to take place for the election on 2nd and 3rd December, 1994, therefore neither the process will be interrupted, nor

the election can be postponed, cannot be accepted as correct. Accordingly, point (ii) is answered in the affirmative and it is held that the Petitioner

is guilty of laches. We have not expressed our views on the merits of the contention relating to rejection of nomination paper, as we have taken the

view that having regard to an alternative remedy, the election process should not be interfered with. Therefore all these contentions are left open.

For the reasons stated above, the writ appeal is allowed. The order dated 14.11.1994 passed in W.P. 18362 of 1994 is set aside. The writ

petition is dismissed. However, there will be no order as to costs. The C.M.P. is disposed of accordingly.