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PETITIONER:

INSTITUTE OF CHARTERED ACCOUNTANTS OFINDIA AND ANOTHER

Vs.

RESPONDENT:

INDER CHAND JAIN

DATE OF JUDGMENT10/09/1991

BENCH:

KANIA, M.H.

BENCH:

KANIA, M.H.

KASLIWAL, N.M. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1991 SCR (3) 921 1992 SCC Supl. (1) 433

JT 1991 (4) 39 1991 SCALE (2)598

ACT:

Chartered Accountants Act, 1949--Section 30---Char-

tered Accountants Regulations--Regulation 87(2)--."So as to

reach him, not later than 5.00 P.M. on the specified

date"--Construction of

Chartered Accountants Act, 1949---Section

30--Chartered Accountants Regulations--Regulations 82,

87---Nominations for election to the Council of the Insti-

tute of Chartered Accountants of India sent by registered

post on 17.5. 1991 and 18.5. 1991 received by the Secretary

on 23.5. 1991 and 27.5. 1991, respectively and not by the

specified time and date, (5.00 P.M. on 21.5.1991)--Liable to

be rejected.

HEADNOTE:

The Respondent forwarded his nominations for election to

the Council of the appellant No. 1--Institute by registered

post to the Secretary, Appellant No. 1, on May 17, 1991, and

May 18, 1991. They were received on May 23, 1991, and May

27, 1991 respectively and were rejected on the ground that

they were received after the time and date fixed for the

reciept of the nominations, i.e., 5.00 p.m. on May 21, 1991.

Being aggrieved, the respondent filed a writ petition in

the High Court seeking a writ of certiorari to quash the

order rejecting his nominations.

The Division Bench of the High Court allowed the writ

petition holding that once the Secretary was satisfied that

a nomination had been duly forwarded by the registered post

to him at least 48 hours before the specified date and time,

it must be deemed to have been received within the time

provided.

The Institute and its Secretary flied the SLP in this

Court contending that under Regulation 87(2),the nominations

must be forwarded by registered post and must reach the

Secretary of' the Council not later

922

than 5.00 p.m. on the specified date, i.e., May 21, 1991;

that the proviso came into play only when a nomination was

delivered to the Secretary against an acknowledgement before

the specified time and specified date and the Secretary was

satisfied that a valid nomination had been duly forwarded by

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registered post to him at least 48 hours before the speci-

fied date and time; and that the High Court had erred in

disregarding the opening part of the proviso which read

"Provided that a nomination delivered against an acknowl-

edgement before the aforesaid time and date..."

The respondent contended that what was intended to be

prescribed by the use of expression, "so as to reach him not

later than 5.00 p.m. on the specified date" in clause (ii)

of sub-regulation (2) of Regulation 87, was that the nomina-

tions which had been forwarded by registered post to the

Secretary 48 hours before the specified time and date of the

election must be deemed to have reached the Secretary in

time.

Allowing the appeal, this Court,

HELD: 1. The entire scheme of sub-regulation (2) of

Regulation 87 and the proviso shows that one of the main

pre-conditions required before a nomination can be said to

have been duly received, is that a valid nomination must be

received by the Secretary before the specified time and

date. [926C]

2. It is true that the rule, in terms, requires that the

nominations should be sent by registered post, but taking

into account the fact that such a nomination might not be

received by the Secretary even though posted more than 48

hours before the specified time and date, it was provided

that if the nomination was delivered by hand to the Secre-

tary before the specified time and date against acknowledge-

ment, that nomination would be treated as having been valid-

ly received provided the Secretary was satisfied that the

nomination was forwarded by registered post to him by the

candidate 48 hours prior to the specified time and date.

[926D-E]

3. What is meant by the use of the expression, "so as to

reach him not later than 5.00 p.m. on the specified date" in

sub-regulation (2) of Regulation 87, is that the nomination

must be forwarded by registered post to the Secretary so as

to reach him in fact or actually reach him not later than

5.00 p.m. on the specified date. The rigour of the rule is

relaxed by the proviso under which if a proper nomination

was

923

delivered against an acknowledgement before the specified

time and date, it would be deemed to have been forwarded and

to have reached within the time prescribed provided the

Secretary was satisfied that the nomination had been duly

forwarded by the registered post at least 48 hours before

the specified time and date. [926G-927A]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3573 of

1991.

From the Judgment and Order dated 25.6.1991 of the

Bombay High Court in W.P. No. 1926 of 1991.

G. Ramaswamy, Attorney General, K.K. Jain, G. Banerjee,

Pramod Dayal and Ajay K. Jain for the Appellants.

S.V. Mehta, A.K. Sanghi, Manjul Bajpai and S. Grover for

the Respondent.

Gopal Subramanium, Manjul Bajpai and S. Grover for the

Intervenor.

The Judgment of the Court was delivered by

KANIA, J. Leave granted. Counsel heard.

This appeal is being disposed of, by consent, at the

stage of granting of special leave in view of the urgency.

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Appellant No. 1 is the Institute of Chartered Accountants of

India, a body incorporated under the Chartered Accountants

Act, 1949, (hereinafter referred to as "the Act"). Appellant

No. 2 is the Secretary of Appellant No.1, Institute. Appel-

lant No. 1 was formed with the object of regulating the

profession of the Chartered Accountants. Section 9 of the

Act provides for the constitution of the Council of Appel-

lant No.1, Institute, and prescribes that the affairs of the

said Institute shall be managed by the said Council which

comprises not more than 24 persons elected by the fellows of

the Institute and 6 persons nominated by the Central Govern-

ment. Sub-section (1) of Section 10 of the Act provides that

the election of the said Council shall be conducted in the

prescribed manner. Section 30 of the Act confers powers upon

the Council to make regulations for the purpose of carrying

out the objects of the Act. In exercise of the said powers,

the Council framed regulations known as "the Chartered

Accountants Regulations" (hereinafter referred to as "the

Regulations"). Chapter VI of the said Regulations

924

deals with the topic of "Elections". Regulation 82 provides

that the Council shall notify in the Gazette of India, at

least three months before the 'date of an election, the

dates fixed for various stages of election of the members of

the Council, like receipt of nominations. scrutiny of nomi-

nations, withdrawal of nominations, polling dates and so on.

Regulation 87(1) provides that the Council shall publish in

the Gazette of India a notice, setting out the number of

members to be elected and calling for nominations of candi-

dates for election by a specified date, at least three

months prior to the date of election. Sub-regulation (2) of

Regulation 87 which is the regulation coming up for con-

struction before us reads as follows:

(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 acknowledgement before the afore-

said 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 fowarded by registered post at least

48 hours before the aforesaid time and date."

Sub-regulation (3)of Regulation 87 provides inter alia

for the contents of the nominations. We are not concerned

with the rest of the regulations for the purpose of this

appeal.

The final time for the receipt of the nominations ,was

fixed as 5.00 p.m. on 20th May, 1991, and it was extended to

5.00 p.m. on 21st May, 1991.

The respondent forwarded his nominations by registered

post to the Secretary on May 17, 1991, and May 18, 1991,

respectively. The nominations, however, did not reach the

Secretary by 5.00 p.m. on May 21, 1991, being the final time

and date prescribed for the receipt of the nominations.

Actually, they were received by the Secretary of

925

the Council by registered post on May 23, 1991, and May 27,

1991, respectively. These nominations were rejected on the

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ground that they were received after the time fixed for the

receipt of the nominations and the name of the respondent

was not included in the list of the candidates who had filed

their nominations for election to the Council. Being ag-

grieved, the respondent filed a writ petition in the Bombay

High Court seeking a writ of certiorari to quash the order

rejecting his nominations. The Division Bench of the Bombay

High Court, which decided the writ petition, took the view

that a plato reading of subregulation (2) of Regulation' 87

made it clear that the Only mode prescribed by the Regula-

tions is to tender the nomination by registered post and the

rigour of the rule that the nominations must reach before

the specified date and specified time, Was relieved by the

insertion of the proviso. It was held by the Division Bench

that once the Secretary was satisfied that a nomination had

been duly fowarded by registered post to him at least 48

hours before the specified date and time, it must be deemed

to have been received within the time provided. On the basis

of this conclusion the High Court made the rule absolute. It

is the correctness of this decision which is sought to be

challenged before us.

It was submitted by learned 'Attorney General who ap-

peared on behalf of the appellants that under sub-regulation

(2) of Regulation 87, the general rule is that the nomina-

tions must be forwarded by registered post and must reach

the Secretary of the Council not later than 5.00 p.m. on the

specified date, the specified date in this case being May

21, 1991. It was further urged by him that the proviso

which, to a certain extent, relaxed this rule came into play

only where a nomination was delivered to the Secretary

against an acknowledgement before the specified time and

specified date and the Secretary was satisfied that a valid

nomination had been duly fowarded by registered post to him

at least 48 hours before the specified date and time. It was

contended by learned Attorney General that the learned

Judges of the Bombay High Court had erred in disregarding

the opening part of the proviso which read "provided that a

nomination delivered against an acknowledgement before the

aforesaid time and date......... "

In our view, there is a considerable force in the sub-

mission of learned Attorney General. It is trite to say that

in construing any regulation or rule it would not be proper

to ignore any part of it except in special circumstances.

Moreover, accepting the construction placed by the Bombay

High Court on the said proviso would lead to a startling

result; for examle, a nomination might have to be treated as

926

received within the specified the and.date-even-though it

might never have reached the Secretary at all or might reach

the Secretary after the date of the election, merely because

the Secretary is satisfied that the nomination had been duly

forwarded to him by registered post at least 48 hours before

the specified time and date. 1 is not unknown that the

letters sent by registered post are occasionally received

after a long delay of several weeks and on some occasions

they do not reach at all. If the construction placed on the

said proviso in the impugned judgment were accepted, in such

a case as aforestated the entire election would have to be

set aside leading to great confusion and hardship. This

consequence must necessarily follow if the view taken by the

Bombay High Court were to be accepted in our opinion,the

entire scheme of sub-regulation (2) and the proviso shows

that one of the main pre-conditions required before a nomi-

nation can be said to have been duly received, is that a

valid nomination must be received by the Secretary before

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the specified time and date.

It is true that the rule, in terms, requires that the

nominations should be sent by registered post, but taking

into account the fact that such a nomination might not be

received by the Secretary even though posted more than 48

hours before the specified time and date, it was provided

that if the nomination was delivered, let us say, by hand to

the Secretary before the specified time and date against

acknowledgement, that nomination would be treated as having

been validly received provided the Secretary was satisfied

that the nomination was forwarded by registered post to him

by the candidate 48 hours prior to the specified time and

date. It was contended on behalf of the respondent that in

the light of the proviso to sub-regulation (2) of Regulation

87 what was intended to be prescribed by the use of the

expression so as to reach him not later than 5.00 p.m. on

the specified date in clause (ii) of sub-regulation (2) of

Regulation 87, was that the nominations which had been

forwarded by registered post to the Secretary 48 hours

before the specified time and date of the election must be

deemed to have reached the Secretary in time. In our view,

this contention is fallacious. What is meant by the use of

the aforesaid expression in sub-regulation (2) of Regulation

87 is that the nomination must be forwarded by registered

post to the.Secretary so as to reach him in fact or actually

reach him not later than 5.00 p.m. on the specified date.

The rigour of the rule is relaxed by the proviso under which

if the nomination was delivered against an acknowledgement

before the specified time and date, it would be deemed to

have been forwarded and to have reached as provided in

clause (ii) of sub-regulation (2) referred to earlier pro-

vided the Secretary was satisfied that the nomi-

927

nation had been duly forwarded by registered post at least

48 hours before the aforesaid time and date.

In view of the reasoning set out earlier, we set aside

the judgment and order passed by the Bombay High Court and

we hold that the nomination of the respondent was liable to

be rejected on the ground that it was not received in time,

as the respondent had failed to deliver to the Secretary

against an acknowledgment a nomination before the specified

time and date. However, we find that, in the present case,

the elections have already been postponed and the proposed

dates for elections will now to be probably fixed in October

or November, 1991. In these circumstances, we direct that

all the nominations received upto the end of August 1991

must be treated as received in time provided that the Secre-

tary is satisfied that they were forwarded by registered

post 48 hours before the time and date specified earlier.

The Council may fix the elections on any date they consider

proper. The appeal is allowed to the extent aforesaid.

Looking to the facts and circumstances of the case,

there will be no order as to costs.

We may suggest that if the Council so thinks, the regu-

lations may be suitably amended so as to leave no room for

ambiguity, a difficult task indeed.

V.P.R. Appeal

allowed.

928