1. As common questions of law arise for determination in these cases, I propose to dispose of them by a common order.
2. The Chartered Accountants Act, 1949 (Central Act No. 38 of 1949) (hereinafter referred to as the Act) that came into force from 1-7-1949. regulating the profession of Chartered Accountants in the country, incorporates a body corporate called the institute of Chartered Accountants of India (hereinafter referred to as the Institute) (Vide Sec. 3 of the Act). The management of the Institute vests in a general or Central Council (hereinafter referred to as the Central Council ) consisting of 24 persons elected by the members of the Institute from the Regional Constituencies to be determined by the Central Government and 6 persons nominated thereto by the said Government (vide Section 9 of the Act).
3. In suppression of the earlier notification, the Central Government by its Notification No. S. O. 1682 dated 13th April, 1973 has constituted five Regional Constituencies as set out below under column No. 1. The number of persons to be elected from the said five constituencies is also set out against them in column No. 2.
(See table on next page)
4. section 23 of the Act enables the Central Council in respect of a constituency determined by the Central Government to advise and assist it in all matters concerning its functions. Not withstanding the same, the Central Council has constituted only 5 Regional councils for the very constituencies determined by the Central Government with representation on those councils as here under :-
(a) Western India Regional Council 16
(b) Southern India Regional Council 12
(c) Eastern India Regional council 8
(d) Central India Regional council 5
(e) Northern India Regional council 7
5. The term of Central and Regional Councils is three years and the present of the present council is due
Column No. 1 Column No. 2 Name of the Regional Constituency. Number of persons to be elected 1. The states of Gujarat & Maharashatra and the Union Territories of Goa, Daman & Diu & 8 Dadra & Nagar Haveli Southern Region 2. The states of Andhara Pradesh, Kerala, Karnataka Tamil Nadu and the Union Territories of Pondicherry 6 and the Laccadive Mimicry and Amindivi Islands. Eastern Region 3. The states of Assam, Meghayala Nagaland, Orissa, West Bengal Manipur Tripura and Sikkim and the Union territories of Arunachal Pradesh Mizoram & Nicobar Islands 4 Central Region 4. The states of Uttar Pradesh Bihar Madhya Pradesh and Rajasthan 2 Northern Region 5. The states of Harayana Himachal Pradesh Jammu & Kashmir and Punjab and the Union Territories of Delhi & Chandigarh 4 to expire some time in Sept., 1982.
6. In exercise of the powers conferred by the Act and the Chartered Accountants Regulations. 1964 (hereinafter referred to as the Regulations) to reconstitute the aforesaid Councils before the expiry of their terms, the Central Council by its Notification No. 54- El (1) /1/82, dated 11-1-1982, (Annexure - R2) issued a composite calender of events for holding elections to the Central and Regional Councils of the Institute and that Notification reads thus:
The institute of Chartered Accountants of India
( To be published in part III Section 4 of the Gazette of India dated 23rd January 1982)
No. 54 EL(1) /1/82; In pursuance of Regulation No. 60 of the Chartered Accountants Regulations, 1964, read with sub-regulation (7) of Regn. 112 of the said Regulations, the council of the institute of Chartered Accountants of India is Pleased to notify the following dates relating to the next election of the members to the council and the Regional Councils of the Institute:
(see table on next page)
7. In response to the aforesaid calendar of events, the petitioners in writ Petitions Nos. 20488 and 20743 of 1982, filed their nominations to the Central Council and Southern India Regional Council respectively before the appointed date and time. Like the petitioners many others had also filed their nominations to the said Councils. On the date of Scrutiny of the nominations papers of the petitioners and has accepted the nominations of many others. the material portions of the orders dated 8-6-1982, of the panel rejecting the nominations papers of the petitioners that are residents of Bangalore, communicated to their residential addresses read thus;
'D. L. Suresh Babu - Petitioner in W. P. 20488/1982.
On a scrutiny of the nominations, it is found that the name of the constituency from which you propose to seek election has not has not been specified correctly in any of them. There is no constituency
1. The last date for receipt of nominations 22nd May, 1962.
2. The last date for withdrawal of nominations 18th June 1982
3. The last date for permission to vote by post.
(a) Under Regulations 90 (2) where there is a
permanent change in the address of a member
from the address published in the list of voters
to another place beyond a radius of 10 miles
(16 Kms) from the polling booth or where a
member is actually residing beyond a radius
of 10 miles (16 Kms ) from the polling booth
allotted to him. 22nd June, 1982.
(b) Under Regulation 90(3) where a member expects
to be away from his permanent address on the date of election 7th June, 1982.
4. The date or dates of polling 6th and 7th Aug. 1982.
5. The date for receipt of voting papers by post 14th, Aug 1982.
6. The date for counting of votes 16th to 25th Aug., 1982.
7. The date for declaration of result. 25th Aug. 1982
'Southern' for the council the details of the constituency reproduced in the instructions issued to candidates may be referred to in this connection, I, therefore regret to inform you that the nominations have been rejected.
B. P. RAO- Petitioner in W.P. No. 20743/1982
On a scrutiny of the aforesaid nominations it is seen that the name of the Region has not been specified correctly in the any of the nominations forms. For the correct description of the region, please refer to the instructions contained in the nomination form.'
In these petitions under Article 226 of the Constitution presented on 14th and 15th June, 1982. The petitioners have challenged the aforesaid orders of the Institute.
8. The petitioner have urged that the rejection of their respective nominations by the panel was unauthorised. Alternatively they have urged that the rejection was on an extremely technical ground and was not for a defect of substantial character, on which ground only a nomination paper can be rejected.
9. In writ Petition No. 20488 of 1982 the petition had impleaded the Institute and all other persons whose nominations had been accepted to the Central Council. In Writ Petition Number 20743 of 1982 the petitioner had impleaded the Institute, its Secretary and all other persons whose nominations had been accepted to the Southern India Regional Council on the ground that they were not necessary parties and their continuance would only delay the disposal of cases.
10. But at the hearing of these cases, one Sri. H.A.K. Rao, whose nominations had been accepted to the Central Council who was originally arrayed as respondent No.12 has come on record in Writ Petition No. 20488 of 1982 at his own request. In the course of my order thereafter, I will refer to the Institute and its secretary as respondent No. 1 and H. A. K. Rao as respondent No. 2.
11. In its detailed separate but identical returns, the institute Justifying the impugned orders has maintained that no part of the cause of action has arisen within the territorial jurisdiction of this Court, for which reason, this court has no jurisdiction to entertain these petitions. Secondly, respondent No. 1 has urged that on the completion of elections it is open to the petitioners to approach the Election Tribunal for the very reliefs and these are not fit cases for intereference of this court at this stage. Respondent No. 2 has not filed any returns, but supported respondent No. 1.
12 Sriyuths K. Srinivasan and U. L Narayana Rao, learned counsel for the petitioners in Writ Petitioners Nos. 20488 and 20743 of 1982, respectively have contended that the rejection of nominations of their respective clients, was unauthorised and in any event was on an extremely technical ground but was not for a defect of a substantial character on which ground only they can be rejected and these are fit cases for interference of this court at this very stage not withstanding the remedy of an election petition available to them after the completion of elections. In support of their contention, counsel for the petitioners strongly relied on a Division Bench ruling of this court in K.M. Muddammallappa v. Election Officer and Revenue Inspector, Village Panchayat Constituency, Tlakad Hobli, (1961) 39 Mys LJ 319 and a ruling Rama Jois J., in Fakirappa Yellappa Kali v. Deputy Commissioner, Dharwad, (1979) I Kant LJ 153.
13. Sri. K.K. Jain, learned counsel for respondent No.1 in justifying the impugned orders relying on a large number of rulings, urged that this Court has no territorial jurisdiction to entertain these petitions and adjudicate them and these are not fit cases for interference at this stage. Sri. K.R.D. Karanth learned counsel for respondent No.2, adopted the arguments of Sri. Jain and supplemented them.
14. As the contention urged by the respondents touching on the jurisdiction of this Court to entertain these petitions, goes to the very root of the matter, it is necessary to examine the same first.
15. The Institute incorporated under the Act and the Central Council formed to manage the same that have jurisdiction over the entire country, have their office at Delhi and the impugned orders made at Delhi have been communicated to the petitioners that are residents of Bangalore and have been received by them at Bangalore is admitted by both sides.
16. Sub-Article (1) of Article 226 of the Constitution, that empowers a High Court to issue writs, directions or orders to any Government, authority or person situated within its own territorial jurisdiction, has no application to the cases. But the renumbered sub-Article (2) of the same Article inserted by the Constitution (Fifteenth Amendment) Act, 1963, also empowers a High Court to issue orders or writs to any Government authority or person even if the seat of that Government authority or person is outside its own territorial jurisdiction, provided its own territorial jurisdiction, provided the cause of action wholly or in part has arisen within the territory over which it has jurisdiction.
17. The expression 'cause of action' has not been defined in the Constitution. The same expression occurs in Clause (c) of Section 20 of the Civil P.C. Though the said expression has not been defined in the Civil P.C., the meaning to be given to the said expression is well settled by judicial pronouncements in the country. 'Cause of action' means a bundle of essential facts, which it is necessary for the party seeking relief to prove if transverse by the opposite arty, in order to secure the relief prayed for. Therefore, if the petitioner is able to show that atleast one of such essential facts required to be proved to secure an order in his favour has arisen within the territory of this Court, this Court will have jurisdiction to entertain the writ petition (vide para 8 in Dr. P.S. Rao v. Union Government, (1972) 2 Mys LJ 302 : (AIR 1974 Mys 39).
18. When the petitioners, who are residents of Bangalore, sent their nomination papers by Registered post as required by the Regulations to Delhi and the Institute despatched its orders to Bangalore, a part of the cause of action, if not whole, without any doubt has arisen within the territorial jurisdiction of this court. If that is so that court has jurisdiction to entertain these petitions, notwithstanding the Institute and the Panel have their offices at Delhi. For these reasons, there is no merit in the objection to the jurisdiction of this Court raised by the learned counsel for the respondent and I reject the same.
19. On the completion of elections, the petitioners can challenge their rejection of nominations in an election petition before a Tribunal constituted under the Act and the Tribunal can grant the very reliefs sought and such other reliefs that are appropriate is not and cannot be disputed. On this premise Sri Jain has urged that an intermediate challenge upsetting the process of election for which all arrangements have been made, that too in the absence of all persons whose nominations have been accepted as parties to these proceedings is not a proper exercise of jurisdiction under Article 226 of the Constitution. In support of his contention Sri Jain relied on a large number of rulings of the Supreme Court commencing from the very first case of N.P. Ponnuswami v. Returning officer : 1SCR218 to the latest case in A.K.M. Hassan Uzzaman v. Union of India : (1982)2SCC218 , and several other High Courts of the country, the very last one being a Division Bench ruling of the High Courts of Gujarat in Ravjibhai Bikhabhai Patel v. Chief Officer, Bilimora Nagar Palika; Bilimora : AIR1982Guj163 the full text of which is to follow in this months A.I.R. Journal, (AIR July 1982 Guj pp. 177-183-Ed.)
20. In Muddamallappa's case (1961) 39 Mys Lj 319), that being one of the earliest cases, a Divisional Bench of this court speaking through Somnath Iyer, J. (as he then was) examining the power of a High Court to interfere with rejection of a nomination paper under the Mysore Village Panchayats and Local Boards Act, 1959 and the Rules before the completion of elections in the light of the principles enunciated by the Supreme Court in Ponnuswami's case : 1SCR218 observed thus :
'The principle that there should be no interruption of an election while it is in progress and that no attack should be made on the validity of any proceeding relating to such election until its completion is, as I understand it, a sound principle of election law which, ordinarily justifies the refusal of the exercise of such jurisdiction. But, to say that is not the same thing as saying that even in a case where the impugned order of an Election Officer is so plainly absurd or where the order made by him cannot but be regarded as one which it was impossible for him to make under the statutory provisions under which he was functioning. We should, nevertheless, even in such a case, decline to exercise our jurisdiction. In cases falling within that exceptional category, it is clear that it would be our plain duty to correct at the earliest state such egregious errors which, if the election is allowed to continue unimpeded would inevitably result in wasteful expenditure of public time and money.'
21. In Fakirappa Yellappa Kali's case (1979-1 Kant LJ 153), Rama Jois, J. in the context of the bar created by sub Article (3) of Art. 226 of the Constitution, substituted by the 42nd Amendment of the Constitution, that was then in force, reviewing all the earlier cases of the Supreme Court and this Court ruled that it was open to this Court to interfere with the rejection of a nomination in exceptional circumstances. With the Amendment of Article 226 by the 44th Amendment of the Constitution, that part of the discussion in Fakirappa Yellappa Kali's case, dealing with the existence of an alternative remedy is no longer relevant and the position is that the law as it stood prior to 1-2-1977 or prior to the 42nd Amendment of the Constitution stand restored.
22. In Hassan Uzzaman's case : (1982)2SCC218 , that being the very latest case, the full reasons of which are still to be given, the Supreme Court has not expressed a different view than the one expressed by this Court in Muddamallappa's case (1961) 39 Mys LJ 319). In this view, I do not consider it profitable to refer to a catena of rulings of various other High Courts of the country relied on by Sri Jain, J., therefore proceed to examine the merits and see whether the circumstances of these cases justify this circumstances of these cases justify this Court's interference at this stage or not.
23. Explanation-1 of Regulation number 67(10) reads thus :-
Explanation I. The panel, may not reject a nomination paper on the ground of a technical defect which is not of a substantial character.'
Learned counsel for the petitioner have contended that this explanation should only be read as to harmonise with and clear up any ambiguity of Regulation No.67 (10) and should not be construed so as to widen its ambit and on such a construction it should be held that the Panel had no power to reject the nomination papers of the petitioners that did not suffer from one or the other of the four defects enumerated in that regulation. In support of their contention, learned counsel for the petitioners strongly relied on the ruling of the Supreme Court in Bihta Co-operative Development and Cane Marketing Union Limited v. Bank of Bihar : 1SCR848 .
24. In construing an explanation added by an amendment to the Bihar and Orissa Co-operative Societies Act, the Supreme Court in Bihta Co-operative Development's case has expressed thus :
'The Explanation must be read so as to harmonise with and clear up and ambiguity in the main section. It should not be so construed as to widen the ambit of the section.'
But, this exposition is not the one and the only exposition of an explanation added to a provision. Hence, it is necessary to ascertain the true role of an explanation and decide the scope ad ambit of Explanation-I to Regulation No.67 (10) of the Regulations.
25. The meaning to be given to an explanation must depend on its terms and no theory of its purpose can be entertained unless it is to be inferred from the language used (vide Krishna Ayyangar v. Nallaperumal Pillai (1920) ILR 43 Mad.550 (at p. 564) : (AIR 1920 PC 56 at p. 59). An explanation appended to a Section or clause gets incorporated into it, and becomes an integral part of it, and has no independent existence apart from it. There is, in the eye of law, only one enactment, of which both the Section and the Explanation are two inseparable parts. 'They move in a body if they move at all' (vide Bengal Immunity Co. Ltd. v. State of Bihar : 2SCR603 ). Bearing in mind all these principles, I have to ascertain whether Explanation-I to Regulation No.67 (10) of the Regulations is a mere explanation or an independent provision.
26. In my view, Explanation-I is not a mere explanation added to explain or elaborate Regulation No.67 (10), but it is an independent provision. As an independent provision, it operates independently without reference to the four infirmities set out earlier. The power of the panel is not circumscribed by the four infirmities enumerated in Regulation 67 (10) only. In this view the panel had the power to reject the nominations, if there were defects of a substantial character. Hence, it is now necessary to examine whether the rejections are in conformity with Explanation I.
27. Sri. Jain who argued the cases with fairness and thoroughness, did not take the stand that the defects in the nomination fall within the four categories enumerated in Regulation No.67 (10) of the Regulations viz.,
(I) that the candidate was ineligible to stand for election; or
(ii) that the proposer or the seconder was not qualified to subscribe to the nomination of the candidate in the appropriate form; or
(iii) that the signature of the candidate or of the proposer or the seconder is not genuine; or
(iv) that there has been a failure to comply with the provisions of Regulations 65 or 66.
If a nomination paper suffers from any of the four infirmities mentioned above, then the panel has no choice but the reject the same. The four defects enumerated in Regulation 67 (10) are defects that cannot be ignored by the panel. Any of the four defects per se invalidates a nomination paper. But that is not so in respect of other defects, which can neither be catalogued nor exhaustively stated.
28. A constituency notified by the Central Government to the Central Council and a Regional Council to be constituted by the Institute, need not necessarily be the same. In respect of one and the same constituency established by the Central Government, Section 23 of the Act empowers the Institute to create one or more Regional Constituencies. But, as noticed earlier, the Institute in forming the regional Councils has faithfully followed the very constituencies created by the Central Government to the Central Council. As a matter of fact, the Regional Councils set up by the Institute and the constituencies created by the Central Government to the Central Council are one and the same.
29. While the form of nomination paper to the Central Council is prescribed by the Regulations, the form of nomination paper to a Regional Council is prescribed by the Central Council. The form of nomination for, election to the Central Council is printed as 'C' with appropriate headings and other details. But, the form for an election to a Regional Council is printed as 'RC' with appropriate headings thereto.
30. The petitioner in Writ Petition No.20488 of 1982 filed his nomination in the appropriate form prescribed to the Central Council with necessary fee of Rs.750/- that is higher than the fee of only Rs.250/- prescribed to a Regional Council.
31. The petitioner in Writ Petition No.20743 of 1982 filed his nomination in the appropriate form prescribed by the Council tendering a fee of Rs.250/- to the Southern India Regional Council and to no other Regional Council of the country. It is abundantly clear from the nomination filed thereto. A mere reference to Annexure-R7 produced by respondent No.1 dispels any such dobut. Even a blind man can say that the petitioner in Writ Petition No.20743 of 1982, has filed his nomination paper only to the Southern India Regional Council and to no other Council.
32. At the highest the nominations of the petitioners suffer, if at all, from inadvertent and inconsequential description of the constituencies at certain places only and not at all the places. The mere omission of the words 'India' or 'region' at some places of the nominations are trivial and inconsequential.
33. In their nomination papers the petitioners have set out all the material details relating to the constituencies. Anybody examining them without any doubt and hesitation can hold that the respective nominations are filed to the respective constituencies and they are in conformity with the substantial requirement of law.
34. An Act must be read as a whole and effect must be given to every part of the statute is elementary. As I apprehend the mandate of Explanation-I of Regulation 67 (10) borrowed from similar provisions found in other election laws of the country, directs the panel or the returning officer to ignore technical defects in a nomination paper and reject it only for defects of a substantial character only. But unfortunately, the panel has made a mountain out of a molehill and has rejected them on extremely technical considerations contrary to the specific and clear mandate of explanation-I of Regn. No.67 (10) of the Regulations. Without any doubt, the panel, if it had kept before it the said provision was bound to hold that the nomination papers of the petitioners did not suffer from a defect of a substantial character and accepted the, which would have been in accord with the principle enunciated by the Supreme Court in Karnail Singh v. Election Tribunal, Hissar, (1954-10 ELR 189); Pratap Singh v. Shri Krishna Gupta : 2SCR1029 : and the Division Bench ruling of the Patna High Court in Dahu Sao v. Ranglal Chaudhary : AIR1960Pat371 . With all respect to the panel, I am constrained to say that the rejection of the nomination papers of the petitioners was for a plainly absurd and egregious reason and, therefore, calls for my interference.
35. Sri Jain has, however, urged that the view taken by the panel is in accord with the view taken by Mohan, J., of Madras High Court in K. Sivaramakrishnan v. Institute of Chartered Accountants of India, (W.P. No.2356 of 1976 decided on 28-6-1976) and is a possible view to be taken.
36. In Sivaramakrishnan's case the nomination paper filed by that person to the Central Council suffered from more or less the same defect as has happened in the present cases and the challenge of that petitioner to an order of rejection was rejected by his Lordship holding that it has a defect of a substantial character. But, in Writ Appeal No.814 of 1976, filed by Sivaramakrishnan, against the order of Mohan, J., a Division Bench of the Madras High Court allowed him to withdraw his said appeal reserving liberty to file an election petition and contend that the rejection of his nomination was erroneous. As to what view the appellate Bench of the Madras High Court would have taken, if the has been argued, cannot be predicted by me. But, I will still assume that the ruling rendered by Mohan, J., in Shivarama Krishnan's case has stood the test of time and examine the matter on that basis.
37. In reaching his conclusion Mohan J., has nowhere referred to the statutory provisions and the legal principles bearing on the question, but has vested his conclusion on the instructions issued by the Secretary along with the calendar of events and in the printed nomination papers.
38. Any instructions issued in the calendar of events on the nomination forms, do not have the status if law and cannot be a basis for a superior Court to rest its conclusion. As is well known, instructions or guidance are meant for the use of candidates and officers that participate in the conduct of elections. With great respect, every one of the reasons on which Mohan. J., has held that the defect was of a substantial character, is opposed to the very meaning attached to those terms and the law enunciated by the Supreme Court, I cannot, therefore, persuade myself to subscribe to the view expressed by Mohan, J., in Sivarama Krishnnan's case.
39. The ration of the ruling of this Court in K. Rahman Khan v. Secretary; the Institute of Chartered Accountants of India (W.P.No.1517 of 1973 decided on 16-7-1973) does not bear on the point. So also the rejection of Writ Petition number 4959 of 1976 decided on 22-6-1976, at the preliminary hearing stage, does not mean that this court cannot interfere on a fuller examination in another case.
40. The petitioners have approached this court without any loss of time. Sri Jain also stated that though there was no order of stay, the Institute had not precipitated the matters and had not even printed and despatched the ballot paper so far. The poll for the Central Council and Regional Council is scheduled to be held on 6th and 7th Aug, 1982. When this is so, no harm or prejudice would be caused to the Institute if the names of the petitioners are included in the list of valid nomination papers and elections are held on that basis. Such a course is in the interests of all the parties and the interests of the Institute itself. Any failure at this stage, may necessitate the setting aside of the entire election, holding of fresh elections entailing needless expenditure to one and all and waste of public time. For these reasons and the reasons stated in Muddamallappa's case (1961-39 Mys LJ 319), extracted earlier, these are fit cases for this Court's interference at this stage itself.
41. Before parting with these cases, I express my appreciation tot he Institute in making all arrangements, for their immediate disposal and all counsel that appeared and extended all assistance, but for which it would not have been possible for me to dispose of them by this time.
42. In the light of my above discussion, I make the following orders and directions :
(a) I quash the impugned orders - (Annexure-D in Writ Petition No.20488 of 1982 and Annexure-B in W.P. number 20743 of 1982);
(b) I declare that the nomination papers of the petitioner in Writ Petitions Nos.20488 ad 20743 of 1982 to the Central and Regional Councils respectively are valid and direct respondent number 1 to include them as valid nomination papers to the Central and Regional Councils respectively and complete the elections on the basis of the calendar of events already Issued (Annexure-R2) in accordance with the Act and the Regulations.
43. Rule issued is made absolute in both the cases But, in the circumstances of the cases, I direct the parties to bear their own costs.
44. Let copies of this order be communicated to the Institute of Chartered Accountants of India and its Secretary forthwith. Let a free copy of this order be also furnished simultaneously to the learned counsel for respondent No.1
45. Rule made absolute.