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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