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TMI Blog2003 (11) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Government. 2. The manner of election to the Council to elect the elected representatives is provided under section 10 of the Act. The Regulations framed under section 39 of the Act which provide for the method of electing such members and the manner in which the elections are to be conducted and various other aspects. In respect of any disputes arising in the context of such elections, and Election Tribunal as envisaged under section 2 of the Act appointed by the Central Government examines the disputes and decides the same. For a Tribunal to examine an election dispute, the procedure is that such an election Petition is to be presented to the Council itself, who in turn forwards the petition to the Election Tribunal and the reference by the Council to the Tribunal is always on an application made to the Council by an aggrieved party, who seeks for relief within thirty days from the date of the declaration of the result of the election. 3. Petitioner herein was a candidate in one such election notified as per a Notification issued by the Council on 1-9-2000. The calendar of events indicated that the last date for filing nomination was 16-10-2000, the scrutiny of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the original calendar of events as had been notified on 1-9-2000 is without valid authority in law; that it was beyond the powers of the Council and as such elections completed on the basis of such subsequent notification and as per the same, has to be declared as null and void and consequently the results also have to be declared so and fresh elections are to be held in accordance with the provisions of the Act and the Regulations. 8. A petition for such purpose had been presented to the Council, who in turn had referred the same to the Election Tribunal as envisaged under section 10(2) read with section 87-V of the Company Secretaries Regulations, 1982 (hereinafter referred to as the Regulations for short) and the Election Tribunal having looked into this and being of the view that the election petition was without merit and having dismissed the same, the petitioner, being aggrieved by this decision of the Election Tribunal, has approached this Court praying for quashing the order of the Election Tribunal dated 26-3-2002 (copy at Annexure-W) and for consequential reliefs such as declaring that the entire process of the election conducted by the Council pursuant to the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the declaration of results based on the same is also not valid in the eye of law and consequently the entire action should be declared to be one without authority of law and null and void and the declaration of results set aside. Learned Counsel has also submitted that the Tribunal has totally misdirected itself in examining the issue before it; that a wrong reliance has been placed on the provisions of Regulation 87T of the Regulations which provide for saving the elections from any accidental irregularity or informality in the conduct of the election, which is the only reason given in the order of the Tribunal for dismissing the election petition. Regulation 87T of the Regulations reads as under : "87T. Declaration of Results - The name of the candidates elected shall be declared on the date fixed for declaration of results and shall be communicated individually to all candidates who stood for election by registered post and shall also be notified in the Journal." 11. The Tribunal was of the view that the postal strike which came in the way of the postal votes being received in time, particularly within the time permitted for receiving the postal ballots, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of the notification is bad. Learned Counsel for the petitioner has also contended that the petitioner having challenged the validity of the notification issued by a statutory functionary, the petitioner was not under any obligation to implead the successful candidates in the election and impleadment of the Institute by its Council was a sufficient compliance for impleading necessary parties before the Tribunal. In this regard, learned Counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Michael B. Fernandes v. C.K. Jaffer Sharief ILR 2002 Kar. 4489. Learned Counsel has also submitted that the petitioner having challenged the action on the part of the respondent Institute and its Council in the context of the exercise of their statutory powers, the question of the petitioner having not raised such objections before the Returning Officer during the time of receipt of postal ballots as per the subsequent notification or even the counting or declaration of results subsequently, is of no consequence as the challenge is primarily in the context of the exercise of statutory powers by the respondent Institute through its Council. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r High Court in the case of Kanglu Baula Kotwal v. Chief Executive Officer, Janpad Sabha, Durg AIR 1955 Nag. 49. Sri Holla has submitted that the petitioner is not entitled for relief on the grounds of estoppel and acquiescence also, the petitioner not having raised any objections before the Returning Officer; that he was very much present before the Returning Officer at the time of counting of votes and did not raise or indicate his protest and as such he is now estopped from contending that the said act is bad in law for the purpose of declaring the elections as invalid. Learned counsel has drawn my attention to the provisions of Regulation 59 and has submitted that the issue of the Notification dated 19-12-2000 was well within the powers of the Council, particularly is one as envisaged under Regulation 59( g ) of the Regulations. He submitted that Regulation 59( g ), which is in the nature of a residuary power, also confers the power on the Council to alter and amend a notification which had been issued earlier fixing the calendar of events. 15. Sri Udaya Holla, learned counsel for the second respondent, countering the argument of the counsel for petitioner to the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 87T of the Regulations? (2)As to whether the Tribunal should have dismissed the election petition at the threshold for non-joinder of necessary parties? (3)If the Tribunal could not have dismissed the petition for these two reasons, as to whether the Tribunal should have allowed the petition on the premise that the action on the part of the second respondent Institute in issuing the Notification dated 19-12-2000 is vitiated due to non-compliance of the requirements envisaged under Regulation 59 and also for contravening Regulations 59 and 87( f ) of the Regulations? 19. I will first take up the preliminary objection raised on behalf of the second respondent Institute that the election petition as well as this writ petition are liable to be dismissed only on the ground that the petitioner had not impleaded necessary parties to the proceedings. The contention urged on behalf of the second respondent in this regard is two-fold. It is firstly urged that in the election petition the relief ultimately sought for is to declare the election as null and void which necessarily affects the candidates in whose favour the results have been declared and who have been declared t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that either the election petition or the writ petition suffers from the vice of non-joinder of parties. Learned counsel for the petitioner has also submitted that for this very reason, there is no violation of the principles of natural justice, inasmuch as the affected parties are very much on notice the moment the petition is presented before the Council. 21. The relief sought for by the petitioner was in the context of irregularities committed by the Council in the matter of issue of a notification in the conduct of the elections and in the context of the election process. The relief sought for was not directed or oriented against any particular member or on the allegation that any particular member had indulged in any activities which could disentitle him for a declaration in his favour. When the relief is sought for against a particular person, then it becomes necessary to implead such a person and when a person is definitely a necessary party to the proceedings, non-impleadment of such person attracts the vice of non-joinder of necessary parties. I am of the view that in the instant case, neither the election petition nor the present writ petition can be said to be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of all postal votes and the results declared even on counting only such of those postal votes that had been received by the Institute as per the calendar of events issued before and within the last date that had been fixed, the non-inclusion of such votes which are received after the originally notified last date for receipt of postal ballots due to the postal strike may have constituted an accidental omission that is mentioned in this Regulation. The act that is challenged was the conscious and intended action on the part of the Institute in issuing the notification dated 19-12-2000 fixing different dates for the three events mentioned earlier. The reason or the cause for issuing the notification might have been the unforeseen postal strike, but the act of issuing the notification dated 19-12-2000 is not an accidental irregularity or an accidental omission mentioned in Regulation 87T of the Regulations. The Institute was aware of the consequence of the postal strike. The Institute in fact acted on the representation of some of the members or candidates who were involved in the elections and consciously re-fixed the date. By no stretch of imagination this act can be characterised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19-12-2000 and not by issuing a fresh notification of all stages. Learned Counsel for the petitioner has made an alternative submission that even conceding for argument s sake that the respondent Institute had such power to re-fix the dates for the elections, it cannot be done in a piece-meal manner and as it amounts to not exercising a power in the manner provided by the statute, but in a different manner. It is in this regard the learned Counsel has relied upon the principle that a power vested in an authority should be exercised only in that manner and not in any other manner and exercising the power not fully in accordance with the provisions amounts to an improper exercise of the power. In support of the submission, reliance was placed on the decision of the Supreme Court ( supra ). In so far as this argument is concerned, the scope and meaning of clause ( g ) of Regulation 59 was referred to by both learned Counsel and merits examination. 26. Regulation 59( g ) of the Regulations is an enabling power in favour of the Council to notify any other date or dates for the conduct of election other than the stages mentioned under Clauses ( a ), ( b ), ( c ), ( d ), ( e ) and ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the application of the principles envisaged under section 21 of the General Clauses Act, the Council having the power to notify the calendar of events also should be held to have the power to alter, amend or reissue the calendar of events. The power, though not traceable necessarily to clause ( g ) of Regulation 59 of the Regulations, can be traced to section 21 of the General Clauses Act. Unless such a power is conceded in favour of the Council, it may lead to an incongruous situation where if for any reason the election process cannot be conducted in accordance with the notified dates, no elections can be held at all thereafter. That is definitely not the object of Regulation 59 of the Regulations nor of the provisions of section 10 of the Act. 29. The next aspect is, if the Council can be said to have the power to issue an altered calendar of events whether it can do so as in the manner it has done under Annexure-F or whether it should be by issue of fresh calendar of events for all stages. The argument that the Council cannot do so in respect of only some of the stages, proceeds on the premise that by doing so, the requirement of Regulation 59 of the Regulations itself i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being in the nature of a modification or an amendment to the original notification which was in Form No. 1, gets incorporated into the original notification which was in the required form and the power for issuing the subsequent notification altering the date being attributable to section 30 of the Representation of the People Act (1951) read with section 21 of the General Clauses Act, it should be held that the requirement of the notification being in Form No. 1 is made good and the Notification did not suffer from any vice of irregularity or illegality. 32. In the instant case, what is urged is that the power to issue the subsequent notification dated 19-12-2000 which is very much in the nature of an amendment or alteration to the earlier notification dated 1-9-2000, is referable to Clause 59( g ) of the Regulations read with section 21 of the General Clauses Act and the alteration of the dates being in the nature of an amendment, should be deemed to be incorporated into the original notification dated 1-9-2000 in which event it can be said that the requirement of ninety days time gap between the date of issue of notification and the date of expiry of the term of the Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X
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