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TMI Blog2015 (3) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... ey are, and therefore, subject to statutory limitation.” We may also refer to Supreme Court Bar Association Vs. B.D. Kaushik [2012 (9) TMI 560 - SUPREME COURT], wherein it was reiterated that the right to vote is not an absolute right and the right to vote or to contest elections is neither a fundamental right nor a common law right, but it is a purely statutory right governed by the statute, rules or regulations. It was further held by the Supreme Court in the said decision that the right to contest an election and to vote can always be restricted or abridged, if statute, rules or regulations prescribe so. In the light of the above-noticed settled principle of law, the petitioners can neither claim an absolute right to stand for election to the Regional Councils nor contend that their right to contest the election is defeated by stipulating that the Fellow Members alone are eligible to stand for election to the Regional Councils. Having regard to the admitted fact that the Fellow Members belong to a different class and that even according to the petitioners the Fellow Members are more experienced and knowledgeable, the impugned provisions in making only the Fellow Members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every member to or in respect of the dissolved company shall be extinguished and thereafter no member of that company shall make any claims or demands in respect of that company except as provided in the Company Secretaries Act, 1980. 5. As per sub-section (1) of Section 3 of the Company Secretaries Act, 1980, all persons whose names are entered in the Register of the dissolved company immediately before the commencement of the Act and all persons who may hereinafter have their names entered in the Register maintained under the Company Secretaries Act, 1980 are constituted a body corporate by the name of the Institute of Company Secretaries of India and all such persons shall be known as members of the Institute. 6. Section 5(1) provides that the members of the Institute shall be divided into two classes designated respectively as Associates and Fellows. Section 5(3) further provides that a person being an Associate who has been in continuous practice in India as a Company Secretary for at least five years and a person who has been an Associate for a continuous period of not less than five years and who possesses such qualifications or practical experience as the Council may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration and publication of a list of members eligible to vote separately for each Regional Constituency. As per Rule 7, only such a member who is a Fellow on the first day of April of the Financial Year in which an election is to take place and whose name continues to be borne on the Register on the last date of scrutiny of nominations shall be eligible to stand for election to the Council from the Regional Constituency in which he is eligible to vote. 11. Section 39(1) of the Act empowers the council to make regulation for the purpose of carrying out the provisions of the Act and in exercise of the said power, the Council made the Company Secretaries Regulations, 1982 (hereinafter referred to as the Regulations‟). 12. Chapter III of the said Regulations (consisting of Regulations 111 to 141) specifically deals with Regional Councils. Regulation 111 provides that the regional council for every regional constituency shall inter alia consist of such number of members elected from the region as provided in Regulation 115(1) (2). So far as the conduct of the elections to the Regional Councils are concerned, Regulation 114(1) provides that the same shall be held by the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovides for members who are eligible to contest, is questioned in this petition. The said provisions are reproduced hereunder for ready reference: 114. Conduct of Elections:- (1) Except to the extent provided in this Chapter, the elections to the Regional Councils shall be held by the Council and the Company Secretaries (Election to the Council) Rules, 2006 shall apply to elections to the regional Councils mutatis mutandis. (2) Notwithstanding anything .... .... ..... Rule 7. Members eligible to stand for election- Subject to other provisions of these Rules, a Member who is a fellow on the first day of April of the financial year in which an election is to take place and whose name continues to be borne on the Register on the last date of scrutiny of nominations under sub-rule (2) of Rule 4, shall be eligible to stand for election to the Council from the regional constituency in which he is eligible to vote. Provided that ..... ..... ..... 18. As a result of the abovesaid amendments to the Regulations by Notification dated 26.07.2010 and in terms of Rule 7 of the Rules, only Fellow Members are made eligible to stand for election to the Regional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. The learned Senior Counsel for the respondent No.1 in this regard has also drawn our attention to the judgment of the Division Bench of this Court in Ashish Maddha vs. Institute of Company Secretaries of India AIR 2011 Delhi 126. We may also refer to Supreme Court Bar Association Vs. B.D. Kaushik (2011) 13 SCC 774 wherein it was reiterated that the right to vote is not an absolute right and the right to vote or to contest elections is neither a fundamental right nor a common law right, but it is a purely statutory right governed by the statute, rules or regulations. It was further held by the Supreme Court in the said decision that the right to contest an election and to vote can always be restricted or abridged, if statute, rules or regulations prescribe so. Following the said principle, the challenge to the amendment of the rules of the Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act provides for election of 15 persons from amongst the Fellows chosen from the Regional Constituencies. Thus, the legislative intendment is clear that the Council shall be composed of only the Fellow Members. However, Regulation 116 of the Regulations (as it stood prior to Amendment dated 26.07.2010) while dealing with the Regional Councils provided that both Associate Members and Fellow Members are entitled to stand for election to the Regional Councils. The same being contrary to the intendment of the Act, the Regulation 116 was rightly omitted by amendment dated 26.07.2010. The omission of Chapters VIII IX and the substitution of Regulation 114(1) are only corresponding amendments that have been made to remove the inconsistency between the Act and the Regulations. May be that petitioners are made ineligible to contest the election as a result of the impugned amendment, however, while testing the vires of such statutory provision, the Court cannot proceed on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. (iv) There is always a presumption in favour of the Constitutionality of an enactme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Act, rules and the bye-laws as he has his right under the Act, rules and bye-laws and is subject to its operation. The stream cannot right higher than the source (vide State of U.P. Another Vs. C.O.D. Chheoki Employees Co-operative Society Ltd. and Others (1997) 3 SCC 681). Reiterating the said legal position, it was further held in Supreme Court Bar Association s case (supra): 52. In matters of internal management of an association, the Courts normally do not interfere, leaving it open to the association and its members to frame a particular bye-law, rule or regulation which may provide for eligibility and or qualification for the membership and/or providing for limitations/restrictions on the exercise of any right by and as a member of the said association. It is well-settled legal proposition that once a person becomes a member of the association, such a person loses his individuality qua the association and he has no individual rights except those given to him by the rules and regulations and/or bye-laws of the association. 22. For the aforesaid reasons, there is no merit in any of the contentions of the petitioners. The writ petition is, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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