Vinay Mittal Alias Mittal Vinay vs The Institute Of Charted ...
2009 Latest Caselaw 4488 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          W.P.(C) Nos.12858/2009

VINAY MITTAL ALIAS MITTAL VINAY                              ..... Petitioner
                         Through                Mr. Amit Khemka, Adv.

                           VERSUS

THE INSTITUTE OF CHARTED ACCOUNTANTS OF INDIA AND ORS

            ..... Respondent                                 Through
      Mr. C.S. Vaidyanathan, Sr. Adv.
                                                with Mr. Rakesh Agarwal,
                                                Adv. for R-3.
CORAM :
HON'BLE MR. JUSTICE SANJIV KHANNA


1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported
in the Digest?
                          ORDER

05.11.2009

1. The petitioner, Mr. Vinay Mittal has impugned the order dated 9th

October, 2009 passed by the returning officer and Secretary rejecting the claim

of the petitioner for election to the Central India Regional Council. Counsel for

the petitioner submits that the petitioner had filed an appeal under regulation

134(9) of the Chartered Accountants Regulations, 1988, but the returning

officer has refused to accept and act upon on the decision and the directions

given by the Appellate Authority, namely, the President of the Institute of

Charted Accountants of India.

W.P.(C)12858/2009 Page 1

2. Regulation 134(9) of the Chartered Accountants Regulations, 1988, reads

as under:-

"134(9) Where any dispute arises regarding any election to a Regional Council, the matter shall be referred within thirty days from the date of the declaration of the result of the election, to the President and his decision shall be final."

3. Right to move under the aforesaid Regulations, when any dispute arises

regarding election, is available only after declaration of the results and not

before. The President cannot entertain any request under Regulation 134 (9)

before the election results are declared. In these circumstances, I do not think

that the President of the Institute of Chartered Accountants of India was

competent to entertain the request/complaint of the petitioner and adjudicate

and decide on the order dated 9th October, 2009, passed by the returning

officer and the Secretary rejecting the nomination of the petitioner. The

admitted position is that the elections are still to be held and are fixed on 4th

and 5th December, 2009.

4. Counsel for the petitioner submitted that the nomination of the

petitioner has been wrongly rejected in view of the Regulation 89(10),

explanation 1, which stipulates that nomination will not be rejected for a

technical defect, which is not of a substantial character. Counsel appearing for

W.P.(C)12858/2009 Page 2 the respondent No.3 states that the aforesaid Regulation has been replaced and

substituted by the Chartered Accountants (Election to the Council) Rules, 2006.

However, it is noticed that Rule 12(10)(b) corresponds and is identical worded

and stipulates that the panel will not reject a nomination paper on the ground

of a technical defect, which is not of a substantial character. The panel referred

to consist of three persons, which includes the returning officer and two other

persons nominated by the Council in terms of the Rule 2(2) of the aforesaid

Rules.

5. As per the stand taken by the panel, the defects in the nomination form

are substantial and, therefore, are not covered under regulation 12(10) (b) of

the aforesaid Rules. In this connection, counsel for the respondent No.3 has

drawn my attention to the photocopy of the nomination form (annexure P-3)

and the statement made by the petitioner therein that he has agreed to stand

for elections to 21st council. It is pointed out that the election of the regional

council are also due and to be held on 4th and 5th December, 2009 and the said

declaration made by the petitioner is in prescribed nomination form for

standing in the 21st election of the regional council and not 20th elections to the

Central India Regional Council. The two councils are separate.

6. I need not enter into the controversy about technical defect of

substantial nature at this stage because the petitioner will be entitled to

W.P.(C)12858/2009 Page 3 question and challenge the elections after the results are declared in terms of

Regulation 134(9) quoted above. It is well settled that after election process is

set in motion, Courts should not interfere and interdict in the same and the

parties should be left to challenge and question the elections after the elections

are held. In this connection, counsel for the respondent No.3 has drawn my

attention to the judgments of the Supreme Court in cases of university elections

and elections of cooperative societies. Reference in this regard can be made to

Avtar Singh Hit Vs. Delhi Sikh Gurdwara Management Committee and Others

(2006) 8 SCC 487 and Shir Sant Sadguru Janardan Swami (Moingiri Maharaj)

Sahakari Dugdha Utpadak Sanstha and Another Vs. State of Maharastra and

Others (2001) 8 SCC 509 . He has drawn my attention to a judgment of a

Division Bench of this Court in Ashwani Kathpalia Vs. The Institute of C.A. of

India, W.P.(C) No.16204/2006, wherein the Court had refused to entertain the

writ petition on the ground that the petitioner has an alternate efficacious

remedy under the Chartered Accountants (Election to the Council) Rules, 2006

and the Chartered Accountants Regulations, 1988. My attention is also drawn to

the decision of the Bombay High Court in the writ petition No.8851/2009 titled

C.A. Pagaria Ashokkumar Nensukh & Anr Vs. The Institute of Chartered

Accountants of India & Anr, wherein the Bombay High Court refrained from

W.P.(C)12858/2009 Page 4 entertaining the writ petition in view of the relevant rules holding that they are

mandatory.

7. Counsel for the petitioner has relied upon a decision of the Bombay High

Court in case of Inder Chand Jain Vs. The Institute of Chartered Accountants of

India & Anr, AIR 1992 BOMBAY 31 holding that courts can intervene while the

election process is still on. It is noticed that the final directions in this case were

upset by the Supreme Court in the Institute of Chartered Accountants of India

& Anr Vs. Inder Chand Jain, 1992 Supp (1) SCC 433 .

8. In view of the decisions of the Supreme Court, Delhi High Court and

Bombay High Court mentioned above, I do not think that it will be appropriate

to entertain the present writ petition. I refrain from entertaining the present

writ petition. It will be open to the petitioner to raise his grievance in

accordance with law, if required, at a subsequent stage. In the facts and

circumstances of the case, there will be no order as to cost.

SANJIV KHANNA, J.

       NOVEMBER 05, 2009
       NA




W.P.(C)12858/2009                                                               Page 5