Balbir Verma vs The Indian Institute Of ...
2015 Latest Caselaw 4742 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of decision: 7th July, 2015

+      W.P.(C) No.6422/2015, CM No.11695/2015 (for stay) & CM
       No.11696/2015 (for exemption)

       BALBIR VERMA                                           ..... Petitioner
                   Through:                 Mr. D. Verma and Ms. Arpana Iyer,
                                            Advs.

                                      Versus

    THE INDIAN INSTITUTE OF ARCHITECTS
    AND ANR.                                 ..... Respondents

Through: Mr. Ripu Daman Bhadwaj, CGSC with Mr. T.P. Singh, Adv. for R-2.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition impugns the decision of the respondent no.1 The Indian

Institute of Architects (IIA) declaring the nomination filed by the petitioner

for election to the Council of Architecture for the term 2015-2018 as

invalid/ineligible and seeks a direction to the respondent no.1 IIA to permit

the petitioner to contest the said election.

2. It is the case of the petitioner:-

(i) that the term of office of an elected member of the Council of

Architecture (the Council), as per Section 6(1) of The

Architects Act, 1972 (the Act) is of three years from the date of

his election or until his successor has been duly elected or

nominated, whichever is later and that as per Section 6(5), the

Members of the Council are eligible for re-election but for not

exceeding three consecutive terms;

(ii) that in the year 2004, the petitioner was elected for the first time

as one of the five members of the Council;

(iii) that in terms of Section 3(3)(a) of the Act and Rule 4 of the

Council of Architecture Rules, 1973 (the Rules), the publication

of the names of the members elected is necessary;

(iv) accordingly, a Gazette Notification dated 30th August, 2004

notifying the names of the members elected was issued;

(v) that elections were again held in the year 2007 and the

petitioner contested the said elections and was one of the

successful candidates;

(vi) however in view of a writ petition filed in the Madras High

Court assailing the election process, the names of the members

elected in the year 2007 were never gazetted;

(vii) the Council also, vide its letter dated 11th July, 2007, to the

respondent no.2 Union of India rejected the result of the said

election;

(viii) that in view of the said dispute and in the absence of the

Notification with respect to the elections of the year 2007 being

issued, the members elected and notified in the year 2004

continued to hold office in terms of Section 6(1) of the Act;

(ix) that the litigation aforesaid before the Madras High Court

continued from the Single Judge to the Division Bench and

ultimately to the Supreme Court and was disposed of issuing

certain directions for holding of prompt election afresh;

(x) in accordance with the aforesaid directions, elections were held

in 2012 and which the petitioner contested and was elected;

(xi) that elections for the term 2015-18 were notified on 15th June,

2015; and,

(xii) though the petitioner filed his nomination for the said election

but in the list of eligible candidates declared on 30 th June, 2015

his name did not find mention and on enquiry he has been

informed on 3rd July, 2015 that his nomination was rejected

since he had already held the position of a member of the

Council of Architecture for three consecutive terms.

3. The counsel for the petitioner has argued that, (a) the petitioner has

not been elected for three consecutive terms; (b) that the petitioner, prior to

the elections due for the year 2015, was elected only in the years 2004 and

2012; (c) that though he had contested the elections in the year 2007 and was

also elected therein but the said election process never culminated in

issuance of the Notification and thus the election of the year 2007 is not to

be counted; reliance in this regard is placed on Rajendra Agricultural

University Vs. Ashok Kumar Prasad (2010) 1 SCC 730; (d) that the

continuance of the petitioner as a member of the Council from 2007 till 2012

was not in pursuance to any election but in pursuance to Section 6(1) of the

Act and owing to his successor having not been duly elected; and, (e) that

though he functioned as a member of the council from 2007 to 2012 but not

in pursuance to the elections of 2007 and others who had been elected for

the first time in the year 2007, did not at any time function as members.

4. As per the Schedule of Election, a) the date for display of the final list

of candidates is 7th July, 2015 i.e. today; b) the date for sending of e-ballots

to the members is 13th July, 2015; c) and the e-voting lines open on 27th July,

2015; d) the receipt of postal ballot paper and E-voting is to close at 1700

hours on 29th July, 2015; e) the scrutiny, counting of votes and declaration of

election result is to take place on 30th July, 2015. It has as such been

enquired from the counsel for the petitioner as to how, the election process

which has admittedly begun, can be interfered with.

5. The counsel for the petitioner states that the mala fides of the IIA vis-

a-vis the petitioner are evident from the fact that no time has been left for the

petitioner to impugn the rejection of his nomination. He has further argued

that in his application for interim relief, he is not seeking for the election

process to be stalled but is only seeking a direction that his name be included

in the final list of candidates and he be allowed to contest the election and

the result of the election be made subject to the outcome of this petition.

Reliance in this regard is placed on Deoraj Vs. State of Maharashtra (2004)

4 SCC 697 (para 12). It is contended that the action of the respondents being

illegal, they should not be allowed to take advantage of the same and if the

election is permitted to proceed, the situation would become irreversible.

6. I may at the outset notice that Section 5(1) of the Act lays down that

election under Chapter-II of the Act to the Council of Architecture shall be

conducted in such manner as may be prescribed by the Rules. Section 5(2)

provides that where any dispute arises regarding any such election, the

matter shall be referred by the Council to a Tribunal appointed by the

Central Government by Notification in the Official Gazette in this behalf and

the decision of the Tribunal shall be final. The Act thus provides for a fora

for adjudication of the disputes regarding election. The dispute raised by the

petitioner undoubtedly is a dispute regarding election and the counsel for the

petitioner has not argued to the contrary.

7. It has been famously said in Jyoti Basu Vs. Debi Ghosal (1982) 1

SCC 691 that a right to elect or to be elected, fundamental though it is to

democracy, is anomalously enough, neither a fundamental right nor a

Common Law Right. It is pure and simple, a statutory right. 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. An election dispute is a special

jurisdiction and has always to be exercised in accordance with the statute

creating it.

8. It thus follows, that an election dispute has to be raised in the manner

and before a fora, provided in the statute and the general law will not apply

thereto.

9. The Act and the Rules aforesaid, under which the Council is

constituted and which also provide for the conduct of elections to the

Council having also provided for the fora before which a dispute regarding

election is to be raised and for the manner in which the dispute is to be

raised, the petitioner cannot be permitted to raise the dispute otherwise.

10. Coupled with this is the consistent view of the Courts that the Courts

will not interfere in the process of election once begun. Merely a play of

words in claiming the interim relief will not make any difference. The

direction sought, to allow the petitioner to contest the election subject to the

outcome of the petition, would also be a direction interfering with the

election and which is not permissible.

11. As far back as in N.P. Ponnuswami Vs. Returning Officer,

Namakkal Constituency AIR 1952 SC 64, it was held that the law of

elections in India does not contemplate that there should be two attacks on

matters connected with election proceedings, one while they are going on by

invoking the extraordinary jurisdiction of the High Court under Article 226

of the Constitution of India and another after they have been completed, by

means of an election petition. Carrying on the said principle further, it was

held in Mohinder Singh Gill Vs. The Chief Election Commissioner, New

Delhi (1978) 1 SCC 405 that knowing the supreme significance of speedy

elections, the law, by implication has postponed all election disputes to

election petitions and tribunals. Following the said principle, the Supreme

Court in S.T. Muthusami Vs. K. Natarajan (1988) 1 SCC 572 set aside the

judgment of the Division Bench of the High court entertaining a writ petition

under Article 226 and dismissed the writ petition. The same law was

reiterated in Manda Jaganath Vs. K.S. Rathnam (2004) 7 SCC 492.

12. The aforesaid principles, though laid down in relation to

Parliamentary and Municipal elections, would in my opinion apply to the

elections to the Council of Architecture also. I may in this regard refer to

K.K. Shrivastava Vs. Bhupendra Kumar Jain (1977) 2 SCC 494 which

though concerned Bar Council election but the Supreme Court still held that

where there is a proper or equally efficacious remedy, the Court should keep

its hands off - this is more particularly so where the dispute relates to an

election - still more so, where there is a statutory prescribed remedy, which

reads into mandatory terms. Similar view was taken in respect of election of

members of the Sikh Gurudwara Management Committee in Avatar Singh

Hit Vs. Delhi Sikh Gurudwara Management Committee (2006) 8 SCC 487.

The Supreme Court held that no exceptional and extraordinary circumstance

having been disclosed for taking recourse to constitutional remedy under

Article 226, the writ petition should not have been entertained and the

petitioner should have been relegated to an election petition only. I also find

a Division Bench of Madras High Court to have in Ar. Vijay Garg Vs. Ar. P.

Satheeshkumar AIR 2009 Mad 135 (and which perhaps is the judgment

pertaining to the 2007 elections supra) to have held a writ petition to be not

maintainable (reversing the judgment of the Single Judge) in view of

provisions of Section 5(2) of the Act supra.

13. The reliance placed by the counsel for the petitioner on Deoraj supra

is misconceived. Though Deoraj supra concerned election of the Chairman

of a Cooperative Society under the Maharashtra Cooperative Societies Act,

1960 but the challenge in that case was to the deferment by the Returning

Officer of a meeting in which the petitioner, who alone had filed the

nomination, was to be declared elected. The relief claimed in the writ

petition was thus, of declaration of the petitioner having been elected. It was

in this situation and for the reason that the term for which the petitioner had

been elected was of one year only and part of which was already over and

finding that there was no opposition to the grant of the interim relief that the

Supreme Court held that interim relief in the mandatory form could be

granted. It would thus be seen that the relief claimed in Deoraj supra was

not of interference with the election but in aid of election.

14. Thus no relief at this stage can be granted to petitioner.

15. I have also considered whether keeping this petition pending or

issuing notice thereof would serve any purpose and am of the considered

opinion that if this Court, at this stage, is not to interfere with the elections,

then no purpose would be served in keeping this petition pending in as much

as once the elections have been held and the result thereof has been declared,

the fora for adjudication of the dispute would be the Tribunal aforesaid and

not this Court.

16. That brings me to the merits of the case made by the petitioner.

17. Section 3(3)(a) of the Act supra provides that the Council shall consist

inter alia of five Architects possessing recognized qualifications elected by

the Indian Institute of Architects from amongst its members. Section 5,

titled "Mode of Elections" is as under:

"5.(1) Elections under this Chapter shall be conducted in such manner as may be prescribed by rules.

(2) Where any dispute arises regarding any such election, the matter shall be referred by the Council to a Tribunal appointed by the Central Government by notification in the Official Gazette in this behalf, and the decision of the Tribunal shall be final.

Provided that no such reference shall be made except on an application made to the Council by an aggrieved party within thirty days from the date of the declaration of the result of the election.

(3) The expenses of the Tribunal shall be borne by the Council."

and thereafter Sections 6 and 7 of the Act which are found to be

relevant for the present purpose are as under:

"6.(1) Subject to the provisions of this Section, an elected or nominated member shall hold office for a term of three years from the date of his election or nomination or until his successor has been duly elected or nominated whichever is later.

(2) An elected or nominated member may, at any time, resign his membership by writing under his hand addressed to the President, or in his absence, to the Vice-President, and the seat of such member shall thereupon become vacant.

(3) A member shall be deemed to have vacated his seat-

(i) if he is absent without excuse, sufficient in the opinion of the Council, from three consecutive ordinary meetings of the Council; or

(ii) if he ceases to be a member of the body referred to in clause(a), clause (g) or clause (h) of sub-section (3) of section 3 by which he was elected or nominated, as the case may be; or

(iii) in the case where he has been elected under clause (c) of sub-section (3) of section 3, if he ceases to hold his appointment as the head of an institution, as referred to in the said clause.

(4) A casual vacancy in the Council shall be filled by fresh election or nomination, as the case may be, and the person so elected or nominated to fill the vacancy shall hold office only for the remainder of the term for which the member whose place he takes was elected or nominated.

(5) Members of the Council shall be eligible for re-election or re-

nomination, but not exceeding three consecutive terms.

7. No act or proceeding of the Council or the Executive Committee or any other committee shall be invalid merely by reason of -

(a) any vacancy in, or defect in the constitution of, the Council, the Executive Committee or any other committee, or

(b) any defect in the election or nomination of a person acting as a member thereof, or

(c) any irregularity in procedure not affecting the merits of the case."

18. Rule 4 on which reliance is placed is as under:

"4. Intimation of name of elected person to Central Government - The name of the elected person shall be intimated by the Secretary to the Indian Institute of Architects to the Central Government who shall take steps to publish the name of the elected person in the Official Gazette.

Election to the Council under clause (c) of sub-section (3) of section 3".

and Rules 20 and 22 which are also found to be of relevance are as

under:

"20. Declaration of result -

(1) When the counting of the votes has been completed, the Returning Officer shall draw up a list of candidates in the order of highest votes polled by each and shall declare the result of the successful candidates in that order according to the number of seats to be filled up.

(2) When an equality of votes is found to exist among any candidates and there is difficulty in declaring the result, the determination of the person or persons who shall be deemed to have been elected shall be made by lot to be drawn by the Returning Officer or any other officer authorized by him and in such manner as he may determine.

(3) The Returning Officer as soon as the result is declared shall inform the successful candidate by letter of his being elected to the Council.

22. Result of election - The Returning Officer shall intimate the name of the elected candidates to the Central Government."

19. From the Scheme of the election, as can be deciphered from the

aforesaid provisions, what emerges is that the argument of the petitioner

of his having not been elected in the year 2007 for the reason of his

name having not been published as an elected person in the Official

Gazette is misconceived. Rules 4 and 22, which provide for intimation

to the Central Government and publication in the Official Gazette, use

the expression "elected person" or "elected candidate". The same is

indicative of the person / candidate being already "elected" before an

obligation is placed on the Secretary of the Indian Institute of Architects

or on the Returning Officer of the election, to give intimation to the

Central Government which is further obliged to publish the name,

again, of the "elected person" in the Official Gazette.

20. This is further supported by,

a) Section 6(1) of the Act which commences the term of three

years of the elected member "from the date of his election"

and not from the date of publication of his name as an

elected candidate / person in the Official Gazette.

b) Rule 20 which requires the Returning Officer to declare

the "result" and inform the successful candidate of his

being "elected" to the Council and does not make the same

also dependent on or subject to publication in the Official

Gazette.

c) The proviso to Section 5(2) of the Act which commences

the period of 30 days for raising an election dispute, from

the date of declaration of the result of the election and not

from the date of publication in the Official Gazette.

d) Section 6(3) of the Act which, while providing for the

eventualities in which a member so elected shall be

deemed to have vacated his seat, does not provide for the

eventuality of non publication of his name in the Official

Gazette. The Supreme Court, in Charan Lal Sahu Vs.

Giani Zail Singh (1984) 1 SCC 390 held than an election

can be called in question and set aside on those grounds

only which are prescribed in the statute and not on any

other ground.

21. The Scheme of the Act and the Rules thus unequivocally is, of

the process of election being complete upon the Returning Officer

declaring the result and intimating the successful candidate and which

stage according to the petitioner also was reached. In my opinion, the

non intimation even if any of the list of elected candidates to the

Government of India or non publication of their names in the Official

Gazette would not take away from such persons having been "elected"

as the member of Council. Even if it were to be held that the intimation

of the petitioner having been elected as a member of the Council in the

year 2007 was not given to the Central Government and there was no

publication of his name as an elected member in the Official Gazette,

the same would at best constitute a defect in the election or defect in

constitution of Council, which as per Section 7 of the Act is of no avail.

It is not the case of the petitioner that his election, in the proceeding

aforesaid was set aside. The petitioner rather has shied away from

placing before this Court the judgments of the Single Judge and the

Division Bench of the Madras High Court or of the Supreme Court in

the dispute with respect to the elections of the year 2007. The counsel

for the petitioner even during the hearing has not been able to produce

the same. We thus do not know as to what were the findings of the

Court with respect to the validity or otherwise of the said election. It is

well-nigh possible that the election was held to be valid and directions

for holding the elections were issued merely because the same were due

under the Statute also. The conduct of the petitioner of not producing

the said judgment in any case raises presumption against the petitioner.

22. Once under the Act and the Rules, the Returning Officer of the

election has been empowered to declare the result and to inform the

successful candidate of his being elected to the Council, till such election of

the successful candidate is set aside by an order of the Court / appropriate

fora, it cannot be said that the candidate was not elected. The petitioner

having admitted that he was so elected and having neither pleaded nor

shown any order of the Court or Tribunal or any other fora of his election

having been set aside, cannot be heard to say that he was not elected in the

year 2007 or that his election of the year 2007 should not be counted in the

three consecutive terms after which he admittedly is ineligible for re-

election.

23. The plea of the petitioner of the Council also, vide its letter dated 11th

July, 2007 to the Union of India, having rejected the result of the election of

the year 2007, also is of no avail. The Act and the Rules do not empower the

Council to have any say in the result of the election or to reject the result of

the election. A perusal of the copy of the said letter dated 11 th July, 2007

annexed to the petition shows the same to be referring to an order dated 28 th

July, 2007 of the Madras High Court but which the petitioner as aforesaid

has failed to produce. Moreover, the said order appears to have been set

aside in appeal, by the Division Bench, as is evident from Ar. Vijay Garg

supra. Similarly, the plea of the petitioner, of other members elected for the

first time in the year 2007 having not acted as members of the Council and

the members elected in the year 2004 only having continued to act, would

also be of no avail. Such pleas cannot take away the effect of the petitioner

having been elected as a member in the elections of the year 2007.

24. In my view, Rules 4 & 22 supra providing for intimation of the name

of the elected person or the elected candidate to the Central Government and

publication of the said names in the official gazette are at best directory and

not mandatory. No consequence of non-intimation of the names to the

Central Government or non-publication of the names in the official gazette

has been provided. The High Court of Madras in Dr. George Paul Vs.

Union of India MANU/TN/1840/2010 and the Division Bench of the High

Court of Punjab & Haryana in Swaran Kaur Vs. State of Punjab

MANU/PH/3036/2012 have also held similar provisions in Dentists Act,

1948 and in Punjab Panchayati Raj Act, 1994 respectively to be not

mandatory. Reliance by the counsel for the petitioner in this respect on

Rajendra Agricultural University supra, holding that a University Statue

required by Section 36 of the Bihar Agricultural Universities Act, 1987 to be

published in Official Gazette, if not published was unenforceable, is not

apposite.

25. There is another aspect of the matter. The provision in Section 6(5) of

the Act supra, limiting the number of times a person can seek election as the

member of the Council to three consecutive terms of three years each i.e. for

a period of nine years is with a purpose. A Division Bench of the High

Court of Bombay in Shivaji Ramchandra More Vs. State of Maharashtra

AIR 1988 Bom 315 held that when persons came to be elected in

administrative positions for an abnormally long term, it gives rise to creation

of a power centre and misuse of position and power, adversely affecting the

institution. It was held that it is in public interest to limit the term of office to

a reasonable period. It was also held to be necessary for giving chance to

new talents and to avoid creation of vested interests. The same sentiment

was expressed by a Single Judge of this Court in Narinder Batra Vs. Union

of India MANU/DE/0372/2009. The petitioner admittedly has functioned as

a member of the Council from the year 2004 till the year 2015 i.e. for a

period of eleven years. In my opinion, the continuance of the petitioner for

another three years would be contrary to the spirit of Section 6(5) and the

petitioner is not entitled to any discretionary relief for this reason also.

26. Faced therewith the counsel for the petitioner contends that another

person, Mr. Deshmukh who was also elected in the year 2004 and who had

unsuccessfully contested the election of 2007 but who also continued to

function as a member of the Council from 2007-2012 and was re-elected in

the year 2012 has been allowed to contest the election. He contends that the

respondent no.1 has thus discriminated between him and Mr. Deshmukh.

27. In my view, it cannot be said that the petitioner and Mr. Deshmukh

are identically placed. While the petitioner after 2004 was re-elected in the

year 2007, Mr. Deshmukh admittedly was not. I have also enquired from the

counsel for the petitioner whether the petitioner in accordance with the

opportunity given in the Election Notification dated 15 th June, 2015 supra

raised any objection to the eligibility of Mr. Deshmukh. The answer is in the

negative. The petitioner having not raised any objection to the eligibility of

Mr. Deshmukh in accordance with the procedure of election, cannot be now

permitted to contend that Mr. Deshmukh is not eligible.

28. The petition therefore fails and is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

JULY 07, 2015 pp/gsr

(Corrected and released on 29th July, 2015)