W.P.NOs.29145, 30408 and 35168 of 2007 and M.P.Nos.1,1 and 1 of 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21. 06. 2011
THE HONOURABLE MR. JUSTICE K. CHANDRU
W. P. NOs. 29145, 30408 and 35168 of 2007 and M. P. Nos. 1,1 and 1 of 2007
Indian Institute of Architects,
5th Floor, Prospect Chambers Annexe,
Dr. D. N. Road, Fort,
represented by its Joint Hon. Secretary,
Ar. Vijay Garg . . Petitioner in W. P. No. 29145 of 2007
K. Rajagopalan . . Petitioner in W. P. No. 30408 of 2007
Balbir Verma . . Petitioner in W. P. No. 35168 of 2007
1. Council of Architecture,
India Habitat Centre,
Cova 6A, 1st Floor, Lodhi Road,
rep by its Registrar,
Mr. Vinod Kumar.
2. Union of India
rep by its Secretary to Government,
Ministry of Human Resources & Development,
3. Ar. D. P. Sekar,
Surya Mansion, 4th Floor,
Chennai-600 006. . . Respondents 1 to 3 in
W. P. Nos. 29145, 30408 and 35168 of 2007
4. Indian Institute of Architects,
5th Floor, Prospect Chambers Annexe,
Dr. D. N. Road, Fort,
represented by its Joint Hon. Secretary,
Ar. Vijay Garg . . 4th respondent in
W. P. Nos. 30408 and 35168 of 2007
W. P. Nos. 29145, 30408 and 35168 of 2007 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent's order in proceedings bearing Ref. No. CA/1/2007/NMN(MHRD), dated 6. 8. 2007 and to quash the same and consequently to direct the first respondent not to interfere with the membership of the petitioner's representatives as Council Members and also not to interfere with the tenure of the membership of the petitioners as its council members.
For Petitioners : Mr. C. Seethapathy in all three writ petitions
For Respondents : Mr. N. Muralikumaran for R-1in all the three writ petitions
Mr. K. Balachandran, ACGSC for R-2 in all the three writ petitions
M/s. Mc Gan Law Firm for R-3 in all the three writ petitions
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The short question that arises for consideration in these three writ petitions is whether the petitioners in W. P. Nos. 30408 and 35168 of 2007 were disqualified from being members of the Council of Architects constituted under Section 3 of the Architects Act, 1972 (Central Act, 20/1972) ?
2. The Parliament had enacted law to provide for registration of architects and for matters connected therewith. Section 3(3) provides for composition of the Council of Architects. It comprises of several representatives both by way of nomination and by way of election. Representations were also given to nominees of the Indian Institute of Architects (IIA) , heads of architectural institutions etc.
3. For the purpose of the present case, the provisions found under Section 3(3) (a) of the Act may be extracted below:
"3. Constitution of Council of Architecture. -
(3) (a) five architects possessing recognized qualifications elected by the Indian Institute of Architects from among its members;"
4. TheIndian Institute of Architects referred to in the said provision is a society registered under the Societies Registration Act, 1860 as a voluntary organisation of the architects. The term of office of members elected under Section 3(3) (a) is set out in Section 6(1) of the Act. Under Section 6(5) , members of the Council are eligible for re-election or re-nomination, but not exceeding three consecutive terms. Under Section 5(2) , a dispute arising regarding any election matters will have to be referred to by the Council to a Tribunal constituted by the Central Government by a notification in the official Gazette in this behalf and that the decision of the Tribunal is final. The constitution and bylaws of the Indian Institute of Architects which is a registered association provides for election of members, students and subscribers. The Governing body of the institute was to be maintained by the Council. The Council will hold the office for a period of two official years. The Council of the institute consists of the President, 2 Vice Presidents, a Honorary Treasurer, two or more Joint Secretaries, the Immediate past President (ex-officio) , Chairman of the five Regional Committees, Chairman of all Chapters, the Honarary Editor of the Journal appointed by the Council as well as 7 to 10 elected members of the Council. The Council was also given power to co opt not more than two members with full voting right.
5. Insofar as the President of the institute is concerned, the bylaw No. 24 provides as follows:
"24. President :
The President shall be a Fellow of the Institute and shall not hold office for more than two consecutive terms. He shall always when present, preside at all meetings of the Council and the General Body. He shall have power to convene meetings of the Council at any time when he considers it necessary. He shall not hold any elected office, after the expiry of his term except as the Immediate Past-President, for a period of six years thereafter. "
6. The Central Government by a statutory notification, dated 30. 8. 2004 appointed five architects possessing recognized qualifications and elected by the Indian Institute of Architects from among the members to be the members of the Council of Architects with effect from 14. 6. 2004. It was notified that from the date of their election, they will hold the office for a period of three years or until their successors were duly elected whichever is earlier and subject to the outcome of the two writ petitions pending before this court. In the said notification, in respect of northern region, one architect Balbir Verma of New Delhi (petitioner in W. P. No. 35168 of 2007) was nominated. In respect of southern region, architect K. Rajagopalan (petitioner in W. P. No. 30408 of 2007) was nominated. Their elections were not questioned in terms of Section 5 of the Architects Act, 1972. Section 5 reads as follows:
"5. Mode of elections. (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. "
7. On the contrary one architect by name D. P. Sekar sent a representation, dated 6. 2. 2007 stating that the petitioners in W. P. Nos. 30408 and 35168 of 2007 cannot hold the office of members of the Council of Architects. He further stated that as per bylaw No. 24, these two persons cannot hold the office. Since they were immediate past Presidents being the earlier Presidents of the Institute, they had become members of the society. But, since the bylaw prohibits such persons from holding any other elected office, they cannot be the members of the Council of Architects constituted by the Central Act, 20/1972 and hence they suffer disqualification. He also filed a writ petition in W. P. No. 20358 of 2007seeking for a direction to the council of Architects to consider his representation, dated 6. 2. 2007 followed by a reminder dated 21. 3. 2007. It is subsequent to the filing of the writ petition, those two individuals, i. e. , M/s. Balbir Varma and K. Rajagopalan, were impleaded on 11. 7. 2007 in M. P. No. 1 of 2007. Even before any notice could be served on them and their reply could be received, this court by an order dated 21. 7. 2007 had directed the Council of Architects to consider the representation in accordance with law. In normal circumstances, that writ petition should have been dismissed as not maintainable since the procedure for disqualifying the members is clearly provided under Section 5 of the Act. An application by the aggrieved person should have been filed within 30 days from the date of declaration of election. In the present case, the notification by the Central Government by the Ministry of Human Resource Department was issued as early as 30. 8. 2004.
8. Acting upon the direction, the Council of Architects, by an order dated 6. 8. 2007 withdrew the nominations made in favour of M/s. Balbir Varma and K. Rajagopalan and had declared that their term in the council is illegal and null and void. It was also declared that the seat held by them was vacant. This order of the council came to be issued pursuant to the direction issued by this court, dated 21. 7. 2007 in W. P. No. 23058 of 2007 and upon representation made by the said D. P. Sekar who was the architect from Chennai. The Council heavily relied upon the bylaw No. 24 of the society in which Balbir Varma was the President and Mr. K. Rajagopalan was the Vide President. In the operative portion of the impugned order, it was stated as follows:
"Upon examining the issue in detail, it is noted that both Shri Balbir Verma and Shri K. Rajagopalan were included vide notification no. 17-2/2004-TS. VI dated 30. 08. 2004, of Central Government as members of the Council, however, on that date while the first term of Shri Balbir Verma as President, IIA, had already expired and Shri K. Rajagopalan was only immediate Past-President of IIA and therefore, both these persons were not eligible to hold any elected office as per IIA bye-law 24 and as such to get elected to become members of the Council of Architecture.
It seems that both Shri Balbir Verma and Shri K. Rajagopalan have become members of the Council by misrepresentation/ concealing material facts, and who were otherwise ineligible for being elected to Council of Architecture as its members in view of Bye-law 24 of IIA Bye-laws.
In view of the above facts and the representations received as well as the direction of the Hon'ble High Court of Madras, the Council hereby withdraws immediately Shri Balbir Verma and Shri K. Rajagopalan as its members and also declare their whole term in the Council as illegal and therefore is null and void. Accordingly, the Council declares these two seats as vacant. "
9. Challenging the disqualification, the Indian Institute of Architects represented by its Joint Honarary Secretary of Mumbai filed W. P. No. 29145 of 2007. In that writ petition, notice was ordered to the respondents. Subsequently, the two disqualified members M/s. K. Rajagopalan and Balbir Verma themselves filed the other two writ petitions, i. e. , W. P. Nos. 30408 and 35168 of 2007, challenging the very same order. The first writ petition was admitted on 21. 9. 2007 and that the second writ petition was admitted on 16. 11. 2007. In the writ petition filed by Mr. Rajagopalan, status quo as on 21. 9. 2007 for a period of four weeks was directed to be maintained. In the writ petition filed by Balbir Varma, an interim stay was granted on 16. 11. 2007.
10. After notice from this court, a common counter affidavit was filed by the Council dated 1. 12. 2009 in the first two writ petitions and in the third writ petition, a separate counter affidavit was filed on 1. 12. 2009.
11. As against the court refusing to grant complete stay in W. P. No. 30408 of 2007, K. Rajagopalan filed a writ appeal being W. A. No. 1259 of 2007. A division bench of this court had granted an interim stay on 6. 10. 2007. Subsequently, a vacate stay petition was filed by the Council of Architecture, the division bench made the stay absolute and disposed of the writ appeal by an order dated 4. 1. 2010 and also directed expeditious disposal of the writ petitions. Therefore, all the three writ petitions were grouped together and heard.
12. Heard the arguments of Mr. C. Seethapathi, learned counsel appearing for the petitioners in all three writ petitions, Mr. Murali Kumaran, learned Standing Counsel for the Council of Architects and that the third respondent, the original complainant D. P. Sekar being represented by M/s. Mc Gan Law Firms.
13. Before dealing with the merits of the case Mr. Murali Kumaran, learned Standing Council for Architects raised two preliminary objections for hearing the main writ petitions. The first objection was the term of the office of the two individuals had already come to an end. Therefore, the writ petitions have become infructuous. He also submitted that W. P. Nos. 29145 and 35168 of 2007 are not maintainable within the territorial jurisdiction of this court. He stated that admittedly the petitioner in W. P. No. 35168 of 2007 was the resident of New Delhi and that the impugned order was passed by the council headquarters at New Delhi. In W. P. No. 29145 of 2007, the society's headquarters was at Mumbai and that the order of the council was served to the society at Mumbai. Therefore the two writ petitions are clearly not maintainable in view of the territorial jurisdiction conferred under Article 226 of the Constitution of India.
14. In support of the second contention, the learned counsel relied upon the following judgments :
(a) Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others reported in (1994) 4 SCC 711.
(b) C. B. I. Anti Corruption Branch, Mumbai Vs. Narayan Diwakar reported in (1999) 4 SCC 656.
(c) Union of India and others Vs. Adani Exports Ltd and another reported in (2002) 1 SCC 567.
(d) Kusum Ingots & Alloys Ltd. Vs. Union of India and another reported in (2004) 6 SCC 254.
(e) National Textile Corporation Ltd and others Vs. Haribox Swalram and others reported in (2004) 9 SCC 786.
15. Taking the second contention first, it must be stated that there is no quarrel with the propositions of law laid down by the Supreme Court in the decisions cited by Mr. Murali Kumaran, learned Standing Council for the Council of Architects. But, in the present case, dismissal of these two writ petitions, i. e. , W. P. Nos. 29145 and 35168 of 2007 on the ground of want of territorial jurisdiction will not end this case because the petitioner in W. P. No. 30408 of 2007 is very much residing within the jurisdiction of this court and that the orders were received by him at Chennai. The first respondent Council of Architects is an all India body created by the Central Act, 20/1972. Therefore, this court has jurisdiction to go into the legal issue raised in these writ petitions atleast in W. P. No. 30408 of 2007. Therefore, the issue will have to be necessarily gone into in these two writ petitions. Hence the second objection fails.
16. With reference to the first objection that the writ petitions have become infructuous, it must be noted that the petitioners had the benefit of the interim order passed by this court and had completed their term. But pursuant to the direction issued by this court, the Council had decided the issue. The issues raised herein are to be perpetually raised at every election. Since the interim orders were also subject to the result of the final order to be passed in the writ petition, the writ petitions cannot be rejected on the ground that there being infructuous. Hence the first objection also must fail.
17. There is yet another issue which will have to be decided was when this court gave a direction in W. P. No. 23058 of 2007, dated 21. 7. 2007, this court did not even hear M/s. Balbir Verma and K. Rajagopalan, but merely impleaded them and that without notice to them, a direction was issued to the Council of Architects to consider the representation of Mr. D. P. Sekar who sought for disqualification. Such a direction without notice to the parties is clearly impermissible. Time and again this court and the Supreme Court have emphasised that no direction can be issued, however innocuous it may be, without hearing the affected parties.
18. In this context, two division benches of this court have held that a direction to the statutory authorities without hearing necessary parties was impermissible. First is the judgment in Director of Handlooms and Textiles Vs. K. Venkatesan reported in 1998 (1) L. W. 605 and paragraphs 16,17 and 21 of the judgments are usefully extracted below:
"16. A catena of decisions have been rendered highlighting the cardinal duty in extending the reasonable opportunity before a decision is taken prejudicial to the interests of a party.
17. The nature of relief prayed for in the writ petition is not one if not granted, would put the petitioner in imminent danger or injury or hazard to paramount public interests. It is not a case in which holding of elections had been notified to be held by the time and date already fixed. The order nowhere hints out the competing claims of hurry and hearing. Rather, no reason is found in the order, even for granting the relief. It is not an order where by following the earlier binding decisions of Courts, the petitioner gets allowed. Even under such circumstances, it is done by a court only after notice to the respondents or by their Standing Counsel taking notice in court. Allowing a writ petition straightaway when it comes up for admission is therefore an improper disposal, even though the power exercisable is under Art. 226 of the Constitution of India. The principles of fair play and justice are not excluded, when this power is invoked. It has become necessary to elaborate upon this point because this is not the first case wherein a writ petition without issue of notice to respondents and without hearing them, gets ordered as it comes up for admission. There are instances in which writ petitions are dismissed in admission stage but directions are issued for compliance, which virtually results in petitioner getting the desired relief. This sort of directions or conditions imposed in admission stage, but technically concluding the order is dismissed or ordered accordingly, would not also be proper or permissible, because to the extent relief is extended by such manner of disposal leads to respondents without notice, being compelled to do certain acts, about which they have not been heard at all.
. . . . . . . . .
21. It is, therefore, held that under no circumstances, a writ petition filed under Art. 226 of the Constitution could be straightaway allowed without ordering notice to affected respondents or without hearing their counsel who may on instructions participate in the proceedings by taking notice for their clients. Equally issuing directions or imposing conditions while dismissing writ petitions in admission stage cannot be done, without hearing respondents who are to abide by the conditions. Exercise of Constitutional power in this fashion being inappropriate this court is put to the unpleasant task of amplifying and enlightening as to what ought not to have been done, and hence remit the matter, so that the proper procedure required in law has to be followed, before the writ petition is disposed of. Any decision of court without adherence to proper procedure being illegal, though the respondents are before this court, of whom two of them are appellants, it had still necessitated in reviving the writ petition for adherence to established procedure. "
19. The second decision of the Division Bench of this Court in R. M. Muthuveerappan, etc. Vs. Government of Tamil Nadu reported in 1996 WLR 360 and the passage from paragraph 16 of the judgment is usefully extracted:
"16. . . . Thus, there can be no doubt whatever that the order passed in W. P. No. 9947 of 1985 was illegal and ineffective. Further, it is seen from the records that the prayer in the writ petition was only to quash the order dated 25. 10. 1983 in G. O. Ms. No. 2245. Instead of considering that prayer and the eligibility of the petitioner for the grant thereof, the learned Judge had taken upon himself to direct the petitioner before him to make a fresh written representation within a particular period and directed respondents 1 and 2 therein to consider the same and pass orders. It should not be forgotten that the petitioner had no right whatever to make another representation and the respondents had no duty to consider the same. Even before the said writ petition was filed, the petitioner had several opportunities not only to make written representations, but also to appear in person before the concerned authority along with his counsel and make a representation. It was only after considering all those representations, the order dated 25. 10. 1983 was passed by the Government. In fact, if the learned Judge had given notice to the respondents it would have been established before him by production of the records that the petitioner representations dated 16. 11. 1983 and 14. 12. 1983 made to the Government and the Chief Minister were forwarded to the High Court and a rejection thereof was recommended by the High Court. There was no justification, therefore, for a direction in that writ petition to the Government and the High Court to consider a fresh written representation which may be made thereafter by the petitioner therein. In any event, the order made in that writ petition being illegal, cannot be taken advantage of by the petitioner herein. "
20. The above two judgments of the division bench were subsequently followed by an another division bench of this court in The Managing Director, Tamil Nadu Housing Board Vs. V. P. R. Raja and others reported in 2007 WLR 153.
21. Even assuming, since that direction was not under challenge, it must be noted that this court had merely directed the council of architects to consider the representation, dated 6. 2. 2007 in accordance with law and on merits. Such a direction is contrary to the provisions of Section 5 of the Architects Act, 1972. The act provides for remedy by way of election dispute and that has to be decided only by the Tribunal. The said provisions also provides for limitation. Since the disqualification of the two individuals is essentially a dispute relating to the election, the council has no power to decide such an election dispute on its own, without recourse to send it to the Tribunal. However, pursuant to the direction, the council had passed the impugned order and had disqualified the members and also came to this court to defend its action.
22. In the counter affidavit also, the jurisdiction to decide the issue is traced only pursuant to the order passed by this court, dated 21. 7. 2007. Though this court could have set aside the order of the Council on the ground that it has no jurisdiction to decide the issue and it ought to have brought before this Court the provisions of Section 5 of the Act, it is unnecessary to do so at this juncture. Therefore, this court decides to go into the merits of the impugned order.
23. The understanding of the council in disqualifying the two individuals is revealed in paragraph 7 of the counter affidavit filed in W. P. No. 35168 of 2007, which reads as follows:
"7. . . . that IIA bye-laws under which the petitioner is governed and body whom he is representing did not permit under its bye-laws its office bearers under bye-law 24 i. e. President to hold and elected office after the expiry of his term for a period of 6 years. The present petitioner held the office of the President of IIA and attracted this prohibition of not to hold any elected office such as becoming a member of this respondent Council for a period of 6 years. The contention that the prohibition applied to elected office in IIA and not any other office is incorrect and the bye-law 24 is very much and covers all elected offices. "
24. Before examining whether bylaw No. 24 of the society will have any application for disqualification by the statutory council, one must see the true meaning of the representative character of the members found in Section 3(3) (a) . The said provision comprise of three portions. It allows five architects possessing recognised qualifications. The term "architect" is defined under Section 2(a) . The term "architect" means a person whose name is for the time being entered into the register. Likewise, the term "recognised qualification" is defined under Section 2(d) means that any qualification in architecture for the time being included in the schedule or notified under Section 15. There is no dispute that M/s. Balbir Verma and K. Rajagopalan are architects within the meaning of Section 2(a) and that they have recognised qualification in terms of Section 2(d) . The other qualifications found in Section 3(3) (a) is that those persons should be elected by the Indian Institute of Architects from among its members. Therefore, the import of Section 3(3) (a) is that an architect must have his name found in the Register, must have the recognised qualification notified under Section 15 and he must be a member of the Indian Institute of Architects and elected by the institute.
25. The types of representations given to the particular society is unique. Once the section qualifies the nature of membership, it is not for the Council of Architecture to decide whether the members who were elected by the society called as Indian Institute of Architects were in any way disqualified under the bylaw of that society. On the other hand, the Council of Architecture had nothing to do with the workings of the bylaws of the society, which is purely contractual in nature. In essence, it is the representations given in the form of guild representations to a particular society and as to who was elected by the said society is not the concern of the Council of the Architecture.
26. In this context, it is necessary to refer to a judgment of the Supreme Court in G. Narayanaswami v. G. Pannerselvam reported in (1972) 3 SCC 717, wherein the Supreme Court had considered the scope of Article 171 of the Constitution. Under Article 171, while providing for composition of legislative councils, certain representations were given to the graduates of the recognized Universities under Article 171(3) (b) . It was contended in that case that since it is a representation given to graduates candidates who contest in the constituency must also be a graduate. But the Supreme Court while analysing the history of the constitution held that it was the representation given to the body of persons and as to who they elect is not set out in the Article. Therefore, even a non graduate can be elected as a representative of the graduate constituency. It is clear from the said judgment. The following passages found in paragraphs 4,12,14,15 and 18 may be usefully reproduced below:
"4. Authorities are certainly not wanting which indicate that courts should interpret in a broad and generous spirit the document which contains the fundamental law of the land or the basic principles of its Government. Nevertheless, the rule of plain meaning or literal interpretation, described in Maxwells Interpretation of Statutes as the primary rule, could not be altogether abandoned today in interpreting any document. Indeed, we find Lord Evershed, M. R. , saying: The length and detail of modern legislation, has undoubtedly reinforced the claim of literal construction as the only safe rule. (See: Maxwell on Interpretation of Statutes, 12th Edn. , p. 28. ) It may be that the great mass of modern legislation, a large part of which consists of statutory rules, makes some departure from the literal rule of interpretation more easily justifiable today than it was in the past. But, the object of interpretation and of construction (which may be broader than interpretation) is to discover the intention of the law-makers in every case (See: Crawford on Statutory Construction, 1940 Edn. , para 157, pp. 240-42) . This object can, obviously, be best achieved by first looking at the languge used in the relevant provisions. Other methods of extracting the meaning can be resorted to only if the language used is contradictory, ambiguous, or leads really to absurd results. This is an elementary and basic rule of interpretation as well as of construction processes which, from the point of view of principles applied, coalesce and converge towards the common purpose of both which is to get at the real sense and meaning, so far as it may be reasonably possible to do this, of what is found laid down. The provisions whose meaning is under consideration have, therefore to be examined before applying any method of construction at all. To these provisions we may now turn.
12. It may be possible to look for legislative intention in materials outside the four corners of a statute where its language is really ambiguous or conflicting. But, where no such difficulty arises, the mere fact that the intentions of the law-makers, sought to be demonstrated by what was said by some of them or by those advising them when the Constitution was on the anvil, were really different from the result which clearly follows from the language used in the legislative provisions under consideration, could not authorise the use of such an exceptional mode of construction. It is well accepted, said Lord Morris (See: Devies Jenkins & Co v. Devies1) , that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law.
14. Whatever may have been the opinions of Constitution-makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as functional or vocational representation which has been advocated by Guild-Socialist and Syndicalist Schools of Political Thought. Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experience by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents.
15. In the case of the graduates constituency, it is provided in Article 171(3) (b) that the electors must have held their degrees for at least three years before they become qualified as electors. Thus, in laying down the test of competence of voters of such a constituency, mere possession of degrees by them was not considered sufficient. Moreover, graduates are not an occupational or vocational group but merely a body of persons with an educational qualification. It would, therefore, not be correct to describe the additional representation sought to be given to them as an attempt to introduce the functional or vocational principle. On the face of it, Article 171 appears to be designed only to give a right to choose their representatives to those who have certain types of presumably valuable knowledge and education. If the presumption of their better competence to elect a suitable representative is there, as we think that there must be, it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possesses the right type of knowledge, experience, and wisdom which satisfy certain standards. It may well be that the Constitution-makers, acting upon such a presumption, had intentionally left the educational qualifications of a candidate for election from the graduates constituency unspecified.
18. We think that the view contained in the Judgment under appeal, necessarily results in writing some words into or adding them to the relevant statutory provisions to the effect that the candidates from graduates constituencies of Legislative Councils must also possess the qualification of having graduated. This contravenes the rule of plain meaning or literal construction which must ordinarily prevail. A logical corollary of that rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made (See: Craies on Statute Law 6th Edn. , p. 70) . An application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible (see e. g. Sri Ram Ram Narain Medhi v. State of Bombay4, British India General Insurance Co. Ltd. v. Captain Itbar Singh5, B. G. Jacob v. Union of India6. Courts may depart from this rule only to avoid a patent absurdity (see e. g. State of Madhya Pradesh v. Azad Bharat Finance Co. 7 In Hira Devi v. District Board, Shahjahanpur8 this Court observed:
No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act.
27. From the above it is not to suggest that in the Council of Architecture a non architect can be elected as its member. That was why Section 3(3) (a) prescribes qualifications for getting elected to the particular constituency. It makes it clear that he must be an architect in possession of recognised qualification. The election is confined only to the members of the Indian Institute of Architects which is a registered society. Once a person is an architect possessing recognised qualification and if he is a member of the said society, then there is no impediment for him to stand for election except to the maximum term that is set out in Section 6(5) by which one cannot continue beyond three consecutive terms.
28. Whether the member who was so elected is prohibited from holding any elected office as found in the bylaw No. 24 is not the concern of the Council of Architecture so long as such person was elected by the society and he has all the qualifications. In fact a perusal of the bylaw No. 24 itself will show that the term "elected office" referred to therein is to an elected office under the society and not to any other elected office outside. At the time of forming of the society, the Act was not even contemplated. The Act came to be enacted only in the year 1972. Therefore, they would not have thought that a member of the society must be prohibited from holding any elected office beyond two terms. Even otherwise, that bylaw is strictly confined to the elected office under the society and not any unspecified offices which were not even under the contemplation of the framers of the bylaws.
29. Assuming that in the bylaw, there was prohibition for a person to hold the office outside the body, that cannot be held to be a disqualification while considering the elected office in the statutory body. Bylaws are in the nature of contract between the members of the society. If there is any violation of such bylaws, members will have to seek remedy only in terms of the bylaw and they cannot non suit a person, who is otherwise eligible to hold an office by virtue of his election under the statutory provisions
30. It will not be out of place to refer to a decision of the Supreme Court in this regard. The Supreme Court had an occasion to consider an appeal against the election petition wherein a member of a local body was sought to be disqualified not because he had suffered any electoral disqualification under the relevant municipal Act, but because in the place where he was working, i. e. , in the Life Insurance Corporation of India, his service conditions in the form of regulations required that no LIC employee can contest any election for a local body unless he gets prior permission from the Chairman of the LIC. A defeated candidate tried to non suit the elected member of the local body on the ground that the Councilor did not have permission of the Chairman of the LIC to stand for the election. Therefore, having violated the regulations of the LIC, his election was invalid under the municipal Act. The Supreme Court rejected the said contention stating that the regulations of the LIC are merely disciplinary in character and are not disqualificatory in an election law.
31. The said view was taken in Manohar Nathurao Samarth v. Marotrao reported in (1979) 4 SCC 93, wherein the Supreme Court in paragraphs 10 to 14 and 16 had observed as follows:
"10. The regulations have been framed under Section 49 of the LIC Act and a conspectus of the various chapters convincingly brings home the purpose thereof. All the regulations and the schedules exclusively devote themselves to defining the terms and conditions of service of the staff. Regulation 25 comes within Chapter III dealing with conduct and discipline of the employees. Regulation 39 deals with penalties for misconduct and Regulation 40 deals with appeals. The inference is irresistible that the sole and whole object of Regulation 25, read with Regulation 39, is to lay down a rule of conduct for the LIC employees. Among the many things forbidden are, for instance, prohibition of acceptance of gifts or speculation in stocks and shares. Obviously, we cannot read Regulation 32 as invalidating a gift to an LIC employee under the law of gifts, or Regulation 33 as nullifying transfer of stocks and shares speculatively purchased by an LIC employee. Likewise, Regulation 25 while it does mandate that the employee shall not participate in an election to a local authority cannot be read as nullifying the election or disqualifying the candidate. The contravention of the regulation invites disciplinary action, which may range from censure to dismissal.
11. Section 15(g) relates to the realm of election law and eligibility to be a member of a local authority. Ineligibility must flow from a specific provision of law designed to deny eligibility or to lay down disqualification. If a rule of conduct makes it undesirable, objectionable or punishable for an employee to participate in elections to a local authority, it is a distortion, even an exaggeration out of proportion, of that provision to extract out of it a prohibition of a citizens franchise to be member in the shape of a disqualification from becoming a member of a local authority. The thrust of Regulation 25 is disciplinary not disqualificatory. Its intent imposes its limit, language used by a legislature being only a means of communicating its will in the given environment. This is obvious from the fact that the Chairman is given the power to permit such participation by an employee depending on the circumstances of each case. Even the range of punishments is variable. No ground rooted in public policy compels us to magnify the disciplinary prescription into a disenfranchising taboo. To revere the word to reverse the sense is to do injustice to the art of interpretation. Reed Dickerson quotes a passage from an American case to highlight the guideline:4
The meaning of some words in a statute may be enlarged or restricted in order to harmonize them with the legislative intent of the entire statute. . . . It is the spirit . . . of the statute which should govern over the literal meaning.
12. There is a further difficulty in construing the Regulation as stipulating an ineligibility for candidature because there is a proviso therein for the Chairman to grant permission to the employee to participate in elections. Permission is a word of wide import and may even survive the death of the person who permits (Kelly v. Cornhill Insurnce Co. Ltd. 5) . Equally clearly, where a statute does not necessarily insist on previous permission it may be granted even later to have retrospective effect. Or permission once granted may be retracted. These legal possibilities will create puzzlesome anomalies if we treat the regulation as a ban on participation in election. An employee may stand as a candidate after securing permission, but in the course of the election the Chairman may withdraw the permission. What happens then? An employee may be refused permission in the beginning and if he still contests and wins it is conceivable that the Chairman may grant him permission which may remove the disability. In such a case, one who was ineligible at one stage becomes eligible at a later stage. Other odd consequences may also be conceived of, although it is not necessary to figure them out. The rationale of the regulation, rather, its thrust, is disciplinary not disqualificatory.
13. It is quite conceivable, if the legislature so expresses itself un-equivocally, that even in a law dealing with disciplinary control, to enforce electoral disqualifications provided the legislature has competence. The present provision does not go so far.
14. Even assuming that literality in construction has tenability in given circumstances, the doctrinal development in the nature of judicial interpretation takes us to other methods like the teleological, the textual, the contextual and the functional. The strictly literal may not often be logical if the context indicates a contrary legislative intent. Courts are not victims of verbalism but are agents of the functional success of legislation, given flexibility of meaning, if the law will thereby hit the target intended by the law-maker. Here the emphasis lies on the function, utility, aim and purpose which the provision has to fulfil. A policy-oriented understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used. Indeed, this approach is a version of the plain meaning rule,6 and has judicial sanction. In Hutton v. Phillips the Supreme Court of Delaware said:7
(Interpretation) involves far more than picking out dictionary definitions of words or expressions used. Consideration of the context and the setting is indispensable property to ascertain a meaning. In saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or far-fetched, or unusual, or unlikely.
16. There is a broader constitutional principle which supports this semantic attribution. The success of our democracy to tourniquet excess of authority depends on citizen participation. An inert citizenry indifferent to the political process is an enemy of the Republics vitality. Indeed, absolutism thrives on inaction of the members of the polity. Therefore, activist involvement in various aspects of public affairs by as many citizens as can be persuaded to interest themselves is a sign of the health and strength of our democratic system. Local self-government and adult franchise give constitutional impetus to the citizens to take part in public administration. Of course, this does not mean that where a plain conflict of interests between holding an office and taking part in the political affairs of government exists, a disqualification cannot be imposed in public interest. The rule is participation, the exception exclusion. Viewed from that angle, if a government servant or an employee of the LIC participates in local administration or other election it may well be that he may forfeit his position as government servant or employment, if dual devotion is destructive of efficiency as employee and be subject to disciplinary action a matter which depends on a given milieu and potential public mischief. I am not resting our decision on this general consideration but mention this persuasive factor as broadly supportive of our conclusion. "
32. If it is seen in the above angle, then the impugned order passed by the Council of Architecture is clearly without jurisdiction and contrary to law. Therefore, the impugned order, dated 6. 8. 2007 will stand set aside. It is hereby declared that there is no impediment for any member of the Indian Institute of Architects to contest for election so as to become the member of the Council of Architecture under Section 3(3) (a) but subject to other qualifications required under the Act. The bylaws of the society will have no bearing while contesting the election for the Council of Architecture subject to the provisions of the Act.
33. Accordingly, all the three writ petitions are allowed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
1. The Registrar,
Council of Architecture,
India Habitat Centre,
Cova 6A, 1st Floor, Lodhi Road,
New Delhi-110 003.
2. The Secretary to Government,
Union of India
Ministry of Human Resources & Development,
3. The Joint Hon. Secretary,
Indian Institute of Architects,
5th Floor, Prospect Chambers Annexe,
Dr. D. N. Road, Fort,
Mumbai 400 001