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Judgment
K. Chandru, J.—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 u/s 3 of the Architects Act, 1972 (Central Act,
20/1972)?
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.
For the purpose of the present case, the provisions found u/s 3(3)(a) of the Act may be extracted below:
Constitution of Council of Architecture.-(3)(a)five architects possessing recognized qualifications elected by the Indian Institute of Architects
from among its members;
The Indian 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 u/s 3(3)(a) is set out in Section 6(1) of the Act. u/s 6(5), members
of the Council are eligible for re-election or re-nomination, but not exceeding three consecutive terms. u/s 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.
Insofar as the President of the institute is concerned, the bylaw No. 24 provides as follows:
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.
(Emphasis added)
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:
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.
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 u/s 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.
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.
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.
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.
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.
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.
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.
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, .
(b) C.B.I. Anti-Corruption Branch, Mumbai Vs. Narayan Diwakar, .
(c) Union of India and Others Vs. Adani Exports Ltd. and Another, .
(d) Kusum Ingots and Alloys Ltd. Vs. Union of India (UOI) and Another, .
(e) National Textile Corpn. Ltd. and Others Vs. Haribox Swalram and Others, .
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 at least 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.
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.
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.
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 v. K. Venkatesan reported in 1998 (1) L.W. 605 and paragraphs 16,
17 and 21 of the judgments are usefully extracted below:
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.
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 Article 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.
....
It is, therefore, held that under no circumstances, a writ petition filed under Article 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.
The second decision of the Division Bench of this Court in R.M. Muthuveerappan, etc. v. Government of Tamil Nadu reported in 1996 WLR
360 and the passage from paragraph 16 of the judgment is usefully extracted:
...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.
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 v. V.P.R. Raja and Ors. reported in 2007 WLR 153.
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.
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.
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:
...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.
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 u/s 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 u/s 2(d) means that any qualification in architecture for
the time being included in the schedule or notified u/s 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 u/s 15 and he must be a member of the Indian
Institute of Architects and elected by the institute.
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.
In this context, it is necessary to refer to a judgment of the Supreme Court in G. Narayanaswami Vs. G. Pannerselvam and Others, , 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:
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 Maxwell''s 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 language 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.
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. Devies), ''that the beliefs and assumptions of those who frame Acts of Parliament
cannot make the law''.
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.
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.
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 Bombay; British India General Insurance Co. Ltd. v. Captain Itbar Singh;
B.G. Jacob v. Union of India. Courts may depart from this rule only to avoid a patent absurdity (see e.g. State of Madhya Pradesh v. Azad Bharat
Finance Co. In Hira Devi v. District Board, Shahjahanpur 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.
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.
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.
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.
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 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.
The said view was taken in Manohar Nathurao Samarth Vs. Marotrao and Others, , wherein the Supreme Court in paragraphs 10 to 14 and
16 had observed as follows:
The regulations have been framed u/s 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.
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 citizen''s 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.
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.). 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.
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.
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 fulfill. 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:
(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.
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 Republic''s 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.
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 u/s 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.
Accordingly, all the three writ petitions are allowed. However, there will be no order as to costs. Consequently, connected miscellaneous
petitions stand closed.