Mitter, J. - (1.) This case involves the interpretation of Section 30 of the Chartered Accountants Act, 1949, and the principal point for determination is whether the provision in Regulation 34 for refund of premium chargeable for the training of an articled clerk, purported to have been made in exercise of the powers given under Section 30, is ultra vires the said section.
(2.) The first defendant, the Institute of Chartered Accountants of India, was constituted under the said Act. The plaintiff is a Fellow of the Institute. The second defendant, Prasanta Kumar Dutt, claims to be an Articled Clerk. The suit is for, inter alia, a declaration that the Articles of Apprenticeship made between the plaintiff and the said Prasanta Kumar Dutt on April 1, 1950 are valid; a declaration that the refusal by the defendant Institute to register the said articles is wrongful and illegal; a declaration that the said articled clerk be regarded as having been registered in the books of the Institute as from April 1, 1950 and for an injunction restraining the defendant Institute from disallowing the said articled clerk to take part in the examinations prescribed under the Act or the plaintiff from taking or charging a premium from the said articled clerk.
(3.) In order to appreciate the facts which give rise to the plaintiff's cause of action and the point which falls to be determined, it is necessary to refer to some of the provisions of the Act. The preamble is in these terms: "Whereas it is expedient to make provision for the regulation of the profession of accountants and for that purpose to establish an Institute of Chartered Accountants; Section 3 provides for the incorporation of the Institute and is as follows: "3 (1) All persons whose names are entered in the Register at the commencement of this Act and all persons who may hereafter have their names entered in the . Register under the provisions of this Act, so long as they continue to have their names borne on the said Register, are hereby constituted a body corporate by the name of the Institute of Chartered Accountants of India, and all such persons shall be known as members of the Institute." (2) * * * *" Under Section 5 the members of the Institute are divided into two classes designated respectively as Associates and Fellows. Section 9 provides for the constitution of a Council of the Institute for the management of the affairs of the Institute and for discharging the functions assigned to it under the Act. Section 15 prescribes the functions of the Council in these terms: "15(1) The duty of carrying out the provisions of this Act shall be vested in the Council. (2) In particular, and without prejudice to the generality of the foregoing power, the duties of the council shall include. (2) (b) the regulation of the engagement and training of articled clerks;" Section 30 of the Act which deals with the Council's power to make regulations is in the following terms; "80(1) The Council may, by notification in the 'Gazette of India', make regulations for the purpose of carrying out the objects of this Act, and a copy of such regulations shall be sent to each member of the Institute. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters: (j) the training of articled clerks and the fixation of limits within which premia may be charged from such clerks and the cancellation of articles for misconduct or for any other sufficient cause; Then follow several other matters with which, however, we are not concerned. Regulation 32 provides that only Fellows in practice shall be entitled to take articled clerks. Regulation 34 is in these terms: "the Council may from time to time prescribe the maximum and minimum rates or premium that can be charged from an articled clerk. But any premium charged by the employer shall be refunded by him in full to the articled clerk in such instalments as the former may deem fit but not later than 14 days after the date of the completion of the articles subject to satisfactory service and good conduct of the articled clerk: Provided that if the articles are cancelled under regulation 39, the premium, if any, received by the employer shall be made over by the employer to the council for such use as it may deem fit." Regulation 36 provides for execution and registration of articles and is as follows: The articles shall be executed in Form L or Form M according as the candidate for articled clerkship is of full age or is a minor, and shall be stamped. The articles together with the necessary documentary evidence showing that the conditions laid down in Regulation 35 are satisfied, shall be sent to the Secretary to the Council for registration so as to reach him within sixty days after the execution of the articles or their commencement whichever is earlier and shall be accompanied by a fee of Rs. 30/- and by a statement giving particulars of the name, father's name, residence and age of the articled clerk." Regulation 37 provides for a register of articled clerks. Regulation 39 deals with cancellation of articles. The material parts of Form L (which is used when the articled clerk is of full age) are as follows: " * * * Witness as follows that is to say: 1. In consideration of the covenants by the Articled Clerk hereafter contained and of the premium of Rs............. paid by the Articled Clerk (the receipt whereof the employer doth hereby acknowledge) the Employer agrees to take the Articled Clerk as his Articled Clerk for the term of...... years from the.........day of............";