Judgment :- KOSHAL J. The petitioner before me is the Madura Hindu Permanent Fund Ltd., a limited company carrying on the business of advancing loans to its shareholders and hereinafter referred to as the company. In the year 1970 the company had 12 directors out of whom M. Mariappa Chettiar was elected to perform the duties of a director-surveyor. He continued to perform his functions as such up to the 31st July, 1970, and with effect from the 1st day of August, 1970, another director, viz., Shri C. Bommaiah Naidu, was elected director-surveyor instead. Both these directors were paid a salary in lieu of the performance by them of their duties as surveyors. This fact having come to the knowledge of the Registrar of Companies, Madras (hereinafter referred to as "the Registrar"), he objected to their appointment as surveyors on the ground that it had been made in contravention of section 314 of the Companies Act. In order to meet the objection of the Registrar, the company wrote to him a letter dated the 2nd December, 1971, the relevant portion of which is extracted below : "We are advised to state that the provisions of section 314 of the Companies Act are not attracted at all and the appointment of the directors to render services as surveyors was made only in view of the company entertaining the opinion that the said directors have the qualifications and experience to be appointed as the technical adviser to the company. The section itself contemplates that if a person answers the description of a technical adviser such a person is excluded from the operation of section 314. We state that the appointment of Sri M. Mariappa Chettiar and Sri D. Bommaiah was made in pursuance of the confidence which the company had in the directors to act as surveyors of the company. You have not stated or shown as to how the said directors hold any 'office or place of profit ' as postulated by section 314(1). We state that the appointment of Sri M. Mariappa Chettiar and Sri D. Bommaiah was made in pursuance of the confidence which the company had in the directors to act as surveyors of the company. You have not stated or shown as to how the said directors hold any 'office or place of profit ' as postulated by section 314(1). You would appreciate that the Companies Act does not prescribe any qualifications for a person to act as a technical adviser and this would only mean that the object of the framers of the Act is to leave it to the discretion of the company to appoint its own directors to act as technical or legal adviser." * This position was not acceptable to the Registrar, who informed the company, by his letter dated the 13th January, 1972 : "An ordinary director is not entitled to any remuneration other than his sitting fees. Therefore, if any remuneration for any services rendered by the director is paid by the company, then he will be holding an office of profit within the meaning of section 314. The company seems to be confusing the issue with the appointment of a director under section 309(1) and the opinion formed by the company regarding the ability of the director to render such services under the proviso to section 309(1). Therefore, the mere fact that the board of directors is satisfied with regard to the capacity of the director to render service as a surveyor will not take away the case out of section 314. The requirement of section 314 is independent of section 309, unless the appointment comes under any of the exceptions. Further, it appears that Shri Bommaiah has been appointed as a surveyor pure and simple and there is no reference to his appointment as a technical adviser. In this connection, it may also be stated that persons who are appointed to occupy the post as technical advisers and legal advisers should, prima facie, have qualification to discharge the duties as such. A company merely calling any of those nomenclatures by itself will not take away the case out of the purview of section 314 of the Companies Act, 1956. A company merely calling any of those nomenclatures by itself will not take away the case out of the purview of section 314 of the Companies Act, 1956. The company is, therefore, advised to comply with the requirements of section 314(1) as, otherwise, the consequences of sub-section (2) of section 314 will automatically follow, apart from exposing the company to prosecution under section 629A of the Companies Act, 1956." * It is this stand of the Registrar which the company attacks under article 226 of the Constitution of India with the prayer that it be quashed by a writ of certiorari.The relevant portion of section 314 of the Companies Act is reproduced below : "314. (1) Except with the consent of the company accorded by a special resolution, -- (a) no director of a company shall hold any office or place of profit, and (b) no partner or relative of such a director, no firm in which such a director or relative is a partner, no private company of which such a director is a director or member, and no director, managing agent, secretaries and treasurers or manager of such a private company shall hold any office or place of profit carrying a total monthly remuneration of five hundred rupees or more, except that of managing director, managing agent, secretaries and treasurers, manager, legal or technical adviser, banker or trustee for the holders of debentures of the company (i) under the company ; or (ii) under any subsidiary of the company, unless the remuneration received from such subsidiary in respect of such office or place of profit is paid over to the company or its holding company ; Provided that it shall be sufficient if the special resolution according the consent of the company is passed at the general meeting of the company held for the first time after the holding of such office or place of profit." * The case propounded on behalf of the company is that in the performance of his duties all that a surveyor is called upon to do is to examine buildings and other properties and to assess the price thereof for the purpose of finding out whether the same would be adequate security for the loans to be advanced by the company to its members and that, therefore, his position is nothing but that of a technical adviser within the meaning of that expression as used in section 314. The correctness of this proposition is not seriously challenged on behalf of the Registrar whose learned counsel, however, contends that a technical adviser must, in the very nature of things, have technical knowledge which qualifies him for performing his functions, that in the absence of such qualifications a person appointed to perform a technical job cannot be deemed to be a technical adviser within the meaning of that expression as used in the section and that as neither Shri M. Mariappa Chettiar nor Shri D. Bommiah possessed any technical qualifications they could not be considered to have been appointed technical advisers within the meaning of the section. This contention, in my opinion, is flawless. On behalf of the company it is no doubt stated that both these gentlemen did have the necessary technical knowledge, but the source of such knowledge or the qualifications by reason of which they must be deemed to have acquired it, are not stated. Even at the hearing, learned counsel for the company could not enlighten me about those qualifications except for saying that they had been directors in the company for a long period and, therefore, had acquired the necessary knowledge to equip them with the qualifications for carrying out surveying work. As it is, however, no reference to such experience or the length thereof was made at any stage of the correspondence between the company and the Registrar ; nor does the same find a place in the petition and must, therefore, be regarded as an afterthought. Accordingly, I find that the two directors in question were appointed surveyors without having any qualifications for the job and if that be so, they could not be regarded as technical advisers, for it is not open to a company to give the designation of technical adviser to any director and appoint him as such and thereby avoid the consequences of section 314. A technical adviser to be regarded as such within the meaning of the section has to be a person with technical qualifications for the job entrusted to him which consists of rendering advice to the company in matters relating to its business. If an employee of the company does not have the necessary technical qualifications for a proper performance of the duties assigned to him or if his job is not restricted to rendering technical advice, he cannot be considered to be a technical adviser as contemplated by the section. If this were not so, it would be open to the company to appoint any person to any job, call him a technical adviser and defeat the provisions of the section completely. That could not be the intention of the section.In support of the petition a contention was raised that a special resolution such as is envisaged by the proviso above extracted was passed by the company and that, therefore, the appointment of the two directors concerned as directors-surveyors was properly ratified. That could not be the intention of the section.In support of the petition a contention was raised that a special resolution such as is envisaged by the proviso above extracted was passed by the company and that, therefore, the appointment of the two directors concerned as directors-surveyors was properly ratified. However, this contention was not raised in the petition ; nor is there any evidence that a special resolution according the consent of the company to the appointment of directors-surveyors at the general meeting of the company held for the first time after such appointment was passed. A special resolution in that behalf has been produced at the hearing for my inspection, but that purports to have been passed on the 18th of March. 1972, i.e., more than a year and a half subsequent to the appointments and for aught we know it was not passed in the first general meeting held after the appointments were made. For the application of the proviso it is necessary for the company to show that the meeting in question was such a first meeting. Having failed to prove that, the company cannot take any advantage of the proviso. In the result, I hold that no fault can be found with the impugned order of the Registrar. Accordingly, the petition fails and is dismissed, but with no order as to costs.