TaxTMI 
TaxTMI 
2018 (4) TMI 1413
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....ALLI, J 1. The present batch of writ petitions raise common issues with similar prayers and are being decided vide this common judgment. 2. The first writ petition bearing no. W.P.(C) No. 934/2012 has been preferred by Mr. Sudhir Vohra, an architect registered under the Architects Act, 1972 (hereinafter referred to as the "Act"), mainly seeking the issuance of a writ of mandamus directing the Registrar of Companies and Ministry of Corporate Affairs to not entertain registration applications from any 'company' or 'Limited Liability Partnership' (hereinafter referred to as "LLP") which states that it provides architectural services as of one of its objectives in its memorandum of association (hereinafter referred to as "MOA"). The Petitioner therein also prays for a direction to the Registrar of Companies and Ministry of Corporate Affairs to take timely action against the existing companies and LLPs which contain the provision of architectural services as one of their objectives, and initiate winding-up proceedings against those existing companies and LLPs that fail to delete such objectives from their MOA. He also makes an ancillary prayer for the issuance of a direction to the Co....
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....chitectural works in India, without the prior approval of the Central Government under the Act. Vide the Impugned Notice, the COA has essentially directed all companies and LLPs to stop such aforementioned alleged violations of the Act, by removing the word 'architect' or its derivatives from their respective names and styles, and by amending the objects in their respective MOAs to remove the provision of architectural services in any form. In the event of non-compliance by any company/LLP, the Impugned Notice directs that it should be wound up at the earliest. In fact, a perusal of the prayers in this writ petition shows that the Petitioner has also sought a declaratory direction that a company/LLP can validly provide architectural services as one of its objects by employing architects, subject to the restrictions contained in the Act. 5. Thus, what emerges is that the first two writ petitions seek (i) a direction that only architects registered under the Act can provide architectural services; and (ii) no company/LLP can use the title and style of 'architect' or its derivatives. The third writ petition essentially seeks directions to the contrary. The main thrust of the....
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....erivatives or using the same in their name. In this regard, he relies on Section 37 of the Act, which categorically prohibits any person other than a registered architect from using the title and style of 'architect' as also Section 36, which provides for a penalty in case of a violation of Section 37. His contention, thus, is that only architects, being natural persons registered under the Act, have the exclusive privilege to use the title/style of 'architect' or its derivatives. 9. Before proceeding further, it would be apt to refer to the relevant provisions of the Act, which read as under :- "2. Definitions.-In this, Act, unless the context otherwise requires,- (a) "architect" means a person whose name is for the time being entered in the register; (d) "recognized qualification" means any qualification in architecture for the time being included in the Schedule or notified under section 15; 14. Recognition of qualifications granted by authorities in India. (1) The qualifications included in the schedule or notified under section 15 shall be recognised qualifications for the purposes of this Act. (2) Any authority in India which grants an architectural qua....
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....e Central Government shall, as soon as may be, cause to be prepared in the manner hereinafter provided a register of architects for India. (2) The Council shall upon its constitution assume the duty of maintaining the register in accordance with the provisions of this Act. (3) The register shall include the following particulars, namely:- (a) the full name with date of birth, nationality and residential address of the architect; (b) his qualification for registration, and the date on which he obtained that qualification and the authority which conferred it; (c) the date of this first admission to the register; (d) his professional address; and (e) such further particulars as may be prescribed by rules. 25. Qualification for entry in register.- A person shall be entitled on payment of such fee as may be prescribed by rules to have his name entered in the register, if he resides or carries on the profession of architect in India and- (a) holds a recognized qualification, or (b) does not hold such a qualification but, being a citizen of India, has been engaged in practice as an architect for a period of not less than five years prior to the date appointed und....
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....r the purposes of clause (a)- (i) "landscape architect" means a person who deals with the design of open spaces relating to plants trees and landscape; (ii) "naval architect" means an architect who deals with design and construction of ships. (2) If any person contravenes the provision s of sub-section (1), he shall be punishable on first conviction with fine which may extend to five hundred rupees and on any subsequent conviction with imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both." 10. Mr. Bhagat further contends that the Act is a self-contained code, and the proviso to Section 37 exhaustively enumerates the only exceptions to the prohibition against the provision of architectural services and the use of the title and style of 'architect' or its derivatives, by persons unregistered under the Act. He submits that Section 37 makes it crystal clear, that there is no scope for a company/LLP to practice the profession of an architect or to provide architectural services. He contends that architecture is a profession and not a business and, therefore, like all other professions, only those persons who are registered....
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....istered architects. 14. Mr. Nath further contends that the profession of architecture is a regulated profession, as the Act not only defines the term 'architect' but also defines the term 'recognised qualification' under Section 2(d), which when read with Sections 14 and 15, shows that the Act refers to professional qualifications as opposed to mere academic qualifications. He, thus, submits that the prescription of professional standards as a prerequisite for being registered as an architect, shows that the practice of architecture is a privilege bestowed upon those possessing a specific aptitude. He submits that if the legislative intent was to allow anyone to practice architecture, including carrying out a business in architectural services, there would have been no need to define the term 'recognized qualification' in the Act as a pre-requisite for being registered as an architect. 15. Mr. Nath submits that the object of the Act is to ensure that the practice of architecture is elevated to the status of a profession and not treated as a business. He contends that, in furtherance of this object, the practice of architecture is strictly regulated not only by the various provisi....
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....ritten notice that he is so doing : provided that in the preliminary stages of works, the Client may consult, in order to select the Architect, as many Architects as he wants, provided he makes payment of charges to each of the Architects so consulted, xvi. comply with Council's guidelines for Architectural competitions and inform the Council of his appointment as assessor for an Architectural competition , xvii. when working in other countries, observe the requirements of codes of conduct applicable to the place where he is working , xxv. shall not advertise his professional services nor shall he allow his name to be included in advertisement or to be used for publicity purposes save the following exceptions :- (a) a notice of change of address may be published on three occasions and correspondents may be informed by post, (b) an Architect may exhibit his name outside his office and on a building, either under construction or completed, for which he is or was an Architect, provided the lettering does not exceed 10 cm. in height, (c) advertisements including the name and address of an Architect may be published in connection with calling of tenders, staff requirements and....
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....t herself/himself registered as an architect and make herself/himself subject to a number of restrictions imposed under the Act and the regulations framed thereunder. 19. Mr. Nath submits that a literal interpretation of Section 37 would result in the creation of two classes of persons to carry out the profession of architecture, namely:- (i) Registered architects, being natural persons possessing recognised qualifications, who are professionally accountable under the Act and the regulations framed thereunder; and (ii) Unregistered persons, including juristic entities, that can carry out the 'business' of rendering architectural services, without being professionally accountable to maintain the standards or abide by the restrictions prescribed under the Act and the regulations framed thereunder. This, Mr. Nath contends, would create an anomalous situation not envisaged by law, as it would defeat the very purpose of organizing the practice of architecture as a regulated profession in the larger public interest. 20. The Indian Institute of Architects has also filed an application bearing no. C.M. No. 37116/2017 for intervention and impleadment. Submissions on its behalf have bee....
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....ia. 23. Mr. Bhagat further submits that, based on the complaints of Mr. Sudhir Vohra and Mr. Anil Kumar Sharma, the COA had approached the concerned authorities for taking appropriate action for cancelling the FIPB approval granted to RSP Singapore. Thereafter, a meeting of the Foreign Investment Promotion Board (hereinafter referred to as the "FIPB") was held on 09.05.2012, in which a decision had been taken by the Board to inform the COA that, since the FIPB approval was subject to RSP India abiding by all Indian laws, the COA could take necessary action as per the provisions of the Act, if RSP India was found to be violating the provisions of the Act. 24. On the other hand, Mr. Anish Dayal, learned counsel for the Consulting Engineers Association of India, at the outset contends that the first two writ petitions are not maintainable on account of the inherent lack of the Petitioners' locus standi. By placing reliance on the judgments of this Court in National Federation of Telecom v. Bhartiya Sanchar Nigam Ltd. [W.P.(C) No. 2754-55/2005] and Sunita Arora v. Delhi University and Ors. [W.P.(C) No. 198/2016], he submits that the Petitioners must show a legal injury or a violation....
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....like RSP India that provide multi-disciplinary design and construction services are the need of the hour, since they consolidate the expertise from various disciplines to provide reliable services to their clients in a convenient manner. 30. Mr. Gupta further contends that the non-applicability of the Act does not render such companies/LLPs unaccountable for the services provided by them, or in any way unfairly disadvantage individual architects, as is sought to be contended by Mr. Bhagat. He submits that these juristic entities are accountable to their clients and have binding legal obligations at three levels. Firstly, they are legally bound by the individual contracts with their clients and are liable under the same for the breach of any obligations envisaged by such contracts. Secondly, the architect, who signs the sanction plans that are submitted to the requisite authority before commencement of any kind of construction activities, is answerable and liable under the Act and the applicable building laws. Thirdly, all the architects employed by the company/LLP are individually governed by the provisions of the Act and the rules made thereunder. 31. Mr. Milanka Chaudhary, lear....
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....profession of an Architect and also appointment of foreign architects without prior approval of Central Government under the Act for carrying out Architectural works in India. ......... The Ministry of Corporate Affairs, Govt. of India (MCA) has also issued a Circular No.2/2012 dated 1st March, 2012, directing that 'Where one of the objects is to carry on the business/profession of Architecture, then the concerned Registrar of Companies/Registrar of LLP shall incorporate the same only on production of in-principle approval/NOC from the concerned Regulator'. ......... Therefore, Companies/LLPs/individuals committing above violations are directed to step such violations by changing the name of the entity by removing the word 'Architect' or any its derivatives as part of their name & style and also after the objects/Memorandum of Association of the concerned entity to remove the intent to practice architecture/represent as architect/architectural consultant OR wind up such juridical entities, at the earliest, failing which COA may initiate Criminal Prosecution. Further, no foreign Architect/Consultant (not registered with COA) be appointed for Architectural works without followi....
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....provisions of the Act and the regulations framed thereunder, cannot be simply brushed away. In my considered view, in light of the observation of the Supreme Court in the case of Ratanlal (supra), the Petitioners cannot be non-suited on the ground of lack of locus. The decisions relied upon by Mr. Gupta and Mr. Dayal do not apply to the facts of the present case, in view of the admitted position that both the Petitioners, being registered architects, are seeking that only architects registered under the Act should be allowed to provide architectural services. 35. In determining whether the Architects Act makes the practice of architecture an exclusive privilege of registered architects, it may be useful to undertake a comparative analysis of the same with the Advocates Act, 1961 and Chartered Accountants Act, 1949 (hereinafter referred to as "CA Act"). Sections 29, 30 and 33 of the Advocates Act, which specifically prohibit persons, other than advocates whose names are enrolled with a State Bar, from practicing the profession of law, read as under:- "29. Advocates to be the only recognised class of persons entitled to practiselaw.-Subject to the provisions of this Act and any rul....
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.... the Government Diploma in Accountancy before the commencement of this Act, and who, although not duly qualified to be registered as an accountant under the Auditor's Certificates Rules, 1932, fulfils such conditions as the Central Government may specify in this behalf; (iv) any person who, at the commencement of this Act, is engaged in the practice of accountancy in any [Part B State] and who, although; not possessing the requisite qualifications to be registered as an accountant under the Auditor's Certificates Rules, 1932, fulfils such conditions as the Central Government may specify in this behalf; (v) any person who has passed such other examination and completed such other training without India as is recognised by the Central Government or the Council as being equivalent to the examination and training prescribed for members of the Institute: Provided that in the case of any person who is not permanently residing in India, the Central Government or the Council, as the case may be, may impose such further conditions as it may deem fit;] (vi) any person domiciled in India who at the commencement of this Act is studying for any foreign examination and is at the same time ....
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....ns similar to the ones in the former two. The Architects Act neither prescribes that only registered architects can provide architectural services, nor contains any clause prohibiting companies and LLPs from providing architectural services. In fact, what emerges from the entire scheme of the Architects Act is that it neither defines as to who can provide architectural services nor puts any fetters on persons who wish to provide architectural services. It merely defines an architect to mean a person whose name is entered in the register maintained by the COA and lays down the mandatory qualifications for an entry in the said register. On the other hand, the Advocates Act and CA Act include specific provisions laying down as to who can practice as an advocate or accountant. 38. Thus, the Act, while clearly prescribing that unregistered persons, including juristic entities, cannot describe or style themselves as architects, does not preclude any one from providing architectural services. Merely because the Act includes a specific provision prescribing that only a registered architect can use the title of an 'architect' or style himself/herself as an 'architect', it cannot be....
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.... in Crawford v. Spooner [(1846-49) 6 Moo PC 1 : 13 ER 582 : 4 MIA 179 : 18 ER 667] , aid the legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidators of Dehra Dun-Mussoorie Electric Tramway Co. Ltd. [(1932-33) 60 IA 13 : AIR 1933 PC 63] , for others than the courts to remedy the defect." 65. Mr Sorabjee has also rightly pointed out the observations made by Lord Diplock in Duport Steels Ltd. [(1980) 1 WLR 142 : (1980) 1 All ER 529 (HL)] In the aforesaid judgment, the House of Lords disapproved the approach adopted by the Court of Appeal in discerning the intention of the legislature; it is observed that: (WLR p. 157 C-D) "... the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the Judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because....
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....of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made." 42. I find that paragraphs (1) and (3) of the Statement of Objects and Reasons, which are reproduced hereinbelow, provide an important insight into what the legislature intended to achieve with the passing of the Act:- "1. Since Independence and more particularly with the implementation of Five-Year Plans, the building construction activity in our country has expanded almost on a phenomenal scale. A large variety of buildings, many of extreme complexity and magnitude, like multi-storeyed office buildings, factory buildings, residential houses, are being constructed each year. With this increase in building activity, many unqualified persons calling themselves as architects are undertaking the construction of buildings which are uneconomical and quite frequently unsafe, thus bringing into disrepute the profession of architects...With the passing of [the Act], it will be unlawful for any person to designate himself as 'architect' unless he has the requisite qualifications and experience and is registe....
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....design and supervise the erection of any building", Clause 37 thereof prohibited unregistered architects from using any name, style or title containing the word "architect", and Clause 38 of the same prohibited unregistered persons from practicing the profession of architecture. What further emerges is that the 1968 Bill was tabled before a Joint Committee of the Rajya Sabha and Lok Sabha. After much debate and discussion, the definition of architect in the 1968 Bill was amended to simply mean a person registered under the statute. Moreover, the prohibition contained in Clause 38 was removed, and Clause 37, was amended to protect the title and style of architect only. Thereafter, the amended 1968 Bill was tabled before the Parliament in 1972 by Professor S. Nurul Hasan as the Architects Bill, 1972 (hereinafter referred to as the "1972 Bill"). In the Parliamentary Debates on the 1972 Bill, Professor S. Nurul Hasan, the then Minister of Education, noted that "...any engineer or other qualified professional person can continue to engage himself in design, supervision and construction of buildings as long as he does not style himself as an architect." 45. Even though both Mr. Bhagat a....
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....nd other disciplines, such as civil engineering and design. Looked at from every possible angle, I find that neither of the two provisions can be construed to prohibit unregistered persons, including juristic entities, from rendering architectural services. Thus, not only a literal interpretation but even a purposive interpretation of the provisions, which has been emphasized by both Mr. Bhagat and Mr. Nath, also lends itself to my aforesaid conclusion. 47. At this stage, I may also refer to the decisions of various High Courts, which have already dealt with some of the provisions of the Act. In a decision dated 02.04.1980 in the case of Municipal Corporation of Delhi v. Ram Kumar Bharadwaj and Ors. [LPA No. 59/1975], a Division Bench of this Court, while dealing with a challenge to the Delhi Municipal Corporation's power to impose restrictions on a person's right to practice as an architect, held that the Act does not restrict the practice of architecture to persons registered under the Act. The relevant paragraph of the aforementioned judgment reads as under:- "4... Of course, unlike the Advocates Act, which restricts thereunder, the Architects Act does not restrict the....
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....stered under the Act. Clause (3) of the Statement of Objects and Reasons then recites that, "the legislation protects the title Architects but does not make the design supervision and construction of buildings as an exclusive responsibility of Architect. Other professional like Engineers will be free to engage themselves in the normal vocation in respect of building construction works provided that they do not style themselves as Architects."... "8. In the above circumstances we are not inclined to accept the case of the petitioners that the Architects Act restricts practice of architect to persons registered under the said Act. Therefore qualified engineers who cannot themselves call as Architects may still be free to do the work which is ordinarily done by the Architects and it would be open for the Corporations to regulate licensing in favour of such qualified engineers." 49. Before referring to the decision of the Madhya Pradesh High Court on the same issue, I deem it appropriate to deal with the order dated 14.02.2017 of the Hon'ble Supreme Court in the case of Manohar Krishnaji Ranade (supra), wherein the Supreme Court, while upholding the judgment of the Bombay High Co....
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....to protect the title of 'architects', but does not intend to make the design, supervision and construction of buildings as an exclusive responsibility of architects. It clarifies that other professions like engineers will be free to engage themselves in their normal vocation in respect of building construction work provided that they do not style themselves as 'Architects'. Thus, as contrasted from the Advocates Act and the Medical Council Act, the Architects Act merely provides for registration of 'architects' and matters connected therewith, and does not contain any prohibition against those who are not registered or enrolled performing the duties of Architects. The provisions of the Architects Act makes it clear that persons who are not registered as Architects, can carry on and discharge the functions which the Architects normally discharge, provided they do not call themselves as Architects." 51. Once I find that the Act itself has a limited scope and only applies to natural persons registered as architects with the COA, it is a necessary corollary thereof that, even the rules, codes of conduct and regulations framed thereunder, including the 1989 Regu....
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....'architect' in its name. Since section 37 of the Act in its current form only protects the title and style of 'architect', it is imperative to consider the connotations of the terms 'title' and 'style'. I find that, as per Black's Law Dictionary, the expression 'title' means an appellation of dignity or distinction or name denoting the social rank of a person. The expression 'style' effectively refers to the same thing as title. The question, thus, would be whether the use of the term 'architect' or its derivatives in one's name amounts to the use of the expression as a title/style. 55. In my considered view, once the use of the title and style of 'architect' is the exclusive privilege of natural persons registered as architects under the Act, juristic entities/individuals not registered under the Act cannot be allowed to use the term or its derivatives in their name. The use of the term 'architect' or its derivatives in one's name would not only mislead the public but, in my considered opinion, would also be in the teeth of the Supreme Court's decision in Manohar Krishnaji Ranade (supra). Permitting a person/juristic entity, who is not registered under....
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....strar of Companies/Registrar of LLPs shall incorporate the same only on the production of an in-principle approval/NOC from the concerned regulator, i.e. the COA. 58. I find that the first part of the Impugned Circular No. 1, whereby entities/persons who are not registered as architects are prohibited from using the title/style of architect, is in consonance with the scheme of the Act and promotes the intent of the Act by ensuring the title of an architect is not misused by unregistered persons. Therefore, I see no reason to interfere with the said part of the circular. However, when I examine the second part of the Impugned Circular No. 1 and the Impugned Circular No. 2, I find that they, instead of only prohibiting unregistered persons/entities from using the style and title of 'architect', also effectively prohibit the incorporation of companies/LLPs that include the rendering of architectural services as one of their objectives, even if such juristic persons do not use the title and style of 'architect'. Furthermore, in the Impugned Circular No. 2, the Ministry of Corporate Affairs wrongly equates the provisions of the Architects Act with those of the CA Act, Cost and Works Ac....