TaxTMI 
TaxTMI 
2020 (3) TMI 1447
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.... words, does Section 37 permit individuals not registered with the Council to continue practicing the profession of architecture in India? As a corollary to this question, this Court is also called upon to determine whether a government post titled or styled using the term "Architect" can be held by individuals not registered with the Council of Architecture. 2. The present appeals arise out of three writ petitions filed by the first Respondent before the High Court of Allahabad. The first Respondent has been working as an Architectural cum Planning Assistant in the service of the third Respondent, the New Okhla Industrial Development Authority "NOIDA" since January 1988 and claims to possess a degree in architecture from the Indian Institute of Architects. NOIDA is an authority created Under Section 3 of the Uttar Pradesh Industrial Area Development Act 1976 "U.P. Industrial Area Development Act" to supervise and manage the development of various geographical zones of the state of Uttar Pradesh. 3. Exercising its powers Under Section 19 of the U.P. Industrial Area Development Act and with the approval of the state government, NOIDA framed the Service Regulations of 1981 for the ....
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....was necessary for candidates who were to be promoted to the posts of Associate Town Planner and Associate Architect. An opinion was sought from the Mukhya Nagar Gram Niyojak, Uttar Pradesh (Town and Country Planning Department, Uttar Pradesh). In a letter dated 22 December 2008, the Mukhya Nagar Gram Niyojak recommended that a degree or diploma in the relevant subjects should be an essential qualification for candidates seeking promotion. NOIDA subsequently sought the opinion of the state government on the same question. During this period, promotions to the post of Associate Town Planner and Associate Architect have continued to remain in abeyance, resulting in a situation where employees who have served for as many as twenty-five years being denied consideration for promotion. 7. Before the High Court of Allahabad, the first Respondent filed three writ petitions. W.P. 57577 of 2008; W.P. 65973 of 2008; W.P. 22155 of 2011. In the writ petitions, the first Respondent also impleaded the present Appellant, the Council of Architecture which is the regulatory body for the profession of architecture in India. By the writ petitions, the first Respondent sought two reliefs: (i) A writ ....
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....rther noted that as a central legislation, the requirements set out in the Architects Act could not be read into the Promotion Policy 2005 which is a Regulation formulated under a state legislation, namely the U.P. Industrial Area Development Act. Submissions 10. The Council of Architecture has challenged the decision of the High Court in holding that Section 37 of the Architects Act does not prohibit individuals not registered with the Council from practicing architecture in India. According to the Council, such an interpretation defeats the object and purpose of the Architects Act. It is submitted that: (i) The object of the Architects Act is to ensure that only qualified architects are permitted to provide architectural services for the purposes of construction and building activity in India; (ii) The Architects Act is a comprehensive legislation which regulates the qualifications, registration and disciplinary facets of architecture in India and therefore Section 37 cannot be read only as protecting against the use of the title "Architect" but it must be read to prohibit unqualified individuals from practicing architecture; (iii) Under Section 37 of the Architects Act, ....
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....2005 Promotion Policy adopted by NOIDA permitting candidates who do not hold a degree in architecture to hold the post of Associate Architect violated the provisions of the Architects Act. The answer to that question substantially turned on an interpretation of the Architects Act. Primarily, the issue is whether the Architects Act prohibits individuals not registered with the Council from holding of the title of "architect" or prohibits them from practicing the activities undertaken by architects. This is the question that we are called upon to answer. If Section 37 of the Architects Act prohibits individuals not registered with the Council from practicing the activities commonly undertaken by an architect, the 2005 Promotion Policy will violate Section 37 as it allows unregistered individuals to undertake the activities of an architect. However, if Section 37 only prohibits individuals not registered with the Council from holding the title of "architect", then the Promotion Policy 2005 is valid insofar as it permits unregistered individuals from practicing architecture and only the question of the nomenclature of the post remains to be decided. It is to this controversy that we no....
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....lready registered with the Council of Architecture, the Division Bench held: The Architects Act, 1972 is a special law dealing with the qualifications to be possessed by persons for being registered as architects and restricting the term "architect" or "registered architects" to such persons only. Since the possession of a registration certificate under the Architects Act, 1972 is regarded by Parliament as sufficient qualification for the practice of architects and since all related questions have been dealt with in respect of architects by the said Act, it became unnecessary for the Corporation to do so thereafter. The question before the High Court of Delhi was whether the Delhi Municipal Corporation could require that architects submitting plans for the construction of new buildings must possess a license issued by it. While answering this in the negative, the Division Bench specifically observed that unlike the Advocates Act 1961 "Advocates Act", the Architects Act did not restrict the practice of architecture to persons registered under the Architects Act. The High Court observed that even after the adoption of the Architects Act, there continue to exist individuals who can....
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....37 was interpreted as creating a bar on individuals representing themselves to be qualified architects and not as creating a bar on untrained individuals practicing the tasks undertaken by architects. 15. The issue of using the nomenclature "architect" in government services has also arisen before the High Courts. In Tulya Gogoi v. Association of Architects (1999) 3 Gau LR 179 an order of the Government of Assam was challenged. The said order re-named the post of "Architectural Draftsman P.W.D." as "Junior Architect". The individuals whose posts were to be renamed had at the time obtained a diploma certificate in Architectural Assistantship which was not recognised by either the Central Government or the Council of Architects. The order was challenged by the Association of Architects, Assam as violating Section 37 of the Architects Act as it would effectively allow the concerned individuals to hold the title of "Architect" without holding a qualification recognised by the Council. In response, it was contended that Section 37 was intended to prevent private individuals from calling themselves "Architects" and misleading the general public, but this rationale did not extend to gove....
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....and de-registration of architects provided an overarching regulatory framework to protect the integrity of the architectural profession. The Act ensures that individuals who did not possess a statutorily recognised qualification cannot refer to themselves as "Architects". Crucially, the High Court observed that Section 37 did not carve out an exception for government employees, therefore the prohibition on the use and the "title and style of architect" contained in Section 37 applied to both private individuals and government employees. 16. Both the Appellant and the Union of India have relied on the decision of the Division Bench of the High Court of Madhya Pradesh in Mukesh Kumar Manhar and it would be pertinent at this juncture to discuss the judgment. The facts of that case were substantially similar to those before us. The Petitioners before the High Court of Madhya Pradesh were employed as "Draughtsman" and "Head Draughtsman" and held architectural degrees recognised by the Architects Act. Their next promotional post was that of "Assistant Architect-Class II". One of the pre-requisites for appointment as "Assistant Architect-Class II" was the completion of a degree in archit....
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....ly. When examined in juxtaposition to these two statutes, the choice of the legislature to restrict the "title and style of architect" in Section 37 of the Architects Act as opposed to the very practice of the profession is significant. Relying on this distinction, the High Court ultimately held that: 13.... there can be no objection for a Rule providing for non-architects being promoted to a particular Class II post, which may involve planning, designing and supervision of Building constructions. What is prohibited and what is objectionable in law is calling the persons discharging such functions related to architecture, as 'Architects' when they are not registered as Architects.... Even Engineers, who do not have a degree in Architecture (and who are not registered Architects) but having qualifications in Engineering and experience in design and supervision, may perform the function which are normally performed by an Architect. But such Engineers who are not registered Architects and posted to the Class-I or II posts, dealing with architectural aspects and designs, cannot be called as 'Architects' or 'Assistant Architects' unless they are registered Arch....
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.... does not use the expression architect and does not describe his firm, if any, as a firm of architects. Had the legislative intent been to prevent rendering of architectural services by any person other than a person registered under the provision of the Act, Section 37 of the Act would have been worded altogether differently. For instance, Section 29 of the Advocates Act, 1961 prohibits a person unless he is enrolled as an advocate from practicing in any Court or before any authority or persons. .... Section 15(2) of the Medical Council Act, 1956 also expressly prohibits a person other than a medical practitioner registered in any State, signing or authenticating a medical or fitness certificate, giving evidence as an expert and hold office as Physician or Surgeon or any other office in the Government or any institution maintained by a local or other authority. No similar provision is, however found in the Architects Act. The learned Counsel for the Petitioners contended that in my view rightly too that such an interpretation may result in unqualified persons providing services such as supervision of construction of buildings and the construction supervised by such persons may not....
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.... limited liability partnership had as one of its stated objectives the providing of architectural services, such an entity could not be incorporated without a no-objection certificate from the Council of Architecture. Justice Rekha Palli summarised the issues raised by the three writ petitions: 6. 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. 7. The third writ petition essentially seeks directions to the contrary. The main thrust of the third writ petition is that the Act only restricts the use of the title and style of 'architect', and it neither precludes companies/LLPs from rendering architectural services nor prevents them from mentioning the same as one of their objects in their MOA. In answering the questions raised by the writ petitions, the High Court of Delhi was essentially asked to consider whether the Architects Act precludes unregistered architects (including legal entities) from providing architectural services, or alternatively whether the Act merely....
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....t in Council of Architecture v. Manohar Krishnaji Ranade C.A. Nos. 3346-3348 of 2005 ("Manohar Ranade"). We have extracted the relevant portion of the order below: While we find no reason to interfere with the impugned judgment and order dated 29th November, 2004 passed by the Bombay High Court in Writ Petition No. 1830 of 1988 and connected matters, we are of the view that the High Court was in error in rejecting the contention of the Appellant that practice under the Architects Act, 1972 is not restricted only to the architects. It is not correct to say that anyone can practice as an architect even if he is not registered under the Architects Act, 1972. Placing reliance on this order, the Appellant contended that the question of whether Section 37 prohibits the practice of architecture by unregistered individuals is no longer res integra. It was urged that this Court has already held that the practice of architecture is limited to architects registered under the Architects Act. The order arising out of Manohar Ranade has been followed by a three-judge bench of this Court in an order dated 11 September 2017 in Council of Architecture v. Indian Institute of Architects. C.A. No. ....
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....of the Appellant that practice under the Architects Act, 1972 is not restricted only to the architects." The Appellant was the Council of Architecture. The order is based on the premise that the contention of the Council of Architecture before the High Court of Bombay was that the "practice under the Architects Act, 1972 is not restricted only to architects." The order stated that the High Court was wrong in rejecting this contention. Therefore, the order of this Court dated 14 February 2017 clearly sought to lay down the proposition that the "practice under the Architects Act, 1972 is not restricted only to architects." Having laid down this proposition, it would appear that the use of the word "not" in the next line is inadvertent. In the previous sentence the court expounded the position that the practice of architecture cannot be restricted to registered architects under the Architects Act. Hence, it would be an incorrect interpretation of the order to hold that in the very next line, the court would have laid down a contrary proposition. Therefore, the effect of the order as a whole is to lay down the principle that individuals can practice as architects even if they are not r....
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....recognised in law as sufficient to warrant the holder of the qualification being enrolled as a registered architect. Thus, by creating a system of statutorily recognised educational qualifications, the Architects Act regulates those individuals who are eligible to be registered architects under the Act. 23. Section 23 of the Architects Act provides that: 23. Preparation and maintenance of register-- (1) The 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 his first admission to the register; (d) his professional address; and (e) such further particulars as may be prescribed by rules. Section 23 provides for the maintenance of a register of archit....
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....as a "landscape architect" or "naval architect"; (b) a person who, carrying on the profession of an architect in any country outside India, undertakes the function as a consultant or designer in India for a specific project with the prior permission of the Central Government. Explanation.--For 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. (Emphasis supplied) Clause (2) of Section 37 states that any person who contravenes the prohibition created in Clause (1) of Section 37 shall be punishable on first conviction with a fine that may extend to five hundred rupees and on subsequent convictions with imprisonment which may extend up to six months or a fine not exceeding one thousand rupees or both. Questions before this Court 25. The present case raises two questions that this Court must answer: (i) Question 1: Does Section 37 of the Architects Act prohibit individuals not registered as architects under the Architects Act from practicing the activities undertaken by architects, ....
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....use the title and style of architect". Therefore, a plain reading of Section 37 clearly supports the proposition that the Architects Act prohibits individuals not registered with the Council of Architecture from using the title and style of "Architect" and does not prohibit unregistered individuals from practicing the activities undertaken by architects such as the design, supervision and construction of buildings. 27. It has been contended that one of the objects and purposes of the Architects Act is to prevent untrained individuals from designing, supervising and constructing buildings. It has further been contended that registration under the Architects Act forms an essential part of the regulatory regime for architects as it ensures that architects possess adequate educational qualifications. Therefore, it is urged that Section 37 must be read in a manner which prohibits unregistered individuals from practicing the profession of architecture and cognate activities in order to prevent the harms arising from unqualified individuals providing critical architectural services. These submissions are ultimately premised on the argument that even if a plain reading of Section 37 does ....
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....gislation, it will be unlawful for any person to designate himself as 'architect' unless he has the requisite qualifications and experience and is registered under the Act. 3. The legislation protects the title "architects" but does not make the design, supervision and construction of buildings as an exclusive responsibility of architects. 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. (Emphasis supplied) The Statement of Objects and Reasons of the Architects Act makes it evident that the legislature was undoubtedly concerned with the risk of unqualified persons undertaking the construction of buildings leading to costly and dangerous buildings. In guarding against this risk, the legislature first set out a minimum standard of statutorily recognised qualifications to be met before an individual is designated as an architect under the Architects Act. This is done by Sections 14, 15 and 17 of the Act. Next, the legislature created two classes of individuals: the first class consisted of registered architects satisfying these minim....
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.... 31. The profession of architecture involves a wide range of activities including inter alia: (i) Taking instructions from clients and preparing designs; (ii) Site evaluation and analysis; (iii) Site design and development; (iv) Structural design; (v) Design of sanitary, plumbing, sewage, drainage, and water supply structures; (vi) Design and structural integration of electrical and communications systems; (vii) Incorporation of heating, air-conditioning, ventilation and other mechanical systems including fire detection and prevention systems; and (viii) Periodic inspection and evaluation of construction work. These activities are undertaken by architects but are also carried out by architects in concert with a range of other actors including draughts persons, builders, engineers, and designers. If the legislature were to impose an absolute prohibition against unregistered individuals from 'practicing architecture' there would be considerable confusion as to what activities formed the practice of architecture and what did not. It may have resulted in a host of other legitimate professionals being barred from engaging in the design, supervision and construct....
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....duals from using the "title and style" of architect. Under the scheme of the Architects Act, only individuals possessing the statutorily recognised minimum educational qualifications can apply for registration as an "Architect" under the Act. Registration as an architect under the statute is thus a guarantee of possessing certain minimum educational qualifications. Section 37 prohibits unregistered individuals from designating themselves or referring to themselves as "architects". The consequence of this regulatory regime is that when an individual is called an "Architect" a reasonable person would assume that they are a registered architect under the Architects Act and as a consequence possess the requisite educational qualifications and specialised knowledge associated with architects. 36. If an individual is appointed to a post titled "Associate Architect", "Architect" or "Senior Architect", they undoubtedly refer to themselves and are referred to by others as "Architects". Holding a post using the term "Architect" has the real-world consequence of being referred to as an architect. This is not a matter of mere nomenclature. As noted above, architecture is a specialised field o....
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....' for posts under NOIDAs authority. By Clause (iv) of Rule 16 NOIDA has the power to modify the sources of recruitment for posts under its supervision. It is in exercise of this power that NOIDA formulated the Promotion Policy of 2005 which sets out the sources and qualifications for recruitment in its various departments. It is well established that delegated legislation is susceptible to invalidity on the grounds of being ultra vires its parent legislation but also ultra vires other primary legislation. Where the provisions of a primary legislation (the Architects Act) are contradictory to the provisions of a delegated legislation (the Promotion Policy 2005), the provisions of the primary legislation must prevail. This principle is well established and has received articulation by this Court on several occasions. In Indian Express Newspapers v. Union of India (1985) 1 SCC 641 Justice Venkataramiah speaking for a three-judge Bench of this Court stated: 75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenar....