COUNCIL OF ARCHITECTURE versus MR. MUKESH GOYAL & ORS. on 17 March 2020

SUPREME COURT REPORTS

[2020] 7 S.C.R.

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COUNCIL OF ARCHITECTURE

v.

MR. MUKESH GOYAL & ORS.

(Civil Appeal No. 1819 of 2020)

BMARCH 17, 2020

[DR. DHANANJAYA Y CHANDRACHUD ANDAJAY RASTOGI, JJ.]

Architects Act, 1972 – s. 37 – Prohibition against use of title– The High Court held that s.37 of the Architects Act does not createCa bar on individuals not registered with the Council of Architecturefrom carrying out the duties and functions of an Architect – Onappeal, held: A plain reading of s.37 clearly supports the propositionthat the Architects Act prohibits individuals not registered with theCouncil of Architecture from using the title and style of ‘Architect’Dand does not prohibit unregistered individuals from practicing theactivities undertaken by Architects such as the design, supervisionand construction of buildings – The legislature stated in the‘Statement of objects and reasons’ that with the passing of thelegislation, it shall be unlawful for an unregistered individual to‘designate himself’ as an Architect – Further, it is expressly statedEthat the legislation protects the ‘title’ of Architect but does not grantregistered Architects an exclusive right to undertake the design,supervision and construction of buildings – Thus, it is evident thatlegislature did not intend to create a prohibition on the practice ofarchitecture and associated activities by unregistered individuals –FHowever, by virtue of the Architects Act, anybody engaging theservices of an individual calling themselves an ‘Architect’ is assuredthat such an individual possesses statutorily recognised educationalqualifications and is competent to complete the task at hand – It isin this manner that the legislature protects the common person fromuntrained individuals – Thus, the decision of the High Court holdingGthat s.37 of the Architects Act does not prohibit individuals notregistered under the Architects Act from undertaking the practiceof architecture is affirmed.

Architects Act, 1972 – Whether a Government Post titled orstyled using the term ‘Architect’ can be held by individuals notH

registered with the Council of Architecture – The High Court heldthat the ‘mere nomenclature’ of a particular post will not violate theprohibition on the use of ‘title and style’ of architect u/s. 37 – Onappeal, held: s.37 prohibits unregistered individuals from designatingthemselves or referring to themselves as ‘Architects’ – If a GovernmentPost is titled ‘Architect’ or ‘Associate Architect’, such a personcertainly uses the title and style of ‘Architect’ and consequently thereis a reasonable assumption that such a person is registered underthe Architects Act and holds a degree in architecture recognised bythe Act – To promote an individual who does not possess a degreein architecture recognised by the Act to a post titled ‘Architect’,‘Associate Architect’ or of a similar style using the title or style of‘Architect’ would effectively violate the prohibition on the use oftitle contained in s. 37 of the Architects Act – The text of s.37 makesno distinction between government employees and privateindividuals – Thus, authorities cannot promote or recruit individualswho do not hold a degree in architecture recognised by the ArchitectsAct to a post that uses the title or style of ‘Architect’ – The view ofthe High Court is disapproved.

Interpretation of Statutes – The first and best method ofdetermining the intention of the legislature is the very words chosenby the legislature to have the force of law – In other words, theintention of the legislature is best evidenced by the text of the statuteitself – However, where a plain reading of the text of the statuteleads to an absurd or unreasonable meaning, the text of the statutemust be construed in light of the object and purpose with which thelegislature enacted the statute as a whole.

Delegated Legislation – Primary Legislation – It is wellestablished that delegated legislation is susceptible to invalidity onthe grounds of being ultra vires its parent legislation but also ultravires other primary legislation – Where the provisions of a primarylegislation (The Architect Act, 1972) are contradictory to theprovisions of a delegated legislation (The Promotion Policy 2005),the provisions of the primary legislation must prevail.

Partly allowing the appeals, the CourtHELD: 1. Does Section 37 of the Architects Act prohibitindividuals not registered as architects under the Architects Act AB

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Afrom practicing the activities undertaken by architects, includingthe design, supervision and construction of buildings.

1.1 The text of Section 37 uses the phrase “no person shall… use the title and style of architect”. Therefore, on a plainreading of the section, the legal prohibition created is on the useBof the “title and style of architect”. Title and style are distinctfrom practice. While a prohibition on the use of a title merelyrestricts an individual from attaching the said title to their namein referring to or representing themselves to others, a prohibitionon practice creates a bar on the actual undertaking of specificactions. The most compelling evidence that the two conceptsCare materially distinct is the varied usage of the two phrases bythe legislature. [Para 26][912-F-H]

1.2 In making a distinction between individuals registeredunder the statute and those not registered, the Advocates Actclearly stipulates that unregistered individuals cannot “practice”Dthe profession of law. This stands in stark contrast to the text ofthe Architects Act which merely states that unregisteredindividuals cannot “use the title and style of architect”. Therefore,a plain reading of Section 37 clearly supports the proposition thatthe Architects Act prohibits individuals not registered with theECouncil of Architecture from using the title and style of“Architect” and does not prohibit unregistered individuals frompracticing the activities undertaken by architects such as thedesign, supervision and construction of buildings. [Para 26][933-D-F]F1.3 It is well settled that the first and best method ofdetermining the intention of the legislature is the very wordschosen by the legislature to have the force of law. In other words,the intention of the legislature is best evidenced by the text ofthe statute itself. However, where a plain reading of the text ofthe statute leads to an absurd or unreasonable meaning, the textGof the statute must be construed in light of the object and purposewith which the legislature enacted the statute as a whole. Whereit is contended that a particular interpretation would lead todefeating the very object of a legislation, such an interpretativeoutcome would clearly be absurd or unreasonable. [Para 28][934-HB-D]

1.4 The legislature created two classes of individuals: thefirst class consisted of registered architects satisfying theseminimum qualifications and a second class of unregisteredindividuals who did not satisfy these minimum qualifications. Thisis the effect of Sections 2(a), 17, 23 and 35 of the Architects Act.Crucially, the legislature chose to define an “architect” as anindividual registered under the Architects Act and not as anindividual practicing architecture or any cognate activities. Thus,the legislature limited the regulatory regime created by theArchitects Act to the first class of individuals. In protecting thepublic from the risk of the second class, untrained individuals,the legislature had two options: first it could bar this second classof individuals from engaging in the profession altogether (as ithad done with physicians and advocates); or alternatively it couldprevent this second class of individuals from calling themselves“Architects”. The Statement of Objects and Reasons makes itclear that the legislature chose the second option and in fact wentto great lengths to clarify that choice. The legislature stated thatwith the passing of the legislation, it shall be unlawful for anunregistered individual to “designate himself” as an architect.Further, it is expressly stated that the legislation protects the“title” of architect but does not grant registered architects anexclusive right to undertake the design, supervision andconstruction of buildings. Other cognate professions orunregistered individuals may continue to carry out these activitiesprovided that they do not refer to themselves as “Architects”.[Para 29][935-E-H][936-A]

1.5 It is evident that the legislature did not intend to createa prohibition on the practice of architecture and associatedactivities by unregistered individuals. As opposed to the case ofphysicians or surgeons under the Indian Medical Council Act oradvocates under the Advocates Act, the legislature consciouslychose to employ a less stringent measure in the case of architects,merely prohibiting unregistered individuals from using the “titleand style” of architect. It is not for this Court to delve into whythe legislature made this choice. [Para 30][936-B-C]

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1.6 Architecture undoubtedly constitutes a highlyspecialised profession requiring the possession of minimumeducational qualifications. However, architects are by and largeengaged by means of a contract for services. In other words,architects provide a set of specialised services towards the largerBgoal of construction. Architects are not embarking on constructionindependently of other actors. By virtue of the Architects Act,anybody engaging the services of an individual calling themselvesan “Architect” is assured that such an individual possessesstatutorily recognised educational qualifications and is competentto complete the task at hand. It is in this manner that theClegislature protects the common person from untrainedindividuals. [Para 32][937-C-E]

2. Whether a post titled “Architect”, “Associate architect”or any other similar title using the term or style of “Architect”can be held by a person not registered as an architect under theDArchitects Act.

2.1. If an individual is appointed to a post titled “AssociateArchitect”, “Architect” or “Senior Architect”, they undoubtedlyrefer to themselves and are referred to by others as “Architects”.Holding a post using the term “Architect” has the real-worldEconsequence of being referred to as an architect. This is not amatter of mere nomenclature. As architecture is a specialisedfield of study. Crucially, the scheme of the Architects Act providesa direct nexus between the minimum educational qualificationsrequired to be obtained, registration as an architect under theAct and the prohibition against the use of the title of “Architect”Fby those not registered under the Act. If a government post istitled “Architect” or “Associate Architect”, such a personcertainly uses the title and style of “architect” and consequentlythere is a reasonable assumption that such a person is registeredunder the Architects Act and holds a degree in architectureGrecognised by the Act. This assumption finds statutory backingin Section 35 of the Architects Act which provides that anyreference to an architect in any other law shall be deemed tomean an architect registered under the Architects Act. Topromote an individual who does not possess a degree inarchitecture recognised by the Act to a post titled “Architect”,H

“Associate Architect” or of a similar style using the title or styleof “architect” would effectively violate the prohibition on the useof title contained in Section 37 of the Architects Act. [Para 36][938-D-H]

2.2. In the present case, this Court recognises the powerof NOIDA to provide and modify the minimum eligibility criteriafor promotion of candidates to the posts of Associate Town Plannerand Associate Architect. This Court further recognises that theauthority has significant discretion in how it chooses to title thevarious posts under its supervision. However, to permit NOIDAto continue to title a post that includes individuals who are notregistered architects under the Architects Act as “AssociateArchitect” would result in a violation of Section 37 of theArchitects Act. In the case of Tulya Gogoi the High Court ofGauhati expressly held that the prohibition on the use of title andstyle of architect contained in Section 37 of the Architects Actapplies to both private individuals and government employees.The reasoning of the High Court on this issue commends itselffor our acceptance. The text of Section 37 makes no distinctionbetween government employees and private individuals.[Para 37][939-A-C]

3. The U.P. Industrial Area Development Act providesNOIDA with the power to make rules for the management of itsinternal affairs. In exercise of this power, NOIDA formulated theService Regulations of 1981. Rule 16 of the Service Regulationssets out the ‘Sources of Recruitment’ for posts under NOIDA’sauthority. By clause (iv) of Rule 16 NOIDA has the power tomodify the sources of recruitment for posts under its supervision.It is in exercise of this power that NOIDA formulated thePromotion Policy of 2005 which sets out the sources andqualifications for recruitment in its various departments. It is wellestablished that delegated legislation is susceptible to invalidityon the grounds of being ultra vires its parent legislation but alsoultra vires other primary legislation. Where the provisions of aprimary legislation (the Architects Act) are contradictory to theprovisions of a delegated legislation (the Promotion Policy 2005),the provisions of the primary legislation must prevail. Thisprinciple is well established and has received articulation by thisCourt on several occasions. [Para 38][939-C-F]

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910SUPREME COURT REPORTS

[2020] 7 S.C.R.

ATulya Gogoi v. Association of Architects (1999) 3 GauLR 179 – approved.Indian Express Newspapers v. Union of India (1985) 1SCC 641 : [1985] 2 SCR 287 – relied on.

Mukesh Kumar Manhar v. Sri Ram Singh Ahirwar 2006B(1) MPLJ 238; Municipal Corporation of Delhi v. RamKumar Bhardwaj (1980) 18 DLT 283; Om PrakashMittal v. Council of Architecture AIR 1983 Del 223;Premendra Raj Mehta v. National Building ConstructionCorporation Limited (W.P. (C) 2106 / 2012 in the HighCCourt of Delhi); Sudhir Vohra v. Registrar of Companies(W.P. (C) 934/2012 and C.M. No. 18315/2014 in theHigh Court of Delhi); Council of Architecture v.Manohar Krishnaji Ranade (2020) 16 SCC 476;Council of Architecture v. Indian Institute of Architects(2020) 16 SCC 475 – referred to.D

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1819of 2020.

From the Judgment and Order dated 19.02.2014 of the High CourtFof Judicature at Allahabad in Writ Petition A No. 22155 of 2011.

With

Civil Appeal Nos. 1820-1822 of 2020.

K.K. Venugopal, AG, R. Balasubramanian, Pramod Swarup,GSr. Advs., V. N. Raghupathy, Ramnish Khanna, Manendra Pal Gupta,Vijay Kumar, Thomas Oommen, Aniruddha P. Mayee, Mrs. ChinmayeeChandra, Raj Bahadur Yadav, G.S. Makker, Ms. Alka Sinha, Ms. PareenaSwarup, Anuvrat Sharma, Ravindra Kumar, Advs. for the appearingparties.

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The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

1. The question before this Court is whether Section 37 of theArchitects Act 1972[1] merely prohibits the use of the title “Architect” byindividuals not registered with the Council of Architecture[2] under Chapter3 of the enactment or alternatively whether Section 37 actually prohibitsunregistered individuals from carrying out the practice of architectureand its cognate activities. In other words, does Section 37 permitindividuals not registered with the Council to continue practicing theprofession of architecture in India? As a corollary to this question, thisCourt is also called upon to determine whether a government post titledor styled using the term”Architect” can be held by individuals notregistered with the Council of Architecture.

2. The present appeals arise out of three writ petitions filed by thefirst respondent before the High Court of Allahabad. The first respondenthas been working as an Architectural cum Planning Assistant in theservice of the third respondent,the New Okhla Industrial DevelopmentAuthority[3]since January 1988 and claims to possess a degree inarchitecture from the Indian Institute of Architects. NOIDA is an authoritycreated under Section 3 of the Uttar Pradesh Industrial Area DevelopmentAct 1976[4] to supervise and manage the development of variousgeographical zones of the state of Uttar Pradesh.

3. Exercising its powers under Section 19 of the U.P. IndustrialArea Development Act and with the approval of the state government,NOIDA framed the Service Regulations of 1981 for the recruitmentand promotion of employees in its various departments. One of thedepartments under NOIDA’s purview is the Department of Planningand Architecture where the first respondent is employed. Regulation 16of the Service Regulations 1981 sets out the ‘Sources of Recruitment’.Under sub-clause (iv) of clause (2) of Regulation 16, NOIDA has beenconferred with the power to modify the sources of recruitment or thepercentage of candidates appointed through promotion and directrecruitment. Thus, under the Service Regulations 1981, NOIDA has thepower to lay down the conditions and qualifications for promotion from 1 “Architects Act”

2 “Council”

3 “NOIDA”

4 “U.P. Industrial Area Development Act”

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Athe feeder cadre to various posts in the Department of Planning andArchitecture.

4. NOIDA spelt out the qualifications and conditions required forthe promotion to various posts in the Recruitment and Promotion Policy2005[5]. The Department of Planning and Architecture consists of twoBcadre streams, the Planning cadre stream and the Architecture cadrestream. The Planning cadre stream consists of the following posts (inascending order of seniority): (i) Planning Assistant; (ii) Associate TownPlanner; (iii) Town Planner; and (iv) Senior Town Planner. TheArchitecture cadre stream consists of the following posts (in ascendingorder of seniority): (i) Architecture Assistant; (ii) Associate Architect;C(iii) Architect; and (iv) Senior Architect. In practice, the two cadresdraw on a common pool of candidates, the only distinction being madewhen specific work orders are issued.

5. The Promotion Policy 2005 provided that for the post ofAssociate Town Planner, 60 per cent of recruitment would take placeDby way of promotion, the eligibility criteria being fifteen years’experienceas a Planning Assistant. Similarly, for the post of AssociateArchitect, 60 per cent of the posts were to be filled through promotion,the eligibility criteria being fifteen years’ experience as an ArchitectureAssistant. The remaining 40 per cent of posts were to be filled throughEdirect recruitment, with a degree in Architecture and Town Planningand a degree in Architecture stipulated as essential qualifications forappointmentas an Associate Town Planner and Associate Architectrespectively.

6. A meeting was held by NOIDA on 20 March 2006 to decideFwhether a degree in Architecture and Town Planning and a degree inArchitecture was necessary for candidates who were to be promoted tothe posts of Associate Town Planner and Associate Architect. An opinionwas soughtfrom the Mukhya Nagar Gram Niyojak, Uttar Pradesh (Townand Country Planning Department, Uttar Pradesh). In a letter dated 22December 2008, the Mukhya Nagar Gram Niyojak recommended thatGa degree or diploma in the relevant subjects should be an essentialqualification for candidates seeking promotion. NOIDA subsequentlysought the opinion of the state government on the same question. Duringthis period, promotions to the post of Associate Town Planner andAssociate Architect have continued to remain in abeyance, resulting in aH5 “Promotion Policy 2005”

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situation where employees who have served for as many as twenty-fiveyears being denied consideration for promotion.

7. Before the High Court of Allahabad, the first respondent filedthree writ petitions.[6 ]In the writ petitions, the first respondent alsoimpleaded the present appellant, the Council of Architecture which isthe regulatory body for the profession of architecture in India. By thewrit petitions, the first respondent sought two reliefs:

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(i) A writ of mandamus directing NOIDA to enforce theprovisions of the Architects Act by ensuring that only personsregistered with the Council of Architecture are appointed tothe post of Associate Town Planner / Associate Architect;Cand

(ii) The post of Associate Town Planner / Associate Architectbe filled entirely through promotion of the senior mostArchitect cum Planning Assistant holding the necessaryqualifications.

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By an amendment to Writ Petition 22155 of 2011 made in 2013,the first respondent challenged the Promotion Policy 2005 in so far as itpermitted the promotion of candidates to the post of Associate TownPlanner/Associate Architect without requiring that such candidates shouldhold a degree in Architecture recognised under the Architects Act.

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8. The High Court of Allahabad observed that Regulation 16 ofthe Service Regulations 1981, conferred NOIDA with the power to laydown the conditions and qualifications for promotions in the authority’svarious departments. NOIDA had laid down these conditions andqualifications in the Promotion Policy 2005. The High Court noted thatthe sole ground for challenging the Promotion Policy 2005 was that itallegedly fell foul of Sections 14 and 37 of the Architects Act. Relyingextensively on the decision of the Madhya Pradesh High Court inMukesh Kumar Manhar v Sri Ram Singh Ahirwar (“MukeshKumar Manhar”)[7 ]the High Court held that Section 37 of the ArchitectsAct does not create a bar on individuals not registered with the Councilfrom carrying out the duties and functions of an Architect. The HighCourt held that Section 37 only prohibits unregistered individuals from F

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6W.P. 57577 of 2008; W.P. 65973 of 2008; W.P. 22155 of 2011.

72006 (1) MPLJ 238

Ausing the title “architect”. As a necessary adjunct of this reasoning, theHigh Court held that the Promotion Policy 2005, which allowed forindividuals not holding a degree in architecture being appointed to theClass II post of Associate Architect, did not contravene Section 37 ofthe Architects Act in so far as they would be carrying out the activitiesof an architect.B

9. In disposing of the writ petitions, the High Court of Allahabadheld that the “mere nomenclature of the particular post will not in anyway be said to violate the provisions of the Architects Act 1971”.Therefore, the High Court permitted NOIDA to continue referring tothe Class II posts as Associate Town Planner and Associate Architect.CThe High Court further noted that as a central legislation, the requirementsset out in the Architects Act could not be read into the Promotion Policy2005 which is a regulation formulated under a state legislation, namelythe U.P. Industrial Area Development Act.

SubmissionsD

10. The Council of Architecture has challenged the decision ofthe High Court in holding that Section 37 of the Architects Act does notprohibit individuals not registered with the Council from practicingarchitecture in India. According to the Council, such an interpretationdefeats the object and purpose of the Architects Act. It is submittedEthat:

(i) The object of the Architects Act is to ensure that onlyqualified architects are permitted to provide architecturalservices for the purposes of construction and building activityin India; F

(ii) The Architects Act is a comprehensive legislation whichregulates the qualifications, registration and disciplinaryfacets of architecture in India and therefore Section 37cannot be read only as protecting against the use of the title“Architect” but it must be read to prohibit unqualifiedGindividuals from practicing architecture;

(iii) Under Section 37 of the Architects Act, only individualsregistered with the appellant Council are permitted to renderarchitectural services in India; H

(iv) The High Court has construed Section 37 narrowly and suchan interpretation risks allowing unqualified individuals frompracticing the profession of supervising buildings andconstruction; and

(v) In its decision in Mukesh Kumar Manhar the High Courtof Madhya Pradesh directed the state government to ceaseusing the nomenclature of “Assistant Architect” or“Architect” in regard to posts where the eligibility criteriadid not require appointees to hold a degree in architecture.

11. As the present controversy impacts all persons engaging inthe practice of architecture in India, including thousands of individualsemployed in various government departments holding posts titled“Associate Architect” or “Architect”, this Court considered it fit to issuenotice to the Union of India. During the course of the hearing,Mr KK Venugopal, learned Attorney General of India appeared for theUnion and submitted that:

(i) According to the Statement of Objects and Reasons of theArchitects Act, the legislation aims to protectthe title ofarchitects but does not grant architects an exclusive rightover the activities of designing, supervising and constructingbuildings;

(ii) Section 37 of the Architects Act is titled “Prohibition againstthe use of title” and prohibits individuals from using the “titleand style of architect”. The legal bar created is thereforelimited to the use of “title” and does not prohibit the “practice”of architecture;

(iii) The Architects Act does not contain a prohibition on thepractice of architecture or the designing, supervisingorconstruction of buildings by individuals not registered withthe Council; and

(iv) The definition of “architect” provided by the Architects Actis a person whose name appears on the register of Architectsmaintained with the Council and not individuals engaged inthe design, supervision or construction of buildings in India.Therefore, the Architects Act regulates individuals registeredwith the Council and does not controlthe practice of activitiesundertaken by individuals falling outside the regulatory regimeapplicable to registered Architects.

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AScope of the present appeal

12. In the writ petitions before the High Court of Allahabad, thequestion before the court was whether the 2005 Promotion Policy adoptedby NOIDA permitting candidates who do not hold a degree in architectureto hold the post of Associate Architect violated the provisions of theBArchitects Act. The answer to that question substantially turned on aninterpretation of the Architects Act. Primarily, the issue is whether theArchitects Act prohibits individuals not registered with the Council fromholding of the title of “architect” or prohibits them from practicing theactivities undertaken by architects. This is the question that we are calledupon to answer. If Section 37 of the Architects Act prohibits individualsCnot registered with the Council from practicing the activities commonlyundertaken by an architect, the 2005 Promotion Policy will violate Section37 as it allows unregistered individuals to undertake the activities of anarchitect. However, if Section 37 only prohibits individuals not registeredwith the Council from holding the title of “architect”, then the PromotionDPolicy 2005 is valid insofar as it permits unregistered individuals frompracticing architecture and only the question of the nomenclature of thepost remains to be decided. It is to this controversy that we now turn.

Decisions of the High Courts

Decisions of the High Courts

13. Since the adoption of the Architects Act in 1972, there haveEbeen several pronouncements by High Courts on whether Section 37should be interpreted as prohibiting individuals not registered with theCouncil from undertaking the activities of designing, supervising andconstructing buildings in India. In Municipal Corporation of Delhi vRam Kumar Bhardwaj[8 ]the respondents challenged the power of theFDelhi Municipal Corporation to stipulate who a “Licensed Architect”was. It was contended by the respondents that the adoption of theArchitects Act represented a comprehensive regulatory framework andthe Delhi Municipal Corporation could no longer impose restrictions onwho a “Licensed Architect” was in a manner contrary to the provisionsof the enactment. Justice V S Deshpande (as the learned Chief JusticeGthen was) speaking for a Division Bench of the High Court of Delhiobserved:

“2. … The Architects Act, 1972 sets out the qualification to bepossessed by the persons to be registered as architects under thesaid Act. It also prohibits persons who do not have such registrationH8(1980) 18 DLT 283

COUNCIL OF ARCHITECTURE v. MR. MUKESH GOYAL[DR DHANANJAYA Y CHANDRACHUD, J.]

from describing themselves as architects and also deals withdisciplinary action for misconduct of architects. It is, therefore, acomplete enactment the effect of which is that a person cannotcall himself an architect unless he is registered under the saidAct. Of course, unlike the Advocates Act, which restrictsthe right to practice in courts only to the advocates qualifiedthereunder, the Architects Act does not restrict the practiseby architects to persons registered under the said Act.Therefore, some persons who cannot call themselvesarchitects may still be free to do the work which is ordinarilydone by architects and they are not dealt with by theArchitects Act.Whether the Corporation can deal with suchpersons is not a question which arises before us. Our considerationis limited to the question whether the Corporation can regulatethe profession and the practice of architects registered under theArchitects Act, 1972 by insisting that the architects practising inDelhi and submitting plans for construction of buildings for theapproval of the Corporation must possess licences issued by theCorporation.”

On the question of whether the Delhi Municipal Corporation couldregulate architects already registered with the Council of Architecture,the Division Bench held:

“The Architects Act, 1972 is a special law dealing with thequalifications to be possessed by persons for being registered asarchitects and restricting the term “architect” or “registeredarchitects” to such persons only. Since the possession of aregistration certificate under the Architects Act, 1972 is regardedby Parliament as sufficient qualification for the practice ofarchitects and since all related questions have been dealt with inrespect of architects by the said Act, it became unnecessary forthe Corporation to do so thereafter.”

The question before the High Court of Delhi was whether theDelhi Municipal Corporation could require that architects submitting plansfor the construction of new buildings must possess a license issued by it.While answering this in the negative, the Division Bench specificallyobserved that unlike the Advocates Act 1961[9], the Architects Act did 9 “Advocates Act”

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Anot restrict the practice of architecture to persons registered under theArchitects Act. The High Court observed that even after the adoptionof the Architects Act, there continue to exist individuals who cannot callthemselves architects but are free to carry out the work which is ordinarilydone by architects.

B14. In Om Prakash Mittal v Council of Architecture[10 ]Sections35 and 37 of the Architects Act were challenged as ultra vires Articles14 and 19(1)(g) of the Constitution of India before a single judge of theHigh Court of Delhi. It was contended that Section 37 restricted the useof the title of “architect” to a certain category of qualified persons asdistinct from other qualified persons, a distinction not supported by aCrational nexus with the objects of the Architects Act. In dismissing theconstitutional challenge, Justice S B Wad cited the Statement of Objectsand Reasons of the Architects Act.The High Court of Delhi held:

"Article 19(6) empowers State to make law relating to theprofessional or technical qualifications necessary for practisingDany profession laying down professional qualifications for theprofession of architecture as done by the Act and prohibitingpersons who do not fulfil the said qualifications from posingthemselves as architects is constitutionally permissible. Therestriction, if at all, is a reasonable restriction. There is no meritEin the petitioner’s contention that there is no nexus withthe object of the Act. The object of the Act, as stated above,is to prevent unqualified persons calling themselves asarchitects and undertaking the construction of buildingswhich are uneconomical or unsafe and who are bringing theprofession of architect into disrepute. The provision isFessentially in the interest of the general public and it ismeant for protecting the public from unqualified personsworking as architects. The restriction imposed by Section 37does not violate Article 14 of the Constitution."

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In dismissing the constitutional challenge, the Single Judge of theHigh Court of Delhi held that one of the objects of the Architects Actwas to prevent unqualified persons “calling themselves as architects”which can result in untrained individuals being tasked with the critical H10 AIR 1983 Del 223

work of construction. This may lead to unsafe buildings. Section 37 wasenacted to protect citizens from being misled by untrained persons andmistakenly entrusting them with the task of construction. Even thoughthe Single Judge undoubtedly recognised the need for trained and qualifiedarchitects, Section 37 was interpreted as creating a bar on individualsrepresenting themselves to be qualified architects and not as creating abar on untrained individuals practicing the tasks undertakenby architects.

15. The issue of using the nomenclature “architect” in governmentservices has also arisen before the High Courts. In Tulya Gogoi vAssociation of Architects[11 ]an order of the Government of Assamwas challenged. The said order re-named the post of “ArchitecturalDraftsman P.W.D.” as ‘‘Junior Architect”. The individuals whose postswere to be renamed had at the time obtained a diploma certificate inArchitectural Assistantship which was not recognised by either theCentral Government or the Council of Architects. The order waschallenged by the Association of Architects, Assam as violating Section37 of the Architects Act as it would effectively allow the concernedindividuals to hold the title of “Architect” without holding a qualificationrecognised by the Council. In response, it was contended that Section37 was intended to prevent private individuals from calling themselves“Architects” and misleading the general public, but this rationale did notextend to government employees.Therefore, it was urged thatthegovernment was free to designate its posts howsoever it saw fit. Inrejecting this distinction between private architects and employees ofthe government, Chief Justice Brijesh Kumar (as the learned judge thenwas) speaking on behalf of a Division Bench of the High Court of Gauhatiheld:

“12. It is no doubt that the argument as advanced on behalf of theappellants is attractive, but it hardly appeals us. It is true, lookinginto the sudden spurt in the activity of building, constructed forfactories, industries, housing colonies, office complexes, etc., itwas considered that the profession of architecture must beregulated. Only those who have proper education and trainingand are qualified to work as such may alone be permitted to workas architects. It is a legislation especially dealing with architects.Meaning of the word ‘architect’ has been statutorily providedunder clause (a) of Section 2 where it has been provided that it AB

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Ameans one whose name is entered in the register. … Conduct ofan architect is effectively controlled by Section 30. As aGovernment servant may be punished under theGovernment rules, but still he may practice the professionof architecture. But check is placed by Section 30 underwhich the name of an architect is even liable to be removedBfrom the register disentitling him to practice. Therefore,the argument that being in Government service an architectis accountable to his employer according to the rules doesnot hold good since mere punishment as a Governmentemployee may not be enough to debar him from practisingCas an architect which is only controlled under Sections 22,29 and 30 of the Act, 1972.

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“15. … Apart from the categories as indicated above, no otherexception to the applicability of Section 37 has beenDprovided much less on the ground that one is engaged inprivate profession or in Government employment….”

The High Court rejected the argument that the object of SectionE37 to prevent misrepresentation by untrained individuals engaged inarchitectural activities only applied to private individuals and notgovernment employees. The High Court observed that even where therules of service stipulated by the government provided for the regulationof architects, the provisions of the Architects Act allowing for theregistration and de-registration of architects provided an overarchingFregulatory framework to protect the integrity of the architecturalprofession. The Actensures that individuals who did not possess astatutorily recognised qualification cannot refer to themselves as“Architects”. Crucially, the High Court observed that Section 37 did notcarve out an exception for government employees, therefore theGprohibition on the use and the “title and style of architect” contained inSection 37 applied to both private individuals and government employees.

16. Both the appellant and the Union of India have relied on thedecision of the Division Bench of the High Court of Madhya Pradesh inMukesh Kumar Manhar and it would be pertinent at this juncture todiscuss the judgement. The facts of that case were substantially similarH

to those before us. The petitioners before the High Court of MadhyaPradesh were employed as “Draughtsman” and “Head Draughtsman”and held architectural degrees recognised by the Architects Act. Theirnext promotional post was that of “Assistant Architect – Class II”. Oneof the pre-requisites for appointment as “Assistant Architect – Class II”was the completion of a degree in architecture. In 1991 the relevantrecruitment rules were modified and the requirement of a degree inarchitecture was removed as a pre-requisite for appointment as“Assistant Architect – Class II”. The petitioners contended that theamendment to the recruitment rules violated the provisions of theArchitects Act.According to the petitioners, the Act restricted the practiceof architecture to persons possessing a degree in architecture andregistered with the Council of Architects. In dismissing the petitioners’case, Chief Justice R V Raveendran (as the learned judge then was)speaking for a Division Bench of the High Court compared the provisionsof the Architects Act to those of the Advocates Act and the IndianMedical Council Act 1956[12]. The court held:

“10. There is a significant difference between the Architects Act1972 dealing with the profession of Architects and enactmentsdealing with Medical and Legal professions. Section 15(2) ofThe Indian Medical Council Act, 1956 bars any person otherthan medical practitioners enrolled on the State MedicalRegisters from practicing medicine or holding the office as‘physician’ or ‘surgeon’ in any Government Institution orother Institution maintained by any local or other Authority.Similarly, section 29 of the Advocates Act, 1961, providesthat only one class of persons are entitled to practice theprofession of law, namely, advocates entered in the Roll ofany Bar Council under the provisions of the Advocates Act.Thus there is a clear bar on persons who are not enrolled with theState Medical Council or State Bar Council from practising as aMedical Practitioner or an Advocate.

11. In contrast, the Architects Act 1972 does not prohibitpersons other than those who are registered as Architectsfrom practising the profession. As noticed above, Section37 only prohibits any person other than a registeredarchitect using the title and style of Architect. It does not 12 “Indian Medical Council Act”

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prohibit a person, who is not a registered as an Architectwith the Council of Architecture from carrying on ordischarging any function that can be carried on by aregistered Architect. …”

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The High Court noted that both the Indian Medical Council Actand the Advocates Act expressly restrict the practiceof medicine andlaw to individuals registered under the two statutes respectively. Whenexamined in juxtaposition to these two statutes, the choice of the legislatureto restrict the “title and style of architect” in Section 37 of the ArchitectsCAct 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 mayinvolve planning, designing and supervision of BuildingDconstructions. What is prohibited and what is objectionablein law is calling the persons discharging such functionsrelated to architecture, as ‘Architects’ when they are notregistered as Architects. … Even Engineers, who do nothave a degree in Architecture (and who are not registeredArchitects) but having qualifications in Engineering andEexperience in design and supervision, may perform thefunction which are normally performed by an Architect. Butsuch Engineers who are not registered Architects andposted to the Class-I or II posts, dealing with architecturalaspects and designs, cannot be called as ‘Architects’ orF‘Assistant Architects’ unless they are registered Architectsunder the Architects Act … A draughtsman who is a registeredArchitect, when promoted to Class II post, can however be calledas ‘Assistant Architect’.

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14. We recognise the freedom and choice, vested in the executive,to prescribe the qualifications for various posts. But thequalifications prescribed, should not violate any statutory provision,nor suffer from the vice of arbitrariness or mala fides. Statutorypreferences should not be ignored. Architecture is a specialisedtechnical field dealing with design and execution of buildings andstructures. …”

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The High Court held that the Architects Act merely prohibitedindividuals not registered with the Council of Architecture from referringto themselves as “Architects” but did not prohibit unregistered personsfrom carrying out the practice of architecture. Even engineers, who arenot registered with the Council may perform the functions of designingand supervising construction. Significantly, the High Court held that itwas not open for the government to refer to such unregistered engineersor other individuals as “architects” unless they are registered under theArchitects Act.

17. Similar observations were made by a single judge of the HighCourt of Delhi in Premendra Raj Mehta v National BuildingConstruction Corporation Limited[13]. The dispute arose by way of apublic interest litigation challenging the award of a consultancy servicecontract to a foreign firm not registered under the Architects Act andnot having taken permission from the Central Government in accordancewith the proviso to Section 37 of the Act. In response to the publicinterest litigation, it was contended that Section 37 only prohibits a personother than a registered architect from using the title of “architect” andany firm can bid for tenders provided they have on their rolls an architectregistered under the Architects Act. In dismissing the challenge to thegrant of the consultancy service contract, Justice V K Jain observedthat:

“8. A plain reading of Section 37 of the Act which appearsunder the heading “Prohibition against the use of title”would show that thoughthe aforesaid provision bars aperson other than a registered architect or a firm ofarchitects from using the title and style; it does not prohibithim from rendering architectural service so long as he doesnot use the expression architect and does not describe hisfirm, if any, as a firm of architects. Had the legislative intentbeen to prevent rendering of architectural services by any personother than a person registered under the provision of the Act,Section 37 of the Act would have been worded altogetherdifferently. For instance, Section 29 of the Advocates Act, 1961prohibits a person unless he is enrolled as an advocate frompracticing in any Court or before any authority or persons. ….Section 15(2) of the Medical Council Act, 1956 also expressly A

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Aprohibits a person other than a medical practitioner registered inany State, signing or authenticating a medical or fitness certificate,giving evidence as an expert and hold office as Physician orSurgeon or any other office in the Government or any institutionmaintained by a local or other authority. No similar provision is,however found in the Architects Act. The learned counsel forBthe petitioners contended that in my view rightly too thatsuch an interpretation may result in unqualified personsproviding services such as supervision of construction ofbuildings and the construction supervised by such personsmay not be safe and economical, but, then, the remedy liesCin the Parliament amending the provision of the Act so asto prohibit unqualified persons from rendering architecturalservices, and not in the Court taking an interpretation whicha plain reading of Section 37 does not suggest. Moreoversuch an unqualified person, after coming into force of the Actcannot represent themselves to be architects though they mayDcontinue to provide services such as supervision of constructionof buildings.”

The Single Judge of the High Court of Delhi observed that a plainEreading of Section 37 leads to the conclusion that Section 37 merely actsas a prohibition on the use of the title “Architect” and does not prohibitindividuals not registered under the Architects Act from undertaking thepractice of architecture. Importantly, the Single Judge observed thatalthough this may result in certain unregulated individuals engaging inthe practice of architecture: (i) such untrained individuals cannot referFto themselves as “architects” and are thus unlikely to be entrusted withtasks requiring specialised architectural knowledge; (ii) the court cannotconstrue a statutory provision in a manner contrary to its plain meaningmerely to address a perceived societal harm; and (iii) if the legislatureisof the opinion that the risk of untrained individuals who cannot refer toGthemselves as “architects” engaging in the business of designing andsupervising construction is real, it can always amend Section 37 to prohibitthe practice of such activities by unregistered individuals as the legislaturehas done in the cases of the Advocates Act and the Indian MedicalCouncil Act.

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18. In Sudhir Vohra v Registrar of Companies[14 ]three writpetitions were filed before a single judge of the Delhi High Court. Thefirst writ petition sought a mandamus directing the Registrar of Companiesand Ministry of Corporate Affairs to prohibit the registration of anycompany or limited liability partnership which stated that it providedarchitectural services. The second writ petition sought a directioncancelling the permission granted to an architecture firm from Singaporeto set up a wholly owned subsidiary in India. The third writ petitionsought the quashing of a Ministry of Corporate Affairs’ circular whichstipulated that if a company or limited liability partnership had as one ofits stated objectives the providing of architectural services, such an entitycould not be incorporated without a no-objection certificate from theCouncil of Architecture. Justice Rekha Palli summarised the issues raisedby 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 providearchitectural services; and (ii) no company/LLP can use the titleand 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 restrictsthe use of the title and style of ‘architect’, and it neither precludescompanies/LLPs from rendering architectural services norprevents them from mentioning the same as one of their objectsin their MOA.”

In answering the questions raised by the writ petitions, the HighCourt of Delhi was essentially asked to consider whether the ArchitectsAct precludes unregistered architects (including legal entities) fromproviding architectural services, or alternatively whether the Act merelyprohibits unregistered architects and entities from using the “title andstyle of architect”. After examining the provisions of the Architects Act,the Single Judge held:

“40. On a careful examination of the aforesaid provisions of theAdvocates Act and CA Act viz-a-viz the provisions of theArchitects Act, it is apparent that the latter does not contain anyprohibitory provisions similar to the ones in the former two. TheArchitects Act neither prescribes that only registered AB

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Aarchitects can provide architectural services, nor containsany clause prohibiting companies and LLPs from providingarchitectural services. In fact, what emerges from the entirescheme of the Architects Act is that it neither defines as towho can provide architectural services nor puts any fetterson persons who wish to provide architectural services. ItBmerely defines an architect to mean a person whose nameis entered in the register maintained by the COA and laysdown the mandatory qualifications for an entry in the saidregister. On the other hand, the Advocates Act and CA Act includespecific provisions laying down as to who can practice as anCadvocate or accountant.

41. Thus, the Act, while clearly prescribing that unregisteredpersons, including juristic entities, cannot describe or stylethemselves as architects, does not preclude any one from providingarchitectural services. Merely because the Act includes aDspecific provision prescribing that only a registered architectcan use the title of an ‘architect’ or style himself/herself asan ‘architect’, it cannot be concluded that the Act in anymanner envisages that architectural services can berendered only by those to whom the Act applies.”

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The Single Judge concluded that the scheme of the ArchitectsAct does not define a set of individuals who can provide architecturalservices. Merely because the statute stipulates that nobody other thanindividuals who are registered with the Council of Architects can useFthe title of “Architect” cannot mean that the Act restricts the practice ofarchitecture as a whole to those registered with the Council.

Controversy at the Supreme Court

19. During the course of the present proceedings, the LearnedAttorney General has placed before us a compilation of relevant materialGincluding an order dated 14 February 2017 of a two-judge bench of thisCourtin Council of Architecture v Manohar Krishnaji Ranade[15](“Manohar Ranade”). We have extracted the relevant portion of theorder below:

15C.A. Nos 3346-3348 of 2005H

“While we find no reason to interfere with the impugned judgementand order dated 29[th] November, 2004 passed by the Bombay HighCourt in Writ Petition No. 1830 of 1988 and connected matters,we are of the view that the High Court was in error in rejectingthe contention of the appellant that practice under the ArchitectsAct, 1972 is not restricted only to the architects. It is not correctto say that any one can practice as an architect even if he is notregistered under the Architects Act, 1972.”

Placing reliance on this order, the appellant contended that thequestion of whether Section 37 prohibits the practice of architecture byunregistered individuals is no longer res integra. It was urged that thisCourt has already held that the practice of architecture is limited toarchitects registered under the Architects Act. The order arising out ofManohar Ranade has been followed by a three-judge bench of thisCourt in an order dated 11 September 2017 in Council of Architecturev Indian Institute of Architects.[16 ]The order of the three-judge benchstates that:

“Having heard learned counsel for the parties and keeping in viewthe order dated 14[th] February, 2017, passed in Civil Appeal Nos.3346-3348 of 2005, we dispose of the present appeal in similarterms. To have clarity, we reproduce the relevant passage as under:- “While we find no reason to interfere with the impugned judgementand order dated 29[th] November, 2004 passed by the Bombay HighCourt in Writ Petition No. 1830 of 1988 and connected matters,we are of the view that the High Court was in error in rejectingthe contention of the appellant that practice under the ArchitectsAct, 1972 is not restricted only to the architects. It is not correctto say that any one can practice as an architect even if he is notregistered under the Architects Act, 1972.”

The appeal is disposed of in the above terms…”

20. The controversy in Manohar Ranade concerned whetherthe Municipal Corporation could issue licenses to individuals not registeredunder the Architects Act for the completion of certain tasks that areotherwise undertaken by architects. In answering this question, Justice A

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AA P Shah (sitting as a judge of the High Court of Bombay) and JusticeDharmadhikari stated:

“7. The next issue is whether the engineers or surveyors possessingnecessary qualifications can discharge functions which are alsodischarged by an architect under the Architects Act, 1972?

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8. In the above circumstances we are notinclined to acceptthe case of the petitioners that the Architects Act restrictspractice of architecture to persons registered under thesaid Act. Therefore qualified engineers who cannotCthemselves call on Architects may still be free to do thework which is ordinarily done by the Architects and it wouldbe open for the Corporations to regulate licensing in favour ofsuch qualified engineers.”

D

The High Court of Bombay rejected the contention that the practiceof architecture is restricted to registered architects under the ArchitectsAct. The High Court of Bombay held that the practice of architecture isnotrestricted to architects registered under the Architects Act, and evenqualified engineers are free to carry out the work ordinarily done byEarchitects.

21. The order of this Court dated 14 February 2017 states that“the High Court was in error in rejecting the contention of the appellantthat practice under the Architects Act, 1972 is not restricted only to thearchitects.” The appellant was the Council of Architecture. The order isFbased on the premise that the contention of the Council of Architecturebefore the High Court of Bombay was that the “practice under theArchitects Act, 1972 is not restricted only to architects.” The order statedthat the High Court was wrong in rejecting this contention.Therefore,the order of this Court dated 14 February 2017 clearly sought to laydown the proposition that the “practice under the Architects Act, 1972 isGnot restricted only to architects.” Having laid down this proposition, itwould 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 practiceof architecture cannot be restricted to registered architects under theArchitects Act. Hence, it would be an incorrect interpretation of theH

order to hold that in the very next line, the court would have laid down acontrary proposition. Therefore, the effect of the order as a whole is tolay down the principle that individuals can practice as architects even ifthey are not registered under the Architects Act. The subsequent orderof this Court dated 11 September 2017 which quotes and follows theearlier ordershould also be read in this light. Therefore, the two ordersof this Court do not further the case urged by the appellant but supportthe position set out by the Union of India, succinctly advanced in thesubmissions of the learned Attorney General.

Regulatory Scheme of the Architects Act

22. Before embarking on our analysis of whether the ArchitectsAct prohibits the practice of architecture by individuals not registeredwith the Council of Architects, it is pertinent to examine the scheme ofthe Architects Act in its entirety. The Architects Act is a special legislationcreating an exhaustive regulatory regime applicable to the profession ofarchitecture. Clause (a) of Section 2 of the Architects Act defines anarchitect as follows:

“(a) “architect” means a person whose name is for the time beingentered in the register;”

The “register” is further defined as:

“(e) “register” means the register of architects maintained undersection 23;”

Section 3 of the Architects Act brings into existence the Councilof Architecture. Under Section 14 of the Act, only qualifications includedin the Schedule to the Act or notified under Section 15 of the Act shall berecognised as valid qualifications for the purposes of enrolling in theregister under the Architects Act. Clause (2) of Section 14 permits anyauthority in India which grants architectural qualifications not alreadyincluded in the Schedule of the Act to apply to the Central Governmentto have such qualification recognised as a valid architectural qualificationfor the purposes of registration under the Architects Act. Section 17 ofthe Architects Act states that:

“17. Effect of recognition.—Notwithstanding anything containedin any other law, but subject to the provisions of this Act, anyrecognised qualification shall be a sufficient qualification forenrolment in the register.”

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AThe import of Sections 14, 15 and 17 is that if an individual wishesto be a registered architect under the Architects Act, they must receivean educational qualification that is recognised as a valid qualification byvirtue of its inclusion in the Schedule to the Architects Act or a notificationunder Section 15. The Schedule to the Architects Act contains a list ofqualifications that are recognised in law as sufficient to warrant theBholder 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 beregistered architects under the Act.

23. Section 23 of the Architects Act provides that:C

“23. Preparation and maintenance of register.—(1)TheCentral Government shall, as soon as may be, cause to be preparedin the manner hereinafter provided a register of architects forIndia.

D(2) The Council shall upon its constitution assume the duty ofmaintaining the register in accordance with the provisions of thisAct.

(3) The register shall include the following particulars, namely:—

(a) the full name with date of birth, nationality and residentialEaddress of the architect; (b) his qualification for registration, and the date on which heobtained that qualification and the authority which conferredit;

(c) the date of his first admission to the register; F

(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 architectsin India. As the term “architect” itself is defined to mean an individualGregistered under the Architects Act, the effect of registration of anindividual under the Act is firstly to maintain a list of individuals whohave astatutorily recognised educational qualification in the field ofarchitecture and secondly to bring such individuals within the regulatoryregime of the Architects Act. Section 29 sets out the procedure for theHremoval of individuals from the register, including on the ground of such individuals having misrepresented material facts at the time of registration,being undischarged insolvents, or having been convicted of offencesinvolving moral turpitude. Section 30 provides the procedure for inquiriesinto misconduct by architects and Section 31 provides for the surrenderof certificates by registered architects. Section 35 of the Architects Actstipulates that:

“—35. Effect of registration.(1)Any reference in any law forthe time being in force to an architect shall be deemed to be areference to an architect registered under this Act.

(2) After the expiry of two years from the date appointed undersub-section (2) of section 24, a person who is registered in theregister shall get preference for appointment as an architect underthe Central or State Government or in any other local body orinstitution which is supported or aided from the public or localfunds or in any institution recognised by the Central or StateGovernment.”

The consequence of Section 35 is that,where a statute refers toan “architect” such reference shall be deemed to mean a registeredarchitect under the Architects Act. Clause (2) of Section 35 creates astatutory preference in favour of registered architects with respect tothe appointment of candidates by the Central or state governments orlocal bodies or institutions which receive state aid.

24. Lastly, we may refer to the provision at the heart of the presentcontroversy, Section 37 of the Architects Act which states:

“37. Prohibition against use of title.—(1) After the expiry ofone year from the date appointed undersub-section (2) of section24, no person other than a registered architect, or a firm ofarchitects shall use the title and style of architect:

Provided that the provisions of this section shall not apply to—

(a) practice of the profession of an architect by a persondesignated as a “landscape architect” or”naval architect”; (b) a person who, carrying on the profession of an architect inany country outside India,undertakes the function as aconsultant or designer in India for a specific project with theprior permission of the Central Government.

Explanation.—For the purposes of clause (a),—

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932SUPREME COURT REPORTS

A(i) “landscape architect” means a person who deals with thedesign of open spaces relating toplants, trees and landscape;

(ii) “naval architect” means an architect who deals with designand construction of ships.”

B

Clause (2) of Section 37 states that any person who contravenesthe prohibition created in clause (1) of Section 37 shall be punishable onfirst conviction with a fine that may extend to five hundred rupees andon subsequent convictions with imprisonment which may extend up tosix months or a fine not exceeding one thousand rupees or both.CQuestions before this Court

25. The present case raises two questions that this Court mustanswer:

(i) Question 1: Does Section 37 of the Architects Act prohibitDindividuals not registered as architects under the ArchitectsAct from practicing the activities undertaken by architects,including the design, supervision and construction ofbuildings; and

(ii) Question 2: Whether a post titled “Architect”, “AssociateEarchitect” or any other similar title using the term or styleof “Architect” can be held by a person not registered as anarchitect under the Architects Act.

Question 1

26. In answering the first question we must begin with the text ofFSection 37. The provision uses the phrase “no person shall … use thetitle and style of architect”. Therefore, on a plain reading of the section,the legal prohibition created is on the use of the “title and style ofarchitect”. Title and style are distinct from practice. While a prohibitionon the use of a title merely restricts an individual from attaching the saidGtitle to their name in referring to or representing themselves to others, aprohibition on practice creates a bar on the actual undertaking of specificactions.The most compelling evidence that the two concepts arematerially distinct is the varied usage of the two phrases by the legislature.For example,clause (2) of Section 15 of the Indian Medical Council Actstates:H

“(2) Save as provided in section 25, no person other than a medicalpractitioner enrolled on a State Medical Register,—

(a) shall hold office as physician or surgeon or any other office(by whatever designation called) in Government or in anyinstitution maintained by a local or other authority.

(b) shallpracticemedicine in any State;…”

In setting out the legal bar applicable toindividuals not registeredon the State Medical Register, the Indian Medical Council Act clearlyuses the term “practice” as distinct from “hold office” or “style andtitle”. Similarly, Section 29 of the Advocates Act provides that:

“29. Advocates to be the only recognised class of personsentitled to practise law.—Subject to the provisions of this Actand any rules made thereunder, there shall, as from the appointedday, be only one class of persons entitled topracticethe professionof law, namely, advocates”

In making a distinction between individuals registered under thestatute and those not registered, the Advocates Act clearly stipulatesthat unregistered individuals cannot “practice” the profession of law.This stands in stark contrast to the text of the Architects Act whichmerely states that unregistered individuals cannot “use the title and styleof architect”. Therefore, a plain reading of Section 37 clearly supportsthe proposition that the Architects Act prohibits individuals not registeredwith the Council of Architecture from using the title and style of“Architect” and does not prohibit unregistered individuals from practicingthe activities undertaken by architects such as the design, supervisionand construction of buildings.

27. It has been contended that one of the objects and purposes ofthe Architects Act is to prevent untrained individuals from designing,supervising and constructing buildings. It has further been contendedthat registration under the Architects Act forms an essential part of theregulatory regime for architects as it ensures that architects possessadequate educational qualifications.Therefore, it is urged that Section37 must be read in a manner which prohibits unregistered individualsfrom practicing the profession of architecture and cognate activities in A

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Aorder to prevent the harms arising from unqualified individuals providingcritical architectural services. These submissions are ultimately premisedon the argument that even if a plain reading of Section 37 does notsupport the argument of a prohibition on “practice” this Court mustnonetheless read the provision to include a prohibition on practice inorder to avoid defeating the object and purpose of the Architects Act.B

28. It is well settled that the first and best method of determiningthe intention of the legislature is the very words chosen by the legislatureto have the force of law. In other words, the intention of the legislatureis best evidenced by the text of the statute itself. However, where aplain reading of the text of the statute leads to an absurd or unreasonableCmeaning, the text of the statute must be construed in light of the objectand purpose with which the legislature enacted the statute as a whole.Where it is contended that a particular interpretation would lead todefeating the very object of a legislation, such an interpretative outcomewould clearly be absurd or unreasonable. To determine whether theDinterpretation arrived at on a plain reading of the provision truly defeatsthe object of the statute as a whole, we may briefly delve into thelegislative history of the Architects Act. To answer the question whetherreading Section 37 as a prohibition merely on the use of the title andstyle of “Architect” by unregistered individuals would in truth defeat theobject and purpose of the Architects Act this Court may examine theEreasons behind the enactment as a whole.

29. The “Statement of Objects and Reasons” given by thelegislature in passing the Architects Act have been extracted below:

“Since independence and more particularly with the implementationFof the Five-Year Plans, the building construction activity in ourcountry has expanded almost on a phenomenal scale. A largevariety of buildings, many of extreme complexity and magnitudelike multi-storeyed office buildings, factory buildings, residentialhouses, are being constructed each year. With this increase inthe building activity, many unqualified persons callingGthemselves as Architects are undertaking the constructionof buildings which are uneconomical and quite frequentlyare unsafe, thus bringing into disrepute the profession of architects.Various organisations, including the Indian Institute of Architects,have repeatedly emphasised the need for statutory regulation toHprotect the general public from unqualified persons working as architects. With the passing of this legislation, it will beunlawful for any person to designate himselfas ‘architect’unless he has the requisite qualifications and experienceand is registered under the Act.

…

3. The legislation protects the title “architects” but doesnot make the design, supervision and construction ofbuildings as an exclusive responsibility of architects. Otherprofessions like engineers will be free to engagethemselves in their normal vocation in respect of buildingconstruction work provided that they do not stylethemselves as architects.”

The Statement of Objects and Reasons of the Architects Actmakes it evident that the legislature was undoubtedly concerned withthe risk of unqualified persons undertaking the construction of buildingsleading to costly and dangerous buildings. In guarding against this risk,the legislature first set out a minimum standard of statutorily recognisedqualifications to be met before an individual is designated as an architectunder the Architects Act. This is done by Sections 14, 15 and 17 of theAct. Next, the legislature created two classes of individuals: the firstclass consisted of registered architects satisfying these minimumqualifications and a second class of unregistered individuals who did notsatisfy these minimum qualifications. This is the effect of Sections 2(a),17, 23 and 35 of the Architects Act. Crucially, the legislature chose todefine an “architect” as an individual registered under the ArchitectsAct and not as an individual practicing architecture or any cognateactivities.Thus, the legislature limited the regulatory regime created bythe Architects Act to the first class of individuals. In protecting the publicfrom the risk of the second class, untrained individuals, the legislaturehad two options: first it could bar this second class of individuals fromengaging in the profession altogether (as it had done with physicians andadvocates); or alternatively it could prevent this second class of individualsfrom calling themselves “Architects”. The Statement of Objects andReasons makes it clear that the legislature chose the second option andin fact went to great lengths to clarify that choice. The legislature statedthat with the passing of the legislation, it shall be unlawful for anunregistered individual to “designate himself” as an architect. Further, it A

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Ais expressly stated that the legislation protects the “title” of architect butdoes not grant registered architects an exclusive right to undertake thedesign, supervision and construction of buildings. Other cognateprofessions or unregistered individuals may continue to carry out theseactivities provided that they do not refer to themselves as “Architects”.

B30. It is evident that the legislature did not intend to create aprohibition on the practice of architecture and associated activities byunregistered individuals. As opposed to the case of physicians or surgeonsunder the Indian Medical Council Act or advocates under the AdvocatesAct, the legislature consciously chose to employ a less stringent measurein the case of architects, merely prohibiting unregistered individuals fromCusing the “title and style” of architect. It is not for this Court to delve intowhy the legislature made this choice. However, during the course ofthese proceedings a cogent and pragmatic reason for this choice hasbeen placed before this Court, by the learned Attorney General of Indiaand by way of the erudite opinion of Chief Justice Raveendran in theDdecision in Mukhesh Kumar Manhar to which we may briefly advert.

31. The profession of architecture involves a wide range ofactivities including inter alia:

(i) Taking instructions from clients and preparing designs; E(ii)Site evaluation and analysis;

(iii) Site design and development;

(iv) Structural design;

(v) Design of sanitary, plumbing, sewage, drainage, and watersupply structures;F

(vi) Design and structural integration of electrical andcommunications systems;

(vii) Incorporation of heating, air-conditioning, ventilation andother mechanical systems including fire detection andGprevention systems; and

(viii) Periodic inspection and evaluation of construction work.

These activities are undertaken by architects but are also carriedout by architects in concert with a range of other actors including draughtspersons, builders, engineers, and designers. If the legislature were toH

impose an absolute prohibition against unregistered individuals from‘practicing architecture’ there would be considerable confusion as towhat activities formed the practice of architecture and what did not. Itmay have resulted in a host of other legitimate professionals being barredfrom engaging in the design, supervision and construction of buildingsmerely because they were not registered under the Architects Act.Further, as the learned Attorney General of India brought to our attention,these varied professions form essential cogs in the overall machinery ofconstruction in India and the design, supervision and construction of newstructures cannot bedone by architects alone. It would be unreasonablefrom a regulatory perspective to ask all professions touching upon theconstruction of new structures to obtain a degree in architecture.

32. Architecture undoubtedly constitutes a highly specialisedprofession requiring the possession of minimum educational qualifications.However, architects are by and large engaged by means of a contractfor services. In other words, architects provide a set of specialisedservices towards the larger goal of construction. Architects are notembarking on construction independently of other actors. By virtue ofthe Architects Act, anybody engaging the services of an individual callingthemselves an “Architect” is assured that such an individual possessesstatutorily recognised educational qualifications and is competent tocomplete the task at hand. It is in this manner that the legislature protectsthe common person from untrained individuals.

33. For the above reasons, we affirm the decision of the HighCourt of Allahabad on the first question and hold that Section 37 of theArchitects Act does not prohibit individuals not registered under theArchitects Act from undertaking the practice of architecture and itscognate activities.

Question 2

34. The second question before this Court is whether a post titled“Architect”, “Associate architect” or any other similar title using theterm or style of “Architect” can be held by a person not registered as anarchitect under the Architects Act. On this question, the High Court ofAllahabad held that the “mere nomenclature” of a particular post willnot violate the prohibition on the use of “title and style” of architectunder Section 37. In other words, even an individual not registered as anarchitect under the Architects Act can hold a post titled “Architect” or AB

C

D

E

F

G

H

A“Associate Architect” because the name of the post amounted to “merenomenclature”.

35. While we have held that Section 37 does not prohibit thepractice of architecture by unregistered individuals, it certainly doesprohibit unregistered individuals from using the “title and style” of architect.BUnder the scheme of the Architects Act, only individuals possessing thestatutorily recognised minimum educational qualifications can apply forregistration as an “Architect” under the Act. Registration as an architectunder the statute is thus a guarantee of possessing certain minimumeducational qualifications. Section 37 prohibits unregistered individualsfrom designating themselves or referring to themselves as “architects”.CThe consequence of this regulatory regime is that when an individual iscalled an “Architect” a reasonable person would assume that they are aregistered architect under the Architects Act and as a consequencepossess the requisite educational qualifications and specialised knowledgeassociated with architects.

D

36. If an individual is appointed to a post titled “Associate Architect”,“Architect” or “Senior Architect”, they undoubtedly refer to themselvesand are referred to by others as “Architects”. Holding a post using theterm “Architect” has the real-world consequence of being referred toas an architect. This is not a matter of mere nomenclature. As notedEabove, architecture is a specialised field of study. Crucially, the schemeof the Architects Act provides a direct nexus between the minimumeducational qualifications required to be obtained, registration as anarchitect under the Act and the prohibition against the use of the title of“Architect” by those not registered under the Act. If a government postis titled “Architect” or “Associate Architect”, such a person certainlyFuses the title and style of “architect” and consequently there is areasonable assumption that such a person is registered under theArchitects Act and holds a degree in architecture recognised by theAct. This assumption finds statutory backing in Section 35 of theArchitects Act which provides that any reference to an architect in anyGother law shall be deemed to mean an architect registered under theArchitects Act. To promote an individual who does not possess a degreein architecture recognised by the Act to a post titled “Architect”,“Associate Architect” or of a similar style using the title or style of“architect” would effectively violate the prohibition on the use of titlecontained in Section 37 of the Architects Act.H

37. In the present case, we recognise the power of NOIDA toprovide and modify the minimum eligibility criteria for promotion ofcandidates to the posts of Associate Town Planner and AssociateArchitect. We further recognise that the authority has significant discretionin how it chooses to title the various posts under its supervision. However,to permit NOIDA to continue to title a post that includes individuals whoare not registered architects under the Architects Act as “AssociateArchitect” would result in a violation of Section 37 of the ArchitectsAct. In the case of Tulya Gogoi the High Court of Gauhati expresslyheld that the prohibition on the use of title and style of architect containedin Section 37 of the Architects Act applies to both private individuals andgovernment employees. The reasoning of the High Court on this issuecommends itself for our acceptance.The text of Section 37 makes nodistinction between government employees and private individuals.

38. The U.P. Industrial Area Development Act provides NOIDAwith the power to make rules for the management of its internal affairs.In exercise of this power, NOIDA formulated the Service Regulationsof 1981. Rule 16 of the Service Regulations sets out the ‘Sources ofRecruitment’ for posts under NOIDA’s authority. By clause (iv) of Rule16 NOIDA has the power to modify the sources of recruitment forposts under its supervision. It is in exercise of this power that NOIDAformulated the Promotion Policy of 2005 which sets out the sources andqualifications for recruitment in its various departments. It is wellestablished that delegated legislation is susceptible to invalidity on thegrounds of being ultra viresits parent legislation but also ultra viresother primary legislation. Where the provisions of a primary legislation(the Architects Act) are contradictory to the provisions of a delegatedlegislation (the Promotion Policy 2005), the provisions of the primarylegislation must prevail. This principle is well established and has receivedarticulation by this Court on several occasions. In Indian ExpressNewspapers v Union of India[17 ]Justice Venkataramiah speaking for athree-judge Bench of this Court stated:

“75. A piece of subordinate legislation does not carry the samedegree of immunity which is enjoyed by a statute passed by acompetent Legislature. Subordinate legislation may be questionedon any of the grounds on which plenary legislation is questioned.In addition, it may also be questioned on the ground that it does A

B

C

D

E

F

G

H

A

not conform to the statute under which it is made. It may furtherbe questioned on the ground that it is contrary to someother statute. This is because subordinate legislation mustyield to plenary legislation. It may also be question on the groundthat it is unreasonable, unreasonable not in the sense of not beingreasonable, but in the sense that it is manifestly arbitrary. …”

B

The distinction made by the Allahabad High Court, that thePromotion Policy 2005 was passed under a state legislation, namely theU.P. Industrial Area Development Act, and thus did not need to comportCwith the terms of the Architects Act as a central legislation is incorrect.

39. For the reasons stated above, in response to the first questionwe affirm the decision of the High Court of Allahabad and hold thatSection 37 of the Architects Act does not prohibit individuals notregistered under the Architects Act from undertaking the practice ofDarchitecture and its cognate activities. In response to the second questionwe disapprove of the view of the High Court of Allahabad and hold thatNOIDA cannot promote or recruit individuals who do not hold a degreein architecture recognised by the Architects Act to a post that uses thetitle or style of “architect”. However, the authority is free to change thenomenclature of the post to any alternative as long as it does not violateEthe provisions of the Architects Act by using the style and title of“architect” in its name.