HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
Writ Petition No.6588/2013
Association of Civil Engineers of
Madhya Pradesh (Bhopal Unit) ............Petitioner Versus
State of Madhya Pradesh and another ........Respondents
CORAM
Hon. Shri Justice A.M.Khanwilkar, Chief Justice Hon. Shri Justice K.K. Trivedi
Whether approved for reporting ? Yes
Shri Siddharth Gupta, Advocate for the petitioner. Shri Sanjay Dwivedi, Government Advocate for the respondents/State.
ORDER
(04.04.2014)
Per A.M. Khanwilkar, Chief Justice (Oral):
This petition takes exception to Rule 26 of the Madhya Pradesh Bhumi Vikas Rules, 2012, being ultra vires Article 14, 19 and 21 of the Constitution of India and also repugnant to various provisions of the National Building Code, 2005.
2. Indubitably, rule 26 of the Rules of 2012 is an enabling provision empowering the Authority to issue licences to the Structural Engineers, Engineers, Supervisors and Town Planner, who possess the minimum qualifications as laid down in sub rule (2). Sub rule (2) provides for qualification prescribed for grant of licence to an Engineer etc. Sub rule (3) envisages mechanism to be followed for grant of licence and sub rule (4) obligates the Authority to maintain a register in respect of persons to whom licence is issued or renewed. The relevant portion of Rule 26 with which we are concerned reads thus :-
"26. Licensing of Engineer, etc.-(1).......... (9) An Architect or a licensed Structural Engineer/Engineer/Supervisor/Town Planner shall be competent to perform the duties indicated hereinbelow :-
(A) Architect - Competence - An Architect who is registered with the council shall be competent to carryout work related to the permission for building and shall be entitled to submit :- (a) all plans and information connected with permission for all building irrespective of size and height;
(b) structural details and calculations for residential buildings on plot upto 500 square meters and upto three storeys or 11 meters in height;
(c) certificate of supervision and completion of all buildings; (d) all plans and related information connected with permission for development of area upto 4 hectare; and (e) certificate of supervision for development of land area upto 4 hectare.
(B) Structural Engineer - Competence - The licensed Structural Engineer shall be competent to carry out the work relating to permission of building, and shall be entitled to submit :- (i) all plans and information connected with permission for residential buildings on plots upto 500 Sq.m. and upto three storeys or 11 m in height.
(ii) The structural details and calculation for all buildings; (iii) Certificate of supervision and completion of all buildings; (iv) All plans and related information connected with permission for development of area upto one hectare;
(v) Certificates of supervision for development of land area upto one hectares.
(C) Engineer - Competence - The licensed Engineer shall be competent to carry out the work related to the permission for building as given below and shall be entitled to submit :- (i) all plans and information connected with residential building on plot upto 300 sq.meter and upto two storeys or 7.5 meter in height.
(ii) Structural details and calculation for all buildings on plots upto 500 sq.m. and height upto four storeys (15 m); (iii) Certificate of Supervision and completion for all buildings; (iv) All plans and related information connected with permission for development of area upto 1 hectare; and (v) Certificate of supervision for development of land area upto 1 hectare.
(D) Supervisor - Competence- The licensed Supervisor shall be entitled to submit :-
(i) all plans and related information connected with permission for residential buildings on plots upto 200 sq.m. and upto two storeys or 7.5 meters height;
(ii) certificate of supervision for buildings in (i) above.
(E) Town Planner - Competence - The licensed Town Planner shall be entitled to submit :-
(a) all plans and related information connected with permission for development irrespective of the size of land; and (b) certificate of supervision for development of land as in (a) above.
(F) Group or Agency - When an agency or group of qualified architects, engineers, town planners is practicing, then the qualification and competence of work shall be equivalent to the highest competency of individual in the group or agency".
(emphasis supplied)
3. With reference to the efficacy of sub rule (9) of Rule 26, the petitioner has delineated the issues of discriminatory treatment meted out to Civil Engineers. It may be useful to reproduce the said chart which reads thus :-
S.No. Details of Architect Civil Engineer Comments Rules
1. Rule 26- (a) all plans and (a) all plans and Thus there has Bhumi information information been apparent Vikas connected with connected with discrimination Rules 2012 permission for all residential building between building irrespective on plot upto 300 sq. Architect and of size and height; meter and upto two Civil Engineer (d) all plans and storeys or 7.5 meter as is evident related information in height; from the connected with (d) all plans and emphasized permission for related information portions of development of area connected with Rule 26 upto 4 hectare; and permission for referred to (e) certificate of development of herein supervision for area upto 1 development of land hectare; and area upto 4 hectare (e) certificate of supervision for development of and area upto 1 hectare.
2. Rule 26 - (a) all plans and (a) all plans and With respect Bhumi information information to points (d) & Vikas connected with connected with (e), thus both Rules 1984 permission for all residential building Architects & building irrespective on plot upto 300 sq. Civil of size and height; meter and upto two Engineers (d) all plans and storeys or 7.5 meter were treated related information in height; on equal connected with (d) all plans and footing by the permission for related information Rules of 1984, development of area connected with which has upto 1 hectare; and permission for been altered (e) certificate of development of arbitrarily in supervision for area upto 1 2012. development of land hectare; and area upto 1 hectare (e) certificate of supervision for development of land of area upto 1 hectare.
3. Annex - (a) all plans and (a) all plans and The A, information information competence of National connected with connected with architect is Building building permit building permit; confined to Code except engineering very limited (NBC) services of areas mostly 2005 multistoreyed/ (b) Structural pertaining to special buildings details and architectural given in 12.2.5.1 calculations of aspects, (b) Issuing certificate building on plot up whereas the of supervision and to 500 m2 and up to engineers have completion of all 5 storeys or 16 m in been given buildings pertaining height; much more to architectural powers to aspects. (c) Issuing approve, (c) Preparation of certificate of supervise and sub-division / layout supervision and certify plans plans and related completion for all of buildings as information buildings; well as areas. connected with (d) Preparation of development permit all service plans and of area up to 1 related information hectare for metro- connected with cities and 2 hectare development for other places permit; and (d) Issuing certificate (e) Issuing of supervision for certificate of development of land supervision for of area up to 1 development of hectare for metro- land for all area cities and 2 hectare for other places.
4. Relying on the above said comparison it is contended that the sweep of Rule 26, in particular sub rule (9) clause (C), is, on the face of it, discriminatory and arbitrary. In that, there is no difference much less substantial difference in the technical qualifications of Architects and Engineers as both these professionals are qualified and have the necessary knowledge and expertise to engage themselves in building construction and development activities. In other words, there is no qualitative difference between the abilities of Architects and Civil Engineers by virtue of their qualifications. If so, the distinction as made by sub rule (9) of Rule 26 is without any basis and has no rationale with the object sought to be achieved by the said rule.
5. To buttress this submission, reliance is placed on the decision of Division Bench of the Bombay High Court in the case of Meghana A.P.Desai (Smt.) Vs. Union of India, reported in 1987 Mh.L.J. 93. Reliance is also placed on another decision again of the Division Bench of the Bombay High Court in the case of Suhas Baburao S.Naik Vs. Planning and Development Authority, Panaji, 1989 Mh.L.J. 245.
6. After analyzing the stand taken by the respondents, it is not possible to countenance the logic for making the distinction between the Architects and Civil Engineers in respect of conditions of grant of licence. On the other hand, the finding that we are inclined to record, as has been already analysed and opined by the Division Bench of the Bombay High Court, is that there is no substantial difference between the technical qualifications of Architects and Engineers and both these professionals are equally qualified and equipped in engaging themselves in building construction and development activities. They have full knowledge and expertise in that behalf. The nomenclature of the degree possessed by them, therefore, by itself cannot be the basis to make discrimination in the scope of licence issued to the Civil Engineers in contradistinction to the scope of licence issued to the Architects. The stand taken by the respondents was also taken before the Bombay High Court by the Authorities, which has been considered and negatived. We have no hesitation in adopting the same view as is taken by the Bombay High Court in this behalf.
7. In the circumstances, we are inclined to hold that the distinction made between the scope of licence to be granted to the Civil Engineers and that to Architects, is discriminatory and hit by Article 14 of the Constitution of India. As a consequence, it would follow that highlighted portion of sub clause (C) of sub rule (9) of Rule 26 will have to be struck down; and further to declare that the highlighted portion contained in sub rule (9) clause (A) would apply proprio vigore to Engineers as in the case of Architects for grant of licence and the scope of licence to be issued to Engineers. We are conscious of the fact that the petitioners have not asked for the latter relief as has been granted. But to do complete justice in the matter it is necessary to mould the reliefs on the above terms, for the reasons recorded hitherto.
8. Petition allowed on the above terms.
(A.M.Khanwilkar) (K.K. Trivedi) Chief Justice Judge HS