Meghana A.P. Desai (Smt.) And ... vs Union Of India (Uoi) And Ors. on 12 August, 1986
Equivalent citations: 1987 (1) BomCR 377
Author: G Couto
Bench: G Couto, G Kamat
G.F. Couto, J.
1. Though separately, petitioners challenge in these petitions, the same decision of the third respondent, Southern Planning and Development Authority; communicated to the petitioner Smt. Meghana A.P. Desai, by its letter dated 18th April, 1985, directing her to re-submit her application and plans for construction of a house at Margao signed by an Architect registered with it and not by an Engineer. The issue and the question raised are the same and hence, this common judgement.
2. Petitioner Smt. Meghana A.P. Desai, is the owner of a plot of land situated at Margao and bearing the chalta Number 54 of P.T. Sheet No. 196 of the Margao City Survey, petitioner Vikas Vithal Desai, being a Civil Engineer, registered under No. 292 with the local P.W.D. and under No 32 with the Margao Municipal Council, carrying on the profession of Civil Engineer in Goa. She decided to raise a building in her aforesaid plot of land and after engaging the services of the petitioner Vikas, submitted the required plans signed by the latter alongwith her application, to third respondent. By its letter dated 18th April, 1985 addressed to Smt. Meghana, the third respondent directed her to re-submit her application and plans signed by an Architect registered with it and not by an Engineer as required by its Rules, namely by the Note to Rule 13 of the Goa, Daman and Diu Town and Country Planning (Planning and Development Authorities) Rules, 1977.
3. Petitioners challenge this action of the third respondent on several grounds, the main trust of their attack being against the validity of the Note to Rule 13 which requires all plans to be signed by an Architect registered with the Planning and Development Authority. According to them, the said note in ultra vires the Goa, Daman and Diu Town and Country Planning Act, 1974, being also arbitrary and discriminatory inasmuch as an unreasonable restriction is imposed on the exercise of the profession of a Civil Engineer.
4. Developing and elaborating the above grounds, Mr. M.S. Usgaonkar, the learned Counsel appearing for the petitioners, first contented that section 44 of the aforesaid Act does not permit the Government to frame rules as a result of which the Engineer is excluded from signing plans of construction and applications to obtain a licence therefor. The enabling power conferred on the Government by the Act to frame rules is for the furtherance of the aims laid down therein and hence, rules framed in the exercise of such power, must be controlled by the same aims. These aims are to have a proper development and sound constructions and therefore, any rules that disqualifies a person otherwise technically qualified to submit development and construction plans will be ultra vires section 44. Now, Civil Engineers are fully qualified to do works of development and of construction of building and as such, there is no reason for excluding them from the class of persons who can sign the plans and application for construction of building and for restricting this class to Architects only, specially when it clearly flows from the Statement of Objects and Reasons for the Bill submitted for the passing of the Architects Act, 1972, that Engineers are not forbidden from designing plans for buildings and that the design, supervision and construction of buildings is not an exclusive responsibility of Architects. Hence, according to the learned Counsel, the restriction impose in the Note to Rule 13 is arbitrary and ultra vires section 44. He next contend that, once permission of the Planning and Development Authority is obtained for development, it becomes necessary in view of section 184 of the Municipalities Act to apply for Municipal sanction and permission to construct the building. The Bye-laws of the Margao Municipal Council permit the plans to be signed by an Architect , a Designer or an Engineer. Therefore, the restriction impose in the note to Rule 13, without any valid reason , is bad in law as discriminatory and arbitrary.
5. As regards the first contention. We may advert to section 44 of the Act. It reads in the relevant part as under :-
"Section 44. Grant of permission.---(1) Any person intending to carry out any development in respect of, or change of use of, any land shall make an application in writing to the Planning and Development Authority for permission in such form and containing such particulars and accompanied by such documents and plans as may be prescribed."
Now, it is apparent from the preamble of the Act that what is sought is a proper, disciplined and adequate development of the land and flows from its scheme that such development is to be guided by the requirements of public health, ecology and aesthetics. Section 2(10) defines "development" with its grammatical variations and cognate expressions, as the carrying out of building, engineering, mining quarrying or the operations in, on, over or under, land, the cutting of a hill or any portion thereof or the making of any material change in any building or land, and includes sub-division of any land. It is thus undisputable that plans for development of land are not restricted to the construction of buildings only, but they embrace all those aspects and have therefore, to be made bearing them in mind. Mr. Nadkarni, the learned Government Advocate was therefore, right when he submitted that such plans are to be prepared by persons who are technically duly qualified and can, as such fully appreciate all those aspects and requirements. Section 140 of the Act enables the Government to make rules and obviously such rules are to give effect to the provisions of the Act. The rule-making power is therefore, restricted by the Act itself and cannot go beyond its provisions. It is not a power to legislate afresh but merely to regulate what is already legislated. Thus, it cannot be gainsaid that while framing rules regulating the development of land and who can submit and sign plan therefor, it is open and permissible to the Government to restrict the submission and singing of development plans only to a class of duly qualified persons.
6. The Goa, Daman and Diu Town and Country Planning (Planning and Development Authorities) Rules, 1977, were framed by the Government in exercise of the power conferred by section 140 of the Act. Its Rule 13, deals with application for developments, and provides that every application under section 44 of the Act for permission to carry out any development shall be made in Form 'B'. Sub-rule (2) prescribed that each application be accompanied by a particular set of documents considering the nature of the proposed development, such a building operations, engineering, mining, and quarrying, material change in the use of any building or land and sub-division of any land or lay out of a private road and inter alia, further prescribes in its Note, that, "All plans shall be duly signed by the owner and the architect registered with the Planning and Development Authority and shall indicate their names, addresses, qualifications and registered numbers, allotted by the Planning and Development Authority." The meaning of this Note is clear and the result thereof is that only Architects registered with the Planning and Development Authorities, with total exclusion of other professionals such as Engineers are allowed to sign the development plans. The question that thus arises is whether this restriction imposed by the Note is reasonable and justified or is arbitrary, the classification being unreasonable and having no nexus with the object to be achieved.
7. We already mentioned that the objectives of the Act are to promote proper, disciplined and adequate development, guided by the needs of public health, ecology and aesthetics. We also expressed our agreement with the view that, in the circumstances, the plans for development must be prepared by technically qualified persons and that it is permissible for the Government to restrict the submission and the signing of such plans to a class of qualified persons. Architects, we believe, are fully qualified for such purposes. Their education and training is indeed aesthetics and beauty oriented with the required sound knowledge of building construction expertise and technology. But are they the only class of persons who are qualified to prepare plans of development or are Engineers also equally qualified ? This is the question posed by these petitions and to which we will proceed to address ourselves.
8. The Statement of Object and Reasons for the Bill of Architects Act will, in our view, be helpful to our search for the correct answer to the said question, for after having stated in the Clause (1) that ".........A large variety of buildings, many of extreme complexity and magnitude, like multi-storeyed office buildings, factory building, residential houses, are being constructed each years. With this increase in the building activity, many unqualified persons calling themselves as Architects are undertaking the construction of buildings which are uneconomical and quite frequently are unsafe, thus bringing into discrepute the profession of Architects. Various organizations, including the Indian Institute of Architects, have repeatedly emphasized the need for statutory regulation to protect the general public from unqualified persons working as Architects. With the passing of this legislation, it will be unlawful for any person to designate himself as "Architect", unless he has the requisite qualifications and experience and is registered under the Act. The legislation is generally on the same lines as similar Acts in other countries, "it is clarified in Clause (3)" that the legislation protects the title 'Architects' but does not make a design, supervision and construction of buildings as an exclusive responsibility of Architects. Other professionals like Engineers will be free to engage themselves in their normal vacation in respect of building construction works provided that they do not style themselves as Architects'. It would thus appear from the combined reading of the aforementioned Clauses (1) and (3) that actually there is no substantial differentiation in the technical qualifications of Architects and Engineers and both such professionals are qualified and have the necessary knowledge and expertise to engage themselves in building construction and development activities.
9. Such inference is, in our view, corroborated by the fact that it seems that the Civil Engineering Course includes subject relating to constructions and development, for it is apparent from the ordinances and regulations relating to examinations in the Civil Engineering Course for the year 1982-85 made by the University of Bombay, that such subjects are prescribed in the respective syllabus. In fact, we find from the exhibits produced in that respect by the petitioner Vikas Vithal Desai, that they are papers for construction, testing of materials, building and drawing, surveying building design and drawing, traffic engineering and control and finally, architectural town planning. These papers are prescribed for the examinations in semesters III to VII.
10. In the light of the above, it would appear that both the Courses of Architects and Civil Engineers have the basic qualifications required for engaging themselves in activities of construction and development. It was, however, contented by Mr. Jaques, the learned Counsel appearing for the third respondent, that it is not so. He produced on Ordinance of the Bombay University prescribing the examination for several semesters in the course of Architecture. He minutely took us through the Ordinance and submitted that it is clear that the qualifications of the Architects are by far more specializes and better then those of the Engineers. Insofar as the construction and development activities are concerned , he submitted that designing is taught in all the years of the course and examinations in respect of such subjects are on minute details of it. Therefore, according to the learned Counsel, it is not possible to say that only because of some skeleton knowledge of the said subjects is given in the course of Civil Engineering, the Civil Engineers are duly qualified to proceed with activities of construction and development. He contented that the designing is a specialized subject and such designing will not be properly done by an Engineer, just like and in the same manner as an Architect will not be qualified to proceed with actual construction work of a building. We are, however, unable to agree with the learned counsel, for we find that the papers prescribed in respect of building construction, designing and drawing , town planning and development in the Engineering Course by implication show that the latter course gives the required technical knowledge not only for the construction work but also for development. Besides, we may pointout that the Town Planning Authorities are not bound to accept all the plans which are submitted to them for development of the land or for construction. This being so, we fail to find any intelligible differentia distinguishing the Architects from the Engineers which justifies the classification made in the Note to Rule 13, and in any event, we find no rational nexus between the said classification and the object to be achieved, i.e. a proper, disciplined and adequate development. The said classification being therefore, unreasonable, arbitrary and discriminatory is liable to be stuck down. It was, however, contented by Mr. Nadkarni, that the Engineers and Architects, are not similarly situated and in addition, the classification is made between Architects and non-Architects, such classification being, entirely permissible as can be seen from the decision of the Supreme Court in Sakhawant Ali v. State of Orissa, . The learned Counsel further contented that Article 14 forbids class legislation but does not forbid reasonable classification for the purposes of legislation. In the present case, he added, the classification was made to get a proper development of the land and proper construction and by requiring that the plans for development should be signed and submitted only by an Architect, it is not possible to say that such classification is unreasonable and arbitrary. The learned Counsel is entirely right in the submission that Article 14 forbids class legislation, but does not forbid reasonable classification for the purposes of legislation. But as the Supreme Court observed in Sakhawant Ali's case (above), such classification cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect of which the classification is made. We already mention that it flows from the preamble and the scheme of the Town Planning Act that the scope thereof is to have a proper and adequate development and planning. We also mention that, in our view, there is no substantial difference in the qualifications of Engineers and Architects insofar as the development and construction activities are concerned. In these circumstances therefore, the classification made is not reasonable and justified wrongly separating the engineers from the Architects for the aforesaid purpose.
11. Mr. Jaques, the learned Counsel appearing for the third respondents, strongly contented that the Note to Rule 13 is necessary to obviate the need to prevent any unqualified person from submitting construction and other development plans and also to take suitable and effective action against those who after submitting plans and after obtaining the necessary non-objections certificates, proceed with the development without complying with the conditions laid down by the authority. He also supported the submissions of Mr. Nadkarni inasmuch as he contented that over all development of the land is within the province of the Architects and not of Civil Engineers and place reliance on the decision of the Supreme Court in The State of Jammu & Kashmir v. Trilok Nath Khosa & others, In re, Sant Ram, and Devata Prasad Singh Chaudhuri & others v. Hon'ble Chief Justice and the Judges of the Patna High Court, .
12. These submissions of the learned Counsel need not detain us long for as far as the second limb of his contention is concerned we already held that there is no intelligible differentia distinguishing Architects from Civil Engineers, the quoted decision of the Supreme Court being in the circumstances of the case at hand, not applicable, and as regard the other limb, that consideration does not cure the defect in the classification and save it. We understand the anxiety expressed by the learned Counsel as the striking down of the said Note may cause unqualified person to submit plans for development. But such anxiety is unjustified, for on one hand, the authority is not bound to grant non-objection certificate whenever an application for development is made and , on the other, suitable amendment to the Rules can be made. We may further point out that inasmuch as Engineers are concerned, all the fears expressed are not justified, for not only they are qualified persons, but also action can be taken against them in the same manner as against Architects as there is no institution of Engineers to look into the matter.
13. In the view we have taken, it is not necessary for us to deal in detail with the second contention of Mr. Usgaonkar, which otherwise has no merit. In fact, the circumstances that under the Bye-laws of the Margao Municipal Council, plans for construction of building can be submitted by an Architect, Designer or Engineer, does not per se make the classification in the Note to Rule 13 arbitrary and discriminatory, for, as we already mentioned, the word "development" in the Act connotes a meaning which is much wider than the mere construction of buildings. Hence, the reasons for the classification in the Note to Rule 13 and those for the classification in the Municipal Bye-laws may be different, and perhaps less qualifications than those required for the over development are sufficient to submit plans for construction of buildings. Therefore, these different reasons and considerations may justify different classifications without making anyone of them arbitrary and discriminatory.
14. The result is that these petition succeed and consequently, the rule is made absolute in both of them in terms of prayers (a), (b) and (c) in Writ Petition No. 123 of 1985. There will be no order as to costs, in the circumstances of the case.