Delhi High Court judgment on legal position of engineers under Architects Act 1972

[Avinash Shirode]

Dear friends,

There has been a landmark judgment by Delhi High Court on 23rd Sept 2013 (W.P(C) No. 2106/2012) wherein Ar. P. R. Mehta, Past president of Council of Architecture was the petitioner and apart from others, Council of Architecture was respondent. The CoA & architects lobby had all the time misinterpreting & misrepresenting the Architects Act 1972 and is forcefully trying to restrict the architecture profession, practice & architectural services only to registered architects and calling engineers as "quacks". However, the same observations had been noted by various other courts in India since 1980.

Please find attached the judgment for your reference and also to circulate to all concerned.

For ready reference, relevant points from the judgment are quoted below.

(Dear President Er. Suryaprakash - Please circulate this mail to all your google group members of ACCE and others, if you feel it worth informing)

8. A plain reading of Section 37 of the Act which appears under the heading “Prohibition against use of title” would show that though the aforesaid provision bars a person other than a registered architect or a firm of architects from using the title and style; it does not prohibit him from rendering architectural services so long as he does not use the expression architect and does not describe his firm, if any, as a firm of architects.  Had the legislative intent been to prevent rendering of architectural services by any person other than a person registered under the provisions of the Act, Section 37 of the Act would have been worded altogether differently.  For instance, Section 33 of the Advocates Act, 1961 prohibits a person unless he is enrolled as an advocate from practicing in any Court or before any authority or persons.  Section 29 of the Advocates Act also stipulates that from the appointed date there will be only one class of persons entitled to practice the profession of law, namely, Advocates.  Section 15 (2) of the Medical Council Act, 1956 also expressly prohibits a person other than a medical practitioner registered in any State, signing or authenticating a medical or fitness certificate, giving evidence as an expert and hold office as Physician or Surgeon or any other office in the Government or any institution maintained by a local or other authority.  No similar provision is, however, found in the Architects Act.  The learned counsel for the petitioners contended and in my view rightly too that such an interpretation may result in unqualified persons providing services such as supervision of construction of buildings and the constructions supervised by such persons may not be safe and economical, but, then, the remedy lies in the Parliament amending the provision of the Act so as to prohibit unqualified persons from rendering architectural services, and not in the Court taking an interpretation which a plain reading of Section 37 does not suggest.  Moreover such unqualified persons, after coming into force of the Act cannot represent themselves to be architects though they may continue to provide services such as supervision of construction of buildings.

 9. Section 4 of the Architects Act came up for consideration before the Division Bench of Madhya Pradesh High Court in Mukesh Kumar Manhar and another versus State of Madhya Pradesh and others [2005(4)MPHT 270] and the following view was taken:  “There is a significant difference between the Architects Act, 1972 dealing with the profession of Architects and enactments dealing with Medical and Legal professions. Section 15(2) of the Indian Medical Council Act, 1956 bars any person other than medical practitioners enrolled on the State Medical Registers from practicing Medicine or holding the office as 'physician' or 'surgeon' in any Government Institution or other Institution maintained by any local or other Authority. Similarly, Section 29 of the Advocates Act, 1961, provides that only one class of persons are entitled to practice the profession of law, namely, advocates entered in the Roll of any Bar Council under the provisions of Advocates Act. Thus there is a clear bar on persons who are not enrolled with the State Medical Council or State Bar Council, from practising as a Medical Practitioner or Advocate.  In contrast, the Architects Act, 1972 does not prohibit persons other than those who are registered as Architects from practising the profession. As noticed above, Section 37 only prohibits any person other than a registered architect using the title and style of Architect. It does not prohibits a person, who is not a registered as an Architect with the Council of Architecture from carrying on or discharging any function that can be carried or by a registered Architect. The functions normally associated with Architects are : (i) taking instructions from clients and preparing designs; (ii) site evaluation, (iii) design and site development, (iv) design of structure, (v) design of sanitary, plumbing, drainage, water supply and sewage, (vi) design of electrification, communications, (vii) Incorporation of appropriate heating, ventilation, air- conditioning and other mechanical systems, fire detection and fire protection systems and security systems, and (viii) periodic inspection and evaluation of the construction work. 

The statement of objects and reasons of the Architects Act states that the legislation is intended to protect the title of 'architects', but does not intend to make the design, supervision and construction of buildings as an exclusive responsibility of architects. It clarifies that other professions like engineers will be free to engage themselves in their normal vocation in respect of building construction work provided that they do not style themselves as 'Architects'. Thus, as contrasted from the Advocates Act and the Medical Council Act, the Architects Act merely provides for registration of 'architects' and matters connected therewith, and does not contain any prohibition against those who are not registered or enrolled performing the duties of Architects. The provisions of the Architects Act makes it clear that persons who are not registered as Architects, can carry on and discharge the functions which the Architects normally discharge, provided they do not call themselves as Architects.” 

10. The following observations made by a Division Bench of this Court in The Municipal Corporation of Delhi & Ors. Vs. Ram Kumar Bhardwaj & Ors. 18 (1980) DLT 283 are also pertinent in this regard, which read as under: “2…..The Architects Act, 1972 sets out the qualification to be possessed by the persons to be registered as architects “under the said Act.  It also prohibits persons who do not have such registration from describing themselves as architects and also deals with disciplinary action for misconduct or architects.  It is, therefore, a complete enactment the effect of which is that a person cannot call himself an architect unless he is registered under the said Act.  Of course, unlike the Advocates Act, which restricts the right to practice in courts only to the advocates qualified thereunder, the Architects Act does not restrict the practice by architects to persons registered lender the said Act.  Therefore, some persons who cannot call themselves architects may still be free to do the work which is ordinarily done by architects and they are not dealt with by the Architects Act.” 
11. During the course of arguments, the learned counsel for the petitioners referring to clause (b) of the proviso to Section 37 of the Act contended that since the said clause refers to the carrying on the profession of an architect the intent behind Section 37 is to prohibit such profession except by a person who is registered under the provisions of the Architects Act, 1972.  The contention, in my view, is wholly misconceived.  Sub-section (1) of Section 37 in general bars any person other than a registered architect or a firm of architects from using the title and style of architect.  Clause (b) of the proviso excludes, from the ambit of the main sub-section, the persons who are carrying on the profession of an architect outside India and who with the prior permission of the Central Government undertake consultancy or designing work in India for a specific project, meaning thereby that a person covered by clause (b) of the proviso despite the embargo placed by sub-section (1) can use the title and style of architect while undertaking the consultancy or designing work in India, with the prior permission of the Central Government.

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Thanks & Regards,
Avinash Shirode

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https://sites.google.com/site/avinashshirodeorg/