TMI Blog2018 (4) TMI 1413X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the public should not be mislead to believe that persons/juristic entities that use the title/style of architect or its derivatives are registered architects, even when they are not. Therefore, persons/juristic entities cannot be allowed to use the style/title of architect or its derivatives in their names, unless they are registered as architects with the COA. When the FIPB approval was granted to RSP Singapore, there was admittedly no clarity on whether the use of the expression 'architect' in the title/style/name of a juristic entity was prohibited by the provisions of the Act. Further, RSP Singapore's subsidiary has now already changed its name to RSP Design Consultants India Pvt. Ltd., by removing the word architect from the same in conformity with the provisions of the Act. Therefore, find no reason to grant the prayer seeking cancellation of the FIPB approval granted to RSP Singapore. The first part of the Impugned Circular No. 1, entities/persons who are not registered as architects are prohibited from using the title/style of architect, is in consonance with the scheme of the Act and promotes the intent of the Act by ensuring the title of an architect is not misu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C with Ms. Anumita Chandra, Adv. for UOI. Mr. Shatrajit Banerjee, Adv. with Ms. Mrivalini Sen, Adv. for UOI. JUDGMENT REKHA PALLI, J 1. The present batch of writ petitions raise common issues with similar prayers and are being decided vide this common judgment. 2. The first writ petition bearing no. W.P.(C) No. 934/2012 has been preferred by Mr. Sudhir Vohra, an architect registered under the Architects Act, 1972 (hereinafter referred to as the Act ), mainly seeking the issuance of a writ of mandamus directing the Registrar of Companies and Ministry of Corporate Affairs to not entertain registration applications from any company or Limited Liability Partnership (hereinafter referred to as LLP ) which states that it provides architectural services as of one of its objectives in its memorandum of association (hereinafter referred to as MOA ). The Petitioner therein also prays for a direction to the Registrar of Companies and Ministry of Corporate Affairs to take timely action against the existing companies and LLPs which contain the provision of architectural services as one of their objectives, and initiate winding-up proceedings against those existing compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their names and objects, for the purpose of carrying on the profession of an architect; and (ii) by appointing foreign architects to carry out architectural works in India, without the prior approval of the Central Government under the Act. Vide the Impugned Notice, the COA has essentially directed all companies and LLPs to stop such aforementioned alleged violations of the Act, by removing the word architect or its derivatives from their respective names and styles, and by amending the objects in their respective MOAs to remove the provision of architectural services in any form. In the event of non-compliance by any company/LLP, the Impugned Notice directs that it should be wound up at the earliest. In fact, a perusal of the prayers in this writ petition shows that the Petitioner has also sought a declaratory direction that a company/LLP can validly provide architectural services as one of its objects by employing architects, subject to the restrictions contained in the Act. 5. Thus, what emerges is that the first two writ petitions seek (i) a direction that only architects registered under the Act can provide architectural services; and (ii) no company/LLP can use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hitect. 8. Mr. Bhagat further contends that unregistered persons, including juristic entities are prohibited from using the title/style of architect or its derivatives or using the same in their name. In this regard, he relies on Section 37 of the Act, which categorically prohibits any person other than a registered architect from using the title and style of 'architect' as also Section 36, which provides for a penalty in case of a violation of Section 37. His contention, thus, is that only architects, being natural persons registered under the Act, have the exclusive privilege to use the title/style of architect or its derivatives. 9. Before proceeding further, it would be apt to refer to the relevant provisions of the Act, which read as under :- 2. Definitions .-In this, Act, unless the context otherwise requires,- (a) architect means a person whose name is for the time being entered in the register; (d) recognized qualification means any qualification in architecture for the time being included in the Schedule or notified under section 15; 14. Recognition of qualifications granted by authorities in India. (1) The qualifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also direct that such architectural qualification, shall be so recognised only when granted after a specified date or before a specified date. 23. Preparation and maintenance of register.- (1) The Central Government shall, as soon as may be, cause to be prepared in the manner hereinafter provided a register of architects for India. (2) The Council shall upon its constitution assume the duty of maintaining the register in accordance with the provisions of this Act. (3) The register shall include the following particulars, namely:- (a) the full name with date of birth, nationality and residential address of the architect; (b) his qualification for registration, and the date on which he obtained that qualification and the authority which conferred it; (c) the date of this first admission to the register; (d) his professional address; and (e) such further particulars as may be prescribed by rules. 25. Qualification for entry in register.- A person shall be entitled on payment of such fee as may be prescribed by rules to have his name entered in the register, if he resides or carries on the profession of architect in India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al architect ; (b) a person who, carrying on the profession of an architect in any country outside India, undertakes the function as a consultant or designer in India for a specific project with the prior permission of the Central Government. Explanation - For the purposes of clause (a)- (i) landscape architect means a person who deals with the design of open spaces relating to plants trees and landscape; (ii) naval architect means an architect who deals with design and construction of ships. (2) If any person contravenes the provision s of sub-section (1), he shall be punishable on first conviction with fine which may extend to five hundred rupees and on any subsequent conviction with imprisonment which may extend to six months or with fine not exceeding one thousand rupees or with both. 10. Mr. Bhagat further contends that the Act is a self-contained code, and the proviso to Section 37 exhaustively enumerates the only exceptions to the prohibition against the provision of architectural services and the use of the title and style of 'architect' or its derivatives, by persons unregistered under the Act. He submits that Section 37 makes i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on Section 35, Mr. Nath contends that the provisions of this section in itself show that any reference in any law to an architect has to be deemed to be a reference to an architect registered under the Act. He, thus, contends that the Act envisages the provision of architectural services only by registered architects. 14. Mr. Nath further contends that the profession of architecture is a regulated profession, as the Act not only defines the term architect but also defines the term recognised qualification under Section 2(d), which when read with Sections 14 and 15, shows that the Act refers to professional qualifications as opposed to mere academic qualifications. He, thus, submits that the prescription of professional standards as a prerequisite for being registered as an architect, shows that the practice of architecture is a privilege bestowed upon those possessing a specific aptitude. He submits that if the legislative intent was to allow anyone to practice architecture, including carrying out a business in architectural services, there would have been no need to define the term recognized qualification in the Act as a pre-requisite for being registered as an archit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hitectural competition guidelines approved by the Council), xv. not attempt to obtain, offer to undertake or accept a commission for which he knows another Architect has been selected or employed until he has evidence that the selection, employment or agreement has been terminated and he has given the previous Architect written notice that he is so doing : provided that in the preliminary stages of works, the Client may consult, in order to select the Architect, as many Architects as he wants, provided he makes payment of charges to each of the Architects so consulted, xvi. comply with Council's guidelines for Architectural competitions and inform the Council of his appointment as assessor for an Architectural competition , xvii. when working in other countries, observe the requirements of codes of conduct applicable to the place where he is working , xxv. shall not advertise his professional services nor shall he allow his name to be included in advertisement or to be used for publicity purposes save the following exceptions :- (a) a notice of change of address may be published on three occasions and correspondents may be informed by post, (b) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Section 37, so as to imply a prohibition only on the use of the title and style of architect by unregistered persons, would result in absurdity and render the Act nugatory. He submits that, in case Section 37 is interpreted to mean that even unregistered persons can practice architecture, there would be no reason for a person possessing a recognized qualification to get herself/himself registered as an architect and make herself/himself subject to a number of restrictions imposed under the Act and the regulations framed thereunder. 19. Mr. Nath submits that a literal interpretation of Section 37 would result in the creation of two classes of persons to carry out the profession of architecture, namely:- (i) Registered architects, being natural persons possessing recognised qualifications, who are professionally accountable under the Act and the regulations framed thereunder; and (ii) Unregistered persons, including juristic entities, that can carry out the business of rendering architectural services, without being professionally accountable to maintain the standards or abide by the restrictions prescribed under the Act and the regulations framed thereunder. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by RSP India would automatically result in the invalidation of the FIPB approval from the date of the said violation. Since the FIPB approval granted to RSP Singapore to incorporate RSP India was subject to a specific condition that RSP India would abide by all Indian laws, he contends that the said approval is liable to be cancelled, in view of the aforementioned alleged violations by RSP India. 23. Mr. Bhagat further submits that, based on the complaints of Mr. Sudhir Vohra and Mr. Anil Kumar Sharma, the COA had approached the concerned authorities for taking appropriate action for cancelling the FIPB approval granted to RSP Singapore. Thereafter, a meeting of the Foreign Investment Promotion Board (hereinafter referred to as the FIPB ) was held on 09.05.2012, in which a decision had been taken by the Board to inform the COA that, since the FIPB approval was subject to RSP India abiding by all Indian laws, the COA could take necessary action as per the provisions of the Act, if RSP India was found to be violating the provisions of the Act. 24. On the other hand, Mr. Anish Dayal, learned counsel for the Consulting Engineers Association of India, at the outset contends that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of architect , and not the rendering of architectural services, by unregistered natural persons or juristic entities. Therefore, his contention is that, since RSP India has already amended its name to remove the word architect from the same, there is nothing to warrant or justify the cancellation of RSP Singapore's FIPB approval. 29. Mr. Gupta also draws my attention to the fact that companies/LLPs like RSP India that provide multi-disciplinary design and construction services are the need of the hour, since they consolidate the expertise from various disciplines to provide reliable services to their clients in a convenient manner. 30. Mr. Gupta further contends that the non-applicability of the Act does not render such companies/LLPs unaccountable for the services provided by them, or in any way unfairly disadvantage individual architects, as is sought to be contended by Mr. Bhagat. He submits that these juristic entities are accountable to their clients and have binding legal obligations at three levels. Firstly, they are legally bound by the individual contracts with their clients and are liable under the same for the breach of any obligations envisaged by such c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies/ Registrar of LLP shall incorporate the same only on production of in-principle approval/NOC from the concerned regulator. Impugned Notice dt. 20.05.2013 The Council of Architecture (COA), a statutory body set up under the Architects Act, 1972 (Act), has been receiving complaints regarding violations of the Act by LLPs and Companies by using the word Architect or its derivatives in their names and objects, for carrying on the profession of an Architect and also appointment of foreign architects without prior approval of Central Government under the Act for carrying out Architectural works in India. The Ministry of Corporate Affairs, Govt. of India (MCA) has also issued a Circular No.2/2012 dated 1st March, 2012, directing that Where one of the objects is to carry on the business/profession of Architecture, then the concerned Registrar of Companies/Registrar of LLP shall incorporate the same only on production of in-principle approval/NOC from the concerned Regulator . Therefore, Companies/LLPs/individuals committing above violations are directed to step such violations by changing the name of the entity by removing the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now well-settled that if the person is found to be not merely a stranger to the case, he cannot be nonsuited on the ground of his not having locus standi. 34. Having considered the rival contentions of the parties on the question, I am of the considered opinion that Mr. Sudhir Vohra and Mr. Anil Kumar Sharma, both being architects registered with the COA, cannot be said to be alien to the subject dispute. Their endeavor or interest in ensuring the compliance of the legal provisions of the Act and the regulations framed thereunder, cannot be simply brushed away. In my considered view, in light of the observation of the Supreme Court in the case of Ratanlal (supra), the Petitioners cannot be non-suited on the ground of lack of locus. The decisions relied upon by Mr. Gupta and Mr. Dayal do not apply to the facts of the present case, in view of the admitted position that both the Petitioners, being registered architects, are seeking that only architects registered under the Act should be allowed to provide architectural services. 35. In determining whether the Architects Act makes the practice of architecture an exclusive privilege of registered architects, it may be useful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Names in the Register-- (1) Any of the following persons shall be entitled to have his name entered in the Register, namely:- (i) any person who is a registered accountant or a holder of a restricted certificate at the commencement of this Act; (ii) any person who has passed such examination and completed such training as may be prescribed for members of the Institute; (iii) any person who has passed the examination for the Government Diploma in Accountancy or an examination recognised as equivalent thereto by the rules for the award of the Government Diploma in Accountancy before the commencement of this Act, and who, although not duly qualified to be registered as an accountant under the Auditor s Certificates Rules, 1932, fulfils such conditions as the Central Government may specify in this behalf; (iv) any person who, at the commencement of this Act, is engaged in the practice of accountancy in any [Part B State] and who, although; not possessing the requisite qualifications to be registered as an accountant under the Auditor s Certificates Rules, 1932, fulfils such conditions as the Central Government may specify in this behalf; (v) any person who h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntravenes the provisions of sub-section (1), then, without prejudice to any other proceedings which may be taken against the company, every director, manager, secretary and any other officer thereof who is knowingly a party to such contravention shall be punishable with fine which may extend on first conviction to one thousand rupees, and on any subsequent conviction to five thousand rupees. 37. On a careful examination of the aforesaid provisions of the Advocates Act and CA Act viz-a-viz the provisions of the Architects Act, it is apparent that the latter does not contain any prohibitory provisions similar to the ones in the former two. The Architects Act neither prescribes that only registered architects can provide architectural services, nor contains any clause prohibiting companies and LLPs from providing architectural services. In fact, what emerges from the entire scheme of the Architects Act is that it neither defines as to who can provide architectural services nor puts any fetters on persons who wish to provide architectural services. It merely defines an architect to mean a person whose name is entered in the register maintained by the COA and lays down the mandator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Nalinakhya Bysack [AIR 1953 SC 148 : 1953 SCR 533] would tend to support the aforesaid views, wherein it has been observed as follows: (AIR p. 152, para 9) 9. It must always be borne in mind, as said by Lord Halsbury in Commissioners for Special Purposes of Income Tax v. Pemsel [1891 AC 531, at p. 549 (HL)] , that it is not competent to any court to proceed upon the assumption that the legislature has made a mistake. The court must proceed on the footing that the legislature intended what it has said. Even if there is some defect in the phraseology used by the legislature the Court cannot, as pointed out in Crawford v. Spooner [(1846-49) 6 Moo PC 1 : 13 ER 582 : 4 MIA 179 : 18 ER 667] , aid the legislature's defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is a casus omissus, it is, as said by Lord Russell of Killowen in Hansraj Gupta v. Official Liquidators of Dehra Dun-Mussoorie Electric Tramway Co. Ltd. [(1932-33) 60 IA 13 : AIR 1933 PC 63] , for others than the courts to remedy the defect. 65. Mr Sorabjee has also rightly pointed out the observations made by Lord Diplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant insight into the legislative intent. In this regard, reliance may be placed on paragraphs 10 and 11 of the Hon'ble Supreme Court's decision in the case of Bharat Singh v. New Delhi Tuberculosis Centre [(1986) 2 SCC 614], which read as under:- 10. The Objects and Reasons give an insight into the background why [the] section was introduced. Though Objects and Reasons cannot be the ultimate guide in interpretation of statutes, it oftentimes aids in finding out what really persuaded the legislature to enact a particular provision... ... 11. In interpretation of statutes, courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made. 42. I find that paragraphs (1) and (3) of the Statement of Objects and Reasons, which are reproduced hereinbelow, provide an important insight into what the legislature intended to achieve with the passing of the Act:- 1. Since Independence and more particularly with the implementation of Five-Year Plans, the building construction activity in our coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly prohibits, i.e. the use of title and style of 'architect' by unregistered persons. I find absolutely no merit in the plea of Mr. Bhagat and Mr. Nath, that the practice of architecture has to be read as the exclusive privilege of natural persons registered with the COA. 44. At this stage, it would also be useful to refer to the legislative history of the Act, which I find lends itself to suggest that the Act does not preclude unregistered persons, including juristic entities, from rendering architectural services. Clause 2(a) of the Architects Bill, 1968 (hereinafter referred to as the 1968 Bill ) defined an architect as a person qualified to design and supervise the erection of any building , Clause 37 thereof prohibited unregistered architects from using any name, style or title containing the word architect , and Clause 38 of the same prohibited unregistered persons from practicing the profession of architecture. What further emerges is that the 1968 Bill was tabled before a Joint Committee of the Rajya Sabha and Lok Sabha. After much debate and discussion, the definition of architect in the 1968 Bill was amended to simply mean a person registered under the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 SCC 676], which reads as under:- 8. ... When the legislative intent finds specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory by giving undue importance to the so-called object underlying the Act or the purpose of creation of a body to supervise the implementation of the provisions of the Act... Even otherwise, I find that the legislative intent to restrict the scope of Sections 36 and 37, which is apparent from the legislative history of the Act and its Statement of Objects and Reasons, was a conscious decision in light of the significant overlapping between architectural services and other disciplines, such as civil engineering and design. Looked at from every possible angle, I find that neither of the two provisions can be construed to prohibit unregistered persons, including juristic entities, from rendering architectural services. Thus, not only a literal interpretation but even a purposive interpretation of the provisions, which has been emphasized by both Mr. Bhagat and Mr. Nath, also lends itself to my aforesaid conclusion. 47. At this stage, I may also refer to the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actory buildings, residential houses are being constructed each year and with this increase in 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 disrepute the profession of architects. Various organisations including the Indian Institute of Architect 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. Clause (3) of the Statement of Objects and Reasons then recites that, the legislation protects the title Architects but does not make the design supervision and construction of buildings as an exclusive responsibility of Architect. Other professional like Engineers will be free to engage themselves in the normal vocation in respect of building construction works provided that they do not style themselves as Architects. ... 8. In the above circumstances we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. 12. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is that the Act only prohibits the use of the title and style of 'architect' by unregistered natural persons or juristic entities. It does not prevent unregistered persons, including juristic entities, from rendering architectural services or mentioning the same as one of their objectives in their MOA. I may now deal with the issue as to whether RSP India contravened any Indian laws so as to warrant a cancellation of RSP Singapore s FIPB approval. In view of my aforesaid conclusion, I find that RSP India cannot be said to have violated any Indian law when it rendered architectural services or mentioned the same as one of its objectives. 54. The question, however, remains whether RSP India violated any provisions of the Act when it used the expression architect in its name. Since section 37 of the Act in its current form only protects the title and style of architect , it is imperative to consider the connotations of the terms 'title' and 'style'. I find that, as per Black s Law Dictionary, the expression title means an appellation of dignity or distinction or name denoting the social rank of a person. The expression style effectively refers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Partnership Act, 1932 comprising of all registered architects) can use the title and style of 'architect' or practice the profession of an architect, directs that, the Registrar of Companies/Registrar of LLPs cannot permit the incorporation of companies/LLPs having one of their objects to carry on the business of architect, till the matter is under the examination of the Ministry of Corporate Affairs and pending the final decision of the Central Government. I find that in continuation of the aforesaid interim Impugned Circular No. 1, the Impugned Circular No. 2 was issued on 01.03.2012. It is this Impugned Circular No. 2 which directs that, where one of the objects of any company or LLP is to carry on the business/profession of architecture, the concerned Registrar of Companies/Registrar of LLPs shall incorporate the same only on the production of an in-principle approval/NOC from the concerned regulator, i.e. the COA. 58. I find that the first part of the Impugned Circular No. 1, whereby entities/persons who are not registered as architects are prohibited from using the title/style of architect, is in consonance with the scheme of the Act and promotes the intent of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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