Ar.Vijay Garg v. Ar.P.Satheeshkumar

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 9.3.2009CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALWrit Appeals No.1030 and 1031 of 2007W.A.No.1030 of 2007:1.Ar.Vijay Garg2.Ar.Alok Ranjan… Appellants/Respondents 4 & 5Vs.1.Ar.P.Satheeshkumar...1st Respondent/Petitioner2.Union of India, Rep.by its Secretary to Government, Ministry of Human Resources & Development, Shastri Bhavan, New Delhi.3.Council of Architecture, Rep.by its Registrar, India Habitat Centre, Core 6A, First Floor, Lodhi Road, New Delhi-110003.4.The Indian Institute of Architects, Rep.by its Tamil Nadu Chapter, No.4, III Floor, No.72, Marshalls Road, Egmore, Chennai-600008.5.Ar.N.A.Badheka… Respondents 2 to 5/ Respondents 1 to 3 and 6W.A.No.1031 of 2007:1.Ar.Vijay Garg2.Ar.Alok Ranjan… Appellants/Respondents 4 & 5Vs.1.Ar.R.Ramaraju...1st Respondent/Petitioner https://hcservices.ecourts.gov.in/hcservices/

2.Union of India, Rep.by its Secretary to Government, Ministry of Human Resources & Development, Shastri Bhavan, New Delhi.3.Council of Architecture, Rep.by its Registrar, India Habitat Centre, Core 6A, First Floor, Lodhi Road, New Delhi-110003.4.The Indian Institute of Architects, Rep.by its Tamil Nadu Chapter, No.4, III Floor, No.72, Marshalls Road, Egmore, Chennai-600008.5.Ar.N.A.Badheka… Respondents 2 to 5/ Respondents 1 to 3 & 6* * *Both the Writ Appeals are preferred under Clause 15 of theLetters Patent as against the common order dated 28.6.2007respectively made in W.P.Nos.21794 and 21795 of 2007 by the learnedsingle Judge of this Court. Petitions filed under Article 226 of theconstitution of India to issue a writ of Mandamus to direct thefirst respondent to appoint Returning Officer to conduct the electionto fill up the five vacancies in the second respondent Council undersection 3(3)(a) of the Architects Act 1972 among the Members of thethird respondent Institute.* * *For appellants inBoth the appeals : Mr.P.R.RamanFor R.1 in WA.1030/2007 : Mr.A.ThiagarajanFor R.1 inWA.1031/2007 : Mr.R.Thiagarajan, S.C. For M/s.M.LakshmipathiFor R.2 in boththe W.As. : Mr.R.Ramakrishnan, ACGSC https://hcservices.ecourts.gov.in/hcservices/ For R.3 in both: Mr.T.S.Gopalan, S.C.the W.As. : for Mr.T.S.SivagnanamFor R.4 in boththe W.As. : Mr.M.S.Govindarajan* * *COMMON JUDGMENTELIPE DHARMA RAO, J.For the sake of convenience and easy reference, the parties arerefererred to as per their ranking in the writ petitions. 2. Both these matters pertain to the election to fill up fivevacancies of Member posts to the third respondent/Council ofArchitecture. The writ petitioners have filed the writ petitionsbefore the learned single Judge, praying to issue a Writ of Mandamusto the Union of India, represented by its Secretary to Government,Ministry of Human Resources and Development to appoint ReturningOfficer to conduct the election to fill up the five vacancies in thesecond respondent Council under Section 3(3)(a) of the ArchitectsAct, 1972 among the Members of the Indian Institute of Architects,Chennai. 3. In their writ petitions, the writ petitioners have contendedthat they are the Architects registered with the Council ofArchitecture, New Delhi and they are also the members of the IndianInstitute of Architects. Pursuant to the notice issued by therespondents 4 and 5/who are the appellants herein, the writpetitioners have filed their nominations for the posts of Members andsince they were rejected by the 6th respondent/the Scrutineerappointed for the purpose, they have filed the writ petitions. Thewrit petitioners would impart motives to the respondents 4 and 5therein, who are the appellants herein and also to the 6threspondent/the Scrutineer. As the learned single Judge has allowedthe said writ petitions, the respondents 4 and 5 therein have comeforward to file these writ appeals. 4. We have heard Mr.P.R.Raman, learned counsel for the appellantsin both the appeals; Mr.A.Thiagarajan, learned counsel for the firstrespondent in W.A.No.1030 of 2007; Mr.R.Thiagarajan, learned seniorcounsel for the first respondent in W.A.No.1031 of 2007;Mr.R.Ramakrishnan, learned counsel for the second respondent in boththe appeals; Mr.T.S.Gopalan, learned Senior Counsel for the thirdrespondent in both the appeals and Mr.M.S.Govindarajan learnedcounsel for the fourth respondent in both the appeals. https://hcservices.ecourts.gov.in/hcservices/

5. While on the part of the writ petitioners, it had beenstrenuously argued that until and unless a Returning Officer isappointed by the Government of India, no free and fair electionswould be conducted, on the part of the Government of India it hasbeen contended that the question of appointing the Returning Officerfor the elections under Section 3(3)(a) of the Architects Act, 1972will not arise since the Architects Act and the Council ofArchitecture Rules mandate appointment of Returning Officer only forthe election under Section 3(3)(c) of the Act. The appellants wouldalso submit that there is no need to appoint any Returning Officer bythe Government of India and the writ petitions have been filed by thepetitioners under misconception of law and facts and would pray toset aside the order passed by the learned single Judge.6. Upon hearing all the parties, the question that arises forconsideration in these appeals is 'whether the Government of Indiacould be directed to nominate a Returning Officer for the election offive architects as per Section 3(3)(a) of the Architects Act, 1972'.7. For better appreciation of the case, we shall now extractSection 3 of the Architects Act, 1972, which reads as follows:"3 (1) The Central Government shall, by notification in theOfficial Gazette, constitute, with effect from such date asmay be specified in the notification, a Council to be knownas the Council of Architecture, which shall be a bodycorporate, having perpetual succession and a common seal,with power to acquire, hold and dispose of property; bothmovable and immovable, and to contract, and may by thatname sue or be sued.(2)The Head Office of the Council shall be at Delhi or atsuch other place as the Central Government may, bynotification in the Official Gazette, specify.(3)The Council shall consist of the following members,namely:-(a) five architects possessing recognised qualificationselected by the Indian Institute of Architects from amongits members;(b) two persons nominated by the All India Council forTechnical Education established by the Resolution of theGovernment of India in the late Ministry of EducationNo.F.16-10/44-E.III, dated the 30th November, 1945;(c) five persons elected from among themselves by heads ofarchitectural institutions in India imparting full timeinstruction for recognised qualifications; https://hcservices.ecourts.gov.in/hcservices/ (d) the Chief Architects in the Ministries of the CentralGovernment to which the Government business relating todefence and railways has been allocated and the head ofthe Architectural Organisation in the Central Public WorksDepartment, ex officio;(e) one person nominated by the Central Government;(f) an architect from each State nominated by theGovernment of that State;(g) two persons nominated by the Institution of Engineers(India) from among its members; and(h) one person nominated by the Institution of Surveyorsof India from among its members.Therefore, while election of five architects to the Council are to beelected by the Indian Institute of Architects from among its membersas per Section 3(3)(a), the five persons to the Council be electedfrom among themselves by heads of architectural institutions in Indiaimparting full time instruction for recognised qualifications, as perSection 3(3)(c). Both these sub-clauses (a) and (c) have beencrafted for two different specific purposes and the cases on handpertain to the election of five posts of Members to the Council ashas been contemplated under Section 3(3)(a) above. 8. Under Section 5 of the Act, the mode of elections has beencontemplated and for easy reference, we extract the same hereunder:"5(1) Elections under this Chapter shall be conducted insuch manner as may be prescribed by rules.(2) Where any dispute arises regarding any such election,the matter shall be referred by the Council to a Tribunalappointed by the Central Government by notification in theOfficial Gazette in this behalf, and the decision of theTribunal shall be final:Provided that no such reference shall be made excepton an application made to the Council by an aggrieved partywithin thirty days from the date of the declaration of theresult of the election.(3) The expenses of the Tribunal shall be borne by the Council."9. From the reading of this Section 5, it is clear that theelections shall be conducted in the manner prescribed by rules and ifthere is any dispute regarding such election, the same shall be https://hcservices.ecourts.gov.in/hcservices/ referred by the Council to a Tribunal appointed by the CentralGovernment and the decision of the Tribunal shall be final. 10. Council of Architecture Rules 1973 provides for the manner inwhich the elections shall be conducted. Rule 2(d) of the Council ofArchitecture Rules, 1973 defines the term "Returning Officer" as 'anyofficer appointed as such by the Central Government for the purposeof these Rules'. Rules 3 and 4 contemplate the procedure to befollowed for the election to the Council under clause (a) of sub-section (3) of Section 3, which is the subject on hand. Rules 3 and4 of the Council of Architecture read thus:"3. Representatives of the Indian Institute of Architect -(1)The President shall, not later than sixty days before thedate of occurrence of vacancy by the expiry of the term ofoffice of a member, send intimation thereof to CentralGovernment who shall, not later than forty five daysbefore the date of occurrence of the vacancy, forward anotice by registered post to the Secretary of the IndianInstitute of Architects requesting him to hold an electionby a date not later than the date specified in the notice.(2)In the case of a vacancy under sub-section (2) or sub-section (3) of section 6 or any other vacancy, thePresident shall notify the Central Government as soon aspossible the occurrence of such vacancy and the CentralGovernment shall thereupon forward a notice by registeredpost tot he Secretary of the Indian Institute ofArchitects requesting him to hold an election to fill thatvacancy by a date not later than the date specified in thenotice.(3)For the purpose of the first election under clause (a) ofsub-section (3) of Section 3, it shall be sufficient ifthe Central Government forward a notice by registered postto the Secretary of the Indian Institute of Architectsrequesting him to hold the election by a date not laterthan the date specified in the notice.4. Intimation of name of elected person to CentralGovernment - The name of the elected person shall be intimated by theSecretary of the Indian Institute of Architects to theCentral Government who shall take steps to publish the nameof the elected person in the Official Gazette." https://hcservices.ecourts.gov.in/hcservices/ That's all what has been mandated under the Rules regarding theelection to the Council under Section 3(3)(a). From the reading ofthe above Rules 3 and 4, it is clear that the role of the CentralGovernment is very limited insofar as the election under Section 3(3)(a) is concerned and the responsibility to conduct the election underSection 3(3)(a) has been fixed on the President of the Council ofArchitecture and the Secretary of the Indian Institute of Architectsshall intimate the name of the elected person to the CentralGovernment, whereupon the Central Government shall publish the nameof the elected person in the Official Gazette. Whereas from Rule 5onwards, the procedure for the election to the Council under Section3(3)(c) has been mandated, whereunder Rule 6 reads thus:"6. Returning Officer – The Returning Officer shall callupon all the head of architectural institutions in India toelect such number of members as are referred to in clause(c) of sub-section (3) of Section 3 and in the case of firstelection, five members shall be elected."11. On a conjoint reading of Sections 3(3)(a) and 3(3)(c), it isclear that while the responsibility of holding election under Section3(3)(c) of the Architects Act is on the Council of Architecture withthe assistance of the Returning Officer appointed by the Governmentof India, the responsibility of holding the elections under Section 3(3)(a) of the Act is solely on the Indian Institute of Architects.Even in the counter affidavit filed by the first respondents, who arethe writ petitioners, they have stated that on all earlier occasions,it is the IIA which is conducting the elections under Section 3(3)(a). The term ‘Returning Officer’ mentioned in Rule 6 of the Councilof Architecture Rules, pertain only to the election of five personsfrom among themselves by heads of architectural institutions in Indiaimparting full time instruction for recognized qualifications, as hasbeen defined under Section 3(3)(c) and it is not for the electionmentioned in Section 3(3)(a). Had the Legislature thought thatthere is every need of appointing the ‘Returning Officer’ by theGovernment of India even for the elections under Section 3(3)(a),Rule 6 would have been more wider covering even the election underSection 3(3)(a) of the Act. But, it is not so and the Legislature isspecific regarding the appointment of Returning Officer only withregard to the election contemplated under Section 3(3)(c).Therefore, what has not been contemplated under the Act and the Rulescannot be threshed on the Government of India, by issuing such a Writof Mandamus. While for the election under Section 3(3)(c), anobligation is created on the Central Government to appoint aReturning Officer, no such obligation is created on the CentralGovernment insofar as the election under Section 3(3)(a). 12. For issuing the Writ of Mandamus, the legal obligation on thepart of the respondent, the demand on the part of the petitioner https://hcservices.ecourts.gov.in/hcservices/ and the refusal or non-consideration of such demand by the respondentmust be there. In the case on hand, no such legal obligation iscreated on the Government of India to appoint the Returning Officer. 13. There is no doubt that there is force in the argumentsadvanced on the part of the writ petitioners that there is everypossibility of abuse of the whole process of election by theconcerned, since there were incidents wherein the person whoconducted the elections himself has adjudged himself as the winner.What is to be done in such cases has also been contemplated underSection 5(2) of the Act, providing remedy for such aggrieved persons,to approach the Tribunals constituted for this purpose by the CentralGovernment. 14. But, a judgment of the learned single Judge of the BombayHigh Court delivered in Appeal from Order No.607 of 2004, dated1.10.2004 [BILLIMORIA JEHAN BUX TEHMURAS & 2 OTHERS vs. THE INDIANINSTITUTE OF ARCHITECTS & ANOTHER] was pressed into service on thepart of the writ petitioners, wherein the learned single Judge of theBombay High Court has observed that because of the long legalprocedure before the Tribunals in such election disputes, the time ofoffice of such illegally elected body was completing its tenure andwalking away coolly and therefore the Central Government must takethe responsibility of appointing the Returning Officer and conductthe elections in all cases. We are unable to accept the said viewtaken on the part of the learned single Judge of the Bombay HighCourt, for the simple reason that no such obligation has been createdon the part of the Central Government insofar as the election underSection 3(3)(a) of the Act is concerned and the redressal mechanismfor the election disputes has also been very well contemplated underthe Act itself.15. For all the above discussions, holding that the very filingof the writ petitions has no basis and that the learned single Judgehas erred in allowing the writ petitions, since being contrary to theprovisions of the Act and the Rules, both these writ appeals standallowed, setting aside the common order passed by the learned singleJudge. No costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Rao https://hcservices.ecourts.gov.in/hcservices/ To1.The Secretary to Government of India, Ministry of Human Resources & Development, Shastri Bhavan, New Delhi.2.The Registrar, Council of Architecture, India Habitat Centre, Core 6A, First Floor, Lodhi Road, New Delhi-110003.3.The Indian Institute of Architects, Rep.by its Tamil Nadu Chapter, No.4, III Floor, No.72, Marshalls Road, Egmore, Chennai-600008.+ 2 CC To Mr.P.R.Raman, Advocate SR NO.7427,7428+ 2 CC To Mr.A.Thiagaraj, Advocate SR NO.7415 Common judgment in W.A.Nos.1030 and 1031 of 2007SSN {CO}TP/20.3.2009.