Indian Institute of Architects v. Council of Architecture

W.P.Nos.29145, 30408 and 35168 of 2007 are preferred under Article226 of the Constitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records of the firstrespondent's order in proceedings bearing Ref. No.CA/1/2007/NMN(MHRD), dated 6.8.2007 and to quash the same and consequently todirect the first respondent not to interfere with the membership ofthe petitioner's representatives as Council Members and also not tointerfere with the tenure of the membership of the petitioners asits council members. For Petitioners : Mr.C.Seethapathy in all three writ petitionsFor Respondents : Mr.N.Muralikumaran for R-1 in all the three writ petitions Mr.K.Balachandran, ACGSC for R-2 in all the three writ petitions M/s.Mc Gan Law Firm for R-3 in all the three writ petitions - - - - COMMON ORDERThe short question that arises for consideration in thesethree writ petitions is whether the petitioners in W.P.Nos.30408 and35168 of 2007 were disqualified from being members of the Council of Architects constituted under Section 3 of the Architects Act, 1972(Central Act, 20/1972)?2.The Parliament had enacted law to provide for registrationof architects and for matters connected therewith.

Section 3(3)provides for composition of the Council of Architects. It comprisesof several representatives both by way of nomination and by way ofelection. Representations were also given to nominees of the IndianInstitute of Architects (IIA), heads of architectural institutionsetc. 3. For the purpose of the present case, the provisions foundunder Section 3(3)(a) of the Act may be extracted below: "3. Constitution of Council of Architecture.-(3)(a)five architects possessing recognizedqualifications elected by the Indian Institute of Architects from among its members; "4. TheIndian Institute of Architects referred to in the saidprovision is a society registered under the Societies RegistrationAct, 1860 as a voluntary organisation of the architects. The term ofoffice of members elected under Section 3(3)(a) is set out in Section 6(1) of the Act. Under Section 6(5), members of the Councilare eligible for re-election or re-nomination, but not exceedingthree consecutive terms.

Under Section 5(2), a dispute arisingregarding any election matters will have to be referred to by the Council to a Tribunal constituted by the Central Government by a https://hcservices.ecourts.gov.in/hcservices/ notification in the official Gazette in this behalf and that thedecision of the Tribunal is final. The constitution and bylaws ofthe Indian Institute of Architects which is a registered associationprovides for election of members, students and subscribers. TheGoverning body of the institute was to be maintained by the Council. The Council will hold the office for a period of two official years. The Council of the institute consists of the President, 2 VicePresidents, a Honorary Treasurer, two or more Joint Secretaries, the Immediate past President (ex-officio), Chairman of the fiveRegional Committees, Chairman of all Chapters, the Honarary Editorof the Journal appointed by the Council as well as 7 to 10 electedmembers of the Council.

The Council was also given power to co optnot more than two members with full voting right. 5. Insofar as the President of the institute is concerned, the bylaw No.24 provides as follows: "24. President :The President shall be a Fellow of the Institute andshall not hold office for more than two consecutiveterms. He shall always when present, preside at allmeetings of the Council and the General Body. He shallhave power to convene meetings of the Council at anytime when he considers it necessary. He shall not holdany elected office, after the expiry of his term exceptas the Immediate Past-President, for a period of sixyears thereafter. "(Emphasis added)6.The Central Government by a statutory notification, dated30.8.2004 appointed five architects possessing recognizedqualifications and elected by the Indian Institute of Architectsfrom among the members to be the members of the Council of Architects with effect from 14.6.2004.

It was notified that from thedate of their election, they will hold the office for a period ofthree years or until their successors were duly elected whichever isearlier and subject to the outcome of the two writ petitions pendingbefore this court. In the said notification, in respect of northernregion, one architect Balbir Verma of New Delhi (petitioner inW.P.No.35168 of 2007) was nominated. In respect of southern region, architect K.Rajagopalan (petitioner in W.P.No.30408 of 2007) wasnominated. Their elections were not questioned in terms of Section 5of the Architects Act, 1972. Section 5 reads as follows: "5. Mode of elections.—(1) Elections under this Chapter shall be conducted in such manner as may beprescribed by rules. (2) Where any dispute arises regarding any suchelection, the matter shall be referred by the Councilto a Tribunal appointed by the Central Government bynotification in the Official Gazette in this behalf, and the decision of the Tribunal shall be final :Provided that no such reference shall be made excepton an application made to the Council by an aggrievedparty within thirty days from the date of thedeclaration of the result of the election. https://hcservices.ecourts.gov.in/hcservices/ (3) The expenses of the Tribunal shall be borne by the Council.

"7. On the contrary one architect by name D.P.Sekar sent arepresentation, dated 6.2.2007 stating that the petitioners inW.P.Nos.30408 and 35168 of 2007 cannot hold the office of members ofthe Council of Architects. He further stated that as per bylawNo.24, these two persons cannot hold the office. Since they wereimmediate past Presidents being the earlier Presidents of the Institute, they had become members of the society. But, since thebylaw prohibits such persons from holding any other elected office, they cannot be the members of the Council of Architects constitutedby the Central Act, 20/1972 and hence they suffer disqualification. He also filed a writ petition in W.P.No.20358 of 2007seeking for adirection to the council of Architects to consider hisrepresentation, dated 6.2.2007 followed by a reminder dated21.3.2007. It is subsequent to the filing of the writ petition, those two individuals, i.e., M/s.Balbir Varma and K.Rajagopalan, were impleaded on 11.7.2007 in M.P.No.1 of 2007.

Even before anynotice could be served on them and their reply could be received, this court by an order dated 21.7.2007 had directed the Council of Architects to consider the representation in accordance with law. Innormal circumstances, that writ petition should have been dismissedas not maintainable since the procedure for disqualifying themembers is clearly provided under Section 5 of the Act. Anapplication by the aggrieved person should have been filed within 30days from the date of declaration of election. In the present case, the notification by the Central Government by the Ministry of HumanResource Department was issued as early as 30.8.2004. 8. Acting upon the direction, the Council of Architects, byan order dated 6.8.2007 withdrew the nominations made in favour ofM/s.Balbir Varma and K.Rajagopalan and had declared that their termin the council is illegal and null and void. It was also declaredthat the seat held by them was vacant.

This order of the councilcame to be issued pursuant to the direction issued by this court, dated 21.7.2007 in W.P.No.23058 of 2007 and upon representation madeby the said D.P.Sekar who was the architect from Chennai. TheCouncil heavily relied upon the bylaw No.24 of the society in which Balbir Varma was the President and Mr.K.Rajagopalan was the VidePresident. In the operative portion of the impugned order, it wasstated as follows: "Upon examining the issue in detail, it is noted thatboth Shri Balbir Verma and Shri K.Rajagopalan wereincluded vide notification no.17-2/2004-TS.VI dated30.08.2004, of Central Government as members of the Council, however, on that date while the first termof Shri Balbir Verma as President, IIA, had alreadyexpired and Shri K.Rajagopalan was only immediatePast-President of IIA and therefore, both thesepersons were not eligible to hold any elected officeas per IIA bye-law 24 and as such to get elected tobecome members of the Council of Architecture. https://hcservices.ecourts.gov.in/hcservices/ It seems that both Shri Balbir Verma and ShriK.Rajagopalan have become members of the Council bymisrepresentation/ concealing material facts, and whowere otherwise ineligible for being elected to Council of Architecture as its members in view of Bye-law 24 of IIA Bye-laws.

In view of the above facts and the representationsreceived as well as the direction of the Hon'ble HighCourt of Madras, the Council hereby withdrawsimmediately Shri Balbir Verma and Shri K.Rajagopalanas its members and also declare their whole term inthe Council as illegal and therefore is null andvoid. Accordingly, the Council declares these twoseats as vacant. "9. Challenging the disqualification, the Indian Institute of Architects represented by its Joint Honarary Secretary of Mumbaifiled W.P.No.29145 of 2007. In that writ petition, notice wasordered to the respondents. Subsequently, the two disqualifiedmembers M/s.K.Rajagopalan and Balbir Verma themselves filed theother two writ petitions, i.e., W.P.Nos.30408 and 35168 of 2007,challenging the very same order. The first writ petition wasadmitted on 21.9.2007 and that the second writ petition was admittedon 16.11.2007. In the writ petition filed by Mr.Rajagopalan, statusquo as on 21.9.2007 for a period of four weeks was directed to bemaintained.

In the writ petition filed by Balbir Varma, an interimstay was granted on 16.11.2007. 10. After notice from this court, a common counter affidavitwas filed by the Council dated 1.12.2009 in the first two writpetitions and in the third writ petition, a separate counteraffidavit was filed on 1.12.2009.11.As against the court refusing to grant complete stay inW.P.No.30408 of 2007, K.Rajagopalan filed a writ appeal beingW.A.No.1259 of 2007. A division bench of this court had granted aninterim stay on 6.10.2007. Subsequently, a vacate stay petition wasfiled by the Council of Architecture, the division bench made thestay absolute and disposed of the writ appeal by an order dated4.1.2010 and also directed expeditious disposal of the writpetitions. Therefore, all the three writ petitions were groupedtogether and heard. 12. Heard the arguments of Mr.C.Seethapathi, learned counselappearing for the petitioners in all three writ petitions, Mr.MuraliKumaran, learned Standing Counsel for the Council of Architects andthat the third respondent, the original complainant D.P.Sekar beingrepresented by M/s.Mc Gan Law Firms.

13. Before dealing with the merits of the case Mr.MuraliKumaran, learned Standing Council for Architects raised twopreliminary objections for hearing the main writ petitions. Thefirst objection was the term of the office of the two individualshad already come to an end. Therefore, the writ petitions have https://hcservices.ecourts.gov.in/hcservices/ become infructuous. He also submitted that W.P.Nos.29145 and 35168of 2007 are not maintainable within the territorial jurisdiction ofthis court. He stated that admittedly the petitioner in W.P.No.35168of 2007 was the resident of New Delhi and that the impugned orderwas passed by the council headquarters at New Delhi. In W.P.No.29145of 2007, the society's headquarters was at Mumbai and that the orderof the council was served to the society at Mumbai. Therefore thetwo writ petitions are clearly not maintainable in view of theterritorial jurisdiction conferred under Article 226 of the Constitution of India.

14. In support of the second contention, the learned counselrelied upon the following judgments :(a)Oil and Natural Gas Commission Vs. Utpal Kumar Basuand others reported in (1994) 4 SCC 711.(b)C.B.I. Anti Corruption Branch, Mumbai Vs. NarayanDiwakar reported in (1999) 4 SCC 656.(c)Union of India and others Vs. Adani Exports Ltd andanother reported in (2002) 1 SCC 567.(d)Kusum Ingots & Alloys Ltd. Vs. Union of India andanother reported in (2004) 6 SCC 254.(e)National Textile Corporation Ltd and others Vs.Haribox Swalram and others reported in (2004) 9 SCC786.15.Taking the second contention first, it must be statedthat there is no quarrel with the propositions of law laid down bythe Supreme Court in the decisions cited by Mr.Murali Kumaran, learned Standing Council for the Council of Architects. But, in thepresent case, dismissal of these two writ petitions, i.e.,W.P.Nos.29145 and 35168 of 2007 on the ground of want of territorialjurisdiction will not end this case because the petitioner inW.P.No.30408 of 2007 is very much residing within the jurisdictionof this court and that the orders were received by him at Chennai.

The first respondent Council of Architects is an all India bodycreated by the Central Act, 20/1972. Therefore, this court hasjurisdiction to go into the legal issue raised in these writpetitions atleast in W.P.No.30408 of 2007. Therefore, the issue willhave to be necessarily gone into in these two writ petitions. Hencethe second objection fails. 16. With reference to the first objection that the writpetitions have become infructuous, it must be noted that thepetitioners had the benefit of the interim order passed by thiscourt and had completed their term. But pursuant to the directionissued by this court, the Council had decided the issue. The issuesraised herein are to be perpetually raised at every election. Sincethe interim orders were also subject to the result of the finalorder to be passed in the writ petition, the writ petitions cannotbe rejected on the ground that there being infructuous.

Hence thefirst objection also must fail. 17. There is yet another issue which will have to be decidedwas when this court gave a direction in W.P.No.23058 of 2007, dated21.7.2007, this court did not even hear M/s.Balbir Verma and https://hcservices.ecourts.gov.in/hcservices/ K.Rajagopalan, but merely impleaded them and that without notice tothem, a direction was issued to the Council of Architects toconsider the representation of Mr.D.P.Sekar who sought fordisqualification. Such a direction without notice to the parties isclearly impermissible. Time and again this court and the SupremeCourt have emphasised that no direction can be issued, howeverinnocuous it may be, without hearing the affected parties. 18. In this context, two division benches of this court haveheld that a direction to the statutory authorities without hearingnecessary parties was impermissible. First is the judgment in Director of Handlooms and Textiles Vs.

K.Venkatesan reported in 1998(1) L.W. 605 and paragraphs 16,17 and 21 of the judgments areusefully extracted below: "16.A catena of decisions have been renderedhighlighting the cardinal duty in extending thereasonable opportunity before a decision is takenprejudicial to the interests of a party. 17. The nature of relief prayed for in the writ petitionis not one if not granted, would put the petitioner inimminent danger or injury or hazard to paramount publicinterests. It is not a case in which holding ofelections had been notified to be held by the time anddate already fixed. The order nowhere hints out thecompeting claims of hurry and hearing. Rather, noreason is found in the order, even for granting therelief. It is not an order where by following theearlier binding decisions of Courts, the petitionergets allowed. Even under such circumstances, it is doneby a court only after notice to the respondents or bytheir Standing Counsel taking notice in court.

Allowinga writ petition straightaway when it comes up foradmission is therefore an improper disposal, eventhough the power exercisable is under Art.226 of the Constitution of India. The principles of fair play andjustice are not excluded, when this power is invoked. It has become necessary to elaborate upon this pointbecause this is not the first case wherein a writpetition without issue of notice to respondents andwithout hearing them, gets ordered as it comes up foradmission. There are instances in which writ petitionsare dismissed in admission stage but directions areissued for compliance, which virtually results inpetitioner getting the desired relief. This sort ofdirections or conditions imposed in admission stage, but technically concluding the order is dismissed orordered accordingly, would not also be proper orpermissible, because to the extent relief is extendedby such manner of disposal leads to respondents withoutnotice, being compelled to do certain acts, about whichthey have not been heard at all. ......... https://hcservices.ecourts.gov.in/hcservices/

It is, therefore, held that under no circumstances,a writ petition filed under Art.226 of the Constitutioncould be straightaway allowed without ordering noticeto affected respondents or without hearing theircounsel who may on instructions participate in theproceedings by taking notice for their clients. Equallyissuing directions or imposing conditions whiledismissing writ petitions in admission stage cannot bedone, without hearing respondents who are to abide bythe conditions. Exercise of Constitutional power inthis fashion being inappropriate this court is put tothe unpleasant task of amplifying and enlightening asto what ought not to have been done, and hence remitthe matter, so that the proper procedure required inlaw has to be followed, before the writ petition isdisposed of. Any decision of court without adherence toproper procedure being illegal, though the respondentsare before this court, of whom two of them areappellants, it had still necessitated in reviving thewrit petition for adherence to established procedure.

In the counter affidavit also, the jurisdiction to decidethe issue is traced only pursuant to the order passed by this court, dated 21.7.2007. Though this court could have set aside the order ofthe Council on the ground that it has no jurisdiction to decide theissue and it ought to have brought before this Court the provisionsof Section 5 of the Act, it is unnecessary to do so at thisjuncture. Therefore, this court decides to go into the merits of theimpugned order. 23. The understanding of the council in disqualifying the twoindividuals is revealed in paragraph 7 of the counter affidavitfiled in W.P.No.35168 of 2007, which reads as follows: "7....that IIA bye-laws under which the petitioneris governed and body whom he is representing did notpermit under its bye-laws its office bearers underbye-law 24 i.e. President to hold and elected officeafter the expiry of his term for a period of 6years. The present petitioner held the office of the President of IIA and attracted this prohibition ofnot to hold any elected office such as becoming amember of this respondent Council for a period of 6years. The contention that the prohibition appliedto elected office in IIA and not any other office isincorrect and the bye-law 24 is very much and coversall elected offices. " https://hcservices.ecourts.gov.in/hcservices/

Before examining whether bylaw No.24 of the society willhave any application for disqualification by the statutory council, one must see the true meaning of the representative character of themembers found in Section 3(3)(a). The said provision comprise ofthree portions. It allows five architects possessing recognisedqualifications. The term "architect" is defined under Section 2(a).The term "architect" means a person whose name is for the time beingentered into the register. Likewise, the term "recognisedqualification" is defined under Section 2(d) means that anyqualification in architecture for the time being included in theschedule or notified under Section 15. There is no dispute thatM/s.Balbir Verma and K.Rajagopalan are architects within the meaningof Section 2(a) and that they have recognised qualification in termsof Section 2(d). The other qualifications found in Section 3(3)(a)is that those persons should be elected by the Indian Institute of Architects from among its members. Therefore, the import of Section3(3)(a) is that an architect must have his name found in the Register, must have the recognised qualification notified under Section 15 and he must be a member of the Indian Institute of Architects and elected by the institute.

The types of representations given to the particularsociety is unique. Once the section qualifies the nature ofmembership, it is not for the Council of Architecture to decidewhether the members who were elected by the society called as IndianInstitute of Architects were in any way disqualified under the bylawof that society. On the other hand, the Council of Architecture hadnothing to do with the workings of the bylaws of the society, whichis purely contractual in nature. In essence, it is therepresentations given in the form of guild representations to aparticular society and as to who was elected by the said society isnot the concern of the Council of the Architecture.

In this context, it is necessary to refer to a judgmentof the Supreme Court in G. Narayanaswami v. G. Pannerselvam reportedin (1972) 3 SCC 717, wherein the Supreme Court had considered thescope of Article 171 of the Constitution. Under Article 171, whileproviding for composition of legislative councils, certainrepresentations were given to the graduates of the recognizedUniversities under Article 171(3)(b). It was contended in that casethat since it is a representation given to graduates candidates whocontest in the constituency must also be a graduate. But the SupremeCourt while analysing the history of the constitution held that itwas the representation given to the body of persons and as to whothey elect is not set out in the Article. Therefore, even a nongraduate can be elected as a representative of the graduateconstituency. It is clear from the said judgment. The followingpassages found in paragraphs 4,12,14,15 and 18 may be usefullyreproduced below: "4.

Whether the member who was so elected is prohibited fromholding any elected office as found in the bylaw No.24 is not theconcern of the Council of Architecture so long as such person waselected by the society and he has all the qualifications. In fact aperusal of the bylaw No.24 itself will show that the term "electedoffice" referred to therein is to an elected office under thesociety and not to any other elected office outside. At the time offorming of the society, the Act was not even contemplated. The Actcame to be enacted only in the year 1972. Therefore, they would nothave thought that a member of the society must be prohibited fromholding any elected office beyond two terms. Even otherwise, thatbylaw is strictly confined to the elected office under the societyand not any unspecified offices which were not even under thecontemplation of the framers of the bylaws.

Assuming that in the bylaw, there was prohibition for aperson to hold the office outside the body, that cannot be held tobe a disqualification while considering the elected office in thestatutory body. Bylaws are in the nature of contract between themembers of the society. If there is any violation of such bylaws, members will have to seek remedy only in terms of the bylaw and theycannot non suit a person, who is otherwise eligible to hold anoffice by virtue of his election under the statutory provisions https://hcservices.ecourts.gov.in/hcservices/

It will not be out of place to refer to a decision of the Supreme Court in this regard. The Supreme Court had an occasion toconsider an appeal against the election petition wherein a member ofa local body was sought to be disqualified not because he hadsuffered any electoral disqualification under the relevant municipalAct, but because in the place where he was working, i.e., in the Life Insurance Corporation of India, his service conditions in theform of regulations required that no LIC employee can contest anyelection for a local body unless he gets prior permission from the Chairman of the LIC. A defeated candidate tried to non suit theelected member of the local body on the ground that the Councilordid not have permission of the Chairman of the LIC to stand for theelection. Therefore, having violated the regulations of the LIC, hiselection was invalid under the municipal Act. The Supreme Courtrejected the said contention stating that the regulations of the LICare merely disciplinary in character and are not disqualificatory inan election law.

The said view was taken in Manohar Nathurao Samarth v.Marotrao reported in (1979) 4 SCC 93, wherein the Supreme Court inparagraphs 10 to 14 and 16 had observed as follows: "10. The regulations have been framed under Section 49of the LIC Act and a conspectus of the various chaptersconvincingly brings home the purpose thereof. All theregulations and the schedules exclusively devotethemselves to defining the terms and conditions ofservice of the staff. Regulation 25 comes withinChapter III dealing with conduct and discipline of theemployees. Regulation 39 deals with penalties formisconduct and Regulation 40 deals with appeals. Theinference is irresistible that the sole and wholeobject of Regulation 25, read with Regulation 39, is tolay down a rule of conduct for the LIC employees. Amongthe many things forbidden are, for instance, prohibition of acceptance of gifts or speculation instocks and shares.

The Joint Hon. Secretary, Indian Institute of Architects, 5th Floor, Prospect Chambers Annexe, Dr.D.N.Road, Fort, Mumbai-400 001.+ 3 ccs to Mr. P.R. Raman, Advocate SR No.35866 to 35868+ 1 cc to Mr. Mc. Gan Law Firm, Advocate SR No.35822+ 1 cc to Mr. N. Muralikumaran, Advocate SR No.35823+ 1 cc to Mr. S. Sampath, Advocate SR No.35447GG(CO)SR/30.6.2011ORDER INW.P.NOs.29145, 30408 and 35168 of 2007