Madras High Court
Ar.D.P.Sekar vs Indian Institute Of Architects By Its ... on 18 December, 2012
Author: Aruna Jagadeesan
Bench: Elipe Dharma Rao, Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.12.2012
CORAM:
THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO
AND
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
WA.NOS.1195 TO 1197 AND 1200 TO 1202/2011
WA.NO.1195/2011:-
Ar.D.P.Sekar Appellant
Vs
1.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001
2.Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road, New Delhi 110 003
3.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi Respondents
WA.NO.1196/2011:-
Ar.D.P.Sekar Appellant
Vs
1.K.Rajagopalan
2.Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road, New Delhi 110 003
3.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi
4.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001 Respondents
WA.NO.1197/2011:-
Ar.D.P.Sekar Appellant
Vs
1.Balbir Verma
2.Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road, New Delhi 110 003
3.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi
4.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001 Respondents
WA.No.1200/2011:-
Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road
New Delhi 110 003 Appellant
Vs.
1.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001
2.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi
3.Ar.D.P.Sekar Respondents
WA.No.1201/2011:-
Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road
New Delhi 110 003 Appellant
Vs.
1.K.Rajagopal
2.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi
3.Ar.D.P.Sekar
4.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001 Respondents
WA.No.1202/2011
Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road
New Delhi 110 003 Appellant
Vs.
1.Balbir Verma
2.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi
3.Ar.D.P.Sekar
4.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001
Prayer:- These writ appeals are filed under Clause 15 of Letters Patent against the order dated 21.6.2011 made in WP.Nos.29145, 30408 and 35168/2007 on the file of this court.
For Appellants : Mr.V.T.Gopalan, SC for
Mr.Lakshmipathy-WA.1195 to 1197/2011
Mr.N.Murali Kumaran-WA.1200 to 1202/2011
For Respondents : Mr.P.S.Raman, SC for Mr.P.R.Raman
R1-WA.1195 & 1200/2011 and
RR1 & 4-WA.1196, 1197, 1201 & 1202/2011
COMMON JUDGEMENT
ARUNA JAGADEESAN, J.
These writ appeals are directed against the common order dated 21.6.2011 made in WP.Nos.29145, 30408 and 35168/2007 by the learned Single Judge of this Court.
2. The Indian Institute of Architects, the Writ Petitioner in WP.No.29145/2007, is a Society registered under the Societies Registration Act, 1860, as a voluntary Organization of the Architects. The Central Government, by notification in the Official Gazette, has constituted a Council to be known as the Council of Architecture, a body corporate having perpetual succession and a common seal, with power to acquire, hold and dispose of property and to contract and by that name, sue or be sued. The Council consists of (a) five (5) architects possessing recognized qualification elected by the Indian Institute of Architects from among its members, (b) two (2) persons nominated by the All India Council for Technical Education, (c) five (5) persons elected from among themselves by heads of architectural Institutions in India, (d) the Chief Architects in the Ministries of the Central Government, (e) one person nominated by the Central Government, (f) an architect from each State nominated by the Government of the State, (g) two persons nominated by the Institution of Engineers and (h) one person nominated by the Institution of Surveyors of India from among its members. The term of office of members elected or nominated as per Section 6 of the Architects Act, 1972 (herein after referred to as the Act) is three years from the date of his election or nomination. Under Section 6(5) of the Act, members of the Council shall be eligible for re-election or re-nomination, but not exceeding three consecutive terms. Under Section 5(2), a dispute, arising regarding any election matters, will have to be referred to by the Council to a Tribunal constituted by the Central Government by a notification in the Official Gazette in that behalf and the decision of the Tribunal is final.
3. The Central Government, by a statutory notification dated 30.8.2004, appointed five architects possessing recognized qualification and elected by the Indian Institute of Architects from among the members to be the members of the Council of Architects with effect from 14.6.2004. It was notified that from the date of their election, they will hold the office for a period of three years or until their successors were duly elected, whichever is earlier. In the said notification, in respect of Northern region, one architect Balbir verma of New Delhi (Writ Petitioner in WP.No.35168/2007 and in respect of Southern region, one architect K.Rajagopalan (Writ Petitioner in WP.No.30408/2008) were appointed.
4. In the meanwhile, one architect by name D.P.Sekar (Appellant in WA.Nos.1195 to 1197/2011) sent a representation dated 6.2.2007, stating that the elected architects Balbir Verma and K.Rajagopalan cannot hold office of members of the Council of Architects, and cited bylaw No.24 of the Indian Institute of Architects. According to him, since they were immediate past Presidents being the earlier Presidents of the Institute, they had become members of the Society and as such, they suffer disqualification. He filed a Writ Petition in WP.No.20358/2007, seeking for a direction to the Council of Architecture (Appellant in WA.Nos.1200 to 1202/2011) to consider his representation dated 6.2.2007 followed by a reminder dated 21.3.2007. Pending the said Writ Petition, architects Balbir Verma and K.Rajagopalan were impleaded. Even before service of notice on them, this court, by order dated 21.7.2007, had directed the Council of Architecture to consider the representation in accordance with law.
5. Pursuant to the said direction of this Court, the Council of Architecture, by order dated 6.8.2007, withdrew the applications of Balbir Verma and K.Rajagopalan and declared that their term in the Council is illegal, null and void. It was also declared that the seat held by them are vacant. Challenging the same, the Indian Institute of Architects represented by the Joint Hon.Secretary of Mumbai filed the Writ Petition in WP.No.29145/2007 and subsequently, the two disqualified members Balbir Verma and K.Rajagopalan also filed Writ Petitions in WP.Nos.35168 and 30408/2007 respectively challenging the very same order.
6. On consideration of the entire facts and circumstances and after hearing the submissions made by the parties, the learned Single Judge of this Court allowed the Writ Petitions and set aside the order impugned therein, holding that the impugned order passed by the Council of Architecture, is clearly without jurisdiction and contrary to law and that there is no impediment for any member of the Indian Institute of Architects to contest for election so as to become the member of the Council of Architecture under Section 3(3)(a) of the Act however, subject to other qualification required under the Act. The learned Single Judge negatived the submissions made by the Appellants/Respondents in the Writ Petitions that this court has no territorial jurisdiction to entertain the Writ Petition on the ground that no cause of action had arisen within the territorial jurisdiction of this court. The very same contentions have been raised by the learned senior counsel appearing for the Appellants in these Writ Appeals also.
7. It is contended that no cause of action had arisen within the territorial jurisdiction of this Court and therefore, the Writ Petitions cannot be entertained. It is pointed out that the Indian Institute of Architects, the Writ Petitioner in WP.No.29145/2007, has its Office at Bombay and Balbir Verma, the Writ Petitioner in WP.No.35168/2007 is also a resident of Bombay. It is also stated that the impugned order therein was passed by the Council of Architecture at New Delhi and Union of India is also at New Delhi and therefore, Writ Petitions ought to have been rejected on the ground of want of jurisdiction.
8. Article 226 of the Constitution of India, which provides the power to High Courts to issue certain writs, reads as follows:-
226. Power of High Courts to issue certain writs:- (1) Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) (4) ...
9. From the provision in clause (2) of Article 226, it is clear that the maintainability or otherwise of the Writ Petition in the High Court depends on whether the cause of action for filing the same arose, wholly or in part, within the territorial jurisdiction of that Court.
10. In legal parlance, the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a Tribunal; a group of operative facts giving rise to one or more persons for suing; a factual situation that entitles one person to obtain a remedy in court from another person.
11. Therefore, in determining the objection of lack of territorial jurisdiction, the Court must take all the facts pleaded in support of the cause of action into consideration. The question, about the limits of jurisdiction of High Court in issuing writs under Article 226, has been frequently considered by the Honourable Supreme Court and there is no quarrel over the legal position in that behalf as referred to by the learned Single Judge of this Court. Keeping in view the ratio laid down in catena of decisions by the Honourable Supreme Court, it is clear that for the purpose of deciding whether the facts averred by the writ petitioners would or would not constitute a part of cause of action, one has to consider whether such facts constitute a material, essential or integral part of the cause of action. It is pertinent to mention here that even if a small fraction of cause of action arises within the jurisdiction of this Court, this court will have territorial jurisdiction to entertain the Writ Petition/Petitions.
12. In this case, the genesis for the action taken by the Council of Architecture in passing the impugned order in the Writ Petitions, declaring the election of the architects Balbir Verma and K.Rajagopalan as illegal, is pursuant to the direction given by this court in WP.No.23058/2007 dated 21.7.2007, at the instance of the architect D.P.Sekar (appellant in WA.Nos.1195 to 1197/2011). In the counter affidavit filed by the Council, the jurisdiction to decide the issue is traced only pursuant to the order passed by this Court dated 21.7.2007. It is also to be noticed that the Council of Architects is an All India body created by the Central Act 20 of 1972 and exercises its jurisdiction throughout India and its members are elected or nominated from each State.
13. The 1st Respondent, K.Rajagopalan whose election has been challenged, is very much residing within the jurisdiction of this Court and that the orders were received by him at Chennai. Therefore, it is impossible to hold that not even a part of the cause of action has arisen at Madras so as to deprive this Court of total jurisdiction to entertain the Writ Petitions. The learned Single Judge of this Court was justified in rejecting the contentions made by the learned counsel for the Appellants that the Writ Petitions are not maintainable for want of territorial jurisdiction.
14. Insofar as the merits of the case are concerned, the learned Single Judge, after referring to the decision of the Honourable Supreme Court reported in 1979-4-SCC-93 (Manohar Nathurao Samarth Vs. Marotrao), has held that bylaws are in the nature of contract between the members of the Society and if there is any violation of such bylaws, members will have to seek remedy only in terms of the bylaw and they cannot non-suit a person who is otherwise eligible to hold an office by virtue of his election under the statutory provisions. The learned Single Judge has further held that when an architect possesses recognized qualification and if he is a member of the said Society, then there is no impediment for him to stand for election except to the maximum term that is set out in Section 6(5) of the Act, which states that one cannot continue beyond three consecutive terms. Even assuming that in the bylaw, there was prohibition for a person to hold office outside the body, that cannot be held to be a disqualification while considering the elected office in the statutory body.
15. Reference is also made to the fact that though the elected architects, namely, Balbir Verma and K.Rajagopalan were impleaded in WP.No.20358/2007, but without notice to them, a direction was issued to the Council of Architects to consider the representation of D.P.Sekar, the Appellant in WA.Nos.1195 to 1197/2011, who sought for disqualification. The learned Single Judge has observed that such a direction, without notice to the parties, is clearly impermissible. That apart, as per Section 5(2) of the Act, if any dispute arises regarding any such election matter, it shall be referred by the Council to a Tribunal appointed by the Central Government by notification in the Official Gazette in this behalf and the decision of the Tribunal shall be final. Thus, the Act provides for remedy by way of election dispute and that has to be decided only by the Tribunal. The said provisions also provides for limitation. In this case, since the disqualification of the two individuals is essentially a dispute relating to the election, the Council has no power to decide such an election dispute on its own without recourse to sending it to the Tribunal.
16. On consideration of the above facts and circumstances, the learned Single Judge of this Court, has held that the Council had passed the order disqualifying the members and also had come to this Court to defend its action, which is clearly without jurisdiction and contrary to law and accordingly, set aside the impugned order therein. Considering the facts and circumstances of the case, we are not inclined to take a different view than the one expressed by the learned Single Judge of this Court in the impugned order and we are in complete agreement with the same. Therefore, these writ appeals are liable to be dismissed.
17. In the result, these writ appeals are dismissed. No costs. Consequently, the connected MPs are closed.
[E.D.R., J] & [A.J., J]
18.12.2012
Index:Yes/No
Web:Yes/No
Srcm
To:
1.Indian Institute of Architects by its Joint Hon.Secretary
Ar.Vijay Garg, V Floor, Prospect Chambers Annexe
Dr.D.N.Road, Fort, Mumbai 400001
2.Council of Architecture by its Registrar Vinodkumar,
India Habitat Centre, Cova 6A, I Floor, Lodhi Road, New Delhi 110 003
3.Union of India by its Secretary to Government
Ministry of Human Resources Development
Shastri Bhavan, New Delhi
ELIPE DHARMA RAO, J.
AND
ARUNA JAGADEESAN, J.
Srcm
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Pre Delivery Judgement in
WA.NOS.1195 TO 1197 AND
1200 TO 1202/2011
18.12.2012