Orissa High Court
Siksha 'O' Anusandhan vs Council Of Architecture (Coa) on 8 April, 2013
Equivalent citations: AIR 2014 (NOC) 229 (ORI.)
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P.(C) No. 2837 OF 2011
In the matter of application under Articles 226 and 227 of the
Constitution of India
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Siksha 'O' Anusandhan, a Deemed
University. ...... Petitioner
-Versus-
Council of Architecture (COA)
and another. ...... Opp. Parties.
For Petitioner : M/s. S.K.Padhi, Sr. Advocate,
P.Behera & B.A. Prusty.
For opp. parties: Mr. J.K.Mishra, Sr. Advocate,
Y. Mohanty, P.C. Behera &
S.S.Mohanty.
(For O.P.No.2)
M/s. Sanjit Mohanty, Sr. Advocate,
B.Mohanty, A.Tripathy &
B.Sahoo.
(For O.P.No.1).
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Decided on 08.04.2013
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
M. M. DAS, J.The petitioner in this writ petition has assailed the action of the Council of Architecture (for short, 'the COA') in issuing the letters under Annexures - 4 and 6 thereby compelling the petitioner, which is a Deemed to be University, to obtain prior approval/permission from it for opening/imparting degree course in Architecture, stipulating 2 that if prior approval/permission is not obtained, the students passing out from the petitioner-University shall not be eligible for registration as Architects. Under the notification in Annexures - 1, 2 and 3 issued by the Government of India in its Ministry of Human Resource and Development (Department of Higher Education), the petitioner - University was declared to be an institution of higher learning as 'Deemed to be University' by exercise of power under section 3 of the University Grant Commission (UGC) Act, 1956. Accordingly, as per the terms and conditions of the notification under Annexures- 1, 2 and 3, the petitioner-University was to start new courses/programmes only in accordance with the relevant norms and guidelines of the UGC, AICTE etc. The Government of India in its Ministry of Human Resource Development issued the notification dated 7.4.2006 under Annexure-7 clarifying in the public interest, that it is not a pre-requisite for an institution notified as a 'Deemed to be University', to obtain approval of the AICTE to start any new course/programme in technical/management education. However, the institution notified as 'Deemed to be University' is required to ensure maintenance of minimum standards prescribed by the AICTE for various courses that come under the jurisdiction of the said Council and it is expected that the institution thus notified shall maintain its 3 standard of education higher than the minimum prescribed by the AICTE.
2. It is contended by the petitioner that by virtue of the notification under Annexure - 7, it is not required for the petitioner - University to obtain prior approval to start any new course in technical or management education. The COA issued the letter under Annexure-4 to the Director (Admissions) of the petitioner - University to the following effect:-
"COUNCIL OF ARCHITECTURE To The Director (Admissions) Siksha O Anusandhan University, Khandagiri Square, Bhubaneswar- 751030 (Orissa) Tel: 0674-2350635, 235079 Fax: 0674-2350642 Sub: Admissions in Degree Level Course in Architecture, i.e, Bachelor of Architecture (B.Arch.) - regarding.
Sir/Madam, The Council of Architecture (COA) is established under an Act of Parliament of India i.e. the Architects Act 1972 (20 of 1972) and has been charged with the responsibility of enforcing the Act throughout the country, including registration of architects, regulating the architectural profession and architectural education. You can have copies of the Act, Rules and Regulations and Guidelines framed under the Act from the website www.coa.gov.in.
The attention of the Council is drawn towards the advertisement published in "SAMBAD", Bhubaneswar edition dated January 11, 2011 (copy enclosed) on the above subject. Upon going through the same it is noticed that your University is offering courses in different disciplines including architecture. In this regard, I have to state that the Degree Level Course in Architecture, i.e. Bachelor of Architecture (B.Arch.) advertised by your institution 4 is not approved from the Council of Architecture (COA) for imparting recognized qualifications in architectural.
You are therefore, directed to not to issue any application form and do not admit any student in the Degree level Course in Architecture, i.e. Bachelor of Architecture (B. Arch.) till your institution is granted permission to run such a course for the purpose of the Architects Act,1972.
In case your institution had already started the Degree Level course in Architecture, then you are also directed, in public interest to bring to the knowledge of the students that the said degree course in architecture is not approved by the COA and the same is not valid/recognized for registration as "Architect" under the Architects Act, 1972 with the COA. You are further directed to issue a "Corrigendum" to the above referred advertisement in all leading dailies to this effect.
A copy of the prescribed "Application Form for Introduction of 5-Year B.Arch. Degree Course" is enclosed herewith to enable you to apply, with all necessary enclosures for starting of 5 year full-time B.Arch. degree course.
Your reply should reach in the matter as to compliance with the provisions of the Architects Act, 1972 and regulations framed there under within 15 days from the receipt of this letter".
3. In reply to the said letter, the Registrar of the petitioner - University intimated the Registrar, COA that as per notification dated 7.4.2006 of the Central Government in its Ministry of Human Resource Development Department, it is not a pre-requisite for an institution notified as a "Deemed to be University" to obtain approval of the AICTE to start any programme in technical or management education leading to an award, including degrees in disciplines covered under the AICTE Act, 1987. It was also intimated to the COA in the said 5 letter that the petitioner - University is going to open B.Arch. Programme from the academic session 2011-12 by following norms and standards as prescribed by the statutory Council, for which, the petitioner - University published the advertisement and application for recognition of B. Arch. Programme will be made at the right time. After receipt of the said letter, the COA again issued the letter under Annexure-6 to the petitioner referring to certain decisions of the Bombay High Court to fortify its points that COA is the final authority for laying down norms and standards for architectural institutions. It was also intimated that against the judgment of the Bombay High Court, the AICTE preferred Special Leave Petition before the Hon'ble apex Court and the judgment of the Bombay High Court was not stayed by the Hon'ble apex Court. Again a reference was made to the judgment of the Delhi High Court as well as Andhra Pradesh High Court. Further, reference was made to section 17 of the Architects Act, 1972 and the COA, in view of the above, directed the petitioner - University to seek necessary approval/recognition from the Council of Architecture as to maintenance of minimum standards of architectural education for imparting Five Year B. Arch. Degree in the interest of the students adhering to the norms, standards and directions of the COA from time to time. It was also mentioned that in the event, the petitioner - University 6 continues to start the B. Arch. Course without approval of the Council, it shall be doing so at its own cost, risk and consequences and shall remain accountable for the same to all interested persons. Being aggrieved by the aforesaid two letters, the petitioner - University has preferred the present writ petition.
4. A counter affidavit has been filed by the Council of Architecture, wherein, it has been contended that the Architects Act, 1972, being a special enactment, prevails over the AICTE Act, 1987. The provision of the Architects Act authorizes the COA to grant prior approval to the institution/University seeking for such approval, which is clear from the readings of the provisions of the Act as a whole, and more specifically, under sections, 17, 21, 25 and 45 thereof. A further affidavit has been filed by the COA stating that it is implied that every institution seeking to impart architectural education for the purpose of awarding a recognized qualification must have the prior approval of the COA and if such regulatory measure is not enforced, it would render the principal object of the Council as a body responsible for maintaining standards of architectural profession otiose.
5. From the pleadings of the parties, the following issues emerge: -
(i) Whether in absence of any statutory provision, by implication, it can be construed that prior 7 approval of COA is required before opening of a course in Architecture.
(ii) Whether right for supervision, inspection, prescribing of courses etc. by implication be construed as a right for grant of prior approval.
(iii) Whether the statute can be interpreted to give the Council power to give prior approval as foreign Universities are recognized by COA which are established without any prior approval.
(iv) Whether the statutory form prescribed and insisted upon has any sanction of Act/Rules.
(v) Whether the petitioner being a "Deemed to be University", prior approval for opening of B. Arch. Course is necessary to be obtained from the AICTE under the Scheme of the AICTE Act or the said AICTE is only to monitor the standards and the courses imparted by an institution like the petitioner and advice the Central Government for recognition or de-recognition.
6. The Architects Act, 1972 has been enacted by the Parliament with the object to regulate the persons working as architects by way of statutory regulations and to protect the general public from unqualified persons working as architects. This law has been enacted with a view to control the profession of architects for which a Council of Architects has been created and the Architects have to get themselves registered with the council. Norms have been laid down and punishment has been provided in case of breach of the provision. 8
If we consider the relevant provisions of the Architects Act, 1972, we find that it does not confer power on the Council to seek application for prior approval for imparting Architectural course. The relevant provisions in this regard under the Architects Act, 1972 , which are required to be looked into, are as follows:-
"2. (a) to (c) xxx xxx xxx
(d) "Recognized qualification" means any qualification in architecture for the time being included in the schedule or notified under section 15.
14. (1)The qualifications include in the Schedule or notified under section 15 shall be recognized qualifications for the purposes of this Act.
(2) Any authority in India which grants an architectural qualification not included in the Schedule may apply to the Central Government to have such qualification recognized, and the Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the Schedule against such architectural qualification declaring that it shall be a recognized qualification only when granted after a specified date:
Provided that until the first Council is constituted, the Central Government shall, before, issuing any notification as aforesaid, consult an expert committee 9 consisting of three members to be appointed by the Central Government by notification in the Official Gazette.
15.(1) The Central Government may, after consultation with the Council, direct, by notification in the Official Gazette, that an architectural qualification granted by any university or other institution in any country outside India in respect of which a scheme of reciprocity for the recognition of architectural qualification is not in force, shall be a recognized qualification for the purposes of this Act or, shall be so only when granted after a specified date or before a specified date:
Provided that until the first Council is constituted the Central Government shall, before issuing any notification as aforesaid, consult the expert committee set up under the proviso to sub-section (2) of section 14.
(2) The Council may enter into negotiations with the authority in any State or country outside India, which by the law of such State or country is entrusted with the maintenance of a register of architects, for settling of a scheme of reciprocity for the recognition of architectural qualifications and in pursuance of any such scheme, the Central Government may, by notification in the Official Gazette, direct that such architectural qualification as the Council has decided should be recognized, shall be deemed to be a recognized qualification for the purposes of this Act, and any such notification may also direct that such architectural qualification, shall be also recognized only when granted after a specified date or before a specified date.10
16. Notwithstanding anything contained in sub-section (2) of section 14, the Central Government, after consultation with the Council, may, by notification in the Official Gazette, amend the Schedule by directing that an entry be made therein in respect of any architectural qualification.
17. Notwithstanding anything contained by any other law, but subject to the provisions of this Act, any recognized qualification shall be a sufficient qualification for enrolment in the register.
18. Every authority in India which grants a recognized qualification shall furnish such information as the Council may, from time to time, require as to the courses of study and examinations to be undergone in order to obtain such qualification, as to the ages at which such courses of study and examinations are required to be undergone and such qualification is conferred and generally as to the requisites for obtaining such qualification.
19.(1) The Executive Committee shall, subject to regulations, if any made by the Council, appoint such number of inspectors as it may deem requisite to inspect any college or institution where architectural education is given or to attend any examination held by any college or institution for the purpose of recommending to the Central Government recognition of architectural qualifications granted by that college or institution.
(2) The inspectors shall not interfere with the conduct of any training or examination, but shall report to the Executive Committee on the adequacy of the standards of architectural education including staff, equipment, accommodation;
training and such other facilities as 11 may be prescribed by regulations for giving such education or on the sufficiency of every examination which they attend.
(3) The Executive Committee shall forward a copy of such report to the college or institution and shall also forward copies with remarks, if any, of the college or institution thereon, to the Central Government.
20.(1) When upon report by the Executive Committee it appears to the Council-
(a) that the courses of study and examination to be undergone in, or the proficiency required from the candidates at any examination held by; any college or institution, or
(b) that the staff, equipment, accommodation, training and other facilities for staff and training provided in such college or institution, do not conform to the standards prescribed by regulations, the Council shall make a representation to that effect to the appropriate Government. (2) After considering such representation the appropriate Government shall forward it along with such remarks as it may choose to make to the college or institution concerned, with an intimation of the period within which the college or institution, as the case may be, may submit its explanation to the appropriate Government.
(3) On receipt of the explanation or where no explanation is submitted within the period fixed, then on the expiry of that period, the State Government, in respect of the college or institution referred to in clause (b) of sub-section (5), shall make its recommendations to the Central Government.
(4) The Central Government -
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(a) after making such further enquiry, if any, as it may think fit, in respect of the college or institution referred to in sub-
section (3), or
(b) on receipt of the explanation from a college or institution referred to in clause (a) of sub-
section (5), or where no explanation is submitted within the period fixed, then on the expiry of that period, may, by notification in the Official Gazette, direct that an entry shall be made in the Schedule against the architectural qualifications awarded by such college or institution, as the case may be, declaring that it shall be a recognized qualification only when granted before a specified date and the Schedule shall be deemed to be amended accordingly.
(5) For the purposes of this section, "appropriate government" means-
(a) in relation to any college or
institution established by an Act
of Parliament or managed,
controlled or financed by the
Central Government, the Central
Government, and
(b) in any other case, the State
Government."
21. The Council may prescribe the minimum standards of architectural education required for granting recognized qualifications by colleges or institution in India.
45. (1) The Council may, with the approval of the Central Government, (by notification in the official Gazette) make regulations not inconsistent with the provisions of this Act, or the rules made thereunder to carry out the purposes of this Act.
13(2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for -
(a) the management of the property of the Council;
(b) the powers and duties of the President and the Vice President of the Council;
(c) the summoning and holding of meetings of the Council and the Executive Committee or any other committee constituted under section 10, the times and places at which such meetings shall be held, the conduct of business thereat and the number of persons necessary to constitute a quorum;
(d) the functions of the Executive Committee or of any other committee constituted under section 10;
(e) the courses and periods of study and of practical training, if any, to be undertaken, the subjects of examinations and standards of proficiency therein to be obtained in any college or institution for grant of recognized qualifications;
(f) the appointment, powers and duties of inspector;
(g) the standards of staff, equipment, accommodation, training and other facilities for architectural education;
(h) the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations;
(i) the standards of professional conduct and etiquette and code of ethics to be observed by architects;
(j) any other matter which is to be or may be provided by regulations under this Act and in respect of which no rules have been made.
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(3). Every regulation made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulations shall thereafter have effect only in such modified from or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation."
7. From the aforesaid provisions, it is clear that the power is vested in the Central Government under section. 20 (4) of the Act to modify the schedule directing that an entry shall be made in the schedule against the Architectural qualifications awarded by such college or institution declaring that it shall be a recognized qualification only when granted before a specified date by notification in the Official Gazette.
8. The Bachelor Degree of Architecture awarded by every institution declared to be a University under section 3 of the University Grants Commissions Act, 1956 is the recognized qualification, as it is already included in the schedule under the Architects Act, 1972. Since the Central Government has declared the qualification granted by the University declared under Section 3 of the UGC Act, 1956 as 15 recognized qualification, the action of the Council requiring the petitioner - University to obtain prior approval is misconceived and beyond its scope or authority.
9. The provisions under sections 17, 18, 19, 21, 25 and 45 of the Architects Act, 1972 confer the power on the Council to recommend to the Central Government for declaration of recognized qualification to be included in the schedule. For the purpose of recommendation, the council is conferred with power to prescribe the standards of education, the courses and the periods of study and the standards of proficiency to be followed by an institution for grant of recognized qualification.
The object sought to be achieved by COA under the Act is to give recommendation to the Central Government for declaring architectural qualification imparted by an institution by notifying the same in the Official Gazette.
10. No provision under the Architects Act, 1972 provides requirement of prior approval from COA for establishment of an institution and for opening of Architectural course like other enactments, i.e. The Dentist Act, 1948 and the Indian Medical Council Act, 1956 where permission for establishment of new Dental College or Medical College respectively, is mandatorily required in view of Section 10-A of the aforesaid two Acts. No such provision is there in the 16 Architects Act, 1972. The right to establish or start a new course cannot be taken away or hampered by implication from the language employed in the Architects Act.
11. The Legislature has consciously enacted the AICTE Act, 1987, thereby conferring power u/s. 10(k) of the said Act on the All India Council of Technical Education to grant approval for establishing a new technical institution and for introduction of new courses or programme. Both the aforesaid Acts govern in their respective fields and there is no inconsistency in the provisions of the said Acts, inter se. In absence of any provision with regard to grant of approval for opening of course, under the Architects Act, 1972, the Legislature has consciously conferred power on AICTE under Section 10(k) of the AICTE Act, 1987. Since the power is conferred under AICTE Act, 1987 to grant approval for opening of new course it would be illogical and inconsistent to say that the COA is empowered by implication to grant prior approval under the provisions of Architects Act, 1972.
12. Neither the Architects Act, 1972 nor the Regulation made by COA provides prior approval for commencing an architecture course. Besides, the Council of Architecture Rules, 1973 provides standards of staff, equipment, accommodation, training and other facilities to be 17 provided and maintained by an institution as per Appendix-A, B and C thereof.
13. The form issued by the Council of Architecture (filed along with the Additional Affidavit and marked as Annexure-8) for making application for grant of approval, is not as per any regulation or Rules. The Council of Architecture Rules, 1973 defines the 'Form' under Rule 2(b) which provides that 'Form' means a form annexed to the rules. Such form, therefore, has been issued in clear violation of the aforesaid rules. In absence of any provision in Architects Act, 1972 and Rules made thereunder or even in the regulation, the Council of Architecture cannot force the Institutions to take prior approval for opening of Architecture Course (B. Arch.).
14. It is, therefore, clear from the analysis of the facts and law that the petitioner - University is not required to obtain prior approval from the Council of Architecture for opening of degree course in Architecture, i.e., B. Arch.
15. Now coming to the further prayer of the petitioner that it is also not required to obtain prior approval from the All India Council for Technical Education (AICTE) for opening of a degree course in Architecture, as already stated above, by Notification dated 7th April, 2006, the Government of India, in its Ministry of Human Resource Development 18 Department of Secondary and Higher Education, by exercise of its power under Section 20 (1) of University Grants Commission Act, 1956 and Section 20 (1) of the All India Council of Technical Education Act, 1987 directed the UGC and the AICTE to publicize the clarification mentioned in the said Notification for the information of the general public by appropriate means including, through their respective institutional website. The clarification made by the Government of India includes the following:-
"It is not pre-requisite for an institution notified as a 'Deemed to be University' to obtain the approval of the AICTE, to start any programme in technical or management education leading to an award, including degrees in disciplines covered under the AICTE Act, 1987. However, institutions notified as 'Deemed to be University' are required to ensure the maintenance of the minimum standards prescribed by the AICTE for various courses that come under the jurisdiction of the said Council. It is expected that the institutions notified as 'Deemed to be University' maintain their standards of education higher than the minimum prescribed by the AICTE."
16. In view of such notification of the Government of India referred to above, the petitioner - University is also not required to obtain prior approval from the AICTE for opening of degree course in Architecture.
17. Having come to the above conclusion, this Court finds that the letter dated 13.01.2011 under Annexure - 4 and letter dated 17.01.2011under Annexure - 6 issued by the 19 Council of Architecture are unsustainable. The said letters, therefore, stand quashed. Further, in view of the above conclusion, it is observed that the petitioner - University is not required to obtain prior approval for opening of degree course in Architecture (B. Arch.) either from the Council of Architecture (COA) or from the AICTE. But, however, the petitioner - University is required to maintain the standards of education as well as infrastructure for imparting the B. Arch. Course as per the norms prescribed in the Architects Act, Regulations and Rules framed thereunder.
18. In the result, therefore, the writ petition stands allowed with the direction and observation made above. There shall be no order as to costs.
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M.M. Das, J.
Orissa High Court, Cuttack.
April 8th, 2013/Biswal.
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