Delhi High Court
Council Of Architecture vs All India Council For Technical ... on 7 September, 2011
Author: Dipak Misra
Bench: Chief Justice, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 19th August, 2011
% Judgment pronounced on: 7th September, 2011
+ LPA No.597/2011
Council of Architecture ..... Appellant
Through: Mr.Dhruv Mehta, Sr.Advocate with
Mr.Naveen R. Nath & Ms.Hetu
Arora, Advs.
Versus
All India Council for Technical Education & Anr. ..... Respondents
Through: Mr.Amitesh Kumar, Adv. for Resp. 1
Mr.Sushil Kumar, CGSC with
Mr.Alok Shukla, Adv. for Resp.2
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1 Whether reporters of the local papers be allowed to see the judgment? Yes
2 To be referred to the Reporter or not? Yes
3 Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Being dissatisfied with the order dated 16th May, 2011 passed by the
learned Single Judge in WP (C) No. 4662/2007, the Council of Architecture
(COA), the appellant herein, has preferred the intra-Court appeal under
Clause X of the Letters Patent.
2. Filtering the unnecessary details, the factual matrix that is required
to be exposited is that the first respondent, All India Council for Technical
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Education (AICTE), a statutory body constituted under the All India
Council for Technical Education Act, 1987 (for short „the 1987 Act‟),
invoked the jurisdiction of this Court under Article 226 of the Constitution
of India being grieved by the communication dated 20th December, 2006
made by the COA informing to the AICTE that the nominations made by it
were not in accordance with the provisions of the Architects Act, 1972 (for
short „the 1972 Act‟) and were legally invalid and hence, the said
nomination of two members by the AICTE was not acceptable to the COA.
3. The Department of Higher Education in the Ministry of Human
Resource Development (HRD), Government of India, supported the stand
of the AICTE and, on 14th June, 2007, wrote to the COA stating that its
Executive Committee did not have any authority to reject the nomination.
The COA was called upon to invite two members nominated by the AICTE
for the forthcoming meeting by the COA to be held on 29th June, 2007 but
when no invitation was forthcoming, the AICTE was compelled to knock
at the doors of the court for seeking a writ of certiorari for quashment of
the decision / communication dated 20th December, 2006 of the COA and
for issue of a command to the COA not to hold a meeting on 29th June,
2007 without the participation of two members of the AICTE. A writ of
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mandamus was also sought directing the COA to accept the nominations
made by the AICTE by its letter dated 11th October, 2006.
4. Before the writ court, it was contended by the AICTE that if the
dictionary clause pertaining to technical education occurring in Section
2(g) of the 1987 Act is appropriately appreciated and further if the scheme
of things is taken into consideration in accordance with the practice, it
would be quite vivid that the AICTE has the power and authority to
nominate two members. A contention was canvassed that the Apex Court
has upheld the validity of the 1987 Act. In support of the said stand,
reliance was placed on State of Tamil Nadu v. Adhiyaman Educational &
Research Institute, (1995) 4 SCC 104, Jaya Gokul Educational Trust v.
Commissioner & Secretary to Government Higher Education Department,
Thiruvananthapuram, Kerala State & Anr., (2000) 5 SCC 231 and
Bharathidasan University v. All India Council for Technical Education,
(2001) 8 SCC 676.
5. The stand put forth by the AICTE was resisted by the COA on the
foundation that the legislative intendment, as is clear from the language
employed in Section 3(3)(b) of the 1972 Act, does not permit nomination by
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the AICTE constituted under the 1987 Act and the legislative intention
being clear, the court should not interpret the provision in a way which
would tantamount to modifying the language of the statute. To buttress
the said submission, the decisions in Unique Butyle Tube Industries (P)
Limited v. U.P. Financial Corporation, (2003) 2 SC 455, Raghunath Rai
Bareja v. Punjab National Bank, (2007) 2 SCC 230 and Union of India v.
Priyankan Sharan, (2008) 9 SCC 15 were commended to.
6. The learned Single Judge, analyzing the provisions of both the
communications, the previous resolution dated 30th November, 1945 which
was effective till the 1987 Act came into force, the absence of real change in
character of the AICTE and taking aid of the concept of purposive
interpretation and avoidance of an interpretation leading to absurdity,
quashed the communication dated 20th December, 2006 from the COA to
the AICTE and directed that hereinafter the COA shall be bound to accept
the nominations sent by the AICTE.
7. Mr.Dhruv Mehta, learned senior counsel, criticizing the order of the
learned Single Judge, has contended that the AICTE was established under
a resolution of the Government of India dated 30th November, 1945 in
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exercise of the executive power of the State but the AICTE that has come
into existence under the 1987 Act has no power to nominate the members
for COA as that would cause violence to the language employed in the
1972 Act. The learned senior counsel would urge that had the legislature
really so desired, it would have amended the provision contained in the
1972 Act and in the absence of any amendment, the Court does not have
the jurisdiction to provide the causus omissus but the learned Single Judge
has precisely done so which makes his order absolutely indefensible.
8. The learned senior counsel had further urged that the 1987 Act does
not have the repeal and saving provision from which it can be construed
that the pre-existing AICTE as established by the executive order of 30th
November, 1945 is saved. On the contrary, by 28th March, 1988, the date
on which the 1987 Act came into force, the first Council under the 1987 Act
was constituted under Section 3 of the said Act and, therefore, a significant
hiatus had come into being by virtue of the commencement of the 1987 Act
but as the learned Single Judge has opined that there was no hiatus, a
grave error has crept into the decision. It is his further submission that the
provisions of the 1972 Act cannot be interpreted by relying on the 1987 Act
LPA No.597/2011 page 5 of 13
inasmuch as the legislative intention has to be ascertained within the four
corners of the relevant legislation in issue.
9. The learned counsel for the respondents, in support of the stand of
the AICTE, have urged that the contentions raised by the COA are
absolutely on the foundation of a total artificial interpretation of the 1972
Act and, hence, unsustainable. It is canvassed by them that the learned
Single Judge has rightly adverted to the concept of „technical education‟
under the 1987 Act and, therefore, the submission that the legislative
intention can only be gathered from the 1972 Act does not stand to reason.
That apart, it is highlighted that the COA has been accepting the
nominated members after the 1987 Act came into force but for the first
time, a cavil was raised in 2006 on an innovative plea and on an
unacceptable foundation.
10. It is an undisputed fact that the All India Council for Technical
Education was established for the first time by a resolution of the
Government of India on 30th November, 1945. Section 3(3) of the 1972 Act
provides that the Council shall consist of certain categories of members.
LPA No.597/2011 page 6 of 13
For the purpose of completeness, it is appropriate to reproduce Section 3(3)
in entirety -
"(3) The Council shall consist of the following
members, namely: -
(a) five architects possessing recognised
qualifications elected by the Indian Institute of
Architects from among its members;
(b) two persons nominated by the All India Council
for Technical Education established by the
Resolution of the Government of India in the late
Ministry of Education No.F.16-10/44-E.III, dated
the 30th November, 1945;
(c) five persons elected from among themselves by
heads of architectural institutions in India
imparting full time instruction for recognised
qualifications:
(d) the Chief Architects in the Ministries of the
Central Government to which the Government
business relating to defence and railways has
been allocated and the head of the Architectural
Organisation in the Central Public Works
Department, ex officio;
(e) one person nominated by the Central
Government;
(f) an architect from each State nominated by the
Government of that State;
(g) two persons nominated by the Institution of
Engineers (India) from among its members; and
LPA No.597/2011 page 7 of 13
(h) one person nominated by the Institution of
Surveyors of India from among its members."
Explanation. - For the purposes of this sub-section, -
(a) "Institution of Engineers (India)" means the
Institution of Engineers (India) first registered in
1920 under the Indian Companies Act, 1913 and
subsequently incorporated by a Royal Charter in
1935.
(b) "Institution of Surveyors of India" means the
Institution of Surveyors registered under the
Societies Registration Act, 1860."
11. On a perusal of the aforesaid provision, it is perceptible that the
provision clearly lays down who shall be the councilors. It also defines
what is meant by „Institution of Engineers (India)‟ and „Institution of
Surveyors of India‟. It also provides that two persons nominated by
AICTE, which has been established by the resolution of the Government of
India in the late Ministry of Education No.F.16-10/44-E.III, dated 30th
November, 1945, shall be the members. What is contended by Mr.Mehta is
that the AICTE, as has been referred to under Section 3(3)(b), only refers to
the AICTE established by the Resolution and, hence, it cannot be construed
to convey the meaning that it is the AICTE established under the 1987 Act.
The learned senior counsel would emphasise that the language of the
LPA No.597/2011 page 8 of 13
statute being clear and unambiguous, the golden rule of literal
interpretation should be adopted.
12. In this context, we may profitably refer to the decision in Nasiruddin
and others v. Sita Ram Agarwal, (2003) 2 SCC 577 wherein the Apex
Court has opined thus:
"37. The court‟s jurisdiction to interpret a statute can
be invoked when the same is ambiguous. It is well
known that in a given case the court can iron out the
fabric but it cannot change the texture of the fabric. It
cannot enlarge the scope of legislation or intention
when the language of the provision is plain and
unambiguous. It cannot add or subtract words to a
statute or read something into it which is not there. It
cannot rewrite or recast legislation. It is also necessary
to determine that there exists a presumption that the
legislature has not used any superfluous words. It is
well settled that the real intention of the legislation
must be gathered from the language used...."
13. In Raghunath Rai Bareja (supra), the Apex Court referred to the
decision in Hiralal Rattanlal v. State of U.P. & Anr., AIR 1973 SC 1034
wherein it has been held that in construing a statutory provision, the first
and foremost rule of construction is the literary construction. All that the
court has to see at the very outset is what does that provision say. If the
provision is unambiguous and if from that provision the legislative intent
LPA No.597/2011 page 9 of 13
is clear, the court need not call into aid the other rules of construction of
statutes. The other rules of construction of statutes are called into aid only
when the legislative intention is not clear. After referring to the said
decision, their Lordships proceeded to state as follows:
"58. We may mention here that the literal rule of
interpretation is not only followed by judges and
lawyers, but it is also followed by the layman in his
ordinary life. To give an illustration, if a person says
"this is a pencil", then he means that it is a pencil; and it
is not that when he says that the object is a pencil, he
means that it is a horse, donkey or an elephant. In
other words, the literal rule of interpretation simply
means that we mean what we say and we say what we
mean. If we do not follow the literal rule of
interpretation, social life will become impossible, and
we will not understand each other. If we say that a
certain object is a book, then we mean it is a book. If we
say it is a book, but we mean it is a horse, table or an
elephant, then we will not be able to communicate with
each other. Life will become impossible. Hence, the
meaning of the literal rule of interpretation is simply
that we mean what we say and we say what we mean."
[Emphsis supplied]
14. The submission of Mr.Mehta, learned senior counsel, is that as the
language employed in the 1972 Act is clear and unambiguous, the literal
rule of interpretation should apply. His emphasis is on the fact that the
AICTE, that was in existence because of resolution dated 30th November,
1945, could alone nominate the two members and it has nothing to do with
LPA No.597/2011 page 10 of 13
the character or the status or transformation of the AICTE by the 1987 Act.
On a reading of said provisions, we are of the considered opinion that the
statutory intention of the legislature in the year 1972 was absolutely clear
and unambiguous that in the Council of Architecture constituted under
Section 3 of the 1972 Act, there shall be two nominated members of the All
India Council for Technical Education. The 1987 Act defines the „Council‟
under Section 2(b) to mean the All India Council for Technical Education
established under Section 3. Section 3 provides how the Council shall be
established and who shall be the members of the AICTE. The heart of the
matter is whether the AICTE, which has come into existence by virtue of
the 1987 Act, would lose its character and the role ascribed to it under
other statutes wherein it has been referred to as the AICTE established
under the Resolution dated 30th November, 1945. In this context, we may
fruitfully reproduce a passage from Bharathidasan University (supra):-
"....It is hard to ignore the legislative intent to give
definite meaning to words employed in the Act and
adopt an interpretation which would tend to do
violence to the express language as well as the plain
meaning and patent aim and object underlying the
various other provisions of the Act. Even in
endeavouring to maintain the object and spirit of the
law to achieve the goal fixed by the legislature, the
courts must go by the guidance of the words used and
LPA No.597/2011 page 11 of 13
not on certain preconceived notions of ideological
structure and scheme underlying the law. In the State
of Objects and Reasons for the AICTE Act, it is
specifically stated that AICTE was originally set up by a
government resolution as a national expert body to
advise the Central and State Governments for ensuring
the coordinated development of technical education in
accordance with approved standards was playing an
effective role, but, "however, in recent years, a large
number of private engineering colleges and
polytechnics have come up in complete disregard of the
guidelines, laid down by the AICTE" and taking into
account the serious deficiencies of even rudimentary
infrastructure necessary for imparting proper education
and training and the need to maintain educational
standards and curtail the growing erosion of standards
statutory authority was meant to be conferred upon
AICTE to play its role more effectively by enacting the
AICTE Act."
[Underlining is ours]
We have reproduced the aforesaid passage only to highlight that the
Apex Court has referred to the birth of the AICTE under a Government
resolution and its transformation to a statutory body.
15. In our considered opinion, if the submission of the learned senior
counsel for the appellant is accepted, it would lead to total absurdity and
anomaly. Section 3 of the 1972 Act clearly stipulates who shall be the
members of the Council. Two nominated members of the AICTE are to be
the members of the COA. The AICTE is in existence. It has been brought
LPA No.597/2011 page 12 of 13
into existence under a statute. The said institution presently is governed
by the provisions of the statute. We really fail to appreciate how solely
because on earlier occasion it was established by a resolution and presently
it has become a statutory institution, it would lose its character. On the
contrary, if the submission of Mr. Mehta is accepted, the interpretation
would usher in an absurd situation. In M. Pentiah and others v. Muddala
Veeramallappa and others, AIR 1961 SC 1107, it has been laid down that it
is a well known principle of interpretation of statutes that a construction
should not be put upon a statutory provision which would turn it into
manifest absurdity or futility, palpable injustice, or absurd inconvenience
or anomaly. The said principle has been reiterated in American Home
Products Corporation v. Mac Laboratories Pvt. Ltd. and another, AIR
1986 SC 137. Thus, the interpretation placed by the learned senior counsel
for the appellant is absolutely unacceptable and we repel the same.
16. Consequently, the appeal, being sans substance, stands dismissed
without any order as to costs.
CHIEF JUSTICE
SEPTEMBER 7, 2011 SANJIV KHANNA, J.
Kapil/dk LPA No.597/2011 page 13 of 13