NOTE FOR ENGINEERS – Actions of COA

	Consulting Engineers Association of India (CEAI)
	Indian Association of Structural Engineers (IAStructE)
	Association of Consulting Civil Engineers (India) (ACCE(I))
	Engineering Council of India (ECI)

Dear Fellow Engineers,

Your attention is drawn to some of the happenings on account of the actions initiated by the Council of Architecture (COA) which are restrictive in nature and infringe and violate the fundamental rights guaranteed to all citizens of India by the Constitution vide Article 19.

CEAI took the lead in its Governing Council Meeting held on 31st May 2013 in New Delhi to discuss the Public Notice dated 20th May 2013 issued by the Council of Architecture.

Mr. Subash C Mehrotra, President, Indian Association of Structural Engineers (IAStructE) who is also a Governing Council Member of CEAI was also present. Dr. Uddesh Kohli, Chairman, Engineering Council of India (ECI) was also invited to the meeting. In that and subsequent meetings of the representatives of the associations, it was noted that the Public Notice dated 20-05-2013 by the COA sought to mislead by making assertions which sought to misguide and that the COA, by an illegal exercise of power, attempted to overreach the proceedings sub judice before the Hon’ble High Court of Delhi in W.P.(C) No. 934 of 2012.

It was also noted that the COA’s Public Notice asserts an erroneous interpretation of the Architects Act, 1972. The Association of Consulting Civil Engineers (India) [ACCE(I)] also joined the group later on when apprised of the matter. The Institution of Engineers (India) was also apprised and they agreed to the approach adopted and were also represented in the Press Conference held on 12th September 2013. The Press Release is attached at Annexure-A.

It was therefore decided in the meetings of the representatives of the associations that action be initiated to issue a legal notice to the Council of Architecture, hold a Press Meet and send representation to the concerned Ministries – viz. Ministry of Corporate Affairs and Ministry of Human Resource Development with copies to the Ministry of Law and Justice. It was also decided that legal proceedings be initiated or that the association implead in existing court cases. In order to meet the expenses for all these the associations and some organisations contributed the initial funds to get the action started.

To put the matter in its correct perspective the findings of the associations and based on legal opinions received the issues are explained hereinafter.

The relevant parts of Article 19 of the Constitution of India, are reproduced below for ready reference.

“Right to Freedom” 

19 (1) All citizens shall have the right-

(g)to practice any profession, or carry on any occupation, trade or business,

which is to be read along with

(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, –

• the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or

1. the carrying on by the State, or by a corporation owned or controlled by the State, or any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

The Council of Architecture by their actions have been misinterpreting and misrepresenting the Architects Act, 1972 although the various High Courts have repeatedly held that the Architects Act, 1972 is “An Act to provide for the registration of architects and for matters connected therewith”; that it merely regulates the use of title of ‘architect’, which applies only to a person registered under the said Act.

In the Statement of Objects and Reasons of the Architects Act, 1972, para 3 clearly states:

“The legislation protects the title ‘architect’ but does not make the design, supervision and construction of buildings as an exclusive responsibility of architects. Other professionals like engineers will be free to engage themselves in their normal vocation in respect of building construction works provided that they do not style themselves as architects”.

The High Courts have further held that

“whereas unlike statutory enactments regarding Advocates, Chartered Accountants, Company Secretaries, etc. which restrict there under, the Architects Act does not restrict practice of design, construction and supervision of buildings to Architects registered under the said Act”.

The Hon’ble Bombay High Court had held,

In the above circumstances we are not inclined to accept the case of the petitioners that the Architects Act restricts practice of architect to persons registered under the said Act. Therefore, qualified engineers who cannot themselves call as Architects may still be free to do the work which is ordinarily done by the Architects and it would be open for the Corporations to regulate licensing in favour of such qualified engineers.

(Writ Petition No. 4692 of 1998 – The Indian Institute of Architects v/s Pimpri Chinchwad Municipal Corporation and another). Some more court judgments were listed in CEAI’s ViewPoint of December 2013. An updated list is given in “List of Court Cases”.

In one of their actions, the Council of Architecture had issued a Public Notice dated 20thMay 2013 (copy enclosed for ready reference) which once again harps on the same.

To clarify the correct position in this behalf it is reiterated that the Architects Act, 1972 was enacted merely to provide for the registration of architects and for matters connected therewith. The said Act does not in any manner purport to control or regulate or even define the profession of architects. Unlike the statutes that regulate other professions like the Advocates Act, 1961, the Chartered Accountants Act 1949, the Indian Medical Council Act, 1956, etc., the Architects Act 1972 does not contain any prohibition or restriction against a person not registered as an architect providing services like planning, designing of buildings, drawings, supervision, etc. The practice of architecture is not restricted to registered architects under the Architects Act, 1972. What is prohibited is only the use of the title ‘architect’ and practice in the style of ‘architect’.

Even the National Building Code of India, 2016 issued by the Bureau of Indian Standards recognizes this fact whilst setting out the qualification and competence of professionals like architects, engineers, structural engineers, supervisors, town planners, land architect, urban designer, engineers for utility services, etc. Its earlier edition of 2005 had also spelt out the same.

Thus, the practice of architecture by any person is not prohibited by the Architects Act. Consequently, it is not necessary for any limited company or LLP to remove from its objects in its Memorandum of Association any clauses which show the object or intent to practice architecture. In fact, the Architects Act does not even attempt to define the work or practice of architecture. However, this would cover activities like planning, designing and drawing. All these activities can also be carried out by persons other than registered architects, if they are otherwise qualified and competent to do so.

Any criminal prosecution against the limited companies or LLPs for retaining the object clauses providing for the object or purpose of carrying out architectural services like planning, designing, drawing, etc. as threatened in the said Public Notice, would be clearly without any legal basis or would amount to abuse of the process of law. Again, contrary to what is stated in the Public Notice, a foreign architect or consultant not registered with COA can be appointed for architectural works with the prior permission of the Central Government. The only prohibition being that such foreign architect or consultant cannot use the title and style of ‘architect’ in India.

The Supreme Court of India in CA Nos. 1819 of 2020 [Arising out of SLP(C) No 18752 of 2014)] with CA Nos. 1820-1822 of 2020 [Arising out of SLP(C) Nos. 25524-25526 of 2014] delivered its judgment on 17th March 2020 set at rest the misinterpretation being perpetuated by COA over the years in case after case that only architects could practice architecture. COA had been and is pressuring and misleading institutions, local bodies, public sector units and the like inspite of the clear verdict.

Quoting from that:

Questions before this Court

25. The present case raises two questions that this Court must answer:

• Question 1: Does Section 37 of the Architects Act prohibit individuals not registered as architects under the Architects Act from practicing the activities undertaken by architects, including the design, supervision and construction of buildings; 

The honourable Justices come to the conclusion that:

33 For the above reasons, we affirm the decision of the High Court of Allahabad on the first question and hold that Section 37 of the Architects Act does not prohibit individuals not registered under the Architects Act from undertaking the practice of architecture and its cognate activities. (emphasis added)

And their judgment given is

39. For the reasons stated above, in response to the first question we affirm the decision of the High Court of Allahabad and hold that Section 37 of the Architects Act does not prohibit individuals not registered under the Architects Act from undertaking the practice of architecture and its cognate activities. (emphasis added)

The COA has however, vide its Public Notice Ref.No.CA/15/2020/AE dated 27th May 2020, not presented the real conclusion of the Hon’ble Supreme Court but instead quoted another part of the judgment which merely reiterates the obvious issue that “Section 37 prohibits unregistered individuals from designating themselves or referring to themselves as architects….“. The real conclusion which is relevant is however not regarding the use of title of “architect” but the fact that those not registered can also provide architectural services and cognate activities. The relevant portion of the Supreme Court judgement has been quoted above.

The COA is also pursing to amend the Architects Act 1972 so that an architect is shown to be able to perform all activities in addition to architectural aspects of planning and beautification. They are attempting to project that an architect can perform the functions related to the conceptualisation and designs of the structure, and services pertaining to mechanical, electrical, and all other services. The National Building Code of India 2016 very clearly enumerates as to what an ‘Architect’ is deemed to be competent to do. Engineers therefore need to educate the law makers and authorities of the truth regarding the limitations of competency of an architect.

In fact, by proposing and propounding amendment to the Architects Act 1972, the COA is violating the directive given in the judgment dated 10th November 2014 of the Calcutta High Court in WP 1943 (W) of 2014

“43. The COA, without doubt, is a creature of the Act. Subservience of the COA to the Govt. follows from the scheme of the Act. A power to order disqualification has been conferred on the Govt. by section 20 of the Act cannot be usurped by the COA. A creature of a statute cannot act in a manner to bring about a result desired by it unless the subject statute empowers it to do so. Also, if power is given under a statute to do a certain thing in a certain way., the thing must be done in that way or not at all. These propositions are too well-settled to require reference to any authority. If indeed what the COA recommends has substance, it is for the Govt. to remedy the malaise in the manner ordained by section 20 but not otherwise. Introduction of the concept of the test to test the ability of the petitioner to have her name registered is foreign insofar as the statute is concerned. It seems, the COA has made an attempt to rise higher than its source and that is impermissible for a creature of a statute.

….

46. A word or two about the misadventure of the COA has to be said before I part.

However, pious and laudable the intention of the COA in maintaining basic standards of architectural education might be, it ought to realize that in the guise of larger public interest it cannot bypass or overlook the statute by which it was created.”

CEAI is in constant communication with other associations representing engineers to take this matter head on and once and for all put an end to the malicious intents and dictates of the COA. For this your association has requisitioned necessary legal assistance and has been engaged in issuing legal notices, sending representations to Ministries to put the facts before the authorities, filing and impleading in existing court cases filed by others.

In the interest of safety, health and well-being of the society and the environment, engineers are advised to counsel the Project Owners (the main client):

• To appoint only qualified and competent engineers for the planning, design and execution of their buildings and other projects.

• That Engineers should be appointed directly by the Client and not through an ‘architect’ since that leads to subjugation of the Engineering requirements. The independence to take decisions is necessary and imperative for the safety, stability and robustness of the structure and the systems. The whims and fancies of an ‘architect’ cannot decide those since they may not always understand their implications.

To take up the issues with full force for the rights of the engineering fraternity SOLIDARITY is essential and so are FUNDS.

Please send in your contribution to CEAI.

The contribution by you and the expenses incurred by CEAI for these are exempt from IT.

Issued by Associations and Institutions

representing the interests of the Professional Engineers

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