All India Council For Technical ... vs Council Of Architecture & Anr.
2011 Latest Caselaw 2610 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI

          W.P. (C) 4662/2007 & CM Nos. 8176 and 17643/2007 and 795/2008

                                                  Reserved on: May 2, 2011
                                                  Decision on: May 16, 2011

ALL INDIA COUNCIL FOR TECHNICAL
EDUCATION                                                ..... Petitioner
                           Through: Mr. Jatan Singh with
                           Mr. Ashish Kumar Srivastava, Advocates.

                  versus


 COUNCIL OF ARCHITECTURE & ANR                         ..... Respondents
                          Through: Mr. Naveen R. Nath with
                          Ms. Amrita Sharma and
                          Ms. Darpan KM, Advocates for R-1.
                           Mr. Ravinder Agarwal with
                           Mr. Girish Pande, Advocates for UOI.

  CORAM: JUSTICE S. MURALIDHAR


    1.    Whether Reporters of local papers may be
          allowed to see the judgment?                            No
    2.   To be referred to the Reporter or not?                   Yes
    3.   Whether the judgment should be reported in Digest?       Yes

                                JUDGMENT

16.05.2011

1. A short but interesting question of law concerning the interpretation of Section 3 (3)

(b) of the Architects Act, 1972 („AA‟) arises for consideration in this writ petition.

2. The Petitioner, All India Council for Technical Education („AICTE‟), is a statutory

body constituted by the All India Council for Technical Education Act, 1987 („the

AICTE Act 1987‟). Prior to the AICTE Act 1987, the AICTE was established by a

Resolution of the Government of India by a Notification dated 30 th November 1945.

The Council of Architecture („COA‟), Respondent No. 1 herein, is constituted under

Section 3 (1) AA. Section 3 (3) (b) AA provides that the COA will, inter alia, include

two persons nominated by the AICTE. At the time of the enactment of the AA, the

AICTE Act 1987 had not been enacted. Although after the enactment of the AICTE Act

the AICTE became a statutory body, no corresponding amendment was made to Section

3 (3) (b) AA. Nevertheless, up to the year 2006 the COA was accepting the nominations

of two members made by the AICTE. The Petitioner AICTE has set out in para 7.2 of

the writ petition the names of the nominated persons of the AICTE on the COA from

the years 1990-1993 and 2003-06. It is pointed out that in terms of Section 35 of the

Council of Architecture Rules, 1973 („COA Rules‟) one of three members of

Disciplinary Committee of the COA has to be from amongst the two members

nominated by the AICTE.

3. On 11th October 2006 the AICTE wrote to the COA nominating two members on the

COA. In response to the said letter on 20th December 2006 the COA informed the

AICTE that the nominations made by it were not in accordance with the provisions of

the AA and were legally invalid. It was stated that the nominations of the two members

by the AICTE were not acceptable to the COA. The Ministry of Human Resource

Development („HRD‟), Government of India, Department of Higher Education

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 nominations.

Therefore, the COA was called upon to invite two members nominated by the AICTE

for the forthcoming meeting of the COA to be held on 29th June 2007. When this

invitation was not forthcoming, the AICTE on 27th June 2007 filed the present writ

petition in which inter alia it sought the quashing of the decision dated 20th December

2006 of the COA and a direction to the COA not to hold a meeting on 29 th June 2007

without participation of the two members nominated by the AICTE. A mandamus was

also sought to the COA to accept the nominations made by the AICTE by its letter dated

11th October 2006.

4. On 27th June 2007 while directing notice to issue in this petition this Court passed the

following interim order:

"In the meantime, considering the facts and circumstances of the present case and the fact that the meeting of the Respondent No. 1 is fixed for 29th June 2007, at Mussoorie, the two nominated members/representatives of the Petitioner as specified in its letter dated 11th October 2006 are permitted to participate in the aforesaid meeting. Needless to state that the said participation by the representatives of the Petitioner shall be without prejudice to the rights and contentions of Respondent No. 1 as contained in its letter dated 20th December 2006."

5. As regards the meeting to be held on 21st December 2007 at Port Blair, an

application, CM No. 17643 of 2007, was filed in which the following order was passed

on 18th December 2007:

"By this application, the Petitioner has assailed an order/direction of Respondent No. 1 issued by letter dated 20th December 2006 whereby it has been directed that nomination of two members of the Council of Respondent No. 1 made by the Petitioner is not in accordance with the provisions of the Architects Act, 1972. This issue is pending consideration in the main writ petition. Based on this order, the Respondent No. 1 denied the nomination of two persons made by the Petitioner on the Council of Respondent No. 1. These members were, therefore, not invited to the meeting of Respondent No. 1 which was proposed to be held on 29th June 2007. Consequently, interim directions were sought in respect of the participation of these members nominated by the Petitioner in such meeting. By an order passed on 27th June 2007, this Court had permitted the two nominated members/representatives of the Petitioner as specified in its letter dated 11th October 2006 to participate in the meeting of the Council of Respondent No. 1 in June 2007.

This application has been filed pointing out that next meeting of the Council of Architecture is proposed to be held on 21st December 2007 at Port Blair (Andaman Nicobar), and that no notice of meeting has been received by the members nominated by the Petitioner.

A prayer has been made in this application that pending consideration of the issue in the writ petition, the Respondent No. 1 is bound to permit the

nominees of the Petitioner to participate in the proposed meeting.

Having heard learned counsel for the parties and having perused the earlier orders passed by this Court, I deem it in the interest of justice to direct that the two nominated members/representatives of the Petitioner, as specified in its letter dated 11th October 2006, shall be permitted to participate in the meeting of the Council of Respondent No. 1 proposed to be held on 21st December 2007 at Port Blair.

Such participation shall be without prejudice to the rights and contentions of both the parties and the outcome of the adjudication in the present writ petition.

This application is disposed of in the above terms.

Dasti to both the parties."

6. It is submitted by Mr. Jatan Singh, learned counsel appearing for the AICTE that the

stand taken by the COA was untenable in law. Referring to the definition of „technical

education‟ under Section 2 (g) of the AICTE Act, 1987 Mr. Singh submitted that

architecture was one of the disciplines included in technical education. The provisions

of both the AA as well as the AICTE Act, 1987 recognize the need for inter-disciplinary

participation in the Executive Committees of both the COA and the AICTE. For

instance under Section 3 (4) (m) (vi) of the AICTE Act one representative of the COA is

nominated by the central government to be on the AICTE. It is further submitted that in

practice the nominations made by the AICTE to the COA had been accepted by the

COA till 2006. Relying on the decisions of the Supreme Court in 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, Thiruvanathapuram, Kerala State (2000) 5 SCC 231 and Bharathidasan

University v. All India Council for Technical Education (2001) 8 SCC 676 it is

submitted that the Supreme Court had upheld the validity of the AICTE Act. The very

object of setting the AICTE was with a view to "the proper planning and coordinated

development of the technical education system throughout the country" and since

architecture was part of technical education, right of the AICTE to nominate two

persons to be on the COA by Section 3 (3) (b) AA cannot be taken away on a technical

ground.

7. Appearing for the COA Mr. Naveen Nath, learned counsel submitted that it is not for

the Court to supply an obvious omission in the statute, i.e the AA. The legislative intent,

if any, should be manifest in express words of the statute. Placing reliance on the

decisions in Unique Butyle Tube Industries (P) Limited v. U.P. Financial Corporation

(2003) 2 SCC 455, Raghunath Rai Barkeja v. Punjab National Bank (2007) 2 SCC

230 and Union of India v. Priyankan Sharan (2008) 9 SCC 15, it is emphasized that

"while interpreting a provision the Court only interprets the law and cannot legislate it.

If a provision of law is misused and subjected to the abuse of process of law, it is for the

legislature to amend, modify or repeal it, if deemed necessary." In other words, the

legislative omissions cannot be supplied by judicial interpretative process.

8. The above submissions have been considered. Section 2 (g) of the AICTE Act, 1987

defines „technical education‟ to mean programs of education, research and training in

engineering technology, architecture, town planning, management, pharmacy and

applied arts and crafts and such other programs or the areas as the central government

may, in consultation with the council by notification in the Official Gazette declare.

Section 10 of the AICTE Act 1987 states that it shall be the duty of the Council

(AICTE) to "take all such steps as it may thinks fit for ensuring coordinated and

integrated development of technical education and maintenance of standards". Further

the AICTE has been entrusted with various functions for the purpose of discharging of

its statutory functions under the AICTE Act, 1987. The AICTE Act, 1987 does not

contain a savings clause in regard to the AICTE that was constituted under the

Resolution dated 30th November 1945 and was functioning as such at the time the

AICTE Act came into force. What is obvious is that there was no hiatus with the

enactment. The AICTE continued but as a statutory body under the AICTE Act, 1987.

The failure to amend the AA in 1972 to reflect the change in the character of the AICTE

as a statutory body after the enactment of the AICTE Act 1987 is perhaps an omission.

However, it is not possible to agree with learned counsel for Respondent No. 1, that this

omission is reflective of the legislative intent not to have any representation of the

AICTE on the COA. If indeed that were the legislative intent, then Section 3 (3) (b)

ought not to have remained; Section 3 (3) (b) AA would have been repealed.

9. In Raghunath Rai Bareja v. Punjab National Bank (supra), the Supreme Court

explained that resort can be had to the legislative intent for the purpose of interpreting a

provision of law when the language employed by the legislature is doubtful or

ambiguous or leads to some absurdity. However, when the language is plain and

explicit, and does not admit of any doubt, "the Court cannot by reference to an assumed

legislative intent expand or alter the plain meaning of an expression employed by the

legislature". The key factor is, therefore, the legislative intent. Examining the scheme of

the AA as a whole, and Section 3 in particular, the clear intent that is manifest is that the

COA has to have a representation of the AICTE. This is apparent from the plain

language of Section 3 (3) (b) AA. The fact that on the date of enactment of the AA the

AICTE was a body constituted by a notification and subsequently became a statutory

body will not make any difference when the real purpose and intent of Section 3 (3) (b)

AA is understood. Further, there is only one AICTE before and after the enactment of

the AICTE Act, 1987. There is no scope for confusion on that score. Even as a matter of

practice, the COA correctly understood and till 2006 accepted the nominations of two

members of the AICTE to the COA. The AICTE referred to in Section 3 (3) (b) AA

should be understood to refer to the AICTE as constituted by the AICTE Act.

10. The above conclusion of this Court is consistent with the law relating to supply of

an obvious gap in the legislation where it is absolutely necessary and where the failure

to so interpret the provision will result in an absurdity that would defeat the legislative

intent. The rule is that "all the parts of a statute or section must be construed together

and every clause of a section should be construed with reference to the context and

other clauses thereof so that the construction to be put on a particular provision makes a

consistent enactment of the whole statute". The second requirement is that "the literal

construction of a particular clause leads to manifestly absurd or anomalous results

which could not have been intended by the legislature". (see Unique Butyle Tube

Industries (P ) Limited v. U.P. Financial Corporation). Accepting the plea that the

AICTE mentioned in Section 3 (3) (b) AA can only mean the AICTE constituted by the

resolution dated 30th November 1945 and not AICTE constituted by the AICTE Act,

1987 would indeed lead to absurd results not intended by the legislature which enacted

the AA. On both counts, therefore, the contention of the AICTE merits acceptance.

11. For the aforementioned reasons, the impugned communication dated 20th December

2006 from the COA to the AICTE is set aside. The COA will hereafter accept

nominations made by the AICTE to the COA. The writ petition and the pending

applications are disposed of in the above terms, however, with no order as to costs.

S. MURALIDHAR, J MAY 16, 2011 rk