HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Writ Petition No.6588/2013

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1 1 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Association of Civil Engineers of Madhya Pradesh (Bhopal Unit) Versus State of Madhya Pradesh and another Petitioner..Respondents CORAM Hon. Shri Justice A.M.Khanwilkar, Chief Justice Hon. Shri Justice K.K. Trivedi Whether approved for reporting? Yes Shri Siddharth Gupta, Advocate for the petitioner. Shri Sanjay Dwivedi, Government Advocate for the respondents/state. O R D E R ( ) Per A.M. Khanwilkar, Chief Justice (Oral): This petition takes exception to Rule 26 of the Madhya Pradesh Bhumi Vikas Rules, 2012, being ultra vires Article 14, 19 and 21 of the Constitution of India and also repugnant to various provisions of the National Building Code, Indubitably, rule 26 of the Rules of 2012 is an enabling provision empowering the Authority to issue licences to the Structural Engineers, Engineers, Supervisors and Town Planner, who possess the minimum qualifications as laid down in sub rule (2). Sub rule (2) provides for qualification prescribed for grant of licence to an Engineer etc. Sub rule (3) envisages mechanism to be followed for grant of licence and sub rule (4) obligates the Authority to maintain a register in respect of persons to whom licence is issued or renewed. The relevant portion of Rule 26 with which we are concerned reads thus :-

2 2 26. Licensing of Engineer, etc.-(1). (9) An Architect or a licensed Structural Engineer/Engineer/Supervisor/Town Planner shall be competent to perform the duties indicated hereinbelow :- (A) Architect - Competence An Architect who is registered with the council shall be competent to carryout work related to the building and shall be entitled to submit :- all building irrespective of size and height; (b) structural details and calculations for residential buildings on plot upto 500 square meters and upto three storeys or 11 meters in height; (c) (d) certificate of supervision and completion of all buildings; all plans and related permission for area upto 4 hectare; and land area upto 4 (B) Structural Engineer Competence The licensed Structural Engineer shall be competent to carry out the work relating to permission of building, and shall be entitled to submit :- (i) all plans and residential buildings on plots upto 500 Sq.m. and upto three storeys or 11 m in height. (ii) The structural details and calculation for all buildings; (iii) Certificate of supervision and completion of all buildings; (iv) All plans and related permission for area upto one hectare; (v) Certificates of land area upto one hectares. (C) Engineer Competence The licensed Engineer shall be competent to carry out the work related to the building as given below and shall be entitled to submit :- (i) all plans and residential building on plot upto 300 sq.meter and upto two storeys or 7.5 meter in height. (ii) Structural details and calculation for all buildings on plots upto 500 sq.m. and height upto four storeys (15 m); (iii) (iv) Certificate of Supervision and completion for all buildings; All plans and related permission for area upto 1 hectare; and (v) Certificate of land area upto 1 (D) Supervisor Competence- The licensed Supervisor shall be entitled to submit :- (i) all plans and related permission for residential buildings on plots upto 200 sq.m. and upto two storeys or 7.5 meters height;

3 (ii) 3 certificate of buildings in (i) above. (E) Town Planner Competence The licensed Town Planner shall be entitled to submit :- related permission for development irrespective of the size of land; and (b) certificate of land as in (a) above. (F) Group or Agency When an agency or group of qualified architects, engineers, town planners is practicing, then the qualification and competence of work shall be equivalent to the highest competency of individual in the group or agency. (emphasis supplied) 3. With reference to the efficacy of sub rule (9) of Rule 26, the petitioner has delineated the issues of discriminatory treatment meted out to Civil Engineers. It may be useful to reproduce the said chart which reads thus :- S.No. Details of Rules 1. Rule 26- Bhumi Vikas Rules Rule 26 Bhumi Vikas Rules 1984 Architect Civil Engineer Comments all building irrespective of size and height; related area upto 4 hectare; and land area upto 4 hectare all building irrespective of size and height; residential building on plot upto 300 sq. meter and upto two storeys or 7.5 meter in height; related area upto 1 hectare; and land area upto 1 residential building on plot upto 300 sq. meter and upto two storeys or 7.5 meter Thus there has been apparent discrimination between Architect and Civil Engineer as is evident from the emphasized portions of Rule 26 referred to herein With respect to points (d) & (e), thus both Architects & Civil Engineers were treated

4 3. Annex A, National Building Code (NBC) related area upto 1 hectare; and land area upto 1 hectare building permit except engineering services of multistoreyed/ special buildings given in (b) Issuing certificate of supervision and completion of all buildings pertaining to architectural aspects. (c) Preparation of sub-division / layout plans and related development permit of area up to 1 hectare for metrocities and 2 hectare for other places (d) Issuing certificate of land of area up to 1 hectare for metrocities and 2 hectare for other places. in height; related area upto 1 hectare; and land of area upto 1 building permit; (b) Structural details and calculations of building on plot up to 500 m 2 and up to 5 storeys or 16 m in height; (c) Issuing certificate of supervision and completion for all buildings; (d) Preparation of all service plans and related development permit; and (e) Issuing certificate of land for all area on equal footing by the Rules of 1984, which has been altered arbitrarily in The competence of architect is confined to very limited areas mostly pertaining to architectural aspects, whereas the engineers have been given much more powers to approve, supervise and certify plans of buildings as well as areas. 4. Relying on the above said comparison it is contended that the sweep of Rule 26, in particular sub rule (9) clause (C), is, on the face of it, discriminatory and arbitrary. In that, there is no difference

5 5 much less substantial difference in the technical qualifications of Architects and Engineers as both these professionals are qualified and have the necessary knowledge and expertise to engage themselves in building construction and development activities. In other words, there is no qualitative difference between the abilities of Architects and Civil Engineers by virtue of their qualifications. If so, the distinction as made by sub rule (9) of Rule 26 is without any basis and has no rationale with the object sought to be achieved by the said rule. 5. To buttress this submission, reliance is placed on the decision of Division Bench of the Bombay High Court in the case of Meghana A.P.Desai (Smt.) Vs. Union of India, reported in 1987 Mh.L.J. 93. Reliance is also placed on another decision again of the Division Bench of the Bombay High Court in the case of Suhas Baburao S.Naik Vs. Planning and Development Authority, Panaji, 1989 Mh.L.J After analyzing the stand taken by the respondents, it is not possible to countenance the logic for making the distinction between the Architects and Civil Engineers in respect of conditions of grant of licence. On the other hand, the finding that we are inclined to record, as has been already analysed and opined by the Division Bench of the Bombay High Court, is that there is no substantial difference between the technical qualifications of Architects and Engineers and both these professionals are equally qualified and equipped in engaging themselves in building construction and development activities. They have full knowledge and expertise in that behalf. The nomenclature of the degree possessed by them, therefore, by itself cannot be the basis to make discrimination in the scope of licence issued to the Civil Engineers in contradistinction to the scope of licence issued to the Architects. The stand taken by the respondents was also taken before the Bombay High Court by the Authorities, which has been considered and negatived. We have no

6 6 hesitation in adopting the same view as is taken by the Bombay High Court in this behalf. 7. In the circumstances, we are inclined to hold that the distinction made between the scope of licence to be granted to the Civil Engineers and that to Architects, is discriminatory and hit by Article 14 of the Constitution of India. As a consequence, it would follow that highlighted portion of sub clause (C) of sub rule (9) of Rule 26 will have to be struck down; and further to declare that the highlighted portion contained in sub rule (9) clause (A) would apply proprio vigore to Engineers as in the case of Architects for grant of licence and the scope of licence to be issued to Engineers. We are conscious of the fact that the petitioners have not asked for the latter relief as has been granted. But to do complete justice in the matter it is necessary to mould the reliefs on the above terms, for the reasons recorded hitherto. 8. Petition allowed on the above terms. HS (A.M.Khanwilkar) Chief Justice (K.K. Trivedi) Judge