IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.29145, 30408 and 35168 of 2007 and M.P.Nos.1,1 and 1 of 2007 Indian Institute of Architects, 5th Floor, Prospect Chambers Annexe, Dr.D.N.Road, Fort, Mumbai-400 001 represented by its Joint Hon. Secretary, Ar.Vijay Garg .. Petitioner in W.P.No.29145 of 2007 K.Rajagopalan .. Petitioner in W.P.No.30408 of 2007 Balbir Verma .. Petitioner in W.P.No.35168 of 2007 Vs. 1.Council of Architecture, India Habitat Centre, Cova 6A, 1st Floor, Lodhi Road, rep by its Registrar, Mr.Vinod Kumar. 2.Union of India rep by its Secretary to Government, Ministry of Human Resources & Development, Shastri Bhavan, New Delhi. 3.Ar.D.P.Sekar, Surya Mansion, 4th Floor, 625,Anna Salai, Chennai-600 006. .. Respondents 1 to 3 in W.P.Nos.29145, 30408 and 35168 of 2007 4.Indian Institute of Architects, 5th Floor, Prospect Chambers Annexe, Dr.D.N.Road, Fort, Mumbai-400 001 represented by its Joint Hon. Secretary, Ar.Vijay Garg .. 4th respondent in W.P.Nos.30408 and 35168 of 2007 https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.29145, 30408 and 35168 of 2007 are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the first respondent's order in proceedings bearing Ref.No.CA/1/2007/NMN (MHRD), dated 6.8.2007 and to quash the same and consequently to direct the first respondent not to interfere with the membership of the petitioner's representatives as Council Members and also not to interfere with the tenure of the membership of the petitioners as its council members. For Petitioners : Mr.C.Seethapathy in all three writ petitions For Respondents : Mr.N.Muralikumaran for R-1 in all the three writ petitions Mr.K.Balachandran, ACGSC for R-2 in all the three writ petitions M/s.Mc Gan Law Firm for R-3 in all the three writ petitions - - - - COMMON ORDER The short question that arises for consideration in these three writ petitions is whether the petitioners in W.P.Nos.30408 and 35168 of 2007 were disqualified from being members of the Council of Architects constituted under Section 3 of the Architects Act, 1972 (Central Act, 20/1972)? 2.The Parliament had enacted law to provide for registration of architects and for matters connected therewith. Section 3(3) provides for composition of the Council of Architects. It comprises of several representatives both by way of nomination and by way of election. Representations were also given to nominees of the Indian Institute of Architects (IIA), heads of architectural institutions etc. 3.For the purpose of the present case, the provisions found under Section 3(3)(a) of the Act may be extracted below: "3.Constitution of Council of Architecture.- (3)(a)five architects possessing recognized qualifications elected by the Indian Institute of Architects from among its members;" 4.TheIndian Institute of Architects referred to in the said provision is a society registered under the Societies Registration Act, 1860 as a voluntary organisation of the architects. The term of office of members elected under Section 3(3)(a) is set out in Section 6(1) of the Act. Under Section 6(5), members of the Council are eligible for re-election or re-nomination, but not exceeding three consecutive terms. Under Section 5(2), a dispute arising regarding any election matters will have to be referred to by the Council to a Tribunal constituted by the Central Government by a https://hcservices.ecourts.gov.in/hcservices/ notification in the official Gazette in this behalf and that the decision of the Tribunal is final. The constitution and bylaws of the Indian Institute of Architects which is a registered association provides for election of members, students and subscribers. The Governing body of the institute was to be maintained by the Council. The Council will hold the office for a period of two official years. The Council of the institute consists of the President, 2 Vice Presidents, a Honorary Treasurer, two or more Joint Secretaries, the Immediate past President (ex-officio), Chairman of the five Regional Committees, Chairman of all Chapters, the Honarary Editor of the Journal appointed by the Council as well as 7 to 10 elected members of the Council. The Council was also given power to co opt not more than two members with full voting right. 5.Insofar as the President of the institute is concerned, the bylaw No.24 provides as follows: "24.President : The President shall be a Fellow of the Institute and shall not hold office for more than two consecutive terms. He shall always when present, preside at all meetings of the Council and the General Body. He shall have power to convene meetings of the Council at any time when he considers it necessary. He shall not hold any elected office, after the expiry of his term except as the Immediate Past-President, for a period of six years thereafter." (Emphasis added) 6.The Central Government by a statutory notification, dated 30.8.2004 appointed five architects possessing recognized qualifications and elected by the Indian Institute of Architects from among the members to be the members of the Council of Architects with effect from 14.6.2004. It was notified that from the date of their election, they will hold the office for a period of three years or until their successors were duly elected whichever is earlier and subject to the outcome of the two writ petitions pending before this court. In the said notification, in respect of northern region, one architect Balbir Verma of New Delhi (petitioner in W.P.No.35168 of 2007) was nominated. In respect of southern region, architect K.Rajagopalan (petitioner in W.P.No.30408 of 2007) was nominated. Their elections were not questioned in terms of Section 5 of the Architects Act, 1972. Section 5 reads as follows: "5. Mode of elections.—(1) Elections under this Chapter shall be conducted in such manner as may be prescribed by rules. (2) Where any dispute arises regarding any such election, the matter shall be referred by the Council to a Tribunal appointed by the Central Government by notification in the Official Gazette in this behalf, and the decision of the Tribunal shall be final : Provided that no such reference shall be made except on an application made to the Council by an aggrieved party within thirty days from the date of the declaration of the result of the election. https://hcservices.ecourts.gov.in/hcservices/ (3) The expenses of the Tribunal shall be borne by the Council." 7.On the contrary one architect by name D.P.Sekar sent a representation, dated 6.2.2007 stating that the petitioners in W.P.Nos.30408 and 35168 of 2007 cannot hold the office of members of the Council of Architects. He further stated that as per bylaw No.24, these two persons cannot hold the office. Since they were immediate past Presidents being the earlier Presidents of the Institute, they had become members of the society. But, since the bylaw prohibits such persons from holding any other elected office, they cannot be the members of the Council of Architects constituted by the Central Act, 20/1972 and hence they suffer disqualification. He also filed a writ petition in W.P.No.20358 of 2007seeking for a direction to the council of Architects to consider his representation, dated 6.2.2007 followed by a reminder dated 21.3.2007. It is subsequent to the filing of the writ petition, those two individuals, i.e., M/s.Balbir Varma and K.Rajagopalan, were impleaded on 11.7.2007 in M.P.No.1 of 2007. Even before any notice could be served on them and their reply could be received, this court by an order dated 21.7.2007 had directed the Council of Architects to consider the representation in accordance with law. In normal circumstances, that writ petition should have been dismissed as not maintainable since the procedure for disqualifying the members is clearly provided under Section 5 of the Act. An application by the aggrieved person should have been filed within 30 days from the date of declaration of election. In the present case, the notification by the Central Government by the Ministry of Human Resource Department was issued as early as 30.8.2004. 8.Acting upon the direction, the Council of Architects, by an order dated 6.8.2007 withdrew the nominations made in favour of M/s.Balbir Varma and K.Rajagopalan and had declared that their term in the council is illegal and null and void. It was also declared that the seat held by them was vacant. This order of the council came to be issued pursuant to the direction issued by this court, dated 21.7.2007 in W.P.No.23058 of 2007 and upon representation made by the said D.P.Sekar who was the architect from Chennai. The Council heavily relied upon the bylaw No.24 of the society in which Balbir Varma was the President and Mr.K.Rajagopalan was the Vide President. In the operative portion of the impugned order, it was stated as follows: "Upon examining the issue in detail, it is noted that both Shri Balbir Verma and Shri K.Rajagopalan were included vide notification no.17-2/2004-TS.VI dated 30.08.2004, of Central Government as members of the Council, however, on that date while the first term of Shri Balbir Verma as President, IIA, had already expired and Shri K.Rajagopalan was only immediate Past-President of IIA and therefore, both these persons were not eligible to hold any elected office as per IIA bye-law 24 and as such to get elected to become members of the Council of Architecture. https://hcservices.ecourts.gov.in/hcservices/ It seems that both Shri Balbir Verma and Shri K.Rajagopalan have become members of the Council by misrepresentation/ concealing material facts, and who were otherwise ineligible for being elected to Council of Architecture as its members in view of Bye-law 24 of IIA Bye-laws. In view of the above facts and the representations received as well as the direction of the Hon'ble High Court of Madras, the Council hereby withdraws immediately Shri Balbir Verma and Shri K.Rajagopalan as its members and also declare their whole term in the Council as illegal and therefore is null and void. Accordingly, the Council declares these two seats as vacant." 9.Challenging the disqualification, the Indian Institute of Architects represented by its Joint Honarary Secretary of Mumbai filed W.P.No.29145 of 2007. In that writ petition, notice was ordered to the respondents. Subsequently, the two disqualified members M/s.K.Rajagopalan and Balbir Verma themselves filed the other two writ petitions, i.e., W.P.Nos.30408 and 35168 of 2007, challenging the very same order. The first writ petition was admitted on 21.9.2007 and that the second writ petition was admitted on 16.11.2007. In the writ petition filed by Mr.Rajagopalan, status quo as on 21.9.2007 for a period of four weeks was directed to be maintained. In the writ petition filed by Balbir Varma, an interim stay was granted on 16.11.2007. 10.After notice from this court, a common counter affidavit was filed by the Council dated 1.12.2009 in the first two writ petitions and in the third writ petition, a separate counter affidavit was filed on 1.12.2009. 11.As against the court refusing to grant complete stay in W.P.No.30408 of 2007, K.Rajagopalan filed a writ appeal being W.A.No.1259 of 2007. A division bench of this court had granted an interim stay on 6.10.2007. Subsequently, a vacate stay petition was filed by the Council of Architecture, the division bench made the stay absolute and disposed of the writ appeal by an order dated 4.1.2010 and also directed expeditious disposal of the writ petitions. Therefore, all the three writ petitions were grouped together and heard. 12.Heard the arguments of Mr.C.Seethapathi, learned counsel appearing for the petitioners in all three writ petitions, Mr.Murali Kumaran, learned Standing Counsel for the Council of Architects and that the third respondent, the original complainant D.P.Sekar being represented by M/s.Mc Gan Law Firms. 13.Before dealing with the merits of the case Mr.Murali Kumaran, learned Standing Council for Architects raised two preliminary objections for hearing the main writ petitions. The first objection was the term of the office of the two individuals had already come to an end. Therefore, the writ petitions have https://hcservices.ecourts.gov.in/hcservices/ become infructuous. He also submitted that W.P.Nos.29145 and 35168 of 2007 are not maintainable within the territorial jurisdiction of this court. He stated that admittedly the petitioner in W.P.No.35168 of 2007 was the resident of New Delhi and that the impugned order was passed by the council headquarters at New Delhi. In W.P.No.29145 of 2007, the society's headquarters was at Mumbai and that the order of the council was served to the society at Mumbai. Therefore the two writ petitions are clearly not maintainable in view of the territorial jurisdiction conferred under Article 226 of the Constitution of India. 14.In support of the second contention, the learned counsel relied upon the following judgments : (a)Oil and Natural Gas Commission Vs. Utpal Kumar Basu and others reported in (1994) 4 SCC 711. (b)C.B.I. Anti Corruption Branch, Mumbai Vs. Narayan Diwakar reported in (1999) 4 SCC 656. (c)Union of India and others Vs. Adani Exports Ltd and another reported in (2002) 1 SCC 567. (d)Kusum Ingots & Alloys Ltd. Vs. Union of India and another reported in (2004) 6 SCC 254. (e)National Textile Corporation Ltd and others Vs. Haribox Swalram and others reported in (2004) 9 SCC 786. 15.Taking the second contention first, it must be stated that there is no quarrel with the propositions of law laid down by the Supreme Court in the decisions cited by Mr.Murali Kumaran, learned Standing Council for the Council of Architects. But, in the present case, dismissal of these two writ petitions, i.e., W.P.Nos.29145 and 35168 of 2007 on the ground of want of territorial jurisdiction will not end this case because the petitioner in W.P.No.30408 of 2007 is very much residing within the jurisdiction of this court and that the orders were received by him at Chennai. The first respondent Council of Architects is an all India body created by the Central Act, 20/1972. Therefore, this court has jurisdiction to go into the legal issue raised in these writ petitions atleast in W.P.No.30408 of 2007. Therefore, the issue will have to be necessarily gone into in these two writ petitions. Hence the second objection fails. 16.With reference to the first objection that the writ petitions have become infructuous, it must be noted that the petitioners had the benefit of the interim order passed by this court and had completed their term. But pursuant to the direction issued by this court, the Council had decided the issue. The issues raised herein are to be perpetually raised at every election. Since the interim orders were also subject to the result of the final order to be passed in the writ petition, the writ petitions cannot be rejected on the ground that there being infructuous. Hence the first objection also must fail. 17.There is yet another issue which will have to be decided was when this court gave a direction in W.P.No.23058 of 2007, dated 21.7.2007, this court did not even hear M/s.Balbir Verma and https://hcservices.ecourts.gov.in/hcservices/ K.Rajagopalan, but merely impleaded them and that without notice to them, a direction was issued to the Council of Architects to consider the representation of Mr.D.P.Sekar who sought for disqualification. Such a direction without notice to the parties is clearly impermissible. Time and again this court and the Supreme Court have emphasised that no direction can be issued, however innocuous it may be, without hearing the affected parties. 18.In this context, two division benches of this court have held that a direction to the statutory authorities without hearing necessary parties was impermissible. First is the judgment in Director of Handlooms and Textiles Vs. K.Venkatesan reported in 1998 (1) L.W. 605 and paragraphs 16,17 and 21 of the judgments are usefully extracted below: "16.A catena of decisions have been rendered highlighting the cardinal duty in extending the reasonable opportunity before a decision is taken prejudicial to the interests of a party. 17.The nature of relief prayed for in the writ petition is not one if not granted, would put the petitioner in imminent danger or injury or hazard to paramount public interests. It is not a case in which holding of elections had been notified to be held by the time and date already fixed. The order nowhere hints out the competing claims of hurry and hearing. Rather, no reason is found in the order, even for granting the relief. It is not an order where by following the earlier binding decisions of Courts, the petitioner gets allowed. Even under such circumstances, it is done by a court only after notice to the respondents or by their Standing Counsel taking notice in court. Allowing a writ petition straightaway when it comes up for admission is therefore an improper disposal, even though the power exercisable is under Art.226 of the Constitution of India. The principles of fair play and justice are not excluded, when this power is invoked. It has become necessary to elaborate upon this point because this is not the first case wherein a writ petition without issue of notice to respondents and without hearing them, gets ordered as it comes up for admission. There are instances in which writ petitions are dismissed in admission stage but directions are issued for compliance, which virtually results in petitioner getting the desired relief. This sort of directions or conditions imposed in admission stage, but technically concluding the order is dismissed or ordered accordingly, would not also be proper or permissible, because to the extent relief is extended by such manner of disposal leads to respondents without notice, being compelled to do certain acts, about which they have not been heard at all. ......... https://hcservices.ecourts.gov.in/hcservices/ 21.It is, therefore, held that under no circumstances, a writ petition filed under Art.226 of the Constitution could be straightaway allowed without ordering notice to affected respondents or without hearing their counsel who may on instructions participate in the proceedings by taking notice for their clients. Equally issuing directions or imposing conditions while dismissing writ petitions in admission stage cannot be done, without hearing respondents who are to abide by the conditions. Exercise of Constitutional power in this fashion being inappropriate this court is put to the unpleasant task of amplifying and enlightening as to what ought not to have been done, and hence remit the matter, so that the proper procedure required in law has to be followed, before the writ petition is disposed of. Any decision of court without adherence to proper procedure being illegal, though the respondents are before this court, of whom two of them are appellants, it had still necessitated in reviving the writ petition for adherence to established procedure." 19.The second decision of the Division Bench of this Court in R.M.Muthuveerappan, etc. Vs. Government of Tamil Nadu reported in 1996 WLR 360 and the passage from paragraph 16 of the judgment is usefully extracted: "16....Thus, there can be no doubt whatever that the order passed in W.P.No.9947 of 1985 was illegal and ineffective. Further, it is seen from the records that the prayer in the writ petition was only to quash the order dated 25.10.1983 in G.O.Ms.No.2245. Instead of considering that prayer and the eligibility of the petitioner for the grant thereof, the learned Judge had taken upon himself to direct the petitioner before him to make a fresh written representation within a particular period and directed respondents 1 and 2 therein to consider the same and pass orders. It should not be forgotten that the petitioner had no right whatever to make another representation and the respondents had no duty to consider the same. Even before the said writ petition was filed, the petitioner had several opportunities not only to make written representations, but also to appear in person before the concerned authority along with his counsel and make a representation. It was only after considering all those representations, the order dated 25.10.1983 was passed by the Government. In fact, if the learned Judge had given notice to the respondents it would have been established before him by production of the records that the petitioner representations dated 16.11.1983 and 14.12.1983 made to the Government and the Chief Minister were forwarded to the High Court and a rejection thereof was recommended by the High Court. There was no justification, therefore, for a direction in that writ petition to the Government and the High https://hcservices.ecourts.gov.in/hcservices/ Court to consider a fresh written representation which may be made thereafter by the petitioner therein. In any event, the order made in that writ petition being illegal, cannot be taken advantage of by the petitioner herein." 20.The above two judgments of the division bench were subsequently followed by an another division bench of this court in The Managing Director, Tamil Nadu Housing Board Vs. V.P.R. Raja and others reported in 2007 WLR 153. 21.Even assuming, since that direction was not under challenge, it must be noted that this court had merely directed the council of architects to consider the representation, dated 6.2.2007 in accordance with law and on merits. Such a direction is contrary to the provisions of Section 5 of the Architects Act, 1972. The act provides for remedy by way of election dispute and that has to be decided only by the Tribunal. The said provisions also provides for limitation. Since the disqualification of the two individuals is essentially a dispute relating to the election, the council has no power to decide such an election dispute on its own, without recourse to send it to the Tribunal. However, pursuant to the direction, the council had passed the impugned order and had disqualified the members and also came to this court to defend its action. 22.In the counter affidavit also, the jurisdiction to decide the issue is traced only pursuant to the order passed by this court, dated 21.7.2007. Though this court could have set aside the order of the Council on the ground that it has no jurisdiction to decide the issue and it ought to have brought before this Court the provisions of Section 5 of the Act, it is unnecessary to do so at this juncture. Therefore, this court decides to go into the merits of the impugned order. 23.The understanding of the council in disqualifying the two individuals is revealed in paragraph 7 of the counter affidavit filed in W.P.No.35168 of 2007, which reads as follows: "7....that IIA bye-laws under which the petitioner is governed and body whom he is representing did not permit under its bye-laws its office bearers under bye-law 24 i.e. President to hold and elected office after the expiry of his term for a period of 6 years. The present petitioner held the office of the President of IIA and attracted this prohibition of not to hold any elected office such as becoming a member of this respondent Council for a period of 6 years. The contention that the prohibition applied to elected office in IIA and not any other office is incorrect and the bye-law 24 is very much and covers all elected offices." https://hcservices.ecourts.gov.in/hcservices/ 24.Before examining whether bylaw No.24 of the society will have any application for disqualification by the statutory council, one must see the true meaning of the representative character of the members found in Section 3(3)(a). The said provision comprise of three portions. It allows five architects possessing recognised qualifications. The term "architect" is defined under Section 2(a). The term "architect" means a person whose name is for the time being entered into the register. Likewise, the term "recognised qualification" is defined under Section 2(d) means that any qualification in architecture for the time being included in the schedule or notified under Section 15. There is no dispute that M/s.Balbir Verma and K.Rajagopalan are architects within the meaning of Section 2(a) and that they have recognised qualification in terms of Section 2(d). The other qualifications found in Section 3(3)(a) is that those persons should be elected by the Indian Institute of Architects from among its members. Therefore, the import of Section 3(3)(a) is that an architect must have his name found in the Register, must have the recognised qualification notified under Section 15 and he must be a member of the Indian Institute of Architects and elected by the institute. 25.The types of representations given to the particular society is unique. Once the section qualifies the nature of membership, it is not for the Council of Architecture to decide whether the members