IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 3RD AUGUST 2009 / 12TH SRAVANA 1931 WP(C).No. 13258 of 2009(B) --------------------------------------- PETITIONER: ------------------- SHRI.JIBU JOHN, AGED 37 YEARS, S/O.M.V.JOHN, ARCHITECT, M/S.JIBU & THOMAS, G-65, PANAMPILLY NAGAR, KOCHI-36. BY ADV. MR.GEORGE CHERIAN (THIRUVALLA). RESPONDENTS: ------------------------ 1. SECRETARY TO GOVERNMENT, LOCAL SELF GOVT. (RA) DEPARTMENT, THIRUVANANTHAPURAM. 2. COUNCIL OF ARCHITECTURE, INDIA HABITAT CENTRE, CORE 6-A, FIRST FLOOR, LODHI ROAD, NEW DELHI, REPRESENTED BY ITS REGISTRAR-SECRETARY VINOD KUMAR. R1 BY GOVT. PLEADER MR. V. MANU, R2 BY ADV. MR.TOJAN J.VATHIKULAM, S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON 03/08/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.13258/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE APPROVED PLAN DTD. 14/10/2003. EXT.P.2: COPY OF THE BUILDING PERMIT DTD. 14/10/2003. EXT.P.3: COPY OF THE REPORT DTD. 20/08/2007 GIVEN BY THE TOWN PLANNER IDUKKI IN FAVOUR OF THE R.1. EXT.P.4: COPY OF THE NOTICE NO. 44308/RA3/07/LSGD DTD. 20/09/2007. EXT.P.5: THE PETITIONER HAD SENT REPLY DTD. 27/09/2007 TO THE R.1. BY SPEED POST. EXT.P.6: COPY OF THE NOTICE DTD. 18/12/2007. EXT.P.7: COPY OF THE COMPLAINT TOGETHER WITH NOTICE ISSUED BY THE R.2. TO THE PETITIONER. EXT.P.8: COPY OF THE STATEMENT OF OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.9: NOTICE DTD. 13/04/2009 ISSUED BY THE R.2. IN FAVOUR OF THE PETITIONER. EXT.P.10: COPY OF THE JUDGMENT DTD. 27/06/2008 IN W.P.(C).NO.30103/07. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.13258 OF 2009 ------------------------------------------- Dated this the 3rd day of August, 2009 JUDGMENT “C.R.” 1. The petitioner is an architect. He seeks to quash Ext.P9 notice issued by the disciplinary committee of the Council of Architecture and also Ext.P7 complaint filed by the Principal Secretary to the Government of Kerala in the Local Self Government (RA) Department before the disciplinary committee. He contends that the complaint made against him is not maintainable and the Secretary to Government is not an aggrieved party and has no cause of action to file such a complaint. He pleads that the various averments and allegations contained in that complaint do not come within the purview of any misconduct that could be alleged against him in terms of the provisions of Section 22 of the Architects Act, 1972. He also contends that the action taken by the first respondent in filing the complaint is one on the basis of a complaint by one K.Mohan, who is shown to have made Ext.P7 WPC.13258/09 Page numbers to the Chief Town Planner. The petitioner pleads that there is no such person. 2.After hearing the writ petition for quite some time on 24.6.2009, the following order was issued by this Court: “This matter is heard in part. On a complaint by one Mohan, the Government issued notice to the petitioner calling for explanation for certain matters attributed to him. Those allegations related to violation of the provisions of the Kerala Municipality Building Rules and the duties and responsibilities of the petitioner as an Architect. It is stated that an inquiry was conducted through the Town Planning Officer. That led to tentative findings that the building in question is constructed in violation of the KMBR. Through its Principal Secretary, Local Self Government Department, the Government have filed a complaint against the petitioner before the disciplinary committee of the Council for Architecture, charging him with professional misconduct, the principal allegation being that he does not refute that certificates were issued by him WPC.13258/09 Page numbers even without visiting the site and taking the measurements. While the petitioner has certified that the construction as per the plan would be in conformity with the KMBR, the authorities have concluded now that it is not so. While I have heard the parties on the questions raised in this writ petition for quite some time, what is surprising is that when the Principal Secretary to Government in the Local Self Government Department has, in the wisdom of the Government, complained about the petitioner to the Council of Architecture, no action whatsoever is shown to have been taken against any Government servant who is responsible for granting the permit since the duties and responsibilities attached to such offices require such officials to be more vigilant than the persons who apply for permits. The choice in the wisdom of the Government appears, as at present, to be one that excludes any action against them who were instrumental in granting the permit. If an officer empowered to do a particular act under statute law, in relation to grant of building permits etc. does not do it in terms thereof, or is demonstrated to have done it in violation of the laws, one way to look at it would WPC.13258/09 Page numbers be to hold that the person is incapable of holding that office, while the second view could be that there is a reasonable ground to apprehend and presume that the said officer has acted for extraneous considerations, including those amounting to corruption. These conclusions could be excusable only in those cases where a benefit of error in judgment could be found in official work. In the aforesaid circumstances, having regard to the plea of the petitioner that the action against him is malafide, it is appropriate that the Government places an affidavit through an officer, not below the rank of a Secretary to Government, as to why no action has been taken against the officials who are responsible for granting permit for the construction in question. Such affidavit shall be on board within three weeks. Post on 9.7.2009”. 3.Following the aforesaid order, the Secretary in the Department of Local Self Government Institutions of the WPC.13258/09 Page numbers Government of Kerala has filed an affidavit, sworn to on 10.7.2009, the relevant portion of which reads as follows: “In the interim order dated 24th June, 2009 in the case, this Hon'ble Court has directed that the Government shall place an affidavit through an officer, not below the rank of a Secretary to Government, as to why no action has been taken against the officials who are responsible for granting permit for the construction in question. It is submitted that, Government on receipt of a complaint from one Sri.K.Mohan, Karukayil House, Munnar, entrusted the District Town Planer, Idukki to enquire into the construction being carried out in the land comprised in Sy.No.61/14,7 of KDH Village in Idukki District. It was revealed in the enquiry that the construction was carried out i gross violation of Kerala Municipality Building Rules, 1999. Taking into account this, Government directed the Secretary, Munnar Grama Panchayat to revoke the permit as per Rule 16 of Kerala Municipality Building Rules, 1999 and to take action against the illegal construction as per Section 235 W of Kerala Panchayat Raj Act. WPC.13258/09 Page numbers It is submitted that as there was serious lapse from the part of the Grama Panchayat officials in permitting such an illegal construction, Government entrusted the Deputy Director of Panchayats, Idukki to enquire into this. The Deputy Director of Panchayats has reported that, Sri.M.N.Abdul Rahim, was the Secretary of the Munnar Grama Panchayat during the period of lapse. It is submitted that the Joint Registrar of Panchayats, on the direction of the Government, had conducted an enquiry regarding the constructions carried out in the Munnar Grama Panchayat limits between the period from 7.7.2003 to 7.8.2006. It was revealed in the enquiry that there were 32 cases during the said period in which permit for building construction was granted without adhering to the rules. The aforesaid Sri.M.N.Abdul Rahim was the Secretary of the Grama Panchayat during the period. Considering this, he was placed under suspension vide proceedings No.D8-18167/2007 dated 29.5.2007 of the Director of Panchayats. It is submitted that Sri.M.N.Abdul Rahim has retired from service on 31.5.2007 during the suspension period itself. Hence Government directed WPC.13258/09 Page numbers the Director of Panchayats to include this matter also in the charges levelled against him and take appropriate action”. 4.The action taken as stated in the affidavit of the first respondent is noted. 5.In Ext.P7 complaint, the Principal Secretary to the Government has alleged that the petitioner has committed professional misconduct by, among other things, having issued certificates in relation to a construction, without even visiting the site or taking measurements. The Principal Secretary has stated that the petitioner herein does not dispute those allegations. 6.The learned counsel appearing for the petitioner vehemently argued that the contents of Ext.P7 do not disclose a professional misconduct as would fall for being punished in terms of Section 22 of the Architects Act and the notice issued by the disciplinary committee of the Council of Architecture is liable to be set aside. Learned counsel wanted me, at this WPC.13258/09 Page numbers point of time, to go into the correctness or otherwise of the allegations contained in Ext.P7. That is not to be done. The jurisdiction of the disciplinary committee and the Council of Architecture is one which spreads over the petitioner's professional activities as a registered architect. The plea of the petitioner and the arguments of his learned counsel that the provisions of the Kerala Municipality Act, 1994 and the Kerala Municipality Building Rules, 1999 authorise the State Government to cancel the registration of an architect or an Engineer for the purpose of depriving him of the authority to certify matters in relation to building construction is insufficient to hold that the Council of Architecture and its disciplinary committee does not have the jurisdiction to take cognizance of Ext.P7 complaint. 7.The crux of the matter appears to be that the petitioner, even going by his pleadings in this writ petition was, apparently, involved in the construction activity of a building in Munnar. It is in relation to that construction that allegations were raised, which ultimately led the Principal Secretary in the WPC.13258/09 Page numbers Local Self Government Department of the Government to take a view that the petitioner has committed acts resulting in violation of Section 22 of the Architects Act. It was accordingly that the complaint was filed. 8.The mere filing of a complaint, even if it be by the Principal Secretary to Government, does not impose any finding on the disciplinary committee of the Council of Architecture, in any manner jeopardising the petitioner's defence before the Council and would, in no manner, be a ground, by itself, to issue any order against the petitioner who would be entitled to be heard in relation to the complaint against him. This is a matter governed by the Architects Act, Rules and Regulations thereunder and the procedure adopted by the disciplinary committee in accordance with the Rule of Law. In my view, it is impermissible for this Court to now interfere with those proceedings, crippling that procedure. 9.Learned counsel for the petitioner ultimately referred to the decision in the matter of H, an Advocate, Cawnpore [(28) WPC.13258/09 Page numbers AIR 1941 Allahabad 280] where the Special Bench of the Allahabad High Court dealt with the case of an Advocate. The learned counsel for the petitioner referred to the views of the learned Judges in that judgment that distinction should be there between those of purely professional character and misconduct which also lies within the ambit of the criminal law. But a reading of that judgment would show that distinction was stated to be required, to understand the classes of cases over which the Tribunal under the Bar Councils Act would have jurisdiction and the classes of cases which the Tribunal should leave for the civil and criminal courts to consider. It was laid down as follows: “We think that a distinction should be drawn between that species of misconduct which is of a purely professional character and misconduct which also lies within the ambit of the criminal law. In the former case, we do not doubt that a special tribunal such as that which is contemplated by the Bar Councils Act is a proper one to deal exclusively with purely professional delinquencies. But we doubt whether it was the intention of the Act that a tribunal under it WPC.13258/09 Page numbers should in all cases usurp the functions of a criminal or civil Court merely be reason of the accident of the person complained against being an advocate and the subject matter of the complaint being a matter connected with his professional practice.” To state so, the learned Judges referred to the views of the Judicial Committee of the Privy Council in Thakur Har Prasad Singh Vakil v. The Judges of the High Court of Judicature at Allahabad [(1931) 29 ALJ 450], wherein, it was found appropriate to add that while it is incompetent for the High Court to deal with charges of a criminal nature against a practitioner in terms of Article 8 unless and until those charges have been investigated by a criminal court as eminently fitting that in such cases criminal prosecution should precede any disciplinary decision. In view of the position of law, the decisions referred to has, really, no application, at any rate, in favour of the petitioner. 10. It was further argued on behalf of the petitioner that the filing of a counter affidavit on behalf of the Council of WPC.13258/09 Page numbers Architecture and the attempt to make submissions on its behalf apparently suggest that the Council would be biased against him. This apprehension is quite misplaced. The mere filing of a counter affidavit or submissions touching aspects of law does not necessarily generate any inference as to existence of bias. Not only that, the Council has a disciplinary committee and the conferment of authority on such a body, fundamentally, excludes the chances of any arbitrariness or malafide exercise of power in the matter of the impending adjudication, more particularly because the petitioner does not charge any of the members of the Council or the disciplinary committee, that is or may be constituted with bias. 11.Taking into consideration the interest of the petitioner that may be involved in the matter pending before the disciplinary committee of the Council of Architecture, I deem it appropriate to clarify that this judgment does not touch on any of the allegations on its merits. All issues are left open for consideration. WPC.13258/09 Page numbers In the result, subject to what is stated in the paragraphs that immediately preceded, this writ petition is dismissed. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.30/7.