-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.5942 of 2004 Shri Prince Shivaji Maratha Boarding House’s College of Architecture, Kolhapur & others ..Petitioners vs State of Mah and others.. ..Respondents Mr.V M Thorat with Shri D.V.Sutar & Mr A.T.Gade for the petitioners Mr. P.M.Patil AGP for respondent nos.l and 2 Mr.Aspi Chinoy with Ms Beena Menon for respondent no. 3 Mr Rafiq Dada, Senior Advocate with Mr V.P.Sawant and Mr Vijay Patil for respondent no. 4 -2- CORAM: A.P.SHAH & S.U.KAMDAR JJ. CORAM: A.P.SHAH & S.U.KAMDAR JJ. CORAM: A.P.SHAH & S.U.KAMDAR JJ. Dated 8th Sept 2004 Dated 8th Sept 2004 Dated 8th Sept 2004 Per A.P.Shah J. l. Rule. 2. The learned counsel appearing for the respondents waive service. By consent, rule is made returnable forthwith. 3. This petition raises a short and interesting question, of some importance, whether the All India Council of Technical Education Act, 1987 (for shot, ‘AICTE Act’) overrides the provisions of the Architects Act, 1972 in the matter of prescribing and regulating norms and standards of architectural institutions. In other words, whether the AICTE Act which is a later Act has impliedly repealed the provisions of the Architects Act. For a better appreciation of the question it becomes necessary to state few facts. The petitioner no.l is a college of architecture established by the petitioner no.2 trust. The respondent no. 1 is the State of Maharashtra . The respondent no. 2 -3- is the Director of Technical Education, State of Maharashtra. The respondent no. 3 is the All India Council for Technical Education, (for short, ‘AICTE’) a statutory body constituted under the AICTE Act. The respondent No. 4 is the Council of Architecture established under the provisions of the Architects Act. The petitioner no.l college is affiliated to Shivaji University,Kolhapur and the intake capacity of the college was 40 students per year. During the inspection jointly held on 25th April 2003 by the AICTE and Council of Architecture certain deficiencies and shortcomings were found in the college and, therefore, for the Academic Years 2003-04 and 2004-05 the intake capacity was reduced from 40 students per year to 30 students per year. On 27th August 2003 the petitioner submitted compliance report pointing out fulfilment of all conditions as mentioned in the inspection report. The Council of Architecture on the basis of the compliance report forwarded by the petitioner carried out inspection of the petitioner college on 9th/l0th March 2004 and after having been satisfied with the compliance issued a letter dated l8th May 2004 restoring the intake capacity of 40 students per year. In the meantime, the Director of Technical Education published rules for admission -4- to Bachelor of Architects Course through Common Entrance Test (CET). The Director of Technical Education fixed the intake capacity of 30 students in respect of the petitioner no.l college on the basis of the norms and standards fixed by the AICTE. It is this action of the Director of Technical Education which is questioned in this petition. The petitioners contend that the provisions of the Architects Act and regulations framed thereunder shall prevail over the provisions of the AICTE Act and the Director of Technical Education has no power to fix the intake capacity contrary to the decision taken by the Council of Architecture. The Council of Architecture has wholly supported the petition. On the other hand, the AICTE has maintained that the matter of prescribing and regulating the norms and standards of architectural education falls exclusively within the domain of AICTE under the AICTE Act. Thus the contest is really between the AICTE and Council of Architecture both claiming right to decide architectural education’s standards. 4. Mr. Rafiq Dada, learned counsel appearing for the Council of Architecture submitted that the Architects Act, l972 is a special law dealing with -5- the subject of architecture providing for prescribing, regulating and maintaining of the standards of architectural education, registration of architects, their conduct and other related matters and complete code by itself. As against this the AICTE Act deals with several disciplines in technical education one of which is architecture. Therefore the AICTE Act is a general law whereas Architects Act is a special law and is not overridden or superseded by the AICTE Act. Mr Dada urged that the principle generalia specialibus non derogant would be clearly attracted in the instant case and unless the special law is abrogated by express words or by making a provision which is wholly inconsistent with it, cannot be said to have been abrogated by mere implication. According to Mr. Dada there is nothing in the AICTE Act to belittle or destroy the authority or autonomy of the Council of Architecture which is established under the Architects Act. The role of AICTE as far as architectural institutions are concerned is only advisory and for coordination, strengthening and development of architectural education. The general provisions in the AICTE Act touching the subject matter of architecture therefore do not abrogate the provisions of the -6- Architects Act and are not repugnant or inconsistent with the Architects Act. Mr Dada urged that the AICTE Act does not supplant the provision of the Architects Act but at the highest supplement them. Mr Thorat, appearing for the petitioners, adopted the submissions of Mr. Dada. 5. Mr. Chinoy, appearing for the AICTE, on the other hand, submitted that the provisions of the AICTE Act deal with the same subject matter as that of the Architects Act, 1972 in so far as promoting, maintaining and managing standards of architecture education is concerned. The provisions of the two Acts cannot stand together and this is borne out from the facts of the present case where the AICTE and Council of Architecture have in their regulations stipulated different intake capacity for the petitioner college. The role of AICTE cannot be said to be advisory or subject to provisions of the Architects Act. The AICTE Act is later Act and specifically covers the field of prescribing, regulating and maintaining standards and norms of architectural education. It must necessarily follow that the AICTE Act has impliedly repealed the provisions of the Architects Act in these matters. Mr.Chinoy also submitted that the -7- AICTE Act is a special law dealing with the subject inas much as it specifically deals with all aspects of the technical education which is statutorily defined to include architectural education. In contradistinction the Architects Act essentially deals with regulating the profession of Architects and in connection therewith makes provisions regarding prescribing, regulating and maintaining norms and standards of architectural education. If the focus and principal subject matter is architectural education, the AICTE Act is a special law and Architects Act is a general law, even though the Architects Act might be a special legislation regarding the Architects’ profession. Therefore the doctrine of generalia specialibus non derogant has no application. 6. The cruicial question is whether the AICTE Act is a general legislation vis-a-vis Architects Act, which is a special legislation in relation to the architectural education. Immediately, we are confronted with the question as to whether the AICTE Act is a special legislation or a general legislation because the legal maxim generalia specialibus non derogant is ordinarily attracted where there is a conflict between a special and -8- general Act and an argument of implied repeal is raised. The other question which also needs to be addressed is whether the provisions of the two Acts are so inconsistent that earlier statute will not stand in view of the fact that the conferal power under the later Act deals with the same subject matter. Maxwell on the Interpretation of Statutes (12th Edition) summarised the doctrine of generalia specialibus non derogant in the following words:- "Now if anything be certain it is this," said the Earl of Selborne L.C. in The Vera Cruz, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so". In a later case, Viscount Haldane said: "We are bound ... to apply a rule -9- of construction which has been repeatedly laid down and is firmly established. It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially de- clared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to." 7. The rationale of this rule is explained by the Supreme Court in J K Cotton Spinning and Weaving Mills Co Ltd vs. State of Uttar Pradesh, AIR l96l SC ll70 as follows: -10- "The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but sprigs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and anther to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions should have effect". 8. In U P State Electricity Board vs Hari Shankar Jain, (l978) 4 SCC l6, the Supreme Court observed: "In passing a special Act, Parliament devotes its entire consideration to a particular subject.When a general Act is subsequently passed, it is logical to presume that Parliament has not repealed or modified the former -11- special Act unless it appears that the special Act again received consideration from Parliament". 9 . In Life Insurance Corporation vs D J Bahadur, (l98l) l SCC 3l5, Krishna Iyer J. has pointed out as under: "In determining whether a statute is a special or a general one, the focus must be on the principal subject matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law". l0. In State of M P vs. Kedia Leather and Liquor Ltd and ors, (2003) 7 SCC 389, a two Judge Bench of the Supreme Court observed: "There is presumption against a repeal by implication; and the -12- reason of this rule is based on the theory that the legislature while enacting a law has complete knowledge of the existing laws on the same subject-matter,and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. ( See Municipal Council, Palai v T J Joseph,AIR l963 SC l56l, Northern India Caterers (P) Ltd v State of Punjab, AIR l967 SC l58l, Municipal Corpn of Delhi vs Shiv Shankar, (l97l ) l SCC 442, and Ratan Lal Adukia v Union of India, (l989) 3 SCC 537). When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (persone vel rei) est exclusio alterius. ( The express intention of one person or thing is the exclusion of another), as illuminatingly stated -13- in Garnett v Bradley, (l878 3 AC 944. The continuance of the existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred." ll. A two Judge Bench of the Supreme Court in a recent judgement in Godavat Pan Masala Products I.P.Ltd vs Union of India, 2004 AIR SCW 4483, observed that in case of conflict between a special law and a general law, even if both are enacted by the same legislative authority, the special law must displace the general law to the extent of inconsistency. The operation of the maxim -14- generalia specialibus non derogant has been approved and applied by the Court in such situations. l2. To determine whether a later statute repeals by implication an earlier statute, it would be necessary to scrutinize the terms and consider the true meaning and effect of the two statutes. The Architects Act, l972 is enacted to provide for prescribing, regulating and maintaining the standards of architectural education, qualification of Architects based on these standards and for registration of qualified Architects. Section 2 (a) defines the term "architect" to mean a person whose name is for the time being entered in the register. Section 2 (d) defines "recognised qualification" to mean any qualification in architecture for the time being included in the Schedule or notified under section 15. Section 14 (1) of the Architects Act provides that the qualifications included in the Schedule or notified under section 15 shall be recognised qualifications for the purposes of Act and sub-section (2) provides that the Schedule may be amended so as to include such other recognised qualifications and the Central Government may do so by notification in -15- the official gazette after consultation with the Council of Architecture. Section 17 of the Act contains a non obstante clause and provides that notwithstanding anything contained in any other law but subject to the provisions of the Act, any recognised qualification shall be a sufficient qualification for enrolment in the register. Section 18 provides that every authority in India which grants a recognized qualification shall furnish relevant information to the Council of Architecture as to the courses of study and examination to be undergone and various other matters provided in the section. Section 19 provides for appointment of Inspectors by the Executive Committee to inspect any College or Institution where architectural education is given or to attend any examination held by any college or institution for the purpose of recommending to the Central Government recognition of architectural qualifications granted by that College or Institution. Section 20 confers power for withdrawal of recognition upon report of the Executive Committee to the Council of Architecture that the courses of study and examination, staff accommodation do not conform to the standards prescribed by regulations and the Council in that -16- case shall make necessary report to the appropriate government. Section 21 empowers the Council to prescribe the minimum standards of architectural education required for granting recognised qualifications by colleges or institutions in India. Section 22 empowers the Council of Architecture to prescribe standards of professional conduct and etiquette and a code of ethics for architects. Under Section 23 (2) the Council of Architecture is required to maintain the register of architects . Under Section 29 the Council is empowered to remove from the register the name of any architect as provided thereunder. Under section 45, the Council has power to make regulations with the approval of the Central Government to carry out the purposes of the Act. The Council of Architecture has with approval of the Central Government framed regulations known as Minimum Standards of Architectural Education Regulations, 1983 in exercise of powers conferred by clauses (e), (g), (h) and (j) of sub-section (2) of Section 45 read with Section 21 of the Architects Act. The said regulations provide for eligibility for admission to architectural course, aptitude test, etc. The regulations also provide for intake, courses and periods of studies, profes -17- sional examination, standard of proficiency and conditions of admission, qualification of examiner. They also provide for standards of staff, equipment, accommodation, training and other facilities for architectural education. The Architects Act is thus a complete code in itself in so far as the architectural education is concerned. l3. We shall now turn to the provisions of the AICTE Act. Section 2(g) of the AICTE Act defines "technical education" as under : "technical education" means programmes of education, research and training in engineering technology, architecture, town planning, management, pharmacy and applied arts and crafts and such other programme or areas as the Central Government may, in consultation with the Council, by notification in the Official Gazette, declare; Section 2 (h) defines the words "technical institution" to mean "an institution, not being a -18- University, which offers courses or programmes of technical education, and shall include such other institutions as the Central Government may, in consultation with the council, by notification in the Official Gazette, declare as technical institutions. Section 10 of the AICTE Act, provides that It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the Council amongst other things can lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examination; grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned; inspect or cause to inspect any technical institution. Under section 11 the AICTE is authorised to cause an inspection of any technical institution to be made for the purposes of ascertaining the financial needs of a technical institution or a University or its standards of teaching, examination and research. Under section -19- 23 the AICTE may by notification in the official gazette make regulations generally to carry out the purposes of the Act. The AICTE has framed regulations in exercise of power under section 23 covering almost all the aspects of technical education. 14. On a careful examination of the scheme of the two statutes it is seen that the Architects Act is especially designed to deal with the architects and the maintenance of the standards in architectural education and profession with recognised qualifications. The Architects Act read as a whole is a complete code in itself for registration and education of architects and specifically deals with the recognised qualifications for architects which includes the regulation and monitoring of the course contents and standards of education. Section 17 of the Architects Act contains a non obstante clause and provides that notwithstanding anything contained in any other law but subject to the provisions of the Architects Act, any recognised qualification shall be a sufficient qualification for enrolment in the register. A combined reading of sections 14 to l7 and section 2l leaves no manner of doubt that in the field of -20- architectural institutions the Architects Act has been given overriding effect over the other laws. It is true that section 2(g) of the AICTE Act also includes architecture within the definition of technical education and an institution which offers course of architecture would be a technical institution under section 2(h). However, the scope and ambit of the AICTE Act is wide ranging and covers various programmes of education research and training other than architecture as can be seen from section 2(g) itself. The main function of the AICTE under the AICTE Act is coordinated development of technical education as defined in the said Act. It is not confined to nor is its sole or main concern architecture, architects and their professional conduct, making standards of architectural education and recognition of qualifications granted by the authorities in India and these matters are specifically dealt with by the Architects Act. Considering the provisions of the Architects Act vis-a-vis AICTE Act, we have no hesitation to hold that as far as architectural education is concerned the Architects Act is a special legislation and the AICTE Act is a general legislation. -21- l5. Mr. Chinoy strenuously urged that the provisions of the later Act i.e. AICTE Act being totally inconsistent or repugnant with the provisions of the earlier enactment, i.e. Architects Act, earlier enactment is abrogated by the later Act. The counsel submitted that conferral powers on two different bodies (the Council of Architecture under the Architects Act and AICTE under the AICTE Act) on the same subject matter would be incongruous and destructive of the object for which the power was conferred. AICTE Act is a later Act and covers the same subject matter as section 19(2), 21 and 45 (e), (f) and (g) of the Architects Act, which also relate to subscribing, regulating and maintaining of the standards of Architectural education. It must necessarily follow that the AICTE Act impliedly repeals the said sections of the Architects Act. Mr. Chinoy drew our attention to a three- Judge Bench decision of the Supreme Court in the case of Ajoy Kumar Banerjee and others vs. Union of India and others, reported in (1984) 3 SCC 127 where the Bench observed as under :- "The general rule to be followed in case of conflict between two -22- statutes is that other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied : (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail. 39. From the text and the decisions, four tests are deducible and these are:- (i) The Legislature has the undoubted right to alter a law already promulgated through subsequent legislation, (ii) A special law may be altered, abrogated or repealed by a later general law by an express provision, (iii) A later general law will override a prior special law if the -23- two are so repugnant to each other that they cannot co-exist even though no express provision in that behalf is found in the general law, and (iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will remain wholly unaffected by a later general law. See in this connection, Maxwell on the Interpretation of Statutes, Twelfth Edition, pages 196-198." l6. Mr Chinoy also referred to the decision in the case of Ratan Lal Adukia vs. Union of India reported in (1989) 3 SCC 537 where the Court held that Section 80 of the Railways Act is a complete, self-contained, exhaustive code in regard to the place of suing respecting suits constituting a special law for such suits. The legislative intent thus is that plaintiffs must institute suits only in the courts mentioned in Section 80 of the Railways Act for enforcement of the claims for compensation against the Railways. By necessary implication, therefore, the operation of provisions -24- of Section 20 of the Code of Civil Procedure, 1908 and Section 18 of the Presidency Small Cause Courts Act, 1882 stands excluded. The bench observed :- "The doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts, in applying this doctrine, are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may, by itself, and without more, lead to an inference of mutual irreconcilability if the later set of provisions is by itself a complete code with respect to the same matter. in such a case the actual detailed comparison of the two sets of provisions may