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1989 Supreme(Cal) 370
High Court Of Calcutta
UMESH CHANDRA BENERJEE
UTPAL BOSE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Matter 1712 Of 1985
Decided On : 07/24/1989
The Architects Act, 1972, being a complete code, occupies the field of architect registration and practice, and the State Legislature lacks the competence to legislate on the same subject matter.
Headnote:
ARCHITECTS ACT - REGISTRATION OF ARCHITECTS - ADDITIONAL FEE AND LICENSING OF BUILDING ARCHITECTS - VALIDITY - CALCUTTA MUNICIPAL CORPORATION ACT, 1980 - ARCHITECTS ACT, 1972 - POWER OF MUNICIPAL CORPORATION TO IMPOSE ADDITIONAL FEE ON ARCHITECTS - VALIDITY OF S. 414 OF THE ACT - SCOPE OF S. 599 OF THE ACT - RESTRICTIONS ON ARCHITECTS' STATUS AND FUNCTIONS UNDER BIDHAN NAGAR BUILDING RULES - VALIDITY - SCALE OF FEES OF ARCHITECTS.
Fact of the Case:
The petitioners, architects duly qualified and registered under the Architects Act, 1972, challenged the validity of S. 414 of the Calcutta Municipal Corporation Act, 1980, which imposed an additional fee and licensing requirement on architects. They argued that the Architects Act, 1972, was a complete code and provided for all aspects of architect registration and practice, and that the State Legislature lacked the competence to impose further restrictions on architects already registered under the Central Act.
Finding of the Court:
The Court held that S. 414 of the Calcutta Municipal Corporation Act, 1980, was ultra vires the Constitution and invalid to the extent that it imposed additional fees and licensing requirements on architects already registered under the Architects Act, 1972. The Court found that the Architects Act, 1972, was a complete code and occupied the field of architect registration and practice, and that the State Legislature lacked the competence to legislate on the same subject matter. The Court also held that the preparation and maintenance of a panel of architects by the Bidhan Nagar Building Rules was invalid and bad in law, as it constituted an unreasonable restriction on the right of architects to practice their profession.
Issues: 1. Whether S. 414 of the Calcutta Municipal Corporation Act, 1980, which imposed an additional fee and licensing requirement on architects, was ultra vires the Constitution and invalid? 2. Whether the preparation and maintenance of a panel of architects by the Bidhan Nagar Building Rules was valid and lawful.
Ratio Decidendi: 1. The Court held that S. 414 of the Calcutta Municipal Corporation Act, 1980, was ultra vires the Constitution and invalid to the extent that it imposed additional fees and licensing requirements on architects already registered under the Architects Act, 1972. The Court found that the Architects Act, 1972, was a complete code and occupied the field of architect registration and practice, and that the State Legislature lacked the competence to legislate on the same subject matter. The Court relied on the principle that a later Central law prevails over an earlier State law in case of conflict, and that the Architects Act, 1972, being a later Central law, superseded the provisions of the Calcutta Municipal Corporation Act, 1980, to the extent of the conflict. 2. The Court held that the preparation and maintenance of a panel of architects by the Bidhan Nagar Building Rules was invalid and bad in law, as it constituted an unreasonable restriction on the right of architects to practice their profession. The Court found that the panel system created an innate restriction for architects who were not empanelled, and that this was not in consonance with the provisions of the Architects Act, 1972, which allowed all qualified architects to practice their profession without any such restrictions.
Final Decision: The Court declared that the provisions of the Calcutta Municipal Corporation Act, 1980, would not in any way affect the rights of architects registered under the Architects Act, 1972, to practice the profession of architects without any further restriction. The Court also declared that the preparation and maintenance of a panel of architects by the Bidhan Nagar Building Rules was invalid and bad in law.
( 1 ) THE change in the socio-economic condition of the country has resulted in the building construction activity a phemomemal upward trend. To meet the growing demand in the construction of building activity, there was an upsurge of under-qualified persons describing themselves as architects and resulting in unsafe work of construction. The Architects Act, 1972 was engrafted in the Statute Book to provide for the registration of architects so as to eradicate the unqualified and underqualified persons taking upon the responsibility in that regard as architects.
( 2 ) SECTION 25 of the Act of 1972 provides that a person shall be entitled, on payment of a fee as may be prescribed by the Rules, to have his name entered in the register, if he resides or carries on the profession of the architect in India and holds a recognised qualification. S. 29 provides that the Council established in terms of the Act is empowered to remove the name of any architect from the register to be maintained in terms of the provisions of the Act. Retention of the name in the register by payment of fees has also been engrafted in the Statute Book under S. 27 of the Act and in terms of S. 44 the Central Government has been authorised to make rules for all or the matters as specified in sub-sec. (2) of S. 44 of the Act of 1972. The Schedule to the Act provides the qualification for being registered as architects under the Act. On a perusal of the statute, it appears that the Act of 1972 is a complete Code in itself and provides for all possible situations in regard thereto.
( 3 ) THE main controversy is this writ petition centres round the power of the Municipal Corporation of Calcutta to impose the additional fee on architects and the regulatory measures introduced thereby. Mr. Dutt appearing for the petitioners submitted that S. 414 of the Calcutta Municipal Corporation Act, 1980 purports to levy additional fee as regards architects and on this score, it was contended firstly that since there is no quid pro quo, question of levy of a feee does not and cannot arise.
( 4 ) THE doctrine of 'quid pro quo' has received a considerable attention of our Courts but the traditional concept of the doctrine has been watered down to a great extent. In this context reference may be made to the decision of the Supreme Court in the case of City Corporation of Calicut v. Thacham Thachambalatch Sadasivam, reported in AIR 1985 SC 756 wherein the Supreme Court observed"it is thus well-settled by numerous recent decisions of this Court that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee. "
( 5 ) THE earlier decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Md. Yasin reported in AIR 1983 SC 617 also observed in similar tone as the Supreme Court observed :"what do we learn from these precedents? We learn that there is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of taxpayers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Compulsion is not the hall-mark of the distinction between a tax and a fee. That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though
