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2002 Supreme(Guj) 127
Gujarat High Court
Judgename :R.M.Doshit
SURAT SURVEYORS PLANNERS ASSOCIATION - Appellant
Versus
STATE - Respondent
S.C.A. 1200 of 1986
Decided On : 02/13/2002
Headnote:Constitution of India, 1950 — Arts. 14, 19(1)(g) & 19(6) — Gujarat Town Planning & Urban Development Act, 1976 — Secs. 17(1)(a)(ii) & 119 — Notification dated 31st Jan., 1986 — New Regulation No. 9.5 — Draft Development Plan of Surat Urban Development Authority — Only Architects and Engineers allowed to prepare and execute plans and designs for high rise buildings — Surveyors not allowed to prepare plans for high rise buildings — Discrimination — Is based on rational and intelligent criteria — Impugned Notification and Regulation not arbitrary and ultra vires the provisions of Sec. 119 of the Act — Town Planning.
So far as the discrimination amongst Architects, Engineers and Surveyors is concerned, be it noted that the qualification prescribed for each of them are different and distinct. The Architects and Engineers are qualified degree holders or diploma holders conferred by any University in India and recognized by All India Board of Technical Education or by the State Board of Technical Education; as the case may be. No such stringent requirement is prescribed in respect of the Surveyors i.e., a Surveyor may be a degree or diploma holder in Civil Engineering of any University or Institution. In other words, such course is not required to be a course recognized either by All India Board of Technical Education or by a State Board of Technical Education; as the case may be. Besides, even certificate holders or draftsmen are recognized as Surveyors.
[Para 7]
The licenced Surveyors do not possess the same technical qualification as the licenced Architects or Engineers. Further, the Senior Town Planner of the State Government in his counter affidavit has stated that the impugned modification was required to be incorporated with a view to ensuring the safety of the high rise buildings and consequently of the people in general and their property. In Court view the Development Regulations are made keeping in view the safety of the persons and their property and cannot be said to have no nexus with the object of the planning. Court is, therefore, unable to hold that the discrimination in question amongst the Architects, Engineers and Surveyors is not based on intelligible criteria or have no nexus with the object to be achieved.
The restriction imposed under the impugned Notification can not be said to be unreasonable.
[Para 8]
( 1 ) HEARD the learned advocates. The petitioners before this Court are the Association of Surveyors and Planners of Surat city and some of its members. The petitioners challenge the modification incorporated in the Draft Development Plan prepared by the Surat Urban Development Authority [hereinafter referred to as, `the Authority] with respect to the development of the city of Surat and the surrounding urbanizable lands. The impugned modification has been made by the State Government under the powers conferred under sub-clause (ii) of clause (a) of sub-section (1) of Section 17 of the Gujarat Town Planning and Urban Development Act, 1976 [hereinafter referred to as, `the Act], under the Notification dated 31/01/1986.
( 2 ) IT appears that prior to the impugned Notification, Regulation 9. 5 of the Draft Development Plan prepared by the Authority reads as under :-"9. 5 Responsibility of Licensed Architect / Engineer / Surveyor - (i) It shall be the duty of the person who prepares plans and sections to see that the existing position on the site is correctly represented on the plan. He shall also comply with the other requirements prescribed under these regulations, and as directed by the Authority. (ii) It shall be the duty of the Architect/engineer/surveyor : (a) To see that adequate provision is made for ensuring the safety of workers and others during excavation, construction and erection. (b) To see that adequate provision is made for providing safe and adequate temporary structure required for construction and erection. (c) To bring to the notice of the authority deviation, if any, from the approved plans and layouts made by the owner. "by the impugned Notification, under paragraph 93 thereof, clause (iii) has been added to the above Regulation 9. 5 which reads as under :-"93. AFTER regulation No. 9. 5 (ii), a new Regulation No. 9. 5 (iii) shall be added as under :- `the duties of the licenced Architect / Engineer /surveyor, prescribed under regulation (i) and (ii) above for various types of buildings and Land Developments are enumerated below : designation type of work -- licenced preparation and execution architect of plans and designs for: a) Low rise and High rise buildings. b) Load bearing struc- tures and frame structures. c) Layouts. Licenced 1)Preparation and execution engineer of plans and designs for: a) Low rise and High rise buildings. b) Load bearing and frame structures. c) Layouts. 2) Design and execution of structural members in buildings. 3) Overall safety of structures. Surveyor preparation and execution of plans and designs for: a) Low rise buildings. b) Load bearing struc- tures and framed structures. c) Layouts. "
( 3 ) IN view of the above modification, it is only the licenced Architects and licenced Engineers who are permitted to prepare and execute the plans and designs for the high rise buildings i. e. , the Surveyors are precluded from preparing and executing the high rise buildings. It is this modification which is the cause of action in the present petition.
( 4 ) MR. Kapadia has submitted that the Surveyors are as qualified as the Architects and Engineers are. In fact, certain Surveyors are far more experienced and better equipped to prepare and execute the plans for high rise buildings. Hence, the differentiation made amongst the Architects, Engineers and Surveyors in respect of preparation and execution of the plans and designs for high rise buildings is not based on any intelligible criterion and has no nexus with the objects of the Act. The said modification is, therefore, ultra vires Article 14 of the Constitution and requires to be quashed and set-aside. He has also submitted that the impugned modification is ultra vires Section 119 of the Act and ultra vires Article 19 (1) (g) of the Constitution in as much as the petitioners are deprived of their right to carry on their business in the manner they were hitherto carrying on.
( 5 ) I
