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R.J. Sanopja Vs. Municipal Corporation of Delhi and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 626 of 1964
Judge
Reported in10(1974)DLT8
ActsDelhi Municipal Corporation Act, 1957 - Sections 333
AppellantR.J. Sanopja
RespondentMunicipal Corporation of Delhi and anr.
Advocates: S.C. Malik,; Vijay Kishan and; B. Dayal, Advs
Cases ReferredIn State of Gujarat v. Vora Fiddali
Excerpt:
.....by impugned resolution - restriction is with regard to petitioners preparing plans of buildings in respect of plots of lands of more than specified area - such restriction cannot be imposed by mere resolution - restriction requires authority of bye-law - held, respondent-corporation not to enforce restriction contained in impugned resolution without framing bye-laws according to law. - - architects, engieers and town planners and lays down various scales of fees for their licensing the petitioners do not feel aggrieved either by the icensing or the fees, but they feel aggrieved by the provision in the said resolution which prescribes that a licensed draftsman like the peti tioners would be entitled to submit building plans for plots, not exceeding 300 square..........which prescribes that a licensed draftsman like the peti tioners would be entitled to submit building plans for plots, not exceeding 300 square yards in area. similar restrictions with regard to submitting plans not exceeding the particular area have been made in respect of architects and engineers while the town planners have been given the unrestricted right to submit plans in respect of plots of land of any size. after this resolution had been passed, the petitioners were required to submit themselves to the restrictions contained in the resolution and obtain llcenses accordingly. aggrieved by it,the petitioners have filed the various writ petitions in ihis court. they have contended that the corporation has not framed any bye law imposing the aforesaid restriction and so their.....
Judgment:

B.C. Misra, J.

(1) This order will dispose of Civil Writ Nos. 626, 627, 62h and 629, all D of 1964, They have been tiled by various licensed draftsmen who have been required by the Municipal Corporation cf Delhi to apply for registration in accordance with their impugned resolution dated 18th August, 1964 Which restrict their practice.

(2) The mater at facts of the case are that the Delhi Municipal Committee which was the predecessor of the respondent Corporsuon framed bye-laws under sections 189(3), 190 and 191 of the Punjab Municipal Act ill of 1911. These bye-laws were framed oa or about 14th June, 1948 and copies of them have been filed by the petitioner as Annexure P. 1. These bve-laws do not require any detailed consideration, but it may be relevant to mention that they state that all plans accompanying the application for sanction to build shall be prepared by a draftsman licensed by the Municipal Committee and the license shall be granted to such persons who, in the opinion of the Muaicipil Engineer, have duly qualified themselves to be draftsmen. The remaning bye-laws only indicate the fes, the period of the license and further prescribe that the licensed draftsman shall make and prepare all drawings, plans, sections and other delintations for the intended building to a scale and shall sign the plan. Bye law No. 11 further prescribes that no application shall be entertained unless it is accompanied by the plans prepared by the licensed draftsman.

(3) On 28th December, 1957, an Act known as the Delhi Municipal Corporation Act 66 of 1957 was passed by the Parliament and although some of its provisions came into force earlier, the whole of the Act came into force wilh effect from 7th April, 1958. Section 516 of the said Act prescribes that the Punjab Municipal Act shall cease to have effect, but all the byelaws issued under it will continue to be inforce and be deemed to have been made, issued or granted under the provisions of the Corporation Act unless and until it is superseded by any bye law made or issued under the Act. Consequently the aforesaid bye-iaws preserve their statutory force after the advent of the Corporation Act. The Act, however, in clause (25) of section 2 has made provision for licensing architects, draftsman. Engineers, Plumbers, Surveyor and Town Planners. On the report of the Commissioner, the Municipal Corporation considered the matter and finally pasted a resolution in dispute No.289dated l8ih August, 1964 (copy of which has been placed on the file as Annexure A attached to the affidavit of Mr. Ved Parkash, Assistant Engineer (Buildings). Tnis resolution prescribes the qualifications for licensing all draftsmen. Architects, Engieers and Town Planners and lays down various scales of fees for their licensing The petitioners do not feel aggrieved either by the icensing or the fees, but they feel aggrieved by the provision in the said resolution which prescribes that a licensed draftsman like the peti tioners would be entitled to submit building plans for plots, not exceeding 300 square yards in area. Similar restrictions with regard to submitting plans not exceeding the particular area have been made in respect of Architects and Engineers while the Town Planners have been given the unrestricted right to submit plans in respect of plots of land of any size. After this resolution had been passed, the petitioners were required to submit themselves to the restrictions contained in the resolution and obtain llcenses accordingly. Aggrieved by it,the petitioners have filed the various writ petitions in ihis Court. They have contended that the Corporation has not framed any bye law imposing the aforesaid restriction and so their resolution is invalid and ineffective in varying the provisions of the existing bye-laws under the- Municipal Act. They have also contended that the impugned order places an unreasonable resiriction on their right to carry on their profession and infringes Articles 14 and 19 of Coationsn

THECorporation in its reply affidavit has contended that they have not placed any restriction on the right of the petitioners to carry on their trade or profession anywhere and in any maner they like but the restriction has been placed in public interest on unqualified or less qualified persons to prepare plans of larger area and that their getting a benefit under the licenses does not confer a fundamental right on the petitioners. The Corporation has also placed reliance on building byelaws Nos. 6 and 9 dated 4th April, 1959 and the provisions of section 430 of the Act to justify the legality and validity of the resolution of the Corporation. In substance they have urged that the resolution only implement the building bye-laws already framed under the law and they do not require any fresh bye laws.

(3) I have heard the arguments at length and considered the matter carefully. Clause (25) of section 2 of the Act reads as follows : Licensed architect, hcensed draughtsman, licensed engineer, licensed plumber, licensed surveyor and licensed town-planner mean espectively a person hcens under the provisions of this Act as an architect, draughtsman engineer, plumber, surveyor and town planner.'

THISprovision of low gives power to the Corporation to license the Engineers and Draftsmen etc mentioned therein. Section 481, Part 1, sub-clause (7) preserbes that the Corporation may make bye-laws in aspect of any other matter which is to be or may be prescribed by byelaws lender this Act or in respect of which the Act makes no provision or makes insufficent provision and the provision is, in the opinion of the Corporation, in sufficient for the efficient municipal government of Delhi. it may be noticed that the previous bye-laws framed by the predecessor of the respondent under the Punjab Municipal Act were also formed under a similar residuary power to make bye-laws It is common ground that the Is to other specific provision for framing the bye lawston for the draftsmem as such. Mr Bishamber Dayal, counsel for the respondents, relies upon clause (c) of section 430 of the Act and contendes that under this section, the Commissioner is authorised issue licenses and specify in them the particulars mentioned therein. Let examine this proposition of law. Section 430 (1) and (2) are quoted below for ready reference :-

'439)Whenever it is provided in this Act or any bye law made there under that a license or a written permission be granted for any purpose, such license or written permission shall be signed by the Commissioner or by the officer empowered to grant the same under this Act or the bye-laws made there under or by any municipal officer authorised by the Commissioner or such officer in this behalf and shall Specify in addition to any other matter required to be specified under the other provision of this Act or any provision of any bye-law made there under- (a) the dale of the grant thereof: (b) the purpose and the period (if any) for which it is granted ; (e) restrictions or conditions, if any, subject to which it is granted; (d) the name and address of the person to whom It is granted; and (e) the fee, if any, paid for the license or written permission. (2) Except as otherwise provided in this Act or any bye-law made there under, for every such license or written permission, a fee may be charged at such rate as may from time to time be fixed by the Comm'ssioner with the santion of the Corporation as such fee shall be payable by the person to whom the license or written permission is granted. It would appear that the power to issue a license is to be found either ni the Ac or in the bye-laws and the cumstances under which it is to be given end the persons to whom it is issued or not issued must also find a place in the bye laws Under Section 430, the Commissioner has been given the power to issue the licenses or written permission according to law and the provision requires that the license or written permission so issued shall not only specify the makers required to be specified by law but also the date of the grant of the hceancethe purpose and period of the license, the name and address of the person to whom it is graued and the fee if any paid for the license or permission. Clause (e) read with the governing clause of sub section (1) of section 430 would show that the prevision requires the Commissioner to specify in the license the restrictions or conditions, if any, subject to which it is granted. In other words, the license must contain a formal expression of the restrictions and conditions on which it has been issued, but it does not confer any power on the commissioner to impose himself restrictions and conditions which are not sanctioned by the bye laws or the provisions of the Act. By way of comparison and contrast, reference may be made to section 408 of the Act which expressly provides that the Commissioner may not city charge the fees, but may grant the license subject to such condi Cliomns- consistent with the Act and the bye-laws as he thinks fit to impose. Similar provision is contained in section 415(2) in respect of grant of license . If the contention of Mr. Bishamber Dayal were correct, that the source of the power of the Commi-sioner to impose restrictions and condnions arises from clause (c) of section 430 of the Act, It is obvious that the express provisions in sections 408 and 415, amongst others, would be redundant. Another instance will throw further light Clause (e) of sub-section (1) of section 430 requires to specify in the license the fee if any paid for the license or the written permission. If the contention of Mr. Bishamber Dayal were correct, clause (c) not only deals with the specification in the license but also provides the source of the power to impose the fee, but this construction is not possible in view of subjection (2) which gives a power to the Commissioner to fix the fees from time to t'ime with the sanction of the Corporation. On the construction contended by Mr. Bishambar Dayal, either clause (e) or sub-section (2) would be superfluous which could not be intended this is only to lest the validiy of the submission of Mr. Bishambar Dayal In my opinion, the two are wholly recon'cilable. Subsection (2) of section 430 gives the power to the Commissioner to fix and chargs the fee and it constitutes the source of his power while clause (e) only requires the specification of the fee paid and does not deal with the legal power or provisions to fix the fee. Same is true of clause (c), the provisions of section 430 do not support the validity of the impugned resolution of the Corporation.

(4) Mr. Bishambar Day I has next submited that the building bye-laws Nos 6 and 9 constitute sufficient authority for imposing rest trictions sought to be made by the impugned resolution. The building bye-law have been framed undcr sections 333, 384, 335, 336, 346 and 481 of the Act as is apparent from the Premable. Building laws Ncs. 6 and 9 read as follows :-

ALLthe plans shall be duly signed by the owner and the licensed architect, engineer or draftsman and should indicate their names, addresses, qualifications and license number.

9.The Commissioner may decline to accept any plan, section or sub-section which does not bear the signatures of a licensesd Architect, Engineer or Draftsman in token of its having been prepared by the licensee or under his supervision.

NOfault is or can be found with the aforesaid bye laws. They prescribe that all building plans which arc sought to. be filed in the office of the Corporation in pursuance of section 335 and others of the Act must be signed by the owner and licensed Architect, engineer or Draf'sman and the Corporation is free to refuse to accept them if they are not so signed. The d fficulty, however, arises when Mr. Bishamber Dayal urges that to mprement the aforesaid laws the question who the licensed draftsman man wcu!d be and what would be the restrictions on their preparing and signing the plans do not require sarction of bye-laws but can be determined by the corporation by 'their resolution.

(5) Section 333 requires evtery person who intends to erect a building to give notice in writing of his intention insuch form containing such information as may be prescribed by the bye-laws Sub-section (2) provides that every such notice shall be accompanied by such documents and pleas as may be so prescribed. Similarly section 34 deals with application for adjudication to or repairs of buildings and sub-section (2) again requires such notice to be accompanied by such documents and plans as may be prescribed Section 335 has a more direct bearing it may be quoted as follows ;-

'335,(1) A person giving the notice required by section 333 shall specify the purpose for which it is intended to use the building to which such notice relates; and a person giving the notice required by section 334 shall specify whether the purpose for which the building is being used is proposed or likely to bs changed by the execution of the proposed work.

(2)No notice shall be valid until the information required under sub-section (1) and any further information and plans which may be required by bye-laws made in this behalf have been furnished to the satisfaction of the Commissioner along with the notice. A persual of the said statutory provision shows that a notice of intention to erect a building or to execute a work must be accompanied by such further information and plans as may be required by the bye-laws for construction to the satisfaction of the Commissioner and in the absence of such plans and information, the notice would not be valid. The preparation and furnishing of the plan is, thereforee, an integral requisite of the statutory provision and the information must be required by byelaws and not by the Corporation or the Commissioer in his executive capacity. It, thereforee, follows that the preparation of the plans, the persons who should prepare them and the restrictions on the work of the draftsmen cr Enginers to preparc such plans form an integral part of the statutory provisions of section 335 and the building' byelaws framed under the law. They must consequently by regulated by the bye laws themselves and an execu'iye resolution of theCorporation is no substitute for the bye laws are a species of law and bind the public at large without their consent.

(6) In State of Gujarat v. Vora Fiddali, : [1964]6SCR461 in construing the words the xisting law' in Article 366(1) of the Constitu lion it was observed that law would include laws passed by a competent authority as well as the rules, bye-laws and regulations made by virtue of statutory power and would not include administrative orders which are tracable not to any law made by the Legislature but derive their source from executive authority and arc made eiher for the convenience of the administration or for the benefit of the individuals, though the power to make laws aswell as these orders would vest in the same authority. Section 21 of the General Clauses Act provides that where, by any Act, a power to issue orders, rules or bye-law is conferred, than that power includes a power, exercisable in the like manner and subject to the like saction and coaditions, if any to add to, amend, vary or rescind any orders, rules or byelaws so issued. from the said provision, it would follow that the power to add to, amend, vary or rescind the bye-laws is to be exercised in the same manner as framing of the bye-laws. In Nazir Ahmad v King Emperor it was observed that when a power is given to do a certain thing in acertain . way, the thing must be done in that way or not at all. In Halsburys Laws of England, Third Edition, Volume 9, paragraph 129, it is mentioned that the power of a Corporation created by statute are limited and circumseribed by the statues which regulate it and extend no further than is expressly slated thereini, or is necessarily and properly required for carrying into effect the purposes of its incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the Legislature has authorised and what the statute does not expressly or impliedly authoriea is to be takes to be prohibited. From the above discussion, it follows that the Muiicipal Corporation has no power to add to add yo , and or vary by a mere resolution the bye-laws relating to the Draftmen which had been framed under the Punjab Municipal Act and had bee.continued under section 516 of the Delhi Municipal Corporation Act, nor did it have power to similarly add to, amend or vary its own bye-laws Nos. 6 and 9 iramed under section 335 and other provisions of the Municipal Corporation Act. Consequently the Corporation must frame and promulgate proper bye-laws on the suoject according to law and the Corporation cannot extend or restrict or modify the scope or content of its building bye- laws 6 and 9 by the impugned resolution.

IN my opinion, the object behind the impugned resoluion is certainly lgudable and the attempt to improve the services in submittag the building plans of large, valuable or difficult constructions by more highly qualified Engineers and not leave it in the hands of unqualified persons is certainly an advanced step in public interest to protect the interests of the public at large. I do not find any force in the sub mission of the counsel for the petitioners that the impugned resolution imposes unreasonable restrictions on their right to carry on their trade or it infring their fundamental right guaranteed by clause.(g) of Article 19(1) of the Constitution. The petittioner-draftsmen are perfectly free to carry on their profession in any manner and at any place they likw and the Corporation is not feeling concerned about the same. All it insists upon is that the plans submitted to it in respect of certain classes of buildings must be prepared by licensed Town- Planners, Architect, Engineers or Draftmen according to the rules prescribed by it. This restriction would certainly be saved by subclause (1) of clause (6) of Article 19-of the' Constitution as being a law relating to professional or technical qualification necessary for pract sing any profession or carrying on any occupation, trade or business. The restriction would be regsonable and legal if the Municipal Corpoation which is a State with in the meaning of Article 12, frames a law as defined by sub-clause (a) of clause (3) of Article 13 of the Constitution as an order or bye law having the force of law. Surely the impugned resolution of the Corporation does not have the force of law and it must, thereforee, frame a byelaw in accordance with the provisions of ihe Act.

(7) A look at the resolution shows that it refers to section 2(2:) of the Act with regard to the power to license.; and mentions building bye-law No. 6 and then proposes to lay down qualifications for licensing various catagories For example is required to be a person hold- ing a degree or diploma in architecture recognised by the Indian institute of Architects with two years practical experience after having obtained the qualifications or an Associate Member of the Indian lnstitute of Architects or an Associate Member of the Royal Institute of British Architects with.one year Practical experience ; A Town Planner is required to be a holder of a degree or diploma or equivalent qualifcad recognised by the Institute of Town planner, with basic qualification in Architeture of Civi1 Engineeriag with one year's experience ; For persons holding degree or diploma or equivalent qualifications recognised by the Institute of Town Planners, with basic qualifications in Architecture or Civil Engineering it prescribed three years experience in the line and these persons can submit building plans for areas exceeding 200square yards.. An engineer is required to be a holder of a degree or diploma in Civil Engineering of a recognised University or Institution with three years practical experieace, while in respect of a Draftsman, it is slated that he must possess the qualifications of having pasted Intermediate Examination in Architecure from a University or lnstitute recognised by the Indian Institute of Architects or diploma in Civil Engineering with three years experience. In respect of existing registered draftsmen, the resolution says that at present there are quite a number of unqualified persons registered as draftsmen and are enjoying the right of submitting building plans and layout plans without any restriction to the size and magnitude of the work, but, however, looking to their experience in the tradc they may be permitted to continue to practice as draftsmen restricting their scope of work to submit building plans for the plots pot exceeding 300 square yards and in future no fresh license shall be issued unless and untill the persons fulfill the requsite qualification The resolution has also noticed the report of the Coinmissioner who had stated the recommendations of the Indian Standard Institute and the bye laws of that Municipal Corporation of Bombay dealing with the matter.

(8) It appears to me that this change was perhaps intended to be effected by being incorporated in the bye law, but whether that is so or not, it could in law not be effected by a mere resolution of the Corporation without authority of the bye-laws and so in any view of the matter, it would be appropriate that the Municipal Corporation frames bye laws on the subject according to law.

(9) The counsel for the petitioners also submitted that the petitioners have not had any opportunity to show cause against the impugned resolution and the rule of natural justice had been violated. This argurment has no force in the circumstances of the case. But at all cvents, it is redundant since should the Corporation decide to frame bye-laws, It will have to act according to law and the petitioners and the members of the Public would have ample opportunity to put forward their points of view

(10) As a result, the writ petitions succeed. The petitioners do, vide ground No. Viii, not feel aggrieved by the mere fact of licensing or the fixing of an increased license fees. They arc right in their concession since the power to license flows from section 2(25) of the Act as well as the previous bye-laws, while the fixation of the fees for the license can be done by the Commissioner with the sanction of the Corporation under section 430(2) of the Act. The grievance of the petitioners is confined to the restrictions imposed by the Corporation by the impugned resolution upon their preparing plans of buildings in respect of plots of land of more than specified areas This restriction cannot be imposed by a mere resolution and requires the authority of a bye-law. Consequently a mandamus is issued directing the respondents not to enforce the aforesaid restrictions contained in the impugned resolution without framing according to law appropriate bye laws on the subject. In the circumstances of the case, parties will bear their respective costs.


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