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Judgment
A.M. Khanwilkar, C.J.—This petition takes exception to Rule 26 of the Madhy a Pradesh Bhumi Vikas Rules, 2012, being ultra vires Article 14, 19 and 21 of the Constitution of India and also repugnant to various provisions of the National Building Code, 2005. Indubitably, Rule 26 of the Rules of 2012 is an enabling provision empowering the Authority to issue licences to the Structural Engineers, Engineers, Supervisors and Town Planner, who possess the minimum qualifications as laid down in sub-rule (2). Sub-rule (2) provides for qualification prescribed for grant of licence to an Engineer etc. Sub-rule (3) envisages mechanism to be followed for grant of licence and sub-rule (4) obligates the Authority to maintain a register in respect of persons to whom licence is issued or renewed. The relevant portion of Rule 26 with which we are concerned reads thus:--
Licensing of Engineer, etc.--(1) ....
(9) An Architect or a licensed Structural Engineer/Engineer/Supervisor/Town Planner shall be competent to perform the duties indicated hereinbelow:--
(A) Architect - Competence - An Architect who is registered with the council shall be competent to carryout work related to the permission for building and shall be entitled to submit:--
(a) all plans and information connected with permission for all building irrespective of size and height;
(b) structural details and calculations for residential buildings on plot up to 500 square meters and up to three storeys or 11 meters in height;
(c) certificate of supervision and completion of all buildings:
(d) all plans and related information connected with permission for development of area up to 4 hectare: and
(e) certificate of supervision for development of land area up to 4 hectare.
(B) Structural Engineer - Competence - The licensed Structural Engineer shall be competent to carry out the work relating to permission of building, and shall be entitled to submit:--
(i) all plans and information connected with permission for residential buildings on plots up to 500 Sq.m. and up to three storeys or 11 m. in height;
(ii) The structural details and calculation for all buildings;
(iii) Certificate of supervision and completion of all buildings;
(iv) All plans and related information connected with permission for development of area up to one hectare;
(v) Certificates of supervision for development of land area up to one hectares.
(C) Engineer- Competence - The licensed Engineer shall be competent to carry out the work related to the permission for building as given below and shall be entitled to submit:--
(i) all plans and information connected with residential building on plot up to 300 sq.meter and up to two storeys or 7.5 meter in height.
(ii) Structural details and calculation for all buildings on plots up to 500 sq.m. and height up to four storeys (15 m);
(iii) Certificate of Supervision and completion for all buildings:
(iv) All plans and related information connected with permission for development of area up to 1 hectare; and
(v) Certificate of supervision for development of land area up to 1 hectare.
(D) Supervisor - Competence- The licensed Supervisor shall be entitled to submit:--
(i) all plans and related information connected with permission for residential buildings on plots up to 200 sq.m. and up to two storeys or 7.5 meters height;
(ii) certificate of supervision for buildings in (i) above.
(E) Town Planner - Competence - The licensed Town Planner shall be entitled to submit:--
(a) all plans and related information connected with permission for development irrespective of the size of land; and
(b) certificate of supervision for development of land as in (a) above.
(F) Group or Agency - When an agency or group of qualified architects, engineers, town planners is practicing, then the qualification and competence of work shall be equivalent to the highest competency of individual in the group or agency.
(Emphasis supplied)
With reference to the efficacy of sub-rule (9) of Rule 26, the petitioner has delineated the issues of discriminatory treatment meted out to Civil Engineers. It may be useful to reproduce the said chart which reads thus:--
Relying on the abovesaid comparison it is contended that the sweep of Rule 26, in particular sub-rule (9) Clause (C), is, on the face of it, discriminatory and arbitrary. In that, there is no difference much less substantial difference in the technical qualifications of Architects and Engineers as both these professionals are qualified and have the necessary knowledge and expertise to engage themselves in building construction and development activities. In other words, there is no qualitative difference between the abilities of Architects and Civil Engineers by virtue of their qualifications. If so, the distinction as made by sub-rule (9) of Rule 26 is without any basis and has no rationale with the object sought to be achieved by the said rule.
To buttress this submission, reliance is placed on the decision of Division Bench of the Bombay High Court in the case of Meghana A.P. Desai (Smt.) and Vikas Vithal Desai Vs. Union of India (UOI) and Others, . Reliance is also placed on another decision again of the Division Bench of the Bombay High Court in the case of Shri Suhas Naik Vs. Planning and Development Authority, .
After analyzing the stand taken by the respondents, it is not possible to countenance the logic for making the distinction between the Architects and Civil Engineers in respect of conditions of grant of licence. On the other hand, the finding that we are inclined to record, as has been already analysed and opined by the Division Bench of the Bombay High Court, is that there is no substantial difference between the technical qualifications of Architects and Engineers and both these professionals are equally qualified and equipped in engaging themselves in building construction and development activities. They have full knowledge and expertise in that behalf. The nomenclature of the degree possessed by them, therefore, by itself cannot be the basis to make discrimination in the scope of licence issued to the Civil Engineers in contradistinction to the scope of licence issued to the Architects. The stand taken by the respondents was also taken before the Bombay High Court by the Authorities, which has been considered and negatived. We have no hesitation in adopting the same view as is taken by the Bombay High Court in this behalf.
In the circumstances, we are inclined to hold that the distinction made between the scope of licence to be granted to the Civil Engineers and that to Architects, is discriminatory and hit by Article 14 of the Constitution of India. As a consequence, it would follow that highlighted portion of sub-clause (C) of sub-rule (9) of Rule 26 will have to be struck down; and further to declare that the highlighted portion contained in sub-rule (9) Clause (A) would apply proprio vigore to Engineers as in the case of Architects for grant of licence and the scope of licence to be issued to Engineers. We are conscious of the fact that the petitioners have not asked for the latter relief as has been granted. But to do complete justice in the matter it is necessary to mould the relief''s on the above terms, for the reasons recorded hitherto. Petition allowed on the above terms.