Foreign architect
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In this article, Shreyanshi Maheshwari, pursuing B.A.LL.B from Symbiosis Law School, NOIDA discusses that, can foreign architects practice in India

Introduction

The profession of architecture in India has undergone a drastic change in the past decade. The past few years have been turning point not seen since the independence of India.

The increasing economy and the growing middle class have caused the developers to bring the foreign architects for designing bungalows, resorts, airports, residential and office buildings.

Currently, there are many companies practicing architecture in India. The profession of architects is governed and regulated by the Architects Regulation, 1989 (as amended in 2003).

What is Architecture?

Architecture deals with the process of designing, planning, constructing, maintenance and restoration of buildings, and physical structures. It has the elements of science, art, aesthetics, technology, and mathematics in it.

According to Oxford dictionary, ‘Architecture’ is the art or practice of designing and constructing buildings.

Who is an Architect?

An architect is a professional who renders services in relation to designing, planning, and construction of buildings and physical structures. Architects have knowledge in the areas of designing, project management, construction management, material management, cost estimation and legal matters related to the profession of architecture.

According to Section 2(a) of The Architects act, 1972, ‘Architect’ means a person whose name is for the time being entered in the register.

Architecture Firms follow these business patterns

Sole Proprietorship

Partnership Firm

Private Ltd Company

Individual ownership. Shared ownership between two or more people. Increase in the size of the firm and annual income.
  • Individual invests capital.
  • Individual has the decision making authority.
  • Single owner is responsible for both profit and loss.
  • If not registered as a limited liability company or corporation with the state. Then the owner does not pay income tax separately for the company but mentions income or losses on his/her personal income tax return.
  • Investment of capital is done by all the partners.
  • Partnership activities are governed by (Indian Partnership Act, 1932).
  • Sharing of profits can be equal or unequal as per the terms of the agreement.
  • All the partners in an architectural firm should be registered architects (Architects Act, 1972).
  • As per the Companies Act, 1956, the company is to be registered with the Registrar of the Companies.
  • If any of the members of the company is a non-architect than the company will be registered as business firm and not a professional firm.
  • They can offer a variety of services under one roof.

Illegal Practices in the Architecture profession

There are three aspects under which the profession is illegally practicing in the modern day:

Illegal Practice 1- Foreign companies practicing with the local players in India

  1. Have unregistered Foreign/Indian directors in the company.
  2. The company is registered to pay Architecture service tax.

Illegal Practice 2- Indian companies practicing

  1. Have unregistered Foreign/Indian directors in the company.
  2. Company registered to pay Architecture service tax.

Illegal Practice 3- Indian company practicing architecture

  1. Have registered Indian Directors.
  2. The company is not registered to pay Architecture service tax.

Requirements for practicing as an architect in India

  • Registration with COA (Council of Architects, constituted by Government of India under the provisions of The Architects Act, 1972) as an architect.
  • Registration with the Tax Department of India as an architectural practice.

Registration with the Council of Architecture

One cannot use the title ‘Architect’, if not registered with the Council of Architecture in India.

Qualifications required for registration as specified by the Architects Act, 1972 [see here]

  • A recognized architectural degree or diploma.
  • Resides in India.
  • If he/she is not an Indian but is engaged in the practice for not less than 5 years.
  • Possesses other qualifications that certify his application for registration (Search here).

Section 37(1) of the Architects Act, 1972

Prohibition against use of title.

  1. No individual other than a registered architect, or a firm of architects may use the title and style of an architect after the termination of one year from the appointed date under sub-section (2) of section 24 provided that the provisions of this section do apply to:
  1. A designated “landscape architect” or “naval architect” practicing the profession of an architect. Wherein “landscape architect” means any person dealing with the designing of open spaces relating to plants, trees and landscapes, and “naval architect” means a person dealing with the designing and construction of ships.
  2. A person who is carrying on the profession of an architect outside the boundaries of India as far as he has the prior permission of the Central Government to undertake the position as a consultant or designer in India for a specific project.

Case: Premendra Raj Mehta and Ors vs National Building Construction Corp. Ltd. and Ors [W.P. (C) 2106/2012]

Facts

The petitioners, registered architects under the Architects Act, 1972 complained that respondent no. 1 National Building Construction Corp. Ltd. (NBCC) has awarded to respondent no. 4, a foreign firm, work for providing consultancy services for a project of redevelopment of Kidwai Nagar, East, though the firm is neither registered under the Architect Act, 1972 nor has it taken permission from the Government in terms of the proviso to Section 37 of the Architect Act,1972. Therefore, petitioners seek relief through the issue of the writ of certiorari and mandamus.

NBCC in the counter affidavit claimed that petitioners have no locus standi in the present petition and also submitted that the petition does not comply with the Delhi High Court (PIL) rules, 2010. NBCC states that section 37 of the Act only regulates the use of the term “architect‟ as title or style and has no bearing on the right to engage any architectural practice.

Work awarded by the respondent no.1 is for comprehensive services not limited to architectural services but extends to other fields such as consultancy and engineering as well. It is further submitted that the architectural functions assigned to respondent no.1 would be carried out principally by its Indian partners M/s Sapna Kumar who is duly registered under Section 37 of the Act.

Issues

  1. Whether the petitioners have Locus Standi to file the writ petition?
  2. Whether or not the respondents have violated the terms of Section 37 of the Architects Act, 1972?

Court’s Reasoning

  1. The petitioners have no Locus Standi as the petition was not filed in public interest and during the hearing the petitioners had also stated that they have not filed a PIL. Being the registered architects under Section 37 of the Architect Act, 1972, the petitioners had a personal interest in the outcome of the petition, therefore, they cannot possibly file a petition in public interest.
  2. No, the respondents have not violated the terms of Section 37 of the Architects Act, 1972. As we read Section 37 of the act which is laid down under the heading “Prohibition against use of title” shows that though the provisions herein bars a person other than a registered architect or firm of architects from using the title and style, but it does not stop him from giving architectural services as long as he does not use the expression architect or firm of architects.

Holding

V.K.JAIN, J held that “For the reasons stated hereinabove, I find no merit in the writ petition and the same is dismissed. No order as to costs.”

Opinion

Such interpretation of law may lead to unqualified persons providing services such as supervision of construction of buildings and the constructions supervised by such persons may not be safe and economical, but, then the remedy lies in the hands of the Parliament who have the power to amend the provisions of the act, and not in the court taking an interpretation of the already existing provisions of the act.

(For full judgment see here)

What is being done?

The Council of Architect is asking the illegal organizations to either shut down or change their MoA (Memorandum of Association). It is summoning illegal/ unregistered practitioners. Companies are also facing criminal charges against them.

  1. A circular was released by Ministry of Corporate Affairs (MCA) on 10th October 2011, instructing all ROCs (Registrar of Companies) and RLLPs (Registrar of LLPs) to not register any company having the architecture in their MoA. (For Notice see here #116).
  2. Another circular was released by MCA to ROCs and RLLPs on 1st March 2012, reinforcing the October circular and all ROCs and RLLPs were to refer to the respective regulatory body before registering a company. Therefore, for architects, the Council of Architects was to be referred. (For Notice see here).
  3. Council of Architects on 15th November 2014 issued a Public Notice for Information and Guidance. (For Notice see here).
  4. Council of Architects on 15th November 2014 also issued a Public Notice regarding Unqualified and Unregistered persons practicing as architects wherein they asked such persons to stop the use of the title and style of architect and/or practicing architecture immediately or else they will face penal action against them. (For Notice see here).

Conclusion

The love of Indians for all foreign things can be seen everywhere and most of the real estate players utilize this opportunity. That is the reason many of them advertise their residential and commercial projects as the one being designed by reputed international architects, giving buyers a misleading impression that the apartments made by foreign collaborations are of the international level and of better worth. However, by doing this, they are violating the provisions of Section 37 of the Architects Act, 1972, which prohibits a foreign architect from working in India without the prior permission of the Government of India.

References

  1. https://timesofindia.indiatimes.com/business/india-business/Architects-keep-foreign-players-out/articleshow/23433916.cms
  2. http://www.thehindu.com/news/cities/Delhi/HC-dismisses-petition-against-foreign-architects/article17279363.ece
  3. https://www.coa.gov.in/
  4. http://epaper.timesofindia.com/Repository/ml.asp?Ref=VE9JQS8yMDEzLzEwLzAzI0FyMDE1MDA%3D
  5. https://indiankanoon.org/doc/194771575/

 

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