01 - We have seen earlier that the professional activity means giving a well-documented advice to those who need it. As is for any other professional activity, the advice can not be produced like a commodity, stored and marketed and made available on the shelves in retail shops to consumers. It is not a ‘service’, which is rendered either by skilled or unskilled person engaged in some ‘vocation’ or in a ‘business’ or a trading activity. The advice is normally sought only from the person in whom one has trust.
Similarity with other creative activities
02 - The architectural activity has some similarity with all other creative activities like painting, music, drama, literature, sculpture etc.; but it is different in one aspect. In painting, the painter may at his free will purchase, with his own resources, the necessary painting materials and can produce as many paintings and in whatever manner as he may desire. He need not wait for a request from his admirers or his prospective clients.
03 - In case of music, a musician can have his instruments and play, record, or write notations without even being asked by some one to do so. So is also the case with a dramatist, a laureate or a poet or a sculptor. All of them can engage themselves in the activity of their own choice and enjoy for themselves; and if someone desires then, they may allow him to enjoy, say, by listening the music or by looking at a painting or sculpture or by reading the drama, either with or without any charge. Anybody, who has the ability, can undertake any of these activities. It can not be restricted to a few individuals by statutory provisions as in case of legal, medical, accountancy and now architectural professions.
04 - In all the above cases, the ownership vests with the author and copyright of the author subsists in every such creation. The dramatist owns the drama and he may allow another person for one-time performance of his play by charging him some amount of money as a royalty. For every subsequent performance such a person has to obtain prior permission of the author and also has to pay royalty for each such performance.
05 - In case of architectural activity, every body is free to undertake the building activity. One can purchase a piece of land and construct a building of any shape and of any magnitude, provided the local authorities do not object. He can also use it for himself or give it on lease or sell it like any other property.
Peculiarity of architectural profession
06 - In the ‘professional’ activity in architecture, which is restricted only to the persons registered under the Architects Act, what is involved is the act of giving an advice in designing and planning any construction activity by way of preparation of drawings, specifications and estimates. The creative activity which is documented through drawings etc. is an advice, its ownership vest with the architect as its author. Like all other creative activities, he allows another person/s a one-time use of his property on payment of fees, which is a sort of royalty or a license fee for one-time use.
07 - An architect can not create standard sets of drawings incorporating his advice, to be made available on demand or just for the sake of seeking pleasure or only for appreciation by looking at colorful drawings of “fantastic designs". Therefore, whatever work he is required to do to form his opinion and convey his decision to his client, can be started only on his engagement as an architect. What he gives in the documents, which he prepares to incorporate his advice in the matters of design, planning and the estimates, is a realistic picture of the shape of things, the sequence of working and the financial requirements for realizing the object, a building or a useful structure, to enable his client to arrive at the proper decision about it, before undertaking the physical construction activity; and such advice can be used only once and on the specific piece of land. This is the peculiarity of the architectural profession.
Comparison with other professions
08 - An advocate is undertaking a professional activity, when he expresses his opinion in the matter referred to him; but he acts as an agent when he appears in the Court to represent and plead the case of his client. He is an officer of the Court when he appears in the Court to plead the case of his client. He is expected to assist the Court in rendering speedy justice.
09 - A doctor is acting as a professional, when he examines a patient, diagnoses the causes of his ailment and prescribes some medicine and a course of related actions; but when he provides nursing facilities to his patient, that activity is a 'service' to his patient.
10 - When a Chartered Accountant audits financial statements in the books of accounts of his client and issues an audit report, which is his assessment of the financial health of the enterprise, he is acting as a professional; but if he undertakes to maintain the books of accounts for his client and appears before the authorities to plead the case of his client, he is acting as an agent.
11 - An architect acts as a professional, when he provides his advice in respect of design and planning of a building and superintends its erection. He visits the site of work to ensure that the erection work is going on, as per his advice and the design; and that the design, which is his exclusive property, is not mutilated. He is not supposed to supervise the work on behalf of his client. If he undertakes an activity of designing and erecting his own building so as to make it available for sale to a prospective purchaser, he is doing a business activity of manufacturing and selling a utility product, either with or without any architectural qualities.
12 - Though the architectural activity is a creative activity, it is different from all other creative activities in the field of Art and literature, in one more aspect. The creation in music, painting, drama etc. is illusionary. Though because of technological progress, a creation in music can be stored by recording sounds on an audio cassettes or a gramophone record, the art is in the expression through musical notes and rhythm, which only creates certain images in the mind of a listener. In painting, the paper or canvass and the colours are used to create an illusionary image, either of two or three dimensions. Even in drama, the play enacted on the stage creates an illusion of an event, either real or fictitious.
13 - In architecture, everything that is created is real in every sense of it. It is an object of Art and of utility as well. A building, designed and built for creating facilities for performing certain activities, actually exists in reality. Anyone can perform those specified functions within and around the building for the lifetime of the building. It occupies some area of land and space, which can have in reality good or bad effects. Therefore, the person who designs and superintends the erection of a building must consider the effects of his creation on the life of people moving within and around it. He must be aware of tremendous responsibilities and must be careful in such activity. All over the world, laws have been designed and brought into force to regulate the use of land and the building activity to ensure public health and safety.
Responsibility as a professional
14 - Academic knowledge of a subject is different from the knowledge of essentials of the professional activity. When you advise someone to enable him to take a decision and to act upon such decision, you are accepting a risk. In the first place, you must protect the interest of your client; but at the same time you must protect yourself by proper and foolproof documentation of your advice.
Fee, charges and out-of-pocket expenses
15 - One more point, which is of vital importance, is the charging of fees. The professional is the one who devotes his life-time for the study of the subject and makes his knowledge available, on demand, in the form of ‘advice’ to another person, who needs it; and the in-come from this activity is the only source of his livelihood. This being the case he must receive certain minimum as the monetary gains from that activity for his subsistence. Since this activity can not be quantified, such amount can not be related to the quantum of work done by such professionals.
16 - For this very reason, the principles of “quantum merit”, as is being applied in other countries and accepted by the ‘bigwigs’ in the architectural profession, can not be applied while deciding the fee, which becomes payable to an architect for his efforts involved in giving the advice to his client. In my opinion, such fee, as is prescribed by the Council of Architecture as the minimum, becomes payable immediately on giving such advice, either orally or through some documents. In addition to such fee, the architect is entitled for re-imbursement of all incidental charges and out-of-pocket expenses, as per actuals, from his client.
17 - We find that the Statutory Authorities regulating the medical profession, and that of Chartered Accountants, have not prescribed any scale of fees to be charged to their patients and clients. In case of legal profession the regulatory authority has fixed the maximum fee, based on the cost of the suit. It is only in the case of the architectural profession that the regulatory authority has decided the minimum fees to be charged to the client and it is related to the cost of work.
Why minimum fee for architects?
18 - This is because the building activity involves huge amounts of finance and therefore only those who have enough finance will venture to think of undertaking this activity. Whether he engages an architect or not, he will have to shell out money for bringing building materials and the skilled and unskilled worker to execute the work at site.
19 - Another consideration is that a person who intends to carry out any construction, is certainly having enough money or it can be safely assumed so; and it can also be further assumed that he has deposited such money, at least, in his Saving Bank A/c with the current rate of interest, say @ 6%, right from the date he decides to undertake the construction to the actual starting of the work at site, which period is approximately one year.
20 - With these assumptions, which are certainly valid in every case, it would not be unjust to stipulate the minimum fee to be paid to the architect, immediately on making available complete set of documents incorporating his advice, or at least, before starting any work at site. During his course of activities pertaining to the job in hand, if the architect is required to do some additional work for the project, such as gathering additional information from other sources, carrying out necessary surveys by engaging specialists or for appearing before statutory authorities in that connection, the architect is entitled to raise demands for the payment of appropriate charges. He is also entitled to re-reimbursement of any incidental charges and expenses, such as traveling, hotel bills and conveyance charges as per actual, which he is required to incur.
21 - This being the case, it is unlikely that a client of an architect would not be in a capacity to pay the certain minimum amount of fees and charges. Therefore the activity of giving advice pertaining to any construction activity can not be expected to be undertaken for reduced fee and never be without charging any.
22 - We have seen earlier that the Parliament has enacted the Acts regulating the different professions for protecting the general public from unqualified persons posing themselves as the professionals. This is because a situation may arise in case of every individual where he would not be able to take proper decision independently and he would desperately need consultation with someone. It is observed that in such a situation one normally approaches a person in whom one believes or has trust and is sure that that person would not misguide. For the benefit of the general public, the Parliament has enacted the laws, which identifies such trustworthy persons, to whom members of general public may approach whenever they need.
23 - Every person, irrespective his financial position, can get caught in a situation, where he would need medical advice. In case of destitute person or a person, who can not afford even the minimum of expenses for purchasing the required medicine, (leave aside the fee chargeable by the medical practitioner) the decision about the fees, whether to charge or not to charge, is best left to the individual professional.
24 - Sickness is not a rare occasion in the life of any individual and the paucity of finance is also not likely to remain permanently for the whole of one's life. The cases for medical practitioners are recurring events and they can conveniently afford, in few deserving cases, to render advice and help without charging any fees.
25 - In case of auditing, the value of a single transaction could be in crores of rupees or the cumulative value of hundreds of transactions may not even cross Rs.10, 000.00. For this practical reason the issue of fees to be charged is left to the best judgment of the Chartered Accountant and his client. With some variation the same situation may arise in legal profession.
Another peculiarity of architectural profession
26 - The peculiarity of all these professions is that their activity can not be termed as a creative activity. Advocate has to base his advice on the existing laws. He is only required to interpret it and advise his client as to what course of action would be in accordance with the relevant provisions of law. The same is the case with medical professional, who is only required to examine his patient and diagnose the causes of his ailment and based on his knowledge in field of administration of medicine, he has only to prescribe the drug and its dosage. There is nothing creative in it. He examines a body, which is not his creation, and suggests a remedial measure for the removal of the disturbance in the system; something like a radio mechanic repairing a radio set. Same is the case with Chartered Accountants. They are required to examine the financial records of the client and to express their opinion or to give their advice, if so needed.
27 - In the case of an architect, he is required to decide the shape of a space required for the desired function and to put forth a concrete solution through his design by using the materials available for building up the shape to create the space which he has thought out using his knowledge in the subject of architecture. The building, a shape of things, so created comes into real existence for the first time; and therefore this activity is called a creative activity.
(Excerpts from my paper submitted in 1998 to the Council of Architecture, New Delhi at the request of its President Ar. Premendra Raj Mehta)
(Excerpts from my paper submitted in 1998 to the Council of Architecture, New Delhi at the request of its President Ar. Premendra Raj Mehta)