Use of residential premises for professional activities in housing societies

Issue :

Whether dwelling unit can be used for residence as well as for professional use ?

Reply :

Regulation 1 & 2 of Development control Regulation,1991

Definitions of Terms and Expressions under Development control Regulation,1991.- 

(1) General--In these Regulations, unless the context otherwise requires, the terms and expressions shall have the meaning indicated against each of them. 

(2) Meaning as in the Acts, Rules, etc.- 

Terms and expressions not defined in these Regulations shall have the same meanings as in the Maharashtra Regional and Town Planning Act, 1966 (Mah. Act No. XXXVII of 1966) or the Mumbai Municipal Corporation Act, 1888 (Mumbai Act No. II of 1888) and the rules or bye-laws framed thereunder, as the case may be, unless the context otherwise requires. 

Definition of residence, deemed to reside, and resident is not given in Development Control regulation Act, therefore on has to refer to above two acts for definition on these issue. 

Regulation 14 of Development control Regulation,1991 permits ancillary use:

Ancillary Uses Permitted :

The ancillary uses permitted in various use zones and the conditions governing the same shall be as given in Part-IV

Definition of residence, deemed to reside, and resident as per above referred two Acts are:

(a) Section 2(n) of Mumbai Municipal Corporation Act, 1888. 

a person is “deemed to reside " in any dwelling which he sometimes uses or some portion of which he sometimes uses, though, perhaps, not uninterruptedly. as a sleeping apartment; and a person is not deemed to cease " to reside " in any such dwelling merely because he is absent from it, or has elsewhere another dwelling in which he resides, if there is the liberty of returning to it at any time and no abandonment of the intention of returning thereto; 

(b) The definition of the word “residence” is given in the Maharashtra Regional and Town Planning Act, 1966 Act,(MRTP) which means as under :

Section 2(28) " Residence " includes the use for human habitation of any land or building, or part thereof including gardens, grounds, garages, stables and outhouses, if any; appertaining to such land or building;

Ancillary use vide part IV for professional under Regulation 51(iv) of Development control Regulation,1991 is as under :

Professional offices and studies of a resident of the premises and incidental to such residential use, or medical and dental practitioners dispensaries or clinics of a resident of the building with only out patient treatment facilities without any indoor work, each not occupying a floor area exceeding 30 sq.m. (but not exceeding 50% of the total area).

Opinion: 

The definition of person “deemed to reside” or even “resident” or “reside” is not given in the Development Control Regulation of greater Mumbai of 1991. 

Vide Regulation 2(2) of Development Control Regulation of greater Mumbai ,1991 Terms and expressions not defined in these Regulations shall have the same meanings as in the ; 

(a) Maharashtra Regional and Town Planning Act, 1966 (Mah. Act No. XXXVII of 1966)  or

(b) The Mumbai Municipal Corporation Act, 1888 (Mumbai Act No. II of 1888) and the rules or bye-laws framed thereunder, as the case may be, unless the context otherwise requires. 

The definition of the word “residence” is given in the Maharashtra Regional and Town Planning Act, 1966 Act,(MRTP) which means as under :

Section 2(28) " Residence " includes the use for human habitation of any land or building, or part thereof including gardens, grounds, garages, stables and outhouses, if any; appertaining to such land or building;

The definition of the word “reside” vide section 2(n) as given in the BMC Act, which means as under : 

a person is “deemed to reside" in any dwelling which he sometimes uses or some portion of which he sometimes uses, though, perhaps, not uninterruptedly. as a sleeping apartment; and a person is not deemed to cease " to reside " in any such dwelling merely because he is absent from it, or has elsewhere another dwelling in which he resides, if there is the liberty of returning to it at any time and no abandonment of the intention of returning thereto; 

Chartered Accountancy is neither commercial nor shop but is profession as held by the Karnataka High Court and Bombay High Court (i.e. Jurisdictional High Court) in following cases : 

(a) In view of Judgement of Phillipose & Co. v. the State of Karnataka, C.C. No. 21496 of 1987 ( Citation Nos. 1990 67 Comp cases 154 KAR , ILR 1989 3135 )under Karnataka Shops and Commercial Establishments Act, 1961 — office of the partnership firm of Chartered Accountants is not a commercial establishment as C.As. carry on profession like lawyers or doctors and do not carry on trade or business and cannot be called even as rendering Administrative service ( vide Para 64) and cannot be called as shop or commercial establishment (vide para72)

The Hon. High Court squarely applied Hon. Supreme Court Judgement to vide para 67 to the firm of CA of Hon Supreme Court in the case of V. Sridharan (1984) 65 FJR 374. 

The judge observed : "A profession is a vocation or occupation requiring special usually advanced education and skill. The work and skill involved in a profession is predominantly mental or intellectual rather than physical or manual."

(b) The Bombay high court in criminal writ petition No. 1232 of 1995 have held in in the case of M/S A F Ferguson and Company, and six of its partners that the office of a chartered accountant was not a "business and commercial'' establishment. A division bench of Justice S B Mhase and Justice S R Sathe struck down as "unconstitutional'' sections of the Bombay Shops and Establishment Act that included CAs within the definition of commercial establishments .

(c) Vide Schedule of exempted establishment under Bombay Shop and establishment Act, 1954 vide Entry No. 35vide Notification No. 20(29)/61-Labour dated 12.11.1965 Chartered Accountants office are not commercial establishments and are exempt vide Section No. 15 & 16 of the said Act. 

(d) The Bombay high court in WRIT PETITION NO. 1256 OF 1992 has held that the Chartered Accountancy is a profession and it is not a business. 

Premises used for dwelling as well as for business / office purposes then the dominant user still remains residential :

(a) The Bombay High Court in the case of Lakshman Sintre v. Balkrishna Shetye, BLR page 937 and B. R. Oswas v. Laxmibai, BLR page 214 it was decided that when residential premises are used for dwelling as well as for business office purposes so however that the dominant user still remains residential, it would not be in breach of the bye-laws and regulations of the society as there is no change of user involved.

(b) The Hon. Supreme Court in the case of Delhi Pradesh Citizen council Vs. UOI & Ors. Vide Writ Petition (Civil) No. 263 of 2006 vide para 5 which is in line with DC regulation of Greater Mumbai have held as under : 

“Professional activities will not be permissible except by Architects, Chartered Accountants, Doctors and Lawyers. Even by these professionals, professional activity will not be carried on in excess of 50% permissible coverage in residential premises and by anyone who is not a resident (dwelling) in such premises”. 

Meaning of Residece as per accurate and reliable dictionary :

the act of dwelling in a place 

Meaning of Resident as per accurate and reliable dictionary :

One who resides or dwells in a place for some time. 

The chartered Accountant is profession and use can be incidental use when the same is used as dwelling House by the Chartered Accountant as the word reside means and includes right to use the premises. 

Further, incidental use in dwelling house in above factual and legal ground if not considered then there would be hardship to all professional people like Doctors, Lawyers, Chartered Accountants , Solicitors, Architects, etc. and that would result in calamity to the members of public at large. That would be creating obstacles in the progress of the society and day to day function of human beings in modern era which law would never contemplate. While implementing the beneficial law, this aspect cannot be forgotten.

Conclusion: The word incidental use means and includes with respect to residential house which should contain basic requirement for Human Habitation like Gas connection on plat form of Kitchen, Bathroom, Toilet, Basic Utensils, beddings for sleeping etc. The definition deemed to reside under BMC Act also means a right to use the flat for sometimes or some portion of which he sometimes being used. When area for Human habitation remains undisturbed and balance or part portion of residence is used for professional activities within the limit laid down under Development control regulation of greater Mumbai than, such balance portion of residence can be said to be incidentally used to residential use. 

 

R.B.Popat

 

rajendra b. popat 
on 28 September 2015
Published in Property Law
Views : 3058
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