use of ownership flat in mumbai used partly for residence and partly for professional use dwelling
Querist :
Anonymous
(Querist) 07 January 2011
This query is : Resolved
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.
Regulation 14 of Development control Regulation,1991
Ancillary Uses Permitted :-
The ancillary uses permitted in various use zones and the conditions governing the same shall be as given in Part-IV
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;
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;
Regulation 51(iv) of Development control Regulation,1991
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” is 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 (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 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.
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."
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.
(b) The Bombay high court has held 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) 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”.
R.B.Popat.
Please advice my view is correct or not?
