whether dwelling flat in mumbai can be used for residence and professional use
rajendra b. popat
(Querist) 12 January 2011
This query is : Resolved
whether dwelling flat in mumbai can be used for residence and professional use, pl advice.
Advocate. Arunagiri
(Expert) 12 January 2011
Yes you can. But, it can be used as residence cum office.
rajendra b. popat
(Querist) 13 January 2011
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
(Querist) 26 February 2011
1. Nippon Menkwa Kalamsiki V/s Portlock reported in 24 BOM.L.R.54 equivalent AIR 1922 Bombay 70th Bombay High Court held that in a premises let to a barrister if he reserves a room for reading a brief does not amount to a change of user.
2. Similarly even the Madras High Court in the matter of krishna nayar v /s Valliammal reported in Air 1949 Madras 785 stated that a lawyer using a room for legal advice does not amount to a change of user.
rajendra b. popat
(Querist) 26 February 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3704 OF 1991
Sumatibai Anandrao Rajurkar Petitioner Vs. Shri Punamchand P. Lohade,since deceased legal heirs
1a) Smt.Prabhavati P. Lohade 2b) Shri Sandeep P. Lohade Respondents. Mr.A.K.Abhyankar,Sr.Counsel with Mr.V. B. Rajure for the Petitioner.
Mr.P.B. Shah for the Respondents.
CORAM : ANOOP V.MOHTA, J.
DATED : 2nd December, 2008.
JUDGMENT:
The Petitioner/plaintiff/landlady has challenged the orders passed by the Courts below, whereby her Suit for eviction is dismissed which was under Section 13 (1)(a) and (l) of Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "Bombay Rent Act") by holding that there is no change of user of the suit premises and though the Respondent/tenant acquired suitable residence, but still not entitled for possession.
2. The basic facts are that the suit premises were given in leave and licence by executing an agreement by the Plaintiff with the Defendants on 10.12.1962 and, therefore, the Defendant is claiming protection under section 15(a) of the Bombay Rent Act. The Plaintiff/Petitioner's case is that it was for residential purposes, whereas Defendant's case is that it was for composite purpose. The Defendant was doing his profession as Income-tax Practitioner and, therefore, using part of the said premises as consultancy office. On 27.4.1982 the defendant sent Money Order which was refused. Again on 5.7.1982 also he refused to accept the money orders. On 24.4.1983 the Petitioner sent demand notice of arrears of rent and terminated the tenancy on 31st May, 1983. On 6.5.1983 Defendant sent arrears of rent which was accepted. On 7.5.1983 he sent the amount of Rs.5576/-. The Respondent/tenant acquired premises at 797, Bhandarkar Road at Pune. On 20.8.1987 the trial Court dismissed the Suit on all grounds. On 12.1.199 1 the learned Appellate Court also dismissed the Appeal of the Petitioner. The ground of arrears of rent was not pressed and restricted only to change of user and acquisition of suitable accommodation. Therefore, the present petition.
3. The basic lease/ leave and licence agreement dated 10th December, 1962 between the parties provides nowhere that the premises were let out for composite purpose i.e. residential and non-residential. The plain reading shows that the premises were let out for residential purposes. Clause-C contemplates apart from others to pay all charges of electricity for domestic purposes, for consumption of energy and power. The schedule of Articles annexed to the agreement read with the whole document nowhere provides that the premises were let out other than residential purposes. The basic burden lies upon the tenant to prove that it was let out for composite purpose.
4. In the present case, the Respondent being Chartered Accountant, was using one room for consultation. His clients use to visit the premises for consultation. Therefore, mere usage of the premises of the Chartered Accountant for carrying out his profession though admittedly dominant purpose and use of the premises is for residence, that itself cannot be sufficient to hold that the premises was let out for composite purposes. It no way change or alter the purpose of letting out. The landlady may or may not take objection to such composite usage. In Sakharam Narayan Kherdekar Vs. City of Nagpur Corporation and Ors. AIR, 1964 Bombay, 200, this Court while considering the advocate's profession held that it is not a commercial activity in the premises, and therefore, registration is not necessary under the Bombay Shops and Establishments Act. In the present case also, there is nothing to show that the premises or portion of the premises was registered for any commercial activities.
5. In Narayan Dattatraya Umbarkar Vs. Late Shri Shankar Hirji Pandya (deceased by his legal heir), 1993 Bom.R.C. 324, while dealing with the said provision held that mere user of part of premises for profession would not account to change of user. Therefore, the professional like Doctor advocate, Chartered Accountant if use their premises for professional purpose and dominantly for residential purpose, the so called agreement cannot be said to be for composite purpose of residential and non-residential. It is obsered by this Court in Bhavarlal Sukhlal Soni by L.Rs. Vs. Lakshminarayan Deo Public Trust, 1994 Mh.L.J. 843, that Section 13(1)(l) provision applies only to premises taken on lease for residential use and not to premises taken for commercial use. However, in the present case, there is clear finding given by the Court below that tenant use to have office in the suit premises in connection with the income tax. There are witnesses to support the same also. But having once found that it is permissible for such tenant to use the premises for professional purposes, and such use in no way amounts to change of user of the suit premises, this finding according to me supports the case of the landlady that the premises was let out and used through out for the residential purpose and it was never objected as it no way amounts to creation of composite tenancy. Once, it is clear that the tenant has used this entire premises dominantly for residential purpose and the use of portion of the premises for professional purpose, is not amount to change of user and therefore, the tenancy through out as created is of residential purpose only.
6. Now, there is ample material on record to show that the tenant has purchased the property and using the same. The said property is suitable residential premises. Both the Courts have rejected the landlady's case on the ground that as the tenancy was composite and as the tenant acquired only suitable residential premises, the landlady is not entitled for the decree of possession on this ground is incorrect and unsustainable. The findings so given by the Courts below that the tenant has acquired the suitable residential premises, in my view is sufficient to grant the decree on that count also as the tenancy was not composite as held by the Courts below. In view of above, as the premises was let out for residential purpose and tenant has acquired the alternative suitable residence, the Court has no choice but to grant the decree against the tenant on this ground. It squarely falls within the provisions of Section 13(1)(l) of Bombay Rent Act in favour of the landlady and against the tenant.
7. In view of the clear interpretation and decision given by the Supreme Court, as well as, this Court and as the tenancy, according to me also is for residential purpose, and not for composite purpose as contended, in my opinion, the dominant purpose to let out the premises in view of the residential use and in view of the above judgments, it is clear that the professional use by the tenant of some portion of the premises, in no way changes the use for which it was let out and as observed by the Courts below, in the present case, this itself support the case of landlord/landlady. The Petitioner landlady proved that the suit premises were given for residential purpose only. Therefore, I am of the view that the impugned order passed by the Court below, are liable to be quashed and set aside. The suit as filed by the Petitioner-Landlady, is allowed under Section 13 (1) (l) of the Bombay Rent Act and rest of the findings with regard to the Section 13(1)(k) is maintained as a whole. The Petition is allowed as prayed, with above modifications.
8. Rule made absolute accordingly. No costs.
9. The learned counsel for the respondents seeks stay of this judgment. Considering the facts and circumstances, the effect and operation of this judgement is stayed for six weeks from today.
( ANOOP V. MOHTA, J.)
Note : In the matter of Nippon Menkwa Kalamsiki V/V Portlock reported in 24 BOM.L.R.54 equivalent AIR 1922 Bombay 70th Bombay High Court held that in a premises let to a barrister if he reserves a room for reading a brief does not amount to a change of user. Similarly even the Madras High Court in the matter of krishna nayar v /s Valliammal reported in Air 1949 Madras 785 stated that a lawyer using a room for legal advice does not amount to a change of user.
rajendra b. popat
(Querist) 11 June 2011
Issue :
Whether dwelling unit [ownership flat] 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 profession Neither Bazari Nor commercial and not even shop as held by following High courts :
Chartered Accountancy is neither commercial nor shop but is profession as held by the Hon. Karnataka High Court and Hon. Bombay High Court (i.e. Jurisdictional High Court) in following cases :
(a) The Bombay High Court in the case of Narendra Keshrichand Fuladi And Another Vs State Of Maharashtra on 28/9/1984 vide para 14 has held as under :
Para 14 : That brings us to the challenge that Amendment Act (Maharashtra Act LXIV of 1977), in so far as it includes the establishment of a legal practitioner in the category of 'commercial establishment', violates Art. 14 of the Constitution. We have already pointed out how the definition of 'commercial establishment', as explained by judicial opinion while taking in profession or any work in connection with, or incidental, or ancillary to it, could not take in the establishment of a legal practitioner, as it obtained prior to the coming into force of the amending Act. The establishment of a legal practitioner could not be included in the category of commercial establishment, for the reasons already stated, as the establishment of a legal practitioner could not conceptually be included in 'commercial establishment'. This is not to say that the Legislature was not competent to make a law in respect of legal, medical and other professions, as comprised in Entry No. 26 of List III of the Seventh Schedule of the Constitution, consistently with the nature of legal profession and the functions which it had to perform and the special characteristics of its activity. The question is whether, while purporting to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments and other establishments, the legal profession or the establishment of a legal practitioner, could be brought in for identical treatment with commercial establishment without taking note of the difference.
(b) The Bombay high court in criminal writ petition No. 1232 of 1995 have held 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 has held under : Provisions of the Amending Act, viz., Maharashtra Act 64 of 1977, in so far as that include establishment of Chartered Accountant / Accountants within the definition of "commercial establishment" in Section 2(4) of the Bombay Shops & Establishments Act, 1948 (Bombay Act No. LXXIX of 1948) are unconstitutional and they are struck down. The proceedings of Criminal Case No. 53/SCM/1995 registered before the Special Metropolitan Magistrate, Esplanade Court against the petitioners are hereby quashed.
(c) The Bombay high court in WRIT PETITION NO. 1256 OF 1992 in the case of Municipal Corporation of the City of Pune, a Body Corporated under the B.P.M.C. Act, and having its office at Main Building, Shivajinagar, Pune – 5….Petitioner Vs. 1. Shri Bhagwan Ganesh Sabne aged about 74 years, Occ: Retired, residing at Shri Gajanan Prasad Co-operative Housing Society (Proposed) ] 111/8, Erandawana, Income Tax Lane, Pune - 411 004 ] 2. Mrs. Smita Sudhir Sabne aged about 36 years, ] Occ: Tax Consultant Residing at as above. ]..Respondents has held that the Chartered Accountancy is a profession and it is not a business or commercial establishment.
(d) The Bombay high court in Merchant (N.E.) vs Bombay Municipal Corporation on 31/7/1967 Equivalent citations: (1968) ILLJ 187 Bombay High Court relying upon the judgement in the case of Sakharam Narayan Kherdekar v. City of Nagpur Corporation [1964 - I L.L.J. 156] chartered accountant was not liable under the shop & establishment Act and has held that the Chartered Accountancy is a profession and it is not a business or commercial establishment.
(e) 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 vide para 67 to the firm of CA as held in the 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."
(f) Vide Schedule of exempted establishment under Bombay Shop and establishment Act, 1954 vide Entry No. 35 vide 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.
Premises used for dwelling as well as for business / office purposes then the dominant user still remains residential as held by the Hon. Supreme court and Hon. Bombay High Court (i.e. Jurisdictional High Court) and other High Courts in following cases :
(a) The Bombay High Court in the case of Sumatibai Anandrao Rajurkar Petitioner Vs. Shri Punamchand P. Lohade,since deceased legal heirs WRIT PETITION NO.3704 OF 1991 vide Para 4 & 5 with respect to use of part of dwelling residential premises for C A profession use held as under;
Para 4. In the present case, the Respondent being Chartered Accountant, was using one room for consultation. His clients use to visit the premises for consultation. Therefore, mere usage of the premises of the Chartered Accountant for carrying out his profession though admittedly dominant purpose and use of the premises is for residence, that itself cannot be sufficient to hold that the premises was let out for composite purposes. It no way change or alter the purpose of letting out. The landlady may or may not take objection to such composite usage. In Sakharam Narayan Kherdekar Vs. City of Nagpur Corporation and Ors. AIR, 1964 Bombay, 200, this Court while considering the advocate's profession held that it is not a commercial activity in the premises, and therefore, registration is not necessary under the Bombay Shops and Establishments Act. In the present case also, there is nothing to show that the premises or portion of the premises was registered for any commercial activities.
Para 5. In Narayan Dattatraya Umbarkar Vs. Late Shri Shankar Hirji Pandya (deceased by his legal heir), 1993 Bom.R.C. 324, while dealing with the said provision held that mere user of part of premises for profession would not account to change of user. Therefore, the professional like Doctor advocate, Chartered Accountant if use their premises for professional purpose and dominantly for residential purpose, the so called agreement cannot be said to be for composite purpose of residential and non-residential. It is obsered by this Court in Bhavarlal Sukhlal Soni by L.Rs. Vs. Lakshminarayan Deo Public Trust, 1994 Mh.L.J. 843, that Section 13(1)(l) provision applies only to premises taken on lease for residential use and not to premises taken for commercial use. However, in the present case, there is clear finding given by the Court below that tenant use to have office in the suit premises in connection with the income tax. There are witnesses to support the same also. But having once found that it is permissible for such tenant to use the premises for professional purposes, and such use in no way amounts to change of user of the suit premises, this finding according to me supports the case of the landlady that the premises was let out and used through out for the residential purpose and it was never objected as it no way amounts to creation of composite tenancy. Once, it is clear that the tenant has used this entire premises dominantly for residential purpose and the use of portion of the premises for professional purpose, is not amount to change of user and therefore, the tenancy through out as created is of residential purpose only.
(b) 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.
(c) 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”.
(d) The Hon Allahabad High Court in the following four cases taken up together with respect to use of part of residential premises for professional practice vide para 12 have held as under
(a) CIVIL MISC. WRIT PETITION NO. 58406 OF 2009 of Dr. Suman Singh vs. State of UP and others
(b) CIVIL MISC. WRIT PETITION NO. 58407 OF 2009 of Dr. Om Hari Agnihotri vs. State of UP and others
(c) CIVIL MISC. WRIT PETITION NO.58409 OF 2009 of Dr. Sanjay Kumar Doharey vs. State of UP and others
(d) CIVIL MISC. WRIT PETITION NO. 58410 OF 2009 of Dr. P.K. Varma vs. State of UP and others, :
Para 12. All the petitioners are qualified and registered medical practitioners. They have a right to run their private medical clinics for giving professional advice to the patients. A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user. A non-nuisance professional activity running by doctors, lawyers, consultant, architect, chartered accountant, property consultants, government guides may also fall in the same category…….
Meaning of Residence :
as per accurate and reliable dictionary: the act of dwelling in a place
Meaning of Resident :
as per accurate & 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.
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 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 then such balance portion of residence can be said to be incidentally used to residential use.
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, Cost Accountants, Company Secretaries, 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.
R.B.Popat.
rajendra b. popat
(Querist) 26 June 2011
Issue :
Whether dwelling unit [ownership flat] 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;
Distinction between business and profession :
The Constitution of India, while ensuring under Article 19(1)(g) to all citizens the right to practice any trade, business or profession, has maintained a clear distinction between carrying on a trade or business as against practicing a profession. The reason underlying the distinction is that unlike in a trade or business, a profession is practiced without any underlying profit motive. What a practicing professional renders to his clients is his services essentially based on his qualification, personal skill and intellectual capacity. Earning of fees is considered only an incidental part.
The Supreme Court also has in several Judgements maintained the above-cited distinction between trade and business on one hand and the practice of profession on the other.
The legality of user of premises is governed by the local laws applicable in various states in respect of Shops and Establishments; for example in Mumbai, the same is governed by the Bombay Shops and Establishments Act, 1948.
Chartered Accountancy is profession Neither Bazari Nor commercial and not even shop as held by following High courts :
Chartered Accountancy is neither commercial nor shop but is profession as held by the Hon. Karnataka High Court and Hon. Bombay High Court (i.e. Jurisdictional High Court) in following cases :
(a) The Bombay High Court in the case of Narendra Keshrichand Fuladi And Another Vs State Of Maharashtra [ 1985 (002) LLJ 0024 Bom.] on 28/9/1984 vide para 14 has held as under :
Para 14 : That brings us to the challenge that Amendment Act (Maharashtra Act LXIV of 1977), in so far as it includes the establishment of a legal practitioner in the category of 'commercial establishment', violates Art. 14 of the Constitution. We have already pointed out how the definition of 'commercial establishment', as explained by judicial opinion while taking in profession or any work in connection with, or incidental, or ancillary to it, could not take in the establishment of a legal practitioner, as it obtained prior to the coming into force of the amending Act. The establishment of a legal practitioner could not be included in the category of commercial establishment, for the reasons already stated, as the establishment of a legal practitioner could not conceptually be included in 'commercial establishment'. This is not to say that the Legislature was not competent to make a law in respect of legal, medical and other professions, as comprised in Entry No. 26 of List III of the Seventh Schedule of the Constitution, consistently with the nature of legal profession and the functions which it had to perform and the special characteristics of its activity. The question is whether, while purporting to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments and other establishments, the legal profession or the establishment of a legal practitioner, could be brought in for identical treatment with commercial establishment without taking note of the difference.
(b) The Bombay high court in criminal writ petition No. 1232 of 1995 have held 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 has held under : Provisions of the Amending Act, viz., Maharashtra Act 64 of 1977, in so far as that include establishment of Chartered Accountant / Accountants within the definition of "commercial establishment" in Section 2(4) of the Bombay Shops & Establishments Act, 1948 (Bombay Act No. LXXIX of 1948) are unconstitutional and they are struck down. The proceedings of Criminal Case No. 53/SCM/1995 registered before the Special Metropolitan Magistrate, Esplanade Court against the petitioners are hereby quashed.
(c) The Bombay high court in WRIT PETITION NO. 1256 OF 1992 in the case of Municipal Corporation of the City of Pune, a Body Corporated under the B.P.M.C. Act, and having its office at Main Building, Shivajinagar, Pune – 5….Petitioner Vs. 1. Shri Bhagwan Ganesh Sabne aged about 74 years, Occ: Retired, residing at Shri Gajanan Prasad Co-operative Housing Society (Proposed) ] 111/8, Erandawana, Income Tax Lane, Pune - 411 004 ] 2. Mrs. Smita Sudhir Sabne aged about 36 years, ] Occ: Tax Consultant Residing at as above. ]..Respondents has held that the Chartered Accountancy is a profession and it is not a business or commercial establishment.
(d) The Bombay high court in Merchant (N.E.) vs Bombay Municipal Corporation on 31/7/1967 Equivalent citations: (1968) ILLJ 187 Bombay High Court relying upon the judgement in the case of Sakharam Narayan Kherdekar v. City of Nagpur Corporation [1964 - I L.L.J. 156] chartered accountant was not liable under the shop & establishment Act and has held that the Chartered Accountancy is a profession and it is not a business or commercial establishment.
(e) 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 vide para 67 to the firm of CA as held in the 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."
(f) Vide Schedule of exempted establishment under Bombay Shop and establishment Act, 1954 vide Entry No. 35 vide 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.
Chartered Accountancy is not even factory when computers are used in the work place for profession as held by following Jurisdictional High court :
The Hon Bombay High Court (The view taken by this Court finds support from the judgment of the Division Bench of the Madras High Court in Seelan Raj and 14 others' case) in the case of Mr. D.V. Shetty, Being The Head Administration Of Citicorp Information Technology Industries Ltd. vs Bombay Municipal Corporation, H.Y. Nair, Being Jr. Engineer Of Bombay Municipal Corporation And State Of Maharashtra on 28/4/2003 - 2004 (2) MhLj 284 have held as under :
" I.T. units, units employing more than 20 persons, using electricity as power or manual power for its work by way of use of computers or otherwise and the units are meant not for manufacturing any new thing cannot be brought under the purview of Section 390 of Mumbai Municipal Corporation Act and other similar provisions, because, the main provision of Section 2(m) Explanation II cannot be forgotten”.
Premises used for dwelling as well as for business / office purposes then the dominant user still remains residential as held by the Hon. Supreme court and Hon. Bombay High Court (i.e. Jurisdictional High Court) and other High Courts in following cases :
(a) The Bombay High Court in the case of Sumatibai Anandrao Rajurkar Petitioner Vs. Shri Punamchand P. Lohade,since deceased legal heirs WRIT PETITION NO.3704 OF 1991 vide Para 4 & 5 with respect to use of part of dwelling residential premises for C A profession use held as under;
Para 4. In the present case, the Respondent being Chartered Accountant, was using one room for consultation. His clients use to visit the premises for consultation. Therefore, mere usage of the premises of the Chartered Accountant for carrying out his profession though admittedly dominant purpose and use of the premises is for residence, that itself cannot be sufficient to hold that the premises was let out for composite purposes. It no way change or alter the purpose of letting out. The landlady may or may not take objection to such composite usage. In Sakharam Narayan Kherdekar Vs. City of Nagpur Corporation and Ors. AIR, 1964 Bombay, 200, this Court while considering the advocate's profession held that it is not a commercial activity in the premises, and therefore, registration is not necessary under the Bombay Shops and Establishments Act. In the present case also, there is nothing to show that the premises or portion of the premises was registered for any commercial activities.
Para 5. In Narayan Dattatraya Umbarkar Vs. Late Shri Shankar Hirji Pandya (deceased by his legal heir), 1993 Bom.R.C. 324, while dealing with the said provision held that mere user of part of premises for profession would not account to change of user. Therefore, the professional like Doctor advocate, Chartered Accountant if use their premises for professional purpose and dominantly for residential purpose, the so called agreement cannot be said to be for composite purpose of residential and non-residential. It is obsered by this Court in Bhavarlal Sukhlal Soni by L.Rs. Vs. Lakshminarayan Deo Public Trust, 1994 Mh.L.J. 843, that Section 13(1)(l) provision applies only to premises taken on lease for residential use and not to premises taken for commercial use. However, in the present case, there is clear finding given by the Court below that tenant use to have office in the suit premises in connection with the income tax. There are witnesses to support the same also. But having once found that it is permissible for such tenant to use the premises for professional purposes, and such use in no way amounts to change of user of the suit premises, this finding according to me supports the case of the landlady that the premises was let out and used through out for the residential purpose and it was never objected as it no way amounts to creation of composite tenancy. Once, it is clear that the tenant has used this entire premises dominantly for residential purpose and the use of portion of the premises for professional purpose, is not amount to change of user and therefore, the tenancy through out as created is of residential purpose only.
(b) 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.
(c) 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”.
(d) The Hon Allahabad High Court in the following four cases taken up together with respect to use of part of residential premises for professional practice vide para 12 have held as under
(a) CIVIL MISC. WRIT PETITION NO. 58406 OF 2009 of Dr. Suman Singh vs. State of UP and others
(b) CIVIL MISC. WRIT PETITION NO. 58407 OF 2009 of Dr. Om Hari Agnihotri vs. State of UP and others
(c) CIVIL MISC. WRIT PETITION NO.58409 OF 2009 of Dr. Sanjay Kumar Doharey vs. State of UP and others
(d) CIVIL MISC. WRIT PETITION NO. 58410 OF 2009 of Dr. P.K. Varma vs. State of UP and others, :
Para 12. All the petitioners are qualified and registered medical practitioners. They have a right to run their private medical clinics for giving professional advice to the patients. A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user. A non-nuisance professional activity running by doctors, lawyers, consultant, architect, chartered accountant, property consultants, government guides may also fall in the same category…….
Whether use of residential premises by Chartered Accountant for office would convert building to non residential or commercial :
(a) The Hon. Punjab & Haryana High court in the case of Faqir Chand vs Ram Kali on 12/7/1982 (AIR 1983 P H 167) vide para 7 have with respect to whether use of residential premises by Chartered Accountant for office would convert building to non residential or commercial, held that ;
Para 7 …….In this view of the matter also it cannot be held that the premises have become non-residential building because it is being used solely for the purpose of running the office by the tenant as Chartered Accountant, this also indicates that the Legislature used the expression 'profession' as distinguished from the expression 'business' or a 'trade' under the Act."
Meaning of Residence :
as per accurate and reliable dictionary: the act of dwelling in a place
Meaning of Resident :
as per accurate & 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.
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 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 then such balance portion of residence can be said to be incidentally used to residential use.
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, Cost Accountants, Company Secretaries, 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.
R.B.Popat.
rajendra b. popat
(Querist) 26 December 2014
Issue :
Whether dwelling unit [ownership flat] 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;
Para 13 (h) of Hon Supreme Court in the case of R.K.Mittal vs.State of UP & Ors. [2011 DGLS(Soft.) 9312012 AIR(SC) 389 : 2012 AIR(SCW) 390 : 2011 (13) Scale 369 : 2012 (2) SCC 232 : 2012 (7) SCC 65 : 2012 (7) SCC 190 : 2012 (1) Supreme 273 ordered on 05.12.2011 with respect to meaning of residence have held as under :
Para (h) Residential building refers to any building in which sleeping accommodation is provided for normal residential purpose with or without cooking or dining or both facilities and includes one or two or multi family dwelling, lodging or rooming houses, dormitories, apartment houses, flats and hostels.
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 profession neither Bazari nor commercial and not even shop as held by following High courts :
Chartered Accountancy is neither commercial nor shop but is profession as held by the Hon. Karnataka High Court and Hon. Bombay High Court (i.e. Jurisdictional High Court) in following cases :
(a) The Bombay High Court in the case of Narendra Keshrichand Fuladi And Another Vs State Of Maharashtra on 28/9/1984 vide para 14 has held as under :
Para 14 : That brings us to the challenge that Amendment Act (Maharashtra Act LXIV of 1977), in so far as it includes the establishment of a legal practitioner in the category of 'commercial establishment', violates Art. 14 of the Constitution. We have already pointed out how the definition of 'commercial establishment', as explained by judicial opinion while taking in profession or any work in connection with, or incidental, or ancillary to it, could not take in the establishment of a legal practitioner, as it obtained prior to the coming into force of the amending Act. The establishment of a legal practitioner could not be included in the category of commercial establishment, for the reasons already stated, as the establishment of a legal practitioner could not conceptually be included in 'commercial establishment'. This is not to say that the Legislature was not competent to make a law in respect of legal, medical and other professions, as comprised in Entry No. 26 of List III of the Seventh Schedule of the Constitution, consistently with the nature of legal profession and the functions which it had to perform and the special characteristics of its activity. The question is whether, while purporting to consolidate and amend the law relating to the regulation of conditions of work and employment in shops, commercial establishments and other establishments, the legal profession or the establishment of a legal practitioner, could be brought in for identical treatment with commercial establishment without taking note of the difference.
(b) The Bombay high court in criminal writ petition No. 1232 of 1995 have held 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 has held under : Provisions of the Amending Act, viz., Maharashtra Act 64 of 1977, in so far as that include establishment of Chartered Accountant / Accountants within the definition of "commercial establishment" in Section 2(4) of the Bombay Shops & Establishments Act, 1948 (Bombay Act No. LXXIX of 1948) are unconstitutional and they are struck down. The proceedings of Criminal Case No. 53/SCM/1995 registered before the Special Metropolitan Magistrate, Esplanade Court against the petitioners are hereby quashed.
(c) The Bombay high court in WRIT PETITION NO. 1256 OF 1992 in the case of Municipal Corporation of the City of Pune, a Body Corporated under the B.P.M.C. Act, and having its office at Main Building, Shivajinagar, Pune – 5….Petitioner Vs. 1. Shri Bhagwan Ganesh Sabne aged about 74 years, Occ: Retired, residing at Shri Gajanan Prasad Co-operative Housing Society (Proposed) ] 111/8, Erandawana, Income Tax Lane, Pune - 411 004 ] 2. Mrs. Smita Sudhir Sabne aged about 36 years, ] Occ: Tax Consultant Residing at as above. ]..Respondents has held that the Chartered Accountancy is a profession and it is not a business or commercial establishment.
(d) The Bombay high court in Merchant (N.E.) vs Bombay Municipal Corporation on 31/7/1967 Equivalent citations: (1968) ILLJ 187 Bombay High Court relying upon the judgement in the case of Sakharam Narayan Kherdekar v. City of Nagpur Corporation [1964 - I L.L.J. 156] chartered accountant was not liable under the shop & establishment Act and has held that the Chartered Accountancy is a profession and it is not a business or commercial establishment.
(e) 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 vide para 67 to the firm of CA as held in the 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."
(f) Vide Schedule of exempted establishment under Bombay Shop and establishment Act, 1954 vide Entry No. 35 vide 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.
(g) The Hon Bombay High Court in the case of Dr.(Smt.)Shubhada Motwani Vs. state of Maharashtra & Ors. vide Criminal writ petition No. 1731 of 2002 decided on 12.06.2014 while disposing of writ petition filed under Article 226 of Constitution of India read with section 7(1) of Bombay Shops and Establishments Act, 1948 vide para 5,6 and 7 have held that the amendment incorporating medical practitioners within the definition of commercial establishment will have to be held ultra virus and is accordingly struck down.
(h) The Hon Bombay High Court in the case of Kavita Pravin Tilwani Vs. state of Maharashtra & Ors. vide Criminal Writ Petition No. 3989 of 2013, decided on 10-7-2014 [2014(4) Bom.C.R.(Cri.) 150] while disposing of writ petition filed under Article 226 of Constitution of India read with section 2(4) of Bombay Shops and Establishments Act, 1948 vide para 7 and 8 have held that the amendment incorporating medical practitioners within the definition of commercial establishment will have to be held ultra virus and is accordingly struck down.
Premises used for dwelling as well as for professional practice purposes then the dominant user still remains residential as held by the Hon. Supreme court and Hon. Bombay High Court (i.e. Jurisdictional High Court) and other High Courts in following cases :
(a) The Bombay High Court in the case of Sumatibai Anandrao Rajurkar Petitioner Vs. Shri Punamchand P. Lohade,since deceased legal heirs WRIT PETITION NO.3704 OF 1991 vide Para 4 & 5 with respect to use of part of dwelling residential premises for C A profession use held as under;
Para 4. In the present case, the Respondent being Chartered Accountant, was using one room for consultation. His clients use to visit the premises for consultation. Therefore, mere usage of the premises of the Chartered Accountant for carrying out his profession though admittedly dominant purpose and use of the premises is for residence, that itself cannot be sufficient to hold that the premises was let out for composite purposes. It no way change or alter the purpose of letting out. The landlady may or may not take objection to such composite usage. In Sakharam Narayan Kherdekar Vs. City of Nagpur Corporation and Ors. AIR, 1964 Bombay, 200, this Court while considering the advocate's profession held that it is not a commercial activity in the premises, and therefore, registration is not necessary under the Bombay Shops and Establishments Act. In the present case also, there is nothing to show that the premises or portion of the premises was registered for any commercial activities.
Para 5. In Narayan Dattatraya Umbarkar Vs. Late Shri Shankar Hirji Pandya (deceased by his legal heir), 1993 Bom.R.C. 324, while dealing with the said provision held that mere user of part of premises for profession would not account to change of user. Therefore, the professional like Doctor advocate, Chartered Accountant if use their premises for professional purpose and dominantly for residential purpose, the so called agreement cannot be said to be for composite purpose of residential and non-residential. It is obsered by this Court in Bhavarlal Sukhlal Soni by L.Rs. Vs. Lakshminarayan Deo Public Trust, 1994 Mh.L.J. 843, that Section 13(1)(l) provision applies only to premises taken on lease for residential use and not to premises taken for commercial use. However, in the present case, there is clear finding given by the Court below that tenant use to have office in the suit premises in connection with the income tax. There are witnesses to support the same also. But having once found that it is permissible for such tenant to use the premises for professional purposes, and such use in no way amounts to change of user of the suit premises, this finding according to me supports the case of the landlady that the premises was let out and used through out for the residential purpose and it was never objected as it no way amounts to creation of composite tenancy. Once, it is clear that the tenant has used this entire premises dominantly for residential purpose and the use of portion of the premises for professional purpose, is not amount to change of user and therefore, the tenancy through out as created is of residential purpose only.
(b) 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.
(c) 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”.
(d) The Hon Allahabad High Court in the following four cases taken up together with respect to use of part of residential premises for professional practice vide para 12 have held as under
(i) CIVIL MISC. WRIT PETITION NO. 58406 OF 2009 of Dr. Suman Singh vs. State of UP and others
(ii) CIVIL MISC. WRIT PETITION NO. 58407 OF 2009 of Dr. Om Hari Agnihotri vs. State of UP and others
(iii) CIVIL MISC. WRIT PETITION NO.58409 OF 2009 of Dr. Sanjay Kumar Doharey vs. State of UP and others
(iv) CIVIL MISC. WRIT PETITION NO. 58410 OF 2009 of Dr. P.K. Varma vs. State of UP and others, :
Para 12. All the petitioners are qualified and registered medical practitioners. They have a right to run their private medical clinics for giving professional advice to the patients. A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user. A non-nuisance professional activity running by doctors, lawyers, consultant, architect, chartered accountant, property consultants, government guides may also fall in the same category…….
Whether use of residential premises by Chartered Accountant for office would convert building to non residential or commercial :
(a) The Hon. Punjab & Haryana High court in the case of Faqir Chand vs Ram Kali on 12/7/1982 (AIR 1983 P H 167) vide para 7 have with respect to whether use of residential premises by Chartered Accountant for office would convert building to non residential or commercial, held that ;
Para 7 …….In this view of the matter also it cannot be held that the premises have become non-residential building because it is being used solely for the purpose of running the office by the tenant as Chartered Accountant, this also indicates that the Legislature used the expression 'profession' as distinguished from the expression 'business' or a 'trade' under the Act."
Meaning of Residence :
As per accurate and reliable dictionary: the act of dwelling in a place
Meaning of Resident :
as per accurate & 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.
Whether permission of BMC or corporation is required when part of the dwelling premises used is for professional practice by Professional :
The Hon. Bombay High Court in the case of MCGM Vs. Dr Rekha S. Naik & Onr. Referring DC Regulation 51(iv) categorically held that the DC regulation do not provide for any permission from corporation when part of residential premises is used for professional practice. Thereby notice under Section 53(1) of Maharashtra Regional Town Planning Act,1966 vide first appeal No. 424 of 2012 was dismissed on 03.09.2013.
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 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 then such balance portion of residence can be said to be incidentally used to residential use.
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, Cost Accountants, Company Secretaries, Beauticians, Journalist, 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.
R.B.Popat.
