You can use Res­i­den­tial Premises for Pro­fes­sional Pur­poses

Accommodation Times - - Front Page - To read full ar­ti­cle visit - http:// ac­com­mo­da­tion­ By Tarun Ghia, Char­tered Ac­coun­tant

1. Can a res­i­den­tial prop­erty by used for pro­fes­sional pur­poses or busi­ness of­fice pur­poses ? A. USER of Res­i­den­tial premises for pro­fes­sion­als pur­poses : Rel­e­vant Bye-Laws : Un­der Bye-Law No.78(d) of the model bye- laws of 1984 and Bye- law no. 76( a) of the new model bye-laws of 1984 and Bye-law No. 76(a) of the new model bye-laws of 2001 no mem­ber of the So­ci­ety should use the flat deemed to have been al­lot­ted to him for a pur­pose other than for the one for which it has been al­lot­ted. En­tire flat can be used for pro­fes­sion­als and part of the flat can be used for busi­ness of­fices : In gen­eral a mis­con­cep­tion is pre­vail­ing in the hous­ing so­ci­eties in Mumbai that a res­i­den­tial flat can be used only partly for pro­fes­sional of­fice or is also mis­con­ceived that a res­i­den­tial flat can­not be used for busi­ness of­fice at all. CRUZ of the judge­ments on user of res­i­den­tial flats is that even if the en­tire flat is used by a pro­fes­sional per­son for the prac­tice of his pro­fes­sion, there is no change of user to a com­mer­cial one and there can­not be a prohibition for the same. If the flat is partly used for busi­ness of­fice, then also if the dom­i­nant user is res­i­den­tial, there is no vi­o­la­tion of the pro­vi­sions re­lat­ing to the change of user. 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 client is his ser­vices es­sen­tially based on his qual­i­fi­ca­tion, per­sonal skill and in­tel­lec­tual ca­pac­ity. All the learned pro­fes­sions have cer­tain com­mon char­ac­ter­is­tic like statu­tory recog­ni­tion of the pro­fes­sion and adop­tion by the mem­bers a self con­tained code of con­duct with statu­tory checks and bound­aries to en­sure pro­fes­sional in­tegrity and char­ac­ter along­with com­pe­tence of the mem­bers of the pro­fes­sion so as to in­spire con­fi­dence of the peo­ple in the pro­fes­sion. The Supreme Court also has in sev­eral judge­ments main­tained the above cited distinc­tion be­tween a trade and busi­ness on one hand and the prac­tice of pro­fes­sion on the other hand. The le­gal­ity of user of premises is gov­erned by the lo­cal laws ap­pli­ca­ble in var­i­ous states in re­spect ofShops and Es­tab­lish­ments Act, 1948. Case law on firm of lawyers : In V.Sasid­ha­ran V/s Peter and Karunakar (1984) 65 FJR 374 (SC), the ques­tion for de­ci­sion be­fore the Supreme Court was whether the of­fice of a lawyer or of a firm of lawyers is or is not a com­mer­cial estab­lish­ment within the mean­ing of the Ker­ala Shops and Com­mer­cial Es­tab- lish­ments Act (34 of 1960). The SC held that it does not re­quire any strong ar­gu­ment to jus­tify the con­clu­sion that the of­fice of a lawyer or a firm of lawyers is not a “shop” within the mean­ing of sec­tion 2(15).” The Supreme Court has also, in sev­eral judge­ments re­it­er­ated this fun­da­men­tal distinc­tion. In Na­tional union of Com­mer­cial Em­ploy­ees V/s Industrial Tri­bunal (1962) 22 FJR 25, the Court held that a firm of so­lic­i­tors was not an “in­dus­try” within the mean­ing of sec­tion 2(j) of the Industrial Dis­putes Act and that the ser­vices ren­dered by the firm were only in the in­di­vid­ual ca­pac­ity of the part­ners and very much de­pen­dent on their pro­fes­sional equip­ment knowl­edge and ef­fi­ciency. Case law on pri­vate dis­pen­sary: In yet an­other case of Dr. Deven­dra M. Surbi V/s. State of Gu­jarat (AIR 1969 SC 63 6T), the Supreme Court had oc­cas­sion to ex­am­ine the def­i­ni­tion of “Com­mer­cial Estab­lish­ment” in sec­tion 2(4) of the Bom­bay Shops and Es­tab­lish­ments Act, 1948 and con­stru­ing the word “Pro­fes­sion” ap­pear­ing in as­so­ci­a­tion with the words “Busi­ness and Trade” in the said sub sec­tion, held that a pri­vate dis­pen­sary of a med­i­cal prac­ti­tioner did not come within the def­i­ni­tion of “Com­mer­cial Estab­lish­ment”. In Dev Brat Sharma V/s. Dr. Jagjit Mehta C.A. No. 4216 of 1988, the Supreme Court held that the user of res­i­den­tial premises un­der ten­ancy for the pur­pose of the doc­tor’s clinic did not tan­ta­mount to change of user. West Ben­gal Govt. tried amend­ment of Shop and Es­tab­lish­ments Act : The same con­clu­sion was reached by the Cal­cutta High Court in Dilip Ku­mar V/s. Chief In­spec­tor (Shop­sand Es­tab­lish­ments) (1986) 69 FJR 100 (Cal). In this case, the ques­tion for con­sid­er­a­tion was whether the in­clu­sion amounted to an un­rea­son­able re­stric­tion vi­ola­tive of ar­ti­cle 19(1)(g) of the Con­sti­tu­tion. Yoga Classes : In the case of Pant Na­gar Anand­lok CHS LTD. it was de­cided that car­ry­ing out ac­tiv­i­ties like con­duct­ing yoga classes in a res­i­den­tial flat does not con­sti­tute breach of bye-laws of a Co-op. Hous­ing So­ci­ety. The dis­pute in ques­tion had been field by the Pant Na­gar Anand­lok Co-op. Hsg. Soc. Ltd. against one of its mem­bers and his wife, seek­ing a dec­la­ra­tion that the yoga ac­tiv­i­ties of the mem­ber were vi­ola­tive of the bye-laws and were il­le­gal. Fur­ther the so­ci­ety claimed in the dis­pute that this mem­ber her­self or through her agents or ser­vants be per­ma­nently re­strained by an or­der or in­junc­tion from, in any man­ner con­duct­ing the yoga classes. It was stated in the com­plaint that the so­ci­ety re­ceived com­plaints from its mem­bers that be­cause of the yoga classes, there was a lot of har­rass­ment to the neigh­bours, the mem­bers of the so­ci­ety and to the public at large. The so­ci­ety par­tic­u­larly re­ferred to the fact that fash­ion­able ladies and girls and hippy type per­sons vis­ited the so­ci­ety’s premises, who spoke loudly that caused a lot of an­noy­ance. The san­dals, chap­pals and shoes in the pas­sage cause ob­struc­tion for use thereof by the mem­bers of the so­ci­ety. The ail­ing per­sons, who could ben­e­fit from yoga were some­times re­ferred to her by doc­tors. On an av­er­age in a day, 30 to 40 per­sons used to at­tend the yoga classes which she taught be­tween 7.30 am to 7.30 pm. The Judge re­ferred to some rul­ings which were as fol­lows: Lak­sh­man Sin­tre V/s. Balkr­ishna K. Shetye, B.L.R. page 937; B.R. Oswas V/s. Lak­sh­mibai B.L.R. page 214; Uni­ver­sity of Delhi and oth­ers (AIR 1963 S.C. page 1873); K. K. Karunanidhi and oth­ers (AIR 1073 Madras page 443) Ap­pel­late Court; Sant Ram V/s Ra­jin­der­lal and oth­ers, Supreme Court (1979); V Sasid­haram V/s. Peter (AIR 1984 SC page 1700). Drawing anal­ogy from th­ese ver­dicts, the Judge, in the case in

In Dev Brat Sharma V/s. Dr. Jagjit Mehta C.A. No. 4216 of 1988, the Supreme Court held that the user of res­i­den­tial premises un­der ten­ancy for the pur­pose of the doc­tor’s clinic did not tan­ta­mount to change of user.

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