RESEARCH

Please find following research and cases relevant to the facts attached herewith. The relevant
portion and ratio decidendi has been highlighted for your convenience.

Professionals, i.e., people who provide service based on their personal skill and intellect,
such as doctors, lawyers, architect, chartered accountant, company secretary, cost and works
accountant, engineer, town planner, media professional and documentary maker These
professionals are entitled to use domestic electricity connection at their residence, provided,
they are engaged in consultancy services. These professionals can also not exceed the area
meant for “professional use”, as prescribed by the concerned municipal authority.

 Case Name:- V. Sasidharan Vs. Peter and Ors.

Date decided on:- 23.08.1984

Court:- Supreme Court

Ratio:-

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 Establishments Act (34 of 1960). The
ratio of that decision is that term 'industry' covers any activity which is systematically
or habitually undertaken for the production or distribution of goods or for rendering
material services to the community at large with the help of employees.

(Annexure 1)

 Case Name:- Devendra M. Surti Vs. The State of Gujarat

Date decided on:- 02.05.1968

Court:- Supreme Court

Ratio:-

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”

(Annexure 2)

 Case Name:- Dev Brat Sharma Vs. Jagjit Mehta

Date decided on:- 28.08.1990

Court:- Supreme Court

Ratio:-

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.

(Annexure 3)

ADDITIONAL

 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.
 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.

 There is no difference between commercial and residential in a society for

maintenance. All members are to be charged on an equal basis. As per Bye law no 67

“The contribution to be collected from the members of the Society, towards

outgoing and establishment of its funds, referred to in these bye-laws as 'the
charges' may be in relation to the following:

(i) Property Taxes, (ii) Water Charges, (iii) Common Electricity Charges, (iv)
Contribution to Repairs and Maintenance Fund, (v) Expenses on repairs and
maintenance of the lifts of the Society, including charges for running the lift.
(vi) Contribution to the Sinking Fund, (vii) Service Charges, (Viii) Car
Parking Charges, (ix) Interest on the defaulted charges, (x) Repayment of the
 instalment of the loan and interest, (xi) Non-occupancy Charges, (xii)
Insurance Charges, (xiii) Lease rent, (xiv) Non-agricultural tax. (xv)
Education and Training Fund (xvi) Election Fund (xvii) Any Other Charges

 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.

 The Brihanmumbai Municipal Corporation (BMC), in a circular released on Saturday,

said that housing societies cannot object to reopening of private clinics inside the
premises. Societies objecting to reopening of clinics are to be booked under
provisions of the Epidemic Diseases (Amendment) Ordinance, 2020, issued by the
Centre. In addition, the civic body has also asked private practitioners to give medical
advice through telephone if possible.
BMC officials said in case societies object, the doctors can approach the Mumbai
Police.