Gujarat High Court
Ilaben Kanaiyalal Patel vs Vadodara Mahanagar Seva Sadan on 14 February, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/292/2014 ORDER DATED: 14/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 292 of 2014
With
CIVIL APPLICATION (FOR FIXING DATE OF HEARING) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 292 of 2014
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ILABEN KANAIYALAL PATEL
Versus
VADODARA MAHANAGAR SEVA SADAN
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Appearance:
MR AV PRAJAPATI with MR NK MAJMUDAR(430) for the Petitioner(s) No. 1
MR NILESH A PANDYA(549) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/02/2023
ORAL ORDER
1. Being aggrieved and dissatisfied by the order dated 19.10.2013 passed by the learned 13th Additional District Judge, Vadodara the respondent - Corporation assailed the said order by preferring the Regular Civil Appeal No.69 of 2011. Being aggrieved by the said order dated 19.10.2012 the writ-applicant herein has approached this Court by filing present writ-application under Article 227 of the Constitution of India seeking the following reliefs :-
"(A) admit this petition;
(B) issue appropriate writ, order or direction quashing and setting aside the order dated 19/10/2013 passed in Regular Page 1 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined Civil Appeal No.69/2011 passed by the learned 13th Addl.
District Judge, Vadodara allowing the Appeal preferred by the respondent authorities reversing the order dated 4/7/2009 passed in Tax Appeal No. 18/2008 passed by the learned Principal Senior Civil Judge, Vadodara in the aforesaid peculiar facts and circumstances and be pleased to hold that the order passed by the learned Principal Senior Civil Judge dated 4/7/2009 passed in Tax Appeal No. 18/2008 is just and proper in the aforesaid peculiar facts and circumstances;
(C) pending admission of this petition be pleased to pass interim order staying further operation, implementation and execution of the order dated 19/10/2013 passed in Regular Civil Appeal No.69/2011 passed by the learned 13th Addl. District Judge, Vadodara till the aforesaid petiotn is finally heard and decided;
(D) pass such orders as thought fit in the interest of justice."
2. The order dated 4.7.2009 passed in Tax Appeal No.18 of 2008 reads thus :-
"ORDER This Appeal is hereby allowed.
The Respondent Vadodara Municipal Corporation is hereby Page 2 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined directed to re-assess the assessment of tax which the Municipal Corporation has made for the premises in dispute bearing Municipal Census NO.05 01150 043 000 020 being Flat NO.204 "SANKALP COMPLEX" situated in Ma ' i Mata's Lane, Palace Road, Vadodara, treating it as the premises other than the residential. Instead of that, it shall be assessed as the rasidential premises and a fresh tax bill to be given to the Appellant for the period in respect of the disputed Tax Bills Dated 4-2-2008 with BilIs No. 890 & 889 . for the year 2007- 2008. The Appellant is directed to pay the amount of re- assessed tax bill-within 15 (Fifteen) days after receipt of the fresh tax bill from the Respondent. The amount so deposited shall be adjusted in the re-assessed tax bill. If the amount so deposited is more than the re-assessed tax bill, the remaining balance amount shall be credited in the next tax bill.
No order as to costs.
Pronounced in the open Court today on this 4 th Day of the Month of July, 2009."
3. The brief facts leading to the filing of the present writ- application read thus :-
3.1 The property being Flat No.4 situated on the 2nd floor of Sankalp Complex, Mari Mata Street, Raj Mahel Road, Vadodara was purchased by the writ-applicant by registered Sale Deed Page 3 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined on 14.12.1999. The said premises admeasured 81 sq.mtrs. It is the case of the writ-applicant that the property in question was used by the writ-applicant for residential purpose upto 2006-
2007.
3.2 The property in question came to be assessed and the respondent authority assessed the property as non-residential property and raised the bills which are duly produced at page- 37 considering the premise as non-residential premise for the year 2007-08 being Municipal Census No.05 01 150 043000 101 and PIN No.05 00391 101. It is the case of the writ- applicant that the writ-applicant is shown as tenant in the aforesaid premises. It is the case of the writ-applicant that the said property is used by the husband of the writ-applicant who is in profession of lawyer and it is a lawyer's office.
4. Heard Mr. A. V. Prajapati, the learned advocate appearing for Mr. N. K. Majmudar, the learned advocate appearing for the writ-applicant and Mr. Nilesh Pandya, the learned advocate appearing for the respondent authority.
5. Mr. A. V. Prajapati, the learned advocate appearing for Mr. N. K. Majmudar, the learned advocate appearing for the writ-applicant placed reliance on the following decisions :-
(a) V. Sasidharan vs. Peter and Karunakar, reported in AIR Page 4 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined 1984 SC 1700
(b) Special Civil Application No.13289 of 2014 judgment dated 4.8.2016 5.1 Placing reliance on the said decisions it was submitted that the concerned Court has erred in assessing the said property as non-residential property. That the assessment was required to be undertaken as residential property.
6. Mr. Nilesh Pandya, the learned advocate appearing for the respondent was not in position to controvert the settled legal position of law.
7. This Court has considered the submissions advanced by the learned advocates appearing for the respective parties and considered the well settled legal position of law. Considering the aforesaid facts being undisputed, this Court deems it fit to produce the decision in the case of V. Sasidharan vs. Peter and Karunakar, reported in AIR 1984 SC 1700, paragraphs 8 to 15 read thus :-
"8. A lawyer's office or the office of a firm of lawyers cannot obviously fall under Clauses (3) and (4) above. Nor has the Government issued any notification as contemplated by Section 2 (4). The question thus narrows itself into whether a lawyer's office falls under either of the first two clauses.Page 5 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023
NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined
9. The expression 'establishment' is defined by Section 2 (9) to mean a shop or a commercial establishment. Since by the definition contained in the first clause of Section 2 (4), a commercial establishment means an establishment, a place of work cannot be regarded as a commercial establishment unless the activity is conducted in a 'shop' or in a commercial establishments, which is really tautological. The definition of 'shop' which is contained in Section 2 (15) shows that in order that an establishment can be regarded as a shop, it is necessary that some 'trade' or 'business' must be carried on there or some service must be rendered to customers.' The expression 'shop' also includes offices, warehouses, store rooms or godowns which are used in connection with the trade or business. 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). Whatever may be the popular conception or misconception, regarding the role of to-day's lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is trite that, traditionally, lawyers do not carry on a trade or business nor do they render services to 'customers'. The context as well as the phraseology of the definition in Section 2 (15) is inapposite in the case of a lawyer's office or the office of a firm of lawyers.
10. Learned counsel for the appellant argues that a lawyer's office is a commercial establishment because, persons who are Page 6 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined employed in that office are mainly engaged in office work. This argument overlooks that, under the second clause of the definition in Section 2 (4), 'commercial establishment' means "an establishment or administrative service in which the persons employed are mainly engaged in office work". Partly, we go back to the same question as to whether a lawyer's office is an 'establishment' within the meaning of the Act. The other aspect which this argument Tails to take note of is that a lawyer's office is not an 'administrative service' it seems to us doing violence to the language of the second clause of Section 2 (4) to hold that a lawyer's office is an 'administrative service'. This argument has therefore to be rejected.
11. The proposition is well-established that words which occur in the same context must take their colour from each other. It is unrealistic to dissect the definition clause in Section 2 (4) and to catch a word here or there in order to bring a lawyer's office within the four, corners of the definition of 'commercial establishment'. The various clauses of that definition would show that establishment, far apart from professional offices, were within the contemplation of the legislature.
12. For these reasons, we are of the opinion that the office of a lawyer or of a firm of lawyers is not a 'commercial establishment' within the meaning of the Act. This conclusion is strengthened by the other provisions of the Act. Chapter 1-A of the Act provides for registration of establishments, Chapter II for hours of work, Chapter III for holidays and leave, Page 7 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined Chapter IV for wages, Chapter V for employment of children and women and Chapter VI for health and safety measures. Section 6 of the Act provides that no employee in any establishment shall be required or allowed to work for more than eight hours on any day or for more than 48 hours in any week. Section 8 requires that, the period of work of an employee in an establishment for each day shall be so fixed that no period shall exceed four hours and that no such person shall work for more than four hours before he has had an interval for rest of at least one hour. Under Section 10, no establishment shall, on any day, be opened earlier than and closed later than such hours as may be fixed by the Government, provided that any customer who is being served or is waiting to be served in any establishment at the hour fixed for its closing may be served during a quarter of an hour immediately following such hour. These and other cognate provisions of the Act show that a lawyer's office cannot possibly be comprehended within the meaning of the expression 'commercial establishment' as defined in Section 2 (4) of the Act. We are quite solicitous about the welfare of those who work in the lawyers' offices. But, there are many other ways in which their welfare can be ensured. If the current trends are any indication and if old memories fail not, the earnings of lawyers' clerks cannot, in reality, bear reasonable comparison with the earnings of employees of commercial establishments, properly so called. They, undoubtedly, work hard but they do not go without their Page 8 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined reward. They come early in the morning and go late at night, but that is implicit in the very nature of the duties which they are required to perform and the time they spend is not a profitless pastime.
13. An argument was strongly pressed upon us on the basis of the decision of this Court in Bangalore Water Supply and Sewage Board V/s. A. Rajappa, (1978) 3 SCR 207. The High Court has rightly observed that the question which arose in that case was entirely different, namely, the sweep of the meaning of the word 'industry'. The ratio of that decision is that the 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. The question which arises in this appeal is basically different, namely, whether a lawyer's office or the office of a firm of lawyers is a commercial establishment. Considerations which were germane to the determination of the question in the Bangalore Water Supply case are foreign to the decision of the question before us.
14. In Indian Chambers of Commerce and Industry case, (1974) 2 Lab LJ 271 the question was whether the Federation of Indian Chambers of Commerce and Industry is a commercial establishment within the meaning of the Delhi Shops and Commercial Establishment Act, 1954. This Court pointed out that the definition of 'commercial establishment' in that Act is Page 9 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined so wide that the activities of a registered society or a charitable trust would also fall within the purview of that definition.
15. The learned single Judge and the Division Bench of the Kerala High Court have dealt with the questions arising in this appeal with care. We agree with their reasoning and hold that the office of lawyer or of a firm of lawyers is not a 'commercial establishment' within the meaning of Section 2 (4) of the Act."
7.1 Paragraph-11 of the judgment dated 4.8.2016 delivered in the Special Civil Application No.13289 of 2014 reads thus :-
"11. The Supreme Court in case of V. Sasidharan v. M/s. Peter and Karunakar and others reported in AIR 1984 Supreme Court 1700 in context of Kerala Shops and Commercial Establishments Act held and observed that office of lawyers or firm of lawyers is not a commercial establishment. Likewise in case of Devendra M. Surti v. State of Gujarat reported in AIR 1969 Supreme Court 63, in context of Bombay Shops and Establishment Act, the Supreme Court held that a doctor's dispensary was not a commercial establishment within the meaning of the said Act. Learned Single Judge of this Court in case of Gujarat Electricity Board, Junagadh v. Ashwinbhai Maniyar & ors. reported in 2010(1) GLR 679 in context of Electricity Page 10 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined Regulatory Commissions Act, considering the question whether office of an advocate can legally be charged with tariff at commercial rate, it was held that the advocate's office falls in the category of non residential premises and question whether office of advocate is a commercial activity is not relevant. The Supreme Court in case of Chairman, Madhya Pradesh Electricity Board & ors. v. Shiv Narayan & anr.
reported in 2006(1) GLR 387 in context of Electricity(Supply) Act held that legal profession cannot be compared to trade and business. There is a distinction between professional activity and activity of commercial character. With these observations, decision in case of New Delhi Municipal Council v. Sohal Lal Sachdev reported in 2000(2) Supreme Court Cases 494, in which broad categorisation of commercial and domestic uses for the purpose of levy of electricity charges was made, came to be referred to larger Bench. We however, need not go into such a larger issue. Since from the facts on record, we gather that all the petitioners are occupying residential units situated in residential areas or complexes for their residential purpose. Only a small portion of these units have been set apart for their legal work. That being the position, the Vadodara Municipal Corporation committed an error in splitting the properties in question for separate consideration for tax purpose. Section 141B of the BPMC Act does refer to classification of building into residential buildings and buildings other than residential use, nevertheless, Page 11 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined it is doubtful whether such classification can be provided for the same building. If the unit was a commercial unit used by the lawyer for his legal profession or even if the entire residential unit was occupied by lawyer for his legal work, different considerations would perhaps apply. In the present case, when the predominant use of the residential unit was for residence of the owneroccupier for his family, mere setting apart a small area therein for his legal work would not change the predominant use of the property and resultantly, we do not find that Vadodara Municipal Corporation could have charged such area separately at non residential or commercial rate."
8. The property being Flat No.4 situated on the 2nd floor of Sankalp Complex, Mari Mata Street, Raj Mahel Road, Vadodara was purchased by the writ-applicant by registered Sale Deed dated 14.12.1999 admeasuring 81 Sq.Mtrs. The said property as stated by the writ-applicant was used for the residential purpose upto 2006-07. The respondent authority assessed the said property as non-residential property and raised bills which are produced at page-37 considering the premises as non- residential premises for the year 2007-08 being Municipal Census No.05 01 150 043 000 101 and Pin No.05 00391 101 wherein the writ-applicant has been shown as tenant in the said property. The said property is used by the writ-applicant's husband who is lawyer by profession as a lawyer's office.
Page 12 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined Considering Section 2(4) of the Commercial Establishment Act, 1960 which reads thus :-
".Section 2 (4) of the Act, defines "commercial establishments" as follows: "Commercial establishment" means a commercial or industrial or trading or banking or insurance establishment, an establishment or administrative service in which the persons employed are mainly engaged in office work, hotel, restaurant, or boarding or eating house, cafe or any other, refreshment house, a theatre or any other place of public amusement or entertainment and includes such other establishment as the Government may, by notification in the Gazette declare to be a commercial establishment for the purposes of this Act, but does not include a factory to which all or any of the provisions of the Factories Act, 1948 ."
The aforesaid is considered by the Hon'ble Supreme Court and the Hon'ble Division Bench of this Court as referred above wherein it is held that lawyer's office is not a commercial establishment within the meaning of Section 2(4) of the Act.
9. In view of aforesaid settled position of law, the present writ-application is allowed exercising supervisory jurisdiction under Article 227 of the Constitution of India. The order dated 19.10.2013 passed in the Regular Civil Appeal No.69 of 2011 by the learned 13th Additional District Judge, Vadodara is Page 13 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023 NEUTRAL CITATION C/SCA/292/2014 ORDER DATED: 14/02/2023 undefined hereby quashed and set aside. Consequently the civil application also stands disposed of.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 14 of 14 Downloaded on : Sun Sep 17 21:52:12 IST 2023