Punjab-Haryana High Court
The Punjab And Haryana High Court Bar ... vs The Chandigarh Administration And Ors. on 3 February, 1987
Equivalent citations: AIR1987P&H238, AIR 1987 PUNJAB AND HARYANA 238, (1987) 2 CURLJ(CCR) 144, 1987 MCC 1 48, (1987) 91 PUN LR 367
ORDER
1. At issue in this writ petition under Arts. 226/227 of the Constitution of India, filed by the Punjab and Haryana High Court Bar Association and Shri Ujjal Singh Sahni, Advocate, is the legality and validity of sub-clause (g) of Clause (iv) of bye-law 13 of the Chandigarh Water Supply Byelaws (for short, the 'Byelaws') substituted vide notification dated February 1, 1985, issued by the Chief Administrator of Chandigarh Administration, whereby water charges in relation to residential buildings or any part thereof being used for professional purposes, for instance, doctors, lawyers, architects, dentists etc. have been fixed at the rate of 0.75 paise per kiloliter, whereas the water consumed for domestic consumers in residential premises shall be charged at the following rates:--
(a) First 2500 liters = Rs. 0.40 per KL (Kilo-liter)
(b) 25001 to 50000 = Rs. 0.50 per KL
(c) Above 50,000 litres = Rs. 0.65 Per KL It is pleaded that higher rate of Rs. 0.75 per kilo-liter of water consumption has been fixed for institutions and establishments enumerated in clause (iv) of bye-law 13. They are educational, medical, charitable and religious institutions. The residence of a lawyer is neither an institution nor an establishment. In any case, a residence of a lawyer cannot be treated alike and clubbed with these educational, medical, charitable and religious institutions which, by their very nature, cater to large number of people and form a class among themselves. The residential building being used for professional purposes by a lawyer has nothing in common with the above mentioned institutions comprised in clause (iv) of Bye-law 13. The classification of a lawyer's residence in the category of these institutions is arbitrary and whimsical. It has no nexus with the object to be achieved and is discriminatory and offends Art. 14 of the Constitution. It is prayed that bye-law 13(iv)(g) be declared ultra vires being violative of Art. 14 of the Constitution. It is further prayed that a writ in the nature of mandamus directing the respondents to levy water charges in respect of the residence of lawyers like all other domestic residential premises, be issued.
2. The respondents have contested the claim of the petitioners and have resisted the writ petition. In their written statement the respondents pleaded, inter alia, that any building which is occupied by a lawyer or any other professional like doctors, architects, etc. or wherever commercial activity is going on, is treated to be a building which is being used for commercial purposes irrespective of the fact that only a part of the same is being used for such purpose. Most of the lawyers, who have been allotted chambers, are maintaining their offices at their residences. The classification of persons in sub-clause (g), clause (iv) of Bye-law 13 was justified on the ground that the premises were used by the lawyers for professional use and, therefore, higher rate of water was charged. The difference in the rates of water supplied was not because the water was being used for professional purposes. Upward revision of the water rates was necessitated in 1985, because of the extra huge expenditure incurred for bringing water to Chandigarh from the Bhakhra Main Canal, the delivery of which is taken at a distance of 29 Kms. from Chandigarh. It was contended that the Chandigarh Administration had divided the residents/consumers in Chandigarh into various categories like domestic, irrigation, industrial and institutional/semi-commercial. The lawyer fell in the last category, i.e. semicommercial. It was stated that the categorisation was legal and constitutional. The water rate as per the impugned notification is applicable to premises, inter alia, of Lawyers on the basis that it is being put to professional use. Similar categorisation exists for industrial and irrigational purposes. It is a reasonable classification having, nexus with the object sought to be achieved. Lower rates were charged from domestic consumers and higher rates were charged from professional/commercial consumers. Such classification also exists with regard to rates charged for sale of residential and commercial sites. It was emphasized that higher rates were charged on the basis that the premises were used for professional purposes without taking into account the quantity of water used by a professional man. Since the lawyers maintain their office in residences they are charged higher rate for the premises being used for residential (or professional?.... Ed.) purposes.
3. It will be apposite to read the relevant provisions of the impugned bye-law 13. It reads as under:--
"13. Charges for water consumed.
The charges for water, payable by the consumers shall be as follows:--
(i) Water consumed for domestic use in residential premises shall be charged at the following rates:--
(a) Ist 25000 liters @ Rs. 0.40 per KL
(b) 25001 to 50000 @ Rs. 0.50 per KL
(c) Above 50,000 liters @ Re. 0.65 per KL
(ii) Water consumed for irrigation of lawns in residential premises shall be charged at the rate of Rs. 0.50 per KL.
(iii) xxx xxx xxx xxx
(iv) Water consumed in the following institutions/Establishments shall be charged at the rate of 75 Paise per kilolitre:--
(a) Educational Institutions and hostels attached thereto;
(b) Hospitals/Clinics and buildings appurtenant thereto;
(c) Post-Graduate Institute of Medical Education and Research and hostel attached thereto;
(d) Community Centres/Club, recognised by the Chandigarh Administration;
(e) Charitable Institutions and Hostels attached thereto;
(f) All buildings or any part thereof being used as Government offices except offices of commercial establishment;
(g) Residential buildings or any part thereof being used for professional purposes, for instance, Doctors, Lawyers, Architects, Dentists etc.
(h) Religious Institutions;
(i) Dhobi ghats approved by the Chandigarh Administration.
(i) Dhobighats approved by the Chandigarh Administration.
(v) xxx xxx xxx xxx
(vi) xxx xxx xxx xxx
(vii) xxx xxx xxx xxx NOTE:
1. Residential premises means premises used wholly for human habitation and includes all garages, stables and other out-buildings appurtenant and being used for purposes subservient to residence.
2. Commercial premises means any premises wherein any business, trades or profession is carried for profit and includes journalistic or printing establishments and premises in which business of banking, insurance, stocks and shares; brokerage or produce exchange is carried on or which is used as hostel, restaurants, boarding catering house, theatre, cinema or other place of public entertainment or any other place of which the Chief Administrator may declare by notification in the Chandigarh Administration Gazette to be commercial establishment for the purpose of these bye-laws.
3. xxx xxx xxx
4. xxx xxx xxx 5 xxx xxx xxx"
4. Practice of law is a unique profession. It is variously called a liberal, a learned and even a noble profession. Everybody cannot adopt and carry on this profession. A person in order to be able to protect (practise) law has to attain a standard of ability and competence prescribed by an organized professional body like the Bar Council. It not only ensures that the persons who seek enrolment as advocates possess the prescribed educational and academic qualifications but also enforces a recognized standard of professional and ethical conduct by lawyers practising law. A lawyer cannot solicit work or canvass for briefs. The role of an advocate in the adversary system of justice cannot be over-emphasised. A lawyer is an officer of the Court and is a participant in the administration of justice which is a regal function of the State. The success of a lawyer is dependent on his personal skill, intelligence, intellect, competence, knowledge, efficiency and integrity. These characteristics separate the legal profession from the commercial activity, which is primarily dependent upon the co-operation of labour and capital. The legal profession has its own peculiar and distinctive features which do not permit its inclusion in the commercial or semi-commercial establishments and institutions. The work of a legal practitioner does not thus partake of a commercial or semi-commercial character. It is of the essence of the profession that the income should be dependent mainly upon the personal qualifications, characteristics and reputation of the lawyer. It is not dependent on investment and capital. There is no element of profit or loss in the traditional sense. So, it cannot be legitimately argued that the profession of a lawyer is a semi-professional activity. In Sakharam Narayan v. City of Nagpur Corporation, AIR 1904 Bom 200, a Division Bench of the Bombay-High Court observed:
"A lawyer's profession is not a kind of profession which can be said to be carried on as profession of commercial nature. It is not a commercial activity and the very nature of work is such that it is incapable of being of a commercial one carried on by an individual by his personal skill, intelligence and dependent on individual characteristic."
5. A similar view was expressed by another Division Bench of the same Court in N. E. Merchant v. State, AlR 1968 Bom 283, in relation to the office of a Chartered Accountant. It was observed:--
"One of the important elements to be considered when the question whether a man is exercising a profession is to see whether he is a member of an organized professional body with a recognized standard or ability enforced before he can enter it and a recognised standard of conduct enforced while he is practising it. A chartered accountant is approached by his client fur advice and guidance in his problems with regard to trade, business or industry, and it is expected that the chartered accountant, to the best of his ability, would be in a position to help him in his difficulties and not betray the confidence that is placed in him. This is one of the elements which should be sought when considering whether a particular person is practising a profession or is merely doing a business."
6. The true nature of a lawyer's profession was examined by a Division Bench of the Kerala High Court in Sasidharan v. M/s. Peter and Karunakaran, 1978 Lab IC 1614, though in the context of the Kerala Shops and Commercial Establishments Act and it was held that a firm of lawyers practising law is not a commercial establishments. It was observed:
"The requirement of the definition in S. 2(4) of the Act is that a 'commercial establishment' must be one 'mainly engaged in office-work.' But from the juxtaposition of the words 'mainly engaged in office work', which are, so to say, sandwiched between 'commercial or industrial or trade or banking or insurance establishment or an establishment of administrative service' on the one hand, and a 'hotel, restaurant, boarding or eating house, cafe or other refreshment house, theatre, or other place of public amusement or entertainment' on the other, the expression in question should be limited to organised work of a manual or physical type and not one involving predominantly, if not exclusively, intellectual pursuit or activity. Taking into account activities of a lawyer-firm which occupy most part of its time and labour, it cannot be said that it is "an establishment, where the persons are mainly engaged in office work". The provisions of Chapters II to VI afford sufficient indication that the work of the professional lawyer and the lawyer's firm was not contemplated to be within the ambit of S. 2(4) of the Act."
The ratio of this decision was approved in appeal by the final Court in V. Sasidharan v. M/s. Peter and Karunakar, AIR 19H4 SC 1700. It was ordained:--
"The office of a lawyer or of a firm of lawyers is not a 'commercial establishment' within the meaning of the Act. The various clauses of the definition of the term 'commercial establishment' under S. 2(4) would show that establishments far apart from professional offices were within the contemplation of the legislature."
It was further held:
"The office of a lawyer or of a firm of lawyers is not a 'shop' within the meaning of S.2(15). Whatever may be the popular conception or misconception regarding the role of today'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 S. 2(15) is inapposite in the case of lawyer's office or the office of a firm of lawyers."
It is, thus, clear that it is no more open to the respondent to describe the profession of law as a commercial or semi-commercial activity.
7. There are no common features or characteristics in a residential building or part thereof being used for professional purposes by a lawyer and the other institutions/establishment enumerated in clause (iv) of bye-law 13. There was no justification in putting the premises of a lawyer alongside the other institutions and establishments. Residential premises of a lawyer and the other institutions and establishments mentioned in clause (iv) ibid do not form one class. They are institutions/establishments which have nothing common amongst themselves. Their clubbing together is wholly arbitrary and irrational. It is not necessary to dilate upon this matter any further because the same is not res integra. It stands concluded by a recent Division Bench decision of the Bombay High Court in Narendra Keshrichand v. State of Maharashtra, 1986 Lab IC 318. After the decision in Sakharam Narayan Khardekar's case (AIR 1964 Bom 200) (supra), the Legislature amended the Bombay Shops and Establishments Act; 1948 (for short, 'the Act') by enacting Maharashtra Act LXIV of 1977 and the definition of the expression "establishment" was enlarged by including therein the establishment of a legal practitioner, medical practitioner, etc. Resultantly the lawyers were required to get their offices-cum-residences registered as commercial establishments under the Maharashtra Act. This action was challenged, inter alia, on the ground that the class of legal practitioners did not partake all the attributes of business, commerce or trade which was necessary for bringing them under the definition of commercial establishment and in view of the avowed object of the Act as originally framed the inclusion of legal practitioner in the definition of the expression "establishment" was arbitrary and irrational and was violative of Art. 14 of the Constitution. This contention was accepted and it was held that the amendment, so far as it relates to the establishment of a legal practitioner, is liable to be struck down as it herds together commercial establishments with the establishments of lawyers, which herding together is irrational and arbitrary. It was observed:--
"The amendment Act (64 of 1977) so far as it relates to the establishment of legal practitioner, is liable to be struck down as it herds together commercial establishments with the establishment of a legal practitioner, which herding together is irrational and arbitrary."
It was further held:
"There are no common properties or characteristics to be found in the other commercial establishments and the establishment of a legal practitioner which have been herded together. There is no rational basis for herding them together and the conclusion that they were brought together arbitrarily, is inescapable. The differentia must be intelligible and must be reasonably related to the object of law. The herding up, which is done either arbitrarily or irrationally would, ex facie, be unreasonable. It is, therefore, clear that the inclusion of the establishment of a legal practitioner in the context of the connotation of commercial establishment, does not answer the test of reasonableness and the inclusion would, therefore, be violative of Article 14 of the Constitution also on the ground of unreasonableness.
Though the Legislature was competent to enlarge the definition of 'commercial establishment', it could not bring it for equal treatment along with other commercial establishments an entity which was not a commercial establishment, as previously understood by the judicial opinion in this country."
The above ratio is fully applicable to the facts of the present case. The clubbing of residential building used for professional purposes by a lawyer, for the purposes of determining the rate of water consumed, with educational institutions, hospitals, community centres, charitable institutions and buildings used as Government offices, religious institutions and Dhobi Ghats is wholly arbitrary, whimsical and irrational and is violative of Art. 14 of the Constitution.
8. In the result, the writ petition is allowed and part of sub-clause (9) of clause (iv) of By-law 13 imposing higher charges for water consumption on residential buildings or any part thereof used for professional purposes by a lawyer is struck down, but with no order is to costs.
9. Petition allowed.