"... it is crystal clear that the profession of a lawyer cannot be termed as a commercial activity."
The Calcutta High Court has held that legal profession is not a commercial activity and hence, the chambers of a lawyer in a residential property cannot be categorized as commercial use of the property.
Justice Shekhar B. Saraf on Tuesday clarified,
"...a professional activity involves a certain amount of skill as against commercial activity which in a matter of business is paramount. These two were held to be distinct concepts; while in commercial activity one works for gain or profit, as against this, in profession, one works for his livelihood. Accordingly, there is a fundamental distinction between a professional activity and an activity of a commercial character, and therefore, it is crystal clear that the legal profession would not fall under the category of 'Commercial (Urban)'."
Reliance was placed on the Apex Court's decision in Kanubhai Shantilal Pandya & Ors. v. Vadodara Municipal Corporation.
This is "distinguishable from law firms and proprietorship firms that are having offices in commercial spaces dealing with litigation and non-litigation work."
The court was faced with the question, whether a lawyer using a domestic space as his chambers is liable to be charged with tariff on commercial basis.
The Petitioner, a practicing lawyer had set up a chamber in the ground floor of the multi-storied building where he resides. He had approached the high court against CESC Ltd., when his application for a new electric connection for his chamber under the "domestic (urban)" category was declined.
The CESC argued that the issue in question did not relate to classification of the premises but, to the use of electricity in a premises and the imposition of electricity tariff for the said use.
It was contended that the activity of a lawyer running an office falls under the category of 'non-domestic' use and hence, they had rightly sent a quotation for payment of service charges and security deposit on the basis of a "commercial (urban)" connection.
Justice Saraf observed that as held by the Supreme Court in Chairman, M.P. Electricity Board & Ors. v. Shiv Narayan & Anr., and as also argued by the CESC, the legal profession would fall under the category of "non-domestic". However, falling under the category of "non-domestic" would not automatically make the use "commercial".
"The words "nondomestic" and "commercial" are not fungible, and therefore, cannot be interchanged," he exclaimed.
The court noted that the law on levy of tariffs on "non-domestic" users was unclear and held that, such lack of clarity should not be used to the "detriment" of the consumer.
The categorization in the tariff of CESC was limited to two categories: (a) Domestic (Urban) and (b) Commercial (Urban).
Justice Saraf clarified that the "entry of "Commercial (Urban)" is not a residual entry, and therefore, unless a user is commercial, the rate applicable to a commercial user cannot be charged simpliciter because the profession of lawyer is considered to be a non-domestic use."
"The chambers of a litigation lawyer are clearly used for his livelihood, and accordingly, the benefit of doubt is required to be given to such a petitioner placing him in the category of the "Domestic (Urban)"."
Accordingly, the Court held that the space being used by the Petitioner was an extension of his residence for his legal chamber, placing him in the category of the "Domestic (Urban)". Further, CESC was directed to provide new electric connection to the Petitioner under the category 'Domestic (Urban)' within a period of two weeks.
Case Details:Case Title: Arup Sarkar v. CESC Ltd. & Ors.Case No.: WP 18367/2019Quorum: Justice Shekhar B. SarafAppearance: Advocates Subir Sanyal, Usof Ali Dewan, Soumyajit Das Mahapatra, Kaustav Bagchi and Asif Dewan (for Petitioner); Advocate Rajiv Lall (for CESC Ltd.)
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