Gujarat High Court
Ahmedabad Municipal Corporation vs Hiren Arunbhai Gandhi on 11 July, 2025
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
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Reserved On : 05/02/2025
Pronounced On : 11/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4934 of 2008
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2008
In R/FIRST APPEAL NO. 4934 of 2008
With
R/FIRST APPEAL NO. 4935 of 2008
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2008
In R/FIRST APPEAL NO. 4935 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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Approved for Reporting Yes No
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AHMEDABAD MUNICIPAL CORPORATION
Versus
HIREN ARUNBHAI GANDHI
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Appearance:
MS JIRGA D JHAVERI(3471) for the Appellant(s) No. 1
MR AMIT PANCHAL WITH MR ANGESH A PANCHAL(9138) for the
Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
CAV JUDGMENT
(PER : HONOURABLE MS. JUSTICE SANGEETA K. VISHEN)
1. Both the appeals are heard analogously and being
decided by this common CAV judgment as much as, the
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challenge involved in the captioned appeals is common for
which, the learned advocates have consented to.
2. Both the appeals are directed against, the orders, both
dated 30.04.2007 passed by the learned Small Causes Court,
Ahmedabad whereby the Municipal Valuation Appeal no.675
of 2002 as well as Municipal Valuation Appeal no.677 of
2002, have been allowed and the assessment of the premises
involved in both the appeals for the year 2002-2003, has been
quashed and set aside. The appellant, Ahmedabad Municipal
Corporation (hereinafter referred to as "the appellant
Corporation") has been directed to issue fresh bill after
applying the appropriate factor F/2 afresh. In Municipal
Valuation Appeal no.677 of 2002, direction is to issue fresh
bill after assessing the premises as educational
establishment.
3. Ms.Jirga Jhaveri, learned Advocate appearing for the
appellant Corporation in both the captioned appeals,
submitted that the premises in question is a building
consisting of ground plus three floors and is being used as an
office which, is commercial in nature. It is further submitted
that the respondent is using the premises exclusively for his
office work and his residential premises is separate. It is
further submitted that the buildings are generally classified
as residential or non-residential, based on its usage. Even if
the classification is as residential, if the building is being used
for commercial purposes, it is taxed as non-residential
building. It is further submitted that in cases of other
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professionals namely lawyers, doctors, etc., for a small
portion of their residential premises being used for the
professional purposes, exception is carved out, subject to the
condition that the building is predominantly used for
residential purpose with kitchen and the professional is
actually residing there. However, in majority of the cases the
professionals have separate offices, clinics or dispensaries
etc. and hence, they are assessed separately. It is further
submitted that therefore, it is necessary and important to
ascertain as to whether the building is primarily or
exclusively used for non-residential purposes.
3.1 It is submitted that, the premises is totally used for
commercial purpose and not for residential purpose.
Moreover, some portion of the premises is being rented for
residential use and if the say of the respondent is accepted, it
is likely to have far reaching effect. It is further submitted that
the respondent is using the premises exclusively for
professional purpose and the entire usage is commercial in
nature and hence, it cannot be considered as a building being
used for residential purpose. It is therefore submitted that the
learned Judge, has committed a grave error in setting aside
the bills issued by the appellant Corporation without
considering the fact that the disputed part of the premises is
used for commercial purpose. Moreover, the learned Judge
has exceeded jurisdiction by quashing the tax bills as per the
new formula in force. Thus, the basis on which the bills have
been quashed and set aside is erroneous considering the fact
that the premises in question is being predominantly used for
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residential purpose. It is therefore urged that the appeals
deserve to be allowed.
3.2 Reliance is placed on the judgment in the case of
Ahmedabad Municipal Corporation vs. Kapilbhai Mukundbhai
Bhatt reported in 2009 (2) GLR 1210. It has been held and
observed that when a premises is exclusively run as an office,
it is clearly a non-domestic use and when there is non-
domestic use, commercial rates are to be charged as per the
judgment of the Apex Court in the case of Chairman
Electricity Board and Ors. vs. Shiv Narayan and Anr. (Civil
Appeal No. 1065 of 2000), wherein it is held that as the user is
admittedly not 'domestic' it would fall in the category of
'commercial and non domestic'. In such cases even for 'non-
domestic' use the commercial rates are to be charged.
Exclusively running an office is clearly a 'non domestic' use.
4. On the other hand, Mr.Amit Panchal, learned Advocate
appearing with Mr.Angesh Panchal, learned Advocate has
vehemently opposed the appeals. It is submitted that no error
has been committed by the learned Judge in applying the
principle laid down in the case of V. Sasidharan vs. M/s. Peter
and Karunakaran and Ors. reported in (1984) 4 SCC 230. The
appeals of the respondent have rightly been allowed. The
assessment has been quashed with a direction to issue a fresh
municipal bill after employing the appropriate factor. It is
further submitted that the premises in question is situated in
a residential area and not in commercial area and some part
is being used by the sister of the respondent for residential
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purpose and some part by the respondent for his professional
work. The respondent is an architect by profession and is not
indulging in any commercial activity or business. The nature
of occupation by the respondent of the premises for the work
of architecture, is akin to the office occupied by the lawyers.
The respondent is a practicing architect and the services
rendered by him, would be professional in nature and not
commercial.
4.1 It is submitted that in the case of Council of Architecture
vs. Mukesh Goyal and Ors. reported in (2020) 16 SCC 446, the
Apex Court, has discussed the nature of profession of
architecture and what it constitutes. It is held that the
profession of architecture involves wide range of activities
including (i) Taking instructions from clients and preparing
designs; (ii)Site evaluation and analysis; (iii) Site design and
development; (iv) Structural design; (v) Design of sanitary,
plumbing, sewage, drainage and water supply structures; (vi)
Design and structural integration of electrical and
communications systems; (vii) Incorporation of heating, air
conditioning, ventilation and other mechanical systems
including fire detection and prevention systems; and (viii)
Periodic inspection and evaluation of construction work. The
Apex Court has further held that architecture undoubtedly
constitutes a highly specialised profession requiring the
possession of minimum educational qualifications. However,
architects are by and large engaged by means of a contract
for services and they provide a set of specialised services
towards the larger goal of construction. Architects are not
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embarking on construction independently of other actors.
4.2 It is therefore submitted that the respondent is an
architect by profession and office is situated within the society
in a residential area wherein some portion of the building was
used for residential purpose by his sister and not for any
commercial purpose. It is further submitted that if a part of
the premises is used for the purpose other than the architect's
office and/or residential use and is used for commercial
purpose or business purpose, the tax for that part would be
paid by the respondent as may be assessed by the appellant
Corporation in accordance with law.
4.3 Reliance is placed on the judgment in the case of
Kanubhai Shantilal Pandya vs. Vadodara Municipal
Corporation reported in (2016) SCC OnLine Guj 6524. The
facts were almost identical and this Court, found that the
petitioners were occupying the residential units situated in
the residential area for residential purpose and only a small
portion was set apart for the legal work. This Court, was of
the opinion that the Corporation committed an error in
splitting the properties for tax purpose. While referring to
section 141B of the Gujarat Provincial Municipal Corporations
Act, 1949 (hereinafter referred to as "the Act of 1949"), the
Court, noted that it does not classify the building into
residential buildings and buildings other than residential use,
nevertheless, it is doubtful whether such classification can be
provided for the same building. It has been held that if the
unit was a commercial unit used by the lawyer for his legal
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profession or even if the entire residential unit was occupied
by the lawyer for his legal work, different considerations
would perhaps apply. This Court allowed the writ petition filed
by the assessee and quashed the municipal tax bills leaving it
open to the Corporation to issue bills afresh for such
properties treating the occupation as residential.
4.4 Reliance is also placed on the judgment in the case of
Pratik Hareshkumar Shah vs. Ahmedabad Municipal
Corporation passed in First Appeal No. 6140 of 2019 and
other allied matters. The Division Bench, while agreeing with
the view taken by the coordinate bench in the case of
Kanubhai Shantilal Pandya vs. Vadodara Municipal
Corporation (supra) observed that the office run by the
practicing advocate would not fall within the ambit of
commercial activity but would remain in the realm of
professional activity. The Division Bench, has referred to the
chart produced by the learned Counsel appearing for the
Corporation but, did not accept the same by observing that
the endeavour on the part of the Corporation to bring the
office of the lawyer within the ambit of commercial office is
misplaced, inasmuch as, for bringing the office of the lawyer
within the ambit of commercial office, the activity has also to
be commercial in nature. The office of the lawyer would fall
within the ambit of professional activity and not commercial.
4.5 It is therefore submitted that no error is committed by
the learned Small Causes Court in quashing the municipal
bills issued by the appellant Corporation, inasmuch as, some
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portion of the building is residential whereas, some is being
used for the purpose of running the office of the architecture.
5. Heard the learned advocates appearing for the
respective parties. Perused the Record and Proceedings and
have given thoughtful consideration to the submissions made
by the learned Advocates appearing for the respective parties.
6. The facts, are thus:
7. The respondent, is an owner and occupier of the
premises situated at Memnagar, Ahmedabad. The appellant
Corporation issued bills for the year 2002-2003 under Rule 39
of Chapter VIII of the Act of 1949 read with Gujarat Education
Cess Act, 1962 (hereinafter referred to as "the Act of 1962")
considering the use of the premises as commercial office, the
tax was charged accordingly. Being aggrieved, the respondent
preferred appeals before the Small Causes Court at
Ahmedabad by filing Municipal Valuation Appeal no.675 of
2002 with respect to Tenament no.0518-03-1021-0003-I and
Municipal Valuation Appeal no.677 of 2002 in respect of
Tenament no.0518-03-1021-0005-E.
8. In Municipal Valuation Appeal no.675 of 2002, the
respondent was aggrieved by the municipal tax bill no.1561
dated 19.08.2002, received on 25.09.2002 from the appellant
corporation showing the use of factors in an unjust, unfair and
improper way with a prayer that the appeal be allowed and
quantification of municipal taxes made by the respondent
corporation for the entire assessment year 2002-2003 be
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quashed and set aside. To support, the ground raised is that
the premises are used as an office of Architect and for
professional purpose which is distinct from commercial
purpose. Further ground is raised that to conduct the
profession an incumbent must have requisite qualification. In
absence whereof, nobody can run a professional pursuit and
that there is an accountability both to the clients and the
parent institution to which an incumbent has been associated.
Similarly, in Municipal Valuation Appeal no.677 of 2002, the
challenge is to quantification of municipal taxes assessed by
the appellant corporation for the assessment year 2002-2003.
Similar such grounds to the grounds raised in Municipal
Valuation Appeal no.675 of 2002 have been raised in the
above referred appeal.
9. The Municipal Valuation Appeals were disposed of by
two orders, both dated 30.04.2007. The judgment in
Municipal Valuation Appeal no.675, Exh.9, containing two
paragraphs and operative portion reads thus:
"2. It is contended the appeal premises is used as an office of
Architect, i.e. it is used for professional purpose which is quite
distinct from commercial purpose. It is further submitted that to
conduct a profession, an incumbent must have requisite
educational qualification, without which no-body can run a
professional pursuant. That there is accountability both to the
clients and the parent institution to which the incumbent has to
get registration. In support of his submission, he has relied on a
Mun. tax bill, wherein appeal premises is shown as commercial
office and applied factor-f-3/7.00. It is therefore, contended that
the office of an Architect cannot be said as commercial office and
for the same has relied upon the citation reported at AIR 1984
Supreme Court, 1700. I have gone through the said citation award
with due respect, it is applicable to the case of appellant, wherein
it is clear statement that professional establishment cannot be
considered as commercial establishment. Therefore, I am of the
view that the appellant is succeeded in proving his case.
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Therefore, in conclusion, following order is passed.
ORDER
1. Appeal is partly allowed.
2. Respondent is hereby directed to quash and set aside the
assessment for the year 2002-03 and issue a Mun. bill after
employing the appropriate factor, F/2 afresh.
3. No order as to costs."
Similarly, in Municipal Valuation Appeal no.677 of 2002,
Exh.9, containing two paragraphs, read thus:
"2. It is contended the appeal premises are used as an office of
Architect. It means that the premises are used for a professional
purpose which is quite distinct from commercial purpose. To
conduct a professional an incumbent must have requisite
educational qualification, without which no body can run a
professional pursuant. While the commercial establishment can
be run by any person, i.e. no qualification is required. Therefore,
submitted that assessment made be quashed and set aside and it
is to be assessed as an educational establishment. I have heard
the submission of both sides and I find substance in the
submission of appellant side and therefore, I pass the following
order.
ORDER
The respondent is hereby directed to quash and set aside the
previous bill under question and afresh bill be issued after
assessing the appeal premises as an Educational establishment,
for the year 2002-03. No order as to costs."
10. Pertinently, the record & proceedings reveal containing
11 exhibits, namely, the application seeking condonation of
delay, affidavit, copy of the appeal memo, Vakalat Patra, copy
of the list, address purshis, notice under Form 'C', Vakalat
Patra filed by the respondent and the judgment. In the
proceedings, the appellant corporation has not filed its
written statement providing the basis for the assessment
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explaining as to how the factor has been applied. The learned
Judge, considering the documents available on record, was of
the opinion that the premises have been used as an office of
the Architect. It is used for professional purpose which is
distinct from commercial purpose. The premises for the
purpose of municipal tax bill, is shown as commercial office
and the factor applied, is F-3/7.0 and therefore applying the
principle laid in the judgment of the Apex Court in the case of
V. Sasidharan vs. M/s. Peter and Karunakaran and Ors., the
learned Judge, quashed the assessment for and the appellant
corporation was directed to issue the bill after applying
appropriate factor F/2.
11. Recently, during the pendency of the proceedings, both
the parties to the captioned appeals have filed their respective
affidavits explaining their respective stands. The respondent
has filed reply dated 03.09.2023 citing the judgments and
taking a stand that the respondent is an Architect by
profession and is having his professional office situated at the
disputed premises which is a residential area and part of the
building, was being used for residential purpose by his sister
and not for any commercial purpose. Contention is also raised
that if part of the premises is used for the purpose other than
the office and/or residence and if for any commercial
purpose/business purpose, the tax for the said part of the
premises would be paid accordingly by the respondent as may
be assessed by the appellant corporation.
12. The appellant corporation also by filing reply dated
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24.01.2025 has taken a stand that the premises in question is
used totally for commercial purpose and is not being used for
residential purpose. In support thereof, photographs have
been annexed. It is further stated that some portion of the
premises is rented for residential usage. Further contention is
raised that in case of lawyers, doctors and other professionals,
if small portion of their residence is used for professional
purpose, exception is made in such cases inasmuch as,
building is a residential building with kitchen and other
amenities and the person concerned resides there. It is stated
that in most of the cases, professionals have separate offices,
clinics, dispensaries and they are being assessed separately
and therefore, it is necessary to ascertain whether the
building is primarily or exclusively used for non-residential
purpose. Photographs have been annexed together with the
details enumerated in the affidavit. It is stated that in the case
on hand, office is situated in the residential area but the
entire usage of the premises is commercial in nature and
therefore, it cannot be considered as residential purpose. It is
contended that therefore, the orders passed in valuation
appeals, are required to be quashed and set aside.
13. Pertinently, neither of the stand taken was available at
the time of hearing of the Municipal Valuation Appeals.
Whether to consider the stand now taken is dealt with in
succeeding paragraph.
14. Adverting to the merits, some of the judgments cited are
worth referring to. In the case of Council of Architecture vs.
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Mukesh Goyal and Ors. (supra), the question was whether
section 37 of the Architects Act, 1972 merely prohibits use of
the title "architect" by the individuals not registered with the
Council of Architecture under Chapter III of the enactment.
The regulatory scheme and the applicability of the Architects
Act, 1972 were examined and it is observed that the
Architects Act,1972 is a special legislature creating an
exhaustive regulatory regime applicable to the profession of
architecture. It is further held that Architecture undoubtedly
constitutes a highly specialised profession requiring the
possession of minimum educational qualifications. Paragraphs
47 to 49 of the said judgment read thus:
"47. The profession of architecture involves a wide range of
activities including inter alia:
(i) Taking instructions from clients and preparing designs;
(ii) Site evaluation and analysis;
(iii) Site design and development;
(iv) Structural design;
(v) Design of sanitary, plumbing, sewage, drainage, and water
supply structures;
(vi) Design and structural integration of electrical and
communications systems;
(vii) Incorporation of heating, air-conditioning, ventilation and
other mechanical systems including fire detection and prevention
systems; and
(viii) Periodic inspection and evaluation of construction work.
48. These activities are undertaken by architects but are also
carried out by architects in concert with a range of other actors
including draughtspersons, builders, engineers, and designers. If
the legislature were to impose an absolute prohibition against
unregistered individuals from ̳practicing architecture' there
would be considerable confusion as to what activities formed the
practice of architecture and what did not. It may have resulted in
a host of other legitimate professionals being barred from
engaging in the design, supervision and construction of buildings
merely because they were not registered under the Architects
Act. Further, as the learned Attorney General of India brought to
our attention, these varied professions form essential cogs in the
overall machinery of construction in India and the design,
supervision and construction of new structures cannot be done by
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architects alone. It would be unreasonable from a regulatory
perspective to ask all professions touching upon the construction
of new structures to obtain a degree in architecture.
49. Architecture undoubtedly constitutes a highly specialised
profession requiring the possession of minimum educational
qualifications. However, architects are by and large engaged by
means of a contract for services. In other words, architects
provide a set of specialised services towards the larger goal of
construction. Architects are not embarking on construction
independently of other actors. By virtue of the Architects Act,
anybody engaging the services of an individual calling themselves
an "Architect" is assured that such an individual possesses
statutorily recognised educational qualifications and is competent
to complete the task at hand. It is in this manner that the
legislature protects the common person from untrained
individuals."
Therefore, the Apex Court, has recognised that the
profession of Architecture involves a wide range of activities
and it undoubtedly constitutes a highly specialised profession
requiring the possession of the minimum qualifications.
15. In the judgment in the case of V.Sasidharan vs. M/s.
Peter and Karunakaran and Ors. (supra), the issue before the
Apex Court was lawyers office. It has been observed that the
office of the lawyer or the firm of lawyer is not "shop" within
the meaning of section 2(15) of the Kerala Shops and
Commercial Establishments Act, 1960. The Apex Court
observed that the definition of "shop" which is contained in
section 2(15) shows that in order for an establishment to be
regarded as "shop", it is necessary that some "trade" or
"business" must be carried out or where services are
rendered to customers. The office of the lawyer or firm of
lawyer was held to be not a "shop" within the meaning of
section 2(15). The Apex Court, therefore, held that the office
of the lawyer or firm of a lawyer is not a "commercial
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establishment" within the meaning of the Act.
16. In the case of Kanubhai Shantilal Pandya vs. Vadodara
Municipal Corporation(supra), the challenge was to the action
of the Vadodara Municipal Corporation to levy municipal tax
on the basis of non-residential/commercial category for part of
their residential premises from which the petitioners were
operating their office as advocates. Paragraphs 5 to 11 of the
said judgment read thus:-
"5. From the above materials, it can be seen that the bills in
question pertain to the same property for which Vadodara
Municipal Corporation has issued two separate bills, one
concerning the use by the petitioners for residential
purpose and other occupied by the petitioners for their
legal work which the Vadodara Municipal Corporation has
charged at commercial rate. What further emerges from the
record is that all these units are essentially residential
units located in residential areas and occupation of the
area by respective petitioners for legal work is relatable to a
small portion of the total area of the property.
6. In this background, the question that arise is,
whether Vadodara Municipal Corporation could have
charged two separate rates?
7. Vadodara Municipal Corporation relied on section 141B of the
Bombay Provincial Municipal Corporations Act which reads
as under :
"141B [General Tax] at what rate leviable.-(1) For
the purposes of [clause(c) of section 141AA, general tax]
shall, subject to such exceptions, limitations and
conditions hereinafter provided, be levied annually on
buildings and lands in the City at such rate per
square metre of the carpet areas of buildings and
of the areas of lands (hereinafter referred to as
"the rate of tax") as the Corporation may determine.
(2) For the purpose of levy of tax on buildings in the
City under sub-section(1),
(a) the buildings may be classified into residential
buildings and buildings other than residential; and
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(b) the Corporation may determine one rate
of tax for residential buildings and the other rate
of tax for buildings other than residential;
Provided that it shall be lawful for the
Corporation to determine for residential
buildings, the carpet area of which does not
exceed forty square metres, such rate of tax as is
lower than the rate of tax determined for residential
buildings generally under this sub-section.
(3) The rate of tax determined under sub-section(1)
read with sub-section(2) shall not-
(a) in respect of residential buildings, be
less than ten rupees per square metre of carpet
area and more than forty rupees per square metr of
carpet area, and
(b) in respect of buildings other than residential,
be not less than twenty rupees per square
metre of carpet area and more than eight
rupees per square metre of carpet area.
(4) The Corporation may, subject to rules,
increase or decrease or neither increase nor
decrease the rate of tax determined under sub-
section(1) read with sub-sections(2) and (3),-
(a) in the case of residential buildings, having regard
to the following factors, namely:-
(i) the market value of the land in the area of the City
in which the buildings are situated;
(ii) the length of time of the existence of buildings.
(iii) the type of the buildings, and
(iv) whether the buildings are occupied by
owners or tenants.
(b) in the case of buildings other than residential
having regard to the following factors, namely:-
(i) the market value of the land in the area of the city
in which the buildings are situated.
(ii) the length of the time of the existence of the
buildings,
(iii) the purpose for which the buildings are used, and
(iv) whether the buildings are occupied by
owners or tenants, (5) In lieu of the [general tax]
leviable under sub-section(1) read with sub-
sections (2) and (3), there shall be levied
annually on,-
(a) residential huts, and
(b) residential tenements in a chawl, each such
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tenement having carpet area not exceeding
twenty-five square metres,- such amount of tax as
the Corporation may determine:
Provided that the amount so determined shall not
be less than such amount as the State
Government may, by notification in the official
Gazette, specify Explanation - For the purpose of
levy of tax under this section, where an addition
is made to an existing building whereby the carpet
area of that building is increased, such addition
shall be treated as a separate building and
the length of the time of its existence shall be
computed from the year in which the addition is
made."
8. On the other hand, petitioners strongly contended that the
occupation of the premises is for residential use, only
a small portion thereof is set apart for legal work. This does not
change the fundamental character of the use of the
building. Same building cannot be split in two parts
for consideration of taxation namely, residential and non
residential. Counsel for the petitioners placed relied on
various decisions as was done by the counsel for the
respondent. In face of such facts, we may see how different
Courts have viewed this situation.
9. In a judgement dated 17.6.2013 passed in First
Appeal No.3642/2006 and connected matters in case of
Ahmedabad Municipal Corporation v. Shantilal Ambalal
Sukhadia while dealing with the First Appeal of
Ahmedabad Municipal Corporation against the judgement of
Small Causes Court, Ahmedabad, Division Bench in
somewhat similar circumstances observed as under :
"9. In our view, if on behalf of the Corporation, no evidence
is produced and the evidence produced on behalf of
the respondent shows that the flat in question was also
used for residence and profession, and on that basis the
learned Judge has directed to consider the use of the
premise as residential, such an approach cannot be
said to be erroneous. We may record that had it been a
case, where the proof had come on record that the flat in
question was exclusively used for professional purpose
or had the premise or flat been situated in a commercial
complex, it might stand on a different footing and
in those cases, treating the use as commercial may be
justified, but in a case where a premise in part is used for
residential and a portion is used for profession, the use of
premise cannot be treated as commercial use."
10. Learned Single Judge of Bombay High Court in case of
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Municipal Corporation of city of Pune v. Bhagwan
Ganesh Sabne reported in 2006(5) BCR 511, considered a
question whether use of the premises by the Chartered
Accountant for his profession can make him liable to taxes in
respect of the premises used for the purpose of trade
and business. It was held that the profession of Chartered
Accountant is neither a trade nor a business.
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. Like-wise 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 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, 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,
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different considerations would perhaps apply. In the present
case, when the predominant use of the residential unit was for
residence of the owner-occupier 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."
17. The Division Bench, while dealing with the tax imposed
by the Corporation on the basis of non-residential use of part
of the lawyers residential premises, has succinctly discussed
the provisions of section 141B of the Act of 1949, and it has
been held on the facts of the case that the lawyers were
occupying the residential units situated in the residential
areas for their residential purpose and only a small portion of
the premises have been set apart for legal work and hence,
the Vadodara Municipal Corporation committed an error in
splitting the properties in question for separate consideration
for tax purpose. The Division Bench has further observed that
section 141B of the Act of 1949 does refer to classification of
the building into residential building and building other than
residential use, nevertheless, 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. This Court, found that predominant
use of the residential unit was for residence of the owner -
occupier for his family. Mere setting apart a small area
therein for his legal work would not change the
predominant use of the property. The Division Bench held
that the corporation could not have charged such area
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separately at non-residential or commercial rate.
18. In the case of Pratik Hareshkumar Shah vs. Ahmedabad
Municipal Corporation(supra), undisputedly the first floor of
the tenement was being used for residential purpose and the
ground floor was being used as an office. Paragraphs 15 to 19
of the judgment of the Division Bench are reproduced
hereinbelow for ready reference:
"15. Thus, the commercial properties would include a Bank,
Dispensary, Hospital, Clinic, Maternity Home, Laboratory, Central
Government Office, State Government Office, Local bodies Office,
Post Office, Commercial and/or Industrial Office, Oil Company's
Office, Offices of Corporations, Tuition Classes, Typing Institute,
Go- downs and Warehouses of the Properties falling in the above
categories and those buildings. The endeavour on the part of Mrs.
Raval is to bring the case on hand within the ambit of commercial
office. It is difficult for us to say that an office of a lawyer is a
commercial office. For bringing it within the ambit of a
commercial office, the activity has also to be a commercial in
nature. The office of an advocate would fall within the ambit of
professional activity.
16. We may refer to and rely upon a decision of the Supreme
Court in the case of M.P. Electricity Board and Others (Supra) as
the same has been referred to and followed by this Court in the
case of Kanubhai (Supra).
17. The question that fell for the consideration of the Supreme
Court in the said case was whether the legal profession is a
commercial activity or not. The Madhya Pradesh Electricity Board
and its functionaries charged the respondent No.2
therein[Advocate] for electricity consumption at the rate
applicable for the commercial consumers. The demand was
questioned by filing a writ petition before the Madhya Pradesh
High Court, which held that the legal profession does not involve
a commercial activity. The High Court took the view that the
office of a lawyer or a firm of lawyers is not a 'commercial
establishment' and therefore, the rates applicable to the
commercial consumers cannot be charged in respect thereof.
18. The Board challenged the said decision before the Supreme
Court. The Supreme Court while dismissing the appeal filed by
the Board and affirming the view taken by the High Court held as
under:-
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5. The word 'commerce' is a derivative of the word
'commercial'. The word 'commercial' originates from the
word 'commerce' which has been defined in Black's Law
Dictionary- Sixth Edition as under:
"Commerce.-The exchange of goods, productions, or
property of any kind, the buying, selling, and
exchanging of articles. Anderson v. Humble Oil and
Refining Co.226 Ga.252, 174 S.E.2d 415, 417. The
transportation of persons and property by land, water
and air. Union Pacific R.Co. v. State Tax
Commissioner, 19 Utah 2d 236, 429 p.2d 983, 984.
Intercourse by way of trade and traffic between
different people or States and the citizens or
inhabitants thereof, including not only the purchase,
sale, and exchange of commodities, but also the
instrumentalities and agencies by which it is promoted
and the means and appliances by which it is carried
on, and transportation of persons as well as of goods,
both by land and sea. Brennan v. Titusville, 153 U.S.
289, 14 S.Ct.829, 38 L.Ed.719; Railroad Co. v. Fuller,
84 U.S. (17 Wall.) 568, 21 L.Ed. 710; Hoke vs. United
States, 227 U.S. 308, 33 S.Ct 281, 57 L.Ed.523. Also
interchange of ideas, sentiments, etc. as between man
and man.
The term 'commerce' means trade, traffic, commerce,
transportation or communication among the several
States, or between the District of Columbia or any
Territory of the United States and any State or other
Territory, or between any foreign country and any
State, Territory, or the District of Columbia, or within
the District of Columbia or any territory, or between
points in the same State but through any other State
or any Territory or the District of Columbia or any
foreign country. National Labour Relations Act 2......"
6. The word 'commercial has been defined to mean:
"Commercial. Relates to or is connected with trade and
traffic or commerce in general; is occupied with
business and commerce. Anderson vs. Humble Oil &
Refining Co. 226 Ga.252, 174 S.E. 2d 415, 416.
Generic term for most all aspects of buying and
selling."
The expression 'commerce' or 'commercial' necessarily
has a concept of a trading activity. Trading activity
may involve any kind of activity, be it a transport or
supply of goods. Generic term for most all aspects is
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buying and selling. But in legal profession, there is no
such kind of buying or selling nor any trading of any
kind whatsoever. Therefore, to compare legal
profession with that of trade and business is far from
correct approach and it will totally be misplaced.
7. Similarly, in the Advanced Law Lexicon 3rd Edition 2005,
Volume 1 at page 878 by P. Ramanatha Aiyar, word
'commerce' has been defined as under:
'Commerce' is a term of the largest import. It
comprehends intercourse for the purposes of trade in
any and all its forms, including transportation,
purchase, sale, and exchange of commodities between
the citizens of one country and the citizens or subjects
of other countries, and between the citizens of
different provinces in the same State or country.
Walton v. Missoury, 91 US 275; 23 L Ed.347.
Buying and selling together, exchange of merchandise
especially on a large scale between different countries
or districts; intercourse for the purpose of trade in any
and all its forms (S.2 (13), Income Tax Act).'
8. The word 'profession' has been defined in Black's Law
Dictionary- Sixth Ed. as under:
'Profession- A vocation or occupation requiring special,
usually advanced education, knowledge, and skill; e.g.
law or medical professions. Also refers to whole body of
such profession.
The labour and skill involved in a profession in
predominantly mental or intellectual, rather than
physical or manual.
The term originally contemplated only technology, law
and medicine, but as applications of science and
learning are extended to other departments of affairs,
other vocations also receive the name, which implies
professed attainments in special knowledge as
distinguished from mere skill. Act of professing; a
public declaration respecting something. Profession of
faith in a religion."
9. The word 'profession' has also been defined in the
Advanced Law Lexicon Volume-3 at page 3764 which reads
as under:
"Profession- A 'profession' involves the idea of an
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occupation requiring either purely intellectual skill or
any manual skill, as in painting and sculpture or
surgery, skill controlled by the intellectual skill of the
operator, as distinguished from an occupation which is
substantially the production or sale or arrangements
for the production of sale of commodities. C.I.T. v.
Manmohan Das (1966) 59 ITR 699, 710 (SC) [Income
Tax Act, 1961. Sec.28.]"
10. At page 3765 it has been further stated as follows:
"One definition of a profession is an employment,
especially an employment requiring a learned
education, as those of law and physics (Worcest Dict.).
In the Century Dictionary the definition of profession is
given, among others, as a vocation in which a
professional knowledge of some department of science
or learning is used by its practical application to the
affairs of others, either in advising, guiding, or teaching
them, or in serving, their interest or welfare in the
practice of an art founded on it."
"The word implies professional attainment in special
knowledge as distinguished from mere skill; a practical
dealing with affairs as distinguished from mere study
or investigation; and an application of such knowledge
to use for others as a vocation as distinguished from its
pursuits for its own purposes."
The term is applied to an occupation or calling which
requires learned and special preparation in the
acquirement of scientific knowledge and skill.
1. The occupation which one professes to be skilled in
and to follow; any calling or occupation by which a
person habitually earns his living (S.2(36), Income Tax
Act and S.150, Indian Evidence Act); 2. S.7, North
Eastern Hill University Act."
"An activity to be a profession must be one
carried on by an individual by his personal skill,
intelligence and an individual by his personal
skill, intelligence and dependent on individual
characteristics. Sakharam Narayan Kherdekar v.
City of Nagpur Corporation, (AIR 1964 Bom 200,
210 (Bombay Shops and Establishment Act (79 of
1948, S. 2 (4)).
The multifarious functions call for the exercise of
integrity; intelligence and personal skill by the Chartered
Accountant in the service of his client and so the
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preamble of the Chartered Accountant Act, 1949
describes the avocation of a chartered accountant as a
profession. N.E. Merchant v. State. (AIR 1968 Bom 283,
287. Bombay Shops and Commercial Establishment Act
(76 of 1048)"
"A profession or occupation is carried on for the
purpose of earning a livelihood and a profit
motive does not underline such carrying of
profession or occupation. L.M. Chitala vs.
Commissioner of Labour. (AIR 1964 Mad.131,
133 (Constitution of India, Art. 19(6)"
"Profession as distinguished with 'commercial'
means a person who enters into a profession. It
involves certain amount of skill as against
commercial activity where it is more of a matter
of things or business activity. In profession, it is
purely use of skill activity. Therefore, two are
distinct concepts in commercial activity one
works for gain or profit and as against this, in
profession, one works for his livelihood."
14. A professional activity must be an activity carried on by an
individual by his personal skill and intelligence. There is a
fundamental distinction, therefore, between a professional
activity and an activity of a commercial character. Considering a
similar question in the background of Section 2(4) of the Bombay
Shops and Establishments Act (79 of 1948), it was held by this
Court in Dr. Devendra M. Surti v. The State of Gujarat (AIR 1969
Sc 63) that a doctor's establishment is not covered by the
expression "Commercial establishment".
19. In view of the aforesaid, we agree with the submissions
canvassed on behalf of the appellants that the residential
premises of the appellants herein could not have been split into
two parts i.e. residential and non-residential. It remains a
residential premises and has to be assessed accordingly for the
purpose of fixation of tax. "
19. In the above-referred case, the dispute arose when the
corporation issued two separate bills. One for the ground floor
which was being used for non-residential purpose and other
one for the first floor of the premises being used for
residential purpose. The case of the appellant was that entire
tenement is a residential premise and just because the ground
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floor is being used as an office, it cannot be separated and
treated as non-residential premises for the purpose of
property tax. The Small Causes Court, took a view that as the
ground floor of the tenement is larger in area compared to the
first floor, and it is being utilized as office, it would be
permissible for the corporation to treat the same as non-
residential premises and assess the tax accordingly. The order
of the Small Causes Court was challenged before this court by
way of an appeal under section 411 of the Act of 1949. The
Division Bench considered the distinction drawn in the case of
Kanubhai Shantilal Pandya vs. Vadodara Municipal
Corporation(supra) and it observed that by any means an
office run by a practicing advocate would not fall within the
ambit of commercial activity, but would remain in the realm of
a professional activity. While examining the chart produced on
behalf of the Corporation, the Division Bench considered that
for non- residence, the use factor has been specified in no
uncertain terms.
20. Adverting to the stand now taken by the respective
parties, it may be noted that the reply is filed by the
respondent. Paragraphs 9 and 10 of the reply, read thus:
"9. I therefore say that in view of the Defendant herein being
an Architect by profession and having his Architect's professional
office situated in Ahmedabad Municipal Corporation Staff
Housing Society, which is a Residential Area and wherein part of
the said building was used for Residential purposes by his sister
and not for any Commercial purposes, this Honourable Court
while considering the judgment of the Honourable Supreme
Court of India at Annexure R4 and the judgments of the Division
Bench of this Honourable Court at Annexure R2 Collectively as
well as taking into the consideration the provisions of the
Architect's Act, 1972 and the Architects (Professional Conduct)
Regulations, 1989 at Annexure R3, and the interpretation by the
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Honourable Supreme Court of India in the judgment at Annexure
R1, may be pleased to dismiss the present Appeal and confirm
the Judgment and Order passed by the Learned Small Causes
Court at Ahmedabad and be pleased to declare that an Architect
by virtue of his profession and the degree being held by him is a
professional, like a lawyer and does not deal in commercial
activity and therefore the premises occupied by him for
professional purpose in a residential area and used for an
architects consultation office is distinct from commercial
purpose.
10. I state that if the part of the premises in question are used
for purpose other than Architect's professional office and/or
residence and are used for any commercial purpose and business
purpose, the tax for the said part of the said preemies used for
commercial and/or business purpose would be paid by the
Defendant as may be assessed by the Appellant in accordance
with law"
21. The appellant Corporation has also filed the affidavit.
Paragraphs 4 to 9 are reproduced hereinbelow for ready
reference:
"4. I humbly say and submit that part of the building is used by the
commercial company and other part of the premises is used by the
respondent which is separate from his residential premises as well
as some portion was used at relevant point of time as godown.
5. I humbly say and submit that generally buildings are
classified as residential or nonresidential based on the actual use
of the premises. Considering the same, even if a building classifies
as residential as per BU permission is used for commercial
purposes, it is taxed as non residential building based on usage.
6. I humbly say and submit that in case of lawyers, doctors and
other professionals, sometimes they have a room in their
residential premises which are used for professional purposes,
then exception is made for such professions on the specific
condition that
1) Building is a residential building with kitchen and all
other amenities and concerned person is actually residing
there (with residential proof in aadhar card etc) and small
portion thereof is used for professional purposes.
In most cases, such professionals have separate offices,
clinics, dispensaries etc and they are assessed separately.
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Therefore it must be ascertained whether building is
primarily or exclusively used for non residential purposes.
7. I humbly say and submit that in present case, premises is
used totally for commercial purposes and there is no one residing
there. The copies of the photographs are attached herewith and
marked as Annexure- 6 'Colly' to this affidavit. Some portion of
premises are rented for residential usage.
If this case is granted, it will have far reaching
consequences for taxation of municipal corporation.
8. I humbly say and submit that under mentioned chart shows
that the usage of the premises by the respondent herein.
Sr. Tenament Occupier Measurement Types Indulg
No. No. of the land of the land ence
factor
1. 0518-03- TENENT 41.39 COMM. OTHERS
1021-0001- OFFICE
M
2. 0518-03- TENENT 65.00 COMM. OTHERS
1021-0002-K OFFICE
3. 0518-03- SELF 70.82 COMM. SELF
1021-003-I OFFICE
4. 0518-03- SELF 70.20 COMM. SELF
1021-0004-G OFFICE
5. 0518-03- SELF 70.82 COMM SELF
1021-0005-E OFFICE
6 0518-03- SELF 70.02 IND.BU SELF
1021-0006-C NGLOW
7. 0518-03- SELF 70.82 COMM OTHERS
1021-0007-A OFFICE
8. 0518-03- SELF 50.45 IND.BU SELF
1021-0008-V NGLOW
9. I humbly say and submit that even the Architect
Professionals Office is situated at Staff Society situated in a
residential area but, the entire usage of the premises is
commercial in nature. Therefore, it cannot be considered as
residential purpose."
22. Therefore, as per the stand taken, part of the building
premises is being used for the office of architect and some
part is being used for residential premises as well as some
portion was used at the relevant point of time as godown.
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Even in the chart prepared, there is a reference of the tenant
and building being used by self and the properties in dispute
have been shown as used for commercial office.
23. As discussed hereinabove, in the Municipal Appeals, the
record & proceedings reveals that the appellant Corporation
has not led any evidence, much less filed its written
statement. The order suggest that no submissions have not
been recorded. At this stage, the judgment of this Court
passed in First Appeal no.3642 of 2006 in the case of
Ahmedabad Municipal Corporation vs. Shantilal Ambalal
Sukhadia is apt. In paragraph 9, it has been observed thus:
"9. In our view, if on behalf of the Corporation, no evidence
is produced and the evidence produced on behalf
of the respondent shows that the flat in question was also
used for residence and profession, and on that basis the
learned Judge has directed to consider the use of the
premise as residential, such an approach cannot be
said to be erroneous. We may record that had it been a
case, where the proof had come on record that the flat in
question was exclusively used for professional
purpose or had the premise or flat been situated in a
commercial complex, it might stand on a different
footing and in those cases, treating the use as
commercial may be justified, but in a case where a
premise in part is used for residential and a portion is
used for profession, the use of premise cannot be treated
as commercial use."
24. Notably, the respondent being aggrieved by the
municipal bills assessing the tax, challenged it by filing an
appeal under section 406 of the Act of 1949. Further appeal is
provided to the Civil Appellate Court by virtue of section 411
of the Act of 1949. Section 434 contained in Chapter X - titled
"Miscellaneous", states that the provisions of the Code of Civil
Procedure, 1908 (hereinafter referred to as "the Code"),
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relating to appeals from original decrees shall apply to
appeals to the Judge from the orders of the Commissioner and
relating to appeals from appellate decrees shall apply to
appeals to the Civil Appellate Court, save and expressly
provided by the Chapter. In such an eventuality, the issue
would be whether at the appellate stage, this Court should
consider the affidavit filed by the appellant Corporation
bringing the evidence/documents which were never forming
part of the Valuation Appeals. The answer, has to be in
negative.
25. Pertinently, in the Valuation Appeal preferred by the
respondent, the stand taken is that -
"The appellant submits that the premises are used as
an office of architect. It means that the premises are
used for a professional purpose, which is quite
distinct from commercial purpose. To conduct the
profession, an incumbent must have requisite
qualification, without which nobody can run a
profession pursuant. There is accountability both to
the clients and the parent institution to which the
incumbent has to get registration."
It is not that the appellant Corporation was not
represented before the Small Causes Court; however, it chose
not to lead any evidence much less filed any written
statement, substantiating that the disputed premises is being
used for commercial purpose or the premises is
predominantly used for the office of the Architect and not for
residence. Although in one of the appeal memos, the ground
raised is that the Small Causes Court erred in deciding the
matter without considering the fact that the disputed part of
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the premises is used as a commercial purpose, it is not
clarified as to which and how much part of the premises is
being used for non-residential purpose.
26. The judgment under challenge, is of the year 2007 and
therefore, at this distance of time to remand the matter back
for its fresh decision, would not be in the right earnest. Also,
it would be not proper to consider the evidence which
otherwise was not available when the Municipal Appeals were
decided, especially without there being any proper application
seeking production of additional evidence as per the
provisions of the Code. In absence of any evidence regarding
the predominant use of the premises, the action of the
appellant Corporation applying the factor used for commercial
purpose, would not be proper.
27. In light of the above discussion, the judgment in the case
of Ahmedabad Municipal Corporation vs. Kapilbhai
Mukundbhai Bhatt (supra) would be of no help. Applying the
principle laid down in the case of Kanubhai Shantilal Pandya
vs. Vadodara Municipal Corporation (supra), so also the
principle laid down in the case of Pratik Hareshkumar Shah
vs. Ahmedabad Municipal Corporation (supra), no error can
be said to have been committed by the Small Causes Court, in
allowing the appeals more particularly, in absence of any
evidence.
28. While concluding, it may be noted that this Court in the
case of Kanubhai Shantilal Pandya vs. Vadodara Municipal
Corporation (supra) has observed that if the entire building is
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occupied for legal work, different considerations would apply.
Statement is made by the respondent that if a part of the
premises is used for commercial purpose or non-residential
purpose, the tax for that part would be paid by the respondent
as may be assessed by the Corporation. Needless to clarify
that the appeals are restricted only for the year 2002 - 2003
and the present judgment, shall not preclude the Corporation
to assess the bill if the use of the premises is found for the
non-residential purpose as per the evidence available with it.
29. Hence, both the appeals do not merit acceptance and
are hereby dismissed. No order as to costs.
30. In view of the above, connected Civil Applications would
not survive and hence, are disposed of.
31. Record & proceedings, if any received, be sent back to
the concerned Court, forthwith.
(SANGEETA K. VISHEN,J)
(NIRAL R. MEHTA,J)
SINDHU NAIR
