Lawyer’s Office in Residential Basement not a ‘Commercial Activity’: Delhi HC quashes NDMC proceedings [Read Order]

The High Court of Delhi,quashed North Delhi Municipal Corporation (NDMC) proceedings, holding that running a lawyer’s office from a residential basement did not amount to a commercial activity under Section 252 of the NDMC Act,1994.

B. K. Sood,petitioner-assessee,stated that he was a practicing Advocate and occupied premises at No. 17-18, Lower Ground Floor, Golf Apartments, Sujan Singh Park, New Delhi. He received a Summons on 12.08.2005 alleging that he had committed an offence under Section 252 read with Section 369 of the NDMC Act for carrying out commercial activity by running a lawyer’s office without the Chairperson’s permission.

He contended that cognizance was taken against settled legal principles and that the Notice issued vide Order dated 09.02.2004 was erroneous. He argued that legal services rendered by a lawyer’s office did not constitute a commercial activity, as such services relied on individual skill, academic qualification, and intellectual labor rather than capital investment, profit, or hired labor. He referred to the Supreme Court’s view that a lawyer’s office could not be classified as a commercial establishment.

He submitted that treating his office as commercial was arbitrary, irrational, and violated Article 14 of the Constitution. He also challenged the impugned Order for lacking proper reasoning and application of mind.

Further, he noted that Section 252 and Section 369 of the NDMC Act did not relate to house tax or electricity charges, which were governed separately, and the electricity tariff for lawyers’ offices was already addressed in Writ Petitions, including Writ No.899/1992, with interim protection still in force.

Finally, he submitted that Section 252 did not apply to premises not used for human habitation without written permission. Since he did not use the premises for habitation, prosecution could not have been warranted, particularly without issuing proper Notice.

Section 252 of the NDMC Act did not apply to professional activities like those of lawyers. The Petitioner stored books and files in the basement, so there was no change of user. The Building Bye-laws, 1983, allowed basements to be used for offices or commercial purposes if air-conditioned, and the Petitioner’s basement was air-conditioned.

The Inspection Report, which led to Complaint No. 487/2004, was prepared without an actual inspection, as it did not note the air-conditioning. The Petitioner asked for the complaint and related proceedings under Section 252 read with Section 369(1) of the NDMC Act, 1994, to be quashed.

NDMC denied these claims, stating the basement was approved only for storage/godown, not office use. After inspection, a notice was issued on 28.11.2003, but the Petitioner did not respond or stop using the basement as an office.

With the Chairperson’s permission, NDMC filed the complaint, saying the basement was used for a purpose other than approved, which was a change of user under Section 252. NDMC maintained that the petition had no merit and asked for dismissal.

The Court observed that inspection of the premises was carried out on 27.10.2003. The petitioner, a lawyer by profession, was running his professional office from the basement of premises No. 17-18, Lower Ground Floor, Golf Apartments, Sujan Singh Park, New Delhi. The petitioner contended that running a professional office did not qualify as a commercial activity or human habitation under Section 252 of the NDMC Act.

The High Court noted that Section 252 prohibits using any part of a building not originally intended for human habitation for such purpose without the Chairperson’s permission. In this case, the building was residential, and the basement was being used as the petitioner’s office.

The bench referred to Supreme Court precedents, including M.P. Electricity Board v. Narayan (2005) and V. Sasidharan v. M/s. Peter and Karunakar (1984), which held that the legal profession is not a commercial activity. The Court also noted the Bombay High Court’s view in Sakharam Kherdekar v. City of Nagpur (1964), emphasizing that commercial activities involve investment and risk of profit or loss, which do not apply to a lawyer’s office.

The Court observed that the petitioner’s office use did not violate the Master Development Plan, 2001 (MDP) or the Delhi Building Bye-Laws, 1983. Clause 10 of the MDP, 2001 allowed up to 25% of residential premises to be used for professional services. The basement’s construction and use complied with the Building Bye-Laws, including provisions for office use, ventilation, height, and air-conditioning. The inspection report did not indicate any violations regarding floor area, height, or absence of air-conditioning.

The High Court concluded that the petitioner had not misused the premises and that the allegations were unsubstantiated. Citing State of Haryana v. Bhajan Lal (1992), the Court noted that continuing the complaint after more than 22 years would amount to abuse of the legal process.

Justice Neena Bansal Krishna allowed the petition and quashed Complaint No. 487/2004 under Section 252 read with Section 369(1) of the NDMC Act, 1994, along with all consequential proceedings. Pending applications were disposed of accordingly.

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