cases of Lakshman Sintre v.

Balkrishna Shetye, BLR page 937 and

B. R. Oswas v. Laxmibai, BLR page 214
it was decided that when residential premises are used for dwelling as well as for business, office purposes
so however that the dominant user still remains residential, it would not be in breach of the bye-laws and
regulations of the society as there is no change of user involved.
The SC recently has passed an order to move the coaching institutions from the residential areas, the said
order does not extent to the tuition classes being taken by your wife in the residential flat. The number of
students are not very high to cause nuisance and security threat.

As per various judgments of karnataka , Delhi and Mumbai high court(s), conducting Home tuition is neither
illegal nor a business as long as the following conditions are fulfilled
a) That there is no advertisement soliciting students for home tuitions
and
b) There are not more than 2 teachers teaching students at home
and
c) Total number of students present in the premises during tuition hours does not exceed 15.
and
d) The tuition timings are not more than 28 hours a week.
and
e) The teachers offering home tuition are not government school teachers or teachers from government
aided schools.
Supreme court had categorically stated in the case of Pant Nagar Anandlok CHS Ltd., at Ghatkopar,
Mumbai, (Appeal No. 550 of 1985 decided on 24-11-1986 decided by the MSC Appellate Court) it was
decided that carrying out activities like conducting yoga classes in a residential flat does not constitute
breach of bye-laws of a Co-op Housing Society.
Supreme court had also categorically stated that professionals like Doctors, Lawyers, Chartered
Accountants are permitted to carry out their profession from residential apartment and that their activity is
not to be construed as Business when operated from a residential apartment.
Hope this information is useful.

In V. Sasidharan v. Peter and Karunakar, (1984) 65 FJR 374 (SC), the question for decision
before the Supreme Court was whether the office of a lawyer or of a firm of lawyers is or is
not a commercial establishment within the meaning of the Kerala Shops and Commercial
Establishments Act. The SC held that 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’.
The Supreme Court has also, in several judgements, reiterated this fundamental distinction.
In National Union of Commercial Employees v. Industrial Tribunal, (1962) 22 FJR 25, the
Court held that the services rendered by a firm of solicitors were only in the individual
capacity of the partners and very dependent on their professional equipment, knowledge and
efficiency.
Case law on private dispensary: In yet another case of Dr. Devendra M. Surbi, (AIR 1969
SC 63 6T), the Supreme Court had occasion to examine the definition of ‘Commercial
Establishment’ in S. 2(4) of the Bombay Shops and establishments Act, 1948. Construing
the word ‘Profession’ appearing in association with the words ‘Business and Trade’ in the
said subsection, it held that a private dispensary of a medical practitioner did not come within
the definition of ‘Commercial Establishment’.
In Dev Brat Sharma v. Dr. Jagjit Mehta, C.A. No. 4216 of 1988, the Supreme Court held that
the user of residential premises under tenancy for the purpose of a doctor’s clinic did not
tantamount to change of user.
West Bengal Govt. tried amendment of Shops and Establishments Act : The same
conclusion was reached in the case of Dilip Kumar v. Chief Inspector, (Shops and
Establishments), (1986) 69 FJR 100 (Cal.). In this case, the question for consideration was
whether the inclusion of the office of a legal practitioner in the definition of ‘Commercial
Establishment’ by an amendment in 1981 of the West Bengal Shops and Establishments Act
was in order. The Court held that the legal profession could not be equated or placed at par
with a shop or an establishment and that the inclusion amounted to an unreasonable
restriction violative of Article 19(1)(g) of the Constitution.
Yoga classes : In the case of Pant Nagar Anandlok CHS Ltd., at Ghatkopar, Mumbai,
(Appeal No. 550 of 1985 decided on 24-11-1986 decided by the MSC Appellate Court) it was
decided that carrying out activities like conducting yoga classes in a residential flat does not
constitute breach of bye-laws of a Co-op Housing Society.
The cases were filed by the society against one of its members and his wife, seeking a
declaration that the yoga activities of the member were violative of the bye-laws and were
illegal. It was stated in the complaint that the society received complaints from its members
that because of the yoga classes, there was a lot of harassment to the neighbors, the
members of the society and to the public at large. The sandals, chappals and shoes in the
passage caused obstruction for use thereof by the members of the society.
The ailing persons, who could benefit from yoga were some-times referred to her by doctors.
On an average, in a day 30 to 40 persons used to attend the yoga classes which she taught
between 7.30 a.m. to 7.30 p.m.
The judge said, “The professional activity of teaching certain arts would not in itself become
commercial even though some charges are levied in giving some performance.”
Drawing analogy from earlier verdicts, the Judge, in the case in question, decided that there
was no breach of bye-laws or regulations of the society. The Court also directed the
Respondent Society to pay Rs.100/- as costs of the appeal to the appellant.
Office of a Chartered Accountant : Phillipose & Co. v. the State of Karnataka, C.C. No.
21496 of 1987: Case under Karnataka Shops and Commercial Establishments Act, 1961 —
office of the partnership firm of Chartered Accountants is not a commercial establishment as
C.As. Carry on profession like lawyers or doctors and do not carry on trade or business.
The judge observed: “A profession is a vocation or occupation requiring special usually
advanced education and skill. The work and skill involved in a profession is predominantly
mental or intellectual rather than physical or manual.”
Business purposes : In the cases of Lakshman Sintre v. Balkrishna Shetye, BLR page 937
and B. R. Oswas v. Laxmibai, BLR page 214 it was decided that when residential premises
are used for dwelling as well as for business office purposes so however that the dominant
user still remains residential, it would not be in breach of the bye-laws and regulations of the
society as there is no change of user involved.