While ruling on a most significant legal point, the Allahabad High Court in a most learned, laudable, landmark and latest judgment titled Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad vs UP Power Corporation Limited And 3 Others in Writ – C No. – 2637 of 2023 and cited as Neutral Citation No. – 2023:AHC:155009-DB that was reserved on May 1, 2023 and then finally pronounced on August 3, 2023 has minced just no words to hold in no uncertain terms that the profession of an advocate does not constitute a commercial activity and, therefore, should not be subjected to commercial rates for electricity consumption. It merits mentioning that the Division Bench of Hon’ble Mr Justice Surya Prakash Kesarwani and Hon’ble Mr Justice Anish Kumar Gupta also made it absolutely clear that an advocate, who is designated as an officer of the court, is forbidden from engaging in business or commercial activities. It also must be mentioned that the Court further specified that the Bar Council of India has rules against advertising their services.
In addition, the Court also specified that advocates also have defined duties towards their court, clients, colleagues and opponents. We need to also note that the Court further clarified pointing out that these features categorically distinguish the legal profession from trade or business. The Court thus was of the clear view that therefore, it cannot be called a commercial activity.
At the very outset, this remarkable, robust, rational and recent judgment authored by Hon’ble Mr Justice Anish Kumar Gupta for a Division Bench of the Allahabad High Court comprising of Hon’ble Mr Justice Surya Prakash Kesarwani and himself sets the ball rolling by first and foremost putting forth in para 1 that, “In this writ petition, the petitioner, Tehsil Bar Association, Sadar Tehsil Parisar, Gandhi Nagar, Ghaziabad, is an association of advocates registered under Societies Registration Act, 1860. The members of the petitioner association are the advocates engaged in a legal practice and all the advocates have got their chambers at the Tehsil Sadar campus with valid electricity connection installed by the respondent Power Corporation. As per the tariff schedule for Financial Year 2016-17 available on the website of respondent Power Corporation, the residential premises of professionals such as advocates including their chambers are treated as domestic and well covered under schedule LMV-1. After the grant of electricity connection in the chambers of such advocates the respondent started charging the electricity charges at commercial rates which were objected by the petitioner association and since their grievances were not redressed, they filed the Writ C No. 6115 of 2019 (Tehsil Bar Association and 12 others v. State of UP and 6 others), which was disposed of by this Court vide order dated 22.02.2019, as under:-
“Heard Sri Vivek Prakash Mishra, learned counsel for the petitioners.
By means of this writ petition, the petitioners have come to this Court raising a grievance that in the court campus of Tehsil Bar Association, Sadar Tehsil, Gandhi Nagar district Ghaziabad in the advocates chamber, the electricity connection has been installed and the bill is being charged on commercial basis whereas tariff schedule for the Financial Year 2016-17 clearly states that LMV-1 (domestic) would be applicable to the chambers of professionals such as advocates, doctors, artists, consultants etc. Under the Right to Information Act, the information supplied to the petitioner on 13.8.2017 is that the meters installed in the advocates’ chamber comes under domestic category. However, it is stated that the bills are being sent for commercial category. The writ petition is disposed of with the observations that in case the petitioners make a representation to the Executive Engineer, Paschimanchal Vidyut Vitran Nigam Ltd., Meerut, the same be considered and appropriate orders be passed and, if so required, electricity bills be corrected. The said decision shall be taken by the Executive Engineer within a period of two months from the date a certified copy of this order is produced before him.””
As we see, the Division Bench specifies in para 2 that, “In the aforesaid order, it was categorically observed that the tariff schedule for the Financial Year 2016-17 clearly states that LMV-1, domestic rates would be applicable to the chambers of professionals such as advocates, doctors, artists, consultants etc. It was observed that under the Right to Information, the information supplied on 13.08.2017, it is categorically stated that the electricity connection installed in the chambers of advocates in District and Sessions Court, Ghaziabad, were issued under domestic category and the electricity charges are charged upon as per the tariff rates LMV-1 as determined by the UP State Electricity Regulatory Commission.”
Briefly stated, the Division Bench states in para 3 that, “In terms of the aforesaid order dated 22.02.2019 passed by this Court, the petitioner association made a representation before the respondent no. 4, which has been disposed of by order dated 27.07.2019. The respondent no. 4, relying upon clause 3.3 (e) of the UP Electricity Supply Code, 2005, observed that since the chambers of the advocates in the tehsil compound are not in the category of domestic use of electricity, therefore, electricity consumed cannot be treated as domestic consumption.”
In brief, the Division Bench further observes in para 4 that, “The aforequoted order has been modified vide order dated 13.04.2023, as under:-
CONSUMER NOT COVERED UNDER ANY RATE SCHEDULE OF EXPRESSLY EXCLUDED FROM ANY CATEGORY:
For consumers of light, fan & power (excluding motive power loads) not covered under any rate schedule of expressly excluded from any LMV rate schedule will be categorized under LMV-2.
Professionals architects chartered accountants, engineers, doctors, lawyers and teachers etc. may utilize a maximum of 50 square meters of residential space in their possession, for carrying out professional practice of consultancy work, and this shall not attract non-domestic tariff.”
As we see, the Division Bench points out in para 18 that, “From the careful perusal of the rate schedules, as approved for the Financial Year 2022-23 by the U.P. State Regulatory Commission it is apparent that the activities of advocates and professionals or the public institutions like Judiciary do not find place in any of the rate schedule. Clause 13 of the general provisions with regard to rate schedule for Financial Year 2022-23 provides as under:-
“CONSUMERS NOT COVERED UNDER ANY RATE SCHEDULE OR EXPRESSLY EXCLUDED FROM ANY CATEGORY:
For consumers of light, fan & power (excluding motive power loads) not covered under any rate schedule or expressly excluded from any LMV rate schedule will be categorized under LMV-2.””
Do note, the Division Bench notes in para 20 that, “Sub Clause (e) of Clause 3.3 provides as under:-
“(e) Professionals, architects, chartered accountants, engineers, doctors, lawyers and teachers etc. may utilize a maximum of 50 square meters of residential space in their possession, for carrying out professional practice or consultancy work, and this shall not attract non-domestic tariff.””
Simply put, the Division Bench then while citing the relevant case laws mentions in para 22 that, “LMV-2 is applicable for non-domestic purposes like all type of shops including Patri Shopkeepers, Hotels, Restaurants, Private Guest House, Private Transit Hospitals, Private Student Hostel, Marriage House, Show Rooms, Commercial/Trading Establishment, Cinema and Theatres, Banks, Cable TV, Operator, Telephone Booths, Photo Copiers shop, Cyber Cafe etc. If we look into the non-domestic purposes as indicated in rate schedule LMV2, the profession of a lawyer is not covered under the non-domestic purpose as has been illustrated in this rate schedule. The proposition is well established that the words occurred in the same context must take its colour from each other. In order to bring the lawyers’ office within the categories of non-domestic purposes, the activity must be established to be of similar nature as illustrated in rate schedule under category LMV-2. In Dr. D.M Surti Vs. State of Gujarat, (AIR 1969 SC 63), the Hon’ble Supreme Court has held as under:
“The words take as it were their colour from each other that is, the more general is restricted to sense analogous to a less general. “Associated words take their meaning from one another under the doctrine of noscitur a sociis the philosophy of which is that the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it; such doctrine is broder that the maxim Ejusdem Generis.”
Thus from the plain reading of the illustrative definition of the non-domestic purpose as indicated in the rate schedule under LMV-2, we are of the firm view that the lawyers’ chambers would not come within the definition of non-domestic purpose as illustrated in rate schedule LMV-2 as the illustrative activities indicate the activities of commercial nature. The legal profession in catena of cases has been held to be non-commercial activity and it is not a trade or business. By the Rules framed by the Bar Council of India, the Lawyers are also prohibited from actively participating in any trade or profession. Hon’ble Supreme Court in M.P. Electricity Board and Ors. v. Shiv Narayan Chopra (Supra) held that the advocates’ office cannot be charged additional tariff at the commercial rate as the legal profession is not a commercial activity.”
Further, the Division Bench states in para 23 that, “In Dr. D.M Surti Vs. State of Gujarat (Supra), Hon’ble Supreme Court further observed that “a professional activity must be an activity carried on by an individual by his personal skill and intelligence. There is fundamental distinction between a professional activity and an activity of commercial character.”
Quite remarkably, the Division Bench while citing the most relevant case law propounds in para 24 stating that, “In Sudha v. President, Advocates Association, Chennai and Ors. reported in (2010) 14 SCC 114 observed as under:-
“The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification prescribed by different universities, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society.””
While citing a relevant judgment, the Division Bench states in para 27 that, “In V. Sasidharan v. M/s Peter and Karunakar reported in AIR 1984 (4) SCC 230, Hon’ble Supreme Court has held that the office of a lawyer or a firm of lawyers is not a commercial establishment within the meaning of the provisions of Kerala Shops Commercial Establishment Act, 1960. It was further observed in para-9 of the said judgment ‘whatever may be the popular conception or misconception regarding the role of today’s lawyer 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’.”
While citing yet another relevant judgment, the Division Bench states in para 30 that, “In Ramanathan Vs. State of Kerala (1991 (1) KLJ 410), the Kerala High Court, while dealing with the matter relating to the Kerala Shops and Commercial Establishment Act, 1960, observed that the profession of a lawyer does not involve commercial or industrial activity.”
In yet another case, the Division Bench discloses in para 31 that, “In Arup Sarkar Vs. CESE Limited & Others, (Writ Petition No. 18367 of 2019 Judgment dated 11.02.2020), the Calcutta High Court has held that the Chambers of litigation Lawyers are clearly used for his livelihood based on his personal professional skills, therefore, their activity cannot be said to be commercial activity. Hence, they cannot be charged under the category commercial (urban) and directed the lawyer’s chambers to be charged under the category “Domestic (Urban).”
Moving on, the Division Bench mentions in para 32 that, “In Sakharam v. Nagpur Corporation (AIR 1960 Bombay 200), a Division Bench of Bombay High Court dealt with the question as to whether Advocate’s office can be declared as establishment under Bombay Shops and Commercial Establishment Act. After examining the various facets of legal profession, it was observed that the activity of a lawyer is one carried out by him by his personal skill, intelligence, study, integrity and individual characteristics. Finally, the Division Bench after analysing the salient features of legal profession concluded that the office of a legal professional is not a commercial establishment under the provisions of the said Act.”
Most remarkably, the Division Bench mandates in para 33 holding that, “An advocate or a legal practitioner is duty-bound to act as an officer of the Court. An advocate is prohibited to do any business or involve in any commercial activity and they are also restrained by the rules framed by the Bar Council of India from advertising their professional activities. The Bar Council of India has also defined the duties of an Advocate towards his client and towards the Court, towards colleagues and opponents. An advocate is prohibited from creating any self interest in the subject matter of the case, for he is engaged. He cannot stipulate a fee contingent on the result of the case nor he can agree to share the proceeds of the case. All these are the features, which categorically distinguish, the legal profession from the trade or business. Therefore, the legal profession by no stretch of imagination can be called as the commercial activity, trade or business.”
Most significantly, the Division Bench holds in para 34 that, “Having held that the legal profession is not a commercial activity, involving any trade or business, the rates schedule LMV-2, which is though phrased as ‘non-domestic users’ under the LMV-2, categorically indicates commercial activities, which are purely commercial relating to trade and business. Hence the said rates schedule cannot be applied to the offices of the legal professionals, whether such offices are in the residential buildings or are situate in the court premises. The lawyers’ chambers, which are within the court compounds are part of the judicial premises, where as per the circular dated 28.11.1983, LMV-1 is applicable. The circular dated 08.10.1985 also mandated that office of a lawyer or firm of a lawyer is to be billed at the rate schedule LMV-1 applicable to domestic light and power consumers, which is an established practice. However, in the rate schedule issued for the financial year 2022-23, the lawyer’s profession or activities do not find place in any of the rate schedules prescribed. Merely because of Clause – 13 of the rate schedule, which is a residuary clause, the rate Schedule LMV-2, which is applicable to commercial activities, cannot be applied in case of the lawyer’s chambers in Court premises.”
Most forthrightly, the Division Bench points out in para 35 that, “It has been argued by learned counsel for the petitioner that after the order dated 22.02.2019 passed by this Court in earlier Writ Petition being Writ C No. 6115 of 2019, the Noida Power Corporation Limited has started to charge for the electricity consumption at the Lawyers Chambers situated in Court Compound, Surajpur District Courts of District Gautam Budh Nagar as per the rate schedule LMV-1. Hence, the petitioner also being similarly situated cannot be treated differently and the same rate schedule ought to have been applied to their chambers as well. In support of their contention the petitioner has also produced a copy of the electricity bill dated 31.12.2022 of one of such lawyer’s chamber. Learned Counsel for the respondent submitted that electricity supply to lawyers chambers in District Court, Gautam Budh Nagar are governed by the different power corporation and not by the U.P. Power Corporation, hence, the said rate cannot be applied. It is apparent that in the entire State of U.P., the rate schedule are approved by the U.P. Electricity Regulatory Commission and the same rates are applicable in the entire State of U.P. Hence, the contention of the learned counsel for the respondent is baseless and is devoid of merit. Therefore, the different power corporation and companies cannot treat the consumers of electricity in different manner in the same State.”
It would be germane to note that the Division Bench then propounds in para 36 that, “The advocate’s profession cannot be categorised to be charged under LMV-2, which is applicable to the commercial activities. The lawyer’s activities are not commercial establishment as held by the Supreme Court and by various High Courts.”
Most fundamentally, the Division Bench then hastens to add in para 37 holding that, “In view of the aforesaid conclusions, we sum up the answers to the issues raised in the instant petition in the following manner:
1. The activities/profession of an advocate is a not a commercial activity, attracting the commercial rate of electricity consumption as prescribed in Rate Schedule LMV-2, as applicable in the State of U.P. approved by the U.P. Electricity Regulatory Commission.
2. The Rate Schedule LMV-2, which is applicable for the commercial activities, cannot be applied for the electricity supplied to the Lawyers Chambers. The Lawyers chambers / offices shall be charged only under LMV-1 Domestic category as the lawyers neither do any trade or business nor are involved in any commercial activity.
3. The respondents cannot discriminate between the electricity supply to the advocates’ chambers in different court compounds, in the same State, where the rate schedules are approved by the same authority.”
Finally, the Division Bench concludes by holding in para 38 that, “Thus in view of the above discussion, the writ petition is allowed. The respondents are directed to charge for the consumption of electricity by the lawyers in their chambers in the court premises as per the rate schedule LMV-I as approved by the U.P. Electricity Regulatory Commission.”
In sum, we thus see that the Allahabad High Court has made it indubitably clear that legal profession is not a commercial activity. The Court also has made it amply clear that the lawyer’s chambers does not attract commercial electricity tariff rates. It thus also merits no reiteration that what the Allahabad High Court has held and referred also to various Supreme Court rulings and High Court rulings must be implemented always in letter and spirit as directed hereinabove!
Sanjeev Sirohi
