Dental clinic in a flat

Vivek (Querist) 04 April 2020 This query is : Resolved
Hello, I am Dr Vivek from goa. I wished to start my dental clinic in a portion of my flat situated in a housing society. I applied for a trade license and municipality asked me to get an approval from planning and development authority which in turn asked for an NOC from housing society. Housing society have denied to give me a NOC for same. Is there any other legal alternative to obtain trade license or can I start clinic without getting trade license as of now.
I'll be much greatfull for your expert opinion and advice.
Thank you

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P. Venu (Expert) 04 April 2020
Trade Licence under which rule -which enactment? In my understanding, a dentist is pursuing a profession not a trade.

Hemant Agarwal (Expert) 04 April 2020
1. Only "Consulting office" is permitted to be conducted by Professionals (Doctors, Lawyers, ... ) from Residential Flats in Society /Association premises.

2. Since Dental Clinic involves various "surgical /intervention procedures" (and not only consulting office), permission for the same would not be possible in Society /Association premises, even with a "trade license" which is usually issued by the Civic Corporation.

3. However, a Dental Clinic can be started in a Shop /Office (commercial premises) that maybe inside a Society /Association premises.

Keep Smiling .... Hemant Agarwal
VISIT: www.chshelpforum.com

Rajendra K Goyal (Expert) 04 April 2020
Supreme Court of India in the case title R.K. Mittal & Ors. Vs State of U.P. & Ors.(Appeal Number : Civil Appeal No. 6962 of 2005 on 05/12/2011)

51. In the light of what we have discussed above, even on facts of this case, running of a hospital or even a medical clinic of this dimension cannot be permitted in a residential area. It would be different if a doctor uses permissible part of the premises for clinical purposes i.e. to meet or examine his patients in any portion. For surgery or specific treatments, such patients would have been addressed to proper nursing homes or regular hospitals. Therefore, doctors cannot carry on, in the garb of a medical clinic, a regular medical and surgical activity on a commercial scale. Thus, we find that action of the Development Authority was justifiable.

54. An ancillary question that comes up for consideration is as to how much area can be permitted to be used by a doctor to run his clinic or by a lawyer or architect to run their offices in the residential sector. If other conditions are satisfied, then as the law stands today, according to the Development Authority, they can be permitted to use 30 per cent of the Floor Area Ratio (FAR) of the ground floor for their clinics/offices. Reference can also be made to the judgment of this Court in the case of Delhi Pradesh Citizen Council v. Union of India Anr. (2006) 6 SCC 305] wherein similar directions were issued. We are not only relying upon the precedents of this Court, but such an approach would also be permissible in face of the Regulations, terms and conditions of the lease deed executed by the parties and the Master Plan. It would, therefore, be suffice if 30 per cent of the ground floor area is permitted to be used for office of an architect/lawyer and for clinic simplicitor by a doctor.

56.
5. That the Doctors, Lawyers and Architects can use 30 per cent of the area on the ground floor in their premises in residential sector for running their clinics/offices.

6. That for such use, the lawyers, architects and doctors shall be liable to pay such charges as may be determined by the Development Authority in accordance with law and after granting an opportunity of being heard. The affected parties would be at liberty to raise objections before the Development Authority that no charges are payable for such users as per the law in force.

Dr J C Vashista (Expert) 06 April 2020
I endorse opinion of experts herein above as Society is well within its right to decline NOC for running a dental clinic which is a commercial activity.

Rajendra K Goyal (Expert) 06 April 2020
The author has not mentioned in how much portion of floor area the proposed clinic was to run. What activities are to be taken in the clinic?

Vivek (Querist) 06 April 2020
Just few points to be added ..
I would be utilising around 16 square meters of area which falls much below permissible 30% of the carpet area. Besides I reside in the remaining portion of the flat. Activities involve Dental OPD consultations and required non surgical treatment accordingly.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
Depending upon the property type i.e ownership owned or pagdi as well as on which floor your residential property is situated, formality would be different.You must get written consent with present society committee and if your property on ground floor or in a first floor you can change your property as commercial by making a change of user applied to local civic body with proper NOC from society.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
Allowing an appeal in Dr DV Chug v State & Anr, Delhi High Court ruled that the professional establishment of a doctor does not fall within the definition of commercial activity. Holding that “commerce is that activity where a capital is put into work and risk run of profit or loss”, the court set aside proceedings initiated by the Municipal Corporation of Delhi (MCD) against DV Chug in a trial court.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
In challenging the MCD’s case, Chug relied on several Supreme Court judgments which held that “a professional activity must be an activity carried on by an individual by his personal skill and intelligence”. It was argued that unless the activity carried on by a professional is also commercial in nature, a professional establishment cannot fall within the ambit of the Delhi Municipal Corporation Act.

Holding that there is a “fundamental distinction” between professional and commercial activities, the court observed that “the word ‘profession’ used to be confined to the three learned professions: the church, medicine and law”.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
Putting forward the view of the Supreme Court and clearing all interpretations under the Bombay Shops and Establishment Act, 1948, the Nagpur bench of the Bombay High Court has clearly specified that a clinic run of a private doctor or their partnership firm can't come under the definition of 'commercial establishment' under the ambit of the said act. This comes after a writ petition was filed with the Bombay High Court by Indian Medical Association seeking a declaration that the establishments of individual medical practitioners and the medical practitioners working in partnership are not commercial establishments within the meaning of Section 2 (4) of the Bombay Shops and Establishments Act, 1948.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
By amending the writ petition, the IMA sought a declaration that the inclusion of the term ‘medical practitioners’ in the definition of 'commercial establishments' in Section 2 (4) of the Act by amendment ( brought in 2002) is violation of the provisions of Article 14 of the Constitution of India. The logic provided by the counsel appearing for IMA was simple- since medical practitioners are professionals, and hence the practice of a individual medical practitioner cannot be considered a commercial activity.
The counsel for the association added that the since doctors are governed by different Acts and even statutory bodies like Medical Council of India(MCI), they are professionals.
He further referred to previous High court judgements as well as a Supreme Court judgement stating that the Hon’ble Supreme Court has held as early as in the year 1969 (in the judgment, reported in 1969 Mh.L.J. 391) that the professional establishments of Doctors do not fall within the ambit of the definition of 'commercial establishments' under the Bombay Shops and Establishments Act. The counsel argued that the maternity home/clinic run by the doctor can't be termed as a commercial activity, as doctors provide service to patients. He added that chains of hospitals can be termed as commercial activity, as doctors were paid for rendering their service.

T. Kalaiselvan, Advocate (Expert) 06 April 2020
The pleader appearing for the government did not dispute the position of law as laid down by the Hon’ble Supreme Court and the high Court in the previous judgements, leading the court to clearly conclude that private clinics cannot no way be interpreted as a commercial activity under the mandate of Bombay Shops and Establishment Act.

Vivek (Querist) 13 April 2020
Thank you very much sir for all your wise advices and informative citations. That was very helpful. Just to add to further information, the cooperative housing society I am referring to has commercial shops on the ground floor and flats on 1st floor and above. It is a non compounded property and access to these flats is directly road facing next to the shops. The flat I intend to start my clinic is on the 1st floor. There are only 2 flats on the1st floor and both belong to me. Therefore it is less likely to Couse any inconvenience to the residents of the building. And also the said cooperative housing society has flat owners as well as commercial shop owners from the ground floor as members of the society. With all the information shared above can be of any advantage to me in obtaining the NOC from society or obtaining approval from the concerned planning and development authority.
Waiting for your valuable inputs.
Thank you in advance

Rajendra K Goyal (Expert) 13 April 2020
Legal position has been shared as above, you can represent your society with these facts for permission. Municipality permission is subsequent.

Try to convince your housing society.

P. Venu (Expert) 13 April 2020
Mr. Vivek - You are yet to respond to the basic information which I sought, almost 10 days ago:
"Trade Licence under which rule -which enactment?"

Raj Kumar Makkad (Expert) 13 April 2020
The society is well within its right to deny NOC in the premises of the society as the opning of the clinic of doctor for the purpose of his practice is nothing but a commercial use of the residential premises.

Raj Kumar Makkad (Expert) 13 April 2020
You cannot take the benefit that the commercial area of the society wherein some shops are constructed connects your flat directly through a road and that those shopkeepers are reside in your society or that both the flats of 1st floor belong to you. Question is that the area in which you want to start commercial activity, exclusively is for the residential area and if are allowed by the society, it shall become a precedent and i future similarly situated persons, shall have to be granted the similar treatment.

Vivek (Querist) 13 April 2020
@ P. Venu sir, very sorry sir. I am Not really aware if it is mandatory to obtain a trade license from municipality to run a dental clinic in my house neither am aware of any enactment making it mandatory for same. I was just following the same protocol as everyone else does before starting their clinical practice. Even I was of the opinion that a clinical practice is not a trade but a professional service and hence may not need any trade license if it is provided by a individual practitioner, but few excerpts above indicate otherwise. Hence was in a bit of confusion if I should start my clinic right away or obtain a license and then start my clinic.

P. Venu (Expert) 19 April 2020
In my understanding, practicing one's profession is a fundamental right - Right to Freedom protected by the Constitution. Yes, the authorities can impose reasonable restrictions; but only if duly authorised by a valid law enacted by the competent legislature in conformity with the provisions of the Constitution, The question is - whether the Municipal Laws as prevalent in the State of Goa mandate such a Trade Licence for a dental clinic. Admittedly, you have only tried to abide by the protocol followed by those in your profession. If so, having applied, have they been granted trade licence? Does the said licence mention of the provision of law under which it had been granted? Please ascertain.

So also, is there any prescribed form for applying for grant of Trade Licence? Does it refer to any provision of law? Please verify.

Rajendra K Goyal (Expert) 19 April 2020
Residential area is for residence purpose, doctor consultation / dental practice / other office of professionals can exist as per ruling from court / existing law.

Either should avoid in the flat or convence your society to give NOC.

Guest (Expert) 19 April 2020
Two contradictory judgments from two experts? So, what is the final outcome, as they do not provide any kind of solution to the problem of the described problem of the querist?

However, the position stated by Hemant Agarwal and Dr. JC Vashista may be correct, so far as the clinics in the residential accommodation in societies is concerned. But the replies seemed to have been based on the conventions being adopted in Maharashtra and Delhi, not in Goa, where the permission is desired.

But, I don't think there is any hard and fast rule for not permitting the clinics to be opened in the residential portion of a flat in the society, unless passed by the membership and duly approved by the Registrar.

As per my belief solutions are always there, if tried to be found sincerely.