(Special Original Jurisdiction)
Syed Muhammad Dastagir Husain J
Md Iqbal Kabir J
Ariful Islam …………Petitions
vs
Dhaka South City Corporation and another…….Respondents
Judgment
July 31st, 2018
Bangladesh Labour Act (XLII of 2006)
Section 2(41)
The lawyer chamber does not come under of commercial establishment.
……… the lawyer’s are the officers of the court and for the proper administration of the justice they are rendering service to the public according to their sincerity, integrity and reliability. They even cannot advertise and cant be any encroachment on their practice, dealing directly with their clients. It is well settle proposition of law that no trade or commerce is carried out from a law chamber. A law chamber is not a commercial enterprise………………………. (23)
Municipality Corporation (Taxation) Rules, 1986
Rules 42-48
Before cancelling the license authority is responsible to issue a show cause notice. The impugned memo merely stated that trade license was cancelled in accordance with Rules and respondent No. 2 directed the petitioner to remove his law chamber on the ground that the law chamber allegedly constituted a commercial enterprise, though respondent No.2, nor any of his officers carried out any inspection of the law chamber of the petitioner before describing it as a commercial enterprise.
The High Court Division does not pass any comment on the point of obtaining trade license, as because the law has not been challenged. This petitioner has no objection to obtain trade license and he has trade license issued by the City Corporation. Under such facts and circumstances the impugned notice directing the petitioner to remove his law chamber to a different location is declared to have been issued without lawful authority and is of legal effect. …..(21, 25)
V Sasidharan vs M/s Peter Karunakar, AIR 1984 Supreme Court 1700; Sakharam Narayan Kherdekbar vs City of Nagpur Corporation, AIR 1964, Bombay 200 and Sakharam vs Nagpur Corporation AIR 1964 Bombay 212 ref.
Ariful Islam, Advocate-In Person
Rabia Bhuiyan, appicant/Intervener Md Ismail Hossain, Advocate-For the Respondent Nos. 1 and 2.
Judgment
Syed Muhammad Dastagir Husain J: Rule was issued calling upon the Respondents to, show cause as to why Memo No. 46/207/000/25/37/1409/20/17 dated 15-5-2017 issued by the Respondent No.2 purporting to cancel the Trade License No. 0105208 issued on 25-8-2013 to the petitioner (Annexure-A) and Memo No. 394/ivtAt 1 dated 27-7-2016 issued by Respondent No. 2 directing the petitioner to remove his law chambers to a different location (Annexure AI) shall not be declared to have been Issued without lawful authority and is of no legal effect and further why the Respondents shall not be directed to renew the Trade License No. 0105208 issued on 25-8-2013 of the petitioner and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The short facts relevant for disposal of this writ petition, the petitioner is a law abiding citizen and practicing advocate of the Supreme Court of Bangladesh. His law chamber is located at his residence which falls within the jurisdiction of the Dhaka South City Corporation. The petitioner is challenging the legality and propriety of Memo No. 46/207/ 000/25/37/1409/20/17 dated 15-5-2017 and Memo No. 394/ivtAt 1 dated 27-7-2016 both issued by the Respondent No.2, those were received by the petitioner on 8-8-2017, when he attempted to pay the license renewal fee for the year 2017-2018. By the impugned Memo dated 15-5-2017, the Respondent No.2 purported to cancel the Trade License No. 0105208 issued on 25-8-2013 of the petitioner. Further by the impugned Memo dated 27-7-2016 the Respondent No.2 by describing the law firm of the petitioner as a commercial enterprise asking the petitioner to remove the same to a different location within a period of 7 days.
3. Being aggrieved by the aforesaid impugned order, the petitioner moved this Court and obtained the present Rule. The Rule is opposed by the respondent No.1 by filing affidavit-in-opposition.
4. Mr Habibul Islam Bhuyan, learned Advocate appears on behalf of the petitioner,
while Mr Md Ismail Hossain Advocate appears on behalf of the respondent Nos. 1 and 2.
5. Mr Ariful Islam, the learned advocate appearing in person submits that the impugned memos have been issued without mentioning the ground for cancellation of the Trade License and merely stated that same was cancelled following the provision of Rules 42-48 of the Municipal Corporation (Taxation) Rules, 1986.
6. He next submits that respondents having accepted the renewal fees for the financial year 2016-2017 against the Trade License of the petitioner and cancelling the same on 15-5-2017, therefore, the action of the Respondents are arbitrary and, as such, it is to be declared to have been passed without any lawful authority and is of no legal effect.
7. He submits that the respondents having described the law chamber of the petitioner as a commercial establisment without any basis, whereas a law chamber of a lawyer is not a commercial enterprise nor a business place but rather a profession, the impugned Memo dated 27-7-2016 has been issued arbitrarily without apply legal mind and, as such, the impugned memo is without lawful authority and is of no legal effect. He next submits as per Bangladesh Legal Practitioners and Bar Council Order, 1972 and Canons of Professional Conduct and Etiquette a lawyer cannot solicit through advertisement nor can as a general rule carry on business and the respondents terming a law chamber as commercial enterprise is arbitrary and, as such, the impugned memo has been issued without lawful authority and is of no legal effect.
8. In support of his submission he cited a decision i.e. V Sasidharan vs M/s Peter Karunakar reported in AIR 1984 Supreme Court 1700, where in it was held.
” … the office of a lawyer or of a firm of lawyers is not a ‘shop’ within the meaning of Section 2(15). Whatever may be the popular conception or misconception regarding the role of to-day’s lawyers and the alleged narrowing of the gap between a profession on one hand and a trade or business on the other, it is true that, traditionally, lawyers do not carry on a trade or business nor do they render services to ‘customers’. The definition in Section 2(15) is inappropriate in the case of a lawyer’s office or the office of a firm of lawyers.”
9. Further by referring a decision of Sakharam Narayan Kherdekar vs City of Nagpur Corporation reported in AIR 1964 Bombay 200, wherein it has been held as follows:
“Thus, the very concept of any activity which can justly be called a commercial activity must imply some investment of capital and the activity, must run the risk of profit or loss. Understood in this sense, therefore, we are inclined to hold that it is not every establishment in the sense of premises or buildings where business, trade or profession is carried on that is intended to be governed by the Act, but only those premises though carrying on one or other of these kinds of activities which are of a commercial nature,”
10. It was further held that:
“The nature of the law practice, contrasted with other commercial ventures, to which we feel it is not comparable at all, is distinguished by four features, according to Henry S. Drinker in his book ‘Legal Ethics”, page 5. The Primary characteristics which distinguish the legal profession from business are: (1) a duty of public service in which one may attain the highest eminence without making such money, (2) a relation as an “officer of Court” to administration of justice involving thorough sincerity, integrity and reliability, (3) a relation to clients in the highest degree fiduciary, and (1) a relation to colleagues at the bar characterized by candour, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.”
11. It was further held that:
“With these and other features, the activity of an Advocate carrying on profession of law is padicaly distinguished from any other commercial activity. In the same book at page 29, the following observations of Chief Justice Bugg are quoted:
“It is incompatible with the maintenance of correct professional standards to employ commercial methods of attracting patronage. Advertising such as that disclosed on this record is commonly designed to stimulate public thought and challenge popular attention to the end that the business of the advertiser may be increased. It has always been regarded as contrary to sound public policy for an attorney at law to foment litigation or to instigate law suits.
.. .It is a profession, not only because of the preparation and qualifications which are required in fact and by law for its exercise, but also for the administration of justice, and to the performance of an office erected and permitted to exist for the public good, and not primarily for the private advantage of the officer. Such private advantage, defeat the object for which the attorney’s office exists as a party of the larger plan of public justice.”
12. It was further held that:
“As lawyers are officers of the Court, advertising would not only lower the whole tone of administration of justice but there is another weighty reason why advertising should not only be discouraged but penalized. The reason is that advertising has tendency to have evil effect on the ignorant and tempts the lawyers-to use improper means to make good their extravagant inducements. These considerations have contributed to the restrictions because they are a necessary part in day-to-day administration of justice.”
13. He further submits that the impugned memos both were issued in violation of the principle of natural justice and violation of the Rule-1986. The Rule 44(9) of the Municipality Corporation (Taxation) Rule-1986 clearly states that no licence shall be cancelled or penal action shall be taken unless the licensee has been given a reasonable opportunity of showing cause. In this case impugned memo dated 15-5-2015 has been issued in violation of the principle of natural justice as well as Rule 44(9) of the: Municipality Corporation (Taxation) Rules 1986.
14. He further submits that the respondents issued the impugned Memo dated 27-7-2016 on the basis of a decision of Cabinet which has no force of law in this subject matter and, as such, the impugned Memo dated 27-7-2016 is without lawful authority and is of no legal effect.
15. On the other hand Mr Md Ismail Hossam, learned Advocate on behalf of the respondent Nos. 1 and 2 by filing affidavit-in-opposition submits that if the petitioner’s law chamber is within his own residential apartment and being used as private chamber, the same might not come within the ambit of ‘commercial establishment’ and further he prays that the Rule is to be discharged.
16. Dr Rabiya Bhuiyan as applicant-intervener submits that the law profession is a noble profession as this is not commercial activities, trade or business. The law chamber cannot be treated as a commercial institution as unlike many businesses legal profession is not open to all. The lawyers are regulated by the Bangladesh Legal Practitioner’s and Bar Council Order, 1972 (President’s Order No. 46 of 1972), According to Article 2(a) of the said Order “advocate” means an advocate entered in the roll under the provisions of this order Article 2(b) states that “Bar Council” means the Bangladesh Bar Council constituted under this Order. Whereas Article 2(h) states that “roll” means the roll of advocates prepared and maintained by the Bar Council. The lawyers Canon of Professional Conduct and Etiquette are framed by the Bangladesh Bar Council. Thus, it is evident that any law graduate is not eligible to practice before the Hon’ble Court unless having an enrollment a license granted by the Bangladesh Bar Council. As a result there is no necessity for other trade license from any other authority.
17. Dr. Bhuiyan also draws our attention in Sakharam vs Nagpur Corporation AIR 1964 Bombay 200, wherein their Lordships held as under:
“The primary characteristics which distinguish the legal profession from business are: (1) a duty of public service in which one may attain the highest eminence without making such money, (2) a relation as an “officer of Court” to administration of justice involving thorough sincerity, integrity and reliability, (3) a relation to clients in the highest degree fiduciary, and (4) a relation to colleagues at the bar characterized by candour, fairness and unwillingness to resort to current business methods of advertising and encroachment on their practice, or dealing directly with their clients.”
18. She further submits that V Sasidharam vs M/s Peter and Karnakar, AIR 1984 SC 1700 the Hon’ble Supreme Court in reference with Section 2(4) of Kerala Shops and Commercial Establishments Act (34 of 1960) held that a lawyer’s office or the office of a firm of lawyers is not a commercial establishment within the four corners of the definition in aforesaid section. She also gave emphasis on Paragraph-9 of the above judgment, wherein it was held that.
“….traditionally, lawyers do not carry on a trade or business nor do they render services to ‘customers”.
19. We have heard the submissions advanced by the petitioner appearing in person, the Advocate for the respondent Nos.1 and 2 and Dr Rabiya Bhuiyan as applicant-intervener. We have also perused the petition, impugned notices and relevant annexures carefully.
20. It appears that petitioner for the purpose of carrying on his legal profession set up his chambers at his residence in the year 2009 and obtain a Trade License being No. 0524897 dated 5-3-2009, under the name and style Bhuiyan Islam & Zaidi”. The said Trade Lcense was regularly renewed. Subsequently on 25-8-2013, the aforesaid trade license was renumbered as 0105208. Thereafter, it was renewed for the years 2013-2017. On 8-8-2017 a representative of the petitioner went to the offices of the respondent No. 1 to pay the renewal fee of the Trade License for the year 2017-2018 However the office of Respondent No. 2 in the representative of the petitioner that the petitioner’s Trade License would not be renewed as the same has been cancelled.
21. It is to be noted that no reason was provided in the impugned memo for the cancellation of the said Trade License, though in that respect law is clear that before cancelling the license Authority is responsible to issue a show cause notice. The impugned Memo merely stated that Trade License was cancelled in accordance with Rules 42-48 of the Rules and respondent No. 2 directed the petitioner to remove his law chamber on the ground that the law chamber allegedly constituted a commercial enterprise, though respondent No.2, nor any of his officers carried out any inspection of the law chamber of the petitioner before describing it as a commercial enterprise.
22. The term “Commercial Establishment” has been defined in Section 2(41) of Bangladesh Labour Law Act, 2006. It has described as follows :
41) “commercial establishment” means an establishment in which the business of advertising, commission or forwarding is carried on or which is a commercial agency, and also includes the following establishments, namely:-
(a) the clerical department of a factory or of any industrial or commercial establishment;
(b) the office-establishment of a person who for the purpose of implementing a contract with any commercial or industrial establishment employs workers;
(c) a unit of a joint-stock company;
(d) any insurance company, banking company or bank;
(e) any office of broker;
23. From the plain reading of the above ‘definition’ the lawyer chamber does not come under of commercial establishment, the lawyer’s are the officers of the court and for the proper administration of the justice they are rendering service to the public according to their sincerity, integrity and reliability. They even cannot advertise and cant be any encroachment on their practice, or dealing directly with their clients. It is well settle proposition of law that no trade or commerce is carried out from a law chamber. A law chamber is not a commercial enterprise. The petitioner provides legal advice to clients and carries out legal research and preparation for litigation It is also revealed that the impugned Memo dated 27-7-2016 referred to decision of the cabinet of ministers vide memos No. 25.00.0000.019.01.03. 2002 (Awn)-507 dated 30-7-2015 and 46.00.0000.070.016.001.2016-513 dated 19-5-2016 which has no force of law. According to decision reported in Sakharam vs Nagpur Corporation AIR 1964 Bombay 212, it has been held that: “the reason is that advertising has tendency to have evil effect on the ignorant and tempts the lawyers to use improper means to make good their extravagant inducements. These considerations have contributed to the restrictions because they are a necessary party in day-to-day administration of justice,” But now a day’s dignity, tradition, norms and manners of a lawyer is detoriating, they are not maintaining their ethics at the time of obtaining their fees and responsibilities. They are appointing some junior Lawyers as an employee and providing salaries, preparing documents for other organization in the name of legal support but not for the Court. They are using entire house or a flat as a Chamber. These should be stopped.
24. However, from the above discussion, proposition of law and cited decision clearly sates that Lawyer Chamber in the Residence does not come within the purview of commercial establishment, therefore holding of chamber in the residence of the petitioner does not approve that it should be removed in a different premises and there is no bar to renew the license, thus the license has to be renewed in favour of the petitioner.
25. However, it is needless to pass any comment on the point of obtaining trade license, as because the law has not been challenged. This petitioner has no objection to obtain Trade License and he has Trade License issued by the City Corporation. Under such, facts and circumstances the impugned notice issued by the respondent No. 2 directing the petitioner to remove his law chamber to a different location is declared to have been issued without lawful authority and is of no legal effect.
26. Accordingly, the Rule is made absolute without any order as to costs.
27. The order of stay, granted at the time of issuance of the Rule, is hereby recalled and vacated.
8. However, the petitioner is at liberty to pay the yearly renewal fee for the Trade License No. 0105208 and the respondent No. 2 is directed to accept the yearly renewal fee for the Trade License No. 0105208 issued on 25-8-2013 of the petitioner.
Communicate the order.
