The main legal point established in the judgment is that property consultants, including property dealers, brokers, or agents, can be construed as 'consultants' and are entitled to use part of their residential flats for professional activity as per the relevant acts and regulations.

BADAR DURREZ AHMED, J.

( 1 ) CAN a property dealer, property broker or real estate agent be construed as a "consultant ? This is the seminal question in this petition. It arises in the context of the alleged mis-user of residential flats allotted to members of the petitioner association by the respondent (Delhi Development Authority-"dda" for short ).

( 2 ) THE residential flats allotted to the members of the petitioner association (which is registered under the Societies Registration act, 1860) are admittedly governed by the policy of the DDA incorporated in the document entitled "guidebook on Housing department" published by the DDA. The said guidebook stipulates as under:-

"penal action for mis-use of flats a flat is to be used for residential purpose only. In case the flat is used for purposes other than residential, apart from action under the terms of allotment, prosecutions under the Delhi development Act, 1957 shall be lodged. Professional activity by the professionals such as Doctors, Architects, Engineers, lawyers, Chartered Accountants, advocates, Consultants, journalists, artists, Designers/consultants is permissible to the extent of 25% of the covered area or 50 sq. mtrs whichever is less, provided the flat is in occupation of the professional. "it is also an admitted position that some of the members of the petitioner association have and are using part of their said residential flats for their offices. Because they have done so, they have been issued show cause notices from the DDA proposing to cancel their allotments. One such notice, which is annexed as Annexure - C to the petition, has been issued on the premise that the allottee has put the residential flat to "non-residential use for commercial actvities".

( 3 ) THE learned counsel for petitioner contended that its members are "consultants" and therefore it is permissible for them to use 25% of the covered area or 50 sq. mtrs, whichever is less, of their residential flats for office purposes. Accordingly, he prayed that the show cause notices be quashed. The learned counsel for the DDA, on the other hand, argued that members of the petitioner association were property dealers, property brokers or real estate agents. They cannot be construed to fall within the ambit of the expression "professionals" or "consultants".

( 4 ) IN support of the contention that property dealers are "consultants", it was submitted that their job profile was such that they were clearly covered by the description "consultants". It was also submitted that the haryana Urban Development Authority introduced analogous provisions with regard to permissive user in residential flats and, by virtue of those provisions, "property consultants" have, inter alia, been included in the definition of "non-nuisance professional consultancy". It was also submitted that by virtue of the Finance Act (act no. 2), 1998, the Finance Act, 1994 was amended and in particular section 65 thereof which contained the definitions. Earlier, real estate agents were not under the Service tax net. However, consequent upon the amendment brought about in 1998, "real estate agents" were included. For this purpose sections 65 (35) and 65 (36) were inserted in the Finance Act, 1994. These provisions read as undents) "real estate agent" means a person who is engaged in rendering any service in relation to sale, purchase, leasing or renting, of real estate and includes a real estate consultant; (36) "real estate consultant" means a person who renders, in any manner, either directly or indirectly, advice, consultancy or technical assistance, in relation to evaluation, conception design, development, construction, implementation, supervision, maintenance, marketing, acquisition or management, of real estate;" from the above provisions it becomes clear that the definition of real estate agent includes a real estate consultant which in turn has also been defined. And thus, according to the petitioner, a property dealer, broker

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