NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. No. 4 OF 2012
IN
CIVIL APPEAL NO. 10535 OF 2011
Chairman & Chief Executive Officer,
NOIDA & Anr. … Appellants
Versus
Mange Ram Sharma (D) through
LRs. & Anr. … Respondents
And
Dr. Anupama Bisaria & Ors. … Applicants
ALONG WITH
I.A. No. 5 OF 2012
IN
CIVIL APPEAL NO.10535 OF 2011
Chairman & Chief Executive Officer,
NOIDA & Anr. … Appellants
Versus
Mange Ram Sharma (D) through
LRs. & Anr. … Respondents
And
Dr. A.C. Bisaria & Ors. … Applicants
ALONG WITH
I.A. No.6 OF 2012
IN
CIVIL APPEAL NO.10535 OF 2011
Chairman & Chief Executive Officer,
NOIDA & Anr. … Appellants
Versus
Mange Ram Sharma (D) through
LRs. & Anr. … Respondents
And
M/s. Shivalik Medical Centre
P. Limited through its Director,
Dr. Ravi Mohta. & Ors. … Applicants
ALONG WITH
I.A. No. 48 of 2012
IN
CIVIL APPEAL NO. 6962 OF 2005
R.K. Mittal & Ors. … Appellants
Versus
State of U.P. & Ors. … Respondents
And
Dr. Birendra Kumar
Tripathi & Anr. … Applicants
ALONG WITH
I.A. No. 50 of 2012
IN
CIVIL APPEAL NO. 6962 OF 2005
R.K. Mittal & Ors. … Appellants
Versus
State of U.P. & Ors. … Respondents
And
Dr. Rashmi Gupta & Ors. … Applicants
ALONG WITH
I.A. No. 53 of 2012
IN
CIVIL APPEAL NO. 6962 OF 2005
R.K. Mittal & Ors. … Appellants
Versus
State of U.P. & Ors. … Respondents
And
Dr. Atul Kaushik & Anr. … Applicants
ORDER
1. By judgment and order dated 5/12/2011, this Court disposed of Civil
Appeal No.10535 of 2011 and issued following directions:
“(1) That banking or nursing homes or any other commercial activity
is not permitted in Sector 19 and for that matter, in any
sector, in the development area earmarked for “residential use”.
(2) That the 21 banks and the nursing homes, which are operating in
Sector 19 or any other residential sector, shall close their
activity forthwith, stop misuse and put the premises to
residential use alone, within two months from the date of
pronouncement of this judgment.
(3) That lessees of the plots shall ensure that the occupant banks,
nursing homes, companies or persons carrying on any commercial
activity in the residential sector should stop such activity and
shift the same to the appropriate sectors i.e. commercial,
commercial pockets in industrial/institutional area and
specified pockets for commercial use within the residential
sector, strictly earmarked for that activity in the development
plan, the Regulations and provisions of the Act.
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(4) That the Development Authority shall consider the request for
allotment of alternative spaces to the banks and the persons
carrying on other commercial activities, with priority and
expeditiousness.
(5) That the doctors, lawyers and architects can use 30% 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.
(7) In the event the lessee or the occupant fails to stop the
offending activity and/or shift to alternate premises within the
time granted in this judgment, the Development Authority shall
seal the premises and proceed to cancel the lease deed without
any further delay, where it has not already cancelled the lease
deed.
(8) Wherever the Development Authority has already passed the orders
canceling the lease deeds, such orders shall be kept in abeyance
for a period of two months from today. In the event the misuse
is not stopped within a period of two months in terms of this
judgment, then besides sealing of the premises, these orders of
cancellation shall stand automatically revived and would come
into force without further reference to any court. In the event
the misuse is completely stopped in all respects, the orders
passed by the authorities shall stand quashed and the property
would stand restored to the lessees.
(9) These orders shall apply to all cases, where the order of
termination of lease has been passed by the Development
Authority irrespective of whether the same has been quashed
and/or writs of the lessees dismissed by any court of competent
jurisdiction and even if such judgment is in appeal before this
Court.
(10) The orders in terms of this judgment shall be passed by an
officer not below the rank of Commissioner. This order shall be
passed after giving an opportunity to the parties of being heard
by such officer. This direction shall relate only to the
determination of charges, if any, payable by the lessee or
occupant for the period when the commercial activity was being
carried on in the premises in question.”
2. On 23/1/2012, it was pointed out to us that 30% of the ground floor
area permitted to be used under Direction (5) above is contrary to the bye-
laws and master plan of NOIDA. It was urged before us that the expression
‘ground floor’ used in the same clause may be clarified as ‘any floor’
because somebody may be having a two-storeyed house and may himself be
living on the first floor only. In the circumstances, we modified
Direction (5) quoted above and clarified that 25% of the permissible FAR is
allowed to be used for their professional purposes by doctors, lawyers and
architects. We also modified paragraphs 54 and 55 of our judgment as
follows:
“That the doctors, lawyers and architects can use 25 per cent of the
permissible FAR of any floor in their premises in the residential
sector but only for running their personal office or personal clinic
in its restricted sense as clarified in the judgment.”
3. By the said order dated 23/1/2012, we have issued the following
further directions:
“(i) The NOIDA Authorities shall, within one week from today, issue a
final notice to all the owners of the residences requiring them
to stop use of the premises for banking or any other commercial
activity and requiring them to shift from the residential areas.
(ii) The NOIDA Authority shall also issue an advertisement stating
therein the premises which can be offered to the banks as per
the policy of the NOIDA Authority. This policy shall clearly
state the terms and conditions for allotment and the manner in
which the allotment of the alternative site/land would be made
to the banks and/or other commercial activities in appropriate
sectors i.e. commercial, institutional or industrial-commercial.
We make it clear that such policy should be fair and
transparent.
(iii) Within one week thereafter the banks and other persons carrying
on the commercial activities shall respond to the advertisement
given by the NOIDA Authority or the circular issued by them.
Their allotment should be finalized immediately thereafter.
(iv) The entire process should be completed within six weeks from
today. After six weeks the NOIDA Authority shall be entitled to
cancel the lease deed as well as take other permissible steps in
accordance with law to prevent commercial users in the
residential sectors. We also make it clear that the NOIDA
Authority will be at liberty to consider the request of the
nursing homes, clinics or other commercial activities carrying
on the residential areas for allotment of an alternative site in
accordance with its policy, if any. The NOIDA Authority shall
be entitled to fix present day rates or impose such other terms
and conditions as is considered appropriate by them. This we
leave to the discretion of the authorities concerned.
(v) Any branches that have opened in NOIDA after the pronouncement
of the judgment of this Court shall not be entitled to any of
the benefits of the judgment and this order.
(vi) We make it clear that the directions contained in this order
should be complied with by all concerned and within the time
stipulated. In the event of default, this court shall be
compelled to take proceedings under the Contempt of Courts Act,
1971 against the erring or defaulting officers/officials.”
4. In the abovementioned applications, some applications have been filed
by the doctors, who were running nursing homes in the residential areas
with a prayer that they should be provided alternate land/premises by
NOIDA, as it has been done in the case of banks as per the judgment of this
court. It is averred in these applications that Dr. Rashmi Gupta and
others were running nursing homes in the residential areas with differing
capacity, which have now been closed. They are prepared to pay the
reasonable cost of land/premises which the NOIDA may now allot to them for
running their nursing homes. There are other applications also with
similar prayers. As we had heard the applicants as intervenors/impleaders,
their applications for intervention do not survive for consideration any
further.
5. As far as formulation of Scheme by the NOIDA for allotting the
land/premises to such applicants is concerned, the stand of the NOIDA is
that it had already taken out a Scheme especially for nursing homes.
However, no applicant applied for allotment of such land and thus, the
NOIDA had not allotted any plot to the persons running nursing homes in the
residential areas.
6. The NOIDA Master Plan, 2031, in Chapter 7, deals with Use Zones and
Use Premises Designated. Under Serial No.87 of Chapter 7.30, while
referring to Clause 5.22, it has been stated that a premises having medical
facilities for indoor and outdoor patients having upto 30 beds is a nursing
home and would be managed by a doctor on commercial basis. A clinic is
stated to be a premises with facilities for treatment of outdoor patients
by a doctor. In case of a polyclinic, it shall be managed by a group of
doctors.
7. After hearing learned counsel appearing for different parties, we are
of the view that NOIDA can be directed to make a provision under this
policy for allotment of land/premises to nursing homes and invite
applications for allotment of land for the same. The NOIDA has given
precedence, under their previous Schemes for allotment, to such applicants
who are running nursing homes of more than 10 beds and less than 30 beds
and the same would apply under this direction. They shall be given
land/premises at reasonable rates as may be determined by the competent
authority in NOIDA. This exercise of inviting applications and allotting
such land/premises should be completed within three months from today. The
applicants have stated that their nursing homes have already been closed,
but we make it absolutely clear that no nursing rome shall run from a
residential area henceforth.
8. Coming to the applications made by individual doctors, we direct that
individual doctors would not be entitled to any benefit under the Scheme
that the NODIA will declare under this order. A clinic simplicitor can be
run by a doctor within such area as already specified, of his or her
residence. This clinic would mean one as per the bye-laws. To put the
matters beyond ambiguity, we clarify that the doctor can have his clinic
with a table, a bed to examine the patient and such facilities which may be
necessary to provide first aid. A dentist may have a dental chair in his
clinic. Under this head, neither a polyclinic nor a nursing home can be
run in the residential area.
9. We also direct that no doctor would be permitted to run a polyclinic
or a nursing home in the garb of a clinic. Therefore, the question of
keeping the patients in the clinic overnight would not arise. The purpose
of permitting a clinic is strictly in accordance with the directions of
this court as already issued as well as the bye-laws. The doctors will be
permitted to run a clinic to provide personal service to the outdoor
patients and nothing more. The doctors would be permitted to conduct
professional practice, by the resident doctor alone, within the scope of
the directions already issued by this court.
10. We have heard the applicants, at length. There is no occasion for
this court to review/alter its judgment dated 5/12/2011 and further order
dated 23/1/2012. Consequently, the applications for intervention and
impleadment do not survive.
……………………………………………..J.
(SWATANTER KUMAR)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
MAY 4, 2012.
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