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Discussion > Judgments > Supreme court order regarding commercial use of residential   Unanswered Threads Post New Topic

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B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 07 December 2011 at 19:33 Report Abuse

Supreme Court Judgement dated 05.12.2011 regarding Commercial use of Residential Properties is attached for the knowledge of interested members




Attached File (downloaded 3380 times) :

Total thanks : 1 times


Online certification courses in IP, IT and Social Media laws


SACHIN AGARWAL


ADVOCATE
[ Scorecard : 1341]
Posted On 14 December 2011 at 21:56 Report Abuse

Thanks.



V.Devananda Narasimham


Advocate
[ Scorecard : 214]
Posted On 11 February 2012 at 00:33 Report Abuse

Thanks



B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 15 June 2012 at 17:25 Report Abuse

 

The Supreme Court in a recent judgement has clarified the ambiguity in
very clear words regarding use of residential premises by Doctors in the NOIDA
matter:
"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"


B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 15 June 2012 at 17:30 Report Abuse

 

                                                             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.
      [pic]
      (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.


B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 15 June 2012 at 17:33 Report Abuse

This judgment can be downloaded in my posting titled Noida Matter in judgment category



narendra.s.p


Chief Manager(Law)
[ Scorecard : 511]
Posted On 27 June 2012 at 14:48 Report Abuse

Recent Bombay High Court Judgment in WP No.10976 of 2011 in M/s Shakti Commercial Premises Society Ltd. Vs. State  of Maharashtra & 2 others pronounced on 11/06/2012 is attached.



B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 14 July 2012 at 15:22 Report Abuse

various IA s were filed in the main case and were listed on 9.7.2012.Counsel were heard and the court ordered for listing the IAs on 16.07.2012



B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 22 July 2012 at 14:34 Report Abuse

On 16.07.2012

The Supreme Court made thefollowing order:



         





  UPON hearing counsel the Court made the following
                               O R D E R

         IA No. 55 is dismissed as withdrawn.

         Learned counsel for the NOIDA Authorities has placed on record  the
status report dated 16th July, 2012  showing  the  various  steps  that  the
authorities have taken in furtherance  to  orders  of  this  Court.   Having
heard the learned counsel appearing for the parties at some length, we  pass
the following directions:

1.       Admittedly, the lease deed has been executed  in  various  branches
of the State Bank of India.  Let possessions of the plots be handed over  to
them within one week from today.

2.       Within 15 days from today, the drawings/plans for sanction  of  the
Authority for raising the constuction should be filed.  The  plan  shall  be
considered by  the  Authority  concerned  within  a  period  of  two  weeks.
Thereafter, appropriate orders be passed  and  communicated  to  the  Banks.
The constuction in accordance with the sanction  plan  should  be  completed
within seven months from today.  In the event, any of the conditions  afore-
noticed is not complied with by the Authority or the State  Bank  of  India,
none of them would be entitled to any extension and the bank premises  being
run from the residential premises shall be sealed.

3.       In regard to the Indian Bank, it is stated that  though  they  have
deposited the amount but the lease deeds  could  not  be  executed  for  the
reason that the stamp paper in relation to one  plot  has  not  been  filed,
while in relation to other, there is  some  litigation  pending  before  the
High Court of Allahabad.  Learned counsel appearing  for  the  Bank  submits
that the stamp paper have already been filed.

         We consider it totally unnecessary to  go  into  this  controversy.
The official of the Bank shall show it to the learned counsel appearing  for
the Authority the proof of the stamp papers having  been  submitted  to  the
NOIDA Authority.  No stay has been granted by the Allahabad High  Court  and
we see no reason as to why the lease deed  in  favour  of  the  Indian  Bank
should not be executed.  Let that be executed within two weeks  from  today.
Rest schedule as directed in the case of SBI shall also operate in  relation
to Indian Bank.  If Indian Bank  does  not  comply  with  these  directions,
their premises in the residential area shall also be  liable  to  be  sealed
after the expiry of the afore-stated period.

4.       With regard to E-37, Sector 55, let the Chief Manager of  the  Bank
file an affidavit within one week from today that  the  commercial  activity
of the Bank from the residential area has been stopped.  In the event,  this
is not done, the NOIDA Authority shall seal the premises.

5.        Learned  counsel  appearing  for   the   NOIDA   Authority,   upon
instructions from the Chief Architect, who is present in Court submits  that
ATMs are operating from the commerical area or in group housing  area.   Let
such  ATMs,  wherever  permissible  under  the  bye-laws,  be  permitted  to
continue.

6.       United Bank of India submits that one Branch from Sector 27,  NOIDA
has already been shifted to Sector 18,  NOIDA  in  a  commercial  area,  the
Branch in Sector 33 shall also be shifted to the  same  premises.   However,
they pray for two months' time to vacate and stop commercial  activity  from
the premises presently occupied by them.  Time, as prayed for,  is  granted.
In the event, the activity is not stopped  within  two  months  from  today,
NOIDA Authority shall seal the premises in the residential area.

7.       In the case of  HDFC  Bank,  the  lease  deed  has  been  executed.
However, the remaining steps need to be  taken  and  transaction  completed.
The schedule for HDFC Bank shall be the same as in the case  of  SBI  afore-
indicated.

8.       NOIDA Authority shall refund the money in  relation  to  the  plots
which have not been allotted to SBI within two weeks from today.

9.       Union Bank of India, Bank of Maharashtra, Punjab and Sind Bank  and
any other Bank where the lease deeds have been executed by  NOIDA  Authority
in their favour and remaining steps need to  be  taken  before  they  vacate
their premises from the residential area,  the same schedule as provided  to
SBI shall apply.

10.      Learned counsel for the Authority submits that in relation  to  the
Allahabad Bank, he will ask  the  authorities  to  examine  the  matter  and
expedite execution of the lease deed in their favour.

11.      Learned counsel appearing for the  Authority  has  brought  to  our
notice the order dated 29th  May,  2012  passed  by  the  Civil  Judge,  Sr.
Division.  The Order runs contra to the judgment of this Court and  in  fact
permits what is specifically been  directed  not  to  be  permitted  in  the
residential area under the bye-laws.  There shall be  interim  stay  of  the
order of the learned Civil Judge, Sr. Division.

         We also express a pious hope that the learned  Civil  Judges  would
consider such cases, if any, filed  before  them  with  interim  orders,  in
accordance with the law stated by  this  Court  and  not  pass  any  interim
orders which would be in conflict with the judgment of this Court.

12.      We also direct  issuance  of  notice  to  the  plaintiff  Ghanshyam
Chauhan in that suit being suit no. 549 of 2012 fixed for 19th July, 2012.

13.      Liberty to the learned  counsel  appearing  for  the  Authority  to
serve the letter of service in Court when the case is called out before  the
learned Senior Sub-Judge.

14.      On behalf of certain applicants and even other  interested  persons
including the banks, an issue has  been  raised  that  the  NOIDA  Authority
should be called upon to formulate a scheme  for  allotment  of  alternative
accommodation to them, in commercial  areas.   It  is  averred  particularly
when they have vacated the residential areas from where they  were  carrying
on their commercial activity.  Let counsel  for  the  NOIDA  Authority  take
instructions in this regard.

         Stand over for two weeks.

         IA No. ..of 2012 in C.A. NO. 10535/2011 (Chairman NOIDA  Vs.  Mange
Ram(D) through LRs)(Appln. By M/s. Shivalik Medical Centre P. Ltd.) be  also
tagged along with these IAs.
 



B.K.GUPTA...


ADVISOR
[ Scorecard : 1316]
Posted On 17 August 2012 at 17:20 Report Abuse


       The Supreme Court on 30.07.2012 made the following order in the matter:

 

    UPON hearing counsel the Court made the following
                               O R D E R


      I.A. NO. 9 IN C.A. NO. 10535 OF 2011
           This interlocutory  application  has  been  filed  bringing  out
     certain objections to the Scheme floated by the NOIDA  in  furtherance
     of this Court's earlier Order.
           Having heard the learned counsel appearing for the  parties  and
     in  continuation  of  our  previous  order,  we  pass  the   following
     directions:
                   1.    The earnest money to be deposited under the Scheme
                      shall be 15% of the bid price.  Remaining  terms  and
                      conditions in that regard shall remain  in  force  as
                      per the brochure issued by the NOIDA.
                   2.    The limitation  of  Rs.50  lakhs  annual  turnover
                      shall not be pressed by the NOIDA.  However,  it  may
                      ask for any documents such as no  dues  certification
                      and issuance of certain other kind of certificates by
                      the competent authorities like Health  Department  or
                      Municipal Corporation, as the case may be,   to  show
                      that during which period, the nursing home was run in
                      the residential area.
                    3.   The Scheme shall be operative and applicable to all
                       the persons whose nursing homes,  being  run  in  the
                       residential area, have been closed by  the  NOIDA  in
                       furtherance of this Court's order and they shall form
                       a class by themselves.
                    4.      The persons who have been allotted lands by  the
                       NOIDA previously  under  any  Scheme,  would  not  be
                       eligible to the benefit of the special Scheme floated
                       by the NOIDA in furtherance  of  the  order  of  this
                       Court.
           We also make it clear that the NOIDA is given liberty to  impose
     certain other conditions on the beneficiaries of the  special  Scheme,
     restricting them not to rent out or sell the property, at least for  a
     period of ten years from the date of allotment  or  any  other  period
     which may be considered appropriate by the NOIDA.
           We further make it clear that  we  will  not  interfere  in  the
     pricing fixed by the NOIDA.
           The interlocutory application is disposed of accordingly.
      I.A.NOs. 42-43 IN C.A. NO. 6962 OF 2005
            The  Allahabad  Bank  shall  approach  the  Authority  and  the
     Authority is directed to allot the plot for which  the  applicant  had
     bid in the auction. We are sure that this issue will  not  be  brought
     before the Court again.
           We make it clear that no customary or other activity,  which  is
     commercial in nature, has been permitted in the  residential  area  by
     our judgment.
           The NOIDA is given liberty to take appropriate steps  to  ensure
     that no commercial activity is taking place in the residential areas.
           The interlocutory applications are disposed of accordingly.
           All the interlocutory applications filed by parties shall  stand
     refused.


      I.A. NO. 54 IN C.A. NO. 6962 OF 2005
           The applicant is given liberty to move the NOIDA.
           The interlocutory application is disposed of.
 




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