Supreme Court Judgement dated 05.12.2011 regarding Commercial use of Residential Properties is attached for the knowledge of interested members
B.K.GUPTA... (ADVISOR) 07 December 2011
Supreme Court Judgement dated 05.12.2011 regarding Commercial use of Residential Properties is attached for the knowledge of interested members
SACHIN AGARWAL (ADVOCATE) 14 December 2011
Thanks.
V.Devananda Narasimham (Advocate) 11 February 2012
Thanks
B.K.GUPTA... (ADVISOR) 15 June 2012
B.K.GUPTA... (ADVISOR) 15 June 2012
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.
B.K.GUPTA... (ADVISOR) 15 June 2012
This judgment can be downloaded in my posting titled Noida Matter in judgment category
narendra.s.p (Chief Manager(Law)) 27 June 2012
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) 14 July 2012
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) 22 July 2012
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) 17 August 2012
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.
SUBHASH VERMA (LEGAL HEAD) 31 March 2014
sir
i want to know that I have a residence house in noida and i want to give this on rent to a doctor . Can i have a legal right to lease out the residence 25 % to doctor . please suggest me
SUBHASH VERMA (LEGAL HEAD) 31 March 2014
sir
i want to know that I have a residence house in noida and i want to give this on rent to a doctor . Can i have a legal right to lease out the residence 25 % to doctor . please suggest me
B.K.GUPTA... (ADVISOR) 31 March 2014
It appears that you have not read the SC Order,it is self explanatory and more particularly over the query you have raised.
When you ,yourself ,are Legal Head,I fail to understand about the intent of putting up the query in such ambiguous language.
You have also posted a personal message to which I have responded as well.
Madansingh Shekhaawat (writer & an editor) 02 April 2014
Very good and informative; Thanks!
Hanish 17 September 2015
Dear Sir,
Whether ATM in Society (Basement ) in facility area will be allowed in Noida.
Reason for Asking the same is because in Basement, Facility Office which deal about Resident complaint is already operational.
Whether ATM will be considered as Banking activity ?
Also Whether the Builder Office related to Maintence & Bill Payment is allowed in Basement.
Thanks in advance
Hanish Arora
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