Chairman & C.E. Officer,
Noida vs Mange Ram Sharma (D) Thr. Lrs. Bench: Swatanter Kumar,
[I.A. No. 4 of 2012]
Executive Officer, NOIDA & ANR. Vs. Mange Ram Sharma (D) through LRS. ANR.
[Civil Appeal No.
10535 of 2011]
Chairman Chief Executive
Officer, NOIDA ANR. Vs. Mange Ram Sharma (D) through LRS. ANR.
No.10535 of 2011]
Executive Officer, NOIDA ANR. Vs. Mange Ram Sharma (D) through LRS. ANR.
[I.A. No.6 of 201 in
Civil Appeal No.10535 of 2011]
R.K. Mittal Ors. Vs. State
of U.P. Ors.
[I.A. No. 48 of 2012
in civil Appeal No. 6962 of 2005]
R.K. Mittal Ors. Vs. State
of U.P. Ors.
[I.A. No. 50 of 2012
in Civil Appeal No. 6962 of 2005]
judgment and order dated 5/12/2011, this Court disposed of Civil Appeal
No.10535 of 2011 and issued following directions:
a. 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
b. 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
c. 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.
d. 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
e. 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.
f. 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.
g. 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.
h. 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.
i. 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.
j. 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.
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.
the said order dated 23/1/2012, we have issued the following further
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
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.
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
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.
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
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.
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
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.
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.
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.
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.
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.
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.
(RANJANA PRAKASH DESAI)