on  15 June 2012

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”

by  B.K.GUPTA…  on  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.