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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

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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  

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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      

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 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.

(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.

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(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  

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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.”

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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  

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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  

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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  

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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.  

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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  

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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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