Wednesday, January 25, 2012

Doctors, Lawyers, Architects can use 25% of the permissible FAR of any floor in their premises in the residential sector: SC


ITEM NO.301                   COURT NO.7             SECTION XI

              S U P R E M E     C O U R T   O F    I N D I A
                             RECORD OF PROCEEDINGS

IA NOS. 27-39 IN    CIVIL APPEAL NO(s). 6962 OF 2005

R.K. MITTAL & ORS.                                    Appellant (s)

                   VERSUS

STATE OF U.P. & ORS.                                  Respondent(s)

(for permission to file appln. for intervention                directions,
modification, impleadment and office report)

Date: 23/01/2012    This Appeal was called on for hearing today.

CORAM :
          HON'BLE MR. JUSTICE SWATANTER KUMAR
          HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI

For Appearing parties:
                     Mr. Mukul Rohtagi,Sr.Adv.
                     Mr. Sanjay Kapur,Adv.
                     Mr. Nikhil D.,Adv.
                     Mr. Ashmi Mohan,Adv.
                     Mr. Pankaj Pandey,Adv.for
                     M/s. AP&J Chambers.

                       Mr. Ranjit Kumar,Sr.Adv.
                       Mr. Prashant Kumar,Adv.
                       Mr. Anurag Sharma,Adv.

                       Mr.   P.S.Patwalia,Sr.Adv.
                       Mr.   Jitendra Mohan Sharma,Adv.
                       Mr.   Sandeep Singh,Adv.
                       Mr.   Harsh Surana,Adv.
                       Ms.   Deepali Surana,Adv.
                       Ms.   Anjali Bhargava,Adv.
                       Mr.   Ajit Sharma,Adv.

                       Mr. Ravindra Kumar,Adv.

                       Mr. Bijoy Kumar Jain,Adv.

                       Mr. Shrish Kumar Misra,Adv.(NP)

                       Mrs. Shiel Sethi,Adv(NP)
                                   -2-


                 Mrs. Rachana Joshi Issar ,Adv.(NP)

                 Mr. Vinay Kumar Garg,Adv.
                 Mr. Vivek Sharma,Adv.

                 Mr. Himanshu Munshi,Adv.

                 Mr. Pahlad Singh Sharma,Adv.

                 Mr. Navin Chawla,Adv.

                 Mr. Gopal Prasad,Adv.(NP)


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

         Learned counsel appearing for the Noida Authority

at the very outset regrets his absence on the last date

of    hearing    and    submits      that         entire   record    has    been

brought    and    even    affidavit          has    been    prepared       to    be

filed in this Court showing the                       steps taken by the

Noida     Authority      in     furtherance           to    and     after       the

pronouncement of the judgment of this Court dated 5th

December,       2011.      We     do        not    intend    to     take     this

affidavit on record at this stage.                          In view of the

request made by the learned counsel appearing for the

Noida Authority and its CEO, we are of the opinion that

no    further    action       need     be    taken     against      the     Noida

Authority or its officers at this stage and we will

proceed to deal with all the applications in accordance

with law.
                                    -3-

       After hearing the learned counsel appearing for

the parties at some length, and Mr. S.K. Dwivedi, CEO

of the Noida Authority, who is present in Court with

records, we pass the following directions and order:

       The applications for intervention are dismissed.

       It    has    been   argued on    behalf of     some of    the

applicants and, in fact, commonly conceded that for

professionals, 25 per cent of the permissible FAR is

allowed to be used by them for professional purposes.

It is further contended that 30 per cent of the ground

floor area permitted to be used under paragraph 56.5 of

the judgment is very inconvenient and contrary to the

bye-laws and master plan of Noida.             This area would be

completely         insufficient   to      meet       the    minimum

requirements of the professionals. As it is a conceded

position on behalf of the Noida Authority that 25 per

cent   of    the    permissible   FAR    can    be   used   by   the

professionals for their professional activities,                  we

consider it reasonable to modify the direction 56.5.

However, we make it clear that this will be applicable

only to lawyers, architects and doctors for running

limited professional activity and not at commercial
                                            -4-

     levels.       Another argument that has been addressed is

     that the expression 'ground floor' used in the same

     clause may be clarified to 'any floor' because somebody

     may be having a two-storeyed house and may himself be

     living on the first floor only.                   Therefore, we modify

     paragraphs 55 and 56 of the judgment as follows:

              "That the Doctors, Lawyers, 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."

(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 in 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.
All the applications are disposed of and we make it clear that we will not grant any further extension of time to the Authority concerned.
[SUMAN WADHWA]   [SNEH BALA MEHRA]
 COURT MASTER       COURT MASTER
 

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