ADVOCATE ARVIND GUPTA

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

2012-01-25T17:32:00.000+05:30

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

Directed 5 Lakhs Compensation to consuer:National Consumer Commission, New Delhi

2012-01-17T14:41:00.000+05:30

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 502 OF 2004

[Against the order dated 26.08.2004 in Complaint No. 61/2000 of the

Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram]

K. Venkata Rao

“Om Shakthi”

19/1898, K.N. Road, Poojapura

Thiruvananthapuram-695012

Presently residing at

“Om Sri Sai Ram”

449, 24^th Main, 8^th Cross,

HSR Layout 1^st Sector

Agara, Bangalore-560034 … Appellant

Versus

1. M/s Federal Express Corporation

942, South Shady Grove Road

Memphis, TN 38120, USA

901-369-3600

2. Mr. Suraju Dutta

Senior Country Manager

Federal Express Corporation

Chemtex House

Hiranandani Garden Main Road, Powai

Mumbai-400076

3. Mrs. Ajanta Chakraborty

Manager, Customer Service

Federal Express Corporation

Chemtex House

Hiranandani Garden Main Road, Powai

Mumbai-400076

4. Mr. Pramod Agarwal

Manager, Operations

Federal Express Corporation

Chemtex House

Hiranandani Garden Main Road, Powai

Mumbai-400076

5. Mr. Babu Jacob

Executive Sales

Bluedart Express, Federal Express Call Centre

9/1069, Sasthamangalam

Thiruvananthapuram-695010 … Respondents

BEFORE :

HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER

HON’BLE MR. S.K. NAIK, MEMBERS

For Appellant : Mr. Santosh Paul, Amicus Curiae

Ms. Astha, Tyagi, Advocate

Ms. Mohita Bagati, Advocate &

Appellant in person

For Respondents No. 1 to 3 : Mr. A.V. Haksar, Sr. Advocate with

Ms. Vatsala Suhota, Advocate &

Mr. Akshay, Advocate

For Respondent No. 5 : Mr. Sumeet Lall, Advocate with

Mr. Arjun Garg, Advocate &

Ms. Ankita, Advocate

Pronounced on : 16^th January, 2012

O R D E R

PER S.K. NAIK, MEMBER

1. Original complainant K. Venkata Rao has filed this appeal against the order dated 26^th of August, 2004 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short the State Commission), vide which the State Commission has dismissed the complaint and has also imposed a cost of Rs.1000/- to be paid by him to each of the opposite parties except opposite party no.4 holding that he had unnecessarily dragged them to a litigation.

2. The facts, as alleged by the appellant in his complaint filed before the State Commission are that, due to some obscure neurological disorder his 17 year old son Om Prakash had died on the 10^th of May, 2000. Before his death, he was under the treatment of various Medical Institutions, such as Sree ChitraTirunal Institute of Medical Science & Technology (SCTIMST), Trivandrum; Christian Medical College & Hospital (CMC), Vellore; National Institute of Mental Health and Neurological Science (NIMHANS), Bangalore for the preceding three years (i.e. from 1997). That apart, the appellant was also in touch with many foreign experts for getting periodical opinions. In spite of all this, the medical problem of his son could not be diagnosed. Therefore, the appellant decided to donate his deceased son’s brain and lungs for carrying out a comprehensive research for the benefit of humanity. In this regard, one Dr. Bruce H. Cohen of USA showed his interest to undertake the research. His associate, Dr. Steven J. Zullo advised the appellant to send the organs through the international courier M/s Federal Express Corporation (Fedex for short). The appellant contacted Mr. Babu Jacob, Executive Sales, Bluedart Express of Federal Express Call Centre, opposite party no.5, at Trivandrum for the purpose. Though opposite party no.5 was ready to accept the consignment of the organs but advised the appellant to take the commercial invoice form and go to Mumbai directly since the consignment needed special packing with dry ice and some customs formalities were required to be completed at Mumbai.

3. In order to have some idea regarding packing adequacy with dry ice, exact hours of transit time and the condition in which the shipment would be delivered to the recipient, the complainant/appellant decided to send the organs in two batches and accordingly prepared the first batch of few grams of lung,cerebro-spinal fluid (CSF) and blood.

4. On 19^th of June, 2000, when the complainant/appellant reached the Fedex Service Centre atAdarsh Industrial Estate, Chakala, Andheri (East), Mumbai, for having an idea in this regard, he was advised to pack the consignment with 3 kg. dry ice and was instructed regarding special packing procedure for such shipments. The complainant/appellant packed the first batch with 3kg. dry ice on the said date and on 21^st of June, 2000 informed the Fedex representative about the adequacy of 3 kg. dryice for 48 hours of travel time. On 22^nd of June, 2000 respondent no.3 Ms. Ajanta Chakraborty finally consented to accept the consignment and thereafter international airway bill no. 400-8732-6691 was prepared and the two packages of the consignment were handed over to the Fedex Service Centre atAdarsh Estate, Mumbai, who assured the appellant that the consignment will be dispatched the next day. On 23^rd of June, 2000, the date on which the consignment was supposed to be put on board for transmission, the complainant/appellant was requested by the respondents to pack the consignment with fresh 3 kg. dry ice since there was some delay in dispatch and he acted accordingly. At this juncture, the appellant was promised by respondent no.3 Ms. Ajanta Chakraborty, Manager Customer Service that in case of any subsequent delay, they would take care of the consignment of their own but again, since there was some delay due non-clearance by the Customs to the consignment, the complainant arranged for the clearance and handed over the same to the respondents. At the airport the consignment was finally accepted by respondent no.4 Mr. Pramod Agarwal, Manager Operations after a thorough inspection. But subsequently, respondent no.2 Mr. Suraju Dutta, Sr. Country Manager refused to send the consignment saying that dispatch of human organs was in contravention of the Fedex policy. At this stage, allegedly, respondent no.4 Mr. Pramod Agarwal, Manager Operations removed the copies of the airway bill from the package in order to leave no trace of any record/evidence of having accepted the consignment for dispatch and the packages were kept at the Bluedart/Fedex premises at Adarsh Estate, Mumbai. Disappointed with the sudden turn of events, the appellant made a complaint to the principal office of the respondents in USA but except for an apology in the matter no action was taken by the respondents to send the consignment.

5. In this background, alleging (i) deficiency in service, (ii) deliberate and willful spoiling of the precious diagnostic material, (iii) refusal to even send the second packet which contained documents only, including the MRI of the patient, without any reason, (iv) forceful removal of the copies of the airway bill from the package by respondent no.4, (v) mental agony, torture and harassment, besides loss of precious tissues/organs, the appellant filed complaint praying for a compensation of Rs.9.75 Lakhs under different heads before the State Commission, who vide the order impugned has dismissed the same holding that the appellant/complainant was not a ‘consumer’ and had no locus standi to file the complaint despite holding that it lacked the pecuniary jurisdiction to entertain the complaint.

6. Hence, this appeal by the appellant/complainant.

7. At the outset, it may be stated that since the matter related to non-dispatch of parts of the body organs e.g. lungs and brain fluid of the deceased son of the appellant for the purpose of research, which has been dismissed by the State Commission and he is in appeal before us, and considering that the matter for the appellant may involve emotive overtones and on his request to appoint an amicus curiae, we had requested Shri Santosh Paul, learned Advocate, to assist this Commission on behalf of the appellant/complainant as Amicus Curiae, which he had readily accepted and has argued the case.

8. Respondents no. 1 to 3 are represented by Mr. A.V. Haksar, Sr. Advocate, assisted by Ms.Vatsala Suhota, Advocate and Mr. Akshay, Advocate, and Mr. Arjun Garg, Advocate, assisted by Mr.Sumeet Lall, Advocate and Ms. Ankita, Advocate, has appeared on behalf of respondent no.5. Respondent no.4 had already been struck off from the array of parties even before the State Commission.

9. It may be stated here that respondent no.5 Mr. Babu Jacob, Executive Sales, Bluedart Express of Federal Express Call Centre, Thiruvananthapuram had not filed his written version nor contested the complainant’s claim that he was part of Fedex call centre at Thiruvananthapuram before the State Commission. He had ‘not mounted the witness box’ as per the State Commission’s own version to testify that Exhibit A-6, commercial invoice, was not given by him. Yet he had filed IA No. 645 of 2001 to get his name deleted from the array of opposite parties as the complainant had not claimed any relief qua him and the State Commission had dismissed the same. Respondent no.5 even thereafter did not file any written version to clarify his stand. Strangely, however, a reply has now been filed before this Commission on behalf of Blue Dart seeking permission also to file certain documents received from the appellant. We cannot permit/allow filing of any written version or additional documents as they have foreclosed their right to do so in view of their previous conduct which amounts to a conscious decision not to contest the complainant’s version before the State Commission.

10. We have carefully perused the rather detailed order passed by the State Commission and have carefully gone through the evidence placed on record by the parties and their written submissions. We have also heard learned counsel for the parties and the learned amicus curiae at great length. Learned counsel for the appellant/complainant has contended that the complainant having availed service of Fedexand M/s Bluedart with the promise of payment from Dr. Zullo, is a ‘consumer’ as per Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, which the State Commission has failed to appreciate. On the question of territorial jurisdiction, he contends that Blue Dart Express of Fedex Call Centre at Thiruvananthapuram having provided the commercial invoice, which bears the column of Fedex Express AWB No., the process of dispatch started at Trivandrum. The commercial invoice having been verified by Mr. Babu Jacob, part of cause of action arose at Trivandrum also where the Fedex office combined with Blue Dart was functioning. He further submits that the existence of Blue Dart/Fedex office at Trivandrum is established from the fact that when he went with the commercial invoice issued by Mr.Babu Jacob to the Blue Dart/Fedex office at Adarsh Service Centre of Fedex, Mumbai, the same was entertained by the Adarsh Service Centre of Fedex. On the question of not being a beneficiary as contended by the opposite parties, the learned counsel has submitted that even though the complainant has not claimed to be a beneficiary of either Dr. V.V. Radhakrishnan or of Dr. Zullo as the main consumers and he has himself claimed to be the consignor/complainant, the fact cannot be ignored that the complainant was to be the first beneficiary of any outcome from the research to be undertaken on the body parts of his deceased son as it was his other two living daughters and their children who would be at great risk if the disease of his deceased son is not diagnosed. Thus, on all the three counts, he contends that the State Commission totally with a pre-conceived notion has dismissed the complaint arbitrarily.

10A. Learned counsel for respondents/opposite parties no. 1 to 3 has fully justified the order passed by the State Commission and has reiterated the view expressed by the State Commission that the complainant was not a ‘consumer’ nor was he a beneficiary nor was there any cause of action at Thiruvananthapuram to file the complaint before the State Commission in Kerala.

10B. In view of the submissions of learned counsel for the complainant and the learned counsel for the opposite parties, it would be necessary for us to consider as to whether the order passed by the State Commission in the facts and circumstances of the case is legal and justified.

11. The State Commission has dismissed the complaint of the appellant summarizing its views in the operative para which reads as under :-

“30. Considering the facts and circumstance of the case, we are of the considered view that the complaint is not entertainable on the ground that complainant is neither a consumer nor a beneficiary or has locus standi to file the complaint. Further ground is that no part of cause of action arose within the territorial jurisdiction of this commission.

In the result the complaint is dismissed. Having regard to the facts and circumstance of the case we direct the complainant to pay to the opposite parties 1 to 3 and 5 cost of Rs.1000/- each for unnecessarily dragging them to a litigation knowing fully well that he is not a consumer as defined in the Act and no part of cause of action arose within the territorial jurisdiction of this Commission for making unlawful gain by way of compensation,”

12. In substance, it may be seen that the State Commission has dismissed the complaint of the appellant/complainant holding (a) that the complainant was neither a ‘consumer’ nor a beneficiary nor had he the locus standi to file the complaint and (b) that no part of cause of action arose within the territorial jurisdiction of the State Commission. We have, therefore, to examine as to whether the State Commission was correct in its approach to arrive at the aforesaid conclusion.

13. A ‘consumer’ is defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as under :-

“(d) “Consumer” means any person who,

(i) ….

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.”

14. As can be seen, under this definition of a ‘consumer’ a person himself hiring or availing any service for a consideration whether paid, promised, partly paid, partly promised or under any system of deferred payment will qualify to be a ‘consumer’. Additionally, any person who is a beneficiary of such services with the approval of the former also qualifies to be a ‘consumer’. The only exception is that a person who avails of such services for any commercial purpose would not qualify to be a ‘consumer’. In the case in hand, we find that the State Commission in para-10 of its order has stated that the complainant did not qualify to be a ‘consumer’ as he had not pleaded in the complaint that he hired or availed the services of respondent/opposite party no.1 for a consideration. The State Commission has also held in para 13 that the complainant was not even a beneficiary of Dr. V.V. Radhakrishnan and SreeChitra Tirunal Institute of Medical Science & Technology, who according to Exhibit A-7 was the consigner, as the said Dr. V.V. Radhakrishnan had not paid any consideration in any manner to the respondent/opposite party no.1. The State Commission further goes on to hold that Dr. Steven J. Zullo, who had provided his account number with M/s Federal Express Corporation, had no privity of contract with the respondent/opposite party no.1 with regard to the dispatch of the consignment in question and, therefore, did not qualify to be a ‘consumer’ and the complainant cannot claim to be a beneficiary of Dr.Zullo as well. Thus, the State Commission has held that the complainant does not qualify to be a ‘consumer’ as he had directly paid no consideration to the respondent/opposite party no.1 nor does he qualify to be a beneficiary authorized by Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology, who is stated to be the consigner in the airway bill nor can the complainant claim to be a beneficiary authorized by Dr. Zullo. The State Commission, however, in para12 of its order referring to only a part of Exhibit A-4, i.e. mail of the complainant addressed to Dr. Zullo, states that “it was the complainant who had decided to send the consignment through Federal Express”but ignores the other part of the exhibit, which is the reply of Dr. Zullo to the complainant, in which he has given his Federal Express Account No. The import of this response from Dr. Zullo has not been appreciated in its correct perspective by the State Commission, inasmuch as through this response Dr.Zullo in unambiguous terms undertook to defray the expenditure on the remittance of the consignment on its receipt at his end. If this was not an agreement for a deferred payment, then what would it be? To be noted that the airway bill Exhibit A-7 was prepared by the Fedex employee who himself has entered Dr.Zullo’s Fedex Account Number on the airway bill.

15. The case set up by the complainant/appellant is that in order to dispatch the body parts of his deceased son for research purposes to U.S.A., he first approached Mr. Babu Jacob of the Bluedart, Federal Express Call Centre at Trivandrum. The said Babu Jacob provided the commercial invoice, which the complainant got filled up from Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology, under whose custody the body parts were preserved for obvious reason. Thereafter the said commercial invoice was verified by Mr. Babu Jacob, who, however, advised the complainant to proceed to Mumbai as the dispatch of body organs required some special facility and procedure, which his office was not equipped with. The same commercial invoice which had been verified by Mr. Babu Jacob was presented by the complainant at Mumbai before the Fedex office, which was entertained by the respondent/opposite party no.1. The airway bill was thereafter prepared by them. A perusal of the said airway bill (Exhibit A-7) even though mentions the name of Dr. V.V. Radhakrishnanand Sree Chitra Tirunal Institute of Medical Science & Technology; in column-10 of the said airway bill, the name of the complainant K. Venkata Rao appears as the sender. The signature of the complainant has been obtained by the Fedex authorities on the said bill. It has further been stated in columns 7 and 8 thereof that the bill will be paid by the recipient i.e. Dr. Steven J. Zullo. While the State Commission has erroneously held that the said bill is not authenticated by anybody from the Fedex, we find that a Fedexemployee whose employee number is 25480 appears on the airway bill, which cannot but be said that it was an employee of Fedex who had prepared and authenticated the said bill. In the absence of any specific averment that the said bill was not prepared by anyone of their employees, it was not correct on part of the State Commission to have taken the view that it has. Further, the respondent/opposite party no.1 having asked the complainant to undertake the exercise of packing the tissue/organ with adequate quantity of dry ice, not once but four times and further having solicited his assistance to get the customs clearance and having dealt with him from 19^th of June to 23^rd of June, 2000 when finally he was informed that the consignment cannot be accepted, could not be heard to take the plea that K. Venkata Rao (the complainant) was not the consigner and it was Dr. V.V. Radhakrishnan, Head of Sree Chitra TirunalInstitute of Medical Science & Technology. We do not find any averment that respondent/opposite party no.1 ever questioned the locus of the complainant or having asked the complainant to explain as to how was he concerned with the dispatch when Dr. V.V. Radhakrishnan, Head of Sree Chitra Tirunal Institute of Medical Science & Technology was the consigner. By their own conduct, it has to be held that the respondent/opposite party no.1 had forfeited/waived their right to challenge the locus of K. Venkata Raoas the real consigner/complainant. The State Commission, in our view, has misdirected itself in holding that K. Venkata Rao was not the consigner.

16. We find from the order passed by the State Commission that it has devoted a large part of its order in dealing with the subject whether the complainant was a beneficiary either of Dr. V.V. Radhakrishnan ofSree Chitra Tirunal Institute of Medical Science & Technology or Dr. Steven J. Zullo. In our view, this was totally unnecessary and uncalled for as the complainant had placed himself in the position of the consigner with a deferred payment to be made by Dr. Zullo and, therefore, he was fully qualified to be a consumer to file the complaint. Total reliance placed by the State Commission only on the incorporation of the name of Dr. V.V. Radhakrishnan and the Sree Chitra Tirunal Institute of Medical Science & Technology on the airway bill (who were only the custodian of the body parts of the deceased son of the complainant) could be of technical consideration, which does not change the character of the complainant being the real sender/consigner, which is clearly borne out from the airway bill and the subsequent conduct of the Fedex authorities.

17. The State Commission in its order has also held that “It is not possible to draw any inference from his evidence (i.e. evidence of the complainant) that any part of the cause of action arose at Thiruvananthapuram within the territorial jurisdiction of this Commission.” The State Commission has taken this view despite the fact that the complainant in his evidence had clearly asserted that he went to the office of Mr. Babu Jacob, opposite party no.5, on the 14^th, 15^th and 16^th of June, 2000, first to collect the commercial invoice and subsequently to submit the same but after its verification he was advised by respondent/opposite party no.5 to go to Mumbai. The State Commission has ignored the endorsement on the business card of Mr. Peter D’Souza, Assistant Manager, which, apart from Bluedart, clearly mentions the name of Fedex. In the absence of the said Mr. Babu Jacob or the Bluedart having filed any written version or appearing before the State Commission to explain their stand, despite their interim application for deletion from the array of parties having been dismissed, it was not proper on part of the State Commission to have ignored this unrebutted piece of evidence and hold that the Fedexneither had any branch office or call centre at Trivandrum nor any cause of action arose there. Being a consumer complaint, it was, in our view, the bounden duty of the State Commission to have drawn an adverse inference against opposite party no.5 and should have held that the said Babu Jacob was representing not only the Bluedart but Fedex also at the call centre at Trivandrum as well. As already stated, respondent no.5 Mr. Babu Jacob has not denied the issuance of proforma of commercial invoice Exhibit A-6 to the complainant from their Trivandrum call centre. In the reply filed on behalf of respondent no.5 Blue Dart before this Commission even at this belated stage, the stand of respondent no.5 is that till the year 2002 Fedex amongst others had a principal to principal relationship with Blue Dart in India, inasmuch as Blue Dart was responsible for delivery of international cargos received from outside India, which were couriered through Fedex and that Blue Dart was one of the many companies, who has such arrangement with Fedex on non-exclusive basis. Despite our repeatedly asking the counsel representing respondent no.5 to file the document evidencing what kind of relationship/arrangement they had withFedex, they have failed to produce any agreement/MOU between them. Adverse inference is liable to be drawn for non-production of such relevant and important piece of evidence. We have, therefore, no hesitation in holding that Blue Dart must be acting for Fedex at the Trivandrum service centre besides other places. Had Blue Dart office at Trivandrum no connection with Fedex, the proforma of commercial invoice could not be in position of Mr. Babu Jacob and he could not have handed it over to the complainant for completing the same. This handing over of the commercial invoice by Mr. Babu Jacob with instructions to the complainant to approach the Bombay office was the foremost/starting point in the process of sending the consignment but for the said commercial invoice the complainant could not have taken pains to complete the same from the concerned authorities of Sree Chitra Tirunal Institute of Medical Science & Institution and to present it to Mr. Babu Jacob for verification. It was the same commercial invoice which was ultimately used and presented in Bombay office for the preparation of the airway bill. This bundle of facts is sufficient to show that the cause of action or at least a part of cause of action arose at Trivandrum on 15^th of June, 2000 when Mr. Babu Jacob after verification handed over theproforma of commercial invoice with certain instructions to the complainant. The State Commission has totally erred and misguided itself by ignoring these important aspects, which had great bearing on the question of territorial jurisdiction. In this respect, learned counsel for the complainant has correctly drawn support from the judgments of the Hon’ble Apex Court in the cases of (i) Atyam v. Pechitti [AIR 1966 SC 629]; (ii) Baljit v. S.; (iii) Ramdas Oil Mills v. Union of India [AIR 1977 SC 638]; and (iv)Khushalbhai Mahijibhai Patel v. Mohamadhussain [AIR 1981 SC 977]. In our view, the State Commission was wrong in holding that it had no territorial jurisdiction to entertain the complaint.

18. Learned counsel for the respondents have laid great emphasis on a communication dated 02.08.2000 sent by the complainant to respondent no.5, by which the complainant had thanked respondent no.5 for the assistance afforded by him and expressed regret for impleading him. This communication cannot be taken as to mean that the complainant had impleaded respondent no.5 only with a view to confer jurisdiction on the consumer fora at Trivandrum. The law on the subject is settled. No party to a suit or proceeding can confer or take away the jurisdiction of a court, tribunal or forum, which is vested in it. The letter appears to be nothing but acknowledgment of the service/assistance rendered by respondent no.5 in the process.

19. However, be that as it may, once the State Commission rightly or wrongly came to the conclusion that it had no territorial jurisdiction, it ought to have laid its hands off the complaint and returned it to the complainant for presentation before the appropriate consumer forum/tribunal. In fact, it was incumbent upon the State Commission to have decided the question of territorial jurisdiction at the threshold and only thereafter ventured to dwell on the merits of the case. Strangely, however, we note that the State Commission has not only gone ahead and considered the question of whether the complainant was a ‘consumer’ or a ‘beneficiary’ and a bona fide consumer but has even gone further to decide the matter with regard to the eligibility of any compensation for the alleged deficiency and has dismissed the complaint on merit imposing cost on the complainant. This, in our view, was totally unwarranted and legally impermissible course. We, therefore, have no hesitation in setting aside the order passed by the State Commission.

20. On a perusal of the records and after hearing the learned counsel for the parties at length, we are of the view that after having entertained the request of the complainant to accept the body parts of his deceased son for dispatch to Dr. Zullo in U.S.A. and having sought the complainant’s assistance to pack and repack the consignment with dry ice repeatedly and after opposite party no.3 Ms. AjantaChakraborty, Manager Customer Service having satisfied herself and referred the samples to opposite party no.4 Mr. Pramod Agarwal, Manager Operations, who had himself assured that the complainant can rest assured that the consignment would be uplifted for dispatch, the volte face at the very last moment by Mr. Suraju Dutta, respondent/opposite party no.2, who was the Senior Country Manager on the specious ground of dispatch of such consignment being against Fedex policy definitely amounts to gross-deficiency in service. The utter disappointment to the complainant is quite understandable. The fact that opposite party no.4 being a senior functionary of the Fedex removed the airway bills from the package to eliminate any proof of the consignment having been processed and further that the said consignmentalongwith the MRI film/report not having been returned to the complainant was deplorable and further compounds the negligence and deficiency on part of the opposite parties. We also note with dismay that when the complainant brought the unsavory episode to the notice of Fedex office in the USA, only a letter of regret was issued without any direction for the dispatch of the consignment. The defence, vehemently argued by the learned counsel for respondents/opposite parties no. 1 to 3 is that the consignment could not have been dispatched in contravention of specific legislation dealing with transportation of such goods, which fell in the category of ‘organs and dangerous goods’. This argument appears to be only an afterthought as their own brochure at Exhibit A-5 provide instructions for use of proper packaging with regard to shipment of blood, urine or diagnostic specimens. Besides, after having subjected the complainant with repeated exercise of packing and repacking the material with dry ice, it is too late in the day for them to advance a plea that there were legal impediments in entertaining the consignment. In any case, if in the view of the respondents such dangerous goods could not be shipped, the complainant should have been informed about that position when the complainant approached the respondents on 19^thof June, 2000, which would have saved the complainant of all the trouble he had to take in connection with packing with dry ice etc. The fact that the larger consignment of the deceased’s organs was in fact transshipped by another courier, namely M/s World Courier without any hitch, to the same destination exposes the fallacy of the stand taken by the learned counsel for respondents/opposite parties no. 1 to 3.

21. An attempt has been made by the learned counsel for respondents/opposite parties no. 1 to 3 to pick holes in the airway bill Exhibit A-7 by first stating that it has been manipulated by the complainant. We have examined the Exhibit A-7. Fedex does not disown the airway bill nor does it say that the same is fabricated. They contend that the exhibited airway bill is only a manifest or billing copy and not the consigner copy and that there were no signatures of any authorized person of Fedex. This has been satisfactorily explained by the learned counsel for the complainant that this was provided by the Fedex ‘as it is’ and the filling up of the signature on the airway bill were the original ball point impressions and not the carbon copy impressions. It was the first and topmost leaf of airway bill no. 40087326691. With regard to the objection that it bears no signature, we find that there is an entry with regard to the Fedexemployee number being 25480, which cannot but be held to be the signature specially when the airway bill has been filled up by the employee of the respondents/opposite parties. Its authenticity has not been denied.

22. An attempt has also been made by the learned counsel for respondents/opposite parties no. 1 to 3 that Dr. Zullo in a communication claimed to be dated 21^st of June, 2000 had informed the complainant that he will arrange for a courier to pick up the consignment which the complainant had suppressed as in that eventuality there was no need for the complainant to dispatch the consignment through Fedex. This contention of the learned counsel does not stand substantiated as would be obvious from the series of emails exchanged between the complainant and Dr. Zullo as well as the opposite parties. We further take note of the reply addressed by Ms. Ajanta Chakraborty, respondent/opposite party no.3, to the complainant, which is though dated 28^th of June, 2000, was posted on the 4^th of July, 2000 narrating the sequence of events culminating in their inability to dispatch the consignment and advising the complainant to remove the package from the premises of Blue Dart Express at Adarsh Industrial Estate immediately, failing which, it has been stated, Fedex will have to abandon the package within 24 hours. This letter is Exhibit A-11 of the paper-book. To us, it appears that this letter has been addressed to the complainant to cover up the ill-treatment meted out to the complainant after he had addressed an email on the 25^th of June, 2000 to the Fedex office at Memphis, USA. The sequence of events narrated therein only goes to prove that neither Ms. Ajanta Chakraborty, respondent/opposite party no.3, nor Mr. Pramod Agarwal, respondent/opposite party no.4, had stated that the consignment being dangerous goods could not be transshipped. On the contrary, they have entertained the same and taken advantage of the anxiety of the complainant by asking him to pack and repack the consignment till their satisfaction. This piece of communication, therefore, does not help the respondents/opposite parties in any way.

23. On the basis of the above discussion, we have no hesitation in holding that respondents no. 1 to 4 have committed deficiency of service on several above noted counts by their several acts of omission and commission, which in turn also amounts to adoption of unfair trade practice. This is not expected from a premier courier agency of the world like Fedex. A great deal of argument has been advanced by Mr.Haksar, learned Sr. Advocate appearing on behalf of respondents no. 1 to 3, that the complainant is not entitled to any compensation because he has suffered no injury or loss, which is a condition precedent for claiming the compensation. Our attention has been invited to the fact that the complainant himself has stated in the commercial invoice that the consignment was of no commercial value. In any case, the submission is that it was a trial run containing only part of specimen in the consignment only to experiment if the substantial consignment which was to follow could be safely transmitted to its destination, which in fact was later transshipped through another courier and, therefore, no loss or injury or harm has been caused to the complainant. We have noted this submission only to be rejected because the consignment contained the total crucial CSF (cerebro spinal fluid) and MRI films, which were lost forever. The kind of inconvenience, mental torture and harassment besides expenditure incurred by the complainant at Bombay in running about for five days for arranging the dry ice repeatedly for the packaging purpose are nothing but injury caused to the complainant.

24. Now we come to the aspect relating to the extent of compensation which should be awarded in the present case. The complainant has claimed a compensation of Rs.9.75 Lakhs for the loss and the injury occasioned to him. Having regard to the mental state in which the complainant would have been at the relevant time just after the death of his young 19 year old son and the noble cause of research for the humanity at large, the episode must have been a life-time setback to the complainant. No amount of money can suitably compensate the complainant for the kind of loss and injury suffered by him and it is almost impossible to quantify the same. We, therefore, find it a fit case where we must award a lump sum compensation of Rs.5.00 Lakhs to the complainant, which should adequately meet the ends of justice. The compensation shall be payable by respondents no. 1 to 3 jointly and severally, respondent no.4 having been dropped from the array of parties and no relief having been claimed against respondent no.5.

25. In the result and for the above stated reasons, the appeal is partly allowed. The order of the State Commission is hereby set aside. Consequently, the complaint is allowed and respondents no. 1 to 3 are directed to pay the lump sum compensation of Rs.5.00 Lakhs to the complainant. Besides, we award cost of Rs.50,000/- to the complainant as he was then based in Thiruvananthapuram and had to travel to Delhi on several dates of hearing. The amounts shall be payable within a period of six weeks from the date of this order, failing which it shall carry interest @ 12% per annum from the date of default.

Before parting with the matter, we would like to put on record our deep sense of appreciation for the assistance rendered by Mr. Santosh Paul, learned Amicus Curiae. As a special case, we direct the Registry to disburse a sum of Rs.25,000/- to Mr. Santosh Paul for his services.

Sd/-

( R. C. JAIN, J. )

PRESIDING MEMBER

Sd/-

(S.K. NAIK)

(MEMBER)

Mukesh

Shut banks, hospitals in Noida's residential areas: Supreme Court

2011-12-06T19:43:00.001+05:30

REPORTABLE

             IN THE SUPREME COURT OF INDIA


              CIVIL APPELLATE JURISDICTION

               CIVIL APPEAL NO.6962 of 2005


R.K. Mittal & Ors.                               ... Appellants

                             Versus

State of U.P. & Ors.                          ... Respondents

                              WITH

               CIVIL APPEAL NO.6963 OF 2005

                              AND

        CIVL APPEAL NOS.10535 &10536 OF 2011
(Arising out of SLP (C) No.24029 of 2005 and 9150 of 2007)



                        JUDGMENT



Swatanter Kumar, J.

1.      Leave granted in both the Special Leave Petitions.

2.      The ambit and scope of power of New Okhla Industrial

Development Authority (for short, the `Development Authority')

to permit users, other than residential, in the sectors

specifically earmarked for `residential use' in the Master Plan of

the New Okhla Industrial Development Area (for short, the
                                                                      2

`Development Area') is the basic question that falls for

consideration of this Court in this bunch of appeals. These

appeals demonstrate some of the instances of widespread

violation of statutory provisions and somewhat arbitrary

exercise of power by the Development Authority.          Lack of

adoption of uniform application of law has resulted in large

number of cases of violation of law all over the State of Uttar

Pradesh going unnoticed.        The time has come for the

Development Authorities to change their style of functioning

and act vigilantly and uniformly, that too, strictly in accordance

with law, keeping in view the larger public interest.

Introductory Facts

3.      This judgment shall dispose of the above referred four

civil appeals and the applications for intervention therein. Out

of the four appeals, in Civil Appeal No. 6962 of 2005and Civil

Appeal arising out of SLP(C) No. 24029 of 2005, the lease deed

in favour of the parties had been cancelled by the Development

Authority while in other two appeals, Civil Appeal No. 6963 of

2005 and Civil Appeal arising out of SLP (C) No.9150 of 2007,

after giving notice, it had passed an order requiring the parties

concerned to stop the misuse within the stipulated time, failing

which appropriate action in accordance with law, including
                                                                           3

cancellation of the lease deed, would be taken. The facts and

circumstances in all the appeals and even the intervention

applications are somewhat similar. In any case, the common

question of law arising in all the appeals and applications is

whether the residential premises can be, wholly or partly, used

by the original allottee or even its transferee, for any purpose

other than residential? We do not consider it necessary to refer

to the facts of each case in greater detail, except the facts of the

lead case, i.e., Civil Appeal No.6962 of 2005, R.K. Mittal v. State

of U.P. However, wherever reference to certain additional facts

is called for, we would notice the same in the other cases as

well.

4.      The Development Authority executed a lease deed

dated 2nd April, 1988 in favour of Shri Rajendra Kumar

Srivastava in relation to Plot No.778, Block A, Sector XIV, New

Okhla   Industrial   Development     Area,    District    Ghaziabad,

admeasuring     about   274.37    square     meters      as   per   the

boundaries described in the deed.       Upon the plot, the lessee

raised some construction which remained unfinished.                 The

lessee thereupon actually transferred the plot in question along

with unfinished superstructure vide Transfer Deed dated 20 th

August, 1999 in favour Shri R.K. Mittal, Shri Ashok Garg and
                                                                    4

Shri Sanjeev Gupta, the appellants herein. The original lease

deed contained specific stipulations in regard to the lessee

being obliged to obey all the Rules, Regulations and Directions

made by the lessor. The lessee was to raise construction as per

approved plans and to use the premises only for the purpose

for which it was committed in terms of the lease and as per law.

These clauses of the lease deed read as under :

      "(d)    That the lessee will obey and submit to all
      Directions issued or Regulations made by the
      Lessor now existing or hereafter to exist so for as
      the same are incidental to the possession of
      immovable property or so far as they effect the
      health, safety or convenience of the other
      inhabitants of the place.
      (e)     That the Lessee will at his own cost erect
      on the demised premises in accordance with the
      plans, elevation and design and in a position to be
      approved by the lessor or any officer authorised by
      the lessor in that behalf in writing and in a
      substantial and workman like manner, a
      residential building only with all necessary,
      sewers, drains and other appurtenances according
      to the Directions issued or Regulations made in
      respect of buildings, drains, latrines and
      connection with sewer.
         XXX             XXX                      XXX
      (h)     That the lessee shall use the demised
      premises only for the purpose of constructing a
      building for residential purpose of customary
      home occupation or residential cum medical and
      surgical clinic or dispensary or professional office
      and for no other purpose without the consent of
      the Lessor and subject to such terms & conditions
      as Lessor may impose and will not do or suffer to
                                                                  5

      be done on demised premises or any part thereof,
      any act or thing which may be or grow to be a
      nuisance, damage, annoyance, or inconvenience to
      the Lessor or the owners, occupiers of other
      premises in the neighbourhood."


5.     The Transfer Deed executed by the original lessee in

favour of the appellants also contained similar conditions and

in addition thereto provided that the conditions of the lease

deed shall be binding upon the appellants.       The relevant

clauses of the Transfer Deed read as under :

      "10. That the Transferees shall complete the
           construction of plot and shall obtain
           Occupancy Certificate of Plot from Building
           Cell, Noida within balance construction
           period as per terms of lease deed of plot
           which is upto 23.2.2000. Extension of time
           for construction of plot and for obtaining
           occupancy certificate will be granted as per
           terms of lease deed of plot and as per then
           prevailing extension policy of NOIDA.
      11. That the Transferee shall be bound by the
           terms and conditions of lease deed of plot
           executed on 2.4.88, subject to the
           amendments indicated in the Transfer
           Memorandum.
                  XXX        XXX            XXX
      15. That the Transferees shall put the property in
           the use exclusively for residential purpose
           and shall not use it for any purpose other
           than residential.
                    XXX      XXX            XXX
      17. That the terms and conditions amended by
           the NOIDA AUTHORITY from time to time
           shall be binding on the Transferees
           aforesaid."
                                                                           6

6.      After   completing    the    construction,    the   appellants

appear to have rented out the premises to Andhra Bank and

Akariti Infotech. As such, both the bank and the company had

been carrying on their business from the premises in question.

The Development Authority, on 18th January, 2001 and 22nd

February, 2001 issued notices to both Andhra Bank and Akariti

Infotech to stop commercial use in the said premises within 30

days, failing which action would be taken as per the lease deed.

In   these   notices,   it   was    also   stated    that   there   was

encroachment in violation of the prescribed building byelaws

and the use of residential plot for commercial purpose was in

violation of the provisions of the lease deed of the plot.

Invoking the provisions of the U.P. Industrial Area Development

Act, 1976 (for short, `the Act'),the Development Authority gave

them opportunity to file objections.          To these notices, the

appellants not only filed objections but also appeared before the

Development Authority and contended that the Development

Authority, in furtherance to the proposal to permit running of

consulting clinics, banks and guest houses in the residential

areas, had permitted such use on the main roads, on payment

of 30 per cent of the existing residential rate on per square

meter area of plot per annum and had invited suggestions from
                                                                    7

the general public. Reliance was also placed on certain press

reports. Noticing these facts and obviously taking the view that

there was no legal sanctity to the alleged change of user, the

Development Authority rejected the objections and required the

misuse to be stopped and the violation of the building byelaws

to be removed within four months.      A part of the said order

reads as follows :

      "The terms and conditions of lease deed and
      transfer deed of plot clearly states that allotted
      plot shall be used exclusively for residential
      purposes. The petitioner changed the land use of
      plot without intimating to the Authority and did
      not bother to seek any clarification or obtain
      permission from the Authority for such change. It
      is a well known fact that this Authority does not
      permit commercial activity in the residential plots.
      This is a classic case of violation of law by the
      most educated enlightened class of the Country.
      This class in Noida has tried to change not only
      the character of Noida but have for self interest
      destroyed the peace of the Neighbours. It is also
      possible that the then Bank staff also colluded in
      the matter and did not bother to see the
      conditions contained in the lease deed and did not
      even try to approach the Authority for clarification.
               In view of the above stated facts and after
      listening to the petitioner, it is ordered that
      representation pleadings of the petitioner Allottee
      of Residential Plot No.A-778, Sector-19 stand
      rejected and the petitioner is also directed to
      ensure vacation of bank branch and infotec office
      from the residential premises and restore the
      building according to prescribed building bye-law
      within 4 months (Four Months) from the date of
      service of this order.
      7.       As the Petitioner has evaded compliance of
                                                                       8

      terms of lease deed for nearly five months on one
      pretext or the other, he is also informed that in
      case of failure to restore the land use of plot within
      stipulated period, the Authority shall be free to
      take further action under law WITHOUT
      FURTHER NOTICE.
               Orders regarding penalty for misuse of
      premises will be passed separately."


7.      Aggrieved from the aforesaid order, the appellants filed

a writ petition before the High Court of Judicature at

Allahabad. The writ petition preferred by the appellants came

to be dismissed vide order dated 19th January, 2002. It was

noticed by the High Court and rightly so, that the Development

Authority had invited some suggestions for change of user of

residential plots to commercial or mixed user on certain terms

and conditions, by bringing certain changes/amendments in its

byelaws and policy decisions. This remained at an interim stage

and no final decision was taken by any competent authority in

accordance with the provisions of the Act. The Development

Authority had not undertaken any exercise for the said

amendment in accordance with law and had not even sought

the approval of the State Government, as required under the

law, for change of user or amendment of the byelaws, Master

Plan, etc. In fact, the provisions directing forfeiture of property

under Section 14 of the Act and imposition of penalty for
                                                                      9

misuse in terms of Section 15 of the Act were in force. Relying

upon judgment of this Court in Munshi Ram v. Union of

India[(2000) 7 SCC 22], the High Court not only dismissed the

writ petition but also directed the Development Authority to

take immediate and strong action against those who have

started using residential plots, wholly or partially, for other

non-residential uses. The appellants, feeling dissatisfied by the

judgment of the High Court, have preferred the present appeal

before this Court. In order to complete the factual matrix of the

case, we may notice that the appellants have placed on record

Annexure P-7, a copy of the public notice dated 30 th March,

2000 indicating that there was proposal to grant permission for

mixed use consulting clinics, bank branch and guest houses on

18 A.M. wide roads on the conditions stated therein.       These

conditions also included the provision that fees payable on

grant of permission for mixed use of land would be 30 per cent

of existing residential rate, on per square meter area of plot, on

yearly basis. To this proposal, public opinion was invited and it

was stated that objections/suggestions in this regard may be

filed in writing in the office of the Additional Chief Executive

Officer of the Development Authority. Even hearing was to be

granted.   In the affidavit filed on behalf of the respondent-
                                                                        10

Development Authority on 8th October, 2002, it has been

specifically   averred   that   21   banks   were   functioning   in

residential sector in the Development Area under private

arrangements with the lessees of the concerned plots and these

banks have not obtained any permission or authorization from

the Development Authority. Two banks, namely, Oriental Bank

of Commerce, Sector 27, Noida and Vijaya Bank, Sector 19,

Noida had obtained such permission for a period of five years

and three years respectively since 1995 and 1994.            These

banks had not obtained any permission or renewal thereafter.

Show cause notices had been issued to all the banks to wind

up their activities from these areas. In para 10 of the affidavit,

it had been stated that the Development Authority `has taken a

firm decision to evict all the banks from the residential sectors

and notices have been issued to all these 21 banks without

exception'.    A definite averment has also been made in this

affidavit that the functioning of the banks in the residential

sectors caused inconvenience and disturbance to the public at

large and the Development Authority has earmarked specific

areas for making land available to the banks to carry on their

commercial activities. They have allotted land to several banks

in commercial-cum-institutional and commercial portion of
                                                                    11

industrial and institutional sectors. Option was given to the 21

banks to function in these areas and that if they would apply

for the same, the Development Authority shall consider their

cases sympathetically. The Development Authority, specifically

and with emphasis, reiterated that banking activities cannot be

allowed in residential plots of the residential sector. Another

affidavit was filed on behalf of the Development Authority in

March 2011, wherein a clear stand was taken that as per the

Master Plan, Sector 19 of the Development Area is a residential

sector, where the land use is residential alone, neither

commercial nor mixed.     List of 43 properties in Sector 19,

Noida was filed as Annexure-1, where non-residential activities,

including banking and medical clinics, were being carried on

while Annexure-2 related to other 11 properties being used for

other non-residential purposes in Sector 19 itself.   There are

institutional plots in Sector 19, which had been allotted by the

Development Authority for running of nursing homes or

commercial activity.   An office order was issued on or about

14th May, 2009, in relation to Guest Houses, by the Chief

Executive Officer of the Development Authority. However, the

same is stated to have been withdrawn immediately thereafter.

In other words, according to the respondents, there is no order
                                                                                12

or sanction operative and binding as of now, which permits any

user other than residential in the residential sector.

8.           Having stated the facts, we may now examine the

relevant provisions of law.             The State of Uttar Pradesh had

enacted the law to provide for creation of an Authority for

development of certain areas of the State into industrial and

urban        townships     and    for    matters     connected    therewith.

`Authority' had been defined under Section 2(b) of the Act to

mean the Authority constituted under Section 3 of the Act.

Section 3 required the State Government to constitute, for the

purposes       of   the    Act,    an    authority    for   any   industrial

Development Area in terms of that Section. Section 6 of the Act

related to functions of the Authority while Section 7 mentions

the powers of the Authority in respect of transfer of land. In

terms of these statutory provisions, the object of the Authority

was     to    secure      the    planned    development      of   industrial

Development Area and the Authority was required to perform

certain functions in terms of Section 6(2), which reads as

under:

        "2) Without prejudice to the generality of the
        objects of the Authority, the Authority shall
        perform the following functions--

        (a) to acquire land in the industrial development
              area, by agreement or through proceedings
                                                                     13

            under the Land Acquisition Act, 1894 for the
            purposes, of this Act;

      (b)   to prepare a plan for the development of the
            industrial development area;

      (c)   to demarcate and develop sites for industrial,
            commercial     and     residential  purposes
            according to the plan;

      (d)   to provide infra-structure for industrial,
            commercial and residential purposes;

      (e)     to provide amenities;

      (f)   to allocate and transfer either by way of sale
            or lease or otherwise plots of land for
            industrial,   commercial      or   residential
            purposes;

      (g)   to regulate the erection of buildings and
            setting up of industries; and

      (h)   to lay down the purpose for which a
            particular site or plot of land shall be used,
            namely for industrial or commercial or
            residential purpose or any other specified
            purpose in such area."



9.      In terms of Section 8 of the Act, for the purposes of

proper planning and development of the industrial development

area, the Authority had the power to issue directions, as it

consider necessary, regarding the factors stated therein,

including restriction of use on any site for a purpose other than

for which it has been allocated.      Every transferee in whose

favour the land was transferred was bound to comply with the

directions issued as expeditiously as possible and was obliged
                                                                      14

to erect the building or to take such necessary steps to comply

with the directions in accordance with Section 8(2) of the Act.

No person could raise construction, erect or occupy the

building in contravention of the building regulations.        The

Authority has been vested with the powers to make regulations

with the previous approval of the State Government in terms of

Section 19 of the Act, while the State Government may, by

notification, frame Rules for the purposes of the Act as

contemplated under Section 18 of the Act.


10.     Section 2(d) of the Act defines `Industrial Development

Area' to be an area declared as such by the State Government

by notification. Section 6(2)(b) requires the Authority to prepare

a plan for the development of an industrial development area

while Section 6(2)(h) enjoins the Authority to lay down the

purpose for which a particular site or plot of land shall be used,

namely for industrial or commercial or residential or any other

specified purpose. The power to transfer lands is also given to

the Authority. In terms of Section 19 read with Section 6 of the

Act, the New Okhla Industrial Development Area was notified

and the Authority framed the regulations for the purposes of

proper planning and development of that area.         These were
                                                                              15

called the New Okhla Industrial Development Area (Preparation

and Finalization of Plan) Regulations, 1991 [hereafter referred

to as `the Regulations']. Regulation 2 of the Regulations defines

various kinds of uses including `Land Use'. `Land Use' under

Regulation 2(g) means the use of any land or part thereof in the

industrial   development       area   for     industrial,     residential,

institutional,   commercial,    public      water   bodies,    organized

recreational open spaces, public and semi-public buildings,

agriculture and other like purposes. In contradistinction to the

`Commercial Use', `Industrial Use' `Institutional Use' and `Public

Use', the `Residential Use' has been defined under Regulation

2(1)(k) which reads as under: -

       "(k) `Residential Use' means the use of any land or
       building or part thereof for human habitation and
       such other uses incidental to residential uses."



11.     The expression `Sector' has also been defined in

Regulation 2(l) to mean any one of the divisions in which the

industrial development area or part thereof may be divided, for

the purposes of development under the Act.                  Regulation 3

enjoins upon the Authority a duty to prepare a Draft Plan for

industrial development areas in terms of Regulation 3(1) to

3(6). Under Regulation 4, the Plan has to include sector plans
                                                                           16

into which such industrial area has been divided.            It should

also depict the residential use by allocating the area of land for

housing, for different and defined densities and plotted

development for different categories of households in terms of

Regulation 4(1)(b)(ii).        Similarly, it should also state the

commercial use, public use, agricultural use and other

purposes as the Authority may deem fit.           The procedure for

finalization of the Draft Plan is also contemplated under

Chapter III, Regulations 5 to 11 of the Regulations.                The

Regulations postulate that the Authority, after preparation of

the Draft Plan, shall, by public notice, invite objections and

suggestions to be filed before the date notified but not earlier

than 30 days from the date of publication. A proper enquiry

and hearing is contemplated whereafter the Draft Plan is to be

finalized   in   terms    of    Regulation   9   and   the   date    of

commencement of the Plan is to be specified in terms of

Regulation 10.     The Authority has the power to amend the

Plans but this power to amend is restricted in its scope.

Regulation 11 empowers the Authority to do so, but no such

amendment can be made which would result in important

alteration in the character of the Plan and which do not relate

to the extent of land use or standards of population density.
                                                                  17

Even thereafter, it is required to follow the prescribed

procedure. Regulation 11 reads as under: -

      "11.   Amendment of the Plan. -         (1) The
      Authority may make such amendments in the
      Plan which do not effect important alteration in
      the character of the Plan and which do not relate
      to the extent of land use or standards of
      population density.

      (2) Before making any amendment in the Plan
      under sub-section (1), the Authority shall publish
      a notice in at least one newspaper having
      circulation in the development are inviting
      objections and suggestions from any affected
      person with regard to the proposed amendment
      before such date as may be specified in the notice
      and shall consider all objections that may be
      received.

      (3)      Every amendment made under this
      Regulation shall be published in any of the
      manner specified in Regulation 5 and the
      amendment shall come into operation either on
      the date of the first publication or on such other
      date as the Authority may fix.

      (4)     The Authority shall not make during the
      specified period in which the Plan is to remain
      effective, such amendment(s) in the Plan which
      affects important alteration in the character of the
      Plan and which relates to the extent of the land
      sue or standards of population density."




12.    It is not in dispute before us that the Development

Authority had finalized the Master Plan in accordance with the

provisions of the Act and the Regulations, which was titled as
                                                                                18

`Master Plan, NOIDA, 2001'.             This Plan is in force and is

binding on all concerned.


13.     Besides the above provisions of the Act and the

Regulations framed thereunder by the Development Authority,

the    Development         Authority      has   also    framed     building

regulations and directions, which are termed as `The New

Okhla Industrial Development Area Building Regulations and

Directions, 2006 (for short `Regulations 2006)'.               These have

been    primarily        framed    as   byelaws   in    relation    to   the

constructions, restrictions thereof and type of user.                Under

Regulation 3.12 (h), a residential building is explained as

under: -


       "(h) `Residential building' refers to any building in
       which sleeping accommodation is provided for
       normal residential purpose with or without
       cooking or dining or both facilities and includes
       one or two or multi family dwelling, lodging or
       rooming houses, dormitories, apartment houses,
       flats and hostels."


14.        In distinction to the `residential building', an `industrial

building' is the building or part thereof, in which product or

materials     of   all    counts    and    properties    are     fabricated,

assembled, manufactured etc. An `institutional building' refers

to a building or a part of a building which is used for purposes
                                                                    19

such as medical or other treatment or care of persons suffering

from physical or mental illness, disease or infirmity and

includes hospital, institutions and sanitaria etc. while a

`business building' refers to a building or part of a building

which is used for transaction of business like           Banks,

Commercial office, etc. In other words, each building proposed

to be used for a definite purpose has to meet different

standards, FAR (Floor Area Ratio) and byelaws.            These

purposes are incapable of being confused with each other or

even used interchangeably.      Respective purposes have been

defined in unambiguous terms in the byelaws, having distinct

implications.

15.     It does not appear to be the scheme of the provisions of

the Act, the Regulations and the bye laws, including the

Regulations, 2006 that each of these purposes or buildings can

be understood or used interchangeably.        In fact, each has

distinct features and it does not lie in the jurisdiction of the

Development Authority to permit such conversion in users,

beyond the scope of the Master Plan, the byelaws and the

statutory provisions.   Regulation 3.22 of the Regulations, 2006

explain the word `conversion' to mean the change of an

occupancy or change in building structure or part thereof,
                                                                     20

resulting into change of space or use requiring additional

occupancy certificate.

16.     The change in user of the building is, therefore,

violative not only of the Regulations, byelaws and the

provisions of the Act, but is also contrary to the law governing

erection of the building. The legislative purpose that emerges

from the scheme of the Act and other relevant provisions is to

keep a residential building separate from commercial and other

buildings. This would necessarily imply that the jurisdiction of

the Development Authority to permit different user in violation

of this statute and the Regulations is not contemplated in law.



Contentions

17.     On behalf of the appellants/lessees/users, in the cases

before us, it has been contended that the activity of banking or

running of clinics is being carried on by them for a long period.

Thus, this has been impliedly permitted by the Development

Authority.   It is also their contention that a public notice had

been issued by the Development Authority, permitting mixed

user and, thus, the appellants/lessees/users are bonafidely

carrying on activities of running banks/nursing homes/other

commercial activities in the residential sectors.   Reliance has
                                                                        21

been placed upon Public Notice dated 30th March, 2000 and

also that vide notification dated 4th December, 2010 plots

allotted    in   the   developed   sector   to   farmers   under   a

Rehabilitation Scheme had permitted establishment of guest

houses, restaurants, banks, professional offices, day care

centres etc. vide notification dated 4th December, 2010.

18.        It is also the contention of the appellants that neither

the byelaws, rules and regulations nor the layout plan of the

Development Authority, in any manner, impede or place any

kind of bar on carrying out banking activity in the residential

sectors.

19.        While relying upon the judgments of this Court in the

case of Hari Rao Vs. N. Govindachari & Ors.          [(2005) 7 SCC

643], and Dev Brat Sharma Vs. Jagjit Mehta [(1990) Supp. SCC

724], it was contended that such use does not amount to

change of user as it is permissible to carry out professional or

clinical activity in the residential houses and, therefore, the

notice of termination issued and/or cancellation of the lease

deeds, being arbitrary and without application of mind, was

vitiated in law.

20.        Lastly, it was contended that as there is inadequacy of

space for banks, clinics and other commercial offices in the
                                                                      22

Development Area, the present user is need-based and is in the

larger public interest. According to the appellants, the number

of plots for the banks is not sufficient to meet the needs of the

public in the residential sectors and no alternative spaces are

available for relocation of the banks. The lease rent and other

charges payable to the Development Authority for both these

categories have a considerable difference.     Thus, it has the

impact of creating heavy liability and inconvenience to the

appellants, particularly if they are forced to shift to commercial

or institutional sectors/pockets.

21.     On the contra, the contention on behalf of the

Development Authority is that banking activity is impermissible

in the residential sectors.   It causes inconvenience to public

and disturbance to the residents.      Referring to the Meeting

dated 17th December, 2002 of the Committee of the Officers,

the stand taken is that banking activity cannot be allowed in

the residential portions of the residential sectors and to this

effect, a notice was also published.

22.     Further, the contention is that the power of the

Development Authority to demarcate and develop sites, to lay

down the purpose for which a particular site or plot of land

shall be used, is controlled by the specific provisions of the Act
                                                                      23

and the Regulations framed thereunder. Sections 6(2)(b) and 7

of the Act are stated to be the source of power in this regard. It

is also the contention that in the Master Plan, 2001,

subsequent Plans and the Zoning Regulations, all residential

sectors are marked in yellow colour.          Sector 19 of the

Development Area, where the subject matter of this case is

located, is a residential sector. Thus, it can only be used for

the residential purpose.

23.     The     learned     counsel     appearing      for    the

lessee/transferees had relied upon the judgments of this Court

in the cases of Hari Rao (supra) and Dev Brat Sharma (supra).

Both these judgments have no application to the present case,

on facts or in law.    These were cases of eviction under the

respective Rent Restriction Acts. In one case, this Court held

that putting up of a clinic in a part of the house by a doctor

was not change of user, while in the other, where the premises

had been rented out for a commercial purpose of selling of

leather goods, change of the industry to a garment and cloth

business, was not considered as change of user.           We are

unable to understand as to how the lessees in the present case

can derive any benefit from these judgments. In the present

case, we have a clear law in force and that law is neither
                                                                        24

similar in purpose nor linguistically identical to the Rent

Restriction Acts of the respective States. The change of user, in

the case in hand, has to be seen in light of the Master Plan, the

Regulations and the provisions of the Act. What may not be

change of user under the Rent Restriction Act, as the rights of

the parties therein are governed by the contract between the

parties and the grounds of eviction taken by them, may be a

change of user within the scope of development Plan and the

Regulations.

24.     In light of the contentions raised, first of all, it will be

appropriate for this Court to examine the scheme of the Act

and the Regulations in question. Under the provisions of the

Act, the Development Authority is obliged to notify an

industrial   development    area.     The   very   object   of   the

Development Authority is to secure the planned development of

the industrial development area and the first and foremost step

in this direction is to prepare a Plan for development of the

industrial development area.        This development Plan is to

demarcate and develop sites for industrial, commercial and

residential purposes.      The land which falls within the

jurisdiction of the Development Authority and is part of the

development Plan can be transferred in terms of Section 7 of
                                                                       25

the Act by auction, allotment or otherwise, on such terms and

conditions as the Development Authority may state and subject

to any rules that may be made thereunder.             No person can

erect or occupy any building in an industrial development area

in contravention to any building Regulation.          Under Section

6(2) of the Act, the Development Authority is empowered to

make Regulations to regulate the erection of the buildings and

Section   6(2)(b)   specifically   authorizes   the    Development

Authority to make regulation providing for the layout Plan of

the building, whether industrial, commercial or residential.

The transfer of the land has to be as per the terms and

conditions contained in the lease deed executed by the

Development Authority in favour of the transferee. But this all

has to be subject to the provisions of the Act and the

Regulations framed thereunder. It has to be clearly understood

that the lease deed has to be in consonance with law and

cannot be in conflict with the provisions of the law. Section 14

of the Act empowers the Development Authority to resume the

site or building so transferred and further forfeit whole or any

part of the money paid in respect thereof, if the lessee commits

breach of the terms and conditions of the lease. No provision of

the Act has been brought to our notice which provides for the
                                                                       26

manner and method to be adopted by the Development

Authority    for   preparation   of   the   development   Plan   in

accordance with the provisions of the Act. This is where the

Regulations come into play. Under Regulations 3 and 4 of the

Regulations, the Draft Plan has to be prepared by the

Development Authority for development of an industrial area,

which will include a sector plan. The meaning of `residential

use' under the Regulations is a restricted one and is incapable

of being given a wide connotation. It means the use of any land

or building or part thereof for human habitation and such

other uses incidental to the residential use. The very language

of Regulation 2(1)(k) of the Regulations clearly depicts the

intent of the framers that the expression `residential use' is not

to be understood in its wider sense, in fact, it would require

strict construction because all other uses have been separately

defined.    The different kinds of uses, therefore, have to be

understood only in terms of the explanation or meaning given

to them under the Regulations.        If unduly wide meaning is

given to the expression `residential use', then it is bound to

cause overlap between the other uses.            It would cause

unnecessary confusion. Thus, each use has to be understood

as per its plain language and there is no need for the
                                                                        27

Development Authority or, for that matter, even for the courts,

to expand the meaning given to such expressions.                 The

expression `such other use incidental to residential use' in

Regulation 2(1)(k) has to take its colour from the use of the

building for human habitation. In other words, the latter part

of the Regulation has to be read ejusdem generis to the earlier

part of that Regulation.

25.     The   development      Plan   has   to   be   prepared    in

accordance with the provisions of the Act and the Regulations

framed thereunder.         As already noticed, the Development

Authority has to prepare the Draft Plan, give public notice

thereof, invite objections and thereupon conduct an inquiry

and hearing as contemplated under the law, before preparing a

final development Plan.       This final development Plan is a

statutory requirement which has to be prepared as ordained

under the provisions of Section 6(2)(b) of the Act read with

Regulations 5 to 11 of the Regulations.     This Plan necessarily

provides for a particular use or purpose of any area/site,

namely industrial, commercial institutional or residential.      The

notified development Plan has a legal sanction and provisions

contained therein are mandatory in nature.               They are

incapable of being altered or varied without following the due
                                                                    28

process prescribed in law.       Reference can be made to the

judgment of this Court in the case of NOIDA Entrepreneurs

Association v. NOIDA & Ors. [(2011) 6 SCC 527]. Further, this

Court, in the case of NDMC & Ors. v. Tanvi Trading and Credit

Private Limited and Ors. [(2008) 8 SCC 765], not only took the

view that even the interim guidelines issued in relation to

Luytens' Building Zone till finalization of the Master Plan for

Delhi would have statutory force and be treated mandatory,

but also that such guidelines, so far as consistent with the

Master Plan, would continue to be binding even after coming

into force of the Master Plan.

26.     It has to be noticed at this stage that the development

Plan prepared in accordance with the Regulations take the

statutory colour in terms of Section 6(2)(b) of the Act and,

therefore, its alteration by an executive order would be

impermissible.    Even when a Master Plan is to be amended,

the entire prescribed procedure must be followed. The power

to amend should be exercised only in consonance with the

settled norms without going beyond the original power of the

Development Authority to make such Plan in accordance with

the provisions of the Act.   The power to amend cannot be used

to frustrate the provisions of the statute.   Regulations, being
                                                                       29

subordinate legislation must fall in line with the principal

provisions of the Act and in no way should be detrimental to

the provisions and the legislative scheme of the Act.

27.     In the case of M.C. Mehta v. Union of India & Ors.

[(2004) 6 SCC 588] dealing with the question of unauthorized

industrial activity in residential area in Delhi, the plea raised

for in situ regularization of areas with 70 per cent industrial use

was not accepted by this Court, holding that regularization

would have adverse impact on the law abiders. This Court also

held that the land cannot be permitted to be used contrary to

the stipulated user except by amendment of Master Plan, after

due consideration of the provisions of the Act and the Rules.

Inaction by the Government authorities means permitting the

unauthorized use, contrary to law.

28.     The authorities while reconsidering such matters are

expected to act reasonably and cautiously.        They deal with

larger public interest and, therefore, have a responsibility to act

with greater degree of sensitivity and proper application of

mind.   If the Development Authority aids the violation of the

statutory provisions, it will be a perversity in the discharge of

statutory obligations on the part of the Development Authority.

The public interest, as codified in the statutory regulations and
                                                                           30

the provisions of the Act, should control the conduct of the

Development Authority and its decision making process, rather

than popular public demand guiding the exercise of its

discretion, that too, in a somewhat arbitrary manner. To

illustrate the dimensions of exercise of such powers, we may

refer to the judgment of this Court in the case of Bangalore

Medical Trust v. B.S. Mudappa & Ors. [(1991) 4 SCC 54],

wherein this Court was concerned with the provisions of the

Bangalore Development Authority Act, 1976 with particular

reference to Sections 33, 38 and 38(A) of that Act.              A site

intended for a public park was sought to be converted into a

hospital/nursing home, under the garb of the latter being a

`civic   amenity'.   This   Court   formed   the   view   that    such

conversion of an open space reserved under the scheme for a

public park into a civic amenity site by constructing hospital

and allotment of the site to persons or body of persons, was

opposed to the objects of the Act and would be ultra vires the

same. This Court held as under:-


          "46. .......No one howsoever high can arrogate to
          himself or assume without any authorisation
          express or implied in law a discretion to ignore
          the rules and deviate from rationality by
          adopting a strained or distorted interpretation
          as it renders the action ultra vires and bad in
                                                                    31

        law. Where the law requires an authority to act
        or decide, `if it appears to it necessary' or if he is
        `of opinion that a particular act should be done'
        then it is implicit that it should be done
        objectively, fairly and reasonably. Decisions
        affecting public interest or the necessity of
        doing it in the light of guidance provided by the
        Act and rules may not require intimation to
        person affected yet the exercise of discretion is
        vitiated if the action is bereft of rationality,
        lacks objective and purposive approach. The
        action or decision must not only be reached
        reasonably and intelligibly but it must be
        related to the purpose for which power is
        exercised. The purpose for which the Act was
        enacted is spelt out from the Preamble itself
        which provides for establishment of the
        Authority for development of the city of
        Bangalore and areas adjacent thereto. To carry
        out this purpose the development scheme
        framed by the Improvement Trust was adopted
        by the Development Authority. Any alteration in
        this scheme could have been made as provided
        in sub-section (4) of Section 19 only if it
        resulted in improvement in any part of the
        scheme. As stated earlier a private nursing
        home could neither be considered to be an
        amenity      nor     it  could     be    considered
        improvement over necessity like a public park.
        The exercise of power, therefore, was contrary
        to the purpose for which it is conferred under
        the statute."



29.    The above decision of the Court was given in light of the

provisions of Section 19(4) of that Act which empowered the

Authority to alter the scheme, where it appeared to the

Authority that an improvement could be made in the scheme.
                                                                     32

In other words, the power given to the Authority has to be

construed in strict terms and it cannot be exercised in a

manner which will run contrary to the scheme of the Act and

which would defeat the very object of the Act and the

Regulations.

30.      The jurisdiction of the Development Authority has to be

seen on the touchstone of proper exercise of power within its

legal limitations while giving full effect to the statutory

provisions.    This Court in the case of S.N. Chandrashekar &

Anr. v. State of Karnataka & Ors. [(2006) 3 SCC 208], referred

with approval to judgments of the High Courts, applying the

rule of strict construction to the terminology used and while

interpreting the words `commerce' and `commercial' held that

intra category changes could be permitted only in accordance

with law and Section 14-A of that Act.      Even if the change of

user is consented to by the residents of the area, it would be no

ground to permit such a change in violation of the Regulations.

This Court stated the law as follows:-

      "27. The Planning Authority has no power to permit
      change in the land use from the Outline
      Development Plan and the Regulations. Sub-section
      (1) of Section 14, as it then existed, categorically
      stated, that every change in the land use, inter alia,
      must conform to the Outline Development Plan and
      the Regulations which would indisputably mean
                                                                      33

      that it must conform to the Zoning Regulations.

      28. The provisions of the Act are to be read with the
      Regulations, and so read, the construction of
      Sections 14 and 15 will lead to only one conclusion,
      namely, such changes in the land use must be
      within the Outline Development Plan and the
      Zoning Regulations. If running of a hotel or a
      restaurant was not permissible both under clauses
      (a) and (b) of the Zoning Regulations in a residential
      area, such change in the land use could not have
      been permitted under Section 14 read with Section
      15 of the Act. It is precisely for that reason, Section
      14-A was introduced."



31.       Even in the case of ITC Ltd. v. State of Uttar Pradesh &

Ors. [(2011) 7 SCC 493], this Court declined to accept the

contention that where the State Government had treated the

hotels as an `industry' even in such cases, the same could not

be treated as `industry' under the Act because the byelaws

continued to treat the hotels to be a commercial activity and

that had alone covered such industry.         This Court held as

under:-

          "38. The learned counsel for the respondents
          submitted that the lease was terminated by the
          State Government, in exercise of revisional
          jurisdiction under Section 41 of the U.P. Urban
          Planning and Development Act, 1973 read with
          Section 12 of the Act on the ground that there
          were irregularities and violations of regulations
          and policies of Noida Authority in allotting the
          hotel plots to the appellants. It is submitted that
          the State Government has such power to cancel
                                                                        34

         the allotment and as a consequence the lease."


32.      Reference can also be made to the judgment of this

Court in Dr. G.N. Khajuria & Ors. v. Delhi Development Authority

& Ors. [(1995) 5 SCC 762]. In that case, the Plan had provided

for a public park and the Delhi Development Authority had

taken the decision to establish a nursery school for the benefit

of the children of the colony.        Rejecting the contention, this

Court observed that within the framework of law and the

provisions made in the Master Plan, the authorities could only

establish a public park and nothing else, as such conversion

would amount to misuse of power.

33.      All the above judgments clearly show that it is not

merely   at   the   discretion   of   the   Development   Authority

concerned to designate user of a site and then alter the same

without following due process of law.         Even where such an

exercise is required to be undertaken by the Development

Authority, there also it is expected of the Development

Authority to act for the betterment of the public and strictly in

accordance with the Plans and the statutory provisions.           It

cannot take recourse to its powers and use its discretion

contrary to such provisions and that too, to frustrate the very
                                                                     35

object of the Act. Exercise of power ought not to be destructive

of the provisions of the Act and the Plans, having the force of

law.   We would hasten to add that even where the requisite

prescribed procedure is followed, still the discretion should be

exercised sparingly for achieving the object of the statute and

not to completely vary or destruct the purpose for which the

sector has been earmarked.

34.     A decision which is sought to be taken by the

Development Authority in the garb of a policy decision matter,

if not in conformity to the Master Plan, the Regulations and

provisions of the Act in force, would be an action extra jus. The

Development Authority is to act in adherence to the provisions

of the law regulating such user or construction.     The laconic

result of a collective reading of the afore-referred statutory

provisions is that the Development Authority or its officers,

have no power to vary the user and spaces prescribed in the

Master Plan, except by amending the relevant laws and that

too, for a proper object and purpose. Any decision, as a policy

matter or otherwise, for any extent of public convenience, shall

be vitiated, if it is not supported by the authority. The Courts

would examine what is the sensible way to deal with this

situation, so as to give effect to the presumed purpose of the
                                                                         36

legislation. The provisions in question should be construed on

their plain reading, supporting the structure of the legislative

intent and its purpose.     The rule of schematic interpretation

would come into play in such situations and the concerned

Development Authority cannot be permitted to overreach the

procedure prescribed by law, with designs not acceptable in

law.

35.     The Development Authority is inter alia performing

regulatory functions.     There has been imposition of statutory

duties on the power of this regulatory authority exercising

specified regulatory functions.          Such duties and activities

should be carried out in a way which is transparent,

accountable, proportionate and consistent.           It should target

those cases in which action is called for and the same be

exercised free of arbitrariness.    The Development Authority is

vested with drastic regulatory powers to investigate, make

regulations, impute fault and even to impose penalties of a

grave nature, to an extent of cancelling the lease.              The

principles of administrative justice squarely apply to such

functioning   and   are   subject   to    judicial   review.     The

Development Authority, therefore, cannot transgress its powers

as stipulated in law and act in a discriminatory manner.         The
                                                                         37

Development Authority should always be reluctant to mould

the   statutory   provisions   for   individual,   or   even   public

convenience as this would bring an inbuilt element of

arbitrariness into the action of the authorities.         Permitting

mixed user, where the Master Plan does not so provide, would

be glaring example of this kind.

36.     In the case of Shabi Construction Company v. City &

Industrial Development Corporation & Anr. [(1995) 4 SCC 301],

this Court held that, prior sanction of the State Government

being the sine qua non for a final development Plan, as also for

minor modifications thereof, under Sections 31 and 37 of the

Maharashtra Regional and Town Planning Act, 1966, the

agreement entered into with the Planning Authority so far as it

relates to increased Floor Space Index (FSI) did not and could

not bestow any legal right upon the appellant.            To put it

conversely, only on sanction by the State Government, could

the inchoate right under the agreement crystallize into a legally

enforceable right in favour of the appellant.

37.     Still, in another case of K.K. Bhalla v. State of M.P. &

Ors. [(2006) 3 SCC 581], this Court did not approve and attach

any validity to the action of the Chief Minister directing and
                                                                          38

calling for a proposal from the said Development Authority to

make allotment for development of an industrial area on

concessional terms and held that the purpose for which the

allotments    were   made   might     be   well-meaning,   but     the

allotments, being contrary to the mandatory provisions of the

Act and the Rules were void and of no effect, being illegal.


38.     Similarly, in the present case, the action of the

Development Authority in permitting mixed user was in

apparent violation of the statutory provisions in the Master

Plan.

39.     Establishment of banks and nursing homes in the

residential   sectors   meant   for   residential   use    alone    is

unequivocal violation of the statutory provisions in the Master

Plan.

40.     Reverting to the case in hand, we may notice that the

lease deed executed in favour of the predecessor-in-interest of

R.K. Mittal and the other appellants had contained specific

stipulations that the lessee will obey and submit to all

directions issued, existing or thereafter to exist, as obeyed by

the lessor.   The erection of the structure was also to be in

accordance with the approved plans.         Clause (h) of the lease
                                                                     39

deed specifically provides that the constructed building shall be

used only for the purpose of residential, residential-cum-

medical or surgical clinic and for no other purpose, that too

subject to such terms as are imposed by the lessor.

41.     The transfer deed which was executed in favour of the

present appellants, with the approval of the Development

Authority, also contained similar clauses and also provided

that the terms and conditions imposed by Development

Authority from time to time shall be binding on the transferee.

Clause 15 of the transfer deed stipulated that the transferee

shall put the property to use exclusively for residential purpose

and shall not use it for any purpose other than residential.

After raising the construction on the plot in question,

admittedly, the appellants have put the property to a different

use other than residential.   The property was rented out to two

different commercial undertakings, i.e., Andhra Bank and a

company by the name `Akariti Infotech'. It is not even the case

of the appellants before us that the Development Authority had

granted any specific permission to them to use the property for

any purpose other than residential.

42.     The appellants, in fact, have relied upon an agenda

note   where   there   was a proposal put forward by the
                                                                           40

Development Authority to grant permission for nursing home,

guest house, lodging house, banks etc. on a 100 metres wide

road on such terms and conditions as may be imposed by the

Development Authority.       This also provided for levying certain

additional charges for granting such permission. Based on this

proposal, it is stated that a public notice was issued and

objections were invited.

43.      The matter rested at that. This was not finalized.         In

other words, no final decision was taken by the Development

Authority in consonance with the provisions of the Act to

permit such user in the residential sector.       We, in fact, are

unable to understand why such action was initiated by the

authorities concerned, in face of the statutory provisions of the

Act, Regulations and the Master Plan in force.         It is a settled

position of law that no authority can exercise the power vested

in it, contrary to law.    In the present case, there appears to be

no    proper   data collected    or study    carried   out   by   the

Development Authority even for mooting such a proposal,

much less amending the Plan or the Regulations.                It is a

matter of regret that the Development Authority is dealing with

such serious matters in such a casual manner.            Either way,

this certainly affected the rights of the parties adversely.      It is
                                                                         41

not only the rights of individuals which are to be examined by

the   authorities   concerned,   but   also   the   effect of   such

amendment on the residential sector as a whole which is one of

the relevant factors to be considered.

44.      The running of a bank or a commercial business by a

company in the residential sector is certainly not permissible.

In fact, it is in patent violation of the Master Plan, Regulations

and the provisions of the Act.    We see no power vested in the

Development Authority to permit such user and ignore the

misuse for such a long period.

45.      We may notice that only in two cases i.e. Oriental Bank

of Commerce (Sector 27, Noida) and Vijaya Bank (Sector-19,

Noida), the permission for running a bank in the residential

sector was granted for a period of five years and three years,

respectively. This permission came to end few years back and

was admittedly never renewed or extended.           Even this initial

grant of permission is a case of lack of legal authority and is

contrary to the provisions of law. It is not the case of anyone

before   us   that the   Development     Authority had       granted

permission for running a bank/commercial activity or nursing

home in the residential sector. A survey had been conducted

under the orders of the Court dated 3rd March, 2011. As per
                                                                       42

this survey, a number of banks and nursing homes were being

run in the residential sector, which was not permissible.

46.     The conduct of the authorities, prior to institution of

the writ petitions in the High Court, showed uncertainty and

wavering of mind in its decision-making processes. In fact, it

was expected of the Development Authority to take a firm and

final decision and put at rest the unnecessary controversy

raised by its proposal. However, once the writ petitions were

filed, thereafter, the stand of the Development Authority has

been consistent and unambiguous.        In the counter affidavit

filed in this Court, it has been stated that even in case of grant

of permission to the above stated two banks, no extension was

granted and in fact show cause notices have been issued to all

the banks in the residential sector to wind up their activities

and move out of the residential sector. It is the definite case of

the   Development    Authority   that   banking   activity   is   a

commercial activity and therefore, cannot be carried on in the

residential sector, more particularly on the plots in question.

In regard to Sector 19, a specific averment has been made in

the affidavit of the Development Authority that the land use is

residential alone and is neither commercial nor mixed. As per

the Master Plan, its primary use is `residential' where plots are
                                                                        43

planned for residential purpose alone.           It is, therefore,

abundantly clear from the pleadings on record that commercial

activity of any kind in the residential sector is impermissible.

These pleadings are in conformity with the statutory provisions

and the Master Plan.

47.     All the cases where banks, nursing homes or any

commercial activity is being carried on, particularly like the

appellants' case, where a bank and company are running their

offices in the residential sectors would amount to change of

user   and   thus   be   impermissible.    The   officers   of   the

Development    Authority    should   refrain   from   carving    out

exceptions to the implementation of the Master Plan and the

Regulations in force, that too without the authority of law. For

taking up any exercise for change of user or such similar

conditions, amendment to the relevant Regulations, Master

Plan and if needed, the provisions of the Act, is a condition

precedent.    It should be ensured that such exercise would

further the cause and object of the Act and would not be

destructive to the scheme of the development.         We have no

hesitation in our minds in holding that no such jurisdiction or

authority vests in the officers of the Development Authority to

permit change of user in its discretion and in violation of the
                                                                     44

law in force.

48.     Another important aspect is that the Development

Authority had taken a policy decision and had earmarked

specific areas where land was made available to the banks to

carry on their commercial activities in the commercial pockets

of the industrial or institutional sectors. This land was being

provided at a concessional rate and a number of banks had

taken advantage of this scheme to get the lands allotted to

them in the appropriate sectors. They have been given lands in

the commercial and even in the commercial pockets of the

industrial or institutional sector.    However, the 21 banks

functioning in the residential sectors have not even opted to

apply under the said scheme.          If they would apply, the

Development Authority has taken onto itself to consider the

same sympathetically. This Scheme was opened on 20th June,

2011 and closed on 11th July, 2011. 26 commercial plots were

offered for allotment under this Scheme in different sectors and

plots were even reserved to be used as banks. In other words,

the Development Authority has provided due opportunity to

these banks to shift their activities to the appropriate sectors,

however, to no effect. Despite issuance of show cause notices

and offer to allot alternative plots, the unauthorized use by the
                                                                    45

appellant - banks and nursing homes have persisted in the

residential sectors.

49.     Another case which is required to be noticed by us

from amongst the number of cases listed, is the case of

Chairman and Chief Executive Officer, New Okhla Industrial

Development Authority & Anr. v. Mange Ram Sharma & Anr.,

SLP (C) No. 24029/2005. In this case, according to the

Development Authority, the lessee is running a 20 bedded

hospital with all modern and diagnostic facilities, admitted by

the lessee and his family members in a letter Annexure P-7 to

the authorities.       In this letter they had claimed that the

hospital is being run from the premises in question and had all

the modern facilities. However, these facts are not admitted by

the lessee who have tried to explain that letter by stating that

in a three-storeyed building of 400 square metres, they are

carrying on professional activity of medical consultancy only in

an area of 28.42 square metres on the ground floor and rest of

the premises is being used entirely for residential purposes. It

is also denied that any hospital is being run from the premises.

According to them, the order dated 15th October, 1994

terminating the lease is contrary to law and they have also

submitted an undertaking that the premises will not be used
                                                                      46

for any purpose other than residential. According to the

applicant/respondent in terms of the lease deed, such a user is

permissible.   The respondents being doctors, are carrying out

their professional activity in a limited portion and as such, they

have also placed on record a list of hospitals being operated

from residential blocks which have even been empanelled by

the appellant Development Authority.          The Development

Authority is acting arbitrarily and not taking any action against

those persons, though they have executed the lease deed with

the same terms and conditions as the appellant's. In this case,

this Court had appointed a local Commissioner to visit the

premises.       As per report of the Commissioner dated

20thSeptember, 2003, the premises in question is a corner plot

in front of 30 metres wide road and had two gates.     There is a

sign board displaying `Sharma Clinic and Medical Surgical

Centre'. Names of the doctors have also been displayed on the

sign boards on the boundary wall.          There is a reception

counter which is attended to by a nurse. On ground floor, the

basement was still under construction.        Major part of the

ground floor was being used as medical clinic. There were four

cabins used by different doctors of different specialties.    The

first floor is being used for residential purposes. The second
                                                                      47

floor is being partly used for residential purposes while there is

also an office on that floor.      None of the parties had filed

objections to this report of the Local Commissioner and,

therefore, there is no reason for us not to accept the same.

Even as per the report of the Local Commissioner, the house is

being used for medical-cum-surgical clinic and is not merely a

consultant's clinic.   Use of a major part of the ground floor for

running the medical centre obviously is not permissible in

accordance with the provisions of the Act and the Regulations.

The Development Authority is expected to take proper action at

the earliest.    Even if we reject the case of the appellant

Development Authority that a 20 bedded hospital is being run

from the premise, still the fact stands established on record

that practically the entire ground floor and part of the second

floor is being used for activities other than residential.

50.     According to the respondents, they had not been served

with the show cause notice, though according to the appellant,

show cause notice dated 29th August, 1992 was issued and

thereafter, the order of termination/cancellation of lease had

been passed against the respondents. This order had been set

aside by the High Court and the Development Authority has

come up in appeal before this Court.
                                                                              48

51.     In the light of what we have discussed above, even on

facts of this case, running of a hospital or even a medical clinic

of this dimension cannot be permitted in a residential area.            It

would be different if a doctor uses permissible part of the

premises for clinical purposes i.e. to meet or examine his

patients in any portion. For surgery or specific treatments,

such patients would have been addressed to proper nursing

homes or regular hospitals. Therefore, doctors cannot carry on,

in the garb of a medical clinic, a regular medical and surgical

activity on a commercial scale. Thus, we find that action of the

Development Authority was justifiable.

52.     One        of    the   allegations    against   the   Development

Authority     is        that   they    have     acted    arbitrarily   and

discriminatorily in issuance of notices, in passing of orders of

cancellation of the lease deed and/or even in imposing other

restrictions in relation to the properties in question. It is their

contention that commercial activity, nursing homes and banks

are operating in a large number of residential houses but the

Development Authority has adopted a policy of pick and choose

and has not acted uniformly even in that regard.                   Certain

instances have been mentioned. Instances of banks have been

mentioned in the case of R.K. Mittal (supra), while nursing
                                                                      49

homes have been mentioned in the case of Mange Ram (supra).

We are unable to grant approval to this discriminatory policy of

the Development Authority. They are expected to act fairly and

judiciously in such matters. The action of the Development

Authority should be free of arbitrariness and must be applied

uniformly. The ground of legitimate expectation taken by the

lessees on the premise that public notice had been issued by

the Development Authority proposing to permit mixed user in

the residential sector binds the Authority. Firstly, the action of

the Development Authority in issuing the notices is not in

accordance with law. Secondly, this argument is without any

substance and is misconceived. The doctrine of reasonable

expectation has no applicability to the present case and there

cannot be any waiver of statutory provisions as well.   The user

of a sector is provided under the Master Plan and in

furtherance to Regulations and the provisions of the Act. It is

incapable of being administratively or executively altered. The

lessees, who have changed the user contrary to law, are liable

to be proceeded against as per the terms of the lease deed and

the provisions of the Act.

53.     The Master Plan and the Zonal plan specify the user as

residential and therefore these plots cannot be used for any
                                                                          50

other purpose. The Plans have a binding effect in law. If the

scheme/Master Plan is being nullified by arbitrary acts and in

excess and derogation of the power of the Development

Authority under law, the Court will intervene and would direct

such authorities to take appropriate action and wherever

necessary even quash the orders of the public authorities. This

Court in the case of K. Ramadas Shenoy v. Chief Officer, Town

Municipal Council, Udipi and Others [(1976) 1 SCC 24] was

concerned with the resolution of the Municipal Committee to

construct a cinema theatre            at place    where   earlier the

permission was granted for construction of Kalyan Mandap

cum-Lecture Hall and the contention before the Court was that

town planning scheme forbade any cinema building at the

place asked for and therefore, the resolution of the committee

was invalid.      This Court accepted the contention and while

setting   aside    the   resolution    observed    that   an   illegal

construction of a cinema building materially affected the right

to enjoyment of the property of the persons residing in the

residential area and there being unauthorized construction, the

Court would intervene and quash the resolution of the

Municipality.      This view was followed in the case of M.I.

Builders v. Radhey Shyam Sahu [(1999) 6 SCC 464], wherein
                                                                    51

this   Court    even   directed   demolition   of   unauthorized

constructions. At this stage, we may also refer to the judgment

of this Court in the case of Virender Gaur & Ors. v. State of

Haryana & Ors. [(1995) 2 SCC 577], wherein this Court was

concerned with the issue whether Dharmshala should be

permitted to be constructed upon the land which was reserved

as open space under the plan.     This Court, while noticing the

impact on environment, right to hygienic environment and

protection of the residents, observed as under:-

       "11. It is seen that the open lands, vested in the
       Municipality, were meant for the public amenity to
       the residents of the locality to maintain ecology,
       sanitation, recreation, playground and ventilation
       purposes. The buildings directed to be constructed
       necessarily affect the health and the environment
       adversely, sanitation and other effects on the
       residents in the locality. Therefore, the order
       passed by the Government and the action taken
       pursuant thereto by the Municipality would clearly
       defeat the purpose of the scheme. Shri D.V. Sehgal,
       learned Senior Counsel, again contended that two
       decades have passed by and that, therefore, the
       Municipality is entitled to use the land for any
       purpose. We are unable to accept the self-
       destructive argument to put a premium on
       inaction. The land having been taken from the
       citizens for a public purpose, the Municipality is
       required to use the land for the protection or
       preservation of hygienic conditions of the local
       residents in particular and the people in general
       and not for any other purpose. Equally acceptance
       of the argument of Shri V.C. Mahajan encourages
       pre-emptive action and conduct, deliberately
       chartered out to frustrate the proceedings and to
                                                                        52

      make the result fait accompli. We are unable to
      accept the argument of fait accompli on the
      touchstone of prospective operation of our order."



54.     An ancillary question that comes up for consideration

is as to how much area can be permitted to be used by a doctor

to run his clinic or by a lawyer or architect to run their offices

in the residential sector.   If other conditions are satisfied, then

as the law stands today, according to the Development

Authority, they can be permitted to use 30 per cent of the Floor

Area Ratio (FAR) of the ground floor for their clinics/offices.

Reference can also be made to the judgment of this Court in

the case of Delhi Pradesh Citizen Council Vs. Union of India &

Anr. [(2006) 6 SCC 305] wherein similar directions were issued.

We are not only relying upon the precedents of this Court, but

such an approach would also be permissible in face of the

Regulations, terms and conditions of the lease deed executed

by the parties and the Master Plan.        It would, therefore, be

suffice if 30 per cent of the ground floor area is permitted to be

used for office of an architect/lawyer and for clinic simplicitor

by a doctor.


55.     From the above dictum of this Court, it is clear that
                                                                        53

environmental impact, convenience of the residents and

ecological impact are relevant considerations for the Courts

while deciding such an issue. The law imposes an obligation

upon the Development Authority to strictly adhere to the plan,

regulations and the provisions of the Act. Thus, it cannot ignore

its fundamental duty by doing acts impermissible in law.

There is not even an iota of reason stated in the affidavits filed

on behalf of the Development Authority as to why the public

notice   had    been issued     without amending     the   relevant

provisions that too without following the procedure prescribed

under    law.   The   concept    of   public   accountability   and

performance of public duties in accordance with law and for the

larger public good are applicable to statutory bodies as well as

to the authorities functioning therein. We find no justification,

whatsoever, for the respondents to act arbitrarily in treating

equals who are similarly placed as unequals. There is also no

justification for the Development Authority to issue a public

notice in the fashion in which it has done.    A few officers of the

Development Authority cannot collectively act in violation of the

law and frustrate the very object and purpose of the Master

Plan in force, Regulations and provisions of the Act.
                                                                     54

56.       For the reasons afore-recorded, we would dispose of the

appeals       of     the     Development       Authority,    the

appellants/occupiers/ lessees, interveners and occupants in

the following terms:-


  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
                                                                  55

  that activity in the development Plan, 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.


5. That the Doctors, Lawyers and Architects can use 30 per

  cent 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
                                                                    56

     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 cancelling 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
                                                                                 57

      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.


57.     The appeals are disposed of in the above terms, with no

order as to costs.


                                        ...................................J.
                                           (Swatanter Kumar)



                                        ...................................J.
                                          (Ranjana Prakash Desai)
New Delhi;
December 05, 2011