Delhi High Court
Dr. Satish K. Bhardwaj vs M.C.D. on 29 April, 2011
Author: V.K.Shali
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No. 2780/2004
Date of Decision : 29.04.2011
DR. SATISH K. BHARDWAJ ...... Plaintiff
Through: Ms. Juhi Malhotra with
Ms. Kailash Golani, Advs.
Versus
M.C.D. ...... Defendant
Through: Mr. Maninder Archarya,
Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment? NO
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported
in the Digest ? NO
V.K. SHALI, J. (oral)
1. This is a petition for quashing of the complaint case no.
1812/2002 dated 29.01.2002 and subsequent order dated
22.09.2004 passed by the learned Metropolitan Magistrate,
Patiala House, New Delhi taking cognizance of the matter.
2. Briefly stated the facts of the case are that on 17.10.2001
Shri Vikas Gupta, Junior Engineer (Building) visited the
basement of the property bearing no. M-2, G. K.-1, New
Delhi and found that the petitioner is allegedly running a
clinic under the name and style of Goodmans Healthcare
Services Pvt. Ltd. without the written permission of the
Commissioner, MCD. The sanctioned/permissible use of
Crl. M.C. No.2780/2004 Page 1 of 5
the this property is residential only. A report in this regard
was submitted to the Prosecution Department who
initiated an action by filing a complaint under Section 347
read with section 461 of the Delhi Municipal Corporation
Act, 1957. It may be pertinent here to reproduce Section
347 of the Delhi Municipal Corporation Act, 1957 as
under:
"347.Restrictions on uses of buildings.-No
person shall, without the written permission of
the Commissioner, or otherwise than in
conformity with the conditions, if any, of such
permission-
(a)use or permit to be used for human habitation
any part of a building not originally erected or
authorized to be used for that purpose or not
used for that purpose before any alteration has
been made therein by any work executed in
accordance with the provisions of this Act and
the bye-laws made thereunder;
(b)change or allow the change of the use of any
land or building;
(c)convert or allow the conversion of one kind of
tenement into another kind."
3. A perusal of the aforesaid provision would show that the
user of the premises for the purpose other than one for
which it has been erected is an offence under the DMC Act
which is punishable under Section 461 of the Act.
4. The respondent filed a complaint before the learned
Magistrate on 29.01.2002 whereupon cognizance was
taken. The petitioner filed an application before the
Crl. M.C. No.2780/2004 Page 2 of 5
learned Magistrate for recalling the order of summoning
which was dismissed by the learned Magistrate vide order
dated 22.09.04 observing that in terms of the Apex Court
judgment in case titled Adalat Prasad Vs. Rooplal Jindal
& Ors 2004(7) SCALE 137 the learned Magistrate cannot
review his own order and accordingly, the application was
dismissed. The petitioner accordingly filed the present
petition for quashing of the complaint and the order dated
22.09.04. The respondent filed their counter to which the
rejoinder was also filed.
5. I have heard the learned counsel for the petitioner as well
as the learned counsel for the respondent and have also
gone through the record.
6. The charge against the present petitioner is that the
petitioner is using the basement of the property bearing no.
M-2, G. K.-I, New Delhi for running a clinic. The petitioner
is admittedly a doctor. The petitioner has also placed on
record a photograph of the sale deed of the basement
which shows that he had purchased only 358 sq. ft. of the
basement out of 2500 sq.ft. wherefrom he is running his
professional activity. According to the notification dated
25.09.2000 issued by the MCD, the basement was
permitted to be used for office or professional purposes
provided it is air conditioned and also subject to 25% of the
Crl. M.C. No.2780/2004 Page 3 of 5
FAR subject to maximum of 500 sq. ft. by a professional.
Admittedly, the area which is being used as a clinic is less
than 500 sq. ft. and the petitioner being a Doctor is using
the same for professional activity, and therefore, even
according to the notification dated 25.09.2000 which
precedes the date of inspection, the running of a clinic by a
doctor was well within the permissible limits.
7. Even otherwise with the liberalization of the municipal
laws, the case against the petitioner cannot stand. The
MCD has issued a notification on 12.08.2008 whereupon
the properties situated on the notified streets have been
permitted to be used for commercial purposes so far as the
ground floor is concerned. The relevant extract of the
notification dated 12.08.2008 are as under:
"Clause (i) & (ii) under sub-para15.6.1
These clauses shall be modified to read as under
(i) Retail shops and offices shall be permitted
on plots abutting streets notified for mixed use
only on the ground floor upto the maximum
permissible ground floor coverage.
(ii) Mixed use from basement on such streets
may be allowed, subject to relevant provisions
of building bye-laws, structural safety and fire
safety clearance. However, if such use of
basement leads to exceeding the permissible
FAR on the plot, such FAR in excess shall be
used, subject to payment of appropriate
charges prescribed with the approval of
Government. Paras 15.3.2.1, 15.3.2.2,
15.3.2.3, 15.5.5(i) and 15.4 and any other
relevant provisions shall be read along with the
above provisions."
Crl. M.C. No.2780/2004 Page 4 of 5
8. In addition to this, the learned senior counsel for the
petitioner has also placed reliance on the order passed in
criminal Misc. No. 2075/2004 where the learned Single
Judge of this Court has quashed the complaint in a similar
situation where the basement was being used for the
purposes other than residential.
9. Keeping in view the aforesaid facts and circumstances of
the case, I am of the considered opinion that no useful
purpose would be served by keeping the complaint alive
and prosecuting the same when the municipal laws have
been liberalized permitting the user of the ground floor and
the basement for professional activities. As per the
notification dated 12.8.2008, properties which are situated
on the streets which are notified by the MCD have been
permitted to be used for commercial purpose. Even
according to the notification dated 25.9.2000, mentioned
herein above the user of the basement for professional
activities is permissible to the extent of 25%. The user of
the basement by the petitioner is for his professional
purposes and that too within the permissible limits. That
being the position, the petition is allowed. I accordingly,
quash the complaint and the order dated 22.9.2004.
V.K. SHALI, J.
April, 29, 2011/ KP
