Crl. M.C. No.2780/2004 Page 1 of 5 * 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 2 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 3 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 4 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 5 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