Haryana

StateCommission

A/990/2014

Haryana Urban Development Authority - Complainant(s)

Versus

Dr. Narender Kumar Goyal - Opp.Party(s)

08 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    990 of 2014

Date of Institution:    30.10.2014

Date of Decision :     08.02.2017

 

1.     Haryana Urban Development Authority through its Chief Administrator, Sector-6, Panchkula, Haryana.

2.     Estate Officer, HUDA, Sector-12, Faridabad.

                                      Appellants-Opposite Parties

Versus

1.      Dr. Narender Kumar Goyal s/o Sh. Ram Kishan Dass Goyal, Anuj Hospital, House No.2159, 2160, 2161, Sector-16, Faridabad.

2.      Dr. Rakesh Gupta s/o Sh. Gopal Gupta, Resident of Sarvodaya Hospital, Gopi Colony, Faridabad.

3.      Sangeeta Gupta w/o Dr. Narender Kumar Goyal, Anuj Hospital, House No.2159, 2160, 2161, Sector-16, Faridabad.

                                      Respondents-Complainants

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member                                                                                                                                         

Argued by:          Shri Piyush Sharma, Advocate on behalf of Sh. A.K. Kansal Advocate for appellants.

                             Shri J.P. Chaudhary, Advocate and Shri Raman Gaur, Advocate for respondents. 

 

                                                   O R D E R

NAWAB SINGH J.

 

          Dr. Narender Kumar Goyal-complainant/respondent No.1 is running Nursing Home in the name and style “Anuj Hospital” Faridabad.  It is a double storey building constructed on plots No.2159, 2160 and 2161, Sector-16, Faridabad. Each plot is admeasuring 160 square yards.  The total area of the three plots is 480 square yards.

2.                Plot No.2159 was purchased by the complainant No.1 from complainant No.2-Dr. Rakesh Gupta, with whom he was running the Nursing Home jointly and plot No.2160 is also owned by him. Plot No.2161 is owned by Sangeeta Gupta-complainant No.3 (wife of complainant No.1) since 1987.   

3.                Estate Officer, Haryana Urban Development Authority (HUDA), Faridabad vide order dated August 06^th, 1996 resumed plot No.2159, Sector 16, Faridabad on the ground that the same was being used for commercial purpose although it was allotted for residential purpose.

4.                Against the said order, Dr. Rakesh Gupta filed appeal before the Administrator, HUDA, Faridabad.  The Administrator vide order dated December 17^th, 1999 (Annexure C-11) accepted the appeal and restored the plot taking into account that the appellant was doctor by profession and was running the Nursing Home on Plot No.2159, Sector 16, Faridabad before March 31^st, 1991.

5.                The complainant No.1 filed application before HUDA seeking permission to run the Nursing Home in the premises bearing No.2159, 2160 and 2161, as per guidelines/policies of HUDA.  The application was rejected by the HUDA on June 10^th, 2003 on the ground that the size of the plot was less than 250 square yards and the complainant No.1 was not practicing in the premises before December, 1991. 

6.                The Indian Medical Association by filing Civil Writ Petition No.552 of 1997, titled as “Indian Medical Association versus State of Haryana & Ors.” before the Hon’ble Supreme Court, challenged the notices of resumption of plots. The Hon’ble Supreme Court vide order dated September 10^th, 2003 (Annexure C-20) disposed of the writ petition with the direction to the HUDA to consider the representations/replies of doctors and to pass orders in accordance with law.

7.                As per directions of the Hon’ble Supreme Court in C.W.P. No.552 of 1997, the Chief Administrator HUDA, Faridabad, vide letter No.A6-2004/24508-28 dated July 01^st, 2004 directed all the Administrators and Estate Officers, HUDA to dispose of the applications/representations of the doctors concerned. HUDA also issued policy guidelines (Annexure A-2) regarding regularization of Nursing Homes in residential premises. The guidelines, to the extent these are relevant, read as under:-

                   “Applicability/Eligibility:

This policy/scheme shall be made applicable only to the Nursing Homes already running in the residential premises, in the sectors developed by HUDA on or before 31.12.1991. The permission shall not be general to the residential lands/buildings, but shall be case specific.

Land/Building requirements:

The minimum size of a residential plot/building shall be 250 Sq. yds and a maximum of 1000 Sq. yds……”

8.                As per guidelines (Annexure A-2), HUDA regularized 37 Nursing Homes but the Nursing Home of Dr. Narender Kumar Goyal-complainant No.1 was not regularized. Hence, complaint under Section 12 of the Consumer Protection Act, 1986 was filed before the District Consumer Disputes Redressal Forum, Faridabad (for short ‘the District Forum’).

9.                The opposite parties-HUDA contested the complaint by filing written version. It was stated that the area of each plot, that is, plots No.2159, 2160 and 2161 was less than 250 square yards and the complainant-Dr. Narender Kumar Goyal was running the nursing home in the residential plots illegally. It was prayed that the complaint be dismissed.

10.              After evaluating the pleadings and evidence of the parties, the District Forum vide order dated September 29^th, 2014 allowed complaint directing the opposite parties as under:-

“8.     Opposite parties are directed not to interfere in the nursing home of the complainant No.1 and to allow the complainant to run the nursing home at residential premises No.2159, 2160 and 2161, Sector-16, Faridabad, considering it to be legal and as per the guidelines/policies of HUDA framed as per the directions issued by the Hon’ble Apex Court of India. Opposite parties are also directed to pay a sum of Rs.4000/- as costs of proceedings from the date of filing of this complaint till realization of amount within 30 (thirty) days from the date of receipt of this order. It is made clear that in any eventuality if the owner of H.No.2160/16, Faridabad rescinds the rent deed or does not further extend the tenancy, then the opposite parties are at liberty to proceed in accordance with law.”

11.              Aggrieved of the aforesaid order of the District Forum, HUDA has filed the instant appeal.

12.              Learned counsel for the appellants-HUDA has urged that prior to March 31^st, 1991, the area of the premises in question was 160 Square Yards, that is, less than the required area of 250 Square yards as per guidelines of HUDA.  So, Dr. Narender Kumar Goyal-complainant No.1 cannot be allowed to run nursing home on Plot No.2159, Sector 16, Faridabad.

13.              At the outset, learned counsel for the complainants-respondents has urged that Dr. Narender Kumar Goyal-complainant No.1 does not claim any relief qua plots No.2160 and 2161 and he only claims that he should be allowed to run the Nursing Home on plot No.2159, Sector-16, Faridabad.  

14.              The HUDA framed guidelines for legalization of the Nursing Homes that were being run in residential premises as per directions by Hon’ble Supreme Court in C.W.P. No.552 of 1997.  As per the policy of HUDA, the scheme was made applicable only to the Nursing Homes already functioning in the residential premises in the sectors developed by HUDA on or before March 31^st, 1991. It is the case of Dr. Narender Kumar Goyal-complainant No.1 that he is running the clinic in the premises of plot No.2159, Sector-16, Faridabad prior to March 31^st, 1991.  Reliance has been placed upon the order dated December 17^th, 1999 (Annexure C-11) passed by Administrator, HUDA, Faridabad and site plan (Annexure A-4).  The order (Annexure C-11) of the Administrator, HUDA is reproduced as under:-

“        This is an appeal filed by the appellant against the order of respondent issued vide order dated 06.8.96 whereby the residential plot No.2159 Sector 16, Faridabad was resumed on the ground that the same was being used for commercial purpose although it was allotted for residential purpose.

          The ground taken in the appeal against the resumption order is that the appellant himself is a Doctor by profession and running a Nursing Home in the above house before 31.3.91 as per copy of O.P.D. Register submitted by him.

          Keeping in view of the above fact and as per Hon’ble Supreme Court of India order dated 17.7.98 which envisages that “No action will be taken by the respondent to prosecute any doctor who has a clinic in a residential house.” Furthermore, no action will be taken against those Nursing Homes which have been established on or before 31.3.91 “As per direction of Hon’ble Supreme Court order dated 20.3.96 is reversed and the plot is hereby restored.”

15.              The order (Annexure C-11) reproduced above, clearly stipulates that the plot No.2159 was restored by the Administrator HUDA, Faridabad, on the ground that Nursing Home was functioning in the said premises prior to March 31^st, 1991. 

16.              The site plan dated March 4^th, 1991 of plot No.2159 (Annexure A-4), duly approved by the HUDA, is another important piece of evidence to prove that the Nursing Home was being run by the complainant No.1 prior to March 31^st, 1991. In the site plan, the area of the plot was 219.98 Square Meters, that is, 263 Square yards. As per policy, the minimum size of the plot should have been 250 Sqare yards and maximum of 1000 Sq. yards to permit the functioning of Nursing Home. From the site plan (Annexure A-4) duly approved by the HUDA, it is established that Dr.Narender Kumar Goyal-complainant No.1, was running the Nursing Home on plot No.2159 admeasuring 263 Square yards, which is more than minimum prescribed area of 250 Square yards.

17.              In view of the above, it is amply proved that the Nursing Home on plot No.2159, Sector-16, Faridabad, was being run prior to March 31^st, 1991. The complainant No.1-Dr. Narender Kumar Goyal fulfills the conditions mentioned in the policy (Annexure A-2) of HUDA and therefore the Nursing Home, on plot No.2159 Sector-16 Faridabad, run by him should have been regularized by the HUDA.

18.              For the reasons recorded supra, the impugned order is modified to the effect that the HUDA shall not interfere in the Nursing Home being run by the complainant No.1 on plot No.2159, Sector-16, Faridabad. So far as the impugned order qua plots No.2160 and 2161, the appeal is accepted, the order to that extent is set aside and the complainant Dr. Narender Kumar Goyal shall not be entitled to run the Nursing Home in the said premises. The appeal stands disposed of accordingly.

19.              The statutory amount of Rs.2,000/- deposited at the time of filing the appeal be refunded to the complainants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 08.02.2017

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL