• Doctor clinic on 1st floor Residential premises

I've been practicing in my residential premises, 30% of clinic space with 6-7 staff treating Clinic patients for Physiotherapy. There is no hospitalisation or overnight stay. Only 1-2 patients in wheelchairs access the lift, while the others use the stairs. Prior to the pandemic, patients would park once in a while based on where security told them to park (in visitor's parking or outside the society). During the pandemic, I was on Covid duty so I shifted my Clinic premises elsewhere (on my own account) for 1.5 years. I gave a notice to the society that I'm resuming practice from 15/9/21 after the Lockdown was fully called off. I have a prior NOC from the previous Managing Committee, an NOC from my parents who are owners of the flat that they do not object to my practice, the Biomedical waste license, and every medical council license needed. Every Municipal authority person I've met with mentions that I can practice.
In September 2021, I also mentioned to the committee that the building's civil contractor has been doing faulty Waterproofing work to the building premises which has resulted in extensive seepage/leakage and fungus in our flat and the flats above and below. I was told to get it checked by another source since I was insistent. I got a Civil Engineer to assess the situation who gave in writing that there was extensive damage to the building on account of incorrect waterproofing. The Civil contractor instead of fixing the problem fully, insists that waterproofing be repeated every 6 months. 
It is only after I pointed out said Leakage problem, that the society committee sent me a notice to stop my clinic practice on the grounds that I have 7 people working with me. Then a barrage of emails and notices of "Do's and Dont's" (given only to us) were sent. After a month of such emails, I decided to serve a legal notice only to the Chairman who has a Society committee of only 5 members now - since most of them have quit on different grounds. The Chairman has suggested a SGM (in the absence of a Secretary who stepped down), and I need to now know if I what I am doing at my clinic is legally correct - so I can fight this out. I have been told by the neighbor against whom I've issued another legal notice that my staff girls "Do dirty things with men", while the Chairman has mentioned to my parent - "Kitna paisa kamayegi?". 
I only wish to know if I am doing anything wrong in practising post Lockdown, after having given a letter to the society committee, with 7 staff. 

Also why would I be charged under the MRTP act? 

Please advise. 
I wish to take this to the end, if I am not in the wrong. 

Best,
Dr Diana Pinto.
Asked 11 days ago in Property Law
Religion: Christian

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11 Answers

A residential apartment complex is meant for peaceful living purposes; it cannot be used for commercial activities legally. It is better to shift your clinic elsewhere in a commercial area. You cannot demand right of practice in a residential complex if the residents or their society objects.

Swaminathan Neelakantan
Advocate, Coimbatore
1296 Answers
17 Consultations

4.9 on 5.0

You are entitled to carry out your medical practice in society but need NOC from society .if stop work notice is issued take legal proceedings against society for necessary reliefs 

 

2) if society is refusing to rectify leakages you can complain to muncipal corporation against society refusal to carry out necessary repairs 

 

3) if no action is taken by TMC approach cooperative court for necessary reliefs 

 

 

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

Dear client,

In the case of Dr DV Chug v State & Anr, Delhi High Court ruled that the professional establishment of a doctor does not fall within the definition of commercial activity. Doctors , can use 30%of residential premises for consultations  that would not be regarded as using property for commercial purposes .

Thank You.

Anik Miu
Advocate, Bangalore
3099 Answers
31 Consultations

4.9 on 5.0

1) you can use 30 per cent of residential premises as clinic 

 

2) however society NOC is necessary 

 

3) you can practice in residential premises 

 

4) it is not commercial activity 

Ajay Sethi
Advocate, Mumbai
84937 Answers
5618 Consultations

5.0 on 5.0

- As per law, no commercial activity allowed in the residential area without the permission of authority, and housing complex.  

- Only a fixed area can be legally used for commercial purpose limited to official use only , i.e. can be used for services by resident advocates, chartered accountants, doctors .

- Further, one can use the bungalow/ flat for commercial purpose provided, no production or manufacturing activity is conducted and the commercial use shall be completely professional in nature, and it should not cause nuisance to other dwellers of the society, but, approvals from the competent authority are required.

Further, - As per Delhi High Court , the professional establishment of a doctor does not fall within the definition of commercial activity. 

- Since earlier the Society issued NOC for running clinic , then only on complaining by any member it cannot be cancelled. 

- Hence, on refusal for the same , you can lodge a compliant before the registrar of society. 

Mohammed Shahzad
Advocate, Delhi
8498 Answers
92 Consultations

5.0 on 5.0

What is the reply by the society to your legal notice served on the Chairman about it.

Since you were given NOC to run the clinic in a permitted space in the flat, the society cannot take objections to this

There are various judgments of Hon'ble SC and from various HCs' that says there is no bar for doctors, lawyers and chattered accountants to practice at their residential flat / apartments as long as they do not use the substantial portion of the flat for profession.

doctors , lawyers , CA can use 30%of residential premises for consultations . that would not be regarded as using property for commercial purposes .

2) if more than 30%of flat is used for commercial purposes then they would have to pay commercial water charges , property tax for commercial purposes

3) in your case you are not using the entire house but only portion of the house for  clinic , that is permissible.

 

A doctor's clinic run in a portion of the residential house, which may either be small and sufficiently big but which may not occupy the entire area with a waiting hall, a dispensary or even a small diagnostic facility may not convert the user of a premise from a residential user to commercial user. A non-nuisance professional activity running by doctors, lawyers, consultant, architect, chartered accountant, property consultants, government guides may also fall in the same category.

 

Therefore you can challenge their stunts properly in court of law.

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

1. You don't be worried about their denial, since you have the documentary proof to prove you can challenge the same in the court of law if necessary.

2. The society is blabbering with irrelevant laws, if at all they object and create nuisance on the pretext of some irrelevant provisions of law, you may ask them to proceed as per law, which can be challenged properly.

3. You are right.

4. Don't pay heed to their dictates, you can drag them to court with a suit for injunction restraining them from interfering in your professional activity.

5. You are right.

6. Yes, you can

7. correct

8. NOC is a shield to protect you from such unnecessary issues. 

T Kalaiselvan
Advocate, Vellore
75050 Answers
1263 Consultations

5.0 on 5.0

1. Yes. I'd you have a copy of the same produce it. 

2. It's not applicable in your case. 

3. Yes

4. No need

5. Yes

6. Yes

7. Yes

8. No

Prashant Nayak
Advocate, Mumbai
24936 Answers
58 Consultations

4.4 on 5.0

1. It appears that the MC of the society as an afterblast has imposed the restrictions against you only after you issued a legal notice 

2. There is no restriction against a society member if he uses a portion of his premises for his profession or practice. Here you have the NOC of your parents who are the owners of the flat 

3. The society needs to give valid and justifiable reasons why you cannot practice from a portion of the flat. It cannot be arbitrary or whimsical. 

4. Pre covid the circumstances were different. However presently things are not the same. So the society may impose restrictions against you from practicing from the flat in the larger interest of the whole body of the society members provided it comes out from the society's letter that the restrictions are placed considering the present circumstances 

5. If while doing your practice from the flat you and your staff are following all the applicable SOPs of the government to contain the spread of covid 19 virus then the society should not complain. However it can still impose restrictions or prohibit you from practicing  in the larger interest of the body of society members who occupy their various flats in the society building. 

6. If from the situation on site you are able to assess that the other society members have no issues or objections and it's only the MC which is crying foul then you can ask the MC to call for a special general body meeting to pass a resolution whether you (your parent actually who is the owner and a society member) can continue practice from your parents flats or not and on what terms. The MC cannot foist its personal decisions without consulting the general body of society members which is Supreme in society matters. 

7. The aforesaid equally applies to the practice which you intend to do from 30% of your own flat. However in my view if you practice from a portion of your parent's flaf and also from your flat then it implies that your work has increased and thus there would be more footfall against which the society can reasonably restrict you from doing such practice. 

8. As regards the MRTP provision you need to inquire from the society only as to under which provision of that act, it thinks you should be charged and what particular violation have you committed under that provision. In my view mostly it would be a change of user which is different from the original user of the flat. 

9. The comments against your female staff by certain committee member and society member against whom too you have issued a legal notice are per se derogatory and objectionable tending to outrage the modesty of a woman. However no point trying to gain any mileage from that as the issue is not that. The issue is the personal vendetta of the present MC against you only because you voiced your views against the faulty water proofing done to the building. 

Yusuf Rampurawala
Advocate, Mumbai
6565 Answers
60 Consultations

5.0 on 5.0

if you are running your clinic with the NOC of previous MC and permissions from medical and municipal authorities, the present MC cannot oppose. also refer to this citation AIR 2004 Bombay 245 which will be helpful to you. you can initiate legal action if your are objected.

Sricharan Telaprolu
Advocate, Hyderabad
130 Answers
36 Consultations

4.9 on 5.0

Dear client, 

1. Since you have a copy of the NOC, that should hold up and be deemed as valid. If they continue to insist that it has gone missing then you can ask them for a renewed NOC. 

2. The society cannot use this act against you based on the aforementioned facts.

3. Correct.

4. You do not need to have a separate exit/entry. There is no basis upon which they can ask you to do this.

5. Yes, there is no such provision.

6. Yes, you can do that. But if you combine both the spaces then you need to ensure that it is still kept at the limit. 

7. Yes, you can practice as well.

8. Yes, an NOC from the society may be required. If the society is not budging then you can send another legal notice to them regarding this. 

Thank you. 

Anik Miu
Advocate, Bangalore
3099 Answers
31 Consultations

4.9 on 5.0

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