anil waghmare
Asked August 07, 2016

writ petition HC

  • 1 Answer
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1] writ petition filed in Bombay high court on 07/10/2014 2] Letters dt 12/03/2014 issued by executive engineer- Pune municipal corporation[PMC] By PMC commissioner order- 1] permission/consent was for Dental Clinic only-this permission/consent is revoked and cancelled.2] No permission, sanction, approval for general polyclinic- criminal action will be taken against all doctors- illegally carrying medical services without having property rights. 3] A letter is issued by Pune Municipal Corporation subsequently dt 26th August 2014- by executive engineer stating- sanctioned plan/maps cannot be changed as suit is filed in the Pune Municipal Corporation Court and court decision will be binding on both parties. even though permission was against D,C. Rule, 1997 and without PMC Commissioners orders by officials of PMC. Suit is also filed in PMC Court , Pune in the year 2009- 1] cancelling change of use, closure of clinic and general polyclinic 2] Direction to PMC -for taking necessary action for closure of the same.. same cases at two courts. my question is whether 1] withdrawal to be from PMC Court, pune or 2] Withdrawal of writ petition from Bombay high court, will be beneficial????

Answer 1

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Shreya Mishra

The DC Rules issued by the Maharashtra Urban Development Department, in consonance with the Maharashtra regional and Town Planning Act 1966, does not lay down any difference between dental clinics and polyclinics.  Appendix M(Rule 12.1), M1.1(3) lays down that both dental clinics and polyclinics can be situated in exclusive residential areas thereby eliminating any difference between them. [1] 

Further, the Bombay High Court has excluded doctor’s clinics from the purview of Bombay Shops and Establishments Act saying that running a clinic is not commercial activity.[2] Thus there is no need to fill up Notice of Change Application for Shops and Establishment or any other application under the aforementioned Act. Also the only way it is held that doctors are practising illegally is when they do not have a licence. Therefore the allegation of the doctors practising illegally can be easily refuted.

However, to answer your question, it would be better to withdraw the writ petition. The Supreme Court has ruled in numerous situations that if an alternative remedy is available, the High Court should not entertain the Writ Petition.[3]   Rashid Ahmed v. Municipal Board, Kairana [AIR 1950 SC 163: 1950 SCR 566]  laid down that if an alternative remedy is available, that should be taken into consideration before admitting a writ petition. Therefore it will be better to exhaust your other remedies before going to writ petition.

 

[1] https://www.pcmcindia.gov.in/PDF_forms/Dc_rule.pdf

[2] http://timesofindia.indiatimes.com/city/mumbai/Running-a-clinic-is-not-commercial-activity-HC/articleshow/38222910.cms

[3] http://www.ijtr.nic.in/webjournal/4.htm

Agree Comment 0 Agrees about 1 year ago

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