This article is written by Vaishnavi Shukla, a student of Bangalore Institute of Legal Studies. Here, she explains about the activities allowed in residential basement in Delhi, Noida and Gurgaon.

Are you a resident of Delhi? Noida? or Gurgaon? Have a dilemma as to what kinds of activities are permitted in the residential basements at Delhi, Noida and Gurgaon?

In the case of Doctors, Lawyers and Architects it’s ok to run activities in their basements. In this article, we shall discuss all such kinds of activities that can be carried out in the residential basements in Delhi, Noida and Gurgaon; and the required permissions to do so.

Meaning of Basement

Basement or cellar means the lower storey of a building below or partly below the ground level, according to the “The New Okhla Industrial Development Area Building Regulations and Directions 2006”.

Is it legal to use residential properties for commercial purposes?

This question has always been of a great concern. People usually want to use their properties for commercial purposes because it saves time and money. Moreover, running a business in a commercial building would cost them heavy rents, taxes and electricity charges. Legal experts say that professionals like Doctors, Lawyers and Chartered Accountants among others can use residential properties for commercial purposes. Also, yoga, dance, music and other classes can be taken up.

Yes, it is legal to use residential property for commercial purpose, provided that, the prior permission of Municipal authorities of that area should be taken and if the professional is a tenant then landlord’s permission is required.

Any activity relating to the purchase and sale of goods is called a commercial activity. The work done by professionals involves element of service and is not a commercial activity. Hence, it is not illegal.

Activities allowed in Residential basements in Delhi

According to the National Building Code regulations or building by-laws, a basement can be used only for the purpose of storage, dark room, bank cellar, or parking space. Kitchens, bathrooms and toilets are also not allowed in a basement, unless the sewer levels permit the same.

Commercial purposes

The government allows building offices in basements. However, the existing state laws would apply and the permission of various authorities are sought before carrying out with the commercial activities. The building by-laws provide that storage and parking, basement space cannot be a part of FAR but commercial space will be included in the calculation of FAR usage, in this case. 

According to The Hindustan Times report; The Capital’s master plan 2021 now permits professionals like Lawyers, Engineers and Doctors to carry out their activities in the residential basements which, earlier were under threat of demolition and sealing.

Earlier, the Municipal Corporation was not clearing applications as DDA had not notified the conversion charges. However, with the DDA notifying the new charges MCD started the process of clearing all such applications which are now permissible under the Master Plan.

New Rates

“The Municipal Corporation of Delhi would now permit property owners to use basements for both professional and commercial purposes. For instance, in posh colonies under categories A and B, residents would have to pay Rs 4,375 per square metre for conversion” The Hindustan Times Stated.

Role of Delhi development Authority (DDA)

DDA plays a very important role in deciding whether the residents can carry out professions in their basements. If DDA has permitted the builder or society to use the basement for professional purposes, only then such activities can be carried out, if DDA has not permitted, then no such activity can be carried out. The DDA has a right to lodge prosecution for change of user if found that activities are carried out without its permission.

Activities allowed in Residential basements in NOIDA

According to the NOIDA Building Regulations and Directions, 2006 the basements of residential buildings may in addition to parking could be utilized for the purposes of generator room, lift room, fire fighting pumps, water reservoir, electric sub-station, air conditioning plants and toilets, if they satisfy the public health and safety requirements and for no other purposes.

Supreme Court Judgment

  In R.K Mittal & Ors. V. State of U.P with regard to the use of residential accommodation for commercial purposes in Noida, the apex court on 06/12/11 ordered a complete ban on banking, nursing homes and other commercial activities in this district of Uttar Pradesh.

Further, the court directed all banks and nursing homes two months time to close their activities, and put the premises for residential purpose. The court asked the authorities to carry out proceedings for the cancellation of  the lease and seal the premises if the activities are not stopped in the given frame of time.

However, the court allowed lawyers, doctors and architects to use 30 percent their premises in the residential sector to run their offices and clinics. Moreover, the court gave authorities freedom to levy charges on such offices. [1]

This judgment of the Supreme Court applied to all the activities that were carried out in the residential basements of NOIDA district of U.P.

However, according to the Master Plan 2031, mixed use of land is permitted in specific areas in the residential and industrial sectors of NOIDA. Residential plots which are adjacent to 24m- wide roads will be permitted to construct guest houses after the payment of an “impact fee” and residential plots in industrial areas are allowed to set up auto showrooms on 25% permissible FAR after paying “impact fees”.  For residential plots along with guest houses, ATM’s, School’s, office space, cafeteria, health centre, dispensary, etc will also be allowed, which were earlier banned and closed following Supreme Court’s order.

Mr. Rama Raman, the chairman of Noida, Greater Noida and Yamuna Expressway authorities said fresh permissions should be sought and properties which were earlier sealed and leases which were cancelled, should start functioning again. [2]

Activities allowed in Residential basements in Gurgaon

A report in The Hindu on 6^th January 2013 stated: Deputy Commissioner of Police Mr. P.C Meena directed the closure of all PG’s and guest houses in the Haryana Urban Development Authority (HUDA) residential sectors. Using a residential plot for running commercial activity is against the HUDA Rules and is illegal.  Commercial activities were allowed in HUDA sectors only on ground floors covering not more than 25% of the area and to which “Non-nuisance Certificates” were issued.

Non-nuisance Professional Activities: Any activity carried on by an individual using his/her personal skill and intelligence and includes:-

(a) Doctors (without Nursing Home);

(b) Lawyers;

(c) Chartered Accountant/Company Secretaries;

(d) Property Consultants;

(e) Tax Consultants;

(f) Architects (without studio);

(g) Tourist Guides;

(d) Contractor Consultants;

However, in view of improving the medical care facilities in the urban estates developed by HUDA, it was decided by the Government of Haryana that residential buildings may be allowed for setting up nursing homes, provided residential owners or tenants applying for the same should be doctors, by paying annual fees equivalent 10% of conversion charges. [3]

S.S Dhillon, Principal Secretary, Town and Country Planning, while talking about the new policy framed by the Haryana government said that, all the guest houses operating in residential areas in less than 1000 sq. yards space will deem to be illegal.  Only guest houses constructed in 1000 sq. yards or more will be deemed legal, allowed to function against specific commercial conversion fees. However, 5000 sq. yards is the maximum permissible area.

In Anita Kataria V. State of Punjab and Haryana [4] the court held that, no commercial activity is being allowed from resident premises, only the Non-nuisance Professional Consultancy Services viz. Doctors, Lawyers etc. are being allowed to provide their services subject to obtaining necessary permission/licenses etc.

The claim of the petitioner for permission to use the part of her residential building for ‘Non-nuisance Professional Consultancy’ has been rejected on the ground that a qualified Doctor in the field of skin care can be granted permission of the same, but activity of rendering Beauty and Skin Consultancy Services other than the qualified Doctor is not covered under the Policy.

Keeping in view the said intent of the definition, the work of skin care and beautician for the ladies is dependent upon personal skill of the Consultant/service provider. Therefore, such Beauty and Skin Consultancy Services falls within the ambit of Regulations.

Conclusion

With regard to all the provisions to be followed and permissions to be obtained from various competent authorities in order to carry out professional activities in residential areas, we have understood that, in all cases whether it is Delhi, Noida or Gurgaon, the services rendered by Lawyers, Doctors, Chartered Accountants and Architects to name a few, have remained unaffected when it comes to usage of basement for commercial activities. These services as discussed earlier do not fall within the ambit of commercial activities as they are service activities and do not involve sale and purchase of goods. However, for all other kinds of commercial activities as per the prevalent building laws or bye- laws, municipality laws; specific permissions are required to be obtained before taking up a commercial activity in a residential basement.

Hence, we have discussed all the commercial activities that can be carried out in a residential basement and the applied laws for the same.

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[1] http://content.spacedart.com

[2] http://www.dailypioneer.com

[3] https://www.huda.gov.in

[4] http://indiankanoon.org/doc/145198750