ANIRUDH KUMAR Vs. MUNICIPAL CORP. OF DELHI & ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 8284 of 2013, Judgment Date: Mar 20, 2015
-
Be as that may, this nature of ligation cannot be allowed to be settled between the parties as it involves public interest and violation of rule of law. -
The running of the Pathological Lab in the building by the respondent-owners amount to violation of the rule of law and affects the public interest, therefore, it is public interest litigation even though the appellant herein is a resident of the second floor of the concerned building and simultaneously he has been fighting for the cause of all the local residents. -
36. Public interest litigation is not in the nature of adversarial litigation but it is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice which is the signature tune of our Constitution. The Government and its officers must welcome public interest litigation because it would provide them an occasion to examine whether the poor and the downtrodden are getting their social and economic entitlements or whether they are continuing to remain victims of deception and exploitation at the hands of strong and powerful sections of the community and whether social and economic justice has become a meaningful reality for them or it has remained merely a teasing illusion and a promise of unreality, so that in case the complaint in the public interest litigation is found to be true, they can in discharge of their constitutional obligation root out exploitation and injustice and ensure to the weaker sections their rights and entitlements. -
39. In view of the aforesaid reasons, we have to hold that the grant of the Regularisation Certificate with the alleged retrospective effect to run the Nursing Home in favour of respondent-owners w.e.f. 11.7.2006 cannot be accepted by us and the same is liable to be quashed. -
47. The running the Pathological Lab by the respondent-owners air, sound pollution is created rampantly on account of which the public resident health and peaceful has been adversely affected. Therefore, public interest is affected and there is violation of rule of law. Hence, we have examined this appeal on all aspects of the matter and on merits. This position of law is well settled in the catena of decisions of this Court. -
For the reasons stated supra, the appeal is allowed and the impugned judgments and orders of both the learned single Judge and Division of the High Court are hereby set aside and Regularisation Certificate is quashed and rule is issued.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8284 of 2013
ANIRUDH KUMAR .........APPELLANT
Vs.
MUNICIPAL CORPORATION OF DELHI & ORS. ...RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
This appeal by special leave arises out of the impugned judgment and
order dated 16.01.2012 passed by the High Court of Delhi in LPA No. 857 of
2010 in and by which, the High Court, while dismissing the appeal held that
this matter does not fall within its writ jurisdiction which requires
determination by the High Court.
Brief facts which led to the filing of this appeal are as under:-
2. The appellant is residing on the second floor of D-1 Hauz Khas, New
Delhi. Dr. Navin Dang and Dr. Manju Dang, the respondent Nos. 6 and 7
(hereinafter referred to as 'the respondent-owners') initially started a
Pathological Lab in the name of 'Dr. Dang's Diagnostic Centre' in the year
1995 on the basement and ground floor of the concerned building and later
on, in the year 2005-2006 the first floor of the premises was also
purchased by them from its owner Mrs. Shanti Chatterjee whereby they
expanded the activities of the Pathological Lab even to mezzanine floor and
first floor by installing heavy medical equipments to make it fully
equipped with the latest technology. When the Diagnostic Centre was
started, it employed about 50 people and installed 25 Air Conditioners, two
diesel generator sets of 25 KVA and 40 KVA each in the set-back area of the
building along with kerosene oil tanks, gas cylinders and electric panels.
There was a major parking problem in and around the vicinity of the
Diagnostic center since a large number of patients visited the centre every
day.
3. The appellant made various complaints pertaining to the violation of
the Master Plan to the concerned authorities', namely 1)Respondent No.1-
Dy. Commissioner, Municipal Corporation of Delhi(for shot 'the MCD'),
2)Respondent No.2 - SHO of the area, 3)Respondent No.3 - Executive
Engineer, Delhi Electricity Supply Undertaking. As no heed was given to the
same by the aforesaid respondent, a writ petition No. 8808 of 2004 was
filed by the appellant before the High Court of Delhi. During the pendency
of the said writ petition, contrary to the averments made by the MCD before
the High Court that prosecution had been initiated against the responsible
persons under Sections 347/461 of the Delhi Development Act, 1957, the
Regularisation Certificate was issued on 11.07.2006 to the respondent-
owners by the MCD under Mixed Land Use for running the Pathological Lab on
the ground floor and first floor of the concerned building. Aggrieved by
the grant of Regularisation Certificate, the appellant withdrew the writ
petition No.8808 of 2004 and a fresh writ petition No. 225 of 2008 was
filed by the appellant before the High Court praying for quashing of the
Regularisation Certificate wherein, the learned single Judge issued limited
notice to the respondents with respect to Clauses 3 and 7 of the
Regularisation Certificate. The Learned single Judge rejected the challenge
to the Regularisation Certificate issued on 11.07.2006 as the same was
issued by MCD under Clause 15.7.1 of the MPD 2021 approved by the Ministry
of Urban Development, Government of India which reads thus:
"15.7 OTHER ACTIVITY
15.7.1 Subject to the general conditions given in para 15.4 and additional
conditions given in para 15.7.3, the following public and semi-public
activities shall also be permitted in the residential plots abutting roads
of minimum ROW prescribed in 15.7.2, whether or not the road is notified as
Mixed Use street:
(a) Pre-primary school (including nursery / Montessori school, creche.)
(b) i. Nursing Home
ii. Clinic, Dispensary, Pathology lab . and Diagnostic
center.
................"
Further, the learned single Judge vide order dated 5.10.2010 refused to
decide the violation under Clause 7 of the Regularisation Certificate on
the ground that the petition is motivated by a private dispute than owing
to any nuisance and hardship to any local resident as none of the other
local residents had approached the Court with any complaint pertaining to
nuisance.
The first respondent - MCD confirmed that one-time parking charges of
Rs.9,35,673/- in terms of the Regularisation Certificate had been paid by
the respondent owners and that respondent-owners had also deposited
Rs.8,39,916/- as conversions charges. The appellant challenged the order
dated 11.01.2008 issuing limited notice in writ petition No.225 of 2008
passed by the learned single Judge by filing LPA No. 267 of 2009 before the
Division Bench of the High Court and later on withdrew the same.
Aggrieved by the Order dated 5.10.2010 passed by learned single Judge, the
appellant filed LPA No.857 of 2010 before the High Court praying for
issuance of a writ of prohibition prohibiting the owners of the
Pathological Lab from running the Diagnostic Centre in the concerned
building, which was also dismissed by the High Court of Delhi vide its
order dated 16.01.2012. Hence, this appeal by special leave is filed by the
appellant.
Heard Mr. H.P. Rawal, learned senior counsel on behalf of the appellant
and Mr. K.K. Venugopal, and Ms. Indu Malhotra, learned senior counsel on
behalf of the respondent-owners and Mr. L. Nageshwar Rao, Additional
Solicitor General and other learned counsel on behalf of the respondent.
The learned senior counsel on behalf of the appellant contended that the
appellant made various complaints to the concerned authorities, namely, 1)
Respondent No.1 - Dy. Commissioner, MCD regarding the commercial activity
of the respondents-owners. 2) Respondent No.2 - SHO of the area for
forceful installation of the Generator sets in the set-back area of the
concerned property and blocking the underground water tanks and 3)
Respondent No.3 - Executive Engineer, Delhi Electricity Supply Undertaking
about the installation of the Generator sets.
It is contended by the learned senior counsel for the appellant that the
authorities were called upon by the appellant to take some preventive
action against the respondent-owners as they have not taken any license or
permission from the MCD prior to setting up of the Diagnostic Centre in the
residential area which is admitted by the concerned respondents themselves.
According to the sanctioned building plan, the basement and the mezzanine
floor could be used only for storage purpose and for no other purpose.
It is further contended by him that the MCD never sought permission of the
High Court before issuing Regularisation Certificate in favour of the
respondent-owners when W.P. No. 8808 of 2004 was pending before the High
Court. It is further contended by him that the said Regularisation
Certificate dated 11.7.2006 which was allegedly granted under the MPD 2021
which could not have retrospective effect but in fact, is prospective in
nature. Further it has been contended by him that the MPD 2021 was notified
by the Ministry of Urban Development Vide Notification No. S.O.141 and was
brought into force on 07.02.2007. The said plan was only at its proposal
stage, which fact was taken note of by the Division Bench of the High Court
in its impugned judgment. Thus, it can be said that even before the MPD
2021 was brought into effect, the MCD went ahead with issuing
Regularisation Certificate under the said plan in favour of the respondent-
owners of the Pathological Lab.
Further, it is submitted by the learned senior counsel on behalf of the
appellant that on 27.04.2006, the complaint made by the 18 residents of the
area to the Commissioner, MCD about the hardship and nuisance faced by them
were not taken note of or given heed to by the authorities. Again on
24.07.2009, 32 residents of Hauz Khas complained to the ACP (Traffic) about
the great hardship they have been facing due to the continuous nuisance
being committed by the said Diagnostic and Pathological Lab.
It is further contended by the learned senior counsel for the appellant
that no person shall, without the previous consent of Delhi Pollution
Control Committee (DPCC)-respondent No. 5 herein shall establish or take
any steps to establish any industry, operation or process or any treatment
and disposal system or any extension or addition thereto which is likely to
discharge sewage or trade effluent into a stream or well or sewer or land.
It is mandatory on the part of such establishment to first obtain consent
from the DPCC for establishing or operating any industry, operation or
process or any treatment and disposal system or any extension or addition
thereto as envisaged under Section 25 of Water (Prevention and Control of
Pollution) Act, 1986. Admittedly, no such consent was obtained or granted
by the DPCC. The said fact has not been placed before the learned single
Judge, Division Bench or this Court by any of the respondents. The DPCC
has stated in its counter statement that the Pathological Lab is being run
by the respondent-owners in the basement, ground floor, first floor and
mezzanine floor of the concerned property. Thus, it is being run by them
not only in violation of the Master Plan for Delhi 2001 but also MPD-2021.
It is further contended that the area illegally permitted by the MCD in
pursuance of the alleged Regularisation Certificate dated 11.07.2006
mentions the area to be 222.25 sq meters and confines the activity of
respondent-owners to the ground floor and the first floor only. However,
the respondent-owners have been using the area much more in excess of the
said permitted area by using the mezzanine floor of the building also. The
said fact pleaded by the appellant is corroborated by the inspection report
submitted by the DPCC in these proceedings. It is further contended that
the respondent-owners have neither refuted nor pleaded anything contrary to
the same, but on the other hand, for the first time before this Court, the
learned senior counsel on behalf of the respondent-owners have stated that
the mezzanine floor does not exist in the building. This plea urged by the
respondent-owners is not only contrary to the pleadings before the courts
below but the same is made with a mala fide intention and is an incorrect
statement of fact and therefore, requested this Court to reject the said
contention.
Further, it is contended by the learned senior counsel that the appellant
has been complaining about the set-back area of the building being
illegally covered by the respondent-owners contrary to the building bye-
laws and for the first time before this Court, a new plea has been taken by
the respondent-owners that they have kept the generator sets in the set-
back area of the building allegedly because they have not been allowed to
install it on the terrace of the concerned building. This alleged fact is
contrary to the facts and the title deeds of the property. The terrace in
the building was purchased by the appellant separately and he is the
exclusive owner of the terrace.
It is further contended that the appellant is living on the second floor
of the building and enough damage has been done to the same and cracks have
occurred therein due to the installation of heavy equipments including
generator sets. The effect of such installation of such heavy equipments
like generator sets on the terrace is not only dangerous but would also
make it impossible for the appellant as well as the surrounding neighboring
residents to live peacefully.
It is further urged by the learned senior counsel for the appellant that
the impugned order is liable to be set aside as the dispute between the
parties is not a private dispute and respondent Nos. 1 to 5 are required in
law to take appropriate legal action against the respondent-owners to stop
the illegal and unauthorized activities in the concerned building. These
activities of running the Pathological Lab are also contrary to Clause 7 of
the conditions mentioned in the Regularisation Certificate dated 11.07.2006
issued by the MCD to the respondent-owners for running of the Pathological
Lab in the concerned building.
On the other hand, the learned senior counsel on behalf of the
respondents have alleged that the appellant himself has not approached this
Court with clean hands and has deliberately suppressed material information
and documents with a view to prejudice this Court against the answering
respondents and has raised unauthorized construction on the roof above the
second floor of the concerned building. It is alleged by them that this
appeal filed by the appellant is motivated by personal animus against the
answering respondents. It is further contented that the contentions urged
by the appellant both in the writ petition and in this appeal do not raise
any question of law or question of public importance, therefore, the same
does not call for interference of this Court.
It is further contended by the learned senior counsel for the respondent-
owners that the Delhi Master Plan 2001 classifies a Clinical Laboratory
under Section 2 - Development Code, Clause 8 (3) Sl. No. 077 as an activity
permissible in a residential area. A clinical laboratory being a utility
service is permitted to be run in both the residential and commercial areas
and this facility must be easily accessible and in close proximity to
people in residential zones.
Further, it is submitted by them that the MPD-2021 which came into force
on 07.02.2007, provides for Mixed Use Regulations. Regulation 15.7.2 reads
thus:
"15.7.2 The minimum ROW of a street or stretch of road on which other
activities are permissible is as follows:
In A & B Colonies*: 18m ROW in regular plotted development; 1-3. Added vide
S.O. 2034(E) dated 12-08-2008 184 Notes
.........
In C & D colonies: 18 m ROW in regular residential plotted development
........."
Further, it is submitted that as Hauz Khas area has been classified as a
Class "B" Colony as per MPD 2021, the aforesaid activities of the
respondent-owners in the residential building are permissible in a Class
"B" Colony, having an 18 m ROW in regular plotted development. It is
further contended that it is relevant to mention that there is no
restriction with respect to the area that can be used for a Nursing Home,
Clinic, Dispensary, Pathological Lab and Diagnostic Centre covered by
Regulation 15.7.1 of the MPD 2021.
It is further submitted by the respondent-owners in their written
submissions that they have installed generator sets for running their
Pathological Lab in the rear set back area of the concerned building, since
the appellant did not permit access to the roof of the second floor for
utilities even though they have a right of access to the terrace to repair
and clean the overhead tanks, to install TV antenna etc., under their
registered sale deed of the building. Further, it is contended by the
learned senior counsel for the respondent-owners of the Pathological Lab
that they have not constructed any shed in the rear set-back area and
generators have been kept in the sound-proof enclosures and the noise
generated from them is within the permissible limits and therefore, there
is no air and sound pollution in the area.
Further, it is contended by the learned senior counsel for the respondent-
owners that respondent No. 5, DPCC has given the permission to install the
aforesaid generators in the building after conducting an inspection of the
same and certified that the air quality standards are being complied with
by them. Further, as advised by DPCC, the respondent-owners have installed
stacks above the height of the building but the appellant broke the stack
on several occasions, and thereby prevented the respondent-owners from
complying with the said directions. Ultimately, the respondent-owners were
constrained to construct a steel structure which is independent of the
building, so as to ensure that the exhaust pipe of the generators is raised
by 1.5. meters above the height of the building. It is further contended
that the respondent-owners have only one gas-cylinder connection in the
Pathological Lab, which is used for making tea, coffee etc. for the Doctors
and staff who are working in the lab, which cannot be termed as hazardous
material as it is only used for domestic purposes.
We have heard the learned senior counsel for both the parties and after
considering the rival legal contentions urged by them, we have to answer
each one of the rival legal contentions in seriatim by assigning the
following reasons.
It is pertinent to note that during the pendency of this appeal, the
parties have tried to reach an amicable settlement, however the same
remained unsuccessful. Be as that may, this nature of ligation cannot be
allowed to be settled between the parties as it involves public interest
and violation of rule of law.
The writ petition was dismissed by the learned single Judge and the same
was affirmed by the Division Bench in its impugned judgment and order on
the question that the proceedings initiated by the appellant are not in the
nature of public interest but is only private interest litigation and
therefore, the High Court had held that the writ does not lie against the
respondents. The said reasoning of the Division Bench in the impugned
judgment is not acceptable to us based on the pleadings and documentary
evidence produced before us as it is clear that several representations
have been made by the affected neighbours of the building at different
stages with regard to the nuisance created by the Pathological Lab right
from 29.12.1995 till date including the complaint made by the 32 residents
of Hauz Khas to the Assistant Commissioner of Police (Traffic) on
27.07.2009. The running of the Pathological Lab in the building by the
respondent-owners amount to violation of the rule of law and affects the
public interest, therefore, it is public interest litigation even though
the appellant herein is a resident of the second floor of the concerned
building and simultaneously he has been fighting for the cause of all the
local residents. This legal principle has been laid down by the
Constitution Bench of this Court in the case of S. P. Gupta and Others v.
President of India and Others[1], which legal principle has been reiterated
recently by this Court in the case of State Of Uttaranchal v. Balwant Singh
Chaufal[2] after adverting to the entire case law on the question of
public interest litigation, the relevant paragraph from the decision of the
S. P. Gupta case (supra) is extracted hereunder:-
"17. It may therefore now be taken as well established that where a legal
wrong or a legal injury is caused to a person or to a determinate class of
persons by reason of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional or legal provision
or without authority of law or any such legal wrong or legal injury or
illegal burden is threatened and such person or determinate class of
persons is by reason of poverty, helplessness or disability or socially or
economically disadvantaged position, unable to approach the court for
relief, any member of the public can maintain an application for an
appropriate direction, order or writ in the High Court under Article 226
and in case of breach of any fundamental right of such person or
determinate class of persons, in this Court under Article 32 seeking
judicial redress for the legal wrong or injury caused to such person or
determinate class of persons. .........The court has to innovate new
methods and devise new strategies for the purpose of providing access to
justice to large masses of people who are denied their basic human rights
and to whom freedom and liberty have no meaning.
The only way in which this can be done is by entertaining writ petitions
and even letters from public-spirited individuals seeking judicial redress
for the benefit of persons who have suffered a legal wrong or a legal
injury or whose constitutional or legal right has been violated but who by
reason of their poverty or socially or economically disadvantaged position
are unable to approach the court for [pic]relief. .... We may also point
out that as a matter of prudence and not as a rule of law, the court may
confine this strategic exercise of jurisdiction to cases where legal wrong
or legal injury is caused to a determinate class or group of persons or the
constitutional or legal right of such determinate class or group of persons
is violated and as far as possible, not entertain cases of individual wrong
or injury at the instance of a third party, where there is an effective
legal-aid organisation which can take care of such cases."
The relevant para from Balwant Singh's case is extracted hereunder
33. The High Courts followed this Court and exercised similar jurisdiction
under Article 226 of the Constitution. The Courts expanded the meaning of
right to life and liberty guaranteed under Article 21 of the Constitution.
The rule of locus standi was diluted and the traditional meaning of
"aggrieved person" was broadened to provide access to justice to a very
large section of the society which was otherwise not getting any benefit
from the judicial system. We would like to term this as the first phase or
the golden era of the public interest litigation. We would briefly deal
with important cases decided by this Court in the first phase after
broadening the definition of "aggrieved person".
34.This Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union
of India, at AIR p. 317, held that:
"62. ... Our current processual jurisprudence is not of individualistic
Anglo-Indian mould. It is broad-based and people-oriented, and envisions
access to justice through 'class actions', 'public interest litigation' and
'representative proceedings'. Indeed, little Indians in large numbers
seeking remedies in courts through collective proceedings, instead of being
driven to an expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have no hesitation in holding
that the narrow concept of 'cause of action' and 'person aggrieved' and
individual litigation is becoming obsolescent in some jurisdictions."
35. In Bandhua Mukti Morcha v. Union of India this Court entertained a
petition even of an unregistered association espousing the cause of over
downtrodden or its members observing that the cause of "little Indians" can
be espoused by any person having no interest in the matter. In the said
case, [pic]this Court further held that where a public interest litigation
alleging that certain workmen are living in bondage and under inhuman
conditions is initiated, it is not expected of the Government that it
should raise a preliminary objection that no fundamental rights of the
petitioners or the workmen on whose behalf the petition has been filed,
have been infringed. On the contrary, the Government should welcome an
inquiry by the Court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the strict sense of the
term as defined in the Bonded Labour System (Abolition) Act, 1976 but they
are made to provide forced labour or are consigned to a life of utter
deprivation and degradation, such a situation can be set right by the
Government.
36. Public interest litigation is not in the nature of adversarial
litigation but it is a challenge and an opportunity to the Government and
its officers to make basic human rights meaningful to the deprived and
vulnerable sections of the community and to assure them social and economic
justice which is the signature tune of our Constitution. The Government and
its officers must welcome public interest litigation because it would
provide them an occasion to examine whether the poor and the downtrodden
are getting their social and economic entitlements or whether they are
continuing to remain victims of deception and exploitation at the hands of
strong and powerful sections of the community and whether social and
economic justice has become a meaningful reality for them or it has
remained merely a teasing illusion and a promise of unreality, so that in
case the complaint in the public interest litigation is found to be true,
they can in discharge of their constitutional obligation root out
exploitation and injustice and ensure to the weaker sections their rights
and entitlements.
37. In Fertilizer Corpn. Kamagar Union v. Union of India this Court
observed that:
"43. Public interest litigation is part of the process of participative
justice and 'standing' in civil litigation of that pattern must have
liberal reception at the judicial doorsteps."
38. In Ramsharan Autyanuprasi v. Union of India this Court observed that
the public interest litigation is for making basic human rights meaningful
to the deprived and vulnerable sections of the community and to assure them
social, economic and political justice.
....
41. The development of public interest litigation has been an extremely
significant development in the history of the Indian jurisprudence. The
decisions of the Supreme Court in the 1970s loosened the strict locus
standi requirements to permit filing of petitions on behalf of marginalised
and deprived sections of the society by public spirited individuals,
institutions and/or bodies. The higher courts exercised wide powers given
to them under Articles 32 and 226 of the Constitution. The sort of remedies
sought from the Courts in the public interest litigation goes beyond award
of remedies to the affected individuals and groups. In suitable cases, the
Courts have also given guidelines and directions. The Courts have monitored
implementation of legislation and even formulated guidelines in the absence
of legislation. If the cases of the decades of 70s and 80s are analysed,
most of the public interest litigation cases which were entertained by the
courts are pertaining to enforcement of fundamental rights of marginalised
and deprived sections of the society. This can be termed as the first phase
of the public interest litigation in India."
25. Apart from this, reliance has been placed by the learned senior
counsel on behalf of the appellant upon the judgment of this Court to
maintain the Writ Petition as a PIL as the appellant is a person who is
also empowered to file a petition under Article 226 of the Constitution of
India challenging the validity of the Regularisation Certificate as per the
decision of this Court in Gadde Venkateswara Rao v. State of A.P.[3],
wherein it was held thus:-
"8. The first question is whether the appellant had locus standi to file a
petition in the High Court under Article 226 of the Constitution. This
Court in Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal
dealing with the question of locus standi of the appellant in that case to
file a petition under Article 226 of the Constitution in the High Court,
observed:
"Article 226 confers a very wide power on the High Court to issue
directions and writs of the nature mentioned therein for the enforcement of
any of the rights conferred by Part III or for any other purpose. It is,
therefore, clear that persons other than those claiming fundamental right
can also approach the court seeking a relief thereunder. The Article in
terms does not describe the classes of persons entitled to apply
thereunder; but it is implicit in the exercise of the extraordinary
jurisdiction that the relief asked for must be one to enforce a legal right
.... The right that can be enforced under Article 226 also shall ordinarily
be the personal or individual right of the petitioner himself, though in
the case of some of the writs like habeas corpus or quo warranto this rule
may have to be relaxed or modified."
....... This Court held in the decision cited supra that '"ordinarily" the
petitioner who seeks to file an application under Article 226 of the
Constitution should be one who has a personal or individual right in the
subject-matter of the petition. A personal right need not be in respect of
a proprietary interest: it can also relate to an interest of a trustee.
That apart, in exceptional cases, as the expression "ordinarily" indicates,
a person who has been prejudicially affected by an act or omission of an
authority can file a writ even though he has no proprietary or even
fiduciary interest in the subject-matter thereof. The appellant has
certainly been prejudiced by the said order. The petition under Article 226
of the Constitution at his instance is, therefore, maintainable."
In view of the above mentioned decisions of this Court, we hold that the
findings and reasons recorded by both the learned single Judge and the
Division Bench of the High Court that it is not public interest litigation
is contrary to the law laid down by the Constitution Bench of this Court
and other decisions referred to supra. The said reasoning is liable to be
set aside, accordingly it is set aside.
Further, notice was issued by the High Court for limited purpose to
examine the correctness of Clauses 3 and 7 of the Regularisation
Certificate issued to the respondent-owners by the MCD in exercise of its
authority to grant the same. However, the MCD has ignored the relevant
aspects of the case of deviation of the then relevant Delhi Master Plan and
unauthorised use of the basement, ground floor, mezzanine floor and the
first floor of the concerned building. The said act of the MCD is contrary
to the legal principles laid down by this Court in the case of Priyanka
Estate International (P) Ltd. v. State of Assam[4], wherein it was held
thus:-
"56. Even though on earlier occasions also, under similar circumstances,
there have been judgments of this Court which should have been a pointer to
all the builders that raising unauthorised construction never pays and is
[pic]against the interest of society at large, but, no heed has been given
to it by the builders. Rules, regulations and bye-laws are made by
Corporations or by Development Authorities, taking in view the larger
public interest of the society and it is a bounden duty of the citizens to
obey and follow such rules which are made for their benefit. If
unauthorised constructions are allowed to stand or given a seal of approval
by court then it is bound to affect the public at large. An individual has
a right, including a fundamental right, within a reasonable limit, it
inroads the public rights leading to public inconvenience, therefore, it is
to be curtailed to that extent."
In addition to this, the appellant being a resident of the second floor of
the building, questioned the legality and validity of the Regularisation
Certificate issued by the MCD under Clause 15.7.1 of the MPD-2021 approved
by the Ministry of Urban Development, Government of India. In the second
Writ Petition (c) 225 of 2008 filed by the appellant, the challenge was on
the basis of the said certificate, for which the learned single Judge at
the time of preliminary hearing of the said petition, has issued limited
notice dated 11.1.2008 to the respondents with respect to Clause 3 of the
Regularisation Certificate dealing with parking arrangements which would
affect the neihbouring local residents of the colony and Clause 7 of the
Regularisation Certificate which states that the respondent-owners shall
ensure no nuisance or hardship would be created for the local residents in
running the Nursing Home. However, contrary to this, they have been
running a large Pathological Lab in the name of Nursing Home, named Dr.
Dang's Diagnostic Centre in the basement, ground floor, mezzanine floor and
the first floor of the building. The respondent-owners have refuted the
same.
According to the learned senior counsel on behalf of the respondent-
owners of the Pathological Lab, the mezzanine floor does not exist in the
building. This plea is contrary to the pleadings made before the courts
below and even before this Court and the same is made with a mala fide
intention to conceal unauthorized construction and contravention of the
building bye-laws. Therefore, the said plea cannot be accepted by us.
Further, we are satisfied that the issuance of the said Regularisation
Certificate in favour of the respondent-owners of the Pathological Lab is
in contravention of the building bye-laws and MPD-2021 referred to supra.
The relevant paras from the MPD 2021 are extracted hereunder for better
appreciation of our conclusions on the contentious points raised by the
learned senior counsel on behalf of the parties:-
"15.1 GOVERNING PRINCIPLES FOR MIXED USE
i. Mixed Use means the provision for non-residential activity in
residential premises.
15.2 MIXED USE IN RESIDENTIAL AREAS
15.2.1. DIFFERENTIATED APPROACH
i) The need for differentiated approach to mixed use policy arises from the
fact that Delhi, being the country's capital and an important centre of
economic activity has a large diversity in the typology of residential
areas. Apart from the planned residential colonies built as part of
Lutyens' Delhi as well as through the process of planned development
undertaken by the Delhi Development Authority, there are authorized
residential areas in the Walled City, Special areas and urban villages.
Other planned areas include resettlement colonies and pre-Delhi Development
Act colonies, including post-partition rehabilitation colonies and pre-1962
residential colonies as per list given in Annexure I. There are also
regularized-unauthorized colonies; unauthorized colonies as well as slums
and jhuggi jhompri clusters in various parts of Delhi.
...
iii) Hence, it is proposed to follow a differentiated approach in the
application of the mixed-use policy in Delhi. The differentiated approach
would be based on categorization of colonies from A to G as adopted by MCD
for unit area method of property tax assessment as applicable on 7.9.2006.
Any change in the categorization of these colonies shall not be made
applicable for the purpose of this chapter without prior approval of
Central Government.
...........
15.3.2 The extent of Mixed Use permissible in various categories of
colonies is further clarified as follows:
1. In colonies falling in categories A and B
No commercial activities will be permissible in the colonies of A & B
categories except
the following:
.................................
"Other activity" restricted to guest houses, Nursing Homes and pre-primary
schools, as defined in para 15.7.1, subject to conditions contained in para
15.7, in plots abutting roads of minimum 18m ROW in regular plotted
development, since these activities are in the nature of 'Public and Semi-
Public' facilities. New banks and fitness centres, wellness centres and
NGOs will not be permissible. Banks which existed as on 7.9.2006, fitness
centres, wellness centres and NGOs which existed as on 7.2.2007, (as
defined in para 15.7.1), in accordance with notifications issued in this
regard from time to time, and are on plots abutting roads of minimum 18m
ROW, on the date of notification, shall however, continue.]
15.4 GENERAL TERMS AND CONDITIONS GOVERNING MIXED USE
.......
........
(ii) Where there are more than one dwelling units in a residential plot,
each of the dwelling units will be permitted to have only type of Mixed Use
activity (either retail shop as per para 15.6. or professional activity or
any one of the other activities listed in para 15.7).
15.5 PERMISSIBLE AND NON-PERMISSIBLE USES
Any trade or activity involving any kind of obnoxious, hazardous,
inflammable, non-compatible and polluting substance or process shall not be
permitted.
15.7 OTHER ACTIVITY
15.7.1 Subject to the general conditions given in para 15.4 and additional
conditions given in para 15.7.3, the following public and semi-public
activities shall also be permitted in the residential plots abutting roads
of minimum ROW prescribed in 15.7.2, whether or not the road is notified as
Mixed Use street:
(a) Pre-primary school (including nursery / Montessori school, creche.)
(b) i. Nursing Home
ii. Clinic, Dispensary, Pathology lab and Diagnostic center.
15.7.2 The minimum ROW of a street or stretch of road on which the above-
mentioned other activities are permissible is as follows:
In A & B Colonies: 18m ROW in regular plotted development;
......
iii. ....pathology labs shall be permissible: on minimum plot size of 100
sqm in regular plotted development on 13.5 m ROW in C & D colonies and 9 m
ROW in E, F & G colonies. However, the minimum plot size shall be 50 sqm
for clinics, dispensaries and pathology labs running in these colonies and
also in E, F and G category colonies. In Walled City, Walled city
extension, villages and unauthorized-regularized colonies, conditions of
plot size and minimum ROW shall not be applicable.
.... (emphasis supplied by this Court)
Now, we have to examine whether this residential property comes under the
Mixed Use or not. Clause 15.2.1 (i) referred to supra clearly states in the
Master Plan issued by the Planning Authority under the heading Mixed Use
in the area in question to meet the growing demand of commercial activities
and overcome the shortfall of commercial space. A liberalised provision of
Mixed Use in the residential areas has been adopted adhering to the
requisites of the environment while achieving better synergy between work-
place, residence and transportation.
Further, the report of the DPCC clearly states that the Regularisation
Certificate was granted for running a Nursing Home whereas a Pathological
Lab in the name of Dr. Dang Diagnostic Centre has been functioning on the
basement, ground floor of the building since the year 1995. In view of the
Clause 15.4(ii) of the MPD-2021, the general terms and conditions governing
Mixed Use provides that where there are more than one dwelling units in a
residential plot, each of the dwelling units will be permitted to have only
type of Mixed Use activity (either retail shop as per Clause 15.5 or
professional activity or any one of the other activities as provided in
Clause 15.7). In the residential plot in question there are more than two
residential flats and once again such kind of use of premises in the
dwelling unit will be permitted to have only one kind of activity.
Further, we have examined the 'Major Highlights of the Master Plan of
Delhi 2021' as penned by the Ministry of Urban Development, wherein, the
focal points of the Master Plan have been discussed. The relevant point (n)
from the above said Highlights is extracted hereunder:-
" (n) Health Infrastructure:
? Health facilities proposed to achieve norms of 5 beds / 1000 population
? Enhancement of FAR for hospitals and other health facilities.
? Nursing Homes, clinics etc. also allowed under relaxed Mixed Use Norms."
Further, it is necessary for us to examine Clause 15.8 of MPD 2021 which
states thus:
"15.8 PROFESSIONAL ACTIVITY
....
In the case of plotted development with single dwelling unit, professional
activity shall be permissible on any one floor only, but restricted to less
than 50% of the permissible or sanctioned FAR whichever is less on that
plot.
[Professional activity in basements is permissible in plotted
development, subject to relevant provisions of Building Bye-Laws,
structural safety norms and fire safety clearance. In case, the use of
basement for professional activity 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.]"
(Emphasis laid down by this Court)
From a careful reading of the above provision emphasised by us, it is clear
that if the use of basement for professional activity exceeds the FAR, then
such excess usage shall be subject to payment of appropriate charges
prescribed with the approval of the Government of India. Neither the MCD
nor the respondent-owners in their pleadings have brought this fact to the
notice of this Court that they have complied with the above said provision
by paying the appropriate charges for usage of the basement when the same
is exceeding the permissible FAR on the plot of the building.
From a careful reading of the aforesaid extracted portions of the Master
Plan 2021 and upon which reliance has been placed by Mr. H.P.Rawal, learned
senior counsel on behalf of appellant and Mr. K. K. Venugopal and Ms.
Indu Malhotra, learned senior counsel on behalf of the respondents, we
have to hold that the grant of Regularisation Certificate under Mixed Use
Regulations of the MPD 2021 giving retrospective effect enabling respondent-
owners to run a Pathological Lab in the guise of a Nursing Home in the
residential area falling in categories "A" and "B" is not sustainable in
law and liable to be set aside. Further, in view of the facts of the case
on hand, the relevant provisions of MPD 2021 and the evidence on record, we
have to hold that the writ appeal filed by the appellant has been wrongly
dismissed by the Division Bench of the High Court without examining the
legality and validity of the issuance of the Regularisation Certificate on
11.06.2007 allegedly under the MPD 2021 which was still at the proposal
stage at that time and the said Plan came into effect only on 07.02.2007,
enabling the respondent-owners to use the premises for commercial activity
which in our view is prohibited in the residential plot of the building
under the various Clauses of the Master Plan 2021 extracted above.
Further, the said Regularisation Certificate granted by the MCD is
contradictory to the Mixed Use Regulations under the Delhi Master Plan 2001
as well which was relevant and in force at the time of granting of the
Regularisation Certificate to the respondent-owners. The provision for
Mixed Use under the MPD 2001 clearly states that the area/street for Mixed
Use activity should be identified by conducting a study of the impact on
the traffic in that area/street in which such Mixed Use activity is likely
to take place and also evaluate the environmental needs and impact on
municipal services of the area if Mixed Use is allowed. In the present
case, no report or document of evaluation or study conducted by the MCD has
been brought to the notice of the courts below or this Court to establish
and prove that the concerned building is an appropriate premises to allow a
non-residential or Mixed Use activity in residential premises. The Mixed
Use Regulations under MPD 2001 further states that if after the above said
evaluation and study it is found that the Mixed Use activity in the
street/area is feasible, then such activity shall be allowed only on the
ground floor of the premises to the extent of 25% of the area or 50sqm,
whichever is less and that such establishment can be run by the resident of
the dwelling unit only. In the present case, the Pathological Lab is being
run on the basement, ground floor, first floor and the mezzanine floor and
the respondent-owners of the Pathological Lab are not the residents of the
concerned building, thus it is a clear violation of the provisions for
Mixed Use of residential premises under the Master Plan 2001. The Master
Plan 2001 also provides that activities such as running of a nursing home
should not be allowed, whereas in the Regularisation Certificate, it is
clearly stated that permission is being granted for running of a nursing
home. The relevant paras of the said plan are extracted hereunder:
"CLAUSE 10 MIXED USE REGULATIONS:
(NON-RESIDENTIAL ACTIVITY ON RESIDENTIAL PREMISES)
Mixed Use here, essentially means permission of non-residential activity on
residential plot or residential flat. Specific provision for Mixed Use have
been given for walled city, Karol Bagh and other parts of the Special Area
in the relevant sections in the Master Plan.
At the time of preparation of Zonal (divisional) plans, in residential
plotted development in areas other than the Walled City and Karol Bagh and
other urban renewal areas, streets of Mixed Use activity shall be
identified by (i) conducting a traffic study in each individual case to see
whether after permission of Mixed Use activity, there will be no adverse
effect in traffic circulation in that area/street and it would be built to
take additional traffic which is likely to be generated because of the
Mixed Use. (ii)by evaluation its impact on the municipal services and
environmental needs of the area.
As a part of the traffic study, the traffic management solutions like
traffic free pedestrianised streets/areas and on way traffic etc. could
also be considered for introduction as a solution to the traffic/parking
problem of the area.
In case it is found feasible to permit Mixed Use in a street/area, the
same would be subject to the following conditions:
The commercial activity allowed shall be only on the ground floor to the
extent of 25% or 50 sqm which ever is less.
The establishment shall be run only by the resident of the dwelling unit.
The following activities shall not be allowed:
Retail Shops...
Repair Shops....
Service Shops...
Nursing Home
......"
In view of the reasoning discussed above, the impugned judgment passed by
the Division Bench in not accepting the case of the appellant is not only
erroneous on factual position but also error in law and the same is liable
to be set aside.
The learned senior counsel for the respondent-owners has placed strong
reliance on the grant of Regularisation Certificate dated 11.07.2006 by the
MCD in favour of the respondent-owners to justify that the running of the
Pathological Lab in the concerned building is valid and legal as the said
certificate was granted by the competent authority. Therefore, it is
necessary for us to examine the Regularisation Certificate issued by the
MCD. The relevant portion of the Certificate for running the Pathological
Laboratory in the concerned building is extracted hereunder:
"....the competent authority has granted permission for running a
clinical Pathological Laboratory at ground floor and first floor (area for
this purpose is 222.25 sqm) in premises No. D-1, Hauz Khas, New Delhi under
the Mixed Land Use Regulations of Government of India, subject to following
conditions:
xxxxxxx
xxxxxxx
3. All parking arrangements will be made by you within the plot in
question. 4. No commercial activity in the
form of canteen or restaurant will be permitted. However, catering will
be allowed only for the residents of the nursing home.
7. The applicant will ensure that no nuisance or hardship is created for
the local residents...
You are required to deposit permission fee for the financial years 2004-
2005 and 2005-2006 and 2006-2007 amounting to Rs.8,39,916/- on account of
Regularisation of running of nursing home in the aforesaid premises within
a week."
On examining the Regularisation Certificate issued by the MCD, it is clear
that the Regularisation Certificate is for running of a Pathological Lab
whereas the conditions mentioned therein are directed towards running of a
nursing home. Therefore, there is a lot of inconsistency within the
Regularisation Certificate itself and due to the same, the Regularisation
Certificate cannot be accepted by us as it is impermissible not only in
law but also because the same was granted without seeking permission from
the High Court during the pendency of the earlier Writ Petition No. 8808 of
2004 filed by the appellant.
39. In view of the aforesaid reasons, we have to hold that the grant of
the Regularisation Certificate with the alleged retrospective effect to run
the Nursing Home in favour of respondent-owners w.e.f. 11.7.2006 cannot be
accepted by us and the same is liable to be quashed.
40. With regard to the environmental impact due the running of the
Pathological Lab in the concerned building, we first examine Clause 15.5 of
MPD 2021, which clearly states that any trade or activity involving any
kind of abnoxious, hazardous, inflammable activities, non-compatible
activities and polluting substance or process shall not be permitted. It
is worthwhile to extract the definition of 'Process' which in the absence
of a definition under the Environment Protection Laws, we are required to
borrow it from Oxford Dictionary:
"A systematic series of.mechanized or chemical operation that are performed
in order to produce something."
It is also necessary to extract the definition of "hazardous substance"
under Section 2 (e) of the Environment (Protection) Act, 1986 which word
occurred in Clause 15.5 of MPD 2021.
"(e) "hazardous substance" means any substance or preparation which, by
reason of its chemical or physico-chemical properties or handling, is
liable to cause harm to human beings, other living creatures, plant, micro-
organism, property or the environment;"
41. As per the report of the DPCC, it is clear that chemical substances
emitted from the Pathological Lab will be obnoxious, non-compatible,
polluting and therefore, the same are not permissible under Clause 15.5 of
the MPD 2021. Further, when the respondent-owners started the Diagnostic
Centre, they employed about more than 50 people and installed 25 Air
Conditioners, two diesel generator sets of 25 KVA and 40 KVA each in the
set back area, along with kerosene oil tanks, gas cylinders and electric
panels. Around 300 patients' visit the centre per day and more than 100
cars are parked in the vicinity. All these factors lead to air pollution
which is in contravention of the Air (Prevention and Control of Pollution)
Act, 1981. At present, 80 employees are working and around 300 patients
visit the Pathological Lab every day and vehicles are parked in and around
the surrounding area which is also creating a parking problem to the
residents of the area. The nuisance created by all these factors not only
leads to air pollution but also noise pollution to a great extent. In this
regard, it is necessary for us to examine the decision of this Court in the
case of Noise Pollution (V) in RE[5] at paras 11, 103 and 104 wherein it
was held that noise generated upto unpleasant or obnoxious levels violates
the rights of the people to a peaceful, comfortable and pollution-free life
guaranteed by Article 21 of the Constitution of India. The said paras are
quoted hereunder:-
"11. Those who make noise often take shelter behind Article 19(1)A pleading
freedom of speech and right to expression. Undoubtedly, the freedom of
speech and right to expression are fundamental rights but the rights are
not absolute. Nobody can claim a fundamental right to create noise by
amplifying the sound of his speech with the help of loudspeakers. While one
has a right to speech, others have a right to listen or decline to listen.
Nobody can be compelled to listen and nobody can claim that he has a right
to make his voice trespass into the ears or mind of others. Nobody can
indulge into aural aggression. If anyone increases his volume of speech and
that too with the assistance of artificial devices so as to compulsorily
expose unwilling persons to hear a noise raised to unpleasant or obnoxious
levels then the person speaking is violating the right of others to a
peaceful, comfortable and pollution-free life guaranteed by Article 21.
Article 19(1)A cannot be pressed into service for defeating the fundamental
right guaranteed by Article 21.
103. The Air (Prevention and Control of Pollution) Act, 1981 Noise was
included in the definition of air pollutant in Air (Prevention and Control
of Pollution) Act in 1987. Thus, the provisions of the Air Act, became
applicable in respect of noise pollution, also.
104. The Environment (Protection) Act, 1986. Although there is no specific
provision to deal with noise pollution, the Act confers powers on
Government of India to take measures to deal with various types of
pollution including noise pollution."
42. Further, it was held in this case that noise was included in the
definition of "air pollutant" in the Air (Prevention and Control of
Pollution) Act, 1981 and therefore, the provisions of the said Act became
applicable in respect of the noise pollution also. It was also held that
although there is no specific provision to deal with noise pollution, the
Environment (Protection) Act, 1986 confers powers on the Government of
India to take measures to deal with various types of pollution including
noise pollution.
43. Further, on examining the evidence on record, particularly the
photographs depicting the area in and around the building, it is clear that
large diesel generator sets have been erected by the respondent-owners in
the set-back area which is an illegal structure in the residential premises
and is in contravention of the building byelaws and zonal regulations of
the MCD.
44. The running of this large Pathological Lab has lead to emission of
hazardous substances and in that process human beings, plants, micro
organisms, and other living creatures' are being exposed to harmful physico-
chemical properties. Not only this, they also create pollution which
contaminates water on account of the discharge of chemical properties used
in the process of running the Pathological Lab, causing nuisance and harm
to public health and safety of the residents of the area. This fact is
certified by the DPCC in its report dated 4.8.2008. The usage of such
generator sets has led to the damage of the building and cracks have been
found in the building structure. The explanation sought to be given by the
respondent-owners is that the aforesaid generator sets were installed in
the set-back area as the appellant has not permitted to install the same on
the terrace of the building. The objection of the appellant installing the
same in the terrace is that he has purchased the said area and the
appellant is living on the second floor and therefore, if the generator
sets are installed on the terrace, it would be completely impossible for
him to live on the second floor of the premises due to the sound and air
pollution caused by the generator sets. It would not only affect the
appellant and his family but also the other neighbouring residents of the
locality.
45. It is an undisputed fact that the consent was not obtained by the
respondent-owners from DPCC under Section 25 of the Water (Prevention and
Control of Pollution) Act which states that no person shall without the
previous consent of DPCC establish or take any steps to establish any
industry, operation or process or any treatment and disposal system or any
extension or addition thereto which is likely to discharge sewage or trade
effluent into a stream or well or sewer or land. It is mandatory under the
said provision to first obtain consent from DPCC and admittedly such
consent has neither been obtained by the respondent-owners nor granted by
the respondent No.5, DPCC, nor has the same been placed before the learned
single Judge or the Division Bench or this Court. The running of the
Pathological Lab for which the generator sets and other heavy equipments
have been installed not only create sound pollution and air pollution but
also the same is in contravention of the Water, Air and the Environment
Protection Acts referred to supra. Therefore, in view of the relevant
provisions of law referred to supra,the facts of the case and the evidence
on record, we have to hold that the running of the Pathological Lab by the
respondent-owners in the concerned building is in violation of law. In this
aspect of the matter, we refer to the legal principles laid down by this
Court in the case of M.C. Mehta v. Union of India[6], the relevant
paragraph from the said case is extracted hereunder:
"56. On 18-5-1995, Justice R.C. Lahoti (as the former Chief Justice of
India then was) in the case of ANZ Grindlays Bank v. Commr., MCD echoed
similar words and referred to decision of this Court, observing that the
word "environment" is of broad spectrum which brings within its ambit
hygienic atmosphere and ecological balance. It is, therefore, not only the
duty of the State but also the duty of every citizen to maintain hygienic
environment. There is constitutional imperative on the State Government and
the municipalities, not only to ensure and safeguard proper environment but
also an imperative duty to take adequate measures to promote, protect and
improve both the man-made and the natural environment. Dealing with the
municipal laws providing for power of demolition, it was observed that
while interpreting municipal legislation framed in public interest, a
strict constitutional approach must be adopted. A perusal of the master
plan shows [pic]that the public purpose behind it is based on historic
facts guided by expert opinion."
46. Even though the High Court issued notice in the writ petition to
examine the case in so far as the Clauses 3 and 7 of the Regularisation
Certificate, the learned senior counsel appearing on behalf of the
respondent-owners contended that the High Court has examined this aspect
and did not find any contravention of the aforesaid conditions or any
illegality committed by the respondent-owners, therefore, this Court is
required to examine only with regard to the aforesaid Clauses. This
contention cannot be accepted by this Court particularly in view of the
fact that there is blatant violation of the provisions of building bye-laws
of MCD in using the building for the purpose other than the purpose for
which it is constructed and further running the Pathological Lab or the
Nursing Home is impermissible in the concerned building under the Master
Plan 2001 or MPD 2021 and also under the provisions of the Water
(Prevention and Control of Pollution) Act, 1986.
47. The running the Pathological Lab by the respondent-owners air, sound
pollution is created rampantly on account of which the public resident
health and peaceful has been adversely affected. Therefore, public interest
is affected and there is violation of rule of law. Hence, we have examined
this appeal on all aspects of the matter and on merits. This position of
law is well settled in the catena of decisions of this Court.
Further, the respondent-owners to justify that the Pathological Lab does
comply with the safety measures and environmental regulation as enforced by
the Government from time to time, have submitted the National Accreditation
Board for Testing and Calibration Laboratories (NABL) Certificate that has
been granted to the Diagnostic Centre. On our examination of the said
certificate, it is true that the Pathological Lab had been granted such
NABL certification, however, the same was granted on 15.7.2001 and was
valid only for three years from the date of issue of the certificate i.e.
upto 14.07.2004. No record or document has been produced before us to prove
that the Pathological Lab is still certified under the NABL certification.
Hence, the above said justification and submission cannot be accepted by
us.
Further, despite its notice by the MCD and DPCC, the illegal and unlawful
activities of the respondent-owners have continued. Instead of taking
prompt action as provided under the provisions of DDA Act, 1957 and the
Environment Law referred to supra, the MCD proceeded to regularise the
illegal and unlawful activities of the respondent-owners which has been
carrying on since 1995 though it is a party to the writ petition
proceedings initiated against them for running the Pathological Lab on the
basement, ground floor, first floor and mezzanine floor of the building.
Further, the DPCC not only regularised the commercial activities of the
Pathological Lab run by the respondent-owners under the guise of a 'Nursing
Home' with retrospective effect but no prompt action was taken under the
provisions of the Act to either stop it or to demolish the illegal
structure.
Therefore, both the MCD and the DPCC abdicated their statutory duties in
permitting the owners to carry on with the unlawful activities which
inaction despite persistent request made by the appellant and the residents
of the area did not yield any results. The counsel for the MCD made the
statement before the courts below and even before this Court that there are
no illegal activities on the part of the respondent-owners as they are
supported by issuance of a Regularisation Certificate. In this regard as
discussed previously in this judgement, the issuance of Regularisation
Certificate to run the Pathological Lab in the building is totally
impermissible in law even though the respondent-owners have placed reliance
upon Mixed Use of the land in the area as per MPD 2021 referred to supra.
Further, it is necessary for us to make an observation here that the
conduct of the MCD and the DPCC for their inaction is highly deplorable as
they have miserably failed to discharge their statutory duties on account
of which there has been a blatant violation of the rule of law and thereby
a large number of residents of the locality are suffering on account of the
unlawful activities of the respondent-owners, whose activities are
patronised by both the authorities.
In view of the reasons recorded by us on the relevant aspects which have
emerged from the pleadings, the questions which were raised and the rival
legal contentions urged, we have to reject the both factual and legal pleas
on behalf of the respondent-owners. We also do not accept the reliance
placed by the learned senior counsel Mr. L. Nageshwar Rao upon the National
Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011 No.20
of 2011, which was valid up to 31st December, 2014 in justification of the
inaction and the same is wholly untenable in law. The contentions urged by
the learned senior counsel placing reliance upon the MPD 2021 which came
into force w.e.f. 07.02.2007 that the respondent-owners are permitted to
run the Nursing Home and carry on with the Diagnostic Centre in the
building placing further reliance upon the various judgments of this Court
referred to supra are all unfounded and the same cannot be accepted as they
are misplaced.
For the reasons stated supra, the appeal is allowed and the impugned
judgments and orders of both the learned single Judge and Division of the
High Court are hereby set aside and Regularisation Certificate is quashed
and rule is issued. Further, directions are issued to the respondents MCD
and DPCC to see that the unlawful activities of the respondent-owners are
stopped as per our directions. The respondent-owners are directed to close
down their establishment of running 'Dr. Dang's Diagnostic Centre' within
four weeks from the date of receipt of the copy of this Judgment by
shifting the same to alternative premises and submitting the compliance
report for the perusal of this Court. If the respondent-owners do not
comply with the above directions of this Court within four weeks, the MCD
is directed to take necessary prompt steps for sealing or closing down of
all the activities undertaken by them in the premises of concerned building
and submit the compliance report for the perusal of this Court. All the
I.A.s are disposed of accordingly. No costs.
.....................................................................J.
[V. GOPALA GOWDA]
.....................................................................J.
[C.NAGAPPAN]
New Delhi,
March 20, 2015
ITEM NO.1A-For Judgment COURT NO.10 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 8284/2013
ANIRUDH KUMAR Appellant(s)
VERSUS
MUNICIPAL CORP. OF DELHI & ORS. Respondent(s)
Date : 20/03/2015 This appeal was called on for pronouncement of JUDGMENT
today.
For Appellant(s)
Ms. Purnima Bhat,Adv.
For Respondent(s)
Mr. Vikas Mehta,Adv.
Mr. D. N. Goburdhan,Adv.
Mr. P. Parmeswaran,Adv.
Mr. Rakesh Kumar,Adv.
Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
The appeal is allowed in terms of the signed Reportable
Judgment.
All the I.A.s are disposed of accordingly.
(VINOD KR. JHA) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable Judgment is placed on the file)
-----------------------
[1]
[2] (1981) supp. SCC 87
[3]
[4] 2010 (3 ) SCC 402
[5]
[6] AIR 1966 SCC 828
[7]
[8] (2010) 2 SCC 27
[9]
[10] (2005) 5 SCC 733
[11]
[12] (2006) 3 SCC 399