In a very strictly worded judgment, a bench of Justices V.Gopala Gowda and C.Nagappan ordered a pathological lab running in a residential complex in the name of a nursing home to be shifted to an alternative premise within 4 weeks and scolded the Municipal Corporation of Delhi (MCD) for laxity in its approach.
The SLP was filed against the orders passed by a Single Bench and the Division Bench of the Delhi High Court. The matter pertains to a challenge to running of a Pathological Lab violating various norms in form of a writ petition filed before the High Court. The appellant is a resident of the complex where the lab was run by Resp 6 & 7 in the ground floor, first floor and the mezzanine floor. The Lab employed around 50 people, 25 ACs, 2 Diesel Generators and caused lot of parking problems plus disposal of hazardous waste. Various Complaints were made to MCD as Resp 1 and SHO of the area as Resp 2 among others. Infact during pendency of the writ petition, a Regularization Certificate was granted to the lab. The challenge to this Certificate was rejected by the High Court in the revised fresh writ petition.
Denying that an amicable settlement can be allowed in disputes of such nature, the bench speaking through Justice Gowda rejected the contention that the petition was not in the nature of a public interest as public at large was affected. The judgment records that even after several complaints, no action was taken by the MCD. According to the sanctioned building plan, the basement and the mezzanine floor could only be used for storage purpose and nothing else. The bench also noted in oara 29 that counsel for respondents i.e. Indu Malhotra, K.K.Venugopal and L.Nageshwar Rao made a submission with mala fide intention that no mezzanine floor existed in the building. The Regularization Certificate was found in contravention of Building Bye Laws and MPD-2021.(Master Plan) The bench noted that the property does not come under Mixed Use where it is allowed to use complex for such purposes. It was strictly pointed out that the Certificate even if considered valid was granted only to run a nursing home but not a pathological lab. It was concluded that the Regularization Certificate was invalid in the eyes of law. It was also judged that the whole establishment by Resp 6 & 7 violated principles of the Environment Protection Act, Water (Prevention and Control of Pollution) Act, 1986 and Water (Prevention and Control of Pollution) Act by not complying with the safety measures.
The conclusion was recorded as –
“53. 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 Page 50 50 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.”
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.
Dated;March 20, 2015
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
installing
to
mezzanine
heavy
medical
floor
and
equipments
first
to
floor
make
it
by
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
Page 2
3
since
a
large
number
of
patients
visited
the
centre
every day.
3.
the
The appellant made various complaints pertaining to
violation
of
the
authorities’, namely
Commissioner,
Master
Municipal
‘the
MCD’),
3)Respondent
to
the
1)Respondent
Corporation
2)Respondent
No.3
Plan
-
No.2
-
No.1-
of
SHO
Executive
concerned
Delhi(for
of
the
Engineer,
Dy.
shot
area,
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
Page 3
4
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
respect
to
Certificate.
limited
Clauses
The
notice
3
and
Learned
to
7
the
of
single
respondents
the
with
Regularisation
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
Page 4
5
of the other local residents had approached the Court
with any complaint pertaining to nuisance.
4.
The
first
parking
respondent
charges
Regularisation
of
-
MCD
confirmed
Rs.9,35,673/-
respondent owners
and
that
deposited Rs.8,39,916/-
one-time
terms of the
paid by the
respondent-owners had also
charges. The
Certificate
had
as
in
that
been
conversions
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.
5.
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.
Page 5
6
6.
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.
7. 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.
8. 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
Page 6
7
or permission from the MCD prior to setting up of the
Diagnostic Centre in the residential area which is
admitted
by
According
the
to
concerned
the
respondents
sanctioned
themselves.
building
plan,
the
basement and the mezzanine floor could be used only
for storage purpose and for no other purpose.
9. It is further contended by him that the MCD never
sought permission of the High Court before issuing
Regularisation
respondent-owners
Certificate
when
W.P.
in
No.
favour
8808
of
of
the
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
Page 7
8
effect, the MCD went ahead with issuing Regularisation
Certificate
under
the
said
plan
in
favour
of
the
respondent-owners of the Pathological Lab.
10.
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
continuous
they
nuisance
have
being
been
facing
committed
due
by
to
the
the
said
Diagnostic and Pathological Lab.
11.
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
Page 8
9
is mandatory on the part of such establishment to first
obtain
consent
from
the
operating any industry,
treatment and disposal
DPCC
for
operation
system
establishing
or
or
process
any
or
extension
or
any
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.
12.
It
permitted
is
by
further
the
contended
MCD
in
that
the
pursuance
area
of
the
illegally
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.
fact
pleaded
inspection
by
the
report
appellant
submitted
is
by
The said
corroborated
the
DPCC
by
in
the
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.
13.
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
Page 10
11
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.
14.
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.
15.
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
Page 11
12
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.
16.
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.
Page 12
13
17.
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.
18.
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
.........”
19.
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”
Page 13
14
Colony,
having
development.
an
18
m
ROW
in
regular
plotted
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.
20.
their
It is further submitted by the respondent-owners in
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.
Page 14
15
21.
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
respondent-owners
directions.
constrained
occasions,
from
construct
thereby
complying
Ultimately,
to
and
the
a
prevented the
the said
with
respondent-owners
steel
structure
were
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
that
the
respondent-owners
have
only
one
contended
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.
22.
We have heard the learned senior counsel for both the
parties and after considering the rival legal contentions
Page 15
16
urged by them, we have to answer each one of the rival
legal contentions in seriatim by assigning the following
reasons.
23.
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.
24.
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
Page 16
17
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
Others1,
which
legal
principle
has
been
reiterated recently by this Court in the case of State Of
Uttaranchal v. Balwant Singh Chaufal2
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
1
(1981) supp. SCC 87
2
2010 (3 ) SCC 402
Page 17
18
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 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
Page 18
19
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, 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.
Page 19
20
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
Page 20
21
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
3
AIR 1966 SCC 828
Page 21
22
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.”
26.
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.
27.
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
Page 22
23
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 Assam4, 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
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.”
4
(2010) 2 SCC 27
Page 23
24
28.
of
In addition to this, the appellant being a resident
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
respondents
with
Regularisation
arrangements
residents
Regularisation
respect
Certificate
which
of
notice
the
would
dated
to
Certificate
Clause
dealing
affect
colony
11.1.2008
the
and
which
3
to
of
with
states
7
the
parking
neihbouring
Clause
the
local
of the
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.
Page 24
25
29.
of
According to the learned senior counsel on behalf
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.
30.
said
Further, we are satisfied that the issuance of the
Regularisation
respondent-owners
contravention
of
Certificate
of
the
the
in
favour
Pathological
building
Lab
bye-laws
and
of
is
the
in
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
Page 25
26
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
Page 26
27
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
Page 27
28
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)
31.
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.
32.
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
Page 28
29
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.
33.
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.”
34.
Further, it is necessary for us to examine Clause
15.8 of MPD 2021 which states thus:
“15.8 PROFESSIONAL ACTIVITY
i.
....
(iii) 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.
(iv) [Professional activity in basements is
permissible in plotted development, subject
to relevant provisions of Building Bye-Laws,
Page 29
30
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
emphasised
basement
by
for
reading
us,
it
of
is
the
clear
professional
above
that
activity
if
provision
the
exceeds
use
the
of
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.
35.
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
Venugopal
and
Ms.
Indu
Malhotra,
Mr. K. K.
learned
counsel on behalf of the respondents,
senior
we have to
Page 30
31
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.
Page 31
32
36.
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
activity in
allow
a
non-residential
residential
premises.
or
The
Mixed Use
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
Page 32
33
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
basement,
mezzanine
Pathological
ground
floor
Pathological
floor,
and
Lab
Lab
the
are
is
being
first
run
floor
on
and
respondent-owners
not
the
residents
the
the
of the
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
Page 33
34
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.
(i)
(ii) The establishment shall be run
resident of the dwelling unit.
(iii) The following activities shall not be allowed:
(a) Service Shops...
(d)
the
Repair Shops....
(c)
by
Retail Shops...
(b)
only
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.
Page 34
35
37.
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
Certificate issued by the MCD.
of
the
Certificate
Laboratory
in
the
for
Regularisation
The relevant portion
running
concerned
the
the
building
Pathological
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.
Page 35
36
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.”
38. On examining the Regularisation Certificate issued
by
the
MCD,
Certificate
it
is
is
for
clear that
running of
the
a
Regularisation
Pathological
Lab
whereas the conditions mentioned therein are directed
towards running of a nursing home. Therefore, there is
a
lot
of
inconsistency
Certificate
itself
and
within
due
the
to
Regularisation
the
same,
the
Regularisation Certificate cannot be accepted by us
as
it
because
is
impermissible
the
same
was
not
only
granted
in
law
without
but
also
seeking
permission from the High Court during the pendency of
the earlier Writ Petition No. 8808 of 2004 filed by
the appellant.
Page 36
37
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 ch
emical operation that are performed in
order to produce something."
It
is
also
“hazardous
necessary
substance”
to
extract
under
the
Section
definition
2
(e)
of
of
the
Page 37
38
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
about
started
more
the
than
Diagnostic
50
people
Centre,
and
they
installed
employed
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
patients visit
the
are
working
Pathological
Lab
and
around
every
300
day
and
Page 38
39
vehicles are parked in and around the surrounding area
which
is
residents
also
of
creating
the
area.
a
The
parking
problem
nuisance
created
to the
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 RE5 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
5
(2005) 5 SCC 733
Page 39
40
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
therefore,
and
the
Control
of
provisions
Pollution)
of
the
Act,
said
1981
Act
and
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
Page 40
41
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
generator
owners
in
structure
building,
sets
have
the
the
of
is
been
set-back
in
contravention
it
clear
erected
area
residential
the
that
by
which
diesel
the respondent-
is an
premises
building
large
byelaws
and
and
illegal
is
in
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.
pollution
which
Not only this, they also create
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
Page 41
42
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
Section
by
25
the
of
the
respondent-owners
Water
from
(Prevention
DPCC
and
under
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
Page 42
43
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
neither been obtained
admittedly
by
the
such
consent has
respondent-owners nor
granted by the respondent No.5, DPCC, nor has the same
been
placed
Division
before
Bench
or
the
learned
this
Court.
single
or the
running
The
Judge 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 India6,
the relevant
paragraph from the said case is extracted hereunder:
6
(2006) 3 SCC 399
Page 43
44
“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 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
senior
of
the
counsel
Regularisation
appearing
on
Certificate,
behalf
of
the
the
learned
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
Page 44
45
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.
48.
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
Accreditation
to
time,
Board
have
for
submitted
Testing
and
the
National
Calibration
Laboratories (NABL) Certificate that has been granted to
the Diagnostic Centre. On our examination of the said
Page 45
46
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.
49.
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
Page 46
47
‘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.
50.
Therefore, both the MCD and the DPCC abdicated
their statutory duties in permitting the owners to
carry
on
inaction
with
the
despite
unlawful
persistent
activities
request
made
which
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
supported
the
by
respondent-owners
issuance
of
a
as
they
are
Regularisation
Certificate. In this regard as discussed previously
in this judgement, the issuance of Regularisation
Certificate
building
is
to
run
the
totally
Pathological
impermissible
Lab
in
in
law
the
even
though the respondent-owners have placed reliance
upon Mixed Use of the land in the area as per MPD
2021 referred to supra.
Page 47
48
51.
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.
52.
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
Page 48
49
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.
53.
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
Page 49
50
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]
New Delhi,
March 20, 2015
.....................................................................J.
[C.NAGAPPAN]
No comments:
Post a Comment