IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.03.2008 C O R A M THE HONOURABLE Mr.JUSTICE P.JYOTHIMANI W.P.No.34897 of 2007 1. Mr.K.Ashok Kumar 2. Mr.B.Govindarajan 3. Mrs.C.Bhuvanasundari 4. Mr.Karthick 5. Mr.Muralidhar 6. Mr.Vijay .. Petitioners -Vs- 1. State of Tamil Nadu, Rep by the Secretary to Government, Health & Family Welfare Department, Secretariat, Fort St. George, Chennai - 600 009. 2. The Corporation of Chennai, Rep by its Commissioner, Ripon Building, Chennai - 600 003. 3. The Tamil Nadu Pollution Control Board, Rep by its Chairman, 76/100, Anna Salai, Guindy, Chennai - 600 032. 4. The Commissioner of Police, Egmore, Chennai - 600 008. 5. Dr.M.Prabhakar 6. Dr.Punitha Gopinathan 7. Dr.Sheik Md.Mubeen https://hcservices.ecourts.gov.in/hcservices/ 8. The Chennai Metropolitan Development Authority, Rep by its Chairman / Member Secretary, Gandhi Irwin Road, Egmore, Chennai - 600 008. .. Respondents Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus, directing the respondents 1 to 4 and 8 to forthwith initiate action including the closure of the hospital being run by respondents 5 to 7 in Flat No.A, Ground Floor Graha Mahalakshmi Apartment, No.37, Karaneeswarar Koil Street, Saidapet, Chennai - 600 015 or in any other flat in the said premises in gross violation of the petitioners' fundamental right as well as the provisions of the 'The Town and Country Planning Act', 1971, 'Development Control Rules, The Tamil Nadu Apartment Ownership Act, 1994, Bio-Medical Waste (Management and Handling) Rules, 1998 and Tamil Nadu Public Health Act, 1939. For Petitioners : Mr.Satish Parasaran For Respondents 5 to 7 : Mr.K.A.Ravindran For Respondent 8 : Mr.C.Kathiravan Standing Counsel for CMDA O R D E R This writ petition is filed by the owners / residents of Graha Mahalakshmi Apartment, which is a residential complex situated at No.37, Karaneeswarar Koil Street, Saidapet, Chennai - 600 015. The apartment, for which planning permission has been obtained as per the Tamil Nadu Town and Country Planning Act, 1971 from the appropriate authorities, consists of totally 8 flats. Out of 8 residential flats, two are on the ground floor and the 5th respondent Dr.Prabhakar is the owner of Flat No.A on the ground floor. 2. According to the petitioners, all the other flats are occupied for residential purpose. There is a common area for car / two wheeler parking which is located in the front side of the apartment facing the road, consisting of 2,000 sq.ft. which is used by all the flat owners who have undivided right, title and interest over the land. The Chennai Metropolitan Development Authority (CMDA) and the Corporation of Chennai have granted planning permission on 07.03.2006, showing clearly that all the 8 flats including that of the 5th respondent as residential units. According to the petitioners, the 5th respondent is running a hospital without prior sanction from the concerned authorities https://hcservices.ecourts.gov.in/hcservices/ which violates the rules especially Rule 7(b) and 8 of the Development Control Rules for the Chennai Metropolitan area as framed by the 8th respondent CMDA. According to the petitioners the 5th respondent is running a 24 hours hospital by employing the 6th and 7th respondents who are also professional Doctors, apart from giving facilities like Ambulance, Ultrasound, ECG, X-ray, Scan etc., with the result, throughout day and night patients are coming in large numbers and virtually the 5th respondent has converted the flat for residential purpose to commercial purpose. The 5th respondent is also throwing out bio-medical wastes in front of the flats causing environmental distress apart from nuisance to other occupants. 3. The case of the petitioners is that nearly 150 to 200 patients are visiting a day and many of them are chronic patients suffering from contagious diseases who assemble in the said building in the front of the common gate causing not only disturbance but also health hazard to the occupants. The throwing of bio-medical waste by the 5th respondent is prohibited under the relevant rules framed under the Environment (Protection) Act, 1986 apart from Bio-Medical Waste (Management and Handling) Rules, 1998. 4. According to the petitioners the 5th respondent is actually running an established hospital and not using the portion as a consulting room and in fact he has indiscriminately thrown needles, syringes, used saline water bottles and tubes, soiled wastes (cotton waste and bandage materials contaminated with blood) etc., which gives scope for spreading of various types of diseases and it affects the right of life guaranteed under Article 21 of the Constitution of India. It is also stated that the 5th respondent is also using the open common area for treating some of the patients and the Doctors employed by the 5th respondent are not medically qualified to give allopathic medicine. The display board on the entrance of the flat occupied by the 5th respondent clearly shows that the treatment given there is not only allopathic but also Ayerveda and Acupuncture. It is also stated that as per the Medical Council of India Act, persons who are not permitted to practice allopathy medicine should not give treatment in the said medicine. The hospital which is used by the 5th respondent runs from 9 AM to 7 PM and 11 PM to 9 AM. 5. It is also the further case of the petitioners that as per Tamil Nadu Apartment Ownership Act, 1994 no owner of any flat in an apartment shall do any work which would jeopardize the soundness or safety of the property without previously obtaining permission or unanimous consent of all the other occupants of the apartment. In the present case all the other occupants of the flat have unanimously objected to the use of the flat by the 5th respondent https://hcservices.ecourts.gov.in/hcservices/ for the purpose of running a 24 hours hospital. The petitioners have caused a notice to the respondents 5 to 7 on 11.10.2007, on the basis that the use of the said portion by the 5th respondent is not only unathorised but also without obtaining necessary plan and causing health hazards apart from creating environmental problems. The present writ petition is filed for a direction against the respondents 1 to 4 and 8 to initiate action against the respondents 5 to 7 to close the hospital being run by the said respondents in Flat No.A, Ground Floor, Graha Mahalakshmi Apartment, No.37, Karaneeswara Koil Street, Saidapet, Chennai – 600 015 and also prohibit them from using the premises in violation of any provisions of the Town and Country Planning Act, 1971, Development Control Rules, The Tamil Nadu Apartment Ownership Act 1994, Bio- Medical Waste (Management and Handling) Rules, 1998 and Tamil Nadu Public Health Act, 1939. 6. The 5th respondent has filed counter affidavit. It is the case of the 5th respondent that after he purchased Flat 'A' on the Ground Floor, he started his clinic and using one of the room for consultation and another room for emergency out patients management. According to the 5th respondent since his profession is life saving one, it has to be necessarily kept open at all times for emergency out patient management. It is also admitted in the counter affidavit that sometimes assistance of some specialists are needed during emergency. It is the case of the 5th respondent that as per Rule 7 (a) (i) & (ii) of the Development Control Rules of the CMDA in a residential dwelling place any room can be used as professional consulting office and incidental uses to an extent not exceeding 40 square metres. Since the same is permissible under the Development Control Rules, it is not necessary to obtain any specific permission. 7. The 8th respondent CMDA has filed counter affidavit. In the counter affidavit the 8th respondent has stated that the building was constructed pursuant to the approval granted by CMDA by Planning Permission No.B/Spl.Building/81/06 in Letter No.BC1/29264/2005, dated 07.03.2006 and the approval was given only for the purpose of putting up residential flats. The 8th respondent has also stated that the ground floor Flat A occupied by the 5th respondent has been used as a clinic and the clinic was not open at the time of inspection by the authorities of the 8th respondent. However the occupants of other flats have informed that clinic came to be closed after the present writ petition was filed and it has been shifted to some other location. It is stated in the counter that the clinic was found to be locked on 26.11.2007 when inspection was done by the Assistant Planner and Enforcement Cell (Central) on 26.11.2007. The notice as contemplated under Section 56 and 57 read with 85 of the Tamil Nadu Town and Country Planning Act, 1971 was pasted on the wall, since nobody was available in the https://hcservices.ecourts.gov.in/hcservices/ flat which is occupied by the 5th respondent. The said notice was issued calling upon the owner of the flat to produce the approved plan. 8. Mr.Satish Parasaran, learned counsel appearing for the petitioners would submit that the planning permission for the entire built up area was obtained from the authorities only for building 8 residential flats. In fact, the documents under which the 5th respondent has purchased the undivided share in the land as well as the flat clearly shows that what was purchased by the 5th respondent is a house and building specifically for the purpose of residential use. According to the learned counsel for the petitioners when once the plan at the time of original approval was sanctioned for the purpose of carrying out residential activities alone, but later if one of the occupant seeks permission either under Rule 7(a) or 8 of the Development Control Rules, the same has to be done only by specific permission from the authorities under the CMDA which would amount to actually altering the original plan by permitting the occupant to use the portion for the purpose which is permissible under the Development Control Rules. The learned counsel would fairly submit that even though originally the petitioners were of the impression that the place was situated in the Primary Residential Use Zone, it is now understood that the Zone is a Mixed Residential Use Zone. Even then in respect of Mixed Residential Use Zone as per Rule 8, the terms and conditions as explained under Rule 7(a) & (b) are applicable. He would also submit that while under Rule 7(a) & (b) certain activities are permissible, all other activities which are not mentioned thereunder are prohibited in the Zone and therefore, ultimately it is for the authorities viz., CMDA to decide about the permissibility of the activity in the flat or portion of the flat either as per Rule 7 or Rule 8 and unless and until such specific permission is granted, the 5th respondent is not entitled to use the portion for any purpose other than residential purpose. 9. On the other hand, it is the contention of Mr.K.A.Ravindran, learned counsel appearing for the respondents 5 to 7 that while it is true that the 5th respondent has purchased the property which was residential in nature, however he is using it as a clinic from the beginning and according to the learned counsel, as per Rule 7(a)(ii) of the Development Control Rules, a professional consulting office can always be used to an extent of not more than 40 square metres and that does not require any permission. According to him, it is only in case where the usage is in respect of Rule 7(1)(b) it require special sanction from the authorities and therefore, the 5th respondent's intention to use only 40 square metres in Flat A on the ground floor does not require him to get any permission from the authorities concerned. https://hcservices.ecourts.gov.in/hcservices/ 10. Heard Mr.Satish Parasaran, learned counsel appearing for the petitioners, Mr.K.A.Ravindran, learned counsel appearing for the respondents 5 to 7 and Mr.C.Kathiravan, learned standing counsel for CMDA appearing for the 8th respondent and perused the records. 11. The Development Control Rules for Chennai Metropolitan Area in Rule 7 deals with Primary Residential use Zone and Rule 8 deals with Mixed Residential use Zone. It is stated in Rule 8(a) (i) that in respect of Mixed Residential use Zone all uses permissible under sub-rules (a) and (b) of Rule 7 are permitted as accessory use. Rule 7(a) (i) & (ii) and (b) (iv) are as follows: “Rule 7. Primary Residential Use Zone:- (a) In the Primary Residential use zone, buildings or premises shall be normally permitted only for the following purposes and accessory use. Permissible nonresidential activity shall be limited to one in a sub division. (i) Any residence including dwelling detached, semi- detached, tenements or flats. (ii) Professional consulting offices of the residents and incidental uses there to occupying a floor area not exceeding 40 square metres. (b) The following uses may be permitted with special sanction of the Authority. (i)..... (ii)..... (iii)..... (iv) Clinics, Hospitals, dispensaries and nursing homes occupying floor area not exceeding 300 square metres and departmental stores with a floor area not exceeding 100 square metres.” 12. It is relevant to point out that while Rule 7(a) speaks about the permissible non-residential activity which of course includes professional consulting office of the residents and incidental uses thereto occupying a floor area not exceeding 40 square metres, Rule 7(b) requires the special sanction of the authorities which includes running of clinics, hospitals, dispensaries and nursing homes occupying floor area not exceeding 300 square metres and on the factual position in the present case, it is not in dispute that the portion which has been purchased by https://hcservices.ecourts.gov.in/hcservices/ the 5th respondent is to an extent of 950 sq. ft and a reference to various photographs taken in the entrance of the Flat clearly show that what the petitioner is running is a 24 hours clinic and in fact the 5th respondent has engaged 6th and 7th respondents as consultants and the Board also shows about various facilities available in the clinic run by the 5th respondent which includes Ambulance, Ultrasound, ECG, X-ray, Scan etc., 13. Under such circumstances, even if the contention of the learned counsel appearing for the 5th respondent is to be accepted, then for the purpose of professional consultancy a portion not exceeding 40 square metres can be used without permission from the authorities. On the factual position, the 5th respondent is running a 24 hours clinic and the same is covered under Rule 7(b)(iv) and that requires certainly special sanction of the authorities. As correctly pointed out by the learned counsel appearing for the petitioners at the time of obtaining planning permission for the entire flats, permission was granted for each and every flat for residential purpose as it has been stated by the learned counsel appearing for the 8th respondent CMDA by referring to the affidavit. While so, even if the 5th respondent wants to obtain permission for the purpose of either running a clinic which requires special sanction of the authorities or use a portion of his residential area as consulting room as a professional Doctor, certainly it requires alteration in the plan in respect of the user of the flat especially when the CMDA which is the authority has taken the stand in the counter affidavit that no such permission has been granted by the competent authority either to run the clinic or for the purpose of consulting room. Under Section 49 of the Tamil Nadu Town and Country Planning Act, 1971 which relates to making of application for permission while granting planning permission makes it clear under Sub-Section (2) which is as follows:- “ Section 49. Application for permission:- (1)..... (2) The appropriate planning authority shall, in deciding whether to grant or refuse such permission, have regard to the following matters, namely:- (a) the purpose for which the permission is required; (b) the suitability of the place for such purpose; (c) the future development and maintenance of the planning area.” It is made clear in the said section that the appropriate authority under the Act has to consider application while granting or refusing to grant permission by taking into consideration the property for which permission is required, the suitability of the place for the said purpose and future development and maintenance of the area as such. https://hcservices.ecourts.gov.in/hcservices/ 14. Therefore, even assuming that the 5th respondent is seeking permission to the competent authority for the purpose of using the residential building which he has purchased, either as clinic or consulting room as per rule 7(a)(ii) to the maximum extent of 40 square metres, it certainly require permission from the competent authority under the Tamil Nadu Town and Country Planning Act, namely CMDA. 15. On the factual position which I have narrated above, it is clear that the 5th respondent is not using the portion purchased by him for the purpose for which it is meant. As correctly pointed out by the learned counsel appearing for the petitioners as per the relevant Act which are relating to the environmental protection, disposal of bio-medical waste, certainly endangers the living condition which definitely attract Article 21 of the Constitution of India which confer fundamental right of living, which means, to live with all dignity. Even as per the provision relating to environment, it is the duty on the part of the 5th respondent to obtain necessary permission, if the conduct of the 5th respondent is going to cause health hazards and environmental distress. In any event, it is for the competent authority under the Town and Country Planning Act, 1971 to decide by applying its mind as per Section 49 (2) of the Act. It is also relevant to point out that after the interim order passed by this Court, as referred by the learned counsel appearing for the 8th respondent CMDA, the 5th respondent has closed the 24 hours clinic and the leaned counsel appearing for the 5th respondent would submit that the 5th respondent has to be permitted to approach the authorities for the purpose of obtaining appropriate permission either under Rule 7 or Rule 8 of the Development Control rules as applicable to the CMDA. 16. In view of the same, the writ petition is disposed of with permission to the 5th respondent to approach the competent authorities under the Tamil Nadu Town and Country Planning Act, seeking permission for the use of the said residential portion for different purpose either as per Rule 7(a)(i) or (ii) or (b) or Rule 8 of the Development Control Rules of the CMDA and on the 5th respondent making such application, the appropriate authority shall decide the issue by applying the guidelines as enshrined under Section 49(2) of the Tamil Nadu Town and Country Planning Act and also give opportunity to the petitioner and other residents in the apartment and pass appropriate orders. It is made clear that pending any such decision by any such authority on the application which is to be filed by the 5th respondent, the 5th respondent shall not use the portion for any purpose other than residential purpose for which original plan has been granted by the CMDA in the https://hcservices.ecourts.gov.in/hcservices/ planning permission dated 07.03.2006. It is made clear that it is open to the petitioners to raise all the issued raised in this writ petition before the competent authority. The writ petition is disposed of on the above terms. No Costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. kk To 1. The Secretary to Government, Health & Family Welfare Department, Secretariat, Fort St. George, Chennai - 600 009. 2. The Commissioner Corporation of Chennai, Ripon Building, Chennai - 600 003. 3. The Chairman, Tamil Nadu Pollution Control Board, 76/100, Anna Salai, Guindy, Chennai - 600 032. 4. The Commissioner of Police, Egmore, Chennai - 600 008. 5. The Chairman / Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai - 600 008. 1 cc to M/s. Satish Parasaran, SR. 15025 2 ccs to Mr.K.A. Ravindran, Sr. 15196, 15210 W.P.No.34897 of 2007 KSK (CO) kk 28/3 https://hcservices.ecourts.gov.in/hcservices/