Case: Anirudh Kumar Vs. Municipal Corp. Of Delhi

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 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. 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 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. 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 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 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. 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 aside27. 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 building28. 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. Dangs Diagnostic Centre in the basement, ground floor, mezzanine floor and the first floor of the building. The respondent-owners have refuted the same30. 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 supra35. 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 above36. 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 home38. 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 appellant41. 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 ((2005) 5 SCC 733 ) 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 India45. 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 law46. 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, 198650. 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 supra51. 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 authorities52. 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.