Case: Anirudh Kumar Vs. Municipal Corp. Of Delhi

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. Dangs Diagnostic Centre in the year 1995 on the basement and ground floor of the concerned building and later on, in the year 2005-2006 the first floor of the premises was also purchased by them from its owner Mrs. Shanti Chatterjee whereby they expanded the activities of the Pathological Lab even to mezzanine floor and first floor by installing heavy medical equipments to make it fully equipped with the latest technology. When the Diagnostic Centre was started, it employed about 50 people and installed 25 Air Conditioners, two diesel generator sets of 25 KVA and 40 KVA each in the set-back area of the building along with kerosene oil tanks, gas cylinders and electric panels. There was a major parking problem in and around the vicinity of the Diagnostic center since a large number of patients visited the centre every day3. The appellant made various complaints pertaining to the violation of the Master Plan to the concerned authorities, namely 1)Respondent No.1- Dy. Commissioner, Municipal Corporation of Delhi(for shot the MCD), 2)Respondent No.2 - SHO of the area, 3)Respondent No.3 - Executive Engineer, Delhi Electricity Supply Undertaking. As no heed was given to the same by the aforesaid respondent, a writ petition No. 8808 of 2004 was filed by the appellant before the High Court of Delhi. During the pendency of the said writ petition, contrary to the averments made by the MCD before the High Court that prosecution had been initiated against the responsible persons under Sections 347/461 of the Delhi Development Act, 1957, the Regularisation Certificate was issued on 11.07.2006 to the respondent-owners by the MCD under Mixed Land Use for running the Pathological Lab on the ground floor and first floor of the concerned building. Aggrieved by the grant of Regularisation Certificate, the appellant withdrew the writ petition No.8808 of 2004 and a fresh writ petition No. 225 of 2008 was filed by the appellant before the High Court praying for quashing of the Regularisation Certificate wherein, the learned single Judge issued limited notice to the respondents with respect to Clauses 3 and 7 of the Regularisation Certificate. The Learned single Judge rejected the challenge to the Regularisation Certificate issued on 11.07.2006 as the same was issued by MCD under Clause 15.7.1 of the MPD 2021 approved by the Ministry of Urban Development, Government of India which reads thus:15.7.1 Subject to the general conditions given in para 15.4 and additional conditions given in para 15.7.3, the following public and semipublic 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.)ii. Clinic, Dispensary, Pathology labFurther, the learned single Judge vide order dated 5.10.2010 refused to decide the violation under Clause 7 of the Regularisation Certificate on the ground that the petition is motivated by a private dispute than owing to any nuisance and hardship to any local resident as none of the other local residents had approached the Court with any complaint pertaining to nuisance4. The first respondent - MCD confirmed that one-time parking charges of Rs.9,35,673/- in terms of the Regularisation Certificate had been paid by the respondent owners and that respondent-owners had also deposited Rs.8,39,916/- as conversions charges. The appellant challenged the order dated 11.01.2008 issuing limited notice in writ petition No.225 of 2008 passed by the learned single Judge by filing LPA No. 267 of 2009 before the Division Bench of the High Court and later on withdrew the same5. 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.

Reasoning:
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.