Delhi High Court
Delhi Medical Association & ... vs Union Of India & Others on 24 April, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
WP (C) No. 4233 of 1993
Date of decision: April 24, 2009
DELHI MEDICAL ASSOCIATION & ORS. ..... PETITIONERS
Through: Mr. S.P. Kalra, Senior Advocate with
Mr.Praveen Chauhan and Mr. Anmol Sinha, Advocate
versus
UNION OF INDIA & ORS. ..... RESPONDENTS
Through: Mr. S.D. Salwan, Advocate for GNCTD
Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain,
Advocate for Directorate of Health Services.
LPA No. 132 of 2008
SANTOM HOSPITAL ..... APPELLANT
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. S.D. Salwan Advocate for GNCTD.
Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain,
Advocate for Directorate of Health Services.
Ms. Zubeda Begum, Advocate
WP (C) No. 5782 of 2007
SANTOM HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services, Mr. S.D. Salwan, Advocate for
GNCTD
WP (C) No. 6788 of 2007
KISHNI DEVI CHARTIABLE CLINIC & ORS. ..... PETITIONERS
Through: Ms. Radhika Chandrashekhar, Advocate
versus
WP(C) No. 4233/93 etc. Page 1 of 35
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate of
Health Services.
WP (C) No. 6789 of 2007
SHANTI CLINIC ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Zubeda Begum, Advocate
WP (C) No. 6795 of 2007
APOTHECARIES LIMITED ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Zubeda Begum, Advocate
WP (C) No. 7290 of 2007
INDIAN HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate of
Health Services.
WP (C) No. 8258 of 2007
LIFE LINE MEDICAL CENTRE ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
WP(C) No. 4233/93 etc. Page 2 of 35
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate of
Health Services, Ms. Zubeda Begum, Advocate
WP (C) No. 8337 of 2007
DURGA HOSPITAL PVT. LTD. ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services, Ms. Purbali Bora, proxy counsel
for Ms. Aruna Tiku, Advocate
WP (C) No. 8833 of 2007
DR. BALA DEVI‟S HEALTHY FAMILY
AND ANR .... PETITIONERS
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Sonia Sharma, Advocate for GNCTD.
WP (C) No. 8835 of 2007
CHANDRALEELA HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Sonia Sharma, Advocate for GNCTD.
WP (C) No. 8908 of 2007
J.M.S.S. HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
WP(C) No. 4233/93 etc. Page 3 of 35
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Sonia Sharma, Advocate for GNCTD.
WP (C) No. 9384 of 2007
Dr. S.P. MAHESHWARI ..... PETITIONER
Through: Mr. S. Chaturvedi, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
WP (C) No. 524 of 2008
AAKASH EYE & GENERAL HOSPIAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
WP (C) No. 909 of 2008
WELCOME HEALTH CARE CENTRE
AND HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Ruchi Sindhwani, Advocate for GNCTD.
WP (C) No. 910 of 2008
WP(C) No. 4233/93 etc. Page 4 of 35
ANAND MAYA HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Ruchi Sindhwani, Advocate for GNCTD.
WP (C) No. 911 of 2008
AGRAWAL EYE INSTITUTE ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate
of Health Services.
Ms. Ruchi Sindhwani, Advocate for GNCTD.
WP (C) No. 912 of 2008
HANDA STONE CLINIC ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate
of Health Services.
Ms. Ruchi Sindhwani, Advocate for GNCTD.
WP (C) No. 915 of 2008
SHARMA MEDICAL CENTRE ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
WP(C) No. 4233/93 etc. Page 5 of 35
Through: Mr. Vivek Kumar Tandon with Mr.
Daiyan Hussain, Advocate for Directorate of
Health Services.
Ms. Ruchi Sindhwani, Advocate for GNCTD.
WP (C) No. 1018 of 2008
K.K. SURGICAL AND MATERNITY CENTRE ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate
of Health Services.
Ms.Shikha Palsule, proxy counsel for Mr. Saleem
Ahmed, Advocate for R-2
WP (C) No. 3214 of 2008
ANAND ENT & SPEECH CENTRE ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with
Mr. Daiyan Hussain, Advocate for Directorate of
Health Services.
Mr. Virendra Singh, Advocate
WP (C) No. 3215 of 2008
C.M. PATEL HOSPITAL ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr. Daiyan
Hussain, Advocate for Directorate of Health Services,
Mr. Virendra Singh, Advocate
AND
WP(C) No. 4233/93 etc. Page 6 of 35
WP (C) No. 3216 of 2008
GANDHI NURSING HOME ..... PETITIONER
Through: Ms. Radhika Chandrashekhar, Advocate
versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Vivek Kumar Tandon with Mr. Daiyan
Hussain, Advocate for Directorate of Health Services,
Mr. Virendra Singh, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE DR. JUSTICE S. MURALIDHAR
1. Whether Reporters of local papers may be
allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported Yes
in Digest?
JUDGMENT
24.04.2009
S. MURALIDHAR, J.
1.1 These petitions and appeals raise similar questions and are accordingly
being disposed of by this common judgment. The lead petition, Writ Petition
(C) No. 4233 of 1993 by the Delhi Medical Association seeks a declaration
that Rule 3 of the Delhi Nursing Home (Amendment) Rules 1992 is ultra
vires the Delhi Nursing Homes Registration Act 1953 („Act‟) and is also
arbitrary and discriminatory and therefore violative of Articles 14 and 19 (1)
(g) of the Constitution of India. The other prayer in the writ petition is for a
direction to the Respondents not to give effect to the said Rule 3 and to
register all nursing homes which are eligible for registration under the Act
without insisting on the fulfillment of the conditions prescribed under the
impugned Rule 3.
1.2 It was submitted at the outset by counsel for the petitioners that with the
changes brought about by the Master Plan for Delhi (MPD) 2021 and the
introduction of the mixed land use norms, the questions arising in the present
batch of petitions ought to be left unanswered and that the petitioners‟ case
be directed to be considered by the Respondents under the new norms. This
Court is not inclined to accept this plea since the principal questions
concerning the Act are bound to recur notwithstanding the new MPD norms.
The petitioners have been protected from adverse consequences of the law
on account of the interim orders which have operated for over a decade. It is
therefore important and necessary for this Court to deal with the contentions
raised on merits.
The Provisions of the Act and the progressive changes to the Rules
2. The Delhi Nursing Homes Registration Act, 1953 („Act‟) was enacted to
provide for the registration and inspection of nursing homes in the State of
Delhi. Under Section 2(iv) of the Act, a nursing home has been defined
thus:
"(iv) Nursing Home means any premises used or
intended to be used for the reception of persons suffering
from any sickness injury or infirmity and the providing of
treatment and nursing for them and includes a maternity
home, and the expression `carry on nursing home‟ means
to receive persons in a nursing home for, any of the
aforesaid purposes and to provide treatment or nursing
for them."
3. Section 3 prohibits the running of a nursing home without registration.
The said provision reads as under:
"3. Prohibition to carry on nursing home without
registration - No person shall carry on a nursing home
unless he has been duly registered in respect of such
nursing home and the registration in respect has not been
cancelled under section 7.
Provided that nothing in this section shall apply in the
case of a nursing home which is in existence at the date
of the commencement of this Act, for a period of three
months from such date or if an application for
registration is made within that period in accordance with
the provisions of section 4 until such application is
finally disposed of."
4. Under Section 7, the supervising authority may at any time cancel the
registration in respect of a nursing home on the same ground which would
entitled the supervising authority to refuse an application for registration or
if any person is convicted under the Act or of an offence in respect of that
nursing home.
5. The Delhi Nursing Homes Registration Rules 1953 („Rules‟) sets out the
procedure for applying for the registration. The Rules were further amended
in 1966. Therein a schedule was added with reference to Rule 14. The
Schedule sets out the requirement of the nursing homes including the
buildings, water supply, health, clothing, sanitary requirements of staff and
other equipments. Importantly, as far as buildings are concerned, clause (1)
(b)(i) stipulates that "The building used for the nursing home shall comply
with the relevant municipal bye laws in force from time to time". In the
1992 amendment Rule 3(i) further amended to read as under:
"(i) The building used for the Nursing Homes
comply with the relevant Municipal bye-law as in
force and such guidelines as may be framed by the
Ltd. Governor from time to time and the use of
the premises shall conform to the land use
prescribed under relevant law(s)." (emphasis
supplied)
6. Appended to the rules was the `standard for a nursing home, maternity
home‟. Thereunder it is clearly stipulated that "building must comply with
the municipal bye-laws".
7. A reading of the Rules amended from time to time shows that the
requirement of a nursing home having to conform to the municipal building
bye-laws has been in existence for over forty years now. The Delhi
Municipal Corporation Act has been in force since 1957. For the New Delhi
area, the New Delhi Municipal Committee‟s bye-laws have been in force
during this period. Even earlier the Punjab Municipal Laws were applicable.
These municipal bye-laws intended to regulate the uses of buildings in
residential and non-residential areas for different purposes. The Schedule to
the 1966 amendments to the Rules set out that detailed standards for a
building that was to be used for running a nursing home.
Position under the Master Plan for Delhi 1962
8. As far as the Delhi Development Act 1957 („DD Act‟) is concerned it
preserved the status quo for the pre-1957 buildings in terms of Section 14
thereof. At no point in time after the enactment of the DDA Act, or the
coming into effect of the MPD 1962 was any exemption granted to nursing
homes from the applicability of either the DD Act or the MPD. As of 1966,
therefore, there was no question of a building housing a nursing home not
having to comply with the requirements of the MPD. Even otherwise the
requirement of having to satisfy the municipal building bye-laws was in
vogue since 1963 itself. None of the nursing homes challenged the validity
of the Rules that mandated this. They also did not question the applicability
of the municipal bye-laws to nursing homes.
9. In effect therefore what happened in 1992 was only to add the
requirement of the nursing homes having to satisfy the land use requirements
if they had to be registered under the Act and Rules. The land use
requirements were not new in the sense that the MPD already mandated such
compliance. If a nursing home did not comply with the MPD requirement as
regards land use, it would invite penal action under the DD Act. All that the
1992 amendment to the Rules did was to incorporate this statutorily
mandatory requirement as an additional condition for grant of registration to
a nursing home under the Act. It was therefore not a new requirement. It was
in any event required to be complied with in terms of the DD Act. This
cannot be viewed as being so dramatically different from the restrictions
already in place as regards the use of buildings for non-residential purposes.
The nursing homes which already conformed to building bye laws were
unlikely to be unaware of the requirements under the MPD as regards land
use.
Main grounds of challenge in the 1993 writ petition
10. W.P (C) No.4233 of 1993, filed on 3rd September 1993 by the Delhi
Medical Association, refers to the above amendments to the Rules. It is
stated that the respondents had not been adopting a consistent pattern in
regard to registration of nursing homes under the Act. There had been a
number of occasions when registration has been refused on a reason wholly
extraneous to the Act. It is stated that while in respect of one Amar Heart
Medical Centre at Panchsheel Park, registration was refused on the ground
that DDA had raised an objection to the use of the premises for a nursing
home being in violation of the Master Plan for Delhi (MPD), similarly
placed institutions have been granted registrations.
11. It is submitted that on 26th March 1982 the DDA had prepared draft
regulations for establishment of nursing homes. A decision was taken on 5th
December 1989 by a high powered committed which had recommended
grant of registration to the nursing homes operating in residential areas for a
number of years. This was followed by a further draft amendment to the
rules on 4th November 1991. It is stated that in view of all these steps, the
petitioners expected that the authorities would come out with a coherent and
clear policy which would advance the objectives of the Act. Instead the
impugned amendment to the Rules in 1992 came as a surprise to the
petitioners. The immediate effect of the amendment was that a substantial
majority of nursing homes stood disqualified from the beneficial provisions
of the Act since they did not conform to the land use norms under the MPD
and the Zonal Development Plan (ZDP) published under the DDA Act 1957.
The representations made by the petitioners were to no avail. A news item
had appeared on 1st April 1993 reporting the stand taken by the Union of
India in Parliament that nursing home established prior to 1 st August 1990
could continue till 1996 with payment of the requisite fee.
12. It is submitted that the insistence upon the compliance with the
provisions of the MPD would defeat the object of the Act and the Rules. The
impugned 1992 amendment to the Rules is also challenged as being violative
of Articles 14 and 19(1)(g) of the Constitution. In effect it is submitted that
by insisting on compliance with the land use norms as per the MPD, a large
number of nursing homes would be rendered unauthorised and be proceeded
against for committing a punishable offence under the DD Act. It would also
deprive nursing homes of the benefits consequential upon registration such
as coverage by medical insurance since the insurance companies would
cover only such hospitals and nursing homes as are registered with local
authorities. It is pointed out that the ground reality was that out of thousands
of nursing homes operating in Delhi only 117 were registered and even these
would face deregistration in terms of the impugned amendment to the Rules.
13. The impugned Rule is challenged as being ultra vires Sections 5 and 16
of the Act cine the latter do not specify compliance with the MPD land use
norms as one of the pre-requisites for registration. It is pointed out that since
the Act is a complete code, a norm not prescribed thereunder cannot be
imposed particularly when such norm has no nexus with the standard
stipulated in Section 5(d) of the Act. It is submitted that by not permitting
nursing homes in residential areas, citizens would be deprived of timely
access to medical facilities particularly in emergency situations. It is
submitted that as long as the conditions under the Act are satisfied, the
question whether a nursing home or maternity home was violating the MPD
land use norms was irrelevant for the purpose of grant of registration. The
impugned provision is stated to infringe the fundamental right of the
members of the petitioner DMA under Article 19(1)(g) of the Constitution.
Proceedings in the 1993 writ petition by the DMA
14. Notice was directed to issue in the said writ petition by this Court on 7th
September 1993. However even after a year, i.e. till 13th September 1994,
none of the Respondents had filed their replies. A prayer was made on
behalf of the Petitioners that a comprehensive survey be conducted of the
nursing homes in Delhi both in the conforming as well as non-conforming
areas. The Court found that Respondent No.4 Delhi Development Authority
(DDA) had not been appearing for the last several hearings. Notice was
issued to it to appear on the next date i.e. 26th October 1994. Thereafter the
Government of the National Capital Territory of Delhi („GNCTD‟),
Respondent No.2, and the Directorate of Health Services of the GNCTD,
Respondent No.3 filed a common counter affidavit. The DDA however did
not file any affidavit by then. In the circumstances, this Court directed on
26th October 1994 that Respondents 2 and 3 "shall make survey of all the
nursing homes in the Union Territory in conforming areas and non-
conforming areas irrespective of the amended Rule 3 which came into force
on 1st May 1992."
15. The DDA filed its affidavit in the writ petition on 8 th December 1994.
The stand of the DDA was as follows:
"VI That the Master Plan further provides that in
Health Centres or a Nursing Home, there can be
apart from its Health Centre and Nursing Home,
only a watch and ward resident up to 20 sq.m and a
chemist shop up to 15 sq.m. The premises which
is earmarked in lay out plan for as a use of
residential house, cannot be permitted to be used
for a nursing home, hospital, or a health care
centre. In respect of residential premises, master
plan inter alia provides that the commercial
activity shall be allowed only on the ground floor
to the extent of 25% or 50 sq.m whichever is less
subject to the proviso that such establishment is to
be run by the residents of the dwelling unit and
thereafter, also provides for a restriction by
excluding certain activities which are not
permitted.
The Master Plan further provides that a
professional activity is permitted in a residential
plot on any floor subject to the condition that the
resident of the premises shall be permitted to use a
part of his residence to a maximum of 25% of 50
sq.m whichever is less for non-residential but no
nuisance activity which is rendered for rendering
the services raised for professional skills.
VII. That with the above background in respect of
the Master Plan, I say that the Delhi Building Bye-
Laws 1953 have been enacted for regulating the
activities under the jurisdiction of Delhi
Development Authority as well as Municipal
Corporation of Delhi. The said Bye-laws are
applicable to the Building Regulation activity in
the Union Territory of Delhi and the same apply to
the design and construction of the building in case
of building is erected."
16. The GNCTD filed a further affidavit on 20th January 1995 in compliance
with this Court‟s direction issued on 26th October 1994. In the said affidavit
it was inter alia stated that in response to the advertisement issued asking
nursing homes to submit particulars in the prescribed proforma, 433
applications had been received from unregistered nursing homes. It was
stated that "majority of the nursing homes surveyed fulfil the requisite
medical standards as prescribed under the Delhi Nursing Homes Registration
Act 1953 and Rules framed thereunder except amended Rule 3. Exact
number will be informed at the time of hearing."
17. This Court was informed at the hearing on 23rd January 1995 by learned
counsel for the GNCTD that out of 433 nursing homes which had responded
to the advertisement issued by it only 243 were found to have fulfilled the
requisite medical standards as prescribed under the Act.
18. The petitioner, Delhi Medical Association, filed an additional affidavit
on 3rd May 1995. Thereafter by an order dated 24th May 1995 while issuing
Rule, this Court took on record the statement made in the affidavit of the
Director, Health Services and passed a detailed interim order, the operative
portions of which read as under:
"In view of the statements made in the affidavit filed by the
Director, Health Services that majority of Nursing Homes
surveyed fulfil the requisite medical standards as prescribed
under Delhi Nursing Homes Registration Act, 1953 and Rules
framed thereunder except satisfying the requirements under the
amended Rule 3 we consider it appropriate and just to issue
such an interim direction pending disposal of the Rule to the
respondents not to take any action under the provisions of Delhi
Nursing Homes Registration Act, 1953 for non compliance with
the provisions of Rule 3 of Delhi Nursing Homes Registration
(Amendment) Rules 1992, provided they fulfil all the requisite
medical standards as prescribed under Delhi Nursing Homes
Registration Act, 1954 and Rules framed thereunder except
amended Rule 3 of the Rules."
19. This Court further explained in the said order that it had issued the above
direction "taking into consideration the fact that the majority of such nursing
homes were established and have been functioning from before 1.5.1992
when the provisions of amended Rule 3 have been brought in and
consequently the issue of public health is involved and also in view of the
fact that unless we issue such an interim direction it would cause hardship
and agony to the general public undergoing treatment in those nursing
homes."
20. At the hearing on 18th December 1996 it was clarified that the stay order
passed by this Court would not come in the way of the National Human
Rights Commission („NHRC‟) examining the complaint pertaining to the
death of a 14 year old Class X student at the private hospital.
21. In the meanwhile the Chairman of the DDA (the Lt.Governor of
GNCTD) notified the Delhi Development Authority (Permission of
Residential Land and Building for Use as Nursing Homes) Regulation 2003.
As per the clause VI of the DDA Regulations 2003 certain norms were
stipulated for permitting the use of residential premises for running nursing
homes. The permission was to be granted by DDA subject to the fulfillment
of these norms and further subject to the payment of a „permission fee‟. This
Court has been informed that till date the Municipal Corporation of Delhi
(„MCD‟) has not framed any bye-laws specifically for nursing homes.
22. The MPD 2021 has stipulated new mixed land use norms. These will be
referred to shortly. The DDA also notified the rates for „permission fee‟ and
that is stated to be under challenge in this Court in W.P. (C) No. 17379 of
2004 (National Medical Forum v. DDA). It is stated that this Court has
granted an interim stay subject to the petitioners depositing 2.5% of the
permission fee. It is pointed out that in 2007 DDA/MCD began demanding
„conversion charges‟ instead of permission fee. This was challenged in this
Court by way of W.P. (C) No. 468 of 2008 (Delhi Medical Association v.
MCD) and a batch of similar petitions which are stated to be also pending.
23. The contention of the petitioners in W.P. (C) No. 6795 of 2007
(Apothecaries Ltd. v. GNCTD) and the batch of connected petitions is that
Rule 3 has become redundant in view of the DDA Regulations 2003 and the
MPD 2021. One other contention is that a nursing home undertaking
medical termination of pregnancy (MTP) cannot be asked to comply with
the requirements of the Nursing Homes Act as they are governed by the
Medical Termination of Pregnancy Act („MTP Act‟). It is stated that the
Government Departments were not intending to accept any application from
the nursing homes for issuing No Objection Certificate („NOC‟).
24. In one of the connected petitions, W.P. (C) No. 5782 of 2007, a learned
Single Judge of this Court by an order dated 4th February 2008 rejected the
prayer for interim relief holding that as per the DD Act, the Municipal
Corporation of Delhi Act, 1957 and the Building bye-laws made hereunder,
a building constructed for residential purpose cannot be put to any other use.
Aggrieved by the refusal of interim stay one of the nursing homes, Santom
Hospital, has filed LPA No. 132 of 2008 in this Court, The principal
contention in the appeal that the DDA has permitted the use of a residential
remises for running a nursing home and therefore the MCD which has
admittedly not framed any bye-laws for nursing homes in particular cannot
raise any objection.
Importance of the Master Plan norms
25. One of the principal issues arising for determination in the present cases
is whether the Rules in question can be amended to insist that in order to
obtain a valid registration under the Act the building in question has to
conform to the land use norms specified under the MPD 2021(earlier MPD
1962 as amended in 1990). The law as regards the importance of a Master
Plan prepared under a statute for the planned development of an urban
conglomeration is fairly well settled. The Master Plan so prepared is a
statutory instrument with all attendant consequences.
26. In Bangalore Medical Trust v. B.S. Muddappa, (1991) 4 SCC 54, the
Supreme Court was dealing with an instance where in the scheme prepared
under the Bangalore Development Authority Act 1976 (BDA Act) an open
space in a residential colony was earmarked for a public park. The Chief
Minister wrote to the Bangalore Development Authority (BDA) for the grant
of a suitable site to the appellant Bangalore Medical Trust for setting up a
private hospital. The Chairman, BDA thereafter wrote to the Chief Minister
stating that the appellant was keen to construct a nursing home in the area
reserved for the public park. On this letter the Chief Minster made an
endorsement that area could be converted into a civic amenity site. This led
to the site being allotted to the Trust for constructing a nursing home. This
decision was challenged by certain public spirited citizens in the Karnataka
High Court. Although a learned Single judge of that High Court rejected the
writ petition, the Division Bench reversed the decision holding that the area
earmarked in the Scheme for a public park could not be used for a nursing
home or hospital. The decision of the Chief Minister and the consequential
orders of the BDA were set aside. The further appeal by the Trust was
dismissed by the Supreme Court. It explained the legal position thus (SCC,
p.69):
"The scheme is a statutory instrument which is administrative
legislation involving a great deal of general law making of universal
application, and it is not, therefore, addressed to individual cases of
persons and places. Alteration of the scheme must be for the purpose
of improvement and better development of the city of Bangalore and
adjoining areas and for general application for the benefit of the
public at large. Any alteration of the scheme with a view to conferring
a benefit on a particular person, and without regard to the general
good of the public at large, is not an improvement contemplated by
the section."
27. In the same decision it was further emphasized that a space earmarked
for a particular purpose under the Master Plan cannot be used for any other.
It was observed (SCC, p.70, 75):
"....once appropriated or applied or earmarked by formation of „open
spaces‟ or for building purposes or other development in accordance
with a duly sanctioned scheme should not be used for any other
purpose unless the scheme itself, which is statutory in character, is
formally altered in the manner that the BDA as a body corporate is
competent to alter. This section, of course, empowers the BDA to
lease or sell or otherwise transfer any property. But that power has to
be exercised consistently with the appropriation or application of land
for formation of „open spaces‟ or for building purposes or any other
development scheme sanctioned by the government. Property reserved
for open space in a duly sanctioned scheme cannot be leased or sold
away unless the scheme itself is duly altered. Any unauthorised
deviation from the duly sanctioned scheme by sacrificing the public
interest in the preservation and protection of the environment by
means of open space for parks and playgrounds and „ventilation‟ will
be contrary to the legislative intent, and an abuse of the statutory
power vested in the authorities.....
"Protection of the environment, open spaces for recreation and fresh
air, playgrounds for children, promenade for the residents, and other
conveniences or amenities are matters of great public concern and of
vital interest to be taken care of in a development scheme. It is that
public interest which is sought to be promoted by the Act by
establishing the BDA. The public interest in the reservation and
preservation of open spaces for parks and playgrounds cannot be
sacrificed by leasing or selling such sites to private persons for
conversion to some other user. Any such act would be contrary to the
legislative intent and inconsistent with the statutory requirements.
Furthermore, it would be in direct conflict with the constitutional
mandate to ensure that any State action is inspired by the basic values
of individual freedom and dignity and addressed to the attainment of a
quality of life which makes the guaranteed rights a reality for all the
citizens."
28. The decision of the Chief Minister was held to be illegal for the
following reasons (SCC, p.74):
"Public interest does not appear to have guided the minds of the
persons responsible for diverting the user of the open space for
allotment to the appellant. Conversion of the open space reserved for a
park for the general good of the public into a site for the construction
of a privately owned and managed hospital for private gains is not an
alteration for improvement of the scheme as contemplated by Section
19, and the impugned orders in that behalf are a flagrant violation of
the legislative intent and a colourable exercise of power."
29. In G.N. Khajuria (Dr) v. Delhi Development Authority, (1995) 5 SCC
762, the Supreme Court was dealing with a case where the land earmarked
for a park under the MPD 1962 was sought to be used for a primary school.
Holding the decision to be illegal, it was observed (SCC, p.766):
"We, therefore, hold that the land which was allotted to Respondent 2
was part of a park. We further hold that it was not open to the DDA to
carve out any space meant for park for a nursery school. We are of the
considered view that the allotment in favour of Respondent 2 was
misuse of power, for reasons which need not be adverted. It is,
therefore, a fit case, according to us, where the allotment in favour of
Respondent 2 should be cancelled and we order accordingly. The fact
that Respondent 2 has put up some structure stated to be permanent by
his counsel is not relevant, as the same has been done on a plot of land
allotted to it in contravention of law. As to the submission that
dislocation from the present site would cause difficulty to the tiny tots,
we would observe that the same has been advanced only to get
sympathy from the court inasmuch as children, for whom the nursery
school is meant, would travel to any other nearby place where such a
school would be set up either by Respondent 2 or by any other body."
Provisions of the MPD 2021
30. In the MPD 2021 Chapter XV deals with mixed use regulations. Three
broad types of mixed use are stated to be permissible. Among this is the
`other activity‟ broadly in the nature of `public and semi public facilities‟
listed in para 15.7.1. The said paragraph reads as under:
"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, crèche.
(b) i. Nursing home.
ii. Clinic, Dispensary, Pathology lab and
Diagnostic center.
(c) Guest house (including lodging houses) irrespective
of number of rooms.
(d) Bank
(e) Fitness Centre (including gymnasium, yoga/
meditation centre).
(f) Coaching centres/tuition centres other than those
imparting structured courses leading directly to the
award of a degree or diploma or conducting classes
such as regular school."
31. It is plain therefore that a nursing home would be permitted in a
residential plot abutting roads of minimum right of way (ROW). Para 15.3.2
specifies the further conditions for permitting such activity in colonies
falling under the different categories. Para 15.7.3 further stipulates in sub-
paras (iii) and (iv) as under:
"iii. Nursing Homes, dispensaries, clinics and 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 inE, F&G colonies.
However, the minimum plot size shall be 50 sqm for
clinics, dispensaries and pathology labs running in these
colonies and also in E, F and G category colonies. In
Walled City, Walled city extension, villages and
unauthorised-regularized colonies, conditions of plot size
and minimum ROW shall not be applicable.
iv. Nursing homes operating in plots abutting Master
Plan roads and Zonal Plan roads shall be permissible up
to 100% of built up area and the limit on the size of the
plot would not apply."
32. There is no challenge to the MPD norms in these petitions. In fact it is
urged that since the DDA Regulations permit the use of residential premises
for nursing homes and under the MPD 2021 mixed land use provisions have
been incorporated the requirement under the Act and the Rules as brought
about by the 1992 amendment should not be insisted upon. Given the
context in which the land use norms for all types of buildings has been
specified in the MPD 2021, and it is conducive to the object of the DD Act
which is the planned development of Delhi, incorporating in the Act and the
Rules a requirement of having to conform to the MPD land use norms
cannot be said to be unreasonable or arbitrary.
33. The argument that such a requirement is not germane to the objects of
the Act and the Rules and was therefore ultra vires the Act is entirely
without merit. The Act which deals with the registration of nursing homes
can and should insist that the building in which the nursing home is sought
to be run conforms to the land use requirement. The latter can possibly be
specified only under the MPD. There was no question therefore of the Act
permitting the registration of a nursing home even if it violated the MPD
norm on land use. Such a stipulation cannot be said to violate the
fundamental rights under Articles 14 or 19 (1) (g). In fact far from being
arbitrary or unreasonable, such a stipulation respects and protects the right to
environment and health of all residents of Delhi.
34. To explain further, the problems that would arise in permitting nursing
homes in residential areas far outweigh the benefits that would ensue by
providing easy access to health care. The right to health contemplates not
only access to health services but the right to a healthy environment as well.
The running of a nursing home involves the use of and therefore disposal of
highly toxic chemicals and substances. The waste generated by a hospital or
nursing home is certainly of a hazardous nature. The Environment
(Protection) Act 1986 sets out the applicable statutory provisions concerning
the disposal of such hazardous waste by a nursing home or a hospital.
Merely because an Act and the Rules thereunder do not specifically advert to
the disposal of hazardous waste by such nursing home, it would not mean
that such nursing home does not have to conform to the standards set down
under the EPA and the Rules made thereunder. The Biomedical Waste
(Management and Handling) Rules 1998 have been made under the EPA.
Rule 3(5) defines "biomedical waste" to mean any waste generated during
the diagnosis and treatment of humans or animals. This applies to hospitals
and nursing homes as is evident from Schedule 6 to the said Rules. In effect,
it would not be open to the nursing home to contend that unless the EPA
norms are specified in the Act, registration of a nursing home cannot be
refused. If the Act and Rules were to be amended to stipulate that
registration could be cancelled on account of non-compliance with the EPA
and Rules made thereunder, such an amendment would be unconstitutional
or ultra vires the Act. The position would be no different as regards the
nursing homes providing MTP. They would have to comply with both Act
and the MTP Act. They would have to comply with any other applicable
statutory norm including the MPD.
35. In other words, it would be anomalous if the authority under the Act
grants registration to a nursing home that violates the MPD or the EPA or
any other statute. In an urban agglomeration, there are bound to be a plethora
of statutory compliances to be fulfilled by an enterprise. The running of a
nursing home is not merely concerned with having qualified medical
professionals and staff, and appropriate medical equipment. It requires to be
housed in a building which conforms to the building bye-laws, the MPD and
the depending on the extent of its activities and other statutes like the EPA,
the MTP Act (where applicable) and the Rules made thereunder. To avoid
the delay in obtaining the different approvals/NOCs from the different
authorities, the Respondents could devise a single window clearance. For
instance, the authority granting registration could prepare a check-list of all
statutory requirements not limited to Act and Rules. That is a matter for the
authorities to consider.
36. For all of the above reasons, the plea of the petitioners that the 1992
amendment to the Rules is ultra vires the Act and is otherwise
unconstitutional is rejected. Consequently, the order dated 4 th February 2008
passed by the learned Single Judge in W.P. (C) No. 5782 of 2007 is
affirmed. The LPA No. 132 of 2008 challenging the said order is without
merit.
The plea of equities
37. The plea of the petitioners is that they are among the large number of
nursing homes that have been operating without a valid registration. In the
cases of those nursing homes who are petitioners before this Court, they
have not been proceeded against only because the interim order of this
Court. In view of what has been held in this judgment, the said interim order
dated 24th May 1995 is to no avail any longer. It is possible that many of the
petitioners were hoping that their applications for registration will ultimately
not be refused. They might still be able to if they fulfil all the statutory
norms. Although they did not wait to get the registration before commencing
the nursing home, it is pleaded that they should not be permitted to continue
as they have been doing for the last fourteen years. It is pleaded that in some
of the cases, they should be permitted to continue till such time their
applications for regularisation in terms of the newly notified mixed land use
norms in terms of the MPD 2021 is processed and disposed of.
38. This Court finds that there are broadly three categories of nursing homes.
The first category is of nursing homes that have not made any application for
registration till date and have no interim protection from this Court. These
nursing homes have operated with impunity and have managed to escape the
net thus far. Hopefully there are a very few in this category. The exact
number can only be ascertained by the authorities by conducting a further
comprehensive survey. Such nursing homes or private hospitals that have
been operating without any registration and have not applied for it till date
do not deserve any protection or equitable consideration. They should be
shut down forthwith. This Court is not prepared to grant any further time to
this category to now make an application for registration. This is because
this Court believes that the practice of first violating the norm and thereafter
seeking retrospective approval must be firmly discouraged.
39. In M.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464,
the Supreme Court declined equitable relief to the appellants whose illegal
construction had been protected from demolition on the strength of interim
orders of the court. It observed (SCC, p. 529):
"The High Court has directed dismantling of the whole project and for
restoration of the park to its original condition. This Court in
numerous decisions has held that no consideration should be shown to
the builder or any other person where construction is unauthorised.
This dicta is now almost bordering the rule of law. Stress was laid by
the appellant and the prospective allottees of the shops to exercise
judicial discretion in moulding the relief. Such a discretion cannot
be exercised which encourages illegality or perpetuates an
illegality. Unauthorised construction, if it is illegal and cannot be
compounded, has to be demolished. There is no way out. Judicial
discretion cannot be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance with law.
Judges are not entitled to exercise discretion wearing the robes of
judicial discretion and pass orders based solely on their personal
predilections and peculiar dispositions. Judicial discretion wherever it
is required to be exercised has to be in accordance with law and set
legal principles. As will be seen in moulding the relief in the present
case and allowing one of the blocks meant for parking to stand we
have been guided by the obligatory duties of the Mahapalika to
construct and maintain parking lots." (emphasis supplied)
40. Recently in M.C. Mehta v. Union of India,(2004) 6 SCC 588, in the
context of large-scale unauthorised constructions carried on in Delhi
contrary to the MPD, the Supreme Court observed (SCC, p. 614, 617):
"..the land cannot be permitted to be used contrary to the stipulated
user except by amendment of the master plan after due observance of
the provisions of the Act and the Rules. Non-taking of action by the
Government amounts to indirectly permitting the unauthorised use
which amounts to the amendment of the master plan without
following due procedure.
51. The growth of illegal manufacturing activity in residential areas
has been without any check and hindrance from the authorities. The
manner in which such large-scale violations have commenced and
continue leaves no manner of doubt that it was not possible without
the connivance of those who are required to ensure compliance with
law and reasons are obvious. Such activities result in putting on extra
load on the infrastructure. The entire planning has gone totally
haywire. The law-abiders are sufferers. All this has happened at the
cost of health and decent living of the residents of the city violating
their constitutional rights enshrined under Article 21 of the
Constitution of India. Further, it is necessary to bear in mind that the
law-makers repose confidence in the authorities that they will ensure
implementation of the laws made by them. If the authorities breach
that confidence and act in dereliction of their duties, then the plea that
the observance of law will now have an adverse effect on the industry
or the workers cannot be allowed. Within the framework of law,
keeping in view the norms of environment, health and safety, the
Government and its agencies, if there was genuine will, could have
helped the industry and workers by relocating industries by taking
appropriate steps in the last about 15 years. On the other hand, it
encouraged illegal activities."
In the same vein are the observations in M.C. Mehta v. Union of India
(2006) 3 SCC 399.
41. In respect of those nursing homes operating without any registration and
who have not made any application for that purpose till date, an
unambiguous message must issue that unless and until a nursing home
satisfies the authorities concerned that it has complied with all the
requirements not only under the MPD but under the other statutes as well, it
ought not to be permitted to continue operating as a nursing home.
42. The second category is of nursing homes that have applied for but have
not yet been granted permission and have not filed any petition in this Court.
The cases of those nursing homes that have not approached this Court and
therefore have no interim order in their favour need not be examined by the
Court. With the declaration of the law by this judgment, the authorities will
proceed to take consequent steps in respect of such nursing homes.
Directions concerning the petitioners
43. That leaves us to deal with the third category of nursing homes that have
applied whether for grant of or renewal of registration and have approached
this court and whose registration has not been cancelled or operation not
shut down on account of an interim order of this court. For such nursing
homes this Court thinks it appropriate to direct that some time should be
given to enable them to shut down their operation till they are granted
registration in terms of the Act and the Rules and in terms of the law as
explained in this judgment. This Court is inclined to grant them six months
from today to completely shut down their operations. This is subject to the
condition that the petitioners will, if they have not already done so, apply
within eight weeks from today seeking approval in terms of the mixed land
use norms. This of course would be in addition to their application for
renewal of their registration under the Act and the Rules. Such applications
shall be decided by the authorities within a period of not less than twelve
weeks thereafter. It would be for the nursing home concerned to ensure that
they satisfy the authority under the Act, the DDA and any other statutory
authority that all the statutory requirements have been complied with. The
court directs that the authorities should allocate resources to ensure that
these time limits are strictly adhered to. The petitioners are however
reminded that this is only a grace period and the delay if any in the
authorities taking a decision on their applications will not permit the
petitioners to seek extension of the period granted to them by this judgment
to shut down their operations. It is only after grant of registration that such
nursing homes can be permitted to resume their operations.
44. The extended time period for closing down is being given so that any
indoor patient already receiving treatment is not unduly inconvenienced.
Further every new patient admitted to such hospital or nursing home will be
forewarned that it has been asked to shut down by a certain date pending
grant of registration. For this purpose, each such nursing home will put up a
notice board prominently at least three places including the gate, announcing
to the public that if not granted registration it would cease to operate after
the grace period granted by this Court. Simultaneously such nursing home
will also inform its staff and medical personnel of the same position to
enable them to arrange their affairs in the meanwhile. The failure by the
nursing home to do so will not create any equities in favour of such staff,
medical personnel or a member of the public intending to utilise the services
of such nursing home or hospital.
45. The writ petitions and LPA No. 132 of 2008 are hereby dismissed.
Subject to the aforementioned directions, the interim orders in each petition
and the LPA are hereby vacated and all pending applications are dismissed.
S. MURALIDHAR, J.
CHIEF JUSTICE
APRIL24, 2009
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