Anirudh Kumar vs M.C.D. & Ors.
2010 Latest Caselaw 4678 Del

              *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 5th October , 2010.

+                           W.P.(C) No.225/2008
%

ANIRUDH KUMAR                                              ..... PETITIONER
                            Through:      Mr. B.K. Sinha & Ms. Pratibha Sinha,
                                          Advocates.

                                       Versus

M.C.D. & ORS.                                            ..... RESPONDENTS
                            Through:      Mr. Sanjeev Sabharwal & Mr. Hem
                                          Kumar, Advocates for R-1.
                                          Mr. Arjun Pant, Advocate for R-5.
                                          Mr. Rajiv Nayyar, Sr. Advocate with
                                          Mr. Kunal Tandon & Mr. Abhinav
                                          Agnihotri, Advocates for R-6&7.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may              No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petitioner, a resident of second floor of property No.D-1, Hauz

Khas, New Delhi and aggrieved from the setting up of a Diagnostic

Centre/Pathological Laboratory in the name and style of Dr. Dang‟s

Diagnostic Medical Centre by the respondents no.6 & 7 at the ground and

first floors of the said property, preferred the present petition impugning the

order dated 11th July, 2006 of the respondent no.1 MCD permitting the

setting up of such Diagnostic Centre/Pathological Laboratory and seeking a

mandamus against the respondent no.1 MCD for prohibiting the running of

the said Clinical Pathology Laboratory and to ensure removal of all plant &

machinery installed therein which are alleged to be a health and a fire hazard

to the property and occupants thereof.

2. The petition came up before this Court first on 11th January, 2008 for

admission. This Court finding that the Clinical Pathological Laboratory had

been set up in the year 1995 and was continuing since then and the

petitioner had first objected to the same by filing W.P.(C) No.8808/2004 and

during the pendency whereof the Master Plan of Delhi (MPD)-2021 had

come into force and whereunder Regularization Certificate dated 11 th July,

2006 (supra) was issued and whereafter the earlier writ petition was

withdrawn, held the challenge by the petitioner to the said Regularization

Certificate dated 11th July, 2006 to be not maintainable. The grievance of the

petitioner with regard to the installation of the Generator set was also held to

be a private grievance which could not form the subject matter of a writ

petition. Thus limited notice of the petition was issued "in respect of non-

compliance of the Clauses 3 & 7 of the Regularization Certificate aforesaid".

3. The said clauses 3 & 7 of the Regularization Certificate dated 11th

July, 2006 granting permission for running of a Clinical Pathology

Laboratory at the ground and first floors of the property are as under:-

"3. All parking arrangements will be made by you within the plot in question.

7. The applicant will ensure that no nuisance or hardship is created for the local residents."

4. The counsel for the petitioner during the course of hearing has sought

to expand the scope of the petition, reiterating the grounds urged in the

petition and in which respect the petition was dismissed in limine as

aforesaid. The arguments in so far as the enforcement of Clauses 3 & 7 is

concerned, are as under:-

i. that about 200 people visit the Diagnostic Centre-cum-

Pathological Laboratory everyday and no space for parking

their vehicles has been provided as required; such visitors in the

absence of a parking site in the vicinity also, park their

cars/vehicles on the road in front of the property and all-around

causing a huge traffic jam and depriving the petitioner of the

parking space in front of his house and compelling him and his

guests to park at a distance far away from his house;

ii. the aforesaid is also stated to cause nuisance;

iii. it is stated that the chimneys of the 25 air conditioners

installed in the Diagnostic Centre/Pathological Laboratory

open their vents near the balconies of the second floor of the

petitioner.

iv. it is stated that the two Generators also are a cause for

nuisance;

v. that though the permission has been granted with respect to

the ground and first floors only but the basement and the

mezzanine floor are also being misused for Diagnostic Centre-

cum-Pathological Laboratory; it is contended that hazardous

bio medical waste is accumulated in the staircase and in the

basement.

Reliance is placed on In Re Noise Pollution (2005) 5 SCC 733 to

contend that fundamental right of the petitioner to live a life of dignity in his

premises is being violated.

5. Per contra, the counsel for the respondent no.1 MCD informs that the

respondents no.6 & 7 who have set-up the Diagnostic Centre/Pathological

Laboratory aforesaid have on 15th June, 2007 paid the parking charges of

`11,91,261/- to the MCD and thus the condition No.3 aforesaid qua parking

arrangements now does not survive.

6. The counsel for the respondent no.5 Delhi Pollution Control

Committee (DPCC) has argued that as per the latest inspection, the

Diagnostic Centre/Pathological Laboratory is being run at ground and first

floors only and no violations were found.

7. The senior counsel for the respondents no.6 & 7 has taken objection to

the petitioner raising matters which already stand settled. It is informed that

the petitioner had preferred an intra Court Appeal against the order

dismissing the petition in limine in so far as challenging the permission

granted to set-up Diagnostic Centre/Pathological Laboratory and the said

appeal after considerable arguments was withdrawn. It is also argued that

the matter relating to Generators also stands settled in the order dated 11 th

January, 2008 (supra) in this writ petition and the petitioner cannot re-agitate

the same. It is stated that the matter of alleged misuser of basement and

mezzanine floor also stands concluded vide order dated 28 th May, 2009 in

the present petition whereby the application moved by the petitioner in that

regard was withdrawn. It is contended that no activity of Diagnostic

Centre/Pathological Laboratory is being carried out from the basement or

mezzanine floor. It is urged that there are other commercial establishments

in the nature of Banks and Suzuki Motor Car Dealership in the

neighbourhood and the petition against the respondents no.6 & 7 is

motivated. It is yet further contended that the petitioner is in any case not

entitled to any equitable relief, since he is himself carrying on commercial

activity in the name and style of „Jewels of India‟ from his premises on the

second floor.

8. The counsel for the respondents no.6 & 7 has also drawn attention to

an affidavit dated 7th August, 2008 filed at page 172 of the paper book to the

effect that no complaint of nuisance from any other neighbour has been

received. The counsel for the petitioner rejoins by drawing attention to the

copies of complaints by other neighbours to the Office of the ACP (Traffic),

annexed to CM No.276/2010 in this petition. The said complaints are of

July/August, 2009. Attention is also invited to complaints (Annexure P-17 to

the petition) of July, 2006 of other neighbours. The counsel for the petitioner

also states that the petitioner is carrying on business in the name and style of

„Jewels of India‟ with a showroom at Ashoka Hotel, New Delhi and merely

because has given the address of the said business at the second floor also

would not mean that the second floor was being used for commercial

purpose. Immediate inspection of the second floor by a Court Commissioner

is offered to satisfy the Court that no commercial activity is being carried out

from the second floor.

9. Notwithstanding heated arguments, the only question for

consideration is whether the respondents no.6 & 7 have not complied with

Clauses 3 & 7 (supra) of the Regularization Certificate dated 11th July, 2006

granting permission to them to set-up the Diagnostic Centre/Pathological

Laboratory.

10. In so far as Clause 3 regarding parking arrangements is concerned, in

the opinion of this Court, upon the respondents no.6 & 7 paying the requisite

parking charges, they stand relieved of the said condition. The MPD-2021

has allowed mixed use of certain areas/properties on the conditions

prescribed therefor. One such condition is levy of parking charges. The said

parking charges are levied to develop a fund to enable the MCD to provide

for parking facilities in the vicinity of the properties, mixed use whereof for

residence-cum-commercial/professional purposes is permitted. Once the

respondents no.6 & 7 have paid the said parking charges, they stand

relieved of the obligations for making arrangements for parking. Even

otherwise, the decision whether the respondents no.6 & 7 have complied

with or violated the said conditions is to be of the respondent no.1 MCD.

The respondent no.1 MCD, upon payment of the parking charges aforesaid

by the respondents no.6 & 7 is satisfied of the compliance of the condition.

The petitioner as an affected party would certainly have a right to approach

this Court to urge that the decision of the respondent no.1 MCD is not in

accordance with law. However in view of the provisions of MPD-2021, I

am satisfied that there is no error in the decision of the respondent no.1

MCD in not treating the respondents no.6 & 7 to be in violation of Clause 3

(supra). The respondents no.6 & 7 cannot be held responsible for parking

arrangements after paying the charges levied therefor to the respondent no.1

MCD. To hold otherwise would nullify the very reason for levy of such

parking charges. Attention of the counsel for the petitioner was drawn to the

properties in NDSE Part-I & Part-II, New Delhi abutting the main road and

commercial use whereof has been permitted and on whom parking charges

have been levied. It was enquired as to whether the said properties

notwithstanding the payment of parking charges would continue to remain

liable to provide parking for their customers. The counsel for the petitioner

could only state that their position was different without showing how.

11. Clause 7 is with respect to nuisance or hardship for the local

residents. The present petition is filed by a single resident of the same

property only and not by an association of residents. It thus appears that

none other than the petitioner is aggrieved. The contentions aforesaid of the

petitioner on the one hand that complaints have been made by other

residents and of the respondent no.1 MCD on the other hand that no such

complaints have been received, raises a disputed question of fact and which

cannot be adjudicated in the present petition. Moreover as aforesaid, it is

inexplicable as to why if the local residents are aggrieved, they have not

approached this Court. The petition as it stands lends support to the

contention of the senior counsel for the respondents no.6 & 7 that the

petition is motivated more by a private dispute of the petitioner with the

respondents no.6 & 7 rather than owing to any nuisance or hardship to the

local residents.

12. The senior counsel for the respondents no.6 & 7 has also stated that

the chimneys of the air conditioners were broken by the petitioner at the

level of his balcony to take photographs filed before this Court; it is

contended that else the said chimney are above the height of the terrace of

the property. The senior counsel for the respondents no.6 & 7 further assures

that the respondents no.6 & 7 are ready and willing to do anything else

which may be required in accordance with law with respect thereto.

However the counsel for the respondent no.5 DPCC states that nothing

further is required to be done.

The petition is therefore dismissed. No order as to costs.

RAJIV SAHAI ENDLAW (JUDGE) 5th October, 2010 pp