Paardarshita Public Welfare ... vs Commissioner South Delhi ...
2015 Latest Caselaw 6080 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment Reserved on :15.07.2015
%                              Judgment Pronounced on : 19.08.2015

+     W.P.(C) 6568/2015 & CM No.11963/2015

      PAARDARSHITA PUBLIC WELFARE
      FOUNDATION (NGO)                                      ..... Petitioner

                   Through: Mr.Harkishan Das Nijhawan (in person)
                        versus

      COMMISSIONER SOUTH DELHI MUNICIPAL
      CORPORATION AND ORS.             ..... Respondents

                    Through:    Mr.Gaurang Kanth along with Ms.Biji
                                Rajesh and Mr.Rajeev Yadav, Advs. for
                                EDMC. Mr.Raman Duggal, Standing
                                Counsel with Ms.Aayushi Gupta, Advs. for
                                GNCTD. Mr.Ajay Arora, Adv. for SDMC.
                                Mr. Rahul Gupta, Advocate with Mr.
                                Shekhar Gupta and Mr. Umang Gupta,
                                Adv. for      respondent/Indian Medical
                                Association. Mr.Dhamesh Relan along with
                                Mr.Arush Bhandari, Advs. for R- 5/DDA.
                                Mr.Anil Grover along with Ms.Divya Jain,
                                Advs. for NDMC. Mr. B. Mohapatra, Adv.
                                for R-4.
      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J

1.    The present Public Interest Litigation is filed by the petitioner who is
said to be a society registered under the Societies Registration Act. The



W.P. (C) No.6568/2015                                             Page 1 of 5
 petitioner prays for a writ of mandamus or directions to the respondents to
immediately stop all kinds of hazardous activities in the residential areas of
Delhi which are in the shape and style of illegal and unauthorized
diagnostic centers, medical facilities, path labs, nursing homes and similar
kind of other institutions in view of the recent judgment of the Hon‟ble
Supreme Court in the case of Anirudh Kumar vs. Municipal Corporation
of Delhi and Ors. Civil Appeal No.8284/2013 dated 20.03.2015. Based on
this judgment, it is averred that action needs to be taken against all entities
which are disobeying and violating the orders of the Supreme Court.
2.    It is the contention of the petitioner that the respondents have failed
to take any action against the said illegal and unauthorized nursing homes,
path labs, diagnostic centers and such other kinds of institutions functioning
in the residential areas of Delhi.
3.    Reference is made to several complaints to various authorities
whereby the petitioner claims to have sought and requested for action
against the illegal functioning of nursing homes, path labs, diagnostic
centers etc. in the residential areas of Delhi.
4.    We have heard learned counsel for the parties and perused the record.
5.    The genesis of the petition is the judgment of the Supreme Court in
the case of Anirudh Kumar vs. Municipal Corporation of Delhi and
Ors.(supra). We may look at the said judgment. That was a case which was
filed by the appellant therein seeking a writ for quashing of the
Regularization Certificate issued to the respondents therein who were
running a pathological lab from the basement, ground floor, mezzanine
floor and first floor of a building in a Haus Khas, New Delhi. The
pathological lab was started in the year 1995 from the basement and ground



W.P. (C) No.6568/2015                                             Page 2 of 5
 floor of the building. In 2005-06 after the purchase of the first floor of the
premises by the owner of the path lab, the activities of the lab spread to the
mezzanine floor and the first floor. Heavy equipments were installed; about
50 people were employed, 25 air conditioners, two Diesel Generator sets,
kerosene oil tanks, gas cylinders and electric panels had been installed.
6.     The appellant in that case filed a writ petition in the year 2004
alleging violation of Master Plan of Delhi by the owner of the lab. During
the pendency of the writ petition, MCD granted a Regularization Certificate
to the lab. Hence, the appellant therein withdrew the writ petition and filed
a fresh writ petition where quashing of Regularization Certificate was
prayed for. The writ petition was dismissed by the Single Judge. The appeal
was also dismissed by the Division Bench of this Court. The Supreme
Court, however, in the facts and circumstances of the case held that the
grant of Regularization Certificate to the respondents/owners of the path lab
under the Mixed Use Regulation of MPD 2021 giving retrospective effect,
to run a pathological lab in the guise of a nursing home in a residential area
falling in the category „A‟ and „B‟, is not sustainable in law and liable to be
set aside.
7.    Regarding the issue of breach of various environmental laws, the
Supreme Court further held that on the facts of the case and the evidence on
record that the respondents/owners were running the pathological lab in the
concerned building in violation of the said law. Hence, the Supreme Court
allowed the appeal      and set aside the Regularization Certificate issued to
the respondents/owners.      The respondents/owners were also directed to
close down their establishment.
8.    The judgment gives no directions to all the path labs, nursing homes



W.P. (C) No.6568/2015                                             Page 3 of 5
 etc. as is sought to be urged.
9.    It is clear from the reading of the judgment of the Supreme Court that
it is based on the facts of the case. The Supreme Court, in the facts of the
case including the location of the concerned lab concluded that the
Regularization Certificate granted to the concerned lab was illegal.
Relevant portion of the judgment reads as follows:-
      "......
      .... 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 the
      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 11.07.2006 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 above".
      ....

......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 law."

.....

For the reasons stated supra, the appeal is allowed and the impugned judgments and orders of both the learned Single Judge and Division of the High Court are hereby set aside and Regularisation Certificate is quashed and rule is issued. Further, directions are issued to the respondents MCD and DPCC to see that the unlawful activities of the respondent-owners are stopped as per our directions. The respondent-owners are directed to close down their establishment of running „Dr. Dang‟s Diagnostic Centre‟ within four weeks from the date of receipt of the copy of this Judgment by shifting the same to alternative premises and submitting the compliance report for the perusal of this Court. If the respondent-owners do not comply with the above directions of this Court within four weeks, the MCD is directed to take necessary prompt steps for sealing or closing down of all the activities undertaken by them in the premises of concerned building and submit the compliance report for the perusal of this Court. All the I.A.s are disposed of accordingly. No costs."

10. Hence directions were issued to close down the diagnostic centre of the respondent in that case. There are no other directions. Needless to add that the ratio of the said judgment would bind the respondent.

11. Other than relying on the judgment of the Supreme Court, there is no other material averment in the petition. We see no merits in the writ petition and the same is dismissed.

(JAYANT NATH) JUDGE

CHIEF JUSTICE AUGUST 19, 2015 raj/an