Supreme Court of India
ANIRUDH KUMARversusMUNICIPAL CORPORATION OF DELHI & ORS.
- Citation
- 2015 INSC 242
- Decided
- 20 March 2015
- Disposal
- Appeal(s) allowed
- Bench
- V GOPALA GOWDA
Holding
The Regularisation Certificate granting permission to run a pathological laboratory in the residential building is illegal and must be set aside, and the laboratory must be closed as it violates the Master Plans, building bye‑laws, and environmental laws, constituting a matter of public interest.
Summary
The appellant, a resident of a building in Hauz Khas, challenged the Municipal Corporation of Delhi’s issuance of a Regularisation Certificate that allowed the owners of a pathological laboratory to operate on multiple floors of the residential building. The High Court dismissed the writ petition, holding it was a private dispute, but the Supreme Court held that the matter involved public interest because it affected the health, safety and environment of a large class of residents. The Court examined the Master Plans of Delhi (2001 and 2021), the Mixed‑Use regulations, and environmental statutes, finding that the laboratory’s operation violated building bye‑laws, exceeded permissible floor‑area‑ratio, and caused air, noise and water pollution. The Regularisation Certificate was deemed illegal, contradictory to the Master Plans, and issued without requisite permission from the High Court. Consequently, the Court quashed the certificate and ordered the closure of the diagnostic centre within four weeks, directing the MCD and DPCC to enforce the order.
Issues considered
- The legality and validity of the Regularisation Certificate issued by the MCD under the Mixed‑Use provisions of the Delhi Master Plan.
- Whether the operation of a pathological laboratory in a residential building constitutes a public interest litigation.
- Compliance of the laboratory’s activities with the Delhi Master Plan 2001, Master Plan 2021, and building bye‑laws.
- Whether the laboratory’s operations violate environmental statutes such as the Environment (Protection) Act, 1986, Water (Prevention and Control of Pollution) Act, 1981, and Air (Prevention and Control of Pollution) Act, 1981.
- Whether the MCD and DPCC failed to discharge their statutory duties by regularising an unlawful activity.
Legislation cited
Subjects
Public Interest LitigationMixed UseMaster Plan Delhi 2001Master Plan Delhi 2021Regularisation CertificateEnvironmental PollutionBuilding Bye‑lawsUrban DevelopmentNuisanceZoningDiagnostic CentrePathological LabDelhi Municipal CorporationDelhi Development ActEnvironment Protection ActWater Pollution ActAir Pollution Act
Judgment
[2015] 5 S.C.R. 918
A ANIRUDH KUMAR
v.
MUNICIPAL CORPORATION OF DELHI & ORS.
(Civil Appeal No.8284 of 2013)
B
MARCH 20, 2015
[V. GOPALA GOWDA AND C. NAGAPPAN, JJ.]
Urban Development:
c Town Planning - Running of Diagnostic Centre
(Pathological Lab) in the residential area - Permissibility -
Pathological lab on the basement, ground floor, first floor and
mezzanine floor of the building- Writ petition by the appellant
(the resident on the second floor of the building) against the
0
owners of the Lab and the authorities concerned - During
pendency of the petition, regularisation Certificate issued on
11. 7.2006 to the owners by Municipal Corporation under
Mixed Land Use for running the lab - Appellant filed fresh
E Writ Petition challenging the Regularization Certificate -
Petition dismissed by Single Judge of High Court- Order of
Single Judge confirmed in LPA by Division Bench of High
Court - On appeal, held: Regularization Certificate under
Mixed Use Regulations of the Master Plan Delhi 2021 giving
F retrospective effect was granted, even before the Plan came
into force- The Certificate was also contradictory to the Mixed
Use Regulations under the Master Plan 2001 - Thus the
Certificate was impermissible not only in law but also
because it was granted without seeking permission from the
G High Court during the pendency of the earlier Writ Petition -
Running of the Lab has led to omission of hazardous
substances affecting human beings, plants, micro organisms,
and other living creatures - It has also resulted in water and
noise pollution - There is blatant violation of the provisions
H of building bye-laws of MCD in using the building for the
918
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 919
DELHI
purpose other than the purpose for which it was constructed A
- Running of Pathological Lab or the Nursing Home is
impermissible in the concerned building under the Master
Plan 2001 and also under the provisions of Water (Prevention
and Control of Pollution) Act, ·1981 -Authorities concerned
directed to stop the unlawful activities of the owners of the B
Lab- Master Plan of Delhi 2001- Master Plan of Delhi 2021
- Delhi Development Act, 1957 - Environment (Protection)
Act, 1986- Water (Prevention and Control of Pollution) Act,
1981.
c
Public Interest Litigation - Writ Petition by resident of
a building-Against the owners of Pathological Lab who were
running the lab on other floors of that building, which fell in
Residential area - Dismissal of the petition - LPA
thereagainst dismissed on the ground that it was a private D
interest litigation - Held: Running of the lab amounts to
violation of the rule of law and affected the public interest,
hence it is a Public Interest Litigation by the appellant fighting
for the cause of all the local residents.
E
Words and Phrases:
"hazardous substance"~ Meaning of, in the context
of s. 2(e) of Environment Protection Act, 1986.
F
"Process" - Meaning of, in the context of environment
protection laws.
Allowing the appeal, the Court
HELD: 1. The Division Bench of High Court was G
not correct in holding that the proceedings initiated by
the appellant were not in the nature of public interest,
but was only private interest litigation. It is clear from
the pleadings and documentary evidence that several
representations had been made by the affected H
920 SUPREME COURT REPORTS [2015] 5 S.C.R.
A neighbours of the building at different stages with regard
to the nuisance created by the Pathological Lab right
from 29.12.1995 till date including the complaint made
by the 32 residents of Hauz Khas to the Assistant
Commissioner of Police (Traffic) on 27.07.2009. The
B running of·the Pathological Lab in the building by the
respondent-owners amounts to violation of the rule of
law and affects the public interest, therefore, it is public
interest litigation even though the appellant herein is a
resident of the second floor of the concerned building
C and simultaneously he has been fighting for the cause
of all the local residents. [Para 24) [935-G-H; 936-A-D]
S. P Gupta and Others v. President of India and Others
1982 SCR 365 (1981) Supp. SCC 87 - followed.
D
State of Uttaranchal v. Ba/want Singh Chaufal 2010 (1)
SCR 678: 2010 (3) SCC 402; Gadde Venkateswara
Rao v. State of A.P AIR 1966 828: 1966 SCR 172 -
relied on.
E
2.1 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
F building. The said act of the MCD is contrary to the legal
principles. [Para 27) [942-G-H; 943-A]
2.2 The plea of the respondent-owners that the
mezzanine floor does not exist in the building, is contrary
G to the pleadings made before the courts below and even
before this Court and the same is made with a ma/a fide
intention to conceal unauthorized construction and
contravention of the building bye-laws. The issuance of
the Regularisation Certificate dated 11.7.2006, in favour
H of the respondent-owners of the Pathological Lab was
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 921
DELHI
in contravention of the building bye-laws and MPD-2021. A
[Paras 29 and 30] [944-C-E]
2.3 The report of the DPCC clearly states that the
Regularisation Certificate was granted for running a
Nursing Home whereas a Pathological Lab has been s
functioning on the basement, ground floor of the building
since the year 1995. In view of the Clause 15.4(ii) of the
MPD-2021, the general terms and conditions governing
Mixed Use provides that where there are more than one
dwelling units in a residential plot, each of the dwelling C
units will be permitted to have only type of Mixed Use
activity (either retail shop as per Clause 15.5 or
professional activity or any one of the other activities as
provided in Clause 15.7). In the residential plot in
question, there are more than two residential flats and D
once again such kind of use of premises in the dwelling
unit will be permitted to have only one kind of activity.
[Para 32] [947-H; 948-A-C]
2.4 From Clause 15.8 of MPD 2021, it is clear that if E
the use of basement for professional activity exceeds
the FAR, then such excess usage shall be subject to
payment of appropriate charges prescribed with the
approval of the Government of India. Neither the MCD
nor the respondent-owners in their pleadings have F
brought this fact to the notice of this Court that they have
complied with the above said provision by paying the
appropriate charges for usage of the basement when
the same is exceeding the permissible FAR on the plot
of the building. [Para 34] [948-G; 949-D-E] G
2.5 Thus, 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 H
922 SUPREME COURT REPORTS [2015] 5 S.C.R.
A residential area falling in categories "A" and "B" is not
sustainable in law and liable to be set aside. 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
B 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 is prohibited in
C the residential plot of the building under the various
Clauses of the Master Plan 2021. [Para 35] [949-G-H; 950-
-A-C]
2.6 Further, the said Regularisation Certificate
D 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. [Para 36] [950-D]
E
2.7 On examining the Regularisation Certificate
issued by the MCD, it is c.lear that the Regularisation
Certificate is for running of a Pathological Lab whereas
the conditions mentioned therein are directed towards
F 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 as it is impermissible not only in law
but also because the same was granted without seeking
G permission from the High Court during the pendency of
the earlier Writ Petition filed by the appellant. [Para 38]
[953-F-G]
3.1 Clause 15.5 of MPD 2021, clearly states that
H any trade or activity involving any kind of abnoxious,
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 923
DELHI
hazardous, inflammable activities, non-compatible A
activities and polluting substance or process shall not
be permitted. 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 B
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 C
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
0
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 E
nuisance created by all these factors not only leads to
air pollution but also noise pollution to a great
extent.[Paras 40 and 41) [954-8-C, G-H; 955-A-B]
Priyanka Estate International (P) Ltd. v. State of
F
Assam 2009 (16) SCR 80: (2010) 2 SCC 27 - relied
on.
3.2 On examining the evidence on record, it is clear
that large diesel generator sets have been erected by
the respondent-owners in the set-back area which is an G
illegal structure in the residential premises and is in
contravention of the building byelaws and zonal
regulations of the MCD. [Para 43] [956-F-G]
H
924 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 3.3 The running of this large Pathological Lab
has led to emission of hazardous substances and in that
process human beings, plants, micro organisms, and
other living creatures' are being exposed to harmful
physico-chemical properties. Not only this, they also
B create pollution which contaminates water on account
of the discharge of chemical properties used in the
process of running the Pathological Lab, causing
nuisance and harm to public health and safety of the
residents of the area. This fact is certified by the DPCC
C in its report dated 4.8.2008. The usage of such generator
sets has led to the damage of the building and cracks
have been found in the building structure. [Para 44] [956-
H; 957-A-B]
D 3.4 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. [Para 45]
E [957-H; 958-A]
3.5 Though the Pathological Lab had been granted
National Accreditation Board for Testing and Calibration
Laboratories (NABL) certification, however, the same
F 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
to prove that the Pathological Lab is still certified under
the NABL certification. [Para 48) [959-G-H; 960-A]
G
3.6 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 DOA Act, 1957 and the
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 925
DELHI
Environment Law, the MCD proceeded to regularise the A
illegal and unlawful activities of the respondent-owners
which has been carrying on since 1995. 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 B
effect but no prompt action was taken under the
provisions of the Act to either stop it or to demolish the
illegal structure. Therefore, both the MCD and the DPCC
abdicated their statutory duties in permitting the owners
to carry on with the unlawful activities which inaction C
despite persistent request made by the appellant and
the residents of the area did not yield any results. [Paras
49 and 50) [960-8-F]
4. The conduct of the MCD and the DPCC for their D
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 E
respondent-owners, whose activities are patronised by
both the authorities. [Para 51) [961-A-B]
5. Directions are issued to the respondents MCD
and DPCC to see that the unlawful activities of the F
respondent-owners are stopped as per the directions
of this Court. The respondent-owners are directed to
close down their establishment of running the Diagnostic
Centre' in question, within four weeks from the date of
receipt of the copy of this Judgment by shifting the same G
to alternative premises. [Para 53) [961-G-H; 962-A]
Noise Pollution (V) in RE 2005 (1) Suppl. SCR 624:
(2005) 5 sec 733 - relied on.
H
926 SUPREME COURT REPORTS [2015] 5 S.C.R.
A Case law reference
1982 SCR 365 followed Para 24
2010 (1) SCR 678 relied on. Para 24
B AIR 1966 828 relied on. Para 25
2009 (16) SCR 80 relied on. Para 27
2005 (1) Suppl. SCR 624 relied on. Para 41
c CIVILAPPELLATEJURISDICTION: CivilAppeal No.
8284of2013.
From the Judgment and Order dated 16.01.2012 of the
High Court of Delhi at New Delhi in Letter Patent Appeal No.
D 857of2010.
H. P. Rawal, Anita Sahani, Divya Anand, Anando
Mukherjee, Nipur Saxena, Purnima Bhat for the Appellant.
L. Nageshwar Rao, ASG, K. K. Venugopal, lndu
E
Malhotra, Kush Chaturvedi, Vikas Mehta, Nistha Kumar, A.
Bhumesh, Suman Yadav, Puneeth K. G., D. N. Goburdhan,
Prabal Singh, Sanjeev Sen, Dev J. Roy, Praveen Swarup,
Suresh Kumar, Rakesh Kumar, Yogendra Pal Singh, P.
F Kaushal, P. Parmeswaran for the Respondents.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. 1. This appeal by special
leave arises out of the impugned judgment and order dated
G 16.01.2012 passed by the High Court of Delhi in LPANo. 857
of 2010 in and by which, the High Court, while dismissing the
appeal held that this matter does not fall within its writ jurisdiction
which requires determination by the High Court.
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 927
DELHI [V. GOPALA GOWDA, J.]
Brief facts which led to the filing of this appeal are as A
under:-
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 B
respondent-owners') initially started a Pathological Lab in the
name of 'Dr. Dang's 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 C
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 D
Conditioners, two diesel generator sets of25 KVAand 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 E
day.
3. 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 F
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 G
Delhi. During the pend ency 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 DevelopmentAct, 1957, H
928 SUPREME COURT REPORTS [2015] 5 S.C.R.
A the Regularisation Certificate was issued on 11.07.2006 to
the respondent-owners by the MCD underMixed 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
B 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
C 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:
0
"15.7 OTHERACTIVITY
15.7.1 Subject to the general conditions given in para
15.4 and additional conditions given in para 15.7.3,
E 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:
F (a) Pre-primary school (including nursery I Montessori
school, creche.)
(b) i. Nursing Home
ii. Clinic, Dispensary, Pathology laband
G Diagnostic center.
"
Further, the learned single Judge vide order dated
H 5.10.2010 refused to decide the violation under Clause 7 of
AN IRUDH KUMAR v. MUNICIPAL CORPORATION OF 929
DELHI [V. GOPALAGOWDA, J.]
the Regularisation Certificate on the ground that the petition is A
motivated by a private dispute than owing to any nuisance and
hardship t'J any local resident as none of the other local
residents had approached the Court with any complaint
pertaining to nuisance.
B
4. 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 C
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 same.
D
5. 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 E
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.
6. Heard Mr. H.P. Rawal, learned senior counsel on F
behalf of the appellant and Mr. K.K. Venugopal, and Ms. lndu
Malhotra, learned senior counsel on behalf of the respondent-
owners and Mr. L. Nageshwar Rao, Additional Solicitor
General and other learned counsel on behalf of the respondent.
G
7. The learned senior counsel on behalf of the appellant
contended that the appellant made various complaints to the
concerned authorities, namely, 1) Respondent No.1 - Dy.
Commissioner, MCD regarding the commercial activity of the
respondents-owners. 2) Respondent No.2- SHO of the area H
for forceful installation of the Generator sets in the set-back
930 · SUPREME COURT REPORTS ~[2015] 5 S.C.R.
A area of the concerned property and blocking the underground
water tanks and 3) Respondent No.3 - Executive Engineer,
Delhi Electricity Supply Undertaking about'the installation of
the Generator sets.
B 8. It is contended by the learned senior counsel for the
appellant that the authorities were called upon by the appellant
to take some preventive action against the respondent-owners
as they have not taken any license or permission from the MCD
prior to setting up of the Diagnostic Centre in the residential
C area which is admitted by the concerned respondents
themselves. According to the sanctioned building plan, the
·· · basement and the mezzanine floor could be used only for
storage purpose and for no other purpose.
D . 9. It is further contended by him that the MCD never
sought permission of the· High Court before issuing
Regularisation Certificate in favour of the respondent-owners
when W.P. No. 8808 of 2004 was pending before the High
Court. It is further contended by him that the said Regularisation
E Certificate dated 11.7.2006 which was allegedly granted under
the MPD 2021 which could not have retrospective effect but in
fact, is prospective in nature. Further it has been contended
by him thatthe MPD 2021 was notified by the Ministry of Urban
DevelopmentVide Notification No. S.0.141 and was brought
F into force on 07.02.2007. The said plan was only at its
proposal stage, which fact was taken note of by the Division
Bench of the High Court in its impugned judgment. Thus, it can
be said that even before the MPD 2021 was brought into
effect, the MCD went ahead with issuing Regularisation
G Certificate under the said plan in favour of the respondent-
owners of the Pathological Lab.
10. Further, it is submitted by the learned senior counsel
on behalf of the appellant that on 27.04.2006, the complaint
H made by the 18 residents of the area to the Commissioner,
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 931
DELHI [V. GOPALAGOWDA, J.]
MCD about the hardship and nuisance faced by them were A
not taken note of or given heed to by the authorities. Again on
24.07.2009, 32 residents of Hauz Khas complained to theACP
(Traffic) about the great hardship they have been facing due to
the continuous nuisance being committed by the said
Diagnostic and Pathological Lab. B
11. It is further contended by the learned senior counsel
for the appellant that no person shall, without the previous
consent of Delhi Pollution Control Committee (DPCC)-
respondent No. 5 herein shall establish or take any steps to C
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 on the part of such
establishment to first obtain consent from the DPCC for D
establishing or operating any industry, operation or process
or any treatment and disposal system or any extension or
addition thereto as envisaged under Section 25 of Water
(Prevention and Control of Pollution) Act, 1986. Admittedly, no
such consent was obtained or granted by the DPCC. The said E
fact has not been placed before the learned single Judge,
Division Bench or this Court by any of the respondents. The
DPCC has stated in its counter statement that the Pathological
Lab is being run by the respondent-owners in the basement, F
ground floor, first floor and mezzanine floor of the concerned
property. Thus, it is being run by them not only in violation of
the Master Plan for Delhi 2001 but also MPD-2021.
12. It is further contended thatthe area illegally permitted
by the MCD in pursuance of the alleged Regularisation G
Certificate dated 11.07.2006 mentions the area to be 222.25
sq meters and confines the activity of respondent-owners to
the ground floor and the first floor only. However, the
respondent-owners have been using the area much more in H
excess of the said permitted area by using the mezzanine floor
932 SUPREME COURT REPORTS [2015] 5 S.C.R.
A of the building also. The said fact pleaded by the appellant is
corroborated by the inspection report submitted by the DPCC
in these proceedings. It is further contended that the
respondent-owners have neither refuted nor pleaded anything
contrary to the same, but on the other hand, for the first time
B before this Court, the learned senior counsel on behalf of the
respondent-owners have stated that the mezzanine floor does
not exist in the building. This plea urged by the respondent-
owners is not only contrary to the pleadings before the courts
below but the same is made with a ma/a fide intention and is
C an incorrect statement of fact and therefore, requested this
Court to reject the said contention.
13. Further, it is contended by the learned senior counsel
that the appellant has been complaining about the set-back
D area of the building being illegally covered by the respondent-
owners contrary to the building bye-laws and for the first time
before this Court, a new plea has been taken by the respondent-
owners that they have kept the generator sets in the set-back
area of the building allegedly because they have not been
E allowed to install it on the terrace of the concerned building.
This alleged fact is contrary to the facts and the title deeds of
the property. The terrace in the building was purchased by the
alJ>pellant separately and he is the exclusive owner of the
F terrace.
14. It is further contended that the appellant is living on
the second floor of the building and enough damage has been
done to the same and cracks have occurred therein due to the
installation of heavy equipments including generator sets. The
G effect of such installation of such heavy equipments like
generator sets on the terrace is not only dangerous but would
also make it impossible for the appellant as well as the
surrounding neighboring residents to live peacefully.
H 15. It is further urged by the learned senior counsel for
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 933
DELHI [V. GOPALAGOWDA, J.]
the appellant that the impugned order is liable to be set aside A
as the dispute between the parties is not a private dispute
and respondent Nos. 1 to 5 are required in law. to take
appropriate legal action against the respondent-owners to
stop the illegal and unauthorized activities in the concerned
building. These activities of running the Pathological Lab are B
also contrary to Clause 7 of the conditions mentioned in the
Regularisation Certificate dated 11.07.2006 issued by the
MCD to the respondent-owners for running of the Pathological
Lab in the concerned building.
c
16. On the other hand, the learned senior counsel on
behalf of the respondents have alleged that the appellant
himself has not approached this Court with clean hands and
has deliberately suppressed material information and
documents with a view to prejudice this Court against the D
answering respondents and has raised unauthorized
construction on the roof above the second floor of the
concerned building. It is alleged by them that this appeal filed
by the appellant is motivated by personal animus against the
answering respondents. It is further contented that the E
contentions urged by the appellant both in the writ petition and
in this appeal do not raise any question of law or question of
public importance, therefore, the same does not call for
interference of this Court.
F
17. It is further contended by the learned senior counsel
for the respondent-owners that the Delhi Master Plan 2001
classifies a Clinical Laboratory under Section 2 - Development
Code, Clause 8 (3) SI. No. 077 as an activity permissible in a
residential area. A clinical laboratory being a utility service is G
permitted to be run in both the residential and commercial
areas and this facility must be easily accessible and in close
proximity to people in residential zones.
H
934 SUPREME COURT REPORTS [201515 S.C.R.
A 18. Further, it is submitted by them that the MPD-2021
which came into force on 07.02.2007, provides for Mixed Use
Regulations. Regulation 15.7.2 reads thus:
"15.7.2 The minimum ROW of a street or stretch of road
B on which other activities are permissible is as follows:
In A & B Colonies*: 18m ROW in regular plotted
development; 1-3. Added vide S.O. 2034(E) dated 12-
08-2008 184 Notes
c In C & D colonies: 18 m ROW in regular residential plotted
development"
19. Further, it is submitted that as Hauz Khas area has
been classified as a Class "B" Colony as per MPD 2021, the
D aforesaid activities of the respondent-owners in the residential
building are permissible in a Class "B" Colony, having an 18
m ROW in regular plotted development. It is further contended
that it is relevant to mention that there is no restriction with
respect to the area that can be used for a Nursing Home, Clinic,
E Dispensary, Pathological Lab and Diagnostic Centre covered
by Regulation 15.7.1 oftheMPD2021.
20. It is further submitted by the respondent-owners in
their written submissions that they have installed generator sets
F for running their Pathological Lab in the rear set back area of
the concerned building, since the appellant did not permit
access to the roof of the second floor for utilities even though
they have a right of access to the terrace to repair and clean
the overhead tanks, to install TV antenna etc., under their
G registered sale deed of the building. Further, it is contended
by the learned senior counsel for the respondent-owners of
the Pathological Lab that they have not constructed any shed
in the rear set-back area and generators have been kept in
H the sound-proof enclosures and the noise generated from them
is within the permissible limits and therefore, there is no air
and sound pollution in the area.
AN IRUDH KUMAR v. MUNICIPAL CORPORATION OF 935
DELHI [V. GOPALAGOWDA, J.].
21. Further, It is contended by the learned senior counsel A
for the respondent-owners that respondent No. 5, DPCC has
given the permission to install the aforesaid generators in the
building after conducting an inspection of the same and
certified that the air quality standards are being complied with
by them. Further, as advised by DPCC, the respondent-owners B
have installed stacks above the height of the building but the
appellant broke the stack on several occasions, and thereby
prevented the respondent-owners from complying with the said
directions. Ultimately, the respondent-owners were
constrained to construct a steel structure which is independent C
of the building, so as to ensure that the exhaust pipe of the
generators is raised by 1.5. meters above the height of the
building. It is further contended that the respondent-owners
have only one gas-cylinder connection in the Pathological Lab, D
which is used for making tea, coffee etc. for the Doctors and
staff who are working in the lab, which cannot be termed as
hazardous material as it is only used for domestic purposes.
22. We have heard the learned senior counsel for both
the parties and after considering the rival legal contentions E
urged by them, we have to answer each one of the rival legal
contentions in seriatim by assigning the following reasons.
23. It is pertinent to note that during the pendency of
this appeal, the parties have tried to reach an amicable F
settlement, however the same remained unsuccessful. Be as
that may, this nature of ligation cannot be allowed to be settled
between the parties as it involves public interest and violation
of rule of law.
G
24. The writ petition was dismissed by the learned single
Judge and the same was affirmed by the Division Bench in its
impugned judgment and order on the question that the
proceedings initiated by the appellant are not in the nature of
public interest but is only private interest litigation and therefore, H
the High Court had held that the writ does not lie against the
936 SUPREME COURT REPORTS (2015] 5 S.C.R.
A respondents. The said reasoning of the Division Bench in the
impugned judgment is not acceptable to us based on the
pleadings and documentary evidence produced before us as
it is clear that several representations have been made by the
affected neighbours of the building at different stages with
B regard to the nuisance created by the Pathological Lab right
from 29.12.1995 till date including the complaint made by the
32 residents of Hauz Khas to the Assistant Commissioner of
Police (Traffic) on 27.07.2009. The running of the Pathological
Lab in the building by the respondent-owners amount to
C violation of the rule of law and affects the public interest,
therefore, it is public interest litigation even though the appellant
herein is a resident of the second floor of the concerned
building and simultaneously he has been fighting for the cause
of all the local residents. This legal principle has been laid
0
down by the Constitution Bench of this Court in the case of S.
P. Gupta and Others v. President of India and Others 1,
which legal principle has been reiterated recently by this Court
in the case of State Of Uttaranchal v. Ba/want Singh
E Chaufa/2 after adverting to the entire case law on the question
of public interest litigation, the relevant paragraph from the
decision of the S. P. Gupta case (supra) is extracted
hereunder:-
"17. It may therefore now be taken as well established
F
that where a legal wrong or a legal injury is caused to a
person or to a determinate class of persons by reason
of violation of any constitutional or legal right or any
burden is imposed in contravention of any constitutional
G or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened
and such person or determinate class of persons is by
reason of poverty, helplessness or disability or socially
H 1
· (1981) supp. sec 87
2· 2010 (3) sec 402
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 937
DELHI [V. GOPALA GOWDA, J.]
or economically disadvantaged position, unable to A
approach the court for relief, any member of the public
can maintain an application for an appropriate direction,
order or writ in the High Court under Article 226 and in
case of breach of any fundamental right of such person
or determinate class of persons, in this Court under B
Article 32 seeking judicial redress for the legal wrong or
injury caused to such person or determinate class of
persons .......... The court has to innovate new methods
and devise new strategies for the purpose of providing
access to justice to large masses of people who are
c
denied their basic human rights and to whom freedom
and liberty have no meaning.
The only way in which this can be done is by entertaining
writ petitions and even letters from public-spirited D
individuals seeking judicial redress for the benefit of
persons who have suffered a legal wrong or a legal injury
or whose constitutional or legal right has been violated
but who by reason of their poverty or socially or
economically disadvantaged position are unable to
E
approach the court for .relief..... We may also point out
that as a matter of prudence and not as a rule of law, the
court may confine this strategic exercise of jurisdiction
to cases where legal wrong or legal injury is caused to a
F
determinate class or group of persons or the
constitutional or legal right of such determinate class or
group of persons is violated and as far as possible, not
entertain cases of individual wrong or injury at the instance
of a third party, where there is an effective legal-aid G
organisation which can take care of such cases."
The relevant para from Ba/want Singh's case is extracted
hereunder
H
938 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 33. The High Courts followed this Court and exercised
similar jurisdiction under Article 226 of the Constitution.
The Courts expanded the meaning of right to life and
liberty guaranteed under Article 21 of the Constitution.
The rule of locus standi was diluted and the traditional
B meaning of "aggrieved person" was broadened to
provide access to justice to a very large section of the
society which was otherwise not getting any benefit from
the judicial system. We would like to term this as the first
phase or the golden era of the public interest litigation.
c We would briefly deal with important cases decided by
this Court in the first phase after broadening the definition
of "aggrieved person".
34.This Court in Akhil Bharatiya Soshit Karamchari
D Sangh (Railway) v. Union of India, at AIR p. 317, held
that:
"62 . ... Our current processual jurisprudence is not of
individualisticAnglo-lndian mould. It is broad-based
E and people-oriented, and envisions access to justice
through 'class actions', 'public interest litigation' and
'representative proceedings'. Indeed, little Indians in
large numbers seeking remedies in courts through
collective proceedings, instead of being driven to an
F expensive plurality of litigations, is an affirmation of
participative justice in our democracy. We have no
hesitation in holding that the narrow concept of 'cause
of action' and 'person aggrieved' and individual
litigation is becoming obsolescent in some
G jurisdictions."
35. In Bandhua Mukti Morcha v. Union of India this Court
entertained a petition even of an unregistered association
espousing the cause of over downtrodden or its
H members observing that the cause of "little Indians" can
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 939
DELHI [V. GOPALA GOWDA, J,]
be espoused by any person having no interest in the A
matter. In the said case, this Court further held that where
a public interest litigation alleging that certain workmen
are living in bondage and under inhuman conditions is
initiated, it is not expected of the Government that it
should raise a preliminary objection that no fundamental B
rights of the petitioners or the workmen on whose behalf
. the petition has been filed, have b~en infringed. On the
contrary, the Government should welcome an inquiry by
the Court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the c
strict sense of the term as defined in the Bonded Labour
System (Abolition) Act, 1976 butthey are made to provide
forced labour or are consigned to a life of utter deprivation
and degradation, such a situation can be set right by the
D
Government.
36. Public interest litigation is not in the nature of
adversarial litigation but it is a challenge and an
opportunity to the Government and its officers to make
basic human rights meaningful to the deprived and E
vulnerable sections of the community and to assure them
social and economic justice which is the signature tune
of our Constitution. The Government and its officers must
welcome public interest litigation because it would
F
provide them an occasion to examine whether the poor
and the downtrodden are getting their social and
economic entitlements or whether they are continuing to
remain victims of deception and exploitation at the hands
of strong and powerful sections of the community and G
whether social and economic justice has become a
meaningful reality for them or it has remained merely a
teasing illusion and a promise of unreality, so that in case
the complaint in the public interest litigation is found to
be true, they can in discharge of their constitutional H
940 SUPREME COURT REPORTS [2015] 5 S.C.R.
A obligation root out exploitation and injustice and ensure
to the weaker sections their rights and entitlements.
37. In Fertilizer Corpn. Kamagar Union v. Union of India
this Court observed that:
B
"43. Public interest litigation is part of the process of
participative justice and 'standing' in civil litigation of
that pattern must have liberal reception at the judicial
doorsteps."
c 38. In Ramsharan Autyanuprasi v. Union of India this
Court observed that the public interest litigation is for
making basic human rights meaningful to the deprived
and vulnerable sections of the community and to assure
them social, economic and political justice.
D
41. The development of public interest litigation has been
an extremely significant development in the history of the
E Indian jurisprudence. The decisions of the Supreme Court
in the 1970s loosened the strict locus standi requirements
to permit filing of petitions on behalf of marginalised and
deprived sections of the society by public spirited
individuals, institutions and/or bodies. The higher courts
F exercised wide powers given to them under Articles 32
and 226 of the Constitution. The sort of remedies sought
from the Courts in the public interest litigation goes
beyond award of remedies to the affected individuals
and groups. In suitable cases, the Courts have also given
G guidelines and directions. The Courts have monitored
implementation of legislation and even formulated
guidelines in the absence of legislation. If the cases of
the decades of 70s and 80s are analysed, most of the
public interest litigation cases which were entertained
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 941
DELHI [V. GOPALA GOWDA, J.]
by the courts are pertaining to enforcement of fundamental A
rights of marginalised and deprived sections of the
society. This can be termed as the first phase of the public
interest litigation in India."
25. Apart from this, reliance has been placed by the s
learned senior counsel on behalf of the appellant upon the
judgment of this Court to maintain the Writ Petition as a PIL as
the appellant is a person who is also empowered to file a
petition under Article 226 of the Constitution of India challenging
the validity of the Regularisation Certificate as per the decision C
of this Court in Gadde Venkateswara Rao v. State of A.P. 3,
wherein it was held thus:-
"8. The first question is whether the appellant had locus
standi to file a petition in the High Court under Article D
226 of the Constitution. This Court in Calcutta Gas
Company (Proprietary) Ltd. v. State of West Bengal
dealing with the question of locus standi of the appellant
in that case to file a petition under Article 226 of the
Constitution in the High Court, observed: E
"Article 226 confers a very wide power on the High Court
to issue directions a11d writs of the nature mentioned
therein for the enforcement of any of the rights conferred
by Part Ill or for any other purpose. It is, therefore, clear F
that persons other than those claiming fundamental right
can also approach the court seeking a relief thereunder.
The Article in terms does not describe the classes of
persons entitled to apply thereunder; but it is implicit in
the exercise ofthe extraordinary jurisdiction that the relief G
asked for must be one to enforce a legal right .... The
right that can be enforced under Article 226 also shall
ordinarily be the personal or individual right of the
3. AIR 1966 sec 828 H
942 SUPREME COURT REPORTS [2015] 5 S.C.R.
A petitioner himself, though in the case of some of the writs
like habeas corpus or quo warranto this rule may have to
be relaxed or mqdified."
....... This Court held in the decision cited supra that
B "'ordinarily" the petitioner who seeks to file an application
under Article 226 of the Constitution should be one who
has a personal or individual right in the subject-matter of
the petition. A personal right need not be in respect of a
proprietary interest: it can also relate to an interest of a
c trustee. That apart, in exceptional cases, as the
expression "ordinarily" indicates, a person who has been
prejudicially affected by an act or omission of an authority
can file a writ even though he has no proprietary or even
fiduciary interest in the subject-matter thereof. The
D appellant has certainly been prejudiced by the said order.
The petition under Article 226 of the Constitution at his
instance is, therefore, maintainable."
26. In view of the above mentioned decisions of this
E 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
F set aside, accordingly it is set aside.
27. 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-
G 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 building. The said act
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 943
DELHI [V. GOPALA GOWDA, J.]
of the MCD is contrary to the legal principles laid down by this A
Court in the case of Priyanka Estate International (P) Ltd.
v. State ofAssam', wherein it was held thus:-
"56. Even though on earlier occasions also, under similar
circumstances, there have been judgments of this Court B
which should have been a pointer to all the builders that
raising unauthorised construction never pays and is
against the interest of society at large, but, no heed has
been given to it by the builders. Rules, regulations and
bye-laws are made by Corporations or by Development c
Authorities, taking in view the larger public interest of the
society and it is a bounden duty of the citizens to obey
and follow such rules which are made for their benefit. If
unauthorised constructions are allowed to stand or given
a seal of approval by court then it is bound to affect the D
public at large. An individual has a right, including a
fundamental right, within a reasonable limit, it inroads
the public rights leading to public inconvenience,
therefore, it is to be curtailed to that extent."
E
28. 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 F
second Writ Petition (c) 225 of2008 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 G
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
4
· (2010) 2 sec 21 H
944 SUPREME COURT REPORTS [2015] 5 S.C.R.
A respondent-owners shall ensure no nuisance or hardship would
be created forthe 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.
Dang's Diagnostic Centre in the basement, ground floor,
B mezzanine floor and the first floor of the building. The
respondent-owners have refuted the same.
29. According to the learned senior counsel on behalf
of the respondent-owners of the Pathological Lab, the
C mezzanine floor does not exist in the building. This plea is
contrary to the pleadings made before the courts below and
even before this Court and the same is made with a ma/a fide
intention to conceal unauthorized construction and
contravention of the building bye-laws. Therefore, the said plea
D cannot be accepted by us.
30. 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
E building bye-laws and MPD-2021 referred to supra. The
relevant paras from the MPD 2021 are extracted hereunder
for better appreciation of our conclusions on the contentious
points raised by the learned senior counsel on behalf of the
parties:-
F
"15.1 GOVERNING PRINCIPLES FOR MIXED USE
i. Mixed Use means the provision for non-residential
activity in residential premises.
15.2 MIXED USE IN RESIDENTIALAREAS
G 15.2.1. DIFFERENTIATEDAPPROACH
i) The need for differentiated approach to mixed use
policy arises from the fact that Delhi, being the country's
capital and an important centre of economic activity has
H a large diversity in the typology of residential areas. Apart
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 945
DELHI [V. GOPALAGOWDA, J.]
from the planned residential colonies built as part of A
Lutyens' Delhi as well as through the process of planned
development undertaken by the Delhi Development
Authority, there are authorized residential areas in the
Walled City, Special areas and urban villages. Other
planned areas include resettlement colonies and pre- B
Delhi Development Act colonies, including post-partition
rehabilitation colonies and pre-1962 residential colonies
as per list given inAnnexure I. There are also regularized-
unauthorized colonies; unauthorized colonies as well as
slums and jhuggi jhompri clusters in various parts of Delhi. c
iii) Hence, it is proposed to follow a differentiated
approach in the application of the mixed-use policy in
Delhi. The differentiated approach would be based on D
categorization of colonies from A to G as adopted by
MCD for unit area method of property tax assessment
as applicable on 7.9.2006. Any change in the
categorization of these colonies shall not be made
applicable for the purpose of this chapter without prior E
approval of Central Government.
15.3.2 The extent of Mixed Use permissible in various
categories of colonies is further clarified as follows: F
1. In colonies falling in categories A and B
No commercial activities will be permissible in the
colonies of A & B categories except the following:
G
"Other activity" restricted to guest houses, Nursing
Homes and pre-primary schools, as defined in para
15.7.1, subject to conditions contained in para 15.7, in
plots abutting roads of minimum 18m ROW in regular
plotted development, since these activities are in the H
946 SUPREME COURT REPORTS [2015) 5 S.C.R.
A nature of 'Public and Semi-Public' facilities. New banks
and fitness centres, wellness centres and NGOs will not
be permissible. Banks which existed as on 7.9.2006,
fitness centres, wellness centres and NGOs which
existed as on 7.2.2007, (as defined in para 15.7.1), in
B accordance with notifications issued in this regard from
time to time, and are on plots abutting roads of minimum
18m ROW, on the date of notification, shall however,
continue.]
15.4 GENERAL TERMS AND CONDITIONS
c GOVERNING MIXED USE
(ii) Where there are more than one dwelling units in a
D residential plot, each of the dwelling units will be
permitted to have only type of Mixed Use activity (either
retail shop as per para 15.6. or professional activity or
any one of the other activities listed in para 15. 7).
E
15.5 PERMISSIBLEAND NON-PERMISSIBLE USES
Any trade or activity involving any kind of obnoxious.
hazardous, inflammable. non-compatible and polluting
substance or process shall not be permitted.
F
15.7 OTHER ACTIVITY
15.7.1 Subject to the general conditions given in para
15.4 and additional conditions given in para 15.7.3, the
G 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 notthe
road is notified as Mixed Use street:
(a) Pre-primary school (including nursery I Montessori
H school; creche.)
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 947
DELHI [V. GOPALAGOWDA, J.]
(b) i. Nursing Home A
ii. Clinic. Dispensary. Pathology lab and Diagnostic
center.
15. 7.2 The minimum ROW of a street or stretch of road
on which the above-mentioned other activities are
B
· permissible is as follows:
In A & B Colonies: 18m ROW in regular plotted
development;
iii. .... pathology labs shall be permissible: on minimum c
plot size of 100 sgm in regular plotted development on
13.5 m ROW in C & D colonies and 9 m ROW in E. F &
G colonies. However, the minimum plot size shall be 50
sgm for clinics, dispensaries and pathology labs running
D
in these colonies and also in E, F and G category
colonies. In Walled City, Walled city extension. villages
and unauthorized-regularized colonies. conditions of plot
size and minimum ROW shall not be applicable .
. .. . (emphasis supplied by this Court) E
31. Now, we have to examine whether this residential
property comes under the Mixed Use or not. Clause 15.2.1 (i)
referred to supra clearly states in the Master Plan issued by
the Planning Authority under the heading Mixed Use in the F
area in question to meet the growing demand of commercial
activities and overcome the shortfall of commercial space. A
liberalised provision of Mixed Use in the residential areas has
been adopted adhering to the requisites of the environment
while achieving better synergy between work-place, residence G
and transportation.
32. Further, the report of the DPCC clearly states that
the Regularisation Certificate was granted for running a Nursing
Home whereas a Pathological Lab in the name of Dr. Dang H
Diagnostic Centre has been functioning on the basement,
948 SUPREME COURT REPORTS [2015] 5 S.C.R.
A ground floor of the building since the year 1995. In view of the
Clause 15.4(ii) of the MPD-2021, the general terms and
conditions governing Mixed Use provides that where there are
more than one dwelling units in a residential plot, each of the
dwelling units will be permitted to have only type of Mixed Use
B activity (either retail shop as per Clause 15.5 or professional
activity or any one of the other activities as provided in Clause
15. 7). In the residential plot in question there are more than
two residential flats and once again such kind of use of
premises in the dwelling unit will be permitted to have only one
C kind of activity.
33. Further, we have examined the 'Major Highlights
of the Master Plan of Delhi 2021'as penned by the Ministry of
Urban Development, wherein, the focal points of the Master
D Plan have been discussed. The relevant point (n) from the
above said Highlights is extracted hereunder:-
" (n) Health Infrastructure:
*Health facilities proposed to achieve norms of 5 beds I
E 1000 population
* Enhancement of FAR for hospitals and other health
facilities.
* Nursing Homes, clinics etc. also allowed under relaxed
Mixed Use Norms."
F
34. Further, it is necessary for us to examine Clause
.15.8 of MPD 2021 which states thus:
G
"15.8 PROFESSIONAL ACTIVITY
i.
(iii) In the case of plotted development with single
dwelling unit, professional activity shall be permissible
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 949
DELHI [V. GOPALAGOWDA, J.]
on any one floor only, but restricted to less than 50% of A
the permissible or sanctioned FAR whichever is less on
that plot.
(iv) [Professional activity in basements is permissible
in plotted development, subject to relevant provisions of
Building Bye-Laws, structural safety norms and fire safety B
clearance. In case. the use of basement for professional
activity leads to exceeding the permissible FAR on the
plot. such FAR in excess shall be used subject to payment
of appropriate charges prescribed with the approval of
Government.]"
c
(Emphasis laid down by this Court)
From a careful reading of the above provision emphasised by
us, it is clear that if the use of basement for professional activity
exceeds the FAR, then such excess usage shall be subject to D
payment of appropriate charges prescribed with the approval
of the Government of India. Neither the MCD nor the
respondent-owners in their pleadings have brought this fact to
the notice of this Court that they have complied with the above E
said provision by paying the appropriate charges for usage of
the basement when the same is exceeding the permissible
FAR on the plot of the building.
35. From a careful reading of the aforesaid extracted
portions of the Master Plan 2021 and upon which reliance has F
been placed by Mr. H.P.Rawal, learned senior counsel on
behalf of appellant and Mr. K. K. Venugopal and Ms. lndu
Malhotra, learned senior counsel on behalf of the respondents,
we have to hold that the grant of Regularisation Certificate G
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 H
950 SUPREME COURT REPORTS [2015J 5 S.C.R.
A of theJacts 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
B 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
C our view is prohibited in the residential plot of the building under
the various Clauses of the Master Plan 2021 extracted above.
36. 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
D 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
E 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
F 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
G 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
H only. In the present case, the Pathological Lab is being run on
ANIRUDH KUMAR v. ·MUNICIPAL CORPORATION OF 951
DELHI [V. GOPALA GOWDA, J.]
the basement, ground floor, first floor and the mezzanine floor A
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 B
allowed, whereas in the Regularisation Certificate, it is clearly
stated that permission is being granted for running of a nursing
home. The relevant paras of the said plan are extracted
hereunder:
c
"CLAUSE 10 MIXED USE REGULATIONS:
(NON-RESIDENTIAL ACTIVITY ON RESIDENTIAL
PREMISES)
D
Mixed Use here, essentially means permission of non-
residential activity on residential plot or residential flat.
Specific provision for Mixed Use have been given for
walled city, Karol Bagh and other parts of the Special
Area in the relevant sections in the Master Plan. E
At the time of preparation of Zonal (divisional) plans, in
residential plotted development in areas other than the
Walled City and Karol Bagh and other urban renewal
areas, streets of Mixed Use activity shall be identified by
F
(i) conducting a traffic study in each individual case to
see whether after permission of Mixed Use activity, there
will be no adverse effect in traffic circulation in that area/
street and it would be built to take additional traffic which
is likely to be generated because of the Mixed Use. (ii) by G
evaluation its impact on the municipal· services and
environmental needs of the area.
As a part of the traffic study, the traffic management
solutions like traffic free pedestrianised streets/areas
and on way traffic etc. could also be considered for H
952 SUPREME COURT REPORTS (2015] 5S.C.R.
A introduction as a solution to the traffic/parking problem
of the area.
In case it is found feasible to permit Mixed Use in a
street/area, the same would be subject to the following
conditions:
B
(i) The commercial activity allowed shall be only on
the ground floor to the extent of 25% or 50 sgm which
ever is less.
(ii) The establishment shall be run only by the resident
C of the dwelling unit.
(iii) The following activities shall not be allowed:
(a) Retail Shops .. .
(b)Repair Shops ... .
o (c) Service Shops ...
(d)Nursing Home
"
In view of the reasoning discussed above, the impugned
E judgment passed by the Division Bench in not accepting the
case of the appellant is not only erroneous on factual position
but also error in law and the same is liable to be set aside.
1
37. The learned senior counsel for the respondent-
F owners has placed strong reliance on the grant of
Regularisation Certificate dated 11.07.2006 by the MCD in
favour of the respondent-owners to justify that the running of
the Pathological Lab in the concerned building is valid and
legal as the said certificate was granted by the competent
G authority. Therefore, it is necessary for us to examine the
Regularisation Certificate issued by the MCD. The relevant
portion of the Certificate for running the Pathological
Laboratory in the concerned building is extracted hereunder:
" .... the competent authority has granted
H permission for running a clinical Pathological
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 953
DELHI [V. GOPALAGOWDA, J.]
Laboratory at ground floor and first floor (area for this A
purpose is 222. 25 sqm) in premises No. D-1, Hauz
Khas, New Delhi under the Mixed Land Use
Regulations of Government of India, subject to following
conditions:
B
xxxxxxx
xxxxxxx
3. All parking arrangements will be made by you within
the plot in question. 4. No commercial
activity in the form of canteen or restaurant will be c
permitted. However, catering will be allowed only for
the residents of the nursing home.
7. The applicant will ensure that no nuisance or hardship
D
is created for the local residents ...
You are required to deposit permission fee for the
financial years 2004-2005 and 2005-2006 and 2006-
2007 amounting to Rs.8,39,9161- on account of
Regularisation of running of nursing home in the E
aforesaid premises within a week."
38. 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 F
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 G
granted without seeking permission from the High Court during
the pendency of the earlier Writ Petition No. 8808 of 2004
filed by the appellant.
39. In view of the aforesaid reasons, we have to hold
·that the grant of the Regularisation Certificate with the alleged H
954 SUPREME COURT REPORTS [2015] 5S.C.R.
A retrospective effect to run the Nursing Home in favour of
respondent-owners w.e.f. 11.7.2006 cannot be accepted by
us and the same is liable to be quashed.
40. With regard to the environmental impact due the
B running of the Pathological Lab in the concerned building, we
first examine Clause 15.5 of MPD 2021, which clearly states
that any trade or activity involving any kind of abnoxious,
hazardous, inflammable activities, non-compatible activities
and polluting substance or process shall not be permitted. It
C is worthwhile to extract the definition of 'Process' which in the
absence of a definition under the Environment Protection Laws,
we are required to borrow it from Oxford Dictionary:
"A systematic series of mechanized or chemical operation
D that are performed in order to produce something."
It is also necessary to extract the definition of "hazardous
substance" under Section 2 (e) of the Environment (Protection)
Act, 1986 which word occurred in Clause 15.5 of MPD 2021.
E "(e) "hazardous substance" means any substance or
preparation which, by reason of its chemical or physico-
chemical properties or handling, is liable to cause harm
to human beings, other living creatures, plant, micro-
organism, property or the environment;"
F
41. 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.
G 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
H tanks, gas cylinders and electric panels. Around 300 patients'
visit the centre per day and more than 100 cars are parked in
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 955
DELHI [V. GOPALA GOWDA, J.]
the vicinity. All these factors lead to air pollution which is in A
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 B
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 (\1,1 in RE5 at paras 11, 103 and
104 wherein it was held that noise generated upto unpleasant C
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 India. The said paras are quoted
hereunder:-
D
"11. Those who make noise often take shelter behind
Article 19(1 )A pleading freedom of speech and right to
expression. Undoubtedly, the freedom of speech and right
to expression are fundamental rights but the rights are
not absolute. Nobody can claim a fundamental right to E
create noise by amplifying the sound of his speech with
the help of loudspeakers. While one has a right to speech,
others have a right to listen or decline to listen. Nobody
can be compelled to listen and nobody can claim that he
F
has a right to make his voice trespass into the ears or
mind of others. Nobody can indulge into aural
aggression. If anyone increases his volume of speech
and that too with the assistance of artificial devices so
as to compulsorily expose unwilling persons to hear a G
noise raised to unpleasant or obnoxious levels then the
person speaking is violating the right of others to a
peaceful, comfortable and pollution-free life guaranteed
by Article 21. Article 19(1 )A cannot be pressed into
5
· c2005) 5 sec 733
H
956 SUPREME COURT REPORTS [2015) 5 S.C.R.
A service for defeating the fundamental right guaranteed
by Article 21.
103. The Air (Prevention and Control of Pollution) Act,
1981 Noise was included in the definition of air pollutant
B in Air (Prevention and Control of Pollution) Act in 1987.
Thus, the provisions of the Air Act, became applicable in
respect of noise pollution, also.
104. The Environment (Protection)Act, 1986. Although
c there is no specific provision to deal with noise pollution,
the Act confers powers on Government of India to take
measures to deal with various types of pollution including
noise pollution."
42. Further, it was held in this case that noise was
0
included in the definition of "air pollutant" in the Air (Prevention
and Control of Pollution) Act, 1981 and therefore, the provisions
of the said Act became applicable in respect of the noise
pollution also. It was also held that although there is no specific
E provision to deal with noise pollution, the Environment
(Protection) Act, 1986 confers powers on the Government of
India to take measures to deal with various types of pollution
including noise pollution.
F 43. Further, on examining the evidence on record,
particularly the photographs depicting the area in and around
the building, It is clear that large diesel generator sets have
been erected by the respondent-owners in the set-back area
which is an illegal structure in the residential premises and is
G in contravention of the building bye laws and zonal regulations
of the MCD.
44. The running of this large Pathological Lab has led
to emission of hazardous substances and in that process
H human beings, plants, micro organisms, and other living
creatures' are being exposed to harmful physico-chemical
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 957
DELHI [V. GOPALAGOWDA, J.]
properties. Not only this, they also create pollution which A
contaminates water on account of the discharge of chemical
properties used in the process of running the Pathological Lab,
causing nuisance and harm to public health and safety of the
residents of the area. This fact is certified by the DPCC in its
report dated 4.8.2008. The usage of such generator sets has B
led to the damage of the building and cracks have been found
in the building structure. The explanation sought to be given by
the respondent-owners is that the aforesaid generator sets
were installed in the set-back area as the appellant has not
permitted to install the same on the terrace of the building. C
The objection of the appellant installing the same in the terrace
is that he has purchased the said area and the appellant is
living on the second floor and therefore, if the generator sets
are installed on the terrace, it would be completely impossible D
for him to live on the second floor of the premises due to the
sound and air pollution caused by the generator sets. It would
not only affect the appellant and his family but also the other
neighbouring residents of the locality.
45. It is an undisputed fact that the consent was not E
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, F
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 G
. · 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 H
\
958 SUPREME COURT REPORTS [2015] 5 S.C.R.
A 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
B running of the Pathological Lab by the respondent-owners in
the concerned building is in violation of law. In this aspect of
the matter, we refer to the legal principles laid down by this
Court in the case of M.C. Mehta v. Union of lndia 6, the
relevant paragraph from the said case is extracted hereunder:
c
"56. On 18-5-1995, Justice R.C. Lahoti (as the former
Chief Justice of India then was) in the case of ANZ
Grindlays Bank v. Commr., MCD echoed similar words
and referred to decision of this Court, observing that the
D word "environment" is of broad spectrum which brings
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
E 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
F
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
G 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
H 6· c2oos) a sec 399
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 959
DELHI [V. GOPALAGOWDA, J.]
and 7 of the Regularisation Certificate, the learned senior A
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 B
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 C
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.
D
47. The running of the Pathological Lab by the
respondent-owners creates air and sound pollution, rampantly
on account of which the public residents' health and peace is
adversely affected. Therefore, public interest is affected and
there is violation of rule of law. Hence, we have examined this E
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 F
environmental regulation as enforced by the Government from
time to time, have submitted the National Accreditation Board
for Testing C\fld 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 G,
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 H
960 SUPREME COURT REPORTS (2015) 5 S.C.R.
A 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,
B the illegal and unlawful activities of the respondent-owners have
continued. Instead of taking prompt action as provided under
the provisions of DDAAct, 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
C 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
D 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.
E 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
F 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
G 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.
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF 961
DELHI [V. GOPALA GOWDA, J.]
51. Further, it is necessary for us to make an A
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 B
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 C
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) D
. Second Act, 2011 No.20 of 2011, which was valid up to 31 51
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 E
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 F
misplaced.
53. For the reasons stated supra, the appeal is allowed
and the impugned judgments and orders of both the learned
single Judge and Division Bench of the High Court are hereby
set aside and Regularisation Certificate is quashed and rule G
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 H
. 962 SUPREME COURT REPORTS [2015) 5 S.C.R.
A 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
B 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
C this Court. All the I.As are disposed of accordingly. No costs.
Kalpana K. Tripathy Appeal allowed.
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