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Tuesday, March 24, 2015

MPD 2021 which came into force w.e.f. 07.02.2007 that the respondent-owners are permitted to run the Nursing Home and carry on with the Diagnostic Centre in the building placing further reliance upon the various judgments of this Court referred to supra are all unfounded and the same cannot be accepted as they are misplaced. 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.

                                 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 8284 of 2013



   ANIRUDH KUMAR                        .........APPELLANT

                                     Vs.

MUNICIPAL CORPORATION OF DELHI & ORS. ...RESPONDENTS


                               J U D G M E N T


V.GOPALA GOWDA, J.

       This appeal by special leave arises out of the impugned judgment  and
order dated 16.01.2012 passed by the High Court of Delhi in LPA No.  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.


       Brief facts which led to the filing of this appeal are as 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  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  Chatterjee  whereby  they
expanded the activities of the Pathological Lab even to mezzanine floor  and
first floor  by  installing  heavy  medical  equipments  to  make  it  fully
equipped  with  the  latest  technology.  When  the  Diagnostic  Centre  was
started, it employed about 50 people and installed 25 Air Conditioners,  two
diesel generator sets of 25 KVA and 40 KVA each in the set-back area of  the
building along with kerosene oil tanks, gas cylinders and  electric  panels.
There was a major  parking  problem  in  and  around  the  vicinity  of  the
Diagnostic center since a large number of patients visited the centre  every
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  Corporation  of  Delhi(for  shot  'the  MCD'),
2)Respondent  No.2  -  SHO  of  the  area,  3)Respondent  No.3  -  Executive
Engineer, Delhi Electricity Supply Undertaking. As no heed was given to  the
same by the aforesaid respondent, a writ  petition  No.  8808  of  2004  was
filed by the appellant before the High Court of Delhi. During  the  pendency
of the said writ petition, contrary to the averments made by the MCD  before
the High Court that prosecution had been initiated against  the  responsible
persons under Sections 347/461 of  the  Delhi  Development  Act,  1957,  the
Regularisation Certificate was  issued  on  11.07.2006  to  the  respondent-
owners by the MCD under Mixed Land Use for running the Pathological  Lab  on
the ground floor and first floor of the  concerned  building.  Aggrieved  by
the grant of Regularisation Certificate, the  appellant  withdrew  the  writ
petition No.8808 of 2004 and a fresh writ  petition  No.  225  of  2008  was
filed by the appellant before the High Court praying  for  quashing  of  the
Regularisation Certificate wherein, the learned single Judge issued  limited
notice  to  the  respondents  with  respect  to  Clauses  3  and  7  of  the
Regularisation Certificate. The Learned single Judge rejected the  challenge
to the Regularisation Certificate issued  on  11.07.2006  as  the  same  was
issued by MCD under Clause 15.7.1 of the MPD 2021 approved by  the  Ministry
of Urban Development, Government of India which reads thus:

"15.7  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  following  public  and  semi-public
activities shall also be permitted in the residential plots  abutting  roads
of minimum ROW prescribed in 15.7.2, whether or not the road is notified  as
Mixed Use street:
(a) Pre-primary school (including nursery / Montessori school, creche.)
(b) i. Nursing Home
   ii. Clinic, Dispensary, Pathology  lab           .        and  Diagnostic
center.
................"

Further, the learned single Judge vide  order  dated  5.10.2010  refused  to
decide the violation under Clause 7 of  the  Regularisation  Certificate  on
the ground that the petition is motivated by a private  dispute  than  owing
to any nuisance and hardship to any local resident  as  none  of  the  other
local residents had approached the Court with any  complaint  pertaining  to
nuisance.


 The first respondent - MCD  confirmed  that  one-time  parking  charges  of
Rs.9,35,673/- in terms of the Regularisation Certificate had  been  paid  by
the  respondent  owners  and  that  respondent-owners  had  also   deposited
Rs.8,39,916/- as conversions charges. The  appellant  challenged  the  order
dated 11.01.2008 issuing limited notice in  writ  petition  No.225  of  2008
passed by the learned single Judge by filing LPA No. 267 of 2009 before  the
Division Bench of the High Court and later on withdrew the same.


 Aggrieved by the Order dated 5.10.2010 passed by learned single Judge,  the
appellant filed LPA No.857  of  2010  before  the  High  Court  praying  for
issuance  of  a  writ  of  prohibition  prohibiting  the   owners   of   the
Pathological Lab  from  running  the  Diagnostic  Centre  in  the  concerned
building, which was also dismissed by the  High  Court  of  Delhi  vide  its
order dated 16.01.2012. Hence, this appeal by special leave is filed by  the
appellant.


 Heard 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  respondent-owners  and  Mr.  L.  Nageshwar  Rao,  Additional
Solicitor General and other learned counsel on behalf of the respondent.


 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  for
forceful installation of the Generator sets in  the  set-back  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.


 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 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.


 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
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 that the MPD 2021 was  notified
by the Ministry of Urban Development Vide Notification No. S.O.141  and  was
brought 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 Certificate under the said plan in favour of the  respondent-
owners of the Pathological Lab.


  Further, it is submitted by the learned senior counsel on  behalf  of  the
appellant that on 27.04.2006, the complaint made by the 18 residents of  the
area to the Commissioner, MCD about the hardship and nuisance faced by  them
were not taken note of or  given  heed  to  by  the  authorities.  Again  on
24.07.2009, 32 residents of Hauz Khas complained to the ACP (Traffic)  about
the great hardship they have been facing  due  to  the  continuous  nuisance
being committed by the said Diagnostic and Pathological Lab.


  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 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 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 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,  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.


 It is further contended that the area illegally permitted  by  the  MCD  in
pursuance  of  the  alleged  Regularisation  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  excess  of  the
said permitted area by using the mezzanine floor 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 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 mala fide intention and  is  an  incorrect
statement of fact and therefore, requested this Court  to  reject  the  said
contention.


  Further, it is contended by the learned senior counsel that the  appellant
has  been  complaining  about  the  set-back  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  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  appellant  separately  and  he  is  the
exclusive owner of the terrace.


  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 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.


  It is further urged by the learned senior counsel for the  appellant  that
the impugned order is liable to be set aside  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 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.


   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  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  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.


 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) Sl. No. 077 as an  activity
permissible in a residential area. A clinical  laboratory  being  a  utility
service is 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.


 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  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
.........
In C & D colonies: 18 m ROW in regular residential plotted development
........."

  Further, it is submitted that as Hauz Khas area has been classified  as  a
Class  "B"  Colony  as  per  MPD  2021,  the  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, Dispensary,  Pathological  Lab  and  Diagnostic  Centre  covered  by
Regulation 15.7.1 of the MPD 2021.


  It  is  further  submitted  by  the  respondent-owners  in  their  written
submissions that they  have  installed  generator  sets  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
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  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.


 Further, it is contended by the learned senior counsel 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  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  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, 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.


We have heard the learned senior counsel for  both  the  parties  and  after
considering the rival legal contentions urged by them,  we  have  to  answer
each one of the  rival  legal  contentions  in  seriatim  by  assigning  the
following reasons.


 It is pertinent to note that  during  the  pendency  of  this  appeal,  the
parties have tried  to  reach  an  amicable  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.


  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, the High Court had held that the writ does not  lie  against  the
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 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 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   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. Balwant  Singh
Chaufal[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 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 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  or
economically disadvantaged  position,  unable  to  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  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 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 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 approach the court for [pic]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 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 organisation which can take care of such cases."

The relevant para from Balwant Singh's case is extracted hereunder
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  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.  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 Sangh (Railway) v.  Union
of India, at AIR p. 317, held that:
"62. ... Our current processual  jurisprudence  is  not  of  individualistic
Anglo-Indian mould. It is broad-based  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 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 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 members observing that the cause of "little Indians"  can
be espoused by any person having no interest in  the  matter.  In  the  said
case, [pic]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  rights  of  the
petitioners or the workmen on whose behalf  the  petition  has  been  filed,
have been 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 strict sense  of  the
term as defined in the Bonded Labour System (Abolition) Act, 1976  but  they
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
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
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
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  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  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:
"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."

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.
....
41. The development of public interest  litigation  has  been  an  extremely
significant development in the history  of  the  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 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 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  by  the
courts are pertaining to enforcement of fundamental 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  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 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  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:
"Article 226  confers  a  very  wide  power  on  the  High  Court  to  issue
directions and writs of the nature mentioned therein for the enforcement  of
any of the rights conferred by Part III or for any  other  purpose.  It  is,
therefore, clear 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  of  the  extraordinary
jurisdiction that the relief 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  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 modified."
....... This Court held in the decision cited supra that  '"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  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  appellant   has
certainly been prejudiced by the said order. The petition under Article  226
of the Constitution at his instance is, therefore, maintainable."


 In view of the above mentioned decisions of this Court, we  hold  that  the
findings and reasons recorded by both  the  learned  single  Judge  and  the
Division Bench of the High Court that it is not public  interest  litigation
is contrary to the law laid down by the Constitution  Bench  of  this  Court
and other decisions referred to supra. The said reasoning is  liable  to  be
set aside, accordingly it is set aside.


   Further, notice was issued by the  High  Court  for  limited  purpose  to
examine  the  correctness  of  Clauses  3  and  7  of   the   Regularisation
Certificate issued to the respondent-owners by the MCD in  exercise  of  its
authority to grant the same. However,  the  MCD  has  ignored  the  relevant
aspects of the case of deviation of the then relevant Delhi Master Plan  and
unauthorised use of the basement, ground  floor,  mezzanine  floor  and  the
first floor of the concerned building. The said act of the MCD  is  contrary
to the legal principles laid down by this Court  in  the  case  of  Priyanka
Estate International (P)  Ltd. v. State of Assam[4],  wherein  it  was  held
thus:-

"56. Even though on earlier occasions  also,  under  similar  circumstances,
there have been judgments of this Court which should have been a pointer  to
all the builders that raising unauthorised construction never  pays  and  is
[pic]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  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 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."


 In addition to this, the appellant being a resident of the second floor  of
the building, questioned the legality and  validity  of  the  Regularisation
Certificate issued by the MCD under Clause 15.7.1 of the  MPD-2021  approved
by the Ministry of Urban Development, Government of  India.  In  the  second
Writ Petition (c) 225 of 2008 filed by the appellant, the challenge  was  on
the basis of the said certificate, for which the  learned  single  Judge  at
the time of preliminary hearing of the said  petition,  has  issued  limited
notice dated 11.1.2008 to the respondents with respect to Clause  3  of  the
Regularisation Certificate dealing with  parking  arrangements  which  would
affect the neihbouring local residents of the colony and  Clause  7  of  the
Regularisation Certificate which states  that  the  respondent-owners  shall
ensure no nuisance or hardship would be created for the local  residents  in
running the Nursing  Home.   However,  contrary  to  this,  they  have  been
running a large Pathological Lab in the name  of  Nursing  Home,  named  Dr.
Dang's Diagnostic Centre in the basement, ground floor, mezzanine floor  and
the first floor of the building.  The  respondent-owners  have  refuted  the
same.


  According to the learned senior  counsel  on  behalf  of  the  respondent-
owners of the Pathological Lab, the 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  mala  fide
intention to conceal unauthorized  construction  and  contravention  of  the
building bye-laws. Therefore, the said plea cannot be accepted by us.


  Further, we are satisfied that the issuance  of  the  said  Regularisation
Certificate in favour of the respondent-owners of the  Pathological  Lab  is
in contravention of the building bye-laws and MPD-2021  referred  to  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:-

"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 RESIDENTIAL AREAS
15.2.1. DIFFERENTIATED APPROACH
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 a large  diversity  in  the  typology  of  residential
areas. Apart  from  the  planned  residential  colonies  built  as  part  of
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-Delhi  Development
Act colonies, including post-partition rehabilitation colonies and  pre-1962
residential colonies as per  list  given  in  Annexure  I.  There  are  also
regularized-unauthorized colonies; unauthorized colonies as  well  as  slums
and jhuggi jhompri clusters in various parts of Delhi.

...

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 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  approval  of
Central Government.

...........

15.3.2 The  extent  of  Mixed  Use  permissible  in  various  categories  of
colonies is further clarified as follows:

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:
.................................
"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 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 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 GOVERNING MIXED USE

.......
........

(ii) 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
activity (either retail shop as per para 15.6. or professional  activity  or
any one of the other activities listed in para 15.7).

15.5 PERMISSIBLE AND 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.


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  following  public  and  semi-public
activities shall also be permitted in the residential plots  abutting  roads
of minimum ROW prescribed in 15.7.2, whether or not the road is notified  as
Mixed Use street:
(a) Pre-primary school (including nursery / Montessori school, creche.)
(b) i. Nursing Home
    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 permissible is as follows:
In A & B Colonies: 18m ROW in regular plotted development;


......
iii. ....pathology labs shall be permissible: on minimum plot  size  of  100
sqm in regular plotted development on 13.5 m ROW in C & D colonies and  9  m
ROW in E, F & G colonies. However, the minimum plot size  shall  be  50  sqm
for clinics, dispensaries and pathology labs running in these  colonies  and
also in  E,  F  and  G  category  colonies.  In  Walled  City,  Walled  city
extension, villages and  unauthorized-regularized  colonies,  conditions  of
plot size and minimum ROW shall not be applicable.

                                      .... (emphasis supplied by this Court)


  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 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 and transportation.
  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 Diagnostic Centre has been  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 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 once again  such  kind  of  use  of  premises  in  the
dwelling unit will be permitted to have only one kind of activity.
  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 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 / 1000 population
? Enhancement of FAR for hospitals and other health facilities.
? Nursing Homes, clinics etc. also allowed under relaxed Mixed Use Norms."

  Further, it is necessary for us to examine Clause 15.8 of MPD  2021  which
states thus:

"15.8 PROFESSIONAL ACTIVITY
....
In the case of plotted development with  single dwelling unit,  professional
activity shall be permissible on any one floor only, but restricted to  less
than 50% of the permissible or sanctioned FAR  whichever  is  less  on  that
plot.
     [Professional  activity  in  basements  is   permissible   in   plotted
development,  subject  to  relevant   provisions   of   Building   Bye-Laws,
structural safety norms and fire safety  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.]"

                                          (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  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  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.
  From a careful reading of the aforesaid extracted portions of  the  Master
Plan 2021 and upon which reliance has been placed by Mr. H.P.Rawal,  learned
senior counsel on behalf of appellant and  Mr.  K.  K.  Venugopal  and   Ms.
Indu Malhotra, learned senior counsel on  behalf  of  the  respondents,   we
have to hold that the grant of Regularisation Certificate  under  Mixed  Use
Regulations of the MPD 2021 giving retrospective effect enabling respondent-
owners to run a Pathological Lab in the guise  of  a  Nursing  Home  in  the
residential area  falling  in categories "A" and "B" is not  sustainable  in
law and liable to be set aside. Further, in view of the facts  of  the  case
on hand, the relevant provisions of MPD 2021 and the evidence on record,  we
have to hold that the writ appeal filed by the appellant  has  been  wrongly
dismissed by the Division Bench of the  High  Court  without  examining  the
legality and validity of the issuance of the Regularisation  Certificate  on
11.06.2007 allegedly under the MPD 2021 which  was  still  at  the  proposal
stage at that time and the said Plan came into effect  only  on  07.02.2007,
enabling the respondent-owners to use the premises for  commercial  activity
which in our view is prohibited in the  residential  plot  of  the  building
under the various Clauses of the Master Plan 2021 extracted above.



  Further, the  said  Regularisation  Certificate  granted  by  the  MCD  is
contradictory to the Mixed Use Regulations under the Delhi Master Plan  2001
as well which was relevant and in force at  the  time  of  granting  of  the
Regularisation Certificate  to  the  respondent-owners.  The  provision  for
Mixed Use under the MPD 2001 clearly states that the area/street  for  Mixed
Use activity should be identified by conducting a study  of  the  impact  on
the traffic in that area/street in which such Mixed Use activity  is  likely
to take place and also  evaluate  the  environmental  needs  and  impact  on
municipal services of the area if Mixed  Use  is  allowed.  In  the  present
case, no report or document of evaluation or study conducted by the MCD  has
been brought to the notice of the courts below or this  Court  to  establish
and prove that the concerned building is an appropriate premises to allow  a
non-residential or Mixed Use activity in  residential  premises.  The  Mixed
Use Regulations under MPD 2001 further states that if after the  above  said
evaluation and study it  is  found  that  the  Mixed  Use  activity  in  the
street/area is feasible, then such activity shall be  allowed  only  on  the
ground floor of the premises to the extent of 25%  of  the  area  or  50sqm,
whichever is less and that such establishment can be run by the resident  of
the dwelling unit only. In the present case, the Pathological Lab  is  being
run on the basement, ground floor, first floor and the mezzanine  floor  and
the respondent-owners of the Pathological Lab are not the residents  of  the
concerned building, thus it is a  clear  violation  of  the  provisions  for
Mixed Use of residential premises under the Master  Plan  2001.  The  Master
Plan 2001 also provides that activities such as running of  a  nursing  home
should not be allowed, whereas in  the  Regularisation  Certificate,  it  is
clearly stated that permission is being granted for  running  of  a  nursing
home. The relevant paras of the said plan are extracted hereunder:

"CLAUSE 10 MIXED USE REGULATIONS:
(NON-RESIDENTIAL ACTIVITY ON RESIDENTIAL PREMISES)
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.
   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 (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 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 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:
The commercial activity allowed shall be only on the  ground  floor  to  the
extent of 25% or 50 sqm which ever is less.

The establishment shall be run only by the resident of the dwelling unit.

The following activities shall not be allowed:

Retail Shops...

Repair Shops....

Service Shops...

Nursing Home

......"



In view of the reasoning discussed above, the impugned  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.


 The learned senior counsel for  the  respondent-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  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  permission  for  running  a
clinical Pathological Laboratory at ground floor and first floor  (area  for
this 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:


 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 permitted.  However,  catering    will
be allowed only for the residents of the nursing home.


7. The applicant will ensure that no nuisance or  hardship  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.8,39,916/-  on  account  of
Regularisation of running of nursing home in the aforesaid  premises  within
a week."





On examining the Regularisation Certificate issued by the MCD, it  is  clear
that the Regularisation Certificate is for running  of  a  Pathological  Lab
whereas the conditions mentioned therein are directed towards running  of  a
nursing home.  Therefore,  there  is  a  lot  of  inconsistency  within  the
Regularisation Certificate itself and due to the  same,  the  Regularisation
Certificate cannot be accepted by us    as it is impermissible not  only  in
law but also because the same was granted without  seeking  permission  from
the High Court during the pendency of the earlier Writ Petition No. 8808  of
2004 filed by the appellant.

39.  In view of the aforesaid reasons, we have to hold  that  the  grant  of
the Regularisation Certificate with the alleged 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  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
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 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) "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;"



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. Further, when the  respondent-owners  started  the  Diagnostic
Centre, they employed about  more  than  50  people  and  installed  25  Air
Conditioners, two diesel generator sets of 25 KVA and 40  KVA  each  in  the
set back area, along with kerosene oil tanks,  gas  cylinders  and  electric
panels. Around 300 patients' visit the centre per  day  and  more  than  100
cars are parked in the vicinity. All these factors  lead  to  air  pollution
which is in contravention of the Air (Prevention and Control  of  Pollution)
Act, 1981. At present, 80 employees are  working  and  around  300  patients
visit the Pathological Lab every day and vehicles are parked in  and  around
the surrounding area which  is  also  creating  a  parking  problem  to  the
residents of the area. The nuisance created by all these  factors  not  only
leads to air pollution but also noise pollution to a great extent.  In  this
regard, it is necessary for us to examine the decision of this Court in  the
case of Noise Pollution (V) in RE[5] at paras 11, 103  and  104  wherein  it
was held that noise generated upto unpleasant or obnoxious  levels  violates
the rights of the people to a peaceful, comfortable and pollution-free  life
guaranteed by Article 21 of the Constitution of India. The  said  paras  are
quoted hereunder:-

"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  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 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 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 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 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 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  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 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.



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 in contravention of the building byelaws  and  zonal  regulations  of
the MCD.

44.   The running of this large Pathological Lab has  lead  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  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 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. 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. 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  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  obtained  by  the
respondent-owners from DPCC under Section 25 of the  Water  (Prevention  and
Control of Pollution) Act which states that  no  person  shall  without  the
previous consent of DPCC establish  or  take  any  steps  to  establish  any
industry, operation or process or any treatment and disposal system  or  any
extension or addition thereto which is likely to discharge sewage  or  trade
effluent into a stream or well or sewer or land. It is mandatory  under  the
said provision to  first  obtain  consent  from  DPCC  and  admittedly  such
consent has neither been obtained by the respondent-owners  nor  granted  by
the respondent No.5, DPCC, nor has the same been placed before  the  learned
single Judge or the Division  Bench  or  this  Court.  The  running  of  the
Pathological Lab for which the generator sets  and  other  heavy  equipments
have been installed not only create sound pollution and  air  pollution  but
also the same is in contravention of the  Water,  Air  and  the  Environment
Protection Acts referred to  supra.  Therefore,  in  view  of  the  relevant
provisions of law referred to supra,the  facts of the case and the  evidence
on record, we have to hold that the running of the Pathological Lab  by  the
respondent-owners in the concerned building is in violation of 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  India[6],    the  relevant
paragraph from the said case is extracted hereunder:


"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
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 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 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 [pic]that the public purpose  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  and  7  of  the  Regularisation
Certificate,  the  learned  senior  counsel  appearing  on  behalf  of   the
respondent-owners contended that the High Court  has  examined  this  aspect
and did not find any  contravention  of  the  aforesaid  conditions  or  any
illegality committed by the  respondent-owners,  therefore,  this  Court  is
required to examine  only  with  regard  to  the  aforesaid  Clauses.   This
contention cannot be accepted by this Court  particularly  in  view  of  the
fact that there is blatant violation of the provisions of building  bye-laws
of MCD in using the building for the purpose  other  than  the  purpose  for
which it is constructed and further running  the  Pathological  Lab  or  the
Nursing Home is impermissible in the concerned  building  under  the  Master
Plan  2001  or  MPD  2021  and  also  under  the  provisions  of  the  Water
(Prevention and Control of Pollution) Act, 1986.
47. The running the Pathological Lab by  the  respondent-owners  air,  sound
pollution is created rampantly on  account  of  which  the  public  resident
health and peaceful has been adversely affected. Therefore, public  interest
is affected and there is violation of rule of law. Hence, we  have  examined
this 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.
 Further, the respondent-owners to justify that the  Pathological  Lab  does
comply with the safety measures and environmental regulation as enforced  by
the Government from time to time, have submitted the National  Accreditation
Board for Testing and 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  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 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.



  Further, 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  DDA  Act,  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
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 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.



  Therefore, both the MCD and the DPCC abdicated their statutory  duties  in
permitting the owners  to  carry  on  with  the  unlawful  activities  which
inaction despite persistent request made by the appellant and the  residents
of the area did not yield any results. The counsel  for  the  MCD  made  the
statement before the courts below and even before this Court that there  are
no illegal activities on the part  of  the  respondent-owners  as  they  are
supported by issuance of a Regularisation Certificate.  In  this  regard  as
discussed previously in  this  judgement,  the  issuance  of  Regularisation
Certificate  to  run  the  Pathological  Lab  in  the  building  is  totally
impermissible in law even though the respondent-owners have placed  reliance
upon Mixed Use of the land in the area as per MPD 2021 referred to supra.



  Further, it is necessary for us to  make  an  observation  here  that  the
conduct of the MCD and the DPCC for their inaction is highly  deplorable  as
they have miserably failed to discharge their statutory  duties  on  account
of which there has been a blatant violation of the rule of law  and  thereby
a large number of residents of the locality are suffering on account of  the
unlawful  activities  of  the  respondent-owners,   whose   activities   are
patronised by both the authorities.



 In view of the reasons recorded by us on the relevant  aspects  which  have
emerged from the pleadings, the questions which were raised  and  the  rival
legal contentions urged, we have to reject the both factual and legal  pleas
on behalf of the respondent-owners. We  also  do  not  accept  the  reliance
placed by the learned senior counsel Mr. L. Nageshwar Rao upon the  National
Capital Territory of Delhi Laws (Special Provisions) Second Act, 2011  No.20
of 2011, which was valid up to 31st December, 2014 in justification  of  the
inaction and the same is wholly untenable in law.  The contentions urged  by
the learned senior counsel placing reliance upon the  MPD  2021  which  came
into force w.e.f. 07.02.2007 that the  respondent-owners  are  permitted  to
run the Nursing Home  and  carry  on  with  the  Diagnostic  Centre  in  the
building placing further reliance upon the various judgments of  this  Court
referred to supra are all unfounded and the same cannot be accepted as  they
are misplaced.



  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.


  .....................................................................J.

  [V. GOPALA GOWDA]



   .....................................................................J.
  [C.NAGAPPAN]
   New Delhi,
   March 20, 2015


ITEM NO.1A-For Judgment    COURT NO.10               SECTION XIV

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Civil Appeal  No(s).  8284/2013

ANIRUDH KUMAR                                      Appellant(s)

                                VERSUS

MUNICIPAL CORP. OF DELHI & ORS.                    Respondent(s)

Date : 20/03/2015 This appeal was called on for pronouncement of JUDGMENT
today.

For Appellant(s)
                     Ms. Purnima Bhat,Adv.

For Respondent(s)
                     Mr. Vikas Mehta,Adv.

                     Mr. D. N. Goburdhan,Adv.

                     Mr. P. Parmeswaran,Adv.

                     Mr. Rakesh Kumar,Adv.


            Hon'ble Mr. Justice V.Gopala Gowda pronounced  the  judgment  of
the Bench comprising His Lordship and Hon'ble Mr. Justice C. Nagappan.
            The  appeal  is  allowed  in  terms  of  the  signed  Reportable
Judgment.
            All the I.A.s are disposed of accordingly.

    (VINOD KR. JHA)                             (MALA KUMARI SHARMA)
      COURT MASTER                                  COURT MASTER
            (Signed Reportable Judgment is placed on the file)

-----------------------
[1]
      [2] (1981) supp. SCC 87

[3]
      [4] 2010 (3 )  SCC 402

[5]
      [6] AIR 1966 SCC 828

[7]
      [8] (2010) 2 SCC 27

[9]
      [10] (2005) 5 SCC 733

[11]
      [12]   (2006) 3 SCC 399


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