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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.

Page 2 2

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 t he 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

Page 3 3

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

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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

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of the other local residents had approached the Court

with any complaint pertaining to nuisance.

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 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.

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 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.

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6. 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.

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 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.

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

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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.

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 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

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effect, the MCD went ahead with issuing Regularisation

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 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.

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 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

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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.

12. 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

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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.

13. 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

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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.

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 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.

15. 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

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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.

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

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.

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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) 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.

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 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

………”

19. 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”

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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.

20. 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.

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21. 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.

22. We have heard the learned senior counsel for both the

parties and after considering the rival legal contentions

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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

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.

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, 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

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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:-

1

(1981) supp. SCC 87

2

2010 (3 ) SCC 402

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“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 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

Page 19 19

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, 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

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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

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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

3

AIR 1966 SCC 828

Page 22 22

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.”

26. 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.

27. Further, notice was issued by the High Court for

limited purpose to examine the correctness of Clauses 3

Page 23 23

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

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.”

4

(2010) 2 SCC 27

Page 24 24

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 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.

Page 25 25

29. 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.

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 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

Page 26 26

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

Page 27 27

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

Page 28 28

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)

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 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.

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 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

Page 29 29

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.

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 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.”

34. Further, it is necessary for us to examine Clause

15.8 of MPD 2021 which states thus:

“15.8 PROFESSIONAL ACTIVITY

i. ….

(iii) 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.

(iv) [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

Page 30 30

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.

35. 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

Page 31 31

retrospective effect enabling respondent-owners to

run a Pathological Lab in the guise of a Nursing

Home in the residential area falling in categories

“A” and “B" is not sustainable in law and liable to

be set aside. Further, in view of the facts of the

case on hand, the relevant provisions of MPD 2021

and the evidence on record, we have to hold that the

writ appeal filed by the appellant has been wrongly

dismissed by the Division Bench of the High Court

without examining the legality and validity of the

issuance of the Regularisation Certificate on

11.07.2006 allegedly under the MPD 2021 which was

still at the proposal stage at that time and the

said Plan came into effect only on 07.02.2007,

enabling the respondent-owners to use the premises

for commercial activity which in our view is

prohibited in the residential plot of the building

under the various Clauses of the Master Plan 2021

extracted above.

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 and in force at the time of

Page 32 32

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

Page 33 33

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

Page 34 34

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:

(i) The commercial activity allowed shall be only on

the ground floor to the extent of 25% or 50 sqm

which ever is less.

(ii) The establishment shall be run only by the

resident of the dwelling unit.

(iii) The following activities shall not be allowed :

(a)Retail Shops...

(b)Repair Shops....

(c)Service Shops...

(d)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.

37. 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

Page 35 35

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

Page 36 36

of running of nursing home in the

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 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.

Page 37 37

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 ch

emical 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

Page 38 38

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

5

(2005) 5 SCC 733

Page 39 39

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

Page 40 40

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 led

to emission of hazardous substances and in that process

human beings, plants, micro organisms, and other living

Page 41 41

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.

Page 42 42

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

Page 43 43

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 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

6

(2006) 3 SCC 399

Page 44 44

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 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 appeal on all aspects

of the matter and on merits. This position of law is

Page 45 45

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

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.

49. 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

Page 46 46

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 .

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 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 a s discussed previously

in this judgement, the issuance of Regularisation

Certificate to run the Pathological Lab in the

Page 47 47

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.

51. 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.

52. 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

Page 48 48

Act, 2011 No.20 of 2011, which was valid up to 31

st

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.

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 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

Page 49 49

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

Page 50 50

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)