# ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF DELHI & ORS

- **Citation:** [2015] 5 S.C.R. 918
- **Court:** Supreme Court of India
- **Decided:** 2015-03-20
- **Case number:** Civil Appeal No.8284 of 2013
- **Bench:** V. Gopala Gowda, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anirudh-kumar-v-municipal-corporation-of-delhi-ors-30861
- **Pages:** 45

## Headnote

Urban Development:
Town Planning - Running of Diagnostic Centre
(Pathological Lab) in the residential area - Permissibility -
Pathological lab on the basement, ground floor, first floor and
mezzanine floor of the building- Writ petition by the appellant
0
(the resident on the second floor of the building) against the
owners of the Lab and the authorities concerned - During
pendency of the petition, regularisation Certificate issued on
11. 7.2006 to the owners by Municipal Corporation under
Mixed Land Use for running the lab - Appellant filed fresh
E Writ Petition challenging the Regularization Certificate -
Petition dismissed by Single Judge of High Court- Order of
Single Judge confirmed in LPA by Division Bench of High
Court - On appeal, held: Regularization Certificate under
Mixed Use Regulations of the Master Plan Delhi 2021 giving
F retrospective effect was granted, even before the Plan came
into force- The Certificate was also contradictory to the Mixed
Use Regulations under the Master Plan 2001 - Thus the
Certificate was impermissible not only in law but also
because it was granted without seeking permission from the
G High Court during the pendency of the earlier Writ Petition -
Running of the Lab has led to omission of hazardous
substances affecting human beings, plants, micro organisms,
and other living creatures - It has also resulted in water and
noise pollution - There is blatant violation of the provisions
H of building bye-laws of MCD in using the building for the
918
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
919
DELHI
purpose other than the purpose for which it was constructed A
- Running of Pathological Lab or the Nursing Home is
impermissible in the concerned building under the Master
Plan 2001 and also under the provisions of Water (Prevention
and Control of Pollution) Act, · 1981 -Authorities concerned
directed to stop the unlawful activities of the owners of the B
Lab- Master Plan of Delhi 2001- Master Plan of Delhi 2021
- Delhi Development Act, 1957 - Environment (Protection)
Act, 1986- Water (Prevention and Control of Pollution) Act,
1981.
Public Interest Litigation - Writ Petition by resident of
c
a building-Against the owners of Pathological Lab who were
running the lab on other floors of that building, which fell in
Residential area - Dismissal of the petition - LPA
thereagainst dismissed on the ground that it was a private D
interest litigation - Held: Running of the lab amounts to
violation of the rule of law and affected the public interest,
hence it is a Public Interest Litigation by the appellant fighting
for the cause of all the local residents.
Words and Phrases:
"hazardous substance"~ Meaning of, in the context
of s. 2( e) of Environment Protection Act, 1986.
E
F
"Process" - Meaning of, in the context of environment
protection laws.
Allowing the appeal, the Court
HELD: 1. The Division Bench of High Court was G
not correct in holding that the proceedings initiated by
the appellant were not in the nature of public interest,
but was only private interest litigation. It is clear from
the pleadings and documentary evidence that several
representations had been made by the affected H
920
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A neighbours of the building at different stages with regard
to the nuisance created by the Pathological Lab right
from 29.12.1995 till date including the complaint made
by the 32 residents of Hauz Khas to the Assistant
Commissioner of Police (Traffic) on 27.07.2009. The
B running of·the Pathological Lab in the building by the
respondent-owners amounts to violation of the rule of
law and affects the public interest, therefore, it is public
interest litigation even though the appellant herein is a
resident of the second floor of the concerned building
C and simultaneously he has been fighting for the cause
D
E
of all the local residents. [Para 24) [935-G-H; 936-A-D]
S. P Gupta and Others v. President of India and Others
1982 SCR 365 (1981) Supp. SCC 87 - followed.
State of Uttara

## Text

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A
B
c
[2015] 5 S.C.R. 918
ANIRUDH KUMAR
v.
MUNICIPAL CORPORATION OF DELHI & ORS.
(Civil Appeal No.8284 of 2013)
MARCH 20, 2015
[V. GOPALA GOWDA AND C. NAGAPPAN, JJ.]
Urban Development:
Town Planning - Running of Diagnostic Centre
(Pathological Lab) in the residential area - Permissibility -
Pathological lab on the basement, ground floor, first floor and
mezzanine floor of the building- Writ petition by the appellant
0
(the resident on the second floor of the building) against the
owners of the Lab and the authorities concerned - During
pendency of the petition, regularisation Certificate issued on
11. 7.2006 to the owners by Municipal Corporation under
Mixed Land Use for running the lab - Appellant filed fresh
E Writ Petition challenging the Regularization Certificate -
Petition dismissed by Single Judge of High Court- Order of
Single Judge confirmed in LPA by Division Bench of High
Court - On appeal, held: Regularization Certificate under
Mixed Use Regulations of the Master Plan Delhi 2021 giving
F retrospective effect was granted, even before the Plan came
into force- The Certificate was also contradictory to the Mixed
Use Regulations under the Master Plan 2001 - Thus the
Certificate was impermissible not only in law but also
because it was granted without seeking permission from the
G High Court during the pendency of the earlier Writ Petition -
Running of the Lab has led to omission of hazardous
substances affecting human beings, plants, micro organisms,
and other living creatures - It has also resulted in water and
noise pollution - There is blatant violation of the provisions
H of building bye-laws of MCD in using the building for the
918
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
919
DELHI
purpose other than the purpose for which it was constructed A
- Running of Pathological Lab or the Nursing Home is
impermissible in the concerned building under the Master
Plan 2001 and also under the provisions of Water (Prevention
and Control of Pollution) Act, · 1981 -Authorities concerned
directed to stop the unlawful activities of the owners of the B
Lab- Master Plan of Delhi 2001- Master Plan of Delhi 2021
- Delhi Development Act, 1957 - Environment (Protection)
Act, 1986- Water (Prevention and Control of Pollution) Act,
1981.
Public Interest Litigation - Writ Petition by resident of
c
a building-Against the owners of Pathological Lab who were
running the lab on other floors of that building, which fell in
Residential area - Dismissal of the petition - LPA
thereagainst dismissed on the ground that it was a private D
interest litigation - Held: Running of the lab amounts to
violation of the rule of law and affected the public interest,
hence it is a Public Interest Litigation by the appellant fighting
for the cause of all the local residents.
Words and Phrases:
"hazardous substance"~ Meaning of, in the context
of s. 2( e) of Environment Protection Act, 1986.
E
F
"Process" - Meaning of, in the context of environment
protection laws.
Allowing the appeal, the Court
HELD: 1. The Division Bench of High Court was G
not correct in holding that the proceedings initiated by
the appellant were not in the nature of public interest,
but was only private interest litigation. It is clear from
the pleadings and documentary evidence that several
representations had been made by the affected H
920
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A neighbours of the building at different stages with regard
to the nuisance created by the Pathological Lab right
from 29.12.1995 till date including the complaint made
by the 32 residents of Hauz Khas to the Assistant
Commissioner of Police (Traffic) on 27.07.2009. The
B running of·the Pathological Lab in the building by the
respondent-owners amounts to violation of the rule of
law and affects the public interest, therefore, it is public
interest litigation even though the appellant herein is a
resident of the second floor of the concerned building
C and simultaneously he has been fighting for the cause
D
E
of all the local residents. [Para 24) [935-G-H; 936-A-D]
S. P Gupta and Others v. President of India and Others
1982 SCR 365 (1981) Supp. SCC 87 - followed.
State of Uttaranchal v. Ba/want Singh Chaufal 2010 (1)
SCR 678: 2010 (3) SCC 402; Gadde Venkateswara
Rao v. State of A.P AIR 1966 828: 1966 SCR 172 -
relied on.
2.1 The MCD has ignored the relevant aspects of
the case of deviation of the then relevant Delhi Master
Plan and unauthorised use of the basement, ground
floor, mezzanine floor and the first floor of the concerned
F building. The said act of the MCD is contrary to the legal
principles. [Para 27) [942-G-H; 943-A]
2.2 The plea of the respondent-owners that the
mezzanine floor does not exist in the building, is contrary
G to the pleadings made before the courts below and even
before this Court and the same is made with a ma/a fide
intention to conceal unauthorized construction and
contravention of the building bye-laws. The issuance of
the Regularisation Certificate dated 11.7.2006, in favour
H of the respondent-owners of the Pathological Lab was
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
921
DELHI
in contravention of the building bye-laws and MPD-2021. A
[Paras 29 and 30] [944-C-E]
2.3 The report of the DPCC clearly states that the
Regularisation Certificate was granted for running a
Nursing Home whereas a Pathological Lab has been s
functioning on the basement, ground floor of the building
since the year 1995. In view of the Clause 15.4(ii) of the
MPD-2021, the general terms and conditions governing
Mixed Use provides that where there are more than one
dwelling units in a residential plot, each of the dwelling C
units will be permitted to have only type of Mixed Use
activity (either retail shop as per Clause 15.5 or
professional activity or any one of the other activities as
provided in Clause 15.7). In the residential plot in
question, there are more than two residential flats and D
once again such kind of use of premises in the dwelling
unit will be permitted to have only one kind of activity.
[Para 32] [947-H; 948-A-C]
2.4 From Clause 15.8 of MPD 2021, it is clear that if E
the use of basement for professional activity exceeds
the FAR, then such excess usage shall be subject to
payment of appropriate charges prescribed with the
approval of the Government of India. Neither the MCD
nor the respondent-owners in their pleadings have F
brought this fact to the notice of this Court that they have
complied with the above said provision by paying the
appropriate charges for usage of the basement when
the same is exceeding the permissible FAR on the plot
of the building. [Para 34] [948-G; 949-D-E]
G
2.5 Thus, the grant of Regularisation Certificate
under Mixed Use Regulations of the MPD 2021 giving
retrospective effect enabling respondent-owners to run
a Pathological Lab in the guise of a Nursing Home in the H
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SUPREME COURT REPORTS
[2015] 5 S.C.R.
A residential area falling in categories "A" and "B" is not
sustainable in law and liable to be set aside. The writ
appeal filed by the appellant has been wrongly dismissed
by the Division Bench of the. High Court without
examining the legality and validity of the issuance of the
B Regularisation Certificate on 11.07.2006 allegedly under
the MPD 2021 which was still at the proposal stage at
that time and the said Plan came into effect only on
07.02.2007, enabling the respondent-owners to use the
premises for commercial activity which is prohibited in
C the residential plot of the building under the various
Clauses of the Master Plan 2021. [Para 35] [949-G-H; 950-
-A-C]
2.6 Further, the said Regularisation Certificate
D granted by the MCD is contradictory to the Mixed Use
Regulations under the Delhi Master Plan 2001 as well,
which was relevant and in force at the time of granting
of the Regularisation Certificate to the respondentowners. [Para 36] [950-D]
E
2.7 On examining the Regularisation Certificate
issued by the MCD, it is c.lear that the Regularisation
Certificate is for running of a Pathological Lab whereas
the conditions mentioned therein are directed towards
F running of a nursing home. Therefore, there is a lot of
inconsistency within the Regularisation Certificate itself
and due to the same, the Regularisation Certificate
cannot be accepted as it is impermissible not only in law
but also because the same was granted without seeking
G permission from the High Court during the pendency of
the earlier Writ Petition filed by the appellant. [Para 38]
[953-F-G]
3.1 Clause 15.5 of MPD 2021, clearly states that
H any trade or activity involving any kind of abnoxious,
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
923
DELHI
hazardous, inflammable activities, non-compatible A
activities and polluting substance or process shall not
be permitted. As per the report of the DPCC, it is clear .
that chemical substances emitted from the Pathological
Lab will be obnoxious, non-compatible, polluting and
therefore, the same are not permissible under Clause B
15.5 of the MPD 2021. Further, when the respondentowners started the Diagnostic Centre, they employed
about more than 50 people and installed 25 Air
Conditioners, two diesel generator sets of 25 KVA and
40 KVA each in the set back area, along with kerosene C
oil tanks, gas cylinders and electric panels. Around 300
patients' visit the centre per day and more than 100 cars
are parked in the vicinity. All these factors lead to air
pollution which is in contravention of the Air (Prevention 0
and Control of Pollution) Act, 1981. At present, 80
employees are working and around 300 patients visit the
Pathological Lab every day and vehicles are parked in
and around the surrounding area which is also creating
a parking problem to the residents of the area. The E
nuisance created by all these factors not only leads to
air pollution but also noise pollution to a great
extent.[Paras 40 and 41) [954-8-C, G-H; 955-A-B]
Priyanka Estate International (P) Ltd. v. State of
Assam 2009 (16) SCR 80: (2010) 2 SCC 27 - relied
on.
F
3.2 On examining the evidence on record, it is clear
that large diesel generator sets have been erected by
the respondent-owners in the set-back area which is an G
illegal structure in the residential premises and is in
contravention of the building byelaws and zonal
regulations of the MCD. [Para 43] [956-F-G]
H
924
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A
3.3
The running of this large Pathological Lab
has led to emission of hazardous substances and in that
process human beings, plants, micro organisms, and
other living creatures' are being exposed to harmful
physico-chemical properties. Not only this, they also
B create pollution which contaminates water on account
of the discharge of chemical properties used in the
process of running the Pathological Lab, causing
nuisance and harm to public health and safety of the
residents of the area. This fact is certified by the DPCC
C in its report dated 4.8.2008. The usage of such generator
sets has led to the damage of the building and cracks
have been found in the building structure. [Para 44] [956H; 957-A-B]
D
3.4 The running of the Pathological Lab for which
the generator sets and other heavy equipments have
been installed not only create sound pollution and air
pollution but also the same is in contravention of the
Water, Air and the Environment Protection Acts. [Para 45]
E [957-H; 958-A]
3.5 Though the Pathological Lab had been granted
National Accreditation Board for Testing and Calibration
Laboratories (NABL) certification, however, the same
F was granted on 15.7.2001 and was valid only for three
years from the date of issue of the certificate i.e. upto
14.07.2004. No record or document has been produced
to prove that the Pathological Lab is still certified under
the NABL certification. [Para 48) [959-G-H; 960-A]
G
H
3.6 Despite its notice by the MCD and DPCC, the
illegal and unlawful activities of the respondent-owners
have continued. Instead of taking prompt action as
provided under the provisions of DOA Act, 1957 and the
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
925
DELHI
Environment Law, the MCD proceeded to regularise the A
illegal and unlawful activities of the respondent-owners
which has been carrying on since 1995. Further, the
DPCC not only regularised the commercial activities of
the Pathological Lab run by the respondent-owners
under the guise of a 'Nursing Home' with retrospective B
effect but no prompt action was taken under the
provisions of the Act to either stop it or to demolish the
illegal structure. Therefore, both the MCD and the DPCC
abdicated their statutory duties in permitting the owners
to carry on with the unlawful activities which inaction C
despite persistent request made by the appellant and
the residents of the area did not yield any results. [Paras
49 and 50) [960-8-F]
4. The conduct of the MCD and the DPCC for their D
inaction, is highly deplorable as they have miserably
failed to discharge their statutory duties on account of
which there has been a blatant violation of the rule of
law and thereby a large number of residents of the locality
are suffering on account of the unlawful activities of the E
respondent-owners, whose activities are patronised by
both the authorities. [Para 51) [961-A-B]
5. Directions are issued to the respondents MCD
and DPCC to see that the unlawful activities of the F
respondent-owners are stopped as per the directions
of this Court. The respondent-owners are directed to
close down their establishment of running the Diagnostic
Centre' in question, within four weeks from the date of
receipt of the copy of this Judgment by shifting the same G
to alternative premises. [Para 53) [961-G-H; 962-A]
Noise Pollution (V) in RE 2005 (1) Suppl. SCR 624:
(2005) 5 sec 733 - relied on.
H
926
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 5 S.C.R.
Case law reference
1982 SCR 365
followed
Para 24
2010 (1) SCR 678
relied on.
Para 24
AIR 1966 828
relied on.
Para 25
2009 (16) SCR 80
relied on.
Para 27
2005 (1) Suppl. SCR 624
relied on.
Para 41
CIVILAPPELLATEJURISDICTION: CivilAppeal No.
8284of2013.
From the Judgment and Order dated 16.01.2012 of the
High Court of Delhi at New Delhi in Letter Patent Appeal No.
857of2010.
H. P. Rawal, Anita Sahani, Divya Anand, Anando
Mukherjee, Nipur Saxena, Purnima Bhat for the Appellant.
L. Nageshwar Rao, ASG, K. K. Venugopal, lndu
Malhotra, Kush Chaturvedi, Vikas Mehta, Nistha Kumar, A.
Bhumesh, Suman Yadav, Puneeth K. G., D. N. Goburdhan,
Prabal Singh, Sanjeev Sen, Dev J. Roy, Praveen Swarup,
Suresh Kumar, Rakesh Kumar, Yogendra Pal Singh, P.
F Kaushal, P. Parmeswaran for the Respondents.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J.
1. This appeal by special
leave arises out of the impugned judgment and order dated
G 16.01.2012 passed by the High Court of Delhi in LPANo. 857
of 2010 in and by which, the High Court, while dismissing the
appeal held that this matter does not fall within its writ jurisdiction
which requires determination by the High Court.
H
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
927
DELHI [V. GOPALA GOWDA, J.]
Brief facts which led to the filing of this appeal are as A
under:-
2. The appellant is residing on the second floor of D-1
Hauz Khas, New Delhi. Dr. Navin Dang and Dr. Manju Dang,
the respondent Nos. 6 and 7 (hereinafter referred to as 'the B
respondent-owners') initially started a Pathological Lab in the
name of 'Dr. Dang's Diagnostic Centre' in the year 1995 on
the basement and ground floor of the concerned building and
later on, in the year 2005-2006 the first floor of the premises
was also purchased by them from its owner Mrs. Shanti C
Chatterjee whereby they expanded the activities of the
Pathological Lab even to mezzanine floor and first floor by
installing heavy medical equipments to make it fully equipped
with the latest technology. When the Diagnostic Centre was
started, it employed about 50 people and installed 25 Air D
Conditioners, two diesel generator sets of25 KVAand 40 KVA
each in the set-back area of the building along with kerosene
oil tanks, gas cylinders and electric panels. There was a major
parking problem in and around the vicinity of the Diagnostic
center since a large number of patients visited the centre every E
day.
3. The appellant made various complaints pertaining
to the violation of the Master Plan to the concerned authorities',
namely 1)Respondent No.1- Dy. Commissioner, Municipal F
Corporation of Delhi(for shot 'the MCD'), 2)Respondent No.2
- SHO of the area, 3)Respondent No.3 - Executive Engineer,
Delhi Electricity Supply Undertaking. As no heed was given to
the same by the aforesaid respondent, a writ petition No. 8808
of 2004 was filed by the appellant before the High Court of G
Delhi. During the pend ency of the said writ petition, contrary to
the averments made by the MCD before the High Court that
prosecution had been initiated against the responsible persons
under Sections 347/461 of the Delhi DevelopmentAct, 1957, H
928
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A the Regularisation Certificate was issued on 11.07.2006 to
the respondent-owners by the MCD underMixed Land Use
for running the Pathological Lab on the ground floor and first
floor of the concerned building. Aggrieved by the grant of
Regularisation Certificate, the appellant withdrew the writ
B petition No.8808 of 2004 and a fresh writ petition No. 225 of
2008 was filed by the appellant before the High Court praying
for quashing of the Regularisation Certificate wherein, the
learned single Judge issued limited notice to the respondents
with respect to Clauses 3 and 7 of the Regularisation
C Certificate. The Learned single Judge rejected the challenge
to the Regularisation Certificate issued on 11. 07 .2006 as the
same was issued by MCD under Clause 15.7.1 of the MPD
2021 approved by the Ministry of Urban Development,
0 Government of India which reads thus:
"15.7 OTHERACTIVITY
15.7.1 Subject to the general conditions given in para
15.4 and additional conditions given in para 15.7.3,
E
the following public and semi-public activities shall also
be permitted in the residential plots abutting roads of
minimum ROW prescribed in 15. 7.2, whether or not
the road is notified as Mixed Use street:
F
(a) Pre-primary school (including nursery I Montessori
school, creche.)
G
(b) i. Nursing Home
ii. Clinic, Dispensary, Pathology laband
Diagnostic center.
"
Further, the learned single Judge vide order dated
H 5.10.2010 refused to decide the violation under Clause 7 of
AN I RUDH KUMAR v. MUNICIPAL CORPORATION OF
929
DELHI [V. GOPALAGOWDA, J.]
the Regularisation Certificate on the ground that the petition is A
motivated by a private dispute than owing to any nuisance and
hardship t'J any local resident as none of the other local
residents had approached the Court with any complaint
pertaining to nuisance.
B
4. The first respondent- MCD confirmed that one-time
parking charges of Rs.9,35,673/-in terms of the Regularisation
Certificate had been paid by the respondent owners and that
respondent-owners had also deposited Rs.8,39,916/- as
conversions charges. The appellant challenged the order dated C
11.01.2008 issuing limited notice in writ petition No.225 of
2008 passed by the learned single Judge by filing LPA No.
267 of 2009 before the Division Bench of the High Court and
later on withdrew the same.
D
5. Aggrieved by the Order dated 5.10.2010 passed by
learned single Judge, the appellant filed LPA No.857 of 2010
before the High Court praying for issuance of a writ of
prohibition prohibiting the owners of the Pathological Lab from
running the Diagnostic Centre in the concerned building, which E
was also dismissed by the High Court of Delhi vide its order
dated 16.01.2012. Hence._this appeal by special leave is filed
by the appellant.
6. Heard Mr. H.P. Rawal, learned senior counsel on F
behalf of the appellant and Mr. K.K. Venugopal, and Ms. lndu
Malhotra, learned senior counsel on behalf of the respondentowners and Mr. L. Nageshwar Rao, Additional Solicitor
General and other learned counsel on behalf of the respondent.
G
7. The learned senior counsel on behalf of the appellant
contended that the appellant made various complaints to the
concerned authorities, namely, 1) Respondent No.1 - Dy.
Commissioner, MCD regarding the commercial activity of the
respondents-owners. 2) Respondent No.2- SHO of the area H
for forceful installation of the Generator sets in the set-back
930
· SUPREME COURT REPORTS
~[2015] 5 S.C.R.
A
area of the concerned property and blocking the underground
water tanks and 3) Respondent No.3 - Executive Engineer,
Delhi Electricity Supply Undertaking about'the installation of
the Generator sets.
B
8. It is contended by the learned senior counsel for the
appellant that the authorities were called upon by the appellant
to take some preventive action against the respondent-owners
as they have not taken any license or permission from the MCD
prior to setting up of the Diagnostic Centre in the residential
C area which is admitted by the concerned respondents
themselves. According to the sanctioned building plan, the
·· · basement and the mezzanine floor could be used only for
storage purpose and for no other purpose.
D
. 9. It is further contended by him that the MCD never
sought permission of the· High Court before issuing
Regularisation Certificate in favour of the respondent-owners
when W.P. No. 8808 of 2004 was pending before the High
Court. It is further contended by him that the said Regularisation
E Certificate dated 11. 7.2006 which was allegedly granted under
the MPD 2021 which could not have retrospective effect but in
fact, is prospective in nature. Further it has been contended
by him thatthe MPD 2021 was notified by the Ministry of Urban
DevelopmentVide Notification No. S.0.141 and was brought
F into force on 07.02.2007.
The said plan was only at its
proposal stage, which fact was taken note of by the Division
Bench of the High Court in its impugned judgment. Thus, it can
be said that even before the MPD 2021 was brought into
effect, the MCD went ahead with issuing Regularisation
G Certificate under the said plan in favour of the respondentowners of the Pathological Lab.
10. Further, it is submitted by the learned senior counsel
on behalf of the appellant that on 27.04.2006, the complaint
H made by the 18 residents of the area to the Commissioner,
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
931
DELHI [V. GOPALAGOWDA, J.]
MCD about the hardship and nuisance faced by them were A
not taken note of or given heed to by the authorities. Again on
24.07.2009, 32 residents of Hauz Khas complained to theACP
(Traffic) about the great hardship they have been facing due to
the continuous nuisance being committed by the said
Diagnostic and Pathological Lab.
B
11. It is further contended by the learned senior counsel
for the appellant that no person shall, without the previous
consent of Delhi Pollution Control Committee (DPCC)-
respondent No. 5 herein shall establish or take any steps to C
establish any industry, operation or process or any treatment
and disposal system or any extension or addition thereto which
is likely to discharge sewage or trade effluent into a stream or
well or sewer or land. It is _mandatory on the part of such
establishment to first obtain consent from the DPCC for D
establishing or operating any industry, operation or process
or any treatment and disposal system or any extension or
addition thereto as envisaged under Section 25 of Water
(Prevention and Control of Pollution) Act, 1986. Admittedly, no
such consent was obtained or granted by the DPCC. The said E
fact has not been placed before the learned single Judge,
Division Bench or this Court by any of the respondents. The
DPCC has stated in its counter statement that the Pathological
Lab is being run by the respondent-owners in the basement,
F
ground floor, first floor and mezzanine floor of the concerned
property. Thus, it is being run by them not only in violation of
the Master Plan for Delhi 2001 but also MPD-2021.
12. It is further contended thatthe area illegally permitted
by the MCD in pursuance of the alleged Regularisation G
Certificate dated 11.07.2006 mentions the area to be 222.25
sq meters and confines the activity of respondent-owners to
the ground floor and the first floor only. However, the
respondent-owners have been using the area much more in H
excess of the said permitted area by using the mezzanine floor
932
SUPREME COURT REPORTS
[2015] 5 S.C.R.
A of the building also. The said fact pleaded by the appellant is
corroborated by the inspection report submitted by the DPCC
in these proceedings. It is further contended that the
respondent-owners have neither refuted nor pleaded anything
contrary to the same, but on the other hand, for the first time
B before this Court, the learned senior counsel on behalf of the
respondent-owners have stated that the mezzanine floor does
not exist in the building. This plea urged by the respondentowners is not only contrary to the pleadings before the courts
below but the same is made with a ma/a fide intention and is
C an incorrect statement of fact and therefore, requested this
Court to reject the said contention.
13. Further, it is contended by the learned senior counsel
that the appellant has been complaining about the set-back
D area of the building being illegally covered by the respondentowners contrary to the building bye-laws and for the first time
before this Court, a new plea has been taken by the respondentowners that they have kept the generator sets in the set-back
area of the building allegedly because they have not been
E allowed to install it on the terrace of the concerned building.
This alleged fact is contrary to the facts and the title deeds of
the property. The terrace in the building was purchased by the
alJ>pellant separately and he is the exclusive owner of the
F terrace.
14. It is further contended that the appellant is living on
the second floor of the building and enough damage has been
done to the same and cracks have occurred therein due to the
installation of heavy equipments including generator sets. The
G effect of such installation of such heavy equipments like
generator sets on the terrace is not only dangerous but would
also make it impossible for the appellant as well as the
surrounding neighboring residents to live peacefully.
H
15. It is further urged by the learned senior counsel for
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
933
DELHI [V. GOPALAGOWDA, J.]
the appellant that the impugned order is liable to be set aside A
as the dispute between the parties is not a private dispute
and respondent Nos. 1 to 5 are required in law. to take
appropriate legal action against the respondent-owners to
stop the illegal and unauthorized activities in the concerned
building. These activities of running the Pathological Lab are B
also contrary to Clause 7 of the conditions mentioned in the
Regularisation Certificate dated 11.07.2006 issued by the
MCD to the respondent-owners for running of the Pathological
Lab in the concerned building.
c
16. On the other hand, the learned senior counsel on
behalf of the respondents have alleged that the appellant
himself has not approached this Court with clean hands and
has deliberately suppressed material information and
documents with a view to prejudice this Court against the D
answering respondents and has raised unauthorized
construction on the roof above the second floor of the
concerned building. It is alleged by them that this appeal filed
by the appellant is motivated by personal animus against the
answering respondents. It is further contented that the E
contentions urged by the appellant both in the writ petition and
in this appeal do not raise any question of law or question of
public importance, therefore, the same does not call for
interference of this Court.
17. It is further contended by the learned senior counsel
F
for the respondent-owners that the Delhi Master Plan 2001
classifies a Clinical Laboratory under Section 2 - Development
Code, Clause 8 (3) SI. No. 077 as an activity permissible in a
residential area. A clinical laboratory being a utility service is G
permitted to be run in both the residential and commercial
areas and this facility must be easily accessible and in close
proximity to people in residential zones.
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18. Further, it is submitted by them that the MPD-2021
which came into force on 07.02.2007, provides for Mixed Use
Regulations. Regulation 15.7.2 reads thus:
"15.7.2 The minimum ROW of a street or stretch of road
B
on which other activities are permissible is as follows:
c
In A & B Colonies*: 18m ROW in regular plotted
development; 1-3. Added vide S.O. 2034(E) dated 1208-2008 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
D aforesaid activities of the respondent-owners in the residential
building are permissible in a Class "B" Colony, having an 18
m ROW in regular plotted development. It is further contended
that it is relevant to mention that there is no restriction with
respect to the area that can be used for a Nursing Home, Clinic,
E Dispensary, Pathological Lab and Diagnostic Centre covered
by Regulation 15.7.1 oftheMPD2021.
20. It is further submitted by the respondent-owners in
their written submissions that they have installed generator sets
F for running their Pathological Lab in the rear set back area of
the concerned building, since the appellant did not permit
access to the roof of the second floor for utilities even though
they have a right of access to the terrace to repair and clean
the overhead tanks, to install TV antenna etc., under their
G registered sale deed of the building. Further, it is contended
by the learned senior counsel for the respondent-owners of
the Pathological Lab that they have not constructed any shed
in the rear set-back area and generators have been kept in
H the sound-proof enclosures and the noise generated from them
is within the permissible limits and therefore, there is no air
and sound pollution in the area.
AN I RUDH KUMAR v. MUNICIPAL CORPORATION OF
935
DELHI [V. GOPALAGOWDA, J.].
21. Further, It is contended by the learned senior counsel A
for the respondent-owners that respondent No. 5, DPCC has
given the permission to install the aforesaid generators in the
building after conducting an inspection of the same and
certified that the air quality standards are being complied with
by them. Further, as advised by DPCC, the respondent-owners B
have installed stacks above the height of the building but the
appellant broke the stack on several occasions, and thereby
prevented the respondent-owners from complying with the said
directions. Ultimately, the respondent-owners were
constrained to construct a steel structure which is independent C
of the building, so as to ensure that the exhaust pipe of the
generators is raised by 1.5. meters above the height of the
building. It is further contended that the respondent-owners
have only one gas-cylinder connection in the Pathological Lab, D
which is used for making tea, coffee etc. for the Doctors and
staff who are working in the lab, which cannot be termed as
hazardous material as it is only used for domestic purposes.
22. We have heard the learned senior counsel for both
the parties and after considering the rival legal contentions E
urged by them, we have to answer each one of the rival legal
contentions in seriatim by assigning the following reasons.
23. It is pertinent to note that during the pendency of
this appeal, the parties have tried to reach an amicable F
settlement, however the same remained unsuccessful. Be as
that may, this nature of ligation cannot be allowed to be settled
between the parties as it involves public interest and violation
of rule of law.
G
24. The writ petition was dismissed by the learned single
Judge and the same was affirmed by the Division Bench in its
impugned judgment and order on the question that the
proceedings initiated by the appellant are not in the nature of
public interest but is only private interest litigation and therefore, H
the High Court had held that the writ does not lie against the
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(2015] 5 S.C.R.
A respondents. The said reasoning of the Division Bench in the
impugned judgment is not acceptable to us based on the
pleadings and documentary evidence produced before us as
it is clear that several representations have been made by the
affected neighbours of the building at different stages with
B regard to the nuisance created by the Pathological Lab right
from 29.12.1995 till date including the complaint made by the
32 residents of Hauz Khas to the Assistant Commissioner of
Police (Traffic) on 27.07.2009. The running of the Pathological
Lab in the building by the respondent-owners amount to
C violation of the rule of law and affects the public interest,
therefore, it is public interest litigation even though the appellant
herein is a resident of the second floor of the concerned
building and simultaneously he has been fighting for the cause
0 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 Others1,
which legal principle has been reiterated recently by this Court
in the case of State Of Uttaranchal v. Ba/want Singh
E Chaufa/2 after adverting to the entire case law on the question
of public interest litigation, the relevant paragraph from the
decision of the S. P. Gupta case (supra) is extracted
hereunder:-
F
G
"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
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1· (1981) supp. sec 87
2· 2010 (3) sec 402
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
DELHI [V. GOPALA GOWDA, J.]
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 Ba/want Singh's case is extracted
hereunder
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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
individualisticAnglo-lndian 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
H
members observing that the cause of "little Indians" can
ANIRUDH KUMAR v. MUNICIPAL CORPORATION OF
DELHI [V. GOPALA GOWDA, J,]
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 b~en infringed. On the
contrary, the Government should welcome an inquiry by
the Court, so that if it is found that there are in fact bonded
labourers or even if the workers are not bonded in the
strict sense of the term as defined in the Bonded Labour
System (Abolition) Act, 1976 butthey are made to provide
forced labour or are consigned to a life of utter deprivation
and degradation, such a situation can be set right by the
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
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obligation root out exploitation and injustice and ensure
to the weaker sections their rights and entitlements.
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37. In Fertilizer Corpn. Kamagar Union v.