Agrawal Eye Institute v. Govt. of NCT of Delhi & Anr

ORDER

24.04-2009 This petition is dismissed in terms of the judgment passed today in WP{C) No.4233/1993. Interim order stands vacated. Pending applications are disposed of in terms of the judgment. A copy of the judgment be placed on the file. CHIEF JUSTICE S. MURALIDHAR, J. APRIL 24, 2009 "v" Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. IN THE HIGH COURT OF DELHI AT NEW DELHI • WP(C) No. 4233 of 1993 Date of decision: April 24, 2009 DELHI MEDICAL ASSOCIATION & ORS. PETITIONERS Through: Mr. S.P. Kahra, Senior Advocate with Mr.Praveen Chauhan and Mr. Anmol Srnlia, Advocate versus UNION OF INDIA & ORS. RESPONDENTS Through: Mr. S.D. Salwan, Advocate for GNCTD Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. LPANo. 132of2008 SANTOM HOSPITAL APPELLANT Through: Ms. Radhika Chandrashekhar,. Advocate versus. GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. S.D. Salwan Advocate for GNCTD. Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Zubeda Begum, Advocate WP (C) No. 5782 of 2007 SANTOM HOSPITAL PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services, Mr. S.D.-Salwan, Advocate for GNCTD WP (C) No. 6788 of 2007 laSHNI DEVI CHARTIABLE CLINIC & ORS. PETITIONERS Through: Ms. RadhilcaChandrasheldiar, Advocate versus i WP(C) No. 4233/93etc. Page1 of35 GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. WP(C) No. 6789 of 2007 SHANTI CLINIC PETITIONER Through: Ms. Radhilca Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. • RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms..Zubeda Begum, Advocate WP (C) No. 6795 of 2007 APOTHECARIES LIMITED PETITIONER Ttirough: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Zubeda Begum, Advocate WP (C) No. 7290 of 2007 INDIAN HOSPITAL PETITIONER Through: Ms. Radhika Chandrasheldiar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. WP (C) No. 8258 of 2007 LIFE LINE MEDICAL CENTRE .....PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus WP(C) No. 4233/93 etc. Page 2 of.35 GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services,Ms. Zubeda Begum, Advocate •WP (C) No. 8337 of 2007 DURGA HOSPITAL PVT. LTD. PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain,'Advocate for Directorate of Health Services, Ms. Purbali Bora, proxy counsel for Ms. Aruna Tiku, Advocate WP (C) No. 8833 of 2007 DR. BALA DEVI'S HEALTHY FAMILY ANDANR ....PETITIONERS Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Sonia Sharma, Advocate for GNCTD. WP (C) No. 8835 of 2007 CHANDRALEELA HOSPITAL PETITIONER Through: Ms. Radhil-caChandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Sonia Sharma, Advocate for GNCTD. WP (C) No. 8908 of 2007 J.M.S.S. HOSPITAL PETITIONER Through: Ms. Radhika Chandrashelchar, Advocate \NP{C)No. 4233/93etc. Page3 of35 % versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Sonia Sharma, Advocate for GNCTD. WP (C) No. 9384 of 2007 Dr. S .P. MAHESHWARI PETITIONER Through: Mr. S. Chaturvedi, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. WP (C) No. 524 of 2008 AAICASH EYE & GENERAL HOSPIAL PETITIONER Through: Ms. Radhika Chandrasheldiar, Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. WP (C) No. 909 of 2008 WELCOME HEALTH CARE CENTRE AND HOSPITAL PETITIONER Through: Ms. Radhika Chandrasheldiar,Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through:Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. WP (C) No. 910 of 2008 WP(C)No. 4233/93etc. Poge4of35 ANAND MAYA HOSPITAL PETITIOISIER Through:Ms. RadhilcaChandrashekhar,Advocate versus GOVT. OFNCT OF DELHI& ORS. RESPONDENTS Through:Mr. VivekKumarTandonwith Mr. DaiyanHussain,AdvocateforDirectorateof Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. WP (C) No. 911 of 2008 AGRAWALEYE INSTITUTE PETITIONER Through:Ms. RadhikaChandrashekhar,Advocate versus GOVT. OF NCT OF DELHI&ORS. RESPONDENTS Through:Mr. VivekKumarTandonwith Mr. DaiyanHussain,Advocatefor Directorate of Health Services. • . Ms. Ruchi Sindhwani, Advocate for GNCTD. WP(C) No. 912 of 2008 HANDASTONECLINIC PETITIONER Through:Ms. RadhikaChandrashekhar,Advocate versus GOVT. OF NCT OF DELHI&ORS. RESPONDENTS Through:Mr. VivekKumarTandonwith Mr. DaiyanHussain,AdvocateforDirectorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. WP (C) No. 915 of 2008 SHARMAMEDICALCENTRE .....PETITIONER Through:Ms. RadhikaChandrashekhar,Advocate versus GOVT. OF NCT OF DELHI&ORS. .....RESPONDENTS WP(C)No. 4233/93etc. ^ Through:Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain,Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. WP (C) No. 1018 of 2008 K.K. SURGICALAND MATERNITYCENTRE PETITIONER Through:Ms. RadhikaChandrashekhar,Advocate versus GOVT. OFNCT OFDELHI& ORS. RESPONDENTS Through:Mr. VivekKumarTandonwith Mr. DaiyanHussain,AdvocateforDirectorate of Health Services. Ms.ShikhaPalsule,proxy counselfor Mr. Saleem Ahmed, Advocate for R-2 WP (C) No. 3214 of 2008 ANANDENT & SPEECHCENTRE PETITIONER Through:Ms. RadhikaChandrasheldiar,Advocate versus GOVT. OF NCT OF DELHI& ORS. RESPONDENTS Through:Mr. VivekKumarTandonwith Mr. DaiyanHussain,Advocatefor Directorateof Health Services. Mr. Virendra Singh, Advocate WP (C) No. 3215 of 2008 C.M. PATELHOSPITAL .....PETITIONER Through:Ms. RadhilcaChandrasheldiar,Advocate versus GOVT. OF NCT OF DELHI& ORS. .....RESPONDENTS Through:Mr. VivekKumarTandonwithMr..Daiyan Hussain,Advocatefor DirectorateofHealthServices, Mr. Virendra Singh, Advocate AND WP(C) No. 4233/93etc. Page6of35 WP (C) No. 3216 of 2008 GANDHI NURSING HOME PETITIONER Through:Ms. RadhikaChandrashekhar,Advocate versus GOVT. OF NCT OF DELHI & ORS. I^SPONDENTS Through:Mr. VivekKumar TandonwithMr. Daiyan Hussain, Advocate for Directorate of Health Services, Mr. Virendra Singh, Advocate CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR

¶1Whether Reporters of local papers may be n allowedto seethejudgment?

¶2To be referredto the Reporteror not? I

¶3Whetherthejudgmentshouldbe reportedJ in Digest? JUDGMENT • 24.04.2009 S. MURALIDHAR, J.

1.1 These petitions and appeals raise similar questions and are accordingly being disposed of by this common judgment. The lead petition, Writ Petition

(C) No. 4233 of 1993 by the Delhi Medical Association seeks a declaration that Rule 3 of the Delhi Nursing Home (Amendment) Rules 1992 is ultra vires the Delhi Nursing Homes Registration Act 1953 ('Act') and is also arbitrary and discriminatory and therefore violative of Articles 14 and 19 (1)

(g) of the Constitutionof India. The otherprayer in the writ petition is for a. WP(C) No. 4233/93 etc. % direction to the Respondents not to give effect to the said Rule 3 and to register all nursing homes which are eligible for registration under the Act without insisting on the fulfillment of the conditions prescribed under the impugned Rule 3.

1.2 It was submitted at the outset by counsel for the petitioners that with the changes brought about by the Master Plan for Delhi (MPD) 2021, and the introduction of the mixed land use norms, the questions arising in the present batch of petitions ought to be left unanswered and that the petitioners' case be directed to be considered by the Respondents under the new norms. This Court is not inclined to accept this plea since the principal questions concerning the Act are bound to recur notwithstanding the new MPD norms. The petitioners have been protected from adverse consequences of the law on account of the interim orders which have operated for over a decade. It is therefore important and necessary for this Court to deal with the contentions raised on merits. The Provisions of the Act and the progressive changes to the Rules

¶2The Delhi Nursing Homes Registration Act, 1953 ('Act') was enacted to provide for the registration and inspection of nursing homes in the State of Delhi. Under Section 2(iv) of the Act, a nursing home has been defmed thus: WP(C) No. 4233/93etc. Page8 of35 "(iv) Nursing Home means any premises used or intended to be used for the reception of persons suffering from any siclaiess injury or infirmity and the providing of treatment and nursing for them and includes a maternity home, and the expression 'carry on nursing home' means to receive persons in a nursing home for, any of the aforesaidpurposes and to provide treatmentor nursing for them."

¶3Section'3prohibitsthe running of a nursing home withoutregistration. The saidprovisionreads asunder: "3. Prohibition to carry on nursing home without registration-No person shall carry on a nursinghome unless he has been duly registered in respect of such nursinghome and theregistrationin respecthas notbeen cancelled under section 7. Providedthat nothing in this section shall apply in the case of a nursinghome which is in existenceat the date of the commencement of this Act, for a period of three months from such date or if an application for registrationis madewithinthatperiodinaccordancewith the provisions of section 4 until such application is , finally disposed of"

¶4Under Section 7, the supervisingauthoritymay at any time cancel the registrationin respectof anursinghome on the same groundwhich would entitledthe supervisingauthorityto refiisean applicationfor registrationof 'I WP{C)No. 4233/93etc. ^ if any person is convicted under tlie Act or of an offence in respect of that nursing home.

¶5The Delhi Nursing Homes Registration Rules 1953 ('Rules') sets out the procedurefor.applyingfor the registration.The Rules were furtheramended in 1966. Therein a schedule was added with reference to Rule

¶14The Schedule sets out the requirement of the nursing homes including the buildings,water supply,health, clothing,sanitaryrequirementsof staff and other equipments.Importantly,as far as buildingsare concerned,clause (1)

(b)(i) stipulatesthat "The buildingused for the nursinghome shall comply with the relevant municipalbye laws in force from time to time". In the 1992 amendment Rule 3(i) further amended to read as under: "(i) The building used for the Nursing Homes comply with the relevant Municipal bye-law as in force and such guidelines as may be frapied by the Ltd. Governor from time to time and the use of the premises shall conform to the land ese prescribed under relevant law(s)." (emphasis supplied)

¶6Appendedto the rules was the 'standardfor a nursinghome, maternity home'. Thereunderit is clearly stipulatedthat "building must complywith the municipal bye-laws". WP(C)No. 4233/93etc. Page10of35

¶7A reading of the Rules amended from time to time shows that the requirementof a nursinghome havingto conformto the municipalbuilding bye-laws has been in existence for over forty years now. The Delhi Municipal Corporation Act has been in force since 1957. For the New Delhi area, the New Delhi Municipal Committee's bye-laws have been in force duringthis period.Even earlierthe PunjabMunicipalLaws were applicable. These municipal bye-laws intended to regulate the uses of buildings in residential and non-residential areas for different purposes. The Schedule to the 1966 amendments to the Rules set out that detailed standards for a building that was to be used for running a nursing home. Position under the Master Plan for Delhi 1962

¶8As far as the Delhi DevelopmentAct 1957 ('DD Act') is concerned it preserved the status quo for .the pre-1957 buildings in terms of Section 14 thereof At no point in time after the enactment of the DDA Act, or the coming into effect of the MPD 1962 was any exemption granted to nursing homes from the applicability of either the DD Act or the MPD. As of 1966, therefore, there was no question of a building housing a nursing home not having to comply with the requirements of the MPD. Even otherwise the requirement of having to satisfy the municipal building bye-laws was in vogue since 1963 itself None of the nursing homes challenged the validity of the Rules that mandated this. They also did not question the appHcability of the municipal bye-laws to nursing homes. WP(C} No. 4233/93 etc. Page 11 of35

¶9In effect therefore what happened in 1992 was only to add the requirementofthe nursinghomeshavingto satisfythe landuse requirements if they had to be registered under the Act and Rules. The land use requirementswerenotnewin the sensethatthe MPD alreadymandatedsuch compliance.Ifanursinghome did not complywiththe MPD requirementas regardslanduse, itwouldinvitepenal actionunderthe DD Act. All thatthe •a 1992 amendment to the Rules did was to incorporate this statutorily mandatoryrequirementas an additionalconditionfor grantofregistrationto anursinghomeunderthe Act. Itwas thereforenot anewrequirement.Itwas in any event requiredto be compliedwith in terms of the DD Act. This cannot be viewed as being so dramaticallydifferent from the restrictions alreadyinplace as regardsthe use ofbuildingsfor non-residentialpurposes. The nursing homes which already conformedto building bye laws were unlikelyto be unawareofthe requirementsunder the MPD as regardsland use. Maingroundsofchallengein the1993writpetition

¶10W.P (C) No.4233 of 1993, filed on 3'"'' September1993 by the Delhi Medical Association,refers to the above amendmentsto the Rules. ,It is stated that the respondentshad not been adopting a consistentpattern in regard to registrationof nursing homes under the Act. There had been a numberofoccasionswhen registrationhas beenrefusedon a reasonwholly WP{C)No. 4233/93etc. 12 of35 % extraneous to the Act. It is stated that while in respect of one Amar Heart Medical Centre at Panchsheel Park, registration was refused on the ground that DDA had raised an objection to the use of the premises for a nursing home being in violation of the Master Plan for Delhi (MPD), similarly placedinstitutionshavebeengrantedregistrations.

¶11It is submittedthat on 26^ March 1982 the DDA had prepared draft regulationsfor establishmentofnursinghomes. Adecisionwas takenon 5^^ December 1989 by a high powered committedwhich had recommended grantofregistrationto the nursinghomes operatinginresidentialareas for a number of years. This was followed by a further draft amendmentto the rules on 4^^" November 1991. It.is stated that in view of all these steps, the petitionersexpectedthatthe authoritieswouldcome out with a coherentand clear policy which would advance the objectives of the Act. Instead the impugned amendment to the Rules in 1992 came as a surprise to the petitioners.The immediateeffect of the amendmentwas that a substantial majorityofnursinghomes stood disqualifiedfrom the beneficialprovisions of the Act since they did not conformto the land use norms under the MPD andthe Zonal DevelopmentPlan (ZDP)publishedunder the DDA Act 1957. The representationsmade by the petitionerswere to no avail. A news item had appeared on April 1993 reportingthe stand taken by the Union of India in ParHamentthat nursinghome estabhshedprior to 1®^ August 1990 couldcontinuetill 1996with paymentofthe requisitefee. WP(C)No. 4233/93etc. °f

¶12It is submitted that the insistence upon the compliance with the provisionsofthe MPD woulddefeatthe objectofthe Act andthe Rules.The impugned1992amendmentto the Rulesis also challengedas beingviolative ofArticles14 and 19(l)(g) ofthe Constitution.In effectit is submittedthat by insistingon compliancewiththe landuse norms as per the MPD, alarge numberofnursinghomes wouldbe renderedunauthorisedandbe proceeded againstfor committingapunishableoffenceunderthe DD Act. It wouldalso deprivenursinghomes ofthe benefitsconsequentialupon registrationsuch as coverage by medical insurance since the insurance companies would cover only such hospitals and nursing homes as are registeredwith local authorities.It is pointedoutthatthe groundrealitywas thatout ofthousands ofnursinghomesoperatingin Delhionly 117 wereregisteredand eventhese wouldface deregistrationintermsofthe impugnedamendmentto the Rules. ^

¶13The impugnedRuleis challengedas beingultraviresSections5and 16 •ofthe Act cine the latterdo not specifycomphancewith the MPD landuse norms as one ofthe pre-requisitesfor registration.It is pointedoutthatsmce the Act is a complete code, a norm not prescribedthereundercannot be imposed particularlywhen such norm has no nexus with the standard stipulatedin Section5(d) ofthe Act. It is submittedthat by not permitting nursing homes in residentialareas, citizens would be deprivedof timely , WP(C) No. 4233/93etc. access to medical facilities particdarly in emergency situations. It is submittedthat as long as the conditionsunder the Act are satisfied, questionwhetheranursinghomeormaternityhomewasviolatingtiieMPD land use norms was irrelevantfor the purposeofgrantofregistration.The impugned provision is stated to infringe the fundamental nght of the membersof^epetitionerDMAunderArticle19(l)(g)oftheConstiu^tion. Proceedingsin the1993writpetitionby theDMA 14 Noticewas directedto issuein^e saidwritpetitionby Courton7^ September1993.Howevereven afterayear, i.e. till IB'' September1994, none of ^e Respondentshad fled their replies.Aprayer was made on behalfofthe Petitionersthatacomprehensivesurveybe conductedofthe nursinghomesmDelhibothin the conformingas well as non-confbnning areas The CourtfoundthatRespondentNo.4DelhiDevelopmentAuteity PDA) had not been appearingfor the last severalhearings.Notice was .suedto tt to appearonthenextdatei.e. 26«-October1994. Thereafterthe Govenunent of the National Capital Territory of Delhi ('GNCTD'), RespondentNo.2, and tire DirectorateofHealtirServicesofthe GNCTD, RespondentNo.3 filedacommoncounteraffidavit.The DDAhoweverdid not file any affidavitby then. In the circumstances,this Court directedon 26-^ October1994thatRespondents2and3"shallmake surveyof all the nursing-homes mthe Union Territory in conforming areas and non-WP(C) No. 4233/93etc. conformingareasirrespectiveofthe amendedRule3whichcame into force on I''May 1992."

¶15The DDA filed its affidavitin the writpetitionon 8* December1994. The standoftheDDAwas as follows: "VI That the MasterPlan furtherprovidesthat in Health Centres or aNursingHome, there can be apart firom its Health Centre and NursingHome, onlyawatchandwardresidentup to 20 sq.manda chemistshop up to 15 sq.m. The premiseswhich is earmarked in lay out plan for as a use of residentialhouse, cannotbe permittedto be used for a nursing home, hospital, or a health care centre. In respectof residentialpremises,master , plan inter aha provides that the commercial activityshallbe allowedonly on the groundfloor to the extentof 25% or.50 sq.mwhicheveris less subjectto the provisothatsuchestablishmentis to be run by the residentsof the dwellingunit and thereafter, also provides for a restriction by excluding certain activities which are not permitted. The Master Plan flirther provides that a professionalactivity is permittedmaresidential plot on any floor subjectto the conditionthatthe residentofthe premisesshallbe permittedto use a partofhis residenceto amaximumof 25% of 50 sq.m whicheveris less for non-residentialbutj^^^^^^ WPlC) No. 4233/93etc. nuisance activitywhich is renderedfor rendering the servicesraisedfor professionalsldlls. VII. That withthe above backgroundin respectof the MasterPlan,I say thatthe DelhiBuildingBye-Laws 1953 have been enacted for regulatingthe activities under the jurisdiction of Delhi Development Authority as well as Mumcipal Corporation of Delhi. The said Bye-laws are applicableto the BuildingRegulationactivity m the UnionTerritoryofDelhiandthe same applyto the design,and constructionofthe buildingin case of buildingis erected."

16.The GNCTDfiledafurtheraffidaviton 20"January1995 in compliance withthis Court'sdirectionissuedon 26" October1994.In the said affidavit it was inter alia statedthat in responseto the advertisementissuedasking nursing homes to submit particulars in the prescribed profoima, 433 applicationshad been received fi-om umregisterednursing homes. It was stated that "majorityof the nursing homes surveyed falfil the requisite medicalstandardsas prescribedundertheDelhiNursingHomesRegistration Act 1953 and Rules ftamed thereunderexcept amended Rule 3. Exact numberwillbe informedat the time ofhearing."

¶17This Courtwas informedat the hearingon 23'"'January1995 by learned counselfor the GNCTDthatout of433 nursinghomeswhichhadresponded WP(C) No. 4233/93etc. to the advertisement issued by it only 243 were found to have fulfilled the requisite medical standards as prescribed under the Act.

¶18The petitioner, Delhi Medical Association, filed an additional affidavit on 3"^^ May 1995. Thereafterby an order dated 24^^ May 1995 while issuing Rule, this Court took on record the statement made in the affidavit of the Director, Health Services and passed a detailed interim, order, the operative portions of which read as under: "In view of the statements made in the affidavit filed by the Director, Health Services that majority of Nursing Homes surveyed fulfil the requisite medical standards as prescribed under Delhi Nursing Homes Registration Act, 1953 and Rules framed thereunder except satisfying the requirements under the amended Rule 3 we consider it appropriate and just to issue such an interim direction pending disposal of the Rule to the respondentsnotto take any actionundertheprovisionsofDelhi NursingHomesRegistrationAct, 1953 fornon compliancewith the provisionsof Rule 3 of Delhi NursingHomes Registration (Amendment)Rules 1992, providedthey fulfil all the requisite medical standards as prescribed under Delhi Nursing Homes Registration Act, 1954 and Rules framed thereunder except amended Rule 3 of the Rules."

19.This Court further explainedin the said order that it had issued the above. direction"talcinginto considerationthe factthatthe majorityof suchnursing homes were established and have been functioning from before 1.5.1992 when the provisions of amended Rule 3 have been brought in and WP(C) No. 4233/93etc. P°9e18of35 i consequently the issue of public health is involved and also in view of the fact that unless we issue such an interim direction it would cause hardship and agony to the general public undergoing treatment in those nursing homes."

¶20At the hearingon 18^*^December1996 it was clarifiedthatthe stay order passed by this Court would not come in the way of the National Human Rights Commission ('NHRC') examining the complaint pertaining to the death of a 14 year old Class X student at the private hospital.

¶21In the meanwhile the Chairman of the DDA (the Lt.Governor of GNCTD) notified the Delhi Development Authority (Permission of Residential Land and Building for Use as Nursing Homes) Regulation 2003. As per the clause VI of the DDA Regulations 2003 certain nomis were stipulatedfor permittingthe use of residentialpremisesfor runningnursing homes. The permissionwasto be grantedby DDA subjectto.the fulfillment ofthesenorms and furthersubjectto the paymentof a 'permissionfee'. This Court has been informed that till date the Municipal Corporation of Delhi ('MCD')hasnotframedany bye-lawsspecificallyfor nursinghomes.

¶22The MPD 2021 has stipulatednewmixedlanduse norms. Thesewillbe referredto shortly.The DDA also notifiedthe rates for 'permissionfee.' and that is statedto be under challengein this Court in W.P. (C) No. 17379 of WP(C) No. 4233/93etc. Page19of35 2004 {National Medical Forum v. DDA). It is stated that this Court has granted an interim stay subject to the petitioners depositing 2.5% of the permission.fee. It is pointed out that in 2007,DDA/MCDbegan demanding 'conversion charges' instead of permission fee. This was challenged in this Court by way of W.P. (C) No. 468 of 2008 {Delhi Medical Association v. MCD) and a batchofsimilarpetitionswhichare statedto be alsopending.

¶23The contention of the petitioners in W.P. (C) No. 6795 of 2007 {ApothecariesLtd. v. GNCTD) and the batch of connectedpetitionsis that Rule 3 has become redundant in view of the DDA Regulations 2003 and the MPD 2021. One other contention is that a nursing home undertaking medical terminationof pregnancy(MTP) cannot be asked to comply with the requirementsof the Nursing Homes Act as they are governedby the Medical Terminationof PregnancyAct ('MTP Act'). It is stated that the GovernmentDepartmentswere notintendingto acceptany applicationfrom thenursinghomes for issuingNo ObjectionCertificate('NOC').

¶24In one of the connectedpetitions,W.P. (C) No. 5782 of 2007, a learned SingleJudge'ofthis Courtby an orderdated 4^^ February2008 rejectedthe prayer for interim reliefholding that as per the DD Act, the Municipal CorporationofDelhiAct, 1957 and the Buildingbye-lawsmade hereunder, abuildingconstructedfor residentialpurposecannotbe putto any otheruse. Aggrievedby the refusalofinterimstay one ofthe nursinghomes, Santom Hospital, has filed LPA No. 132 of 2008 in this Court, The principal contentioninthe appealthatthe DDA has permittedthe use ofa residential WPiC)No. 4233/93etc. 20 of35 remises for running a nursing home and therefore the MCD which has admittedlynot framed any bye-lawsfor nursing-homesin particularcannot raise any objection. Importance oftheMaster Plan norms

¶25One ofthe principalissues arisingfor determinationin the presentcases is whetherthe Rules in questioncan be amendedto insistthat in order to obtain a valid registrationunder the Act the building in question has to conformto the land use norms specifiedunder.the MPD 2021(earherMPD 1962 as amendedin 1990). The law as regardsthe importanceof a Master Plan prepared under a statute for the planned developmentof an urban conglomerationis fairly well settled. The Master Plan so prepared is a statutoryinstrumentwith all attendantconsequences.

¶26In BangaloreMedicalTrust v. B.S. Muddappa,(1991) 4SCC 54, the SupremeCourtwas dealingwith an instancewhere in the schemeprepared under the BangaloreDevelopmentAuthorityAct 1976 (BDA Act) an open 1^. space in aresidentialcolonywas earmarkedfor apublicpark. The Chief Ministerwroteto the BangaloreDevelopmentAuthority(BDA) for the grant of a suitablesite to the appellantBangaloreMedicalTrust for settingup a privatehospital.The Chairman,BDA thereafterwrote to the ChiefMinister statingthat the appellant,was keen to constructa,nursinghome in the area reserved for the public park. On this letter the Chief Minster made an endorsementthat area couldbe convertedinto a civic amenitysite. This led WP(C)No. 4233/93etc. Page21 of35 to the site being allotted to the Trust for constructing a nursing home. This decision was challenged by certain public spirited citizens in the Kamataka High Court. Although a learned Single judge of that High Court rejected the writ petition, the Division Bench reversed the decision holding that the area earmarked in the Scheme for a public park could not be used for a nursing home or hospital. The decision of the Chief Minister and the consequential orders of the BDA were set aside. The further appeal by the Trust was dismissed by the Supreme Court. It explained the legal position thus (SCC, P.69): "The scheme is a statutory instrument which is administrative legislationinvolvinga great deal of generallaw making of universal application,and it is not, therefore,addressedto individualcases of persons and places.Alterationof the schememustbe for the purpose of improvementand betterdevelopmentof the city of Bangaloreand adjoining areas and for general applicationfor the benefit of the publicatlarge.Any alterationofthe schemewith aviewto conferring a benefit on a particularperson, and without regard to the general good of the pubhc at large, is not an improvementcontemplatedby the section."

¶27In the same decision it was further emphasized that a space earmarked for aparticularpurposeunderthe MasterPlan cannotbe used for any other. It was observed (SCC, p.70, 75): ...onceappropriatedor appliedor earmarkedby formationof 'open spaces' or for buildingpurposesor other developmentin accordance with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself, which is statutoryin character,is WP(C) No. 4233/93etc. Page22 of35 formally altered in the manner that the BDA as a body corporate is competent to alter. This section, of course, empowers the BDA to lease or sell or otherwisetransferany property.But thatpowerhas to be exercised consistently with the appropriation or application of land for formation of 'open spaces' or for building purposes or any other development scheme sanctioned by the government. Property reserved for open space in a duly sanctioned scheme cannot be leased or sold away unless the scheme itself is duly altered. Any unauthorised deviation from the duly sanctioned scheme by sacrificing the public interest in the preservation and protection of the environment by means of open space for parks and playgrounds and 'ventilation' will be contraiy to the legislative intent, and an abuse of the statutory power vested in the authorities "Protection of the environment, open spaces for recreation and fresh air, playgroundsfor children,promenadefor the residents,and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a qualityof life which makes the guaranteedrights a realityfor all the citizens."

¶28The decision of the Chief Minister was held to be illegal for the WP(C) No. 4233/93etc. Page23 of35 following reasons (SCC, p.74): "Public interest does not appear to have guided the minds of the persons responsible for diverting the user of the open space for allotmentto the appellant.Conversionofthe open spacereservedfor a park for the general good of the public into a site for the construction of a privately owned and managedhospital for private gains is not an alterationfor improvementof the schemeas contemplatedby Section 19, and the impugned orders in that behalf are a flagrant violation of the legislativeintent and a colourableexercise of power."

¶29In G,N. Khajuria (Dr) v. Delhi Development Authority, (1995) 5.SCC 762, the Supreme Court was dealing with a case where the land earmarked for a park under the MPD 1962 was sought to be used for a primary school. Holding the decision to be illegal, it was observed (SCC, p.766): "We, therefore, hold that the land which was allotted to Respondent2 was part of a park. We further hold that it was not open to the DDA to carve out any space meant for park for a nursery school. We are of the considered view that the allotment in favour of Respondent 2 was misuse of power, for reasons which need not be adverted. It is, therefore, a fit case, according to us, where the allotment in favour of Respondent 2 should be cancelled and we order accordingly. The fact that Respondent 2 has put up some structure stated to be permanent by ' his counsel is not relevant, as the same has been done on a plot of land allotted to it in contravention of law. As to the submission that dislocation from the present site would cause difficulty to the tiny tots, we would observe that the same has been advanced only to get sympathy from the court inasmuch as children, for whom the nursery .. school is meant, would travel to any other nearby place where such a school would be set up either by Respondent 2 or by any other body." WP(C) No. 4233/93 etc. Provisions of the MPD 2021

¶30In the MPD 2021 ChapterXV deals with mixed use regulations. Three broad types of mixed use are stated to be permissible.Among this is the 'other activity',broadlyin the nature of public and semi pubHc facilities' listedinpara 15.7.1.The saidparagraphreads as under: "Subjectto the generalconditionsgiveninpara 15.4 and additionalconditionsgiven in para 15.7.3,the following public and semi-publicactivitiesshall also be permitted in the residentialplots abuttingroads of minimumROW prescribedin 15.7.2,whetheror notthe roadis notifiedas mixed use street:

(a)Pre-primary school (including nursery/Montessori school, creche.

(b) i. Nursinghome. ii. Clinic, Dispensary, Pathology lab and Diagnostic center.

(c) Guest house (includinglodging houses) irrespective of number of rooms.

(d)Banlc

(e)Fitness Centre (including gymnasium, yoga/ meditation centre).

(f) Coaching centres/tuitioncentres other than those imparting structuredcourses leading directly to the award of a degree or diploma or conductmfgclasses such as regular school." ]NP(C)No. 4233/93etc. '

¶31It is plain therefore that a nursing home would be permitted in a residentialplotabuttingroads ofminimumrightofway (ROW).Para 15.3.2 specifies the fiirther conditions for permitting such activity in colonies falling under the differentcategories. Para 15.7.3 fiirtherstipulatesin sub-paras (iii) and (iv) as under: "iii. Nursing Homes, dispensaries, clinics and 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 inE, F&G colonies. However, the minimum plot size shall be 50 sqm for clinics, dispensaries and pathology labs running in these colonies and also in E, F and G category colonies. In Walled City, Walled city extension, villages and unauthorised-regularized colonies, conditions,of plot size and minimum ROW shall not be applicable. iv. Nursing homes operating in plots abutting Master Plan roads and Zonal Plan roads shall be permissible up to 100% of built up area and the limit on the size of the plot would not apply."

¶32There is no challenge to the MPD norms in-these petitions. In fact it is urged that since the DDA Regulations permit the use of residential premises for nursing homes and under the MPD 2021 mixed land use provisions have been incorporated the requirement under the Act and the Rules as brought about by the 1992 amendment should not be insisted, upon. Given the context in which the land use norms for all types of buildings has been specifiedin the MPD 2021, and it is conduciveto the objectof the DD Act WP(C) No. 4233/93etc. Page26 of35 whichis the planneddevelopmentofDelhi,incorporatingin the Act and the Rules a requirementof having to conform to the MPD land use norms cannotbe saidto be unreasonableor arbitrary.

¶33The argumentthat such a requirementis not germaneto the objects of the Act and the Rules and was therefore ultra vires the Act is entirely withoutmerit. The Act which deals with the registrationofnursinghomes can and shouldinsistthat the buildingin whichthe nursinghome is sought to be run conformsto the land use requirement.The lattercan possiblybe specifiedonly under the MPD. There was no questiontherefore of the Act permitting the registration of a nursing home even if it violated the MPD norm on land use. Such a stipulation cannot be said to violate the fundamentalrights under Articles 14 or 19 (1) (g). In fact far from being arbitraryorunreasonable,sucha stipulationrespectsandprotectsthe rightto environment and health of all residents of Delhi.

¶34To explainfurther,the problemsthat would arise in permittingnursing homes in residential areas far outweighthe.benefits that would ensue by providingeasy access to health care. The right to health contemplatesnot only access to health services but the .right to a healthy environment as well. The running of a nursinghome involvesthe use of and therefore disposalof highly toxic chemicals and substances.The waste generated by a hospital or nursing home is certainly of a hazardous nature, The Environment \NP{C)No. 4233/93 etc. Page 27 of35 (Protection)Act 1986setsoutthe applicablestatutoryprovisionsconcerning the disposal of.such hazardouswaste by anursing home or ahospital. Merelybecausean ActandtheRulesthereunderdo notspecificallyadvertto the disposalofhazardouswaste by such nursinghome, it would not mean thatsuchnursinghome doesnothaveto conformto the standardsset down under the EPA and the Rules made thereunder.The BiomedicalWaste (Managementand Handling)Rules 1998 have been made under the EPA. Rule 3(5) defines"biomedicalwaste" to mean any waste generateddurmg the diagnosisand treatmentofhumansor animals.This appliesto hospitals andnursinghomesas is evidentfromSchedule6to the saidRules.In effect, . it would not be open to the nursinghome to contendthat unlessthe EPA norms are specifiedin the Act, registrationof anursinghome cannotbe refused. If the Act and Rules were to be amended to stipulate that registrationcouldbe cancelledon accountofnon-compliancewiththeEPA and Rules made thereunder,such an amendmentwouldbe unconstitutional or ultra vires the Act. The positionwould be no differentas regards the nursinghomes providingMTP. They wouldhave to complywithboth Act and the MTP Act. They wouldhave to complywith any other applicable statutorynormincludingthe MPD.

¶35In other words, it would be anomalousif the authorityunder the Act grantsregistrationto anursinghometot violatesdte MPD or the EPA or any otherstatute.In anurbanagglomeration,thereareboundtobeaplethora WP(C) No. 4233/93etc. of statutorycompliancesto be fulfilledby an enterprise.The runningof a nursing iiome is not merely concerned with having qualified medical professionalsand staff,and appropriatemedicalequipmentIt requiresto be housedinabuildingwhichconformsto thebuildingbye-laws,theMPD and the dependingon the extentofits activitiesand otherstatuteslilcethe EPA, the MTP Act (where appUcable)and the Rules made Ihereunder.To avoid the delay in obtainingthe different approvals/NOCsfirom the different authorities,the Respondentscould deviseasingle window clearance.For instance,the authoritygrantingregistrationcouldprep'areacheck-listofall statutoryrequirementsnot limitedto Act andRules,Thatisamatterforthe authoritiesto consider.

¶36For all of the above reasons,the plea of the petitionersthat the 1992 amendment to the Rules is ultra vires the Act and is otherwise unconstitutionalis rejected.Consequently,the orderdated4" February2008 passed by the learned Single Judge in W.P. (C) No. 5782 of 2007 is affiimed.The LPA No. 132 of 2008 challengingthe said order is without merit. Theplea ofequities

¶37The plea ofthe petitionersis that they are amongthe largenumberof nursinghomesthathave been operatingwithoutavalidregistration.In the cases of those nursing homes who are petitionersbefore this Court, they WP{C) No. 4233/93etc. have not been proceededagainst only because the interim order of this Court.Inviewofwhathas beenheldinthisjudgment,the saidinterimorder dated24"'May 1995is to no availanylonger. It is possiblethatmanyofthe petitionerswerehopingthattheirapplicationsforregistrationwillultimately not be refirsed.They might still be able to if they folfil all toe statutory norms.Althoughtheydidnotwaitto getthe registrationbeforecommencmg the nursinghome,it is pleadedthattheyshouldnotbe permittedto contmue as theyhavebeendoingforthelastfourteenyears.It is pleadedthatin some of the cases, they should be permittedto continue till such time their apphcationsfor regularisationintermsofthenewlynotifiedmixedlanduse normsintermsoftheMFD 2021 isprocessedanddisposedof

38.ThisCourtfindsthattherearebroadlythreecategoriesofnursmghomes. Thefirstcategoryisofnursinghomesthathavenotmadeany applicationfor registrationtiU date and have no interimprotectionfirom this Court.These nursinghomeshaveoperatedwithimpunityandhavemanagedto escapethe net thus far. Hopefullythere are avery few in this category.The exact numbercan only be ascertamedby the authoritiesby conductmgafurther comprehensivesurvey. Such nursinghomes or privatehospitalsthat have beenoperatingwithoutany registration^d have not appUedfor it till date do not deserve any protectionor equitableconsideration.They shouldbe shutdown forthwith.This Courtis notpreparedto.grantany forthertmeto this categoryto now make an appUcationfor registration.This is because WPfC) No. 4233/93etc. this Court beheves that the practice of first violating the norm and thereafter seeking retrospective approval must be firmly discouraged.

¶39In M.L Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464, the SupremeCourt declinedequitablereliefto the appellantswhose illegal construction had been protected from demolition on orders of the court. It observed (SCC, p. 529): "TheHighCourthas directeddismantlingofthewholeprojectand for restoration of the park to its original condition. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where constructionis unauthorised. This dictaisnow almostborderingthe rule oflayv. Stresswas laid by the appellant and the prospectiveallotteesof he strength of interim :he shops to exercise judicialdiscretionin mouldingthe relief.Such a discretioncannot be exercised which encourages illegality or perpetuates an illegality.Unauthorisedconstruction,ifit is illegaland cannotbe compounded,has to be demolished.There is no way out. Judicial discretioncannotbe guidedbyexpediency.Coyrtsare not free from statutoryfetters. Justice is to be rendered in accordancewith law. Judges are not entitledto exercise discretionwearing the robes of judicial discretion and pass orders based solely on their personal predilectionsand peculiardispositions.Judicialdiiscretion wherever it is requiredto be exercisedhas to be in accordancewith law and set legalprinciples.As will be seen in mouldingthe reliefin the present case and allowingone ofthe blocks meant for parkingto stand we I have been guided by the obhgatory duties of|the Mahapalika to constructandmaintainparkinglots."(emphasissupplied) WP{C} No. 4233/93etc.

¶40Recentlyin M.C. Mehta v. Union of India,(2004)6 SCC 588, in the context of large-scale unauthorised constructions carried on in Delhi, contraryto the MPD, the SupremeCourtobserved(SCC,p. 614, 617): "..the land cannot be permittedto be used contraryto the stipulated user exceptby amendmentofthe masterplan afterdue observanceof the provisionsofthe Act and the Rules. Non-takingofactionby the Government amounts to indirectly permitting the unauthoriseduse which amounts to the amendment of the master plan without following due procedure.

¶51The growth ofillegalmanufacUiringactivityin residentialareas •has been withoutany check and hindrancefrom the authorities.The manner in which such large-scaleviolationshave commencedand continueleaves no manner of doubt that it was not possiblewithout the connivanceof those who are requiredto ensure compliancewith law and reasonsare obvious.Such activitiesresultin puttingon extra load on the infrastructure.The entire planning has gone totally haywire.The law-abidersare sufferers.All this .has happenedat the cost of health and decentliving of the residentsof the city violating their constitutional rights' enshrined under Article 21 of the ConstitutionofIndia. Further,it is necessaryto bear inmindthat the law-makersrepose confidencein the authoritiesthatthey will ensure implementationof the laws made by them. If the authoritiesbreach that confidenceand act in derelictionoftheirduties,thenthe pleathat the observanceoflaw will now have an adverseeffecton the industry or the workers cannot be allowed. Within the framework of law, keeping in view the norms of environment,health and safety, the Governmentand its agencies,if there was genuinewill, could have helped the industry and workers by relocatingindustriesby talcing appropriatesteps in the last about 15 years. On the other hand, it encouragedillegalactivities." _ WP(C) No. 4233/93etc. In the same vein are the observations in M.C. Mehta v. Union of India

(2006) 3 see 399.

¶41In respectofthosenursinghomes operatingwithoutany registrationand who have not made any application for that purpose till date, an unambiguousmessage must issue that unless and until a nursing home satisfies the authorities concerned that it has complied with all the requirementsnot onlyunderthe MPD butunderthe otherstatutesas well, it oughtnotto be permittedto continueoperatingas anursinghome.

¶42The secondcategoryis ofnursinghomes thathave appliedfor but have notyetbeengrantedpermissionandhavenotfiledanypetitionin this Court. The cases ofthose nursinghomes that haVe not approachedthis Court and thereforehave no interimorderin theirfavourneednot be examinedby the Court. With the declarationofthe law by thisjudgment,the authoritieswill proceedto take consequentstepsinrespectofsuchnursinghomes. Directions concerning the petitioners

¶43Thatleavesus to deal withthe thirdcategoryofnursinghomesthathave apphedwhetherfor grantofor renewalofregistrationand have approached this court and whose registrationhas not been cancelledor operationnot shut down on accountof an interimorder of this court. For such nursing WP(C) No. 4233/93etc. homes this Court thinks it appropriateto directthat some time shouldbe given to enable them to shut down their operationtill they are granted registrationin terms of the Act and the Rules and in terms of the law as explainedin thisjudgment.This Courtis inclinedto grantthemsix months from todayto completelyshutdowntheir operations.This is subjectto the conditionthat the petitionerswill, if they have not alreadydone so, apply withineightweeks firomtodayseekingapprovalin termsofthe mixedland use norms. This of course would be in additionto to applicationfor renewaloftheirregistrationunderthe Act andthe Rules.Suchapplications shall be decidedby the authoritieswithinaperiodof not less than twelve weeksthereafter.It wouldbe for the nursinghome concernedto ensurethat they satisfythe authorityunder the Act, DDA and any other statutory authority.thatall the statutoryrequirementshave been compliedwith. The court directs that the authoritiesshould allocateresourcesto ensure tot these time limits are strictly adhered to. The petitioners are however remindedthat this is only agrace period and the delay if any in the authorities taking adecision on their applicationswill not permit the petitionersto seekextensionoftheperiodgrantedto thembythisjudgment to shutdowntheiroperations.It is only aftergrantofregistrationtot such nursinghomescanbepermittedto resumetheiroperations.

¶44The extendedtime periodfor closingdown is being given so tot any indoor patient already receivingtreatmentis not unduly inconvenienced. WP(C) No. 4233/93etc. s L Furthereverynew patientadmittedto suchhospitalor nursinghomewillbe forewarnedthat it has been asked to shut down by a certaindate pending grantofregistration.Forthis purpose,eachsuchnursinghomewillputup a noticeboardprominentlyat leastthreeplacesincludingthe gate, announcing to the publicthat if not grantedregistrationit would cease to operateafter the grace periodgrantedby this Court. Simultaneouslysuch nursinghome, will also inform its staff and medical personnel of the same positionto enable them to arrange their affairs in the meanwhile.The failure by the nursinghome to do so will not create any equitiesin favour of such staff, medicalpersomielor amemberofthe pubhcintendingto utilisethe services ofsuchnursinghome orhospital.

¶45The writ petitions and LPA No. 132 of 2008 are hereby dismissed. Subjectto the aforementioneddirections,the interimordersin each.petition andthe LPA areherebyvacatedand allpendingapplicationsare dismissed. APRIL24,2009 rk WP{C) No. 4233/93etc. S. MURALIBHAR, J. CHIEF JUSTICE-

HIGH COURT OF DELHI AT NEW DELHI WP (C) No. 911 of 2008 AGRAWAL EYE INSTITUTE PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. RESPONDENTS Through:Mr. Vjvek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE DR. JUSTICE S. MURALIDHAR