Anand E.N.T. & Speech Centre v. Govt. of N.C.T. of Delhi & Ors

ORDER

24.04-2009 This petition is dismissed in terms of the judgment passed today in wP(c) No.4233l199.3. Interim order stands vacated. pending applications are disposed of in terms of the judgment. A copy of the judgment be placed on the file. . Pt)4\ .Ft / cHrEF JUSTTCE s. MURALTDHAR, J. APRTL 24,2OOg "v)' f\ 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. :\ ."i\\\\\ IN TI{E X{IGI{ COIIRT OF' DEX-HX AT NEW DEI,IXI !\rP (C) No.4233 of X993 ' Date of decision: April 24,ZO0g a'. DELHI.MEDICAL ASSOCIATION & ORS. ..... PETITIONERS Through: Adr. S.P. Kaka, Senior Adyocate with Mr.Praveen Chauhan and Mr. Anmol Sinha. Advocate versus LINION OF INDIA & ORS. ... RESPONDENTS Through: Vti. S.O. Salwan, Advocate for GNCTD Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. : , r, LPA. No. 132 of 2008 \r SANTOM HOSpITAL ..... AppELLAI'TT Through: Ms. Radhika Chandrashekhar, Advocate . versus GOVT. OF NCT OF DELHI & ORS. ..... NBSPONDENTS Through: lVIr. S.D. Salwan Advocate for GNCTD. IW. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Zubeda Begum, Advocate /" WP (C) No. 5782 of 2007 \a SANTOM HOSPITAL ..... PETITIONER versus Through: Ms. Radhika Chandrasheklrar, Advocate GOVT. OFNCT OF DELHI & ORS. . RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services, t\[r. S.D..Salwan, Advocate for GNCTD WP (C) No. 6788 of 2007 KISHM DEVI CTIARTIABLE CLIMC & ORS . PETITIONERS Through: Ms. Radhika Chandrashekhar, Advocate VEISUS WP(c) No.4233/93 etc. I i \1/ o GOVT. OF NCT OF DELHI & ORS. SFIANTI CLINIC VETSUS GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Xdr. Vivek Kumar Tandon with Mr. DaiyanHussain, Advocate for Directorate of Health Services. Ms. Zubeda Begum, Advocate ; !\rP (c) No. 6795 ot ztool APOTI{ECARIES LIMITED ..... PETITIONER versus Through: Ms. Radhilca Chandrasheklrar, Advocate 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 lYP (C) No. 7290 of 2007 INDIAN HOSPITAL Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. lYP (C) No. 6789. of 2007 rhrough : Ms. Radhika chandr";t"tffJTl?Y"* ..... 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 bf Health Service's.

(C) No. 82s8 of 2007 LIFE LINE MEDICAL CENTRE O ""' PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus WP(c) No.4233/93 etc. Pdge 2 of.35 v: J: 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 VETSUS GOVT. OF NCT OF DELHI & ORS. , , ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with VIr. Duryan Hussain,'Advocate for Directorate of Health Services, Ms. Purbali Bora, proxy counsel for Ms. Aruna Tiku, Advocate lYP (C) No. 8833 of 2007. DR. BALA DEVI'S IIEALTFIY FAMILY AND ANR .... 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. Radhika Chandrashekhar, Advocate VETSUS Govr' oF NCr oF DELHI*tTfu. vivekKumar r;fft;?ff*tt Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Sonia Sharma, Advocate for GNCTD. WP (C) No. 8908 of 2007 PETITIONER ' J M q s' HOSPITAL ough: Ms. Radhika chandrashekhar, Advocate " WP(c) No. 42g3/gg etc. . versus GOVT. OF NCT OF DELHI & ORS. ' Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Sonia Shar:na, Advocate for GNCTD. WP (C) No. 9384 of 2007 Dr. S.P. MAHESIIWARI Through: Mr. S. Chaturvedi, Advocate VETSUS GOVT. OF NCT OF DELHI & ORS. 1 ..... RESPONDENTS Through: Mr. Viveik Kumar Tandon with hdr. Daryan Hussain, Advocate for Directorate of Health Services. WP (C) No. 524 of 2008 AAKASH EYE & GENERAL HOSPIAL ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate IV\ \\\ RESPONDENTS versus GOVT. OF NCT OF DELHI & ORS. lVP (C) No. 909 of 2008 WELCOME HEALTH CARE CENTRE AND HOSPITAL versus GOVT. OF NCT OF DELHI & ORS. lYP (C) No. 9L0 of 2008 Through: Mr. Vivek Kumar Tandon \ivith Mr. DaiywtHussain, Advocate for Directorate of Health Services. ..... PETITIONER ..... RESPONDENTS Pdge 4 of 35 ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate :. RESPONDENTS Through: Mr. Vivek Kumar Tandon with Vk. DaiyiHussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. WP(c) No.4233/es etc. (p i v ANAND MAYA HOSPITAL ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate VETSUS GOVT. OF NCT OF DJLHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with I\&. Daiyan Hussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD' \YP (C) No. 911 of 2008 AGRAWAL EYE INSTITUTE .n _ Jl :1_-rlL^_s-^ 1 i , .." PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus Govr oFNCr oF DEl#ffffu' vivekKumart;fft*fl*ENrs m. Dalyan Hussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani; Advocate for GNCTD' lYP (C) No. 912 of 2008 I{ANDA STONE CLIMC ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate t GOVT. versus OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Vr. O-iyan Hussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GI'{CTD' IVP (C) I.[o.915 of 2008 SHARMA MEDICAL CENTRE ..... PETITIONER Through: Ms. Radhika Chandrasheklrar, Advocate versus GOVT. OF NCT OF DELHI & ORS. WP(c) No.4233/93 etc. ..... RESPONDENTS ' Pdge 5 of35 I \b \ Through: Mr. Vivek Kumar Tandon with VIr. Daryan Hussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. r Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Ms.Shit<ha Palsule, proxy counsel for Mr. Saleem Ahmed, Advocate for R-2 WP (C) No. 3214 of 2008 A}TAND ENT & SPEECH CENTRE ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate ' versus GOVT. OF NCT OF DELHI & ORS. Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Mr. Virendra Singh, Advocate c.M. PArEL Hos#iff) No' 32rs or2oo' Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mi. Vivek Kumar Tandon with Adr. Daiyan Hussain, Advocate for Directorate of Health Services, Mr. Virendra Singh, Advocate WP (C) No. 10X8 of 2008 K.K. SURGICAL AND MATERNITY CENTRE WP(c) No.4233/93 etc. ..... PETITIONER /, ..... RESPONDENTS ..... PETITIONER Pdge 6 of 35 A}TD $

(C) No. 3216 of 2008 GANDHI NURSING HOME PETITIONER Through: Ms. Radhika Chandrashekfiar, Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Adr. Daryan . Hussain, Advocate for Directorate of Health Services, Mr. Virendra Singh, Advocate CORAM: IION'BLE TI{E CETF'F JUSTICE IION'BI.E DR. JUSTICE S. MURAI.IDIIAR

1.

¶2aJ. Whether Reporters of local papers may be 'l allowed to see the judgment? I Yzl To be referred to the ReporLer or not? I Whether the judgment should bereported ) in Digest? .t't^ J{ID GMENT

24.04.2009 S. MTIRALNDHAR. 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 7992 is ultra vires the Delhi Nursing Homes Registration Act 1953 ('Act') and is also arbitrary and discriminatory and therefore violative of Articles i4 and 19 (1)

(g) of the Constitution of India. The. other ptayer in the writ petition is for a. WP(c) No.4233/93 etc. Pdge 7 of 35 \g 4L ! direction to the Respondents not to give effect to the said Rule 3 and to register al1 nursing homes which are eligible for registration urder the Act without insisting on the fulfillment of the conditions prescribed under the irnpugned Rule 3. t.2It was submitted at the outset by counsel for the petitioners that with the changes brought about by the Master Plan for'Delhi (l\4PD) 202l,and the introduction of the mixed land use norns, 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 nonns. This ' Court is not inclined to accept this plea since the principal questions conceming the Act are bound to recur notwithstanding the new MPD norms. The petitioners have been protected tori. 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 Frovisions of the Act and the progressive changes to the Rales

¶2The Delhi Nursing Homes Registration Act, 1953 ('A:t') was enacted to provide for the registration and inspection of nursing homes in the State of Delhi. Under Section z(iv) of the Act, a nursing home has been defined thus: WP(c) No.4233/93 etc. Poge 8 of 35 J I ft '"(iv) Nursing Home means arLy premises used pr . intended to be used for the reception of persons suffering from any siclcress injury or infirmity and the providing of treatment and nursing for them and includes a mbternity home, and the expression 'cany on nursing'home' means to receive persons in a nursing home for,'any of the aforesaid purposes and to provide treatnent or nursing for them."

¶3Section'3 prohibits the running of a nursing home without registration. The said provision reads as under: "3. Prohibition to carry on nursing home without registration - No person shall carry on a nursing home unless he has been duly registered in respect of such nursing home and the regisd'ation in respect has not been cancelled under section 7. Provided that nothing in. this section shall ]Pnlv in the , case of a nursing home which is in existence at the date ' of the qommencement of this Act, for a period of three months from such date or if an application for registration is made within that period in accordance with the provisions of section 4 until such application is . finallY disPosed of."

¶4Under.Section 7, fhe supervising authority may at any time cancel the registration in respect of a nursing home on the same ground which would entitled the supervising authority to refuse, an application for registration of WP(c) No.4233/93 etc. if any person is convicted. under the Act or of an offence in respect of nursing home. 5 Th9 Delhi Nursing Homes Registration Rules Ig53 ('Rules') sets out the procedure for,applying for the registration. The Rules were further amended' in 1966. Therein a schedule. was added with reference to Rule 14. The Schedule sets out the requirement of the nursing homes including th: buildings, water.supply, health, clothing, sanitary requirements of staff and other equipments. Importantly, as far as buildings qe concerned, clause (1)

(bxi) stipulates that "The building used for the nursing horhe shall comply with the relevant municipal bye 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 Nwsing Homes comply with ttre relevant Municipal bye-law as in forie and such guidetines as may be framed by the Ltd. Governor from time to time and the use of the premises shatrl conform to thu larid use prescribed under relevant law(s)." (emphasis supplied)

¶6Appended to the rules was the 'standard for a nursing home, maternity home'. Thereunder it is clearly stipulated that "building must comply with the municipal bYeJaws". ndse to ol sir 1f thai t-WP(c) No.4233/93 etc. ,{

¶7A reading of the Rules amended from time to time shows that the requirement of a nursing home having to conform to the municipal building bye-laws has been in existence for over forty years now. The Delhi Municipal Corporation Act has been in force since 7957. For the New Delhi area, the New Delhi Municipal Committee's bye-laws have been in force {uring this period. Even earlier the Punjab Municipal Laws were applicable. These municipal bye-laws intended to regulate the uses of buildings in residential and non-residential a"reas 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 ander the Master Planfor'Delhi 1962

¶8As far as the Delhi Developpent Act t957 ('DD Act') is concerned it preserved the status quo for the pre-1957 buildings in terms of Sectio n 14 thereof. At n9 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 noJ having to comply with the requirements of the MPD. Even otherwise the requirement of having to satisfy thb 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 applicabilrty of the municipal bye-laws to nursing homes. WP(c) No.4233/93 etc. q/ v

¶9In effect therefore what happened in L992 was only to add the requirement bf the nursing homes having to satisff the land use requirements if they had to be registered under the Act and Rules. The land use requirements were not new in the sense that the MPD already mandated.such compliance. If a nursing home did not comply with the MPD requirement as regards land use, it wouid invile penal action under the DD Act. All that the IggZ amendment to the Rules did was to incorporate this statutorily .i ,, mandatory requirement as an additional condition for grarrfi of registration to a nursing home under the Act. It was therefore not a nbw requirement. It was . in any event required to be complied with in terms of the DD Act. This carurot be viewed as being so drarnatically different froT the restrictions already in place as regards the use of buildings for non-residential purposes. The nursing homes which already conformed to building bye laws were I r.r 1 t - 1- ^ ^f +L^ -^^,,:-^*^-+^ "-l^* +L^ l\fDT-\ oo ?lftorr ' unlikely to be unaware of the requiremerits under the MPD as regards land )' use. Main groands of challenge in the 1993 writpetition

¶10W.P (C) No.aZT, of 1993, filed on 31d September iggZ by the Delhi Medical Association, refers to.the above amendments to the Rules. It ls stated that the respondents had not been adopting a consistent pattern in regard to registration of nursing homes under the Act. There had been a number of occasions when registration has been refused on"a reason wholly wP(c) No.42ss/ss etc. ,ti/ -v extaneous to the Act. It is stated that while in respect of one Amar Heart Medical Centre at Panchsheel Park, regisfuation 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 C1\4PD), similarly placed institutions have been granted registrations.

¶11It is submiffed that on26h March 7982 the DDA had prepared draft regulations for establishment of nursing homes. A decision was taken on 5ft December 1989 by u Tgh po*ered committed which had reiommended grarfiof registration to the nursing homes operating in residential areas for a number of .years. This was followed by a firther draft amendment to the , rules on 4'h Novembb r L99L It is stated that in view of all these steps, the petitioners expected that the authorities would come out with a coherent and clear policy which would bdvance the objectives of the Act. Instead the impugned. amendment to the Rules in L992 came as a surprise to the petitioners. The immediate effect of the amendment was that a substantial majority of nursing homes stood disquatified from the beneficial provisions of the Act since they did not conform to the land use nonns under the MPD and the ZonalDevelopment Plan QDP) published under the DDA Act L957. The representations made by the petitioners were to no avat1^ A news item had appeared on 1't April 1993 reporting the stand taken by the Union of India in parliament that nursing home established prior to 1" August 1990 could continue till1996 with payment of the requisite fee. WP(c) No.4233/es etc. ' Page 13 of35 IIt' ?) LZ. It is submitted that the insistence upon the compliance. with the provisions of the MPD would defeat the object of the Act and the Rules. The impugned lgg2amendmentto the Rules is also challenged as being violative of Arricles 14 and 19(1Xg) oith" Constitution. In effect it is submitted that by insisting on compliance with the land use nonns as per the MPD, alatge number of nursing homes would be rendered unauthorised and be proceeded against for committing a punishable offence under the DD Act. It would.also deprive nursing homes of the benefits consequential upon registration such aS coverage. by medical insurance since the insurance.companie' *o"ld cover oniy such hospitals and nursing homes as ale registered with local authorities. It is pointed out that the ground reality was that out of thousands of nursing homes operating in Delhi only 117 were registered and even these would face deregistration in terms of the impugned amendment to the Rules'

¶13The impugned Rule is challenged as being ultr\ vires Sections 5 and 16. of the Act cine the latter do not specify compliance with the MPD land use norms as one of the pre-requisites for registration. It is pointed out that since the Act is a complete code, a norm not prescribed thereunder ca6ot be imposed particularly when such nonn has no nexus with the standard stipulated in section 5(d) of the Act. It is submitted that by not permitting nursing homes in residential areas, citizens would be deprived of timely WP(C) No.42ss/93 etc' \/t l.i I access to medical facilities particularly in emergency situations' It is submitted that as long as the conditions under the Act are satisfied' the questionwhetheranursinghomeormaternityhome.wasviolating*IeMPD Iand use norms was irrelevant f9r the purpose of grant of registration' The impugnedprovisionisstatedtoinfringethefundamentalrightofthe members of the petitioner DMA under Article tg(lXg) of the constitution' Proceeclings in,the 1993 writ petitiQn by the DMA

¶14Notice was directed to issue in the said writ petition by this court on 7tr Septembe t |993. However even aftet a !9at,i.e. till 13tr Septemuel |994, none of the Respondents had frred their repries. A prayer was made on behalf of the petitioners that.a comprehensive survey be conducted of th'b nursing homes in Delhi both in the conforming as welr as non-conforming, afeas.TheCourtfoundthatResponderrtNo.4DelhiDevelopmentAuthority

(DDA)hadnotbeenappearingfor.thelastseveral.hearin*'_.**'.ewas issuedtoittoappea]onthenextdatel..e.26hootobertgg4.Thereafterthe Government of the National Cryital Territory of Delhi ('GNCTD')' RespondentNo.2,andtheDirectoratebfHealthServicesoftheGNCTD, Respondent No.3 frled a colnmon countgr affidavit' The DDA however did not file any affidavit by then. In the circumstances, this court directed on 26,h octo ber t994that Respondents z *'d3 "shall make survey of all the nursinghomesintheUnionTenitoryinconformingareasandnon-WP(c) No.4233/93 etc' ?\, I* conforming areas irrespective of the amended Rule 3 which came into force on l't MaY 1992." ;

¶15The DDA filed its affidavit in the writ petition on 8ft Decembtet L994' The stand of the DDA was as follows: "VI That the Master Plan further provides that in Health Centres or a Nursing Home' there can be apart from its Health Centre and Nursing Home' only a watch and ward resident up to 20 sq'm and a chemist shop up to 15 sq'm' The premises which is earmarked in lay out plan for as a use of residential house, cannot be permitted to be used for a nursing home, hospital' or a health care centre. In respect of residential premises' master plan inter a\ta provides that 'the commercial activity shall be allowed only on the ground floor to the extent of 25% or.50 sq.m whichever is less ' lroviso that such establishment is to subject to the Provrso LrrllL Duv' be run by the residents of the dwelling unit and thereafter, als'o provides for ? restriction by excluding certain activities which are not permitted' The Master Plan firther provides that a professional activrty is permitted in a residential plot on any floor subject to the condition that the resident of the premises shall be permitted to use a part of his residence to a maximum of 25o/o of 50 sq.m whichever is less for non-residential O\"ll r, , r, wP(c) No.4233/93 etc' ^ d nuisance activity which is rendered for rendering the services raised for professional skills' VII. That with the above background in respect of the Master Plan, I say that the Delhi Building Bye-Laws Lg53 have been endcted for regulating the activities under the jurisdiction of Delhi Development Authority as well as Municipal Corporation of Delhi. The said Bye-Iaws are applicable to the Building Regulation activity in the Union Territory of Delhi and the same apply to the design and construction of the building in case of building is erected'"

¶16The GNCTD frled a further affidavit on 20m January t995 in compliance with this court,s direction issued onl6th.october tggl.In the said affidavit it was inter alia stated that in response to the advertisement issued asking nursing homes to submit particulars in the ' prescribed proforma ' applications had begn received from unregistered nursing homes' It was stated that "majorlty of the nursing homes surveyed fulfil the requisite medicar standards as prescribed under the Delhi Nursing Homes Registration Act lg53 and Rules framed thereunder except amended Rule.3' Exact numberwillbeinformedatthetimeofhearing'"

¶17This Court was infonhed at the hearin g on23'd January 1995 by learned counsel for the GNCTD that out of 433 nursing homes which had responded' I): ! wP(c) No.4233/93 etc' / to the advertisement issued by it only 243 requisite medical standards as prescribed under 1 8. The petition'er, Delhi Medical'Association, on 3'd May 1995. Thereafterby an order dated Rule, this Court took on record the statement Director, Health Services and passed a detail portions of which read as under: "In view of the statements made rn Director, Health Services that maj surveyed fulfil the requisite medical under Delhi Nwsing Homes Registrati framed thereunder except satisffing the amended Rule 3 we consider it such an interim direction pending respondents not to take anY action Nursing Homes Regi'stration Act, 1953 the provisions of Rule 3 of Delhi (Amendment) Rules 1992, Provided medicai standards as prescribed Regi'stration Act, L954 and Rules amended Rule 3 of the Rules."

¶19This Courf further explained in the said o direction "taT<tng into consideration the fact homes .were'established and have been when the provisions of amended Rule WP(c) No.4233/93 etc. I I tu ?5 found to have tulfilled the Act. filed an additional affidavit * Muy Lg95 while issuing in the affidavit of the interim order, the operative affidavit filed by the of Nursing Homes as prescribed Act, 1953 and Rules irements under the iate and just to issue of the Rule to the the provisions of Delhi non compliance with Homes Registration fulfil all the requisite Delhi Nursing Homes thereunder except that it had issued the above. the majority of such nursing oning from before L5.L992 brought in and Page 78 ol 35 have been 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 treatunent in those nursing homes."

¶20Atthe hearing on 18ft December Lgg6 it was clarified that the 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 t4 year old Class X student at the private hospital. 2L. In the meanwhile the Chairman of the DDA (the Lt.Governor of GNCTD) notified the Delhi Development Authority (Permi.ssion of Residenti alLand and Building for lJse as Nursing Homes) Regulation}}}3. t As per the clause VI of the DDA Regrllations 2003 certain norrns were n 1' stipulated for pennitting the use of residential premises for running nursing homes. The permission was to be granted by DDA subject to the fulfilIment of these norms and further subject to the payment of a 'permission fee'. This . Court has been informed that till date the Municipal'Corporation of Delhi ('MCD') has not framed any bye-laws specifically for nursing homes.

¶22TheMPD 202lhas stipulated new mixed land use nonns. These will be referred to shortly. Thp DDA also notified the rates for 'permission fee' and that is stated to be under challenge ih this Court in W.P. (C) No. 17379 of WP(C) No.4233/93 etc, ' Page 79 of35 'yo I I(r 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.DDAA4CD began demanding 'conversion charges' instead of permission fee. This was challenged in this Court by way of W.P. (C) No. 468 of 2008 (De.Ihi Medical Association v. MCD) and abatch of similar petitions which are stated to be also pending.

¶23The contention of the petitioners in W.P. (C) No. 6795 of ZnOl (Apothecaries Ltd. v. GNCTD) and the batch of connected petitions is that Rule 3 has become redundant in view of the DDA Regulations 2003 and the MPD 202L One other contention is that a.nursing home undertaking medical termination of pregnancy O4TP) carurot be asked to comply with the requirements of the Nursing Homes Act as they are govegned by the Medical Termination of Pregnancy Act ('MTP Act'). It is stated that the Government DeparEnents were not intending to accept any application from the nursing homes for issuing No Objection Certificate ('NOC'). o. 5782 of 200i1,a learned

24.In one of the ionnected petitions, W.P. (C) N Single Judge of this Court by * order dated 4ft February ZnOt rejected the prayer for interim relief holding that as per the DD Act, the Municipal Corporation of Delhi Act, 1957 and the Building bye-laws made hereunder, a building constructed for residential purpose cannot be put t9 *y other use. Aggrieved by the refusal of interim stay one of the nursing homes, Santom Hospital, has filed LPA No. 132 of2008 in this court, The principal contention in the appealthat the DDA has permitted the use of a residential wP(c) No.4233/93 etc. I r'* l \ %\ ,/ remises for runni ng a nursing home and therefore the MCD which has admittedly not framed any bye-laws for nursing'homes in parlicular cannot raise any objection. Importance of the Master PIan norms

¶25One of the principal issues arising for determination in the present cases is whether the Rules in question can be amended to insist that in order to obtain a valid registration under the Act the.buildiog in question has to conform to the land.use norms specified under the MPD 2027(eatlier MPD tg6y as amended in 1990). The law as regards the importance of a Master Plan prepared under a statute for-the planned development 9f an urban conglomeration fs fairly well settled. The Master Plan so prepaxed is a statutory instrument with all attendant consequences.

26.In Bangalore Meclicat Trust v. 8.,S. Muddappa, (1991) 4 SCC 54, the Supreme court was dealing with an instance where in the scheme prepared under the Bangalore Development Authority Act 1976 (BDA Act) an open space in a residential colony was earmarked fo1 a public pafk' The Chief Minister wrote to the Bangaloie Development Authority (BDA) for the grarfi of a suitable site to.the appellant Bangalore Medical Trust for setting up a private hospital. The Chainnan, BDA thereafter wrote to the Chlef Minister stating that the appellant. was keen to construct a. nursing home in the area reserved for the public park. on this letLer the chibf Minster made an endorsement that area could be converted into a civic amenity site. This led I WP(c) No.4233/93 etc. Page 27 bf 35 ,{ II.l ; to the site being allotted to the Tru9t for constructing a nursing home. This decision was challenged by certain public spirited citizens in the Karnataka 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 fo1 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.6e): "The scheme is 'a statutory instrument which is administrative legislation involving a great deal of general law making of universal , application, and it is not, therefore, addressed to individual cases of persons and places. Alteration of the scheme must be for the purpose of improvement and betLer development of the city of Bangalore and adjoining areas and for general application fqr the benefit of the public atlarge. Any alteration of the scheme with a'view to conferring a benefit on a particular person, and without regard to the general good of the publi c at large, is not an improvement contemplated by the section."

27.Inthe same decision it was further emphasized that a space earmarked for a particular purpose under the Master Plan cannot be used for any oth.er. It was observed (SCC, P.70'75): ,,....once appropriated or applied or earmarked by formation of 'open spaces,.or for building purposes or other development in accordance with a duly sanctioned scheme should not be used for any other purpose unless the scheme itself, which is statutory in character, is WP(c) No.4233/93 etc. '0u ?l formally altered in the manner that the BDA as a body corpoiate.is competent to alter. This section, of course, empowers the BDA to lease or sell or otherwise transfer any properly. But that power has 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 gcivernment. 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 pubiic interest in the preservation and protection of the environment by means of open space for parks and playgrounds and 'ventilation' will be contrary to the legislative intent, and an abuse of the statutory power vested in the authorities..... "Prbtection of the environment, open spaces for recreation and fresh aft, playgrounds for, children, promenade for the residents, and other conveniences or amenities'are matters of greatpublic 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 contary to the legislative intent and inconsistent with the statutbry 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 qualrty of life which makes the guaranteed rights a reality for all the citizens."

¶28The decision of the Chief Minister was held to be illegal for the WP(c) No.4233/93 etc, j t. ) / 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 o.pen space for allotment to the appellant. Conversion of the open ipace reserved for a park for the general good of the public into a site for the construction of a privately owned and managed hospital for private gains is not an alteration for improvement of the scheme as contemplated by Section. 19, and the impugled orders in that behalf are a flagtarfi violation of the legislative intent and a colourable exercise of power."

¶29In G.N. Khaiuria Q0 ,: Delhi Developmen.t Authority, (1995) 5 SCC 762, the Supreme Court was dealing with a case where the land earmarked for a park under the MPD 1g62was sought to be used for a primary schocil. Holding the deoision to be illegal, it was observed (SCC, p.766)z "'We, therefore, hold that the land which was allotted to Respondent 2 was part of a park. We further hold th{ 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, d ft case, according to us, where the allotment in favour of Respondent 2 should be cancelled and we order accordingly. The fact that Respondent 2has put up some structure stated to be permanent by hiq 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 ditridulty 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 orby any other body." wP(c) No.4233/93 etc. Pdge 24 of 35 ,-5 / Provisions of the MPD 202L

¶30In the MPD 202I Chapter XV deals with mixed use regulations. Three t broad types of mixed use are stated to be permissible. Among this is the I 'other activity' broadly in the nature of 'public and semi public facilities' tisted inparul5.7.L The said paragraph reads as under: ..Subject to the general conditions given in para L5.4 and additional conditions given tnpara 15.7.3, the following public and semi-public activities shall also be permitted in the residential plots abutting roads of minimum Row I prescribe d n 15.7 .2, whether or not the road is notified as mixed use street: :

(a)Pre-primary school (including' ru]rseryavlontessori school, crdche'

(b) i. Nursing home. ii' Clinic, Dispensary, Pathology lab and Ii. I iagnostic center'

(c) Guest house (including todging houses) irrespective of number of rooms.

(d) Bank

(e) Fitness Centre (inctuding gymnasium , yoga/ meditation cente).

(f) coaching centres/tuition centres other than those imparting structured courses leading directly to the alard of a degree.or diploma or conductinp classes ' such as regular school." I WP(c) No.4233/93 etc. A

¶31It is plain therefore'that anursing home would be permitted in a residential plot abutting roads of minimum right of way (ROW). pa:a 15.3.2 specifies the further conditions for permitring such ae,tivily in colonies falling under the different categories. Para 75.7.3 firrther stipulates in 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 CeD' colonies and 9 m ROW inE, F&G colonies. ' I However, the minimum plbt size shall be 50 bqm for clinics, dispensaries and pathology labs running in these colonies and also in E, F and G category colonies. In Walled City, Walled cifr extension, villages and unauthorised-regul arized 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 I00Yo of built up area and the limit on the size of the plot would not apply."

¶32There is no challenge to the MPD nonns in these petitions. In fact it is urged that since the DDA Regulations pennit the use of residential premises for nursing homes and under the MPD 202L mixed land usb provisions have been incorporated the requirement under the Act and the Rules as brought about by ttre lgg2 amendment should not be insisted upon. Given the context in which the land use norms for all types of buildings has been . specified in the MPD 202I,and it'is conducive to the object of the DD Act WP(C) No. 4233/93 etc. : I II I I which is the pla:med development of Delhi, incorporating'in the Act and the Rules a requirement of having to conform to the MPD land use norms cannot be said to be unreasonable or arbitrary.

¶33The argument that such a requirement is not germane to the objects of the Act and the Rules and was therefore ultra vires the Act is entirely without merit. The Act which deals with the registration of nursing homes can and should insist that the building in whicli the nuising home is sought. to be run conforms to the land use requirement. The latter can possibly be specified only under the MPD. There was no question therefore of the Act permitting the registration of a nursing home even if it violated the MPD nonn on land use. Such a stipulation cannot be said to violate the fundamental rights under Articles 14 or 19 (1) (g). In fact far from being arbitrary or unreasonable, such a stipulation respects and protects the right to environment and health of all residents of Delhi.

¶34To explain further, the problems that would arise in permitting nursing ' homes in residential areas far outweigh the benefits that would en'sue by providing easy access to health care. The right to health contemplates not only access to health services but the.right 1 a healthy environment as well. The running of a nursing home involves the use of and therefore disposal of highly toxic chemicals and substances. The waste generated by a hospital or nursing home is certainly of a hazndous nature. The Environment iI WP(C) No.4233/93 etc. ^ i L 'i @rotection) Act 1986 sets out the applicable statutory provisions concerning the disposal of.such hazardous waste' by a nursing home or a hospital' Merely because an Act and the Rules thereunder do not specifical$ advert to the disposal of hazardous waste by such nursing home' it would not mean that such nursing home does not have to conform to the standards set down under the EPA and the Rules made thereunder' The Biomedical Waste (ManagementandHandling)Ruleslgg8havebeenmadeundertheEPA. Rulq 3(5) defines "biomedical waste" to.mean any waste generated during the diagnosis and treatment of humans or animals' This applies to hospitals and nursing homes as is evident from Schedule 6 to the said Rules' In effect' it would not be open to the nursing home to contend that unless the EPA norms are specified in th6 Act, regishation of a nursing home cannot 6e refused. If the Act and Rules were to be a:nended to stipulate that registration could be cancelled on account of non-compliance with the EPA and Rules made thereunder, such an amendment would be unconstitutional or ultra vires the Act. The position would be no different as regards the nursing homes providing MTP. They would.have to comply with both Act and the MTp Act. They would have to comply with any other applicable statutorY norm including the MPD'

¶35In other words, it would be anomalous if the authority under the Act :-^ L i the MPD or the EPA or grants registration to a nursing home that violat any other statute. In an urban agglomeration, there are bound to be a plethora WP(c) No.4233/93 etc' Page 28 oI 35 -f of statutory compliances to be fulfrlled by an enterprise' The running of a nursing home is not merely concerned with having qualified medical professionals and staff,and appropriate medical equipment' It requires to be housed iri a building which conforms to the building bye-1aws, the MPD an{ the depending on the extent of its activities and'other statutes lil<e the EPA' . the MTP Act (where applicable) and the Rules made thereunder' To avoid the delay in obtaining the different approvalsa{ocs from the differbnt authorities, the Respondents could devise a single vfindow clearance' For iristance, the authorrty granting registration could prep'are a checklist of all statutory requirements. not limited to Act and Rules' That is a matter for the authorities to consider'

¶36For all of the above reasons, the plea of the petitioners that +he t992 amendment to the Rules is ultra vires the Act and 'is otherwise unconstitutional is rejected. consequently, the order dated 4ft February 2008 passedbythelearnedSingleJudgeinw.P.(C)No.5782of2007is affirmed. The LPA No. 132 of 2008 challenging the said order is without merit. Thti plea of equities

¶37The Plea of the Petitioners nursing homes that have been cases of those nursing homes WP(c) ,No.4233/93 etc' is that they are among the large number of operating without a valid registation' In the who are petitioners before this Court' they N t have not been proceeded against only because the interim order of this Court. In view of what has been held in this judgment, tlre said interim order dated Z4th May t9g5 is tci no avail any longer' It is possible that many of the petitioners were hopirg that their applications for registration wilr ultimately not be refused. They might still be able to if they fulfil all the statutory nofins. Although they did not wait to get the registration before commencing the nursing home, it is pleaded that they should not be permitted to continue as they have been doing for the last fourteen yeaxs' It is pleaded that in some of the cases, they should be permitted to continue till such time their applications for regularisation in terms of the newly notified mixed land use normsintermsoftheMPDzoztisprocessedanddisposedof.

¶38This courl finds that there are broadly'thr"e categories of nursing homes' The first categoryis of nursing homes thathave not made any application for registration till date and have no interim protection from this court' These nursing homes have operated with impunity and have managed to escape the net thus far. Hopefully there are avery few in this category' The exact number can onry be ascertained by the authorities by conducting a further comprehensive survey. Srich nursing homes or private hospitals that have been operating without any registration and have not,appl.ied for it ti11 date do not deserve any protection or equitable consideration' They should be shut down forthwith. This Court is not prepared to grant any further time to this category ro now m'ake an application for registratiol. This is because Ii ( WP(c) No.4233/93 etc' I A/ \r this Court believes that the practice of first violating the norm and thbreafter seeking retrospective approval must be finnly discouraged.

¶39InM.I. Builders (P) Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464' the Supreme Court declined equitable relief to the appellants whose illegal construction had been protected from demolition on the strength of interim orders of the court. It observed.(Scc, p.529)z ldThe High Court has directed dismantling of the whole project and for estoration 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 construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. ,trudicial discretion cannot be guided by expediency. Courts are not free from statutory . fetters. Justice is to be rendered in accordance with Iaw. ' Judges-are not entitled to exercise discretion wearing the robes of judicial discretion and pass orders based solely on their. personal predilections and peculiar dispositions. Judicial discretion wherever it is required to be exercised has to be in accordance with law and set legalprinciples. As will be seen in moulding the relief in the present case and allowing one of the blocks rneant for parking to stand we have been guided by the obligatory duties of the Mahapalika ' to construct and maintain parking lots." (emphasis supplied) WP(c) No.42sg/s3 etc. (v \/

¶40Recently in M.C. Mehta v. (Inion of trntlia,(2004) 6 SCC 588, in the context of large-scale unauthorised constructions carried on in Delhi contrary to the MPD, the Supreme Court observed (SCC, F.6t4,677), "..the land cannot bd permitted to be used contrary to the stipulated user except by a:nendment of the master plan after due observance of the provisions of the Act and the Rules. Non-taking of action by the Government ambunts to indirectly permitting ttre unauthorised use which amounts to the amendment of the master plan without following due procedwe.

¶51The .growth of illegal manufacturing activity in .residential areas .has been without any check and hindrance from the authorities. The manner in which such large-scale violations have commenced and continue leaves no manner of dpubt that it was not possible without the connivance of those who are required to ensure compliance with law and reasons are obvious. Such activities result in putting on extra load on the infrastructure. The entire planning has gone totally haywire. The law-abiders are sufferers. A11 this ,has happened at the cost of health and decent living of the residents of the city violating their constitutional rights' .enshrined under Article 2l of the. Constitution of India. Further, it is necessary to bear in mind that the law-makers repose confi.dence in the authoritjes that they will ensure implementation of the laws made by them. If the authorities breach that confidence and act in dereliction of their duties, then the plea that the observance of law will now have an adverse effect on the industry or the workers cannot be allowed. 'Within the framework of 1aw, keeping in view the norms of environment, health and safety, the Govemment and its agencies, if there was genuine will, could have helped the industry and workers by relocating indus{ries by taking appropriate steps in the last about 15 years. on the other hand, it encouraged illegal activities. " WP(c) No.4233/93 etc.' I ( I $ ./ t / In the same vein are the observations n M.C. Mehta v. Union of India

(2006) s scc sss. 4I.Tnrespect of those'nursing homes operating without any registration and who have not made any application for that purpose tiII date, an unambiguous. message must issue that unlpss and until a nursing home satisfies the authorities concerned that it' has'complied with all the requirements not only under the MPD but under the other statutes as well, it ought not to be permitted to'continue operating as a nursing home'

¶42Thesecond cat;egory is of nursing homes that have applied for but have not yet been granted permission and have not filed any petition in this court' The cases of those nursing homes that have not approached this Court and therefore have no interim order in their favour need not be examined by the Court. With the declaration of the law by this judgment, the authorities will proceed to take consequent step.s in respect of such nursing homeq' Dir e ctio ns co ncerning the p etitioners

43.Thatleaves us to deal with the third category of irursing homes that have applied whether for grant of or renewal of registration and have approached this . court and whose registation has not been cancelled or operation not shut down on account of an interim order of this court' For such nursing wP(c) No.4233/93 etc. ( tlI e_ \/ homes this Court thinks it appropriate to'direct that some time should be given to enable them to shut down their operation till they are gtanted registration in terms of the Act and the Rules and in terms of the law as explained in this judgment. This court is inclined to grant them six months from today to compretely shut down their operations. This is subject to the condition that the petitioners will, if they have not already done so' apply withinei.ehtweeksfromtodayseekingapproval.intermsofthemixedland use nonns. This of course would be in.addition to their application for renewal of their registration.under the Act and the Rulds' such applications shall be decided by the authorities-within a period of not less than twelve weeks thereafter. It would be fOr the nursing home cbncemed to ensure that they satisff the authority under the Act, the DDA and any other statutory authority that arl the statutory requirements have been complied with' The court directs that the authorities should arlocate resources to ensure that thesetim:limitsa|estrictlyadheredto.Theretitiolelarehowever reminded that this is only a grace period and the delay 1f *v in the duthorities. taking a decision on their applications will not permit the petitioners to seek extension of the period gfanted to them by'this judgment ' to shut down their operations. It is only after grant of registration that such nursinghomescanbepermittedtoresumetheiroperati,ons.

¶44Theextended time period for closing down is being given so that any indoor patient already receiving treatment is not unduly inconvenienced' , WP(c) No' 4233/93 etc' I I n-I I * .,'(. : Further every new patient admitted to such hospital or nursing home will be forewarned that it has been asked to shut down by ucertain date pending granlof registration. For this purpose, each such nwsing home will put up a notice board prominently at least three places including the gate, announcing to the public that if not granted registration it would cease to operate after the grace period granted by this court. Simultaneously such nursing home will also infor.n its staff and medical personnel of the same position to enable them to arange their affairs'in the meanwhile. The failure by the nursing home to do so will not create any equities in favour of such staff' medical personnel or a member of the public intending to utilise the services of such nursing home or hosPital

¶45The writ.petitions and LPA No' I32 of 2008 are hereby dismissed' srrbject to the aforementioned directions, the interim orders in each petition t esvJvv" r and the LpA are hereby vacated and all pending applications are dismissed' s. MIrRAr,IDHAR,.r. '*?zbo\ . f,\z CHXEF JUST'ICE APRILz4,2009 rk WP(c) No.4233/93 etc' Poge 35 ol 35

\ '=l ! I HIGH COURT OF DELHI AT NEW DELHI WP (C) No. 3214 of 2OO8 ANAND ENT & SPEECH CENTRE ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate VCTSUS GOW. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. Mr. Virendra Singh, Advocate CORAM: HON',BLE THE CHTEF JUSTTCE HON'BLE DR. JUSTICE S. MURALTDHAR