C.M.Patel Hospital v. Govt. of N.C.T. of Delhi & Ors

ORDER

24.O4-2009 This petition is dismissed in terms of the judgment passed today in WP(C) No.423311993. Interim order stands vacated. Pending applications are disposed of in terms of the judgment. A copy of the judgment be placed on the file. ^?9}a\ 'f' ' cHrEF JUSTTCE s. MURALTDHAR, J. APRTL 24,2OO9 ttv" q 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. \ \\ 'r I -t IN TIIE XIXGI{ COTIRT OF DELIII AT NEW DEI-,HX VIP (C) No. 4233 of X 993 Date of decision: April 24,2009 DELHI.MEDICAL ASSOCIATION & ORS. ..... PETITIONERS Through: iVIr. S.P. Kalra, Senior Advocate with i\zk.Praveen Chauhan and X[r. Anmol Sinha, Advocate versus LINION OF INDIA & ORS. ..... RESPONDENTS Through: Mr. S.D. Salwan, Advocate for GNCTD lVIr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. LPA. No. 132 of 2008 SANTOM HOSPITAL .... APPELLANT Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: 1\&. 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 Chandrasheklrar, Advocate VETSUS , GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon rvith Mr. Daiyan Hussain, Advocate for Directorate of Health Services, Mr. S.D..Salwan, Advocate for GNCTD WP (C) No. 6788 of 2007 KISHM DEVI CIIARTIABLE CLINIC & ORS. ..... PETITIONERS Through: Ms. Radhika Chandrashekhar, Advocate I!I versus WP(C) No.4233/93 etc. v GOVT. OF NCT OF DELHI & ORS. SHANTI CLIMC versus GOVT. OF NCT OF DELHI & ORS. Through: X[r. Vivek Kumar Tandon with VIr. Daryan Hussain, Advocate for Directorate of Health Services. Ms. Zubeda Begum, Advocate lYP (C) No. 6795 of 2007 ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan Hussain, Advocate for Directorate of Health Services. WP (C) No. 6789. of 2007 rhrough : Ms. Radhika chandr";t.tffiTl?Y"* RESPONDENTS APOTHECARIES LIMITED versus GOVT. OF NCT OF DELHI & ORS. Through: Ms. Radhika Chandrasheklrar, Advocate ..... PETITIONER It- ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with lVIr. DaiyanHussain, Advocate for Directorate of Health Services. Ms Zubeda Begum, Advocate WP (C) No. 7290 of 2007 INDIAN HOSPITAI ..... PETITIONER Through: Ms: Radhika Chandrashekhar, Advocate VETSUS GOVT. OF NCT OF DELHI & ORS. ..... NBSPONDENTS , Through: Mr. Vivek Kumar Tandon with Mr. Dalyan Hussain, Advocate for Directorate bf Health Service's. lVP (C) No. 8258 of 2007 LIFE LINE MEDICAL CENTRE ..... PETITIONER Through: Ms. Radhika Chandrasheklrar, Advocate versus WP(C) No.4233/93 etc. Page 2 of.35 \\z 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 DI'RGA HOSPITAL PVT. LTD. .... PETITIONER Through: Ms. Radhika Chandrashektrar, Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. Daiyan }Iussain,' Advocate for Directorate of Health Services, Ms. Purbali Bora, proxy counsel for Ms. Aruna Tiku. Advocate \ryP (C) No. 8833 of 2007 DR. BALA DEVI'S HEALTITY FAMILY AND ANR .... PETITIONERS Through: Ms. Radhil<a 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. lYP (C) No. 8835 of 2007 ' ,R AT.trtrT,A T-Tos ..... PETITIONER .HANDRALEELA HosPhII* Radhika chandrash.khar, Advocate VETSUS GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Xdr. Daryan Hussain, Advocate for Directorate of . Health Services. Ms. Sonia Shanna, Advocate for GNCTD. WP (C) No. 8908 of 2007 , J.M.S.S. HOSPITAL ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate l. w7@ No. 42sg/sg etc. Poge 3 of 35 \q 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 Shanna, Advocate for GNCTD. ' WP (C) No. 9384 of 2007 Dr. S.P. tvfaffesffWanf .... PETITIONER Through: lVIr. S. Chaturvedi, Advocate VETSUS GOVT. OF NCT OF DELHI & ORS. I ..... RESPONDENTS Through: Mr. Viveik Kumar Tandon with iVIr. Daryan Hussain, Advocate for Directorate of Health Services. , WP (C) No. 524 of2008 EAT<ESH EYE & GENERAL HOSPIAL ..... PETITiONER Through: Ms. Radhika Chandrasheldrar, Advocate versus GOVT. OF NCT OF DELHI & ORS.' ...... RESPONDENTS Through: Mr. Vivek Kumar Tandon with Mr. DuyanHussain, Advocate for Directorate of . Health Services. WP (C) No. 909 of 2008 WELCOME HEALTH CARE CENTRE AND HOSPITAL ..... PETITIONER . Through: Ms. Radhika Chandrasheli*rar, Advocate versus t GOVT. OF NCT OF DELHI & ORS. .... RESPONDENTS . Though: Mr. Vivek Kumar Tandon with Adr' DaiyanHussain, Advocate for Directorate of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. lVP (C) No. 910 of 2008 . wP(c) No. 423g/gg etc. Page 4-of 35 \ \r ANAND MAYA HOSPITAL ..... PETITIONER ' Through: Ms. Radhil<a Chandrashekftar, Advooate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with VIr. Daryan Hussain, Advocate for Directorate cif Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. \\rP (C) No. 911 of 2008 AGRAWAL EYE INSTITUTE ..... PETITIONER Through: Ms. Radhika Chandrashelifiar, Advocate versus GOVT. OF NCT OF DELHI & ORS. ..... RESPO]{IDENTS Through: lzlr. Vivek Kumar Tandon with \4r. Dalyan Hussain, Advocate for Directorate lYP (C) No. 912 of 2008 HANDA STO}TE CLINIC ..... PETITIONER Through: Ms. Radhika Chandrashelchar, Advocate { VCTSUS OF NCT OF DELHI & ORS. .... RESPONDENTS ..... RESPONDENTS GOVT. Through: Mr. Vivek Kumar Tandon with Mr. Oaiyan Hussain, Advocate for Directorbte of Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD WP (C) No. 915 of 2008 SHARMA MEDICAL CENTRE ....". PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate versus GOVT. OF NCT OF DELHI & ORS. WP(.c) uo. szss/gs e.tc.. \b 'tl Through: IW. Vivek Kumar Tandon with Mr' Daryan Hussain, Advocate for Directorate of ' Health Services. Ms. Ruchi Sindhwani, Advocate for GNCTD. WP (C) No. 10X8 of 2008 K.K. SURGICAL AND MATERMTY CENTRE ..... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate Govr' oF NCr oF DELHIfiffh vivekKumar i;ffHftENrs Mr. Dalyan Hussain, Advocate for Directorate of Health Servibes. Ms.Shikha Palsule, proxy counsel for Mr' Saleem Ahmed, Advocate for R-2 WP (C) No. 3214 of 2008 ANAND ENT & SPEECH CENTRE ..... PETITIONER Through:Ms.RadhikaChandrashekhar,Advocate t. versus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kirmar Tandon with nzlr. Daiyan Hussain, Advocate for Directorate of Health Services. Mr. Virendra' Singh, Advocate WP (C) No. 3215 of 2008 C.M. PATEL HOSPITAL .... PETITIONER Through: Ms. Radhika Chandrashekhar, Advocate ersus GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS Through: Mr. Vivek Kumar Tandon with IvIr' Daiyan Hussain, Advocate for Directorate of Health Services, Mr. Virendra Singh, Advocate WP(c) No.4233/93 etc, AND $ IVP (C) No. 3216 of 2008 GANDHI NURSINGHOME Through: Ms. Radhika ChandrashekJrar, Advocate VETSUS GOVT. 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 a CORAJ\{: IION'BLE TIIE CHTF"F JUSTICE I{ON'BI,E DR. JUSTICE S. MI]RALMXIAR

1.

¶2aJ. Whether Reporters of local papers may be 'l allowed to see the judgment? I Yzl To be referred to the Reporter or not? ' Whether the judgment should be rcported ) in Digest? J{iDGMENT

24.04.2009 S. MI]RALIDI{AR., 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) Rule s 1992 is ultra vires'the Delhi Nursing Homes Registration Act 1953 ('Act') and is also ubitraryand discriminatory and therefore violative of Articles 14 and 19 (1)

(g) of the Constitution of India. The. other prayerin the writ petition is for a. ' WP(c) No.4233/93 etc. \$ direction to the Respondents not to give effect to the said RuIe 3 and to register all nursing homes which are eligible for registration rurder the Act without insisting on the fulfillment of the conditions prescribed under the irnpugned Rule 3. l.2It was submitted at the outset by counsel for the petitioners that with the changes brought about by the Master Pian for Delhi (i\,PD) 202L and the introduction of the mixed land use nofins, the questions arising in the present batch of petitions ought to be 1eft unanswered andthat.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 notwithstandr$g the new MPD norrns. 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 Fr,ovisions 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 z(iv) of the Act, a nursing home has been defined thus: t \'a WP(c) No.4233/93 etc, \\ a "(iv) Nursing Home means any premises used pr intended to be used for the reception of perSons suffering from any siclcress injury or infinnity 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 aforesaid purposes and to provide treabnent 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 registration in respect has not been cancelled under section 7. Provided that nothing in this section shall apply in the case of a nursing home which is in existence at the date of the commencement 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'sectio'n 7, the supervising authority may at any time. cancel the registration in respect of a nursing home on the :*. ground which would entitled the supervising authority to refuse an application for registration o1 It't WP(c) No. .4233/93 etc. Page 9 of 3.5 \ if any person is convicted under the Act or of an offence in respect of that nursing home. 5, The Delhi Nursing Homes Registration Rules Ig53 ('Rules') sdts out the procedure for.applying for the registration. The Rules were further arhended. in 1966. Therein a schedule was added with reference to Rule 14. The Schedule sets out the requirement of the nursing homes including the buildings , water supply, health, clothing, sanitary requirements of staff and other equipments. Importantly, as far as buildings qe concerned, clause (1)

(b)G) stipulates that "The building used for the nursing horhe shall cqmply . with the relevant municipal bye laws in force from time to time". In the LggzamendmentRule 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 forie and such guidelines as may be framed by the Ltd. Governor from time to time and the use of the premises shall conforrn to the Iand use prescribed under relevant law(s)." (emphasis supplied)

¶6. Appended to the rules was the 'standard for a nursing home, maternitY home'. Thereunder it.is clearly stipulated that "building must comply with the municipal bye-laws". I \{ WP(C) No.4233/93 etc. .r^ )

¶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 forly yeaxs 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 4urittg 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 areas for different purposes. The Schedule to the 7966 amendments to the Rules set out that detailed standards for a building that was to be used for running a nursing home. Position uncler the Master Planfor Delhi 1962

¶8As far as the Delhi Developpent Act 7957 ('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 t962 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 housi ng anursing home not having to comply with the requirements of the MPD. Even otherwise the requirement of having to satis$r 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 applicability of the municipal bye-laws to nursing homes. WP(c) No.4233/93 etc. tIa il .1

¶9In effect therefore what happened in 7992 was only to add the requirement bf the nursing homes having to satisff the land use requirements if thef had to . be registered under th6 Act and Rules. The land use requirements were not new in the sense that the MPD akeadymandated such compliance. If a nwsing home did not comply with the MPD requirement as regards land use, it wouid invile penal action under the DD Act. All that the lgg1 amendment to the Rules did was to incoqporate this statutorily mandatory requirement as an additional condition for grant of registration to a nursing honae under the Act. It was therefore not a new requirement. It was in any event required to be complied with in terms of the DD Act. This cannot be viewed as being so dramatically different from 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 unlikely to be unaware of the requirements under the MPD as regards land use. Main grounds of challenge in the 1993 writ petition

¶10W.P (C) No.a233 of lgg3, filed on 3'd September 1993 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 regishation has been refused on a reason wholly I v' WP(c) No.4233/93 etc. f, e extraneous to the Act. It is stated that while in respect of one Amar Heart Medical Centre at Panchsheel Park, registuation 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 (1MPD), similarly pticed institutions have been granted registrations.

¶11It is submitted that on26h March 1982 the DDA had prepared draft regulations for establishment of nursing homes. A decision was taken on 5tr Decembel 1989 by a high powered committed which had reiommended grant of registration to the nursing homes operating in residential areas fo1 a number of years. This was followed by afurther draft amendment to the rules on 4th Novembb r t99L 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 1992 came as. a surprise to the petitioners. The immediate effect of the amendment was that a substantial . majority of nursing homes stood disqualified from the beneficial provisions of the Act.since they did'not conform to the.land use nonns under the MPD and the ZonalDevelopment Plan (ZDP) published under the DDA Act 1957. The representations made by the petitioners were to no avaiI. A news item had appeared on 1" April 1993 reporting the stand taken by the Union of India in Parliament that nursing home established prior to 1" August L990 could continue tiII 1996 with payment of the requisite fee. wP(c) No. 4233/93 etc. fl e\ L2. 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 1gg1amendmentto the Rules is also challenged as being violative of Arricles 14 and 19(1)(9) of the Constitution. In effect it is submitted that by insisting on compliance with the land use norns u, n", the MPD , {latge' 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 companies would cover only such hospitals and nursing homes as are registered with local authorities. It is pointed out that the ground rcality was that out of thousands of nursing homes operating in Delhi only 1 !7 wete registered and even these would face deregistration in terms of the impugned amendment to the Rules'

¶13The impugned Rule is challenged as being ultrg vires Sections'5 and 16 of the Act cine the latLer do not speciff complianie 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 nonn not prescribed thereunder cannot be imposed particularly when such nonn has no nexus with the standard stinulated in section 5(d) of the Act. It is submitted that by not permitting .l I nursing homes in residential areas, citizens woulcl be deprived of timely WP(C) No.4233/93 etc' Page 74 oI 35 a ,{, access to medical facilities particularly in emergency sitr:ations' It is submitted that as long as the conditions under the Act are satisfied' the questionwhetheranursinghomeormaternityhome,wasviolatingtheMPD land use norms was ineleva.nt for the purpose of grarLt of registration' The impugnedprovisionisstatedtoinfringethefundamentalrightofthe members of the petitioner DMA under Arricle lg(lxg) of the constitution' . . Proceedings in the 1gg3 writ petitiqn by the DMA

¶14Notice was directed to issue in the said writ petition by this court on 7tr September|gg3.Howeverevenafteray?ar,i...titt13mSeptemberlgg4, .noneoftheRespondents,hadfi1edtheqrep1ies.Aprayerwasmadeon beharf of the petitioners that.a comprehensive survey be conducted of the ri both in the conforming as well as non-conforming reloPment AuthoritY . areas' The Court found that Respondent No'4 Delhi Der

(DDA)hadnotbeenappearingforthelastseveralhearings.Noticewas j issued to it to appearon the next date t'e' 26h October tgg4' Thereafter the Governrnent of the National caplta! Territory of Delhi ('GNCTD'), RespondentNo.2,andtheDirectorateofHealthservicesoftheGNCTD, RespoldentNo.3frledacommoncountgraffidavit'TheDDAhoWeverdid not file any affrdavit by then. In the circumstances, this court directed on 26fr octo ber l994that Respondents z md3 "shall make survey of all the nursinghomesintheUni3n'.:noo."conformingareasandnon-WP(c) ruo. nsa/gtg etc' conforming areas inespective of the amended Rule 3 which came into force on l't May !992."

¶15The DDA filed its affidavit in the writ petition on 8tr Decembet,t994' 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 Hedlth 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 alia provides that the commercial activity shall be allowed only on the ground floor to the extent of 25% or'50 sq'rn whichever is less .subjecttotheprovisothatsuchestablishmentisto berunbytheresidentsofthedwellingunitand thereafter, also provides for ? restriction by excluding certain activities which axe not Permitted The Master Plan further provides that a professional activrty is pennitted 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 25% of 50 sq'm whichever is less for non-residential but no WP(C) No. 4233/93 etc' age 76 of 35 t nuisance activity which is rendered for renderin$ 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 Ig53 have been enacted for regulating the activities under the . jurisdiction of Delhi Development Authority as well as Municipal iorporation of Delhi. The said Bye-laws are applicable to the Building Regulation activity in the Union Tenitory of Delhi and the same apply to the design and construction of the building in case of building is erected'"

¶16The GNCTD filed a further affidavit on 20tr January rgg5 in compliance with this court,s direction issued on26ft.October I994.In the said affidavit itwasinteraliastatedthatinresponsetotheadvertisementissuedasking nursing homes to submit particulars in the. prescribed proforma ' applications had begn received from unregistered nursing homes' It was stated that "majority of the nursing homes surveyed fuIfil the requisite medical standards as prescribed under the'Delhi Nursing Homes Registration Act lg53 and Rules framed thereunder except amended Rule 3 ' Exact number will be informed at the time of hearing'"

¶17This court was informed at the hearin g on23'd January t995 by learned counsel for the GNCTD that out of 433 nursing horires which had responded Page 77 -of WP(c) No.4233/93 etc' to the advertisement issued by it only 243 were found to have fulfitled the requisite rnedical standards as prescribed under the Act.

¶18The petitioner, Delhi Medical Association, filed an additional affidavit on 3'd May Lggs. Thereafter by an order dated 24ft 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 satisffing 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 respondents not to take any action under the provisions of Delhi Nursing Homes Registration Act,'1953 for non compliance with the provisions of Rule 3 of De1hi Nwsing Ho*., Registration (Amendment) Rules 1992, provided they 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."

¶19This Courl firrther explained in the said order that it had issued the above direction "taking into consideration the fact that the majority of such nursing homes were established and have been functioning from.before 1.5.L992 when the provisions of amended Rule 3 WP(c) No.4233/93 etc. have been brought in and consequently the issue of public health is involved and also in view of the fact Ihatunless we issue such an interim direction it would cause hardship and agony to the general public undergoing treatrnent in th6se nursing homes."

¶20Atthe hearing on 1.8ft December 1996 it was clarified that the stay order' passed by this Court would not come in the way of the Nationat Human Rights Commission ('NHRC') examining the complaint pertaining to the death of a 74 year qld Class X student at the private hospital. 2I. In the meanwhile the Chairman of the DDA (the Lt.Governor of GNCTD) notifled the Delhi Development Authority (Permission of Residenti alLandand Building for Use as Nursing Homes) Regulatio n 2003. As per the clause VI of the DDA Regrilatibns 2003 certain nornis were stipulated for permitting the use of residential premises for running nursing homes. The permission was to be granted by DDA subject to the fulfillment 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.

¶22The MPD 202I has stipulated new mixed land use nonns. These will be referred to shortly. The DDA also notified the rates for 'permission fee' and that is stated to be under challenge iir tfris Court in W.P. (C) No. 17379 of I I{ WP(c) No.4233/93 etc. i' I I .,bo 2004 Qt{ational Meclicul 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 (Delhi Medical Association v. MCD) and.abatch of similar petitions which are stated io be also pending-

¶23The contention'of the petitioners in W.P. (C) No. 6795 of 2007 (, pothecaries Ltd. v. GNCTD) and the batch of connected petitions is that I Rule 3 has become redundant in view of the DDA Regulations 2003 and the MPD Z02L One other contention is that a nursing home undertaking medical termination of pregnancy (MTP) cannot be asked to comply with 'the requirements of the Nursing Homes Act as they are goveped by'the Medical Termination of Pregnancy Act ('MTP Act'). It is stated that the Govemment Departments were not intending to accept any application from the nursing homes for issuing No Objection Certificate ('NOC').

24.Inone of the connected petitions, W.P. (C) No. 5782 of 200h , a learned Single Judge of this Court by an order dated 4tr February ZnOt rejected the prayer .for interim relief holding that as per the DD Act, the Municipal Corporation of Delhi Act, Ig57 and the Building bye-laws made hereunder, a building constructed for residential purpose cannot be put to ?ny other use. Aggrieved by the refusal of interim stay one of the nursing not.t,. Santom Hospital, has filed LPA No. 132 of 2008 in this court, The principal contention in the appeal that the DDA has permitted the use of a residential wP(c) No.4233/93 etc. 9\ remises for running a nursing home and therefore the MCD which has admittedly not framed any bye-laws for nursing'homes in particular cannot raise any objection. Importance of the Master Plan norms

¶25One of the principal issues arising for deteqnination 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 building in question has to conform to the lapd.uge norms specified under the MPD 2\2L(earlier MPD 1962 as amended in 1990). The law as regards the importance of a Master plan prepared under a statute for the planned development of an wban conglomeration is fairly well settled. The Master Plan so prepared is a statutory instrument with all attendant consequences.

¶26In Bangalore. Mectical Trust v. B.S. Muclclappa, (1991) 4 SbC 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 park. The Chief Minister wrote to the Bangalore Development Authority (BDA) for ttre grant of a suitable site to the appellant Bangalore Medical Trust for setting up a private hospital. The Chairman, BDA thereafter wrote to the Chief Minister stating that the appellant was keen to construct a.nursing home in the area reserved for the public park. On this letter the Chibf Minster made an endorsement that area could be converted into a civic amenity site. This led Page 27 ol'35 WP(c) No.4233/93 etc. a1/ 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 Cou5t. Aithough a learned Singte judge of that Hieh Cor{ rejected the writ petition, the Division Qench reversed the decision holdingthatthe nea earmarked in the Scheme fot ? 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 furttrer 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 generll 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 better development of the city of Bangalore and adjoining areas and for general application for 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 public at large, is not an improvement contemplated by the section." 2j.Inthe same decision it was further emphasized that a space earmarked for a particular purpose under the Master Plan cannot !e 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. Pdge 22 of 35 b1 { 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 otherwise transfer any properry. 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 government. Properly 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 contrary 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, playgrounds for, children, promenade for the residents, and other conveniences or amenities'are matters of great public concern and of vital interest to be tal<en 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 spabes 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 statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any Statb action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality 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. * l 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 allotment to the appellant. Conversion of the open space reserved for a park for the general good of the public into a site for the construction of a pnvately owned and managed hospital for private gains is not an alterationfor improvement of the scheme as contemplated by Section 19, and the impugred ordeis in that behalf are a flagrarft violation of the legislative intent and a colourable exercise ofpower."

¶29In G.I/. Khajuria (Dr) v. Delhi Development Aathority, (1995) 5 SCC 762, the Supreme Court was dealing with a case whers the land earmarked for a park under the MPD 19;62 was sought to be used for a primary school. Holding the decision to be illegal, it was observed (SCC, p.766): . "'We, therefore, hold th'at the land which was allotted to Respondent 2 was part of a park. We fi.rther 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 lhat Respondent 2has 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 Iaw. .As to the submission that dislocation from the present site would cause diffrculty 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. 4-\o J -.1 -rt Provisions of the MPD 2021

¶30In the MPD 2021Chapter XV deals with mixed use regulations. Tluee broad types of mixed use are stated to be permissible. Among this is the 'otkrer activity' broadly in the nature of 'public and semi public facilities' listed inpara I5.7.L The said paragraph reads as under: "subject to the general conditions given 1n pata 15.4 and additional conditions given in para 11.7.3, the following public and semi-public activities shall also be permitred in the residential plots abutting roads of minimum ROW prescribe d in 15.7 .2, whether or not the road is notified as mixed use street: ,

(a)Pre-primary school (inctuding nwseryAvlontessori school, crdche.

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

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

(d) Bank

(e) Fitness Centre (including gymnasium, yogal meditation cenffe). , ,(f) Coaching centres/tuition centres other than imparting structured courses leading directly award of a degree or diploma or conducting such as regular school." those to the classes WP(C) No.4233/93 etc. ^ lr 3L It is plain therefore that a nursing home would be permitLed in a . residential plot abutting roads of minimum right of way (ROW). Para 1 5 3 2 specifies the further conditions for permitring such activity in colonies falling under the different categories. Para !5.7.3 further stipulates in sub-pa"ras (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 d"r"lop-ent oq 13.5 m ROW in C&D' colonies and g m ROW inE, F&G colonies. However, the minimum plbt 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 unauthoris ed-re gul arize d,co I onie s, conditions of pl ot 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 I00% of built up area and the limit on the size of the plot would not apPIY;'

¶32There is no challenge to the MPD nonns in these petitions. In fact it is urged that since the DDA Regulations permit the use of residentia.l premises for nursing homes and under the MPD 202L mixed land usb provisio.ns have ' been incorporated the requirement under the Act and the Rules as brought about by the 1gg2 amendment should not be insisted upon. . Given the context in which the land use norns for all types of buildings has been specified in the MPD 202l,and it is conducive to the object of the DD Act wP(c) No. 4233/93 etc. I which is the planned 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 uffeasonable or arbitary.

¶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 which 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 norm on land use. Such a stipulation cannot be said to violate the fundamental rights under Articles 74 or 19 (1) (g). In fact far from being arbinary or unreasonable, sugh 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 ensue by providing easy access to health care. The right to health contemplates not only access to health services but the.rieht t1 a healthy environment as well. : The rururing 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 h3me is cerlainly of a hazardous.nature. The Environment Page 27 of 3.5 WP(c) No.4233/93 etc. ^ \. (protection) Act 1986 sets out the applicable statutory provisions concerning the disposal of.such hazardous waste by a nursing home or a hospital' Mereiy because an Act"and the Rules thereunder do not specifiqally advert to the disposal of hazatdous 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 (N4anagement and Handling) Rules.1998 have been made under the EPA' Rulq3(5)defines..biomedicalwaste,,tomeananywastegeneratedduring the diagnosis and ffeatment 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 nonns are specified in the Act, registration of a nursing home cannot te refused. If the Act and Rules were' to be amended 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 nursinghomesprovidingMTP.Theywould.havetocomplywithbothAct and the MTp Act. They would have to comply with any other applicable statutory nofin including the MPD

¶35In other words, it would be anomalous if the authority under the Act grants registration to a nursing home that violates th1 MPD or the EPA or any other statute. In an urban agglomeration, there are bound to be a plethora -l ,l I WP(C) No.42sg/gs etc' Page 28 ol 35 w of statutory compliances to be futfilled by an enterprise' The running of a ' nursing home is not merely concerned with having qualified medical professionalsandstaff,andappropriatemedicalequipment.Itrequirestobe housedinabuildingwhichconformstothebuildingbye-laws'theMPDand the depending on the extent of its activities and oth'er statutes lil<e the EPA' theMTPAct(whereapplicable)andtheRulesmadethereiunder.Toavoid thedelayinobtainingthedifferentapprovalsAtoCsfromthedifferent . authorities, the Respondents could devise a single window elearance' For instance,theauthoritygrantingregistationcouldprep,areacheck-listofall statutoryrequirementsnotlimitedtoActandRules.Thatisamatterforthe authorities to consider'

¶36For all of the above leasons, the plea of the petitioneri that the t992 amendment to the Rules is ultra vires the Act and is otherwise unconstitutionalisrejected.Consequently,theorderdated4.hFebruary2003 'passedbythelearnedSingleJudgeinw.P.(C)No.5782of2007is I *\affirmed.TheLPANo.l32of2008challengingthesaidorderiswithout merit' The 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 e.age is ol ss .^\ I have not been proceeded against only because the interim order of this court. In view of what has been held in this judgment, the said interim order dated Z4th May Lgg5 is to no avail any longer. It is possible that many of the petitioners were hoping that their apprications for registration will ultimately not be refused. They might still be able to if they fulfil all the s]atutorl norms. 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 yeafs' 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 normsintermsoftheMPDzozlisprocessedanddisposedof. 3g. This court fr-nds that there are broadly three categories of nursing homes' The fir'st category is of nursing homes thathave not made any application for registration till date and have nci interim protection from this court' These nursing homes have operated with impunify and have managed to escape the net thus far. Hopefully there are a very few in this category' The exact number can only be ascertained by the authorities by conducting a further comprehensive survey. Such nursing homes or private hospitals that have been operating without any registration and have not,applied for it till date do not deserve any protection or equitable consideration' They should be shut down fortlrwith. This court is not prepared to grant any further time to this category to now make an application for registration' This is because I WP(C) No.4233/93 etc' Page 3d of 35 \ (1,/ qr this Court believes that the practice of first violating the norm and thereafter' seeking reffospective approval must be fimrly discouraged.

¶39InM.I. Builders (P) Ltd. v. Radhey shyam saha, (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): ,,The High Court has directed dismantting of the whole project and for restorbtion 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. .Iudicial discretion cannot be guided by expediency. courts are not free from 'statutory fetters. Justice is to be rendered in accordance with law. ' 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 lega\principles. 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) I WP(C) No.4233/93 etc. .D t' I

¶40Recently in M.C. Mehta v. (Jnion of trniliu,(2004) 6 SCC 588, in the context of large-scale unauthorised consffuctions carried 'on in Delhi contrary to the MPD, the Supreme Court observed (SCC, p. 614,617): ,,..the land cannot be permitted to be used contrary to the stipulated user except by amendment 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 the unauthorised use which amounts to the amendment of the' master plan 'without following due Procedure.

¶51The .growth of illegal manufacturing activity in residential areas .has been without any check and hindrance from the authorities. The . manner rn which such large-scale violations, have commenced and continue leaves no manner of doubt $at 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. All this ,has happened at the cost of health and decent living of the residents of the city violating their constitutional rights enshrined under Article 2I of the-Constitution of India. Further, it is necessary to bear in mind that the . law-makers repose confidence in the authorities 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 a110wed. within the framework of law' , keeping in view the norms of environment, health and safety, h" , Government and its agencies, if there was genuine will, could have helped the industry and workers by relocating indushies by taking appropriate steps in the last about 15 years. on the other hand, it encouraged illegal activities'" wP(c) No.4233/%btc' \ Pdge 32 of 35 q) M.C. Mehta v. Union of India In the same vein are the observations

(2006) s scc sss. ln 4I.Inrespect of those nursing homes operating without any registration and who have not made a:rly application for that pulpose till 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.

42.The second category 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 steps in respect of such nursing homes. Dir ectio ns concerning th e p etitioners

¶43Thatleaves us to deal with the third category of nursing homes that have applied whether for grant of or renewal of registration and have approached this court and whose registration 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. v$ homes this Court thinks it appropriate to'direct that some time should be given to enabre them to shut down their operation til they are granted 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 completely shut down their operations' This is subject to the . condition that the petitionels will, if they have not already done so' apply within eight weeks from today seeking approval in terms of the mixed land use nofins. This of cours.e would. be in addition to. their application for renewal of their registration under the Act and the Rurds. such applications sha1l be deoided by the authorities within a period of not less than twelve weeks thereafter' It would be for the nursing home concerned to ensure that th"ysatisfytheauthorityundertheAct,theDDAandanyotherstatutory authority.that all the statutory requirements have been complied with' The court directs that the authorities should anocate reso'urces to ensure that thesetimelimitsarestrictlyadheredto.Thepetitionersarehowever reminded that this is only a gtace period and the delay if any in the authorities taking a decision on their applications will not permit the petitioners to seek extension of the period granted to them by this judgment to shut down their operations. It is only after gtafi of registration that such nursing homes can be permitted to resume their operations'

44.Theextendedtimeperiodforclosingdownisbeing,givensothatany indoor patient already receiving teatment is not unduly inconvenienced' WP(c) No.4233/93 etc' "\h ? Fur[her every new patient admitted to such hospital or nursing home will be forewamed that it has been asked to shut down by a certain date pending grant of registration. For this purpose, each such nursing home will put up a '1 ' ' -t.-- notice board prominent$ 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 infonr-r its staff and medical personnel of the same position to enable them to arrange their affairs'in the meanwhile. The failure by the nursing home to do so will not create any equities in favour of such staff, medicar personnel or a member of the public intending to utilise the services of such nursing home or hosPital

¶45The writ petitions and LPA No. 132 of 2008 are hereby dismissed' Subject to the aforementioned directions, the interim orders in each petition and the LPA are hereby vacated and all pending applications are dismissed' CIIIEF JUSTICE APR[L24 ,2009 rk WP(c)N.o.4233/93 etc. Poge 35 of 35 I&V.--'\t MTIRALIDIIAR, -?rln\ f,\z ! .n. S.

e HIGH COURT OF DELHI AT NEW DELHI . WP (C) No. 32Ls of 2OO8 C.M. PATEL HOSPITAL ..... 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 CHIEF JUSTTCE HON',BLE DR. JUSTICE S. MURALIDHAR