Can diagnostic centres open up in residential areas?
According to MPD 2021, such units can operate from residential areas if their activities do not involve use of hazardous substances or processes
It is a common sight to see medical diagnostic centres/ pathological laboratories in residential buildings in Delhi, often creating a problem in the neighbourhood by way of pollution, crowded lanes and congested parking. As per the Master Plan of Delhi (MPD) certain conditions for mixed use in residential areas are provided.
According t o MPD 2021, residential areas are divided into various categories with separate provisions made for each category. The Supreme Court of India, in its judgment in the case of Anirudh Kumar versus Municipal Corporation of Delhi delivered on March 20, 2015, clarified the legal position with regard to the use and misuse of the provisions of MPD.
In this case, a diagnostics centre and pathological lab was operating from the basement, ground, first and mezzanine floors of a residential building located in a category-B residential area of Delhi. The owner of the second floor (‘appellant’) of the same building complained to the concerned authorities about the MPD violation, but no action was taken. Subsequently, in the writ petition filed by the complainant/appellant before the Delhi High Court, MCD averred that action had been initiated against the owners. During the pendency of the writ petition, a regularisation certificate was issued as per the Delhi Development Act, 1957, on July 11, 2006, to the owners of the diagnostics centre by the MCD under mixed land use for running the pathological lab on the ground and first floors of the building .
Aggrieved by the grant of certificate, the appellant, ie owner of the second floor withdrew the petition and filed another petition praying that it (certificate) be quashed. Following the rejection of his plea by the high court, the appellant filed a latent patent appeal for issuance of a writ prohibiting the owners from running the diagnostic centre in the building, which was also dismissed by the high court of Delhi.
Undaunted, the appellant then approached the Supreme Court, which then examined the provisions for mixed use in various categories of residential areas/ colonies.
According to MPD 2021, in categories A and B residential colonies, activities other than residential are restricted to guest houses, pre-primary schools, nursing homes, clinics, dispensaries, pathology labs and diagnostic centres, in plots abutting roads, measuring a minimum of 18 metres. The court concluded that the said building comes within the permitted mixed use as per MPD 2021.
Therafter, as per the report of the Delhi Pollution Control Committee (DPCC), a regularisation certificate for running a nursing home was granted, even though it was actually a pathological lab that was up and running.
The Supreme Court examined the legality and validity of the issuance of the regularisation certificate on July 11, 2006, allegedly under MPD 2021, which was still at a proposal stage at that time. It came into effect only on February 7, 2007, enabling the owners to use the premises for activity which was prohibited in the said building as per MPD 2001 which was in force at the time of grant of regularisation certificate.
MPD 2001 stated that the area/ street for mixed use activity should be identified after studying the impact on the traffic, evaluating the environmental needs and impact on municipal services of the area. In the present case, no document proving such a study conducted by the MCD was presented. It stated that if after evaluation and study the mixed use activity in the street/area is found feasible, then it shall be allowed basis the following conditions: (i) on the ground floor of the premises, (ii) to the extent of 25% of the area or 50 square metre, whichever is less, and (iii) such establishment can be run only by the resident of the dwelling unit.
In this case, the basement, ground, first and mezzanine floors were being used and the owners were not residents of the said building. Thus, it was a violation of the provisions under MPD 2001. MPD 2001 prohibited the running of a nursing home, whereas the regularisation certificate clearly gave it the green signal.
The Supreme Court held that use of diesel generator sets, heavy medical equipment, etc led to air and noise pollution. In MPD 2021, diagnostics centres and pathological labs are permitted, provided their activities do not involve use of any kind of obnoxious, hazardous, inflammable, non-compatible and polluting substance or process. Thus, due to violation of both MPD 2001 and MPD 2021, the court ordered that the diagnostics centre should be shut down.