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

HT Estates - - HTESTATES - Su­nil Tyagi

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.

S BURMAULA

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