- (1.) This appeal by special leave arises out of the impugned judgment and order dated 16.01.2012 passed by the High Court of Delhi in LPA No. 857 of 2010 in and by which, the High Court, while dismissing the appeal held that this matter does not fall within its writ jurisdiction which requires determination by the High Court. Brief facts which led to the filing of this appeal are as under:-
(2.) The appellant is residing on the second floor of D-1 Hauz Khas, New Delhi. Dr. Navin Dang and Dr. Manju Dang, the respondent Nos. 6 and 7 (hereinafter referred to as 'the respondent-owners') initially started a Pathological Lab in the name of 'Dr. Dang's Diagnostic Centre' in the year 1995 on the basement and ground floor of the concerned building and later on, in the year 2005-2006 the first floor of the premises was also purchased by them from its owner Mrs. Shanti Chatterjee whereby they expanded the activities of the Pathological Lab even to mezzanine floor and first floor by installing heavy medical equipments to make it fully equipped with the latest technology. When the Diagnostic Centre was started, it employed about 50 people and installed 25 Air Conditioners, two diesel generator sets of 25 KVA and 40 KVA each in the set-back area of the building along with kerosene oil tanks, gas cylinders and electric panels. There was a major parking problem in and around the vicinity of the Diagnostic center since a large number of patients visited the centre every day.
(3.) The appellant made various complaints pertaining to the violation of the Master Plan to the concerned authorities', namely 1)Respondent No.1- Dy. Commissioner, Municipal Corporation of Delhi(for shot 'the MCD'), 2)Respondent No.2 - SHO of the area, 3)Respondent No.3 - Executive Engineer, Delhi Electricity Supply Undertaking. As no heed was given to the same by the aforesaid respondent, a writ petition No. 8808 of 2004 was filed by the appellant before the High Court of Delhi. During the pendency of the said writ petition, contrary to the averments made by the MCD before the High Court that prosecution had been initiated against the responsible persons under Sections 347/461 of the Delhi Development Act, 1957, the Regularisation Certificate was issued on 11.07.2006 to the respondent- owners by the MCD under Mixed Land Use for running the Pathological Lab on the ground floor and first floor of the concerned building. Aggrieved by the grant of Regularisation Certificate, the appellant withdrew the writ petition No.8808 of 2004 and a fresh writ petition No. 225 of 2008 was filed by the appellant before the High Court praying for quashing of the Regularisation Certificate wherein, the learned single Judge issued limited notice to the respondents with respect to Clauses 3 and 7 of the Regularisation Certificate. The Learned single Judge rejected the challenge to the Regularisation Certificate issued on 11.07.2006 as the same was issued by MCD under Clause 15.7.1 of the MPD 2021 approved by the Ministry of Urban Development, Government of India which reads thus: "15.7 OTHER ACTIVITY 15.7.1 Subject to the general conditions given in para 15.4 and additional conditions given in para 15.7.3, the following public and semi-public activities shall also be permitted in the residential plots abutting roads of minimum ROW prescribed in 15.7.2, whether or not the road is notified as Mixed Use street: (a) Pre-primary school (including nursery / Montessori school, creche.) (b) i. Nursing Home ii. Clinic, Dispensary, Pathology lab . and Diagnostic center. ................" Further, the learned single Judge vide order dated 5.10.2010 refused to decide the violation under Clause 7 of the Regularisation Certificate on the ground that the petition is motivated by a private dispute than owing to any nuisance and hardship to any local resident as none of the other local residents had approached the Court with any complaint pertaining to nuisance.;