Allahabad High Court
Sri Ganga Charan Aryawardhan Hospital vs State Of U P And 3 Others on 2 December, 2022
Bench: Manoj Kumar Gupta, Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED Court No. - 21 Case :- WRIT - C No. - 33577 of 2022 Petitioner :- Sri Ganga Charan Aryawardhan Hospital Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Udayan Nandan,Ashok Kumar Dwivedi,Sr. Advocate Counsel for Respondent :- CSC,Dharmendra Singh Chauhan Hon'ble Manoj Kumar Gupta,J.
Hon'ble Jayant Banerji,J.
1. Counsel for the parties are agreeable that the matter be heard and decided at this stage itself without calling for affidavits from respondents. Accordingly, the present writ petition is being taken up for consideration.
2. Heard Shri Shashi Nandan, learned Senior Counsel assisted by Shri Udayan Nandan and Shri Ashok Kumar Dwivedi, learned counsel for the petitioner and Shri D.S. Chauhan, learned counsel appearing for the respondent nos. 2 and 3. The State-respondents, namely, respondent no. 1 and 4 are represented by learned Standing Counsel.
BACKGROUND:
3. In the present writ petition, the petitioner seeks to challenge an order dated 17.10.2022 passed by the Vice-Chairman of Bareilly Development Authority1 rejecting the proposal for compounding of the nursing home of the petitioner. Further under challenge are the orders/letters both dated 22.10.2022 informing the petitioner, respectively, that as per the approved layout, on a residential plot, a nursing home cannot be sanctioned, therefore, the proposal for compounding of the nursing home has been rejected by the Vice-Chairman on 17.10.2022, and, that within 15 days the admitted patients in the nursing home be transferred to another nursing home and the premises be vacated, failing which, the premises of the nursing home would be sealed. Further, mandamus has been sought commanding the respondents not to interfere in the peaceful running of the nursing home in question and for commanding respondents to decide the application of the petitioner dated 3.10.2022 for change of land use.
4. It is stated in the writ petition that by means of a sale deed dated 12.5.1997, House No. 35/2, Rampur Garden, Bareilly was purchased by the Managing Director of the petitioner for establishing a hospital. A nursing home was constructed over the plot in question and a certificate of registration was obtained from the Chief Medical Officer, Bareilly, in the year 2004. It is stated that the nursing home has been running continuously in the aforesaid premises and was also issued a certificate of renewal of medical establishment by the office of the Chief Medical Officer, Bareilly on 17.5.2022. It is stated that on 18.2.2020, the Executive Engineer of the respondent no. 2, BDA, issued a communication to the petitioner that the constructions raised by the petitioner are not in accordance with the building bye-laws and, therefore, a total amount of Rs. 81,62,123/- is liable to be deposited by the petitioner toward compounding of the constructions in question. It is stated that the demanded amount was deposited on 30.9.2022 by cheque and through cash. Thereafter, by a communication dated 1.10.2022, the petitioner was directed to shift the patients in the nursing home to another hospital and vacate the nursing home by 3.10.2022 failing which the premises of the nursing home would be sealed. The petitioner submitted a letter dated 3.10.2022 along with an affidavit seeking land use conversion of the premises as per the guidelines and for that purpose the petitioner deposited a sum of Rs. 50 Lacs by cheque. It is stated that without considering the application of the petitioner for change of land use, the aforesaid impugned orders/communications dated 22.10.2022 were issued. It has been stated that the order dated 17.10.2022 passed by the Vice-Chairman of the BDA has not been served on the petitioner. Copies of the minutes of the 82nd, 83rd and 84th meetings of the Board of the BDA have been enclosed in an effort to demonstrate that conversion of land usage was permissible under the circumstances.
SUBMISSIONS OF THE LEARNED COUNSEL:
5. Learned counsel for the petitioner has strongly urged that the petitioner has been running the nursing home for approximately 20 years without any break, which nursing home has been duly registered by the Chief Medical Officer. It is contended that the bonafide of the petitioner is reflected from its compliance of the letter dated 18.2.2020 issued by the BDA demanding a sum of Rs. 81,62,123/- for compounding of the constructions of the nursing home but without looking into this aspect of the matter and without considering the application dated 3.10.2022 made by the petitioner for change of land use, the impugned orders have been passed which is a clear violation of principles of natural justice. It is further contended that given the resolution of the BDA made in its 83rd meeting, objections and suggestions are necessary to be invited from persons with respect to the proposed amendments in the master plan. The petitioner, by his application dated 3.10.2022 showed willingness to deposit the charges for conversion of land use from residential to hospital. The said application could only be considered and decided by the State Government in exercise of power under Section 13 (3), but the Vice-Chairman, BDA, has wrongly proceeded to reject the said application. Lastly, it is contended that the Rampur Garden Colony, Bareilly, in which the nursing home is situated, is being used for various commercial activities including hospitals, shops and malls since a long period of time and the area in question is completely commercial in nature but the BDA has singled out the petitioner by issuing the impugned orders/letters.
6. Shri D.S. Chauhan, learned counsel appearing for the BDA has strongly opposed the writ petition and has drawn attention of the Court to the conditions attached to the letter dated 18.2.2020 issued by the Executive Engineer of BDA. It is contended that the very fact that compounding application had been filed by the petitioner in respect of sanctioned and constructed residential building, reflects that the nursing home was not sanctioned by the BDA. Learned counsel has referred to the letter dated 1.10.2022 of the BDA sent to the Managing Director of the petitioner informing him that the petitioner had failed to demolish the non-compoundable part of the building, accordingly, the petitioner was directed to shift its patients to another hospital by 3.10.2022. It is further stated that the impugned letters dated 22.10.2022 clearly reflect that as per the sanctioned layout of Rampur Garden, no nursing homes can be permitted on residential plots. It was, therefore, by order dated 17.10.2022, the Vice Chairman of the BDA had canceled the proposal for compounding of the constructions. Learned counsel has urged that the reference to the additional resolutions passed in the 83rd meeting of the Board of the BDA refers to the proposed master plan of 2031 and no benefit of the same can accrue to the petitioner.
ANALYSIS:
7. A perusal of the sale-deed dated 12.05.1997 reveals that the Managing Director of the petitioner had purchased an unfinished two storied residential building. He raised further constructions and converted the building into a hospital. There is no evidence that the additional constructions raised were according to any sanctioned plan. The building is situated in Rampur Garden, Bareilly, which is residential area as per the master-plan. The petitioner started using the building for running a nursing home/hospital, without any permission in this behalf from the BDA. The aforesaid acts were in clear violation of Sections 14 (2) and 16 of the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as 'the Act'). These provisions are reproduced below for ready reference:-
"14 (2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such development is also in accordance with such plans.
16. Uses of land and buildings in contravention of plans- After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise that in conformity with such plan :
Provided that it shall be lawful to continue to use, upon such terms and conditions as may be prescribed by bye-laws made in that behalf, any land or building for the purposes and to the extent for and to which it is being used upon the date on which such plan comes into force."
8. The petitioner was conscious of the gross violations of provisions of law on its part. It applied for compounding of the illegal constructions. On 18.2.2020, the compounding plan was sanctioned subject to various conditions/ compliances. Condition no.1 states that the petitioner was illegally running a hospital in the building constructed and sanctioned for residential use. Therefore, the petitioner shall have to convert the building to residential use and submit an undertaking in shape of an affidavit that in future it would only be used for residential purposes. Condition No.2 is that every floor of the building would only be used for that purpose for which the plan is sanctioned i.e. residential. Condition No.11 states that as per the compounding plan, the non-compoundable part of the building would be demolished within one month by the petitioner and an affidavit will be filed in that regard. In case of failure on part of the petitioner in getting the demolition done on its own, the demolition would be done by the BDA, cost of which has to be borne by the petitioner. Further, there was condition No.12 that on violation of any of the conditions, the map/plan would automatically stand cancelled.
9. The petitioner did not comply with any of the above conditions. Neither non-compoundable part of the constructions were demolished nor the building was put to residential use. The petitioner continued to use the building as a hospital. This attracted Condition No.12 of the compounding order and the compounding plan stood automatically cancelled. The BDA, however, gave one more opportunity to the petitioner to comply with the conditions stipulated in the compounding order. By letter dated 1.10.2022, it required the petitioner to demolish the non-compoundable part of the building and put the building to permissible usage and submit an affidavit to the said effect, failing which, the petitioner was warned that the premises would be sealed and further action taken in the matter in accordance with law.
10. The petitioner, instead of complying with the conditions stipulated in the provisional compounding order dated 18.2.2020, moved fresh applications praying (1) for permission to use compoundable part of the building for hospital purposes and showed willingness to deposit conversion charges and (2) for notice dated 1.10.2022 being cancelled. The petitioner also claims to have tendered to BDA a cheque of Rs.50 lakhs therefor.
11. The applications of the petitioner were considered by the BDA. The prayers made by the petitioner were found to be impermissible as per the master-plan. Accordingly, the request for compounding/ conversion to hospital use was rejected by the Vice-Chairman, BDA on 17.10.2022 and it was communicated to the petitioner by the competent authority, BDA vide its letter dated 22.10.2022 which is as follows:-
"पत्रांक/3251/का०ब०वि०प्रा०/2022-23 दिनांक 22/10/22 डा० नवल किशोर गुप्ता (प्रबन्ध निर्देशक) श्री गंगा चरण आर्य वर्धन अस्पताल, सिविल लाईन्स बरेली निरस्तीकरण-पत्र
कृपया वाद सं०- 113/2019-20 (जोन-1 सेक्टर-3) से आप द्वारा नर्सिग होम हेतु प्रस्तुत शमन प्रस्ताव पर जॉचोपरान्त आपत्ति पायी गयी कि 83वीं बोर्ड बैठक के अनुसार रामपुर बाग में महायोजना के कार्यालय भू-उपयोग में केवल कार्यालय एवं सम्बन्धित क्रिया प्रभाव शुल्क लेते हुये स्वीकृत किये जा सकते है। बरेली महोयोजना-2001-2021 के अध्याय-6 के प्रस्तर-6.1.5 के अनुसार रामपुर बाग, बरेली के स्वीकृत ले-आउट के आवासीय प्लाट में नर्सिग होम स्वीकृत नहीं किया जा सकता है। जिस कारण आपके द्वारा प्रस्तुत नर्सिग होम के शमन प्रस्ताव उपाध्यक्ष महोदय के अनुमोदन दिनांक 17.10.2022 के द्वारा निरस्तर कर दिया गया है।
सक्षम प्राधिकारी बरेली विकास प्राधिकरण बरेली।
प्रतिलिपि- तददिनांकः-
1. क्षेत्रीय सहायक/ अवर अभियन्ता को आवश्यक कार्यवाही हेतु प्रेषित।
सक्षम प्राधिकारी"
Translated, this letter states that after inquiry, there is objection to the proposal regarding compounding submitted by the petitioner in respect of nursing home, which is that, according to the 83rd meeting of the Board, in Rampur Garden, in the office land-use permitted under the master plan, only office and related activity can be sanctioned after accepting impact fee. According to Chapter 6 paragraph 6.1.5 of Bareilly Master Plan 2001-2021, in the approved layout of Rampur Garden, Bareilly, on residential plots, nursing home cannot be approved. For this reason the compounding proposal for nursing home submitted by the petitioner has been rejected by means of the approval of the Vice-Chairman dated 17.10.2022.
12. The impugned order/letter no.3252 dated 22.10.2022 reads as under:
"पत्रांक/3252/का०ब०वि०प्रा०/2022-23 दिनांक: 22/10/22 सेवा में, डा० नवल किशोर गुप्ता (प्रबन्ध निर्देशक) श्री गंगा चरण आर्य वर्धन अस्पताल, गांधी उधान के सामने, प्लाट नं०-ए-2 रामपुर गार्डन, बरेली। विषयः- वाद सं०-113/2019-20 (जोन-1 सेक्टर-3) के संबंध में। महोदय,
कृपया आपके द्वारा वाद सं०- 113/2019-20 (जोन-1 सेक्टर-3) में पूर्व आवेदित आवासीय शमन प्रस्ताव के विरूद्ध संचालित किये जा रहे नर्सिग होम को शमन कराये जाने हेतु दिनांक 03.10.2022 को प्रार्थना पत्र दिया गया था, जिसके संबंध में आपके शमन प्रस्ताव को 83वीं बोर्ड बैठक के अनुसार रामपुर बाग में महायोजना के कार्यालय भू-उपयोग में केवल कार्यालय एवं सम्बन्धित क्रिया प्रभाव शुल्क लेते हुये स्वीकृत किये जाने एवं बरेली महायोजना- 2001-2021 के अध्याय-6 के प्रस्तर- 6.1.5 के अनुसार बाग, बरेली के स्वीकृत ले-आउट के आवासीय प्लाट में नर्सिग होम स्वीकृत का प्रावधान न होने के कारण आपके द्वारा प्रस्तुत नर्सिग होम के शमन प्रस्ताव को उपाध्यक्ष महोदय के अनुमोदन दिनांक 17.10.2022 के द्वारा निरस्त किया जा चुका है।
अतः उपरोक्त संदर्भित प्रकरण में आपको निर्देशित किया जाता है कि आप 15 दिन के अन्दर श्री गंगा चरण आर्यवर्धन अस्पताल में भर्ती समस्त मरीजो को अन्य किसी नर्सिग होम में स्थानान्तरित करते हुये नर्सिग होम खाली करना सुनिश्चित करें, अन्यथा उक्त नर्सिग होम परिसर को सील कर दिया जायेगा। जिसमें मरीजो को होने वाली परेशानी की समस्त जिम्मेदारी आपकी होगी।
सक्षम प्राधिकारी बरेली विकास प्राधिकरण बरेली।
प्रतिलिपि- तददिनांकः-
1. आयुक्त महोदय को सादर सूचनार्थ प्रेषित।
2. जिलाधिकारी महोदय को सादर सूचनार्थ प्रेषित।
3. वरिष्ठ पुलिस अधीक्षक, बरेली को सादर सूचार्थ प्रेषित।
4. सचिव महोदय को सूचनार्थ प्रेषित।
5. मुख्य चिकित्सा अधिकारी, बरेली को इस आशय से प्रेषित कि निर्धारित अवधि में मरीजो को स्थानान्तरित कराते हुये नियमानुसार कार्यवाही करने का कष्ट करें।
6.थानाध्यक्ष/ थानाप्रभारी, थाना-कोतवाली, बरेली को सूचनार्थ।
सक्षम प्राधिकारी"
Translated, this letter states that against the petitioner's earlier application of residential compounding proposal, the petitioner has given an application on 03.10.2022 for the existing nursing home. In that respect, according to the 83rd Board meeting, in Rampur Garden the provision in the Master plan for office land-use approval being of office and related activities after accepting impact fee; and, there being no provision for nursing home on a residential plot in the approved lay-out for Rampur Garden, Bareilly in terms of paragraph 6.1.5 of Chapter 6 of the Bareilly Master Plan 2001-2021, therefore, the compounding proposal for nursing home submitted by the petitioner has been rejected by the recommendation of the Vice-Chairman dated 17.10.2022. Therefore, in the aforesaid matter, the petitioner is directed to ensure the evacuation of the nursing home by transferring all the patients admitted in Shri Ganga Charan Aryavardhan Hospital into any other Nursing home within 15 days else the premises of the said nursing home shall be sealed. The petitioner shall be solely responsible for all the inconvenience caused to the patients.
13. Indisputably, the petitioner has no sanctioned plan for running nursing home in its premises. The map submitted by the petitioner for compounding was provisionally approved subject to the condition that the petitioner would use the compoundable part of the building exclusively for residential purpose and the non-compoundable part of the building would be demolished. However, the petitioner did not comply with any of the above conditions. Neither the petitioner stopped using the building as a hospital/nursing home nor demolished the non-compoundable part of the building. The petitioner was issued warning by letter dated 1.10.2022 and one more opportunity was granted to ensure compliance. Instead of complying with the conditions stipulated, the petitioner continued to violate the law with impunity.
14. It is noteworthy that in the application dated 3.10.2022, the petitioner admitted that the earlier compounding plan was sanctioned for residential use. It thus becomes clear that the petitioner has been using the building for running hospital showing no respect for the laws. The applications dated 3.10.2022 are silent in regard to the non-compoundable part of the building which was required to be demolished, but is also being used for running the Hospital, putting at peril public safety and security of the patients and neighbours.
15. The request of the petitioner for permitting the building to be used as a nursing home/hospital has been turned down on the ground that as per master-plan 2001-21 and decision taken in 83rd meeting of the Board, the only non-compliant activity which is permissible over a residential plot in Rampur Garden is running of office and related activity, and that too, on payment of impact fee and not a nursing home.
16. Learned counsel for the petitioner has not placed before us any material to show that under the master-plan, zoning regulations or the building by-laws, running of a nursing home/hospital is permissible in Rampur Garden even upon payment of impact fee or conversion charges.
17. Learned counsel for the petitioner has placed reliance on the resolutions passed by the BDA in its 82,nd 83rd and 84th Board meetings in contending that there was proposal for regularising non-confirmatory uses of the buildings in Rampur Garden and in this behalf objections and suggestions were invited from the public and, therefore, the application of the petitioner should not have been rejected by the Vice-Chairman, BDA but should have been forwarded to the State Government.
18. It is pertinent to note that in 82nd Board meeting, objections and suggestions were invited under Section 13 (3) in relation to Rampur Garden and Model Town Colonies. It was ratified in the 83rd Board meeting.
19. Section 13 relates to amendment of master-plan or the zonal development plan. Relevant part of Section 13 is reproduced below:-
"13. Amendment of Plan.- (1) The Authority may make any amendments in the master plan or the zonal development plan as it thinks fit, being amendments which, in its opinion do not effect important alteration in the character of the plan and which do not relate to the extent of land uses or the standards of population density.
(2) The State Government may make amendments in the master plan or the zonal development plan whether such amendments are of the nature specified in Sub-section (1) or otherwise.
(3) Before making any amendments in the plan, the Authority, or as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government."
20. The power to amend the master-plan is vested in the Development Authority, if it does not effect important alterations in the character of the plan and also does not relate to the land uses or the standard of population density. These excepted categories require approval of the State Government. The 82nd resolution of BDA inviting objections and suggestions under Section 13 (3) has to be interpreted in the context of the above statutory provisions. Concededly, the master-plan which is in force earmarks Rampur Garden as a residential area. At present, the only deviant use permitted in the area is office and related activities. This too, requires a special permission from the Authority, subject to payment of impact fee. However, in no event, running of a hospital/nursing home is permissible. The objections and suggestions invited by BDA under Section 13 (3) would only enable it to make such amendments as would not change the land use of the area. There is no material on record to show that the State Government is undertaking any exercise for change of the land use of Rampur Garden as it would require a notice to be published by it in atleast one news paper. No such notice has been brought on record. Consequently, the submission advanced that the application filed by the petitioner is referable to the resolution passed by the Board inviting objections under Section 13 (3) and the State Government alone could have dealt with it, is devoid of merit.
21. The other resolution which has some relevance is the one passed at item No.4 with the permission of the Chairman in the Board's 83rd meeting. It is in relation to proposed master-plan 2031. It mentions that a presentation of the master-plan was given and the members made suggestions for getting a booklet of proposed master-plan printed for sale to general public to facilitate filing of objections and suggestions. One of the suggestion also was that where constructions had been raised in violation of the prescribed uses, wherever possible, the same should be adjusted and the land use be determined in the light of objections/suggestions. The said decision taken in the Board only indicates that preparation of new master-plan is in progress. The proposals made by the members and as recorded in the minutes of the meeting of the Board are only recommendatory in nature. The final master-plan 2031 has still not seen the light of the day. At best, the petitioner can also make/submit its objection/proposal in accordance with law, but at present, in absence of any provision in the master-plan, building by-law or zoning regulation, allowing usage of a residential plot in Rampur Garden as a nursing home/hospital, we find no illegality or impropriety in the impugned decision.
22. The petitioner cannot be permitted to continue using the building as a hospital in violation of the existing law, throwing all principles of town planning to winds and least concerned with the safety and security of even those who are availing medical services in the hospital, being illegally run from the building in question.
23. The contention that there exist various other hospitals and commercial establishments in Rampur Garden Colony and no action is being taken against them, is of no help to the petitioner inasmuch as no negative parity can be claimed. The petitioner has failed to demonstrate any illegality or arbitrariness on part of the BDA that may entail interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution.
24. Under the facts and circumstance of the present case, no interference is called for. The writ petition is, accordingly, dismissed.
Order Date :- 2.12.2022 A. V. Singh/SK/SL (Jayant Banerji, J.) (Manoj Kumar Gupta, J.)