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2001 Supreme(Del) 757
High Court Of Delhi
DMA NURSING HOME AND MEDICAL-ESTABLISHMENT FORUM - Appellant
Versus
UNION OF INDIA - Respondent
Civil Writ 6240 of 1999
Decided On : 06/01/2001
AMITABH MARVAHA, ANJANA GOSAIN, GOPAL SUBRAMANIUM, Jayant Bhushan, KETKI GOSVAMI, S.K.Kaul, S.LUTHRA
The main legal point established in the judgment is that the imposition of permission fee/misuser fee must be authorized by specific provisions in the law, must have a 'quid pro quo' between the levy of fee and services rendered, and must have a reasonable nexus with the avowed objective.
Headnote:
Permission Fee - Mixed Land Use - Delhi Development Act, 1957, Section 13, Section 57(1)(f) - The court struck down the imposition of permission fee/misuser fee as being illegal and ultra vires the Constitution and Delhi Development Act, 1957. The court found that there was no specific provision authorizing the levy of such fee and no element of 'quid pro quo' between the levy of fee and services rendered. The court also clarified the authority of the DDA to make regulations for the user of lands and buildings in contravention of the plan.
Fact of the Case:
The petitioner challenged the imposition of permission fee/misuser fee by the respondent for allowing mixed land use in residential areas, contending that it was in the nature of compulsory exaction of money without conferring any special advantage or services and was ultra vires the Constitution and Delhi Development Act, 1957.
Finding of the Court:
The court found that the imposition of permission fee/misuser fee was illegal and ultra vires the Constitution and Delhi Development Act, 1957, as there was no specific provision authorizing the levy of such fee and no element of 'quid pro quo' between the levy of fee and services rendered.
Issues: The issues revolved around the legality of the imposition of permission fee/misuser fee for mixed land use in residential areas and its compliance with the Delhi Development Act, 1957.
Ratio Decidendi: The court held that the imposition of permission fee/misuser fee was without authority of law, lacked 'quid pro quo' between the levy of fee and services rendered, and had no reasonable nexus with the avowed object of providing medical services to the local residents.
Final Decision: The court allowed the writ petition and struck down the impugned guide-lines as being illegal and ultra vires the Constitution and Delhi Development Act, 1957, with no order as to costs. The court also clarified the authority of the DDA to make regulations for the user of lands and buildings in contravention of the plan.
(June 1, 2001) 2001 (TLS)125284
2001-DLT-93-279 :: 2001-AD (Del)-5-1093
DMA NURSING HOME AND MEDICAL-ESTABLISHMENT FORUM Vs. UNION OF INDIA
O. P. Dwivedi
( 1 ) THE petitioner, DMA Nursing Home and Medical establishment, an association of about 350 nursing homes and medical establishments in Delhi have filed this writ petition under Article 226 of the Constitution of India challenging the vires of guide-line Nos. IX and XI, issued by the respondent N0. 1 in pursuance of notification no. HI 1017/7/91/doib dated 7/5/1999 permitting mixed land use namely nursing homes, guest houses and banks in the residential areas.
( 2 ) THE first comprehensive. Master Plan for Delhi was notified under section 7 of the Delhi Development Act, 1957 on 1/9/1962. Later on, on account of mutifarious developments, the Central Government extensively modified the Master Plan 1962 under section 11 a of the Delhi Development Act, 1957 keeping in view the new dimensions in urban development and the perspective for Delhi in the year 2001. This modified Master Plan was titled as "master Plan for Delhi perspective 2001". Non residential activities like nursing homes were expressly excluded from the residential areas by virtue of clause 10. 0 III (d) of Development Code. Master Plan 2001 recognised that the planned city should be a hierarchical cellular structure with nuclei to contain essential facilities at different levels and with that end in view laid down standards to be followed while preparing divisional plans and area plans. Nursing homes were recognised as an essential facility and accordingly the master Plan 2001 laid down that in the process of preparation of division and area plans provision ought to be made for two nursing homes of the area of 2000 sq. mt. each at the community level (2000 families with the population of one Lac ). It appears that in actual implementation no land was earmarked for nursing homes either because the land designated for the said user In the zonal plan was subsequently allotted for purposes other than nursing homes or because there was no vacant land available which could be specified, designated for nursing homes. In the meantime many nursing homes came up in different parts of the city and for this property tax and other local taxes at commercial rates were charged from them. Besides, local authorities also charged a tax/fee from the nursing homes for disposal of the medical waste. It may be stated here that long back in the year 1953, Delhi Nursing Home Registration Act 1953 had been enacted with the objective of regulating nursing homes in delhi by providing for registration and Inspection. Realising the necessity of having nursing homes in residential areas. Government of India, Ministry of Urban development, Delhi Division, permitted mixed land use vide notification No. II-11017/7/91/ddib dated 7/5/1999 by making necessary modification in the Master Plan. By- this notification nursing homes, guest houses and Banks were allowed to be run on residential plots of the minimum size of 209 Sq. mt. facing a minimum road width of 18 mt. (9 mt in special area and 13. 5 mt. in the rehabilitation colonies) subject to the conditions laid down under guide-lines issued in this regard. The guide-lines which were issued pursuant to notification dated 7/5/1999,inter alia, provided that:-
(IX) A permission fee will be charged at the rate of 10% per annum of the difference between the current commercial rate and current residential rate as approved by this ministry. The fees will be based on the actual floor area utilised for such non-residential purpose- The amount collected through the levy of permission fee will be placed in a separate escrow account by the concerned local body collecting it and will be utilised for augmentation of infrastructure in and around the area.
(X) Where residential premises are already being put to such non-residential use, the same will be regularised on their payment of permission fee vi
