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2020 DIGILAW 92 (CAL)

Bhaskar Ghosh v. State Of West Bengal

2020-01-22

SABYASACHI BHATTACHARYYA

body2020
JUDGMENT Sabyasachi Bhattacharyya, J. - The present challenge has been taken out by a resident of a G+4 storied building at Municipal Holding No. 23/32, Jessore Road, Sidheswari Colony, Kolkata - 700 028. 2. Admittedly, the initial sanctioned plan of the building was revised, thereby earmarking the ground and first floors thereof for commercial purpose and the second, third and fourth floors for residential purpose. 3. The grievance of the petitioner is that the private respondent no. 13 is running a clinical establishment on the ground and first floors of the said building in gross violation of various provisions of law and as such, the licence of the said clinical establishment ought to be quashed and no further renewal of such licence should be granted. 4. It is also alleged that the respondent no. 13 encroached upon the residential second floor of the said building by opening an IVF unit in a portion of the said floor, although the said floor was designated for residential use as per the sanctioned plan. 5. It is argued on behalf of the petitioner that Rule 2A of the West Bengal Municipal (Building) Rules, 2007 (hereinafter referred to as "the Building Rules") provides for the classification of buildings, based on principal occupancy, in several categories. 6. Clause (a) of Rule 2A defines "residential building" as follows: "(a) "Residential building" means, any building in which sleeping accommodation is provided for normal residential purpose as the principal use with cooking facility or dining facility or both; such building shall included one or two or multi-family dwellings, lodging, hostels, old age homes, dormitories, apartment houses and flats. In case of hostels or dormitories attached to educational institution there may or may not be any cooking facilities." 7. Clause (c) thereof defines "institutional building" as follows: "(c) "Institutional building" means, any building or part thereof ordinarily providing sleeping accommodation for occupants and used for the purposes of medical or other treatment or care of persons suffering from physical or mental illness, disease or infirmity, care of infants, convalescents or aged persons and for penal or correctional definition in which the liberty of the inmates is restricted; such buildings shall include hospitals, clinics, diagnostic centres, doctor's chamber, dispensaries, nursing homes, sanatoria, custodial institutions and penal institutions like jails, prisons, mental hospitals and reformatories;" 8. Clause (e) of the said Rule defines "commercial building" in the following manner:- "(e) "Commercial building" means, any building or part thereof used for transaction of business for keeping of accounts and records of or similar purposes; such buildings shall include offices, banks, professional establishments and court houses, for the principal function of transaction of public business and keeping of books and records, and shall also include office buildings (premises) solely or principally used as an office or for office purposes. Explanation - (i) The expression "office purpose" shall include the purpose of administration and clerical work (including telephone/telegraph and computer operating), and (ii) The expression "clerical work" shall include writing; book-keeping, sorting papers, typing duplicating; punching cards or tapes, machine calculating drawing of matter for publication, and editorial preparation of matter for publications." 9. It is argued that the ground and first floors of the building were converted to 'commercial building', which does not contemplate a hospital or clinical establishment. 10. Hospitals, clinics, diagnostic centres, doctor's chambers, dispensaries, nursing homes, sanatoria etc., are classified under the head "institutional building". 11. Since it is an admitted position that no part of the building-in-question was classified or converted to "institutional building", the entire clinical establishment is running illegally and the licence for such running should be quashed and refused to be renewed. 12. Learned counsel for the petitioner next argues that, in a letter dated May 3, 2019 addressed to the Chairman, Dum Dum Municipality, respondent no. 13 admitted that the staircase of the building was for common use - both commercial and residential. Such submission is based on a report filed by the respondent nos. 1 and 4 to 6 (at page-13 thereof), filed in connection with the present writ petition. 13. Learned counsel for the petitioner next submits that the clinical establishment on the ground and first floors of the building is constructed in contravention of Rule 5, sub-rules (3) and (5) of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Rules, 2017 (hereinafter referred to as "the 2017 Rules"). 14. 13. Learned counsel for the petitioner next submits that the clinical establishment on the ground and first floors of the building is constructed in contravention of Rule 5, sub-rules (3) and (5) of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Rules, 2017 (hereinafter referred to as "the 2017 Rules"). 14. Sub-Rules (3) and (5) of Rule 5 of the 2017 Rules read respectively as follows: "(3) The clinical establishment shall take necessary precaution so guarding that the building or premises of clinical establishment is not being used for any purposes other than those it is registered with an the clinical establishment shall not allow the use of the building, premises or equipment by a person who is not an employee or staff of that establishment and shall not allow any unwanted person to stay there overnight: Provided that, a patient party may be allowed to stay only if approved by the Primary Consultant or RMO Explanation:"premises" means any building, structure or tent together with the land on which it is situated and the adjoining land used in connection with it and includes any land without any building, structure or tent and any vehicle, conveyance, vessels or aircraft." "(5) The clinical establishment shall ensure that such establishment is accommodated in a building having approved plan duly certified by the local Authority concerned and if such plan is approved for residential purpose, it is converted accordingly with approval of that local Authority: Provided that, under any circumstances, the premises of the clinical establishment should be separated from rooms or spaces for private uses or other commercial uses i.e. there should be no free access. Provided further that the establishment shall be a composite unit i.e. there should be no public thoroughfare within the premises of the establishment." 15. It is submitted that the said sub-rules have to be read in conjunction with Section 7(2)(a) of the West Bengal Clinical Establishment (Registration, Regulation and Transparency) Act, 2017 (hereinafter referred to as "the 2017 Act"). Rule 7(2)(a) provides that no licence shall be granted in respect of a clinical establishment unless it has provided such minimum standard of accommodation as may be prescribed. 16. Learned counsel for the petitioner further submits that no fire safety certificate has been issued for running the clinical establishment and relies on pages - 70, 71 and 73 of the report filed by the respondent nos. 16. Learned counsel for the petitioner further submits that no fire safety certificate has been issued for running the clinical establishment and relies on pages - 70, 71 and 73 of the report filed by the respondent nos. 1 and 4 to 6, which show that the private respondent is yet to fulfil several conditions as recommended under the West Bengal Fire and Emergency Services guidelines. 17. As regards the 890 sq. ft. area occupied on the second floor by the private respondent for the purpose of running an IVF unit, it is submitted that not only is the said portion a part of the residential area of the building, as per the revised sanctioned plan as well, no trade licence for the said area was ever issued in favour of the respondent no. 3, as such, making the running of the IVF unit illegal. 18. It is further added that the private respondent failed to perform its duty as occupier under Rule 4 of the Bio-Medical Waste (Management and Handling) Rules, 1998 (hereinafter referred to as "the 1998 Rules") and has not been treating and disposing of bio-medical waste as per the Schedule I and the standards prescribed in Schedule V Rule 5 of the 1998 Rules. On such ground also, the licence of the respondent no. 3 for running a clinical establishment should be revoked, as per the submission of the petitioner. 19. The respondent nos.1 and 4 to 5 submit that the writ petition is premature, inasmuch as the same alleges inaction on the part of the said respondents in not supplying a copy of the enquiry report pursuant to an enquiry conducted by the respondent no. 6 in reference with Memo No. CMOH (NPG)/CE, dated June 3, 2019. 20. As per directions passed by this court, it is submitted that the said respondents have filed a report in the form of an affidavit on January 9, 2020. Page - 78 of the report contains the enquiry report dated July 3, 2019 filed by the ACMO, Health, Barrackpore, which indicates violation of the provisions of the 2017 Rules. Section 20(2) of the 2017 Act, it is argued, mandates a reasonable opportunity of being heard being given to the clinical establishment before any punitive measures are contemplated and/or acted upon. Section 20(2) of the 2017 Act, it is argued, mandates a reasonable opportunity of being heard being given to the clinical establishment before any punitive measures are contemplated and/or acted upon. Accordingly, a show-cause notice bearing Memo No. CMOH (NPG)/CE/4855, dated September 12, 2019 was served upon the private respondent and the private respondent filed its response on September 14, 2019. The writ petition was filed on August 2, 2019 without giving the respondent reasonable time to act in accordance with law. 21. It is further submitted that where the alleged violation of the provisions of law can be removed, the authority may issue a notice upon the clinical establishment under Section 23 and/or impose such penalties, depending on whether the contraventions are of a minor or major deficiency. From the report, it appears that the authority under the Act, having issued a show- cause notice upon the private respondent, is duty bound to take steps in accordance with Sections 21, 22, 23 and/or 24 of the 2017 Act. 22. The 2017 Act provides a procedure for statutory appeal against any order passed under Sections 13, 14, 20, 21 and 23 as well. There is a bar on any further exercise of jurisdiction in such matters. 23. Admittedly, the violation under Section 5 of the 2017 Act, read with the Building Rules, prima facie appear to be insurmountable by the private respondent according to the respondent nos. 1 and 4 to 6. The Clinical Establishment (Registration and Regulation) Act, 2010 (hereinafter referred to as "the Clinical Establishment Act") has been enacted in public interest to provide for registration, regulation and transparency, coupled with public safety and security. It is submitted that this court, under its writ jurisdiction, is vested with the right to intervene and pass directions as prayed for. Thus, respondent nos. 1 and 4 to 6 invite the intervention of this court in the interest of justice on the basis of the report filed by the said respondents in order to avoid multifarious litigation and in the interest of justice. 24. Learned counsel appearing for the private respondent submits at the outset that the classification in Rule 2A of the Building Rules is merely a factor for granting conversion. 24. Learned counsel appearing for the private respondent submits at the outset that the classification in Rule 2A of the Building Rules is merely a factor for granting conversion. It is further submitted that property-in-question was converted to "commercial" partially by the Municipality as per Section 200 of the West Bengal Municipal Act, 1993 (hereinafter referred to as "the 1993 Act"). 25. The classification under Section 197(2) of the 1993 Act is not a criterion for the purpose of conversion as per Section 200 of the Act. It is submitted that Section 197(2) of the 1993 Act, read with the Building Rules, makes it clear that occupancy may be mixed and part of the building may also have the "use group" or "occupancy" or "principal occupancy" for institutional purposes and may be classified accordingly. Such classification, it is submitted, has no nexus with Rule 2A of the Building Rules. Such classification is only for the purpose of determining taxes and not applicable to the present case. 26. It is further submitted on behalf of the private respondent that the total area purchased by the writ petitioner on October 16, 2015 was less than 50 percent of the entire building. As such, more than 50 percent of the area of the whole building in terms of "principal occupancy" should have been classified as "institutional". Yet, the Municipality converted and classified the same as commercial. Section 200 of the 1993 Act has wider connotation, it is argued, than Section 197, but both are not mutually destructive but reconcilable. 27. It is argued by learned counsel for the private respondent that Rule 2A(c), of the Building Rules, as far as institutional buildings are concerned, has no consequence in respect of violation of securing compliance with such definition. 28. It is argued that Section 200 of the 1993 Act is independent of any other provisions and Section 197 cannot be considered for such purpose. 29. It is further argued on behalf of the private respondent that the definition clause cannot override other provisions and if there is a conflict between the two, the definition clause cannot supersede the other clauses. 30. As such, the definition of "institutional building" is not of any consequence and a wrong classification by the Municipality based on existing user cannot have any detrimental effect on the clinical establishment situated at the disputed premises. 30. As such, the definition of "institutional building" is not of any consequence and a wrong classification by the Municipality based on existing user cannot have any detrimental effect on the clinical establishment situated at the disputed premises. A wrong classification by the Municipality, it is submitted, on the exiting uses of the building cannot have any effect on the Clinical Establishment Rules (Rule 5 thereof). The expression 'premises' under the said Rules has wide connotation, read with Rule 2A(c) of the Building Rules. It is thus submitted that a wrong conversion to commercial user instead of institutional user, by the concerned Municipality, cannot have any detrimental effect on the running of clinical establishment by the private respondent. 31. Satisfaction of the parameters incorporated in Schedule I of the 2017 Rules and Rule 5(2), it is submitted, are sufficient. 32. That apart, it is argued that no legal right of the petitioner is hampered by the running of the clinical establishment by the private respondent, since the petitioner purchased his portion of the apartment, keeping his eyes wide open, only in the year 2016, when the clinical establishment was already running. 33. It is argued further that Sections 118 - 120 of the 1993 Act guide trade licence and have no nexus with the use or occupancy of the premises. 34. As far as encroachment of common space is concerned, it is argued that the same is a disputed question of fact and cannot be decided by the writ court. 35. Regarding fire licence, it is submitted by the private respondent that the requisite inspection has already been done by the authorities and no adverse report has been filed as yet. The establishment started on the recommendation of the Fire Department but due to subsequent complaints, the final fire licence has been withheld, although the unit is complying with all formalities and has the approval of various authorities as well as licence issued by competent authorities to run the establishment. As such, the writ petition, according to the respondent no. 13, ought to be dismissed. 36. As such, the writ petition, according to the respondent no. 13, ought to be dismissed. 36. After hearing both sides and on perusal of the materials on record as well as the relevant provisions of law, it is evident that the classification of building as per Rule 2A under Part IA of the Building Rules into several categories has to be read in the light of the object and purpose of the Building Rules. 37. The preamble of the Building Rules stipulates that the said Rules were enacted in exercise of the power conferred by Section 417(1), read with Section 198, of the 1993 Act. Section 417(1) of the 1993 Act stipulates that the State Government may, after previous publication, make Rules for carrying out the purposes of the Act. 38. On the other hand, Section 198(1) of the 1993 Act categorically provides that the State Government may make Rules to provide for - (a) The Regulation or restriction of the use of sites for buildings, and (b) The Regulation or restriction of building. 39. Sub-Section (2) of Section 198 deals with other ancillary aspects without prejudice to the generality of the power as envisaged in sub-section (1) of the said section. As such, the preamble of the Building Rules itself makes it abundantly clear that the Rules were made by the State Government to provide for the regulation or restriction of the use of sites for buildings and the regulation or restriction of building. 40. Coming next to the language of sub-rule (3) of Rule 5 of the 2017 Rules, it becomes abundantly clear that a clinical establishment shall take necessary precaution so guarding that the building or premises of clinical establishment is not being used for any purposes other than those it is registered with. Sub- rule (5) of Rule 5 provides that a clinical establishment shall ensure that it is accommodated in a building having approved plan, duly certified by the local Authority concerned, and if such plan is approved for residential purpose, it is converted accordingly with the approval of that local Authority. 41. In the light of the language of the aforesaid sub-sections of Rule 5 of the 2017 Rules, a clinical establishment has to comply with the municipal laws in force, as far as the user and approval of plan and/or conversion is concerned. 42. 41. In the light of the language of the aforesaid sub-sections of Rule 5 of the 2017 Rules, a clinical establishment has to comply with the municipal laws in force, as far as the user and approval of plan and/or conversion is concerned. 42. Rule 198, which is the driving force behind the enactment of the Building Rules, specifically stipulates that such Rules are made to provide for the regulation or restriction of the use of sites for buildings and the regulation or restriction of building. As such, seen in the light of the preamble of the Building Rules framed under the 1993 Act, the classifications as stipulated in Rule 2A of the Building Rules have to be construed for the purpose of regulation of the use of the sites and not for the purpose of taxation, as argued by the private respondent. Seen in such light, it is crystal clear that a hospital or a clinical establishment of any sort, including clinics, diagnostic centres, doctor's chamber, dispensaries and nursing homes, has to be run from an "institutional building" as defined in clause (c) of Rule 2A. 43. Clause (e) of Rule 2A defines "commercial building", which do not include any sort of clinical establishment, as opposed to clause (c) or, for that matter, any other clause of Rule 2A. Clause (a) of Rule 2A specifically describes residential buildings. 44. Thus, keeping in mind that the ground and first floors were converted for commercial use and not as "institutional building", the clinical establishment does not fall within the user as contemplated by commercial building. As such, the clinical establishment is being run from the ground and first floors of the building-in-question, despite the said portion having not been converted to an "institutional building". As such, running of the establishment violates sub-rules (3) and (5) of Rule 5 of the 2017 Rules, which co-relate the clinical establishment with the governing municipal law. Both sub-rule (3) and sub-rule (5) indicate that the clinical establishment cannot be used for any purpose other than for those it is registered and that such establishment is accommodated in a building having approved plan duly certified by the local Authority concerned (here, the Municipal Authority) and if such plan is approved for residential purpose, it has to be converted "accordingly with approval of that local Authority". 45. 45. Hence, read conjointly with each other, the aforesaid provisions clearly indicate that the clinical establishment run by the respondent no. 13 does not satisfy Rule 5, sub-Rules (3) and (5) of the 2017 Act itself. 46. That apart, the IVF unit opened on the second floor of the said building, covering about 890 sq. ft., is patently de hors the law, since the said floor is designated, along with the third and fourth floors, for residential purpose. Moreover, the said unit violates both the provisos to sub-Rule (5) of Rule 5 of the 2017 Rules, inasmuch as the unit, since situated within a residential floor, is not separated from rooms or spaces for private uses, and the segregation of the unit from the rest of the clinical establishment, situated on different floors with common staircase and residential space intervening, is not a composite unit not having a public thoroughfare within the premises of the establishment, within the meaning of the second proviso. Hence, there cannot be any doubt that the IVF unit is also being run illegally, taken together with the rest of the clinical establishment. 47. Apart from the aforementioned illegalities, as per the report of the respondent nos. 1 and 4 to 6, the private respondent no. 13 is yet to fulfill several conditions as recommended by the West Bengal Fire and Emergency Services and admittedly no final fire safety certificate has been issued as yet for running the clinical establishment, which adds to the illegality in the running of such business. 48. However, the petitioner's argument that the private respondent has failed to perform its duty as occupier under Rule 4 of the 1998 Rules and has not been treating and disposing of bio-medical waste as per the Schedule I and the standards prescribed in Schedule V Rule 5 of the 1998 Rules, has not been substantiated by corroborative material. As such, the clinical establishment cannot be said to be run illegally on that ground. 49. As such, the clinical establishment cannot be said to be run illegally on that ground. 49. As regards the argument of the private respondent that a wrong classification by the Municipality cannot affect the clinical establishment as far as Rule 5 of the 2017 Rules is concerned, the said argument is tainted with the inherent fallacy that Rule 5, sub-Rules (3) and (5) co-relate the premises on which the clinical establishment is run with the 1993 Act, since the said establishment has to be run in consonance with the laws of the local Authority and have to have an approved plan or be converted accordingly, complying with the Rules of such Authority. As such, a clinical establishment is not governed merely by the Clinical Establishments (Registration and Regulation) Act, 2010 but is intrinsically co-related, by virtue of the aforementioned provisions of the said Act itself, with the municipal laws, which the establishment of the private respondent no. 13 violates. 50. The argument of the private respondent with regard to the petitioner having no legal right being hampered by the clinical establishment is thoroughly unacceptable, since the petitioner, irrespective of the date of his purchase, is an owner in the residential portion of the building-in-question and is directly affected by the violation of norms and law by the private respondent's clinical establishment, housed in the said building. 51. In such view of the matter and in view of the stand taken by the respondent nos. 1 and 4 to 6, it would be useless to relegate the matter for further decision to the authorities contemplated under the Clinical Establishment Act, since the establishment and running of the clinical establishment-in-question are patently violative of law. 52. Hence, there is no other option but to direct the cancellation of the licence given to the clinical establishment run by the respondent no. 13 as a whole, including the 890 sq. ft. IVF unit run from the second floor. 53. However, keeping in view the nature of work being done from the said establishment, which, if stopped overnight, would hamper the interests of various patients, whose diagnoses and treatment may be jeopardized since they would have no opportunity to shift to other establishments, some time has to be given to the respondent no. 13 to stop the clinical establishment-in- question. 54. 13 to stop the clinical establishment-in- question. 54. Accordingly, W.P. No. 17387(W) of 2019 is allowed, thereby directing that the licence granted to the respondent no. 13 for running a clinical establishment in any portion of the premises no. 23/32, Jessore Road, Sidheswari Colony, Kolkata - 700 028 shall stand quashed on and from this day, however, with the rider that the running of the establishment shall continue on an ad hoc basis till February 20, 2020 for the limited purpose of permitting the patients who have been enjoying the services of the establishment to find alternative establishments and/or make alternative arrangements with regard to availing such services and to allow the private respondent to shift its equipment and establishment to some alternative place upon compliance of due legal formalities. By the midnight of February 20, 2020, the functioning of the clinical establishment-in-question shall cease altogether. 55. The licence granted to the respondent no. 13 shall not be renewed. 56. It is made clear that, in the event, the private respondent no. 13 rectifies all the loopholes as pointed out in the present judgment, including taking steps and have conversion of the relevant portion of the building to an "institutional building" and complying with fire safety norms and all other requisite legal formalities in future, the present order would not operate as a bar for the private respondent no. 13 to apply for fresh licence to run a clinical establishment from the building-in-question which application, if made in compliance with all legal formalities, shall be considered, in accordance with law, by the appropriate authorities. 57. There will be no order as to costs. 58. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.