Judgement reserved on 18.5.2010
Judgement delivered on 14.7.2010
CIVIL MISC. WRIT PETITION NO.58404 OF 2009
Dr. Shiv Milan Yadav vs. State of UP and others
Connected with
CIVIL MISC. WRIT PETITION NO. 58406 OF 2009
Dr. Suman Singh vs. State of UP and others
AND
CIVIL MISC. WRIT PETITION NO. 58407 OF 2009
Dr. Om Hari Agnihotri vs. State of UP and others
AND
CIVIL MISC. WRIT PETITION NO.58409 OF 2009
Dr. Sanjay Kumar Doharey vs. State of UP and others
AND
CIVIL MISC. WRIT PETITION NO. 58410 OF 2009
Dr. P.K. Varma vs. State of UP and others
Hon'ble Sunil Ambwani, J.
Hon’ble Kashi Nath Pandey, J.
1. Heard Shri Arvind Kumar Srivastava, learned counsel
appearing for the petitioners. Shri J.K. Tiwari, learned Standing
Counsel appears for the State respondents. Shri Chandra Shekhar
Singh appears for UP Awas Evam Vikas Parishad.
2. Dr. Shiv Milan Yadav the petitioner in Writ Petition No.
58404 of 2009 is a qualified and registered medical practitioner. He
is registered with the Chief Medical Officer on a declaration
furnished by him in terms of the orders of this Court in Contempt
Petition No. 820 of 2002 Rajesh Kumar Srivastava vs. A.P. Verma
and others. In Writ Petition No. 58406 of 2009 Dr. Suman Singh; in
Writ Petition No. 58407 of 2009 Dr. Om Hari Agnihotri; in Writ
Petition No. 58409 of 2009 Dr. Sanjay Kumar Doharey; in Writ
Petition No. 58410 of 2009 Dr. P.K. Varma, the petitioners are
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qualified and registered medical practitioners. They are all
registered with the Chief Medical Officer. All the petitioners are
residing and carrying on their medical practice in their residential
house Nos. C-160, A-241 & A-242, C-165, C-9 & C-163 in Awas &
Vikas Colony in District Etawah. They have challenged the notices
issued by the Chief Medical Officer, informing them that the
clinics/hospitals/nursing homes run by them in the residential houses
in Awas Evam Vikas Colony Etawah is against the Rules of the UP
Awas Evam Vikas Parishad. Their registration has been suspended
forthwith and they have been directed to close the medical facility
run in the residential houses, within 30 days and to inform him about
the change of the place of their clinics/hospitals/nursing homes,
failing which proceedings will be taken to cancel their registration.
3. Shri Arvind Srivastava submits that the petitioners are
qualified medical practitioners. They are registered with the Medical
Council of U.P. and with the Chief Medical Officer under the orders
of the High Court. They are running their clinics and carrying on
their medical practice in the residential houses in the colony. No one
had made complaint against their professional activity. The Chief
Medical Officer, Etawah, has, on his own, without there being any
complaint in writing from any person, on an information received
from the UP Awas Evam Vikas Parishad, given notices to the
petitioners and suspended their registration. Shri Srivastava submits
that the medical facilities provided by the petitioners from their
residential houses are not prohibited by any law. The petitioners as
qualified doctors have fundamental right under Article 19 (1) (g) of
the Constitution of India to carry on their profession at any place of
their choice. The registration with the Medical Council of Uttar
Pradesh authorises them to run their clinics/nursing homes/hospitals,
and to offer diagnostic facilities, which are part of professional
services. The Chief Medical Officer has no authority to suspend their
registration. He submits that the UP Awas Evam Vikas Parishad has
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not framed any by-laws or regulations referable to UP Awas Evam
Vikas Parisahd Act, which may restrict their right to carry on the
medical profession and to treat patients in the residential houses.
Shri Arvind Srivastava submits that all the medical doctors are
bound by the ethics of their profession. They have to treat patients
according their knowledge and ability and for that purpose they also
require diagnostic equipments and techniques as such the x-ray
machines, ultrasound, pathology and a place equipped for carrying
on surgeries. They are also entitled to and are bound to provide in-
house facilities for admitting patients with serious illness and for pre
and post operative care. The petitioners are abiding by all the
conditions imposed on them by law. There is no restriction to
provide these facilities, which are essential to their profession in the
residential houses purchased by them or built by them in the colonies
developed by UP Awas Evam Vikas Parishad.
4. Shri Chandra Shekher Singh appearing for U.P. Awas Evam
Vikas Parishad has filed an affidavit of Shri Probodh Kumar,
Assistant Engineer, Uttar Pradesh Awas Evam Vikas Parishad,
Construction Division 18, (Sub Division Etawah), Kanpur, in which
it is stated that each allottee of the UP Awas Evam Vikas Parishad of
a house or a residential plot has to enter into an agreement with the
Parishad. As per the agreement there is a restriction that the allottee
will not change the user of the land/house. All the petitioners and
other doctors living in the colonies of Awas Evam Vikas Parishad,
were allotted plots in the residential schemes or have purchased the
plots from the original allottees. All of them had executed purchase
agreement/sale deeds under which they cannot have a better title
than the original allottees. All the doctors have admitted before the
Chief Medical Officer in the declaration furnished by them for
registration that they are only providing consultancy. In the joint
inspection carried out in pursuance to the orders of the High Court
on 8.12.2009, it was found that apart from running their clinics all
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the doctors are using the residential accommodation for running
diagnostic clinics and that some of them are also admitting patients.
5. Shri C.S. Singh submits that the original allottees, under
which the petitioners are claiming their rights had agreed to a
condition under clause 2 (d) that the allottee/purchaser under hire
purchase scheme will not use the property, for business or commerce
without the written permission of the owner. They had agreed not
use the premise for any purpose other than residential purposes and
not to carry out any activity in the house which, in the opinion of
other residents of the colony, is against public interest, or for any
purpose other than the purpose for which the colony has been
developed.
6. Shri C.S. Singh submits that Shri Deepak Kumar, Housing
Commissioner by his letter dated 30.3.2009 informed all the
Executive Engineers (Competent Authorities) of UP Awas Evam
Vikas Parishad in U.P., for taking effective steps against
unauthorised constructions and change of land use. In paragraphs 10
of this letter he directed that where the property is being used for
nursing home/hospital, medicine shops etc., a request should be
made to Chief Medical Officer to cancel the licence. The letter also
provided for restriction on the user of the premises as school, hotel
and for any purpose other than the purpose for which the plot/house
was allotted. The Chief Medical Officer, Etawah informed the
Executive Engineer, Construction Division 12, UP Awas Evam
Vikas Parishad, Hamirpur Road, Kanpur, that a number of doctors
including Dr. Suman Singh resident of A-242 are running nursing
homes in residential houses. He has required the Executive Engineer
to furnish the necessary documents with regard to the conditions
under which the house was allotted.
7. Dr. Kamal Kumar, Medical Officer, Community Health
Centre, Bharthana, Etawah has filed a counter affidavit on behalf of
the State. He has referred to the circular letter issued by the UP
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Awas Evam Vikas Parishad dated 30.3.2009, requesting the Chief
Medical Officer to take notice of those nursing homes/clinics which
are being run in residential colonies, and which is not permissible
under law. In pursuance of the directions issued by the High Court
inspections were made and in which it was found that medical
doctors occupying the residential houses are not running clinics but
were actually found to be running medical facilities and x-ray plants,
ultrasound pathology, medical stores, operation theatre and wards
including general wards. It was found that these facilities are being
run in cubical type room which is not authorised in residential
colonies. The inspection report of Dr. A.S. Sahai, Chief Medical
Officer, Etawah dated 25.1.2010 in respect of Dr. Suman Singh, Dr.
Omhari Agnihotri, Dr. Sanjai Kumar Doharey, Dr. P.K. Varma and
Dr. Shiv Mohan Yadav, gives the details of their professional
activities in residential houses as follows:
“1. Writ Petition No. 58406 of 2009 Dr. Suman Singh vs.
State of UP and othersHouse No. A 242 Awas Vikas Scheme-I Etawah is being used by
Dr. Suman Singh as registered ‘Surya Surgical and Maternity
Centre’. In the inspection the following facilities were found in the
house on ground floor: ultrasound room 9.5′ x 9.5′; computer
room 9.5’x9.5′, operation room 15.1’x9′, private ward 9.5’x9.5′
(3 cubicles), employees room 9.5’x9.5′, chaukidars room 5×4′,
general ward 15.1’x9′First floor- general ward 15.1’x9′, machines in the operation
theatre ( O.T. Light, Suction machine, O.T. table/delivery
table. Nursing home has 5 K.V.A. commercial connection but
no bill was produced. A 5 K.V.A. Generator was found. The
house A-241 is being used as residential house.
The inspections were made with the help of Dr. Shri Balbir Singh,
Surgeon, who is husband of Dr. Smt. Suman Singh and is posted as
Surgeon at Community Health Centre, Karhal, Mainpuri.
2. Writ Petition No. 58407 of 2009 Dr. Omhari Agnihotri
vs. State of UP and othersHouse No. C-165 Awas Vikas Scheme-I Etawah is being used by
Dr. Omhari Agnihotri. The clinic has following medical facilities:-
Ground floor-Dressing room 13’x11′, hall 18’x10′ (for residential
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use); hall 18’x17.5′ (for residential use); Dr. consultancy room
20’x12′ with an outside medical store 12’x8′. The clinic has a
commercial electric connection. A generator of 5 K.V.A was found
in the clinic. Dr. Omhari Agnihotri got the inspection made. He is a
registered medical practitioner and states that there is no doctor
working in his clinic.
3. Writ Petition No. 58409 of 2009 Dr. Sanjay Kumar
Dohray State of UP and others
House No. C-9 Awas Vikas Scheme-I Etawah is being used by Dr.
Sanjay Kumar as registered ‘Deep Kiran Nursing Home’ with
following medical facilities:-
Ground floor- OPD chamber 9.8’x9.6′; OPD Chamber
8.3’x8.7′; operation theatre 10.8×18.2′;
General ward 10.6’x18.6′, waiting room 10.6’x18.6′;
First floor- general ward 10.6’x18.6′; private ward 8’x8′,
private ward 8’x8′;
The details of the machines in the operation (vial apparatus, OT
table, OT light, pulse oxemeter, electric kothari small. The
clinic has commercial electric connection. It has a 5 K.V.A.
generator. The inspection was made in presence of Dr. Sanjay
Kumar. He informs that there is no government doctor working or
giving medical facilities in his nursing home.
4. Writ Petition No. 58410 of 2009 Dr. P.K. Varma vs State
of UP and others
House No. C-163 Awas Vikas Scheme-I Etawah is being used by
Dr. P.K. Varma. The clinic has following medical facilities:-
Ground floor-X-ray room 12’x9′, pathology 9.11’x4.7′ medical
store 12.3’x9.0′ doctor’s room 12.4’x7.5′. The clinic has a
commercial electric connection. A generator of 5 K.V.A was found
in the clinic. The inspection was made in presence of Dr. P.K.
Varma. He informs that there is no government doctor working or
giving medical facilities in his clinic.
5. Writ Petition No. 58404 of 2009 Dr. Shiv Milan Yadav vs
State of UP and others
House No. C-160 Awas Vikas Scheme-I Etawah is being used by
Dr. Shiv Milan Yadav. The clinic has following medical facilities:-
On basement:- Pathology 13.2’x5′, X-ray 12’x8′ and three
rooms for private use.
Ground floor- doctor’s room 13’x8′; ward 14’x12′ and four
rooms for private use.
The clinic has a domestic electric connection. A generator of 5
K.V.A was found in the clinic. The inspection was made in
presence of Dr. Shiv Milan Yadav. He informs that there is no
government doctor working or giving medical facilities in his clinic.’
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8. Shri Arvind Srivastava would submit that the Supreme Court
in Writ Petition No. C-552/1997 had granted an interim order in a
matter arising out of State of Haryana and in which the running of
medical facilities in residential houses was under challenge.
9. Shri J.K. Tiwari, learned Standing Counsel has brought on
record the order dated 10.9.2003 by which the Writ Petition was
disposed of by the Apex Court, in terms of signed order under which
the Supreme Court permitted the medical practitioners to give reply
to the competent authorities to the notices issued to them under
Section 17 (3)/17(4) of Haryana Urban Development Authority Act,
1977, with further directions to the authority to dispose of the
reply/representations and pass appropriate orders in each individual
case on merits considering the facts and circumstances and
contentions raised. The representations were to be decided within
four months and until the reply/representation was disposed of, the
status quo as existing in relation to the buildings and their use by the
members of the Association/Indian Medical Association at Farizabad
was to be maintained.
10. Shri Arvind Srivastava submits that the professional activity
carried out by a medical practitioner includes all such activity, which
is incidental to, and is necessary for the purposes of using his skill
and knowledge for treatment. The running of medical store and
diagnostic clinics is essential for diagnosis. It is also necessary for
the doctors to admit patients suffering from serious illness and to
provide them post operative medical care in case of surgery. These
incidental activities cannot be stopped as they are part of the
profession. It is alleged that the petitioners have declared that they
will carry on medical profession and will be running clinics. He
submits that nursing home and hospital is not defined under any
law. The clinic with incidental diagnostic and other medical facilities
cannot be termed as nursing home/hospital and in any case the
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activities of the petitioners in the residential houses are not contrary
to the purpose for which the residential houses were allotted and are
being used by the petitioners.
11. Shri Arvind Srivastava submits that in Association of
Property Consultants vs. Delhi Development Authority C.W. No.
5370/2001 the High Court at Delhi considered the question whether
a property dealer, property broker or real estate agent can be
construed as a “consultant” under the Haryana Urban Development
(Disposal of Land and Buildings) Amendment Regulations 1998,
which permits the non-nuisance professional consultancy carried out,
defining it as an activity under Regulation 2 (bb), as carried out by
an individual by his personal skill and intelligence and which
includes Doctors (without Nursing Home) as an activity as a
property consultant. The Delhi High Court after considering the
definition of ‘profession’ and ‘consultancy’ in various dictionaries and
judgments held that the consultants will include private consultant.
12. All the petitioners are qualified and registered medical
practitioners. They have a right to run their private medical clinics
for giving professional advice to the patients. A doctor’s clinic run in
a portion of the residential house, which may either be small and
sufficiently big but which may not occupy the entire area with a
waiting hall, a dispensary or even a small diagnostic facility may not
convert the user of a premise from a residential user to commercial
user. A non-nuisance professional activity running by doctors,
lawyers, consultant, architect, chartered accountant, property
consultants, government guides may also fall in the same category.
The trouble starts when the doctor or any other consultants uses a
substantial part of the building, for the activity including the
incidental activities such as x-ray, ultrasonography, pathology,
operation theatre and wards in which patients are admitted. These
activities together with the consultancy, overreaches the limit of the
user for professional use.
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12. The counsels for the State and UP Awas Evam Vikas Parishad
have not placed before us any bye laws or regulations made by UP
Awas Evam Vikas Parishad, which may prohibit such activities. The
condition of allotment/hire purchase/purchase, however, clearly
provides that the dominant user of the building/plot on which the
constructions are raised should be residential and that
allottee/purchaser should not use the premises for business or
commerce.
13. In the present case, we find that all the petitioners are using
the residential houses for the purposes of running their clinics and
have also converted the use of the dominant portion of the building
for providing activities such as x-ray, ultrasonography, pathology,
operation theatre, private wards and general wards. Some of these
wards are so small, tht they may hardly accommodate one bed in the
room. The argument advanced by Shri Arvind Srivastava, that such
user is incidental to medical practice, cannot be accepted. No
reasonable person in such case can say that the user of the building
has not been changed from residential to commercial.
14. In these writ petitions all the doctors have extended their
consultancy to include the diagnostic techniques as well as admitting
patients in the rooms and halls converted as wards. The professional
activity in also these cases has converted the user of the house from
residential to commercial for which all the doctors have therefore
applied for and have electric connections for commercial purposes.
15. The rights given to carry on profession, including medical
profession under Article 19 (1) (g) of the Constitution of India, are
subject to reasonable restrictions in public interest. Such restrictions
can be placed by the law made by the State under Article 19 (6) or
may be imposed under an agreement to which the person may
subscribe, in the interest of other residents. We do not find that a
notice for cancellation of registration is a restriction on the right of a
person to practice profession. The UP Awas Evam Vikas Parishad
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and Chief Medical Officer have not passed any such orders directing
the petitioners to stop medical practice. They have only cautioned
them to stop using the premises for commercial purposes. If they
want to continue to use the diagnostic techniques and surgeries and
admit patients, they should shift the place of their business to some
other place, where such activity is permitted. The user of the
premises by the professionals for a purpose other than the purpose
for which it was allotted or purchased by him is not a restriction on
the right to carry on the profession.
16. The medical professionals running nursing homes are also
required to obtain registration for running ultrasound machines,
permission from the Atomic Energy Commission for the use of x-ray
plant and to dispose of the medical waste after obtaining registration
and the facilities provided under the Bio Medical Waste
Management Rules. There is nothing on record to show that the
petitioners have obtained these permissions and licenses.
17. The restrictions placed by the UP Awas Evam Vikas Parishad
for using a residential accommodation allotted/purchased for any
purpose other than residential purposes is also for maintaining a
peaceful environment for other residents in the residential colonies.
Any business or commercial activity involves these houses to be
visited by patients and their relatives, use of motor vehicles,
parking, and putting pressure of the civic amenities such as
electricity, water, sewer and roads. It also affects the tranquillity of
the residential area used by the senior citizen and the children. The
change of the dominant user of the building in a residential colony
not only affects the immediate neighbours but all the residents of the
colony and thus it is essential that in the residential colonies, the
constructions should be used dominantly for residential purposes.
18. We do not find that the petitioners have been asked to stop
their medical practice or to stop the patients visiting in their clinics.
They have been simply asked to stop the use of diagnostic
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techniques including x-ray, ultrasonography, pathology, running of
operation theatre, maternity centres and for using their houses for
admitting patients. Such an activity is violative of the terms and
conditions of purchase and constructions of the houses and the land
use, and can be regulated by the UP Awas Evam Vikas Parishad
both by giving notice of cancellation of the allotment or by taking
steps to cancel the registration under which such activity is being
carried out. The Chief Medical Officer, Etawah has registered the
petitioners as medical practitioners, under a declaration given by
them to run the consultancy clinics the petitioners. The petitioners
are obliged to abide by their declarations.
19. Inspite of the repeated reminders given by the Court, the State
Government has not made any law regulating the medical practice
including the running of private nursing homes/diagnostic clinics
and hospital. In the absence of any law covering the field the Court
has to apply the test of reasonableness which may protect both the
residents of the colony as well as patients visiting the doctors. It is
inhuman for the patients to be given professional service in such
small residential buildings. The size of the rooms of operation
theatre, private wards and general wards would show that the doctors
in order to earn money have converted small houses into nursing
homes packing up the patients in unhygienic cubicles. A room
measuring 9.5×9.5′ can hardly be used as a hygienic private ward,
and in any case a room measuring 15.1’x19′ cannot be used as a
general ward. The petitioners are apparently using the residential
accommodation for running nursing homes putting their patients to
serious inconvenience.
20. We do not find any good ground to interfere with the notices
and the directions given by the Chief Medical Officer to the
petitioners to shift their activities other than consultancy including
diagnostic, surgical, and admitting the patients to a place other than
the residential houses in the Awas Evam Vikas Colony. It will,
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however, be open to the petitioners to either shift the medical
services, except the consultancy from their residential houses in the
Awas Evam Vikas Colony to any other place, or to confine their
activities in the colony only for consultancy.
21. All the writ petitions are dismissed with the aforesaid
observations.
Dt.14.7.2010
RKP/