B.C. Patel, C.J.
1. By filing this petition, petitioners have prayed for issuance of a writ of prohibition/mandamus or any other appropriate writ or directions, directing the respondents not to issue any drug license for sale and manufacture of the drugs in any residential premises and has further prayed for directing the respondents to grant license only in commercial areas. Petitioners are residents of Delhi and are engaged in business of various types of medicines. They have their shops in the market area in a commercial zone which is fully developed by Delhi Development Authority (hereinafter referred to as 'the Development Authority'). The shops occupied by the petitioners are in compliance with the provisions of Municipal Laws, Delhi Development Act and building bye laws.
2. The petitioners are holders of licenses issued under Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Drugs Act') read with Drugs and Cosmetics Rules, 1945 (hereinafter referred to as 'the Rules') and particularly licenses issued under Rule 34 of the Drug Rules. The petitioners are also issued license by Municipal Corporation of Delhi for trading at the same place where they are carrying on their business.
3. The grievance made by the petitioner is that the respondents No. 1 to 3 have been granting the license under the Drugs Act and Drugs Rules for retail and wholesale drugs in the residential flats/residential properties in a residential area in various parts of Delhi. It is stated that despite the representation made through unregistered association known as DDA Market Chemist Association, the copy of which is produced as Annexure P3, the respondents continued to issue licenses in utter disregard of the provisions contained in Delhi Development Act (hereinafter referred to as the Development Act) and the rules made there under as also under the provisions contained in the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the Corporation Act) and the rules made there under which do not permit commercial activity in the residential areas.
4. This petition came up for hearing before one of us (A.K. Sikri, J.) on 25th March, 2003. The respondents cited the decision of a Division Bench, dated 6-3-1987 passed in CWP 2343/96 titled 'Shri Kulbhushan Kumar Wason v. Lt. Governor of Delhi and Ors.', as per which Drug Authorities are not supposed to conduct an enquiry with regard to nature of user of the building in possession of the applicant applying for such a license. An opinion was expressed that the matter requires reconsideration.
5. It is in view of this the matter was placed before a Division Bench. On November 18, 2003 Division Bench issued Rule and after hearing the counsel for the parties, the Division Bench opined that the matter is required to be heard by a Full Bench. That is how the matter is placed before this Bench.
6. In order to promote public health, safety, general moral and social welfare of the community, reasonable limitations were put on the use of the land and buildings. The purpose was to ensure that in most appropriate manner there is ecological and healthy development of the city. Such a systematic development of land, in accordance with the bye laws and land use proposals contained in the development plan, would promote quality of life of the people of Delhi. There are 37 use zones classified in 9 categories, namely, residential, commercial, manufacturing, recreational, transportation, utility, government, public and semi public and agricultural and water bodies.
7. A lay out plan would indicate configuration and sizes of the house/premises. Each house/premises is permitted to have a specific use in the residential use zone. The categories of plots and sizes are indicated, including for group housing. It is also kept in mind by the planners that a provision for requisite social infrastructure is to be provided in residential locality for a better living and with this end in view, minimum area is reserved for infrastructure per person. The total land area in hectares as also unit area in hectares with number of units is indicated. Under the heads of education, health, shopping and other community facilities, recreation and utility area, different provisions are made for different type of facility. So far as shopping is concerned, a layout plan is to provide for a local shopping including service centre and convenience shopping. Thus, it is for the development authority to provide such facilities in a residential zone also. It is not the case before the Court that no such facilities are provided. Yet many residential buildings are put to unauthorized use by operating chemists shops there from and, thereforee, the grievances are made by the petitioners.
8. Delhi Development Authority under the Delhi Development Act is required to see that the zoning regulations are strictly complied with. It is for the Development Authority as well as the Municipal Corporation to see that as per the use zones the land is developed and buildings erected are put to use in accordance with use zone after permission to occupy is granted in accordance with law.
9. Zoning protects residential areas from the harmful invasions of commercial and industrial uses, while it promotes business and industry by the very nature of the planned and orderly development that it ensures. By requiring the spacing of buildings, it provides adequate light and air, as well as protection from fire etc. It prevents overcrowding in buildings and land and thus facilitates the residents. This in turn ensures continued and adequate supply of water and other facilities such as, sewerage, transportation, schools and parks.
10. The building byelaws have been framed which are known as the Building Byelaws for the Union Territory of Delhi, 1983. For development of a land one has to make an application under Section 13 of the Development Act. Development is defined in sub-clause (d) of Section 2 of the Development Act. It is only under this provision an application is required to be made and if granted, one can develop the land. That development is required to be made as per Building Byelaws, 1983. Parking space is required to be provided for commercial development as indicated in Clause 13 of the Byelaws. If the premises are required for mercantile purposes, then for the loading and unloading activities area is required to be provided as indicated in Byelaw 13.5. The standards are given equivalent to car spaces (ECS) and it includes parking for all types of vehicles. In a building where development is carried out for commercial purposes, per 100 square metres of floor area, one has to provide two equivalent car spaces (46 sq. meters to 64 sq. meters) over and above the space meant for loading and unloading. Standard is also provided indicating that for open parking 23 square meters is required to be provided for one car. For ground floor covered parking and for basement parking the area is required to be provided as 28 and 32 square metres accordingly per car. This aspect is very important because in a residential locality there is no frequent movement of the people as it is found in a commercial area or a building. So far as the parking arrangements are concerned, strict compliance is absolutely necessary. It is also pointed out that there is vehicular growth at alarming rate. It is also noticed that there is rapid growth in population and it is in view of this the people are looking to move out of the city and it is in view of this that in the areas adjoining the border of the State, other cities have developed such as Noida, Gurgaon, Faridabad etc. Various villages have lost their existence. Considering the population and the number of vehicles sufficient space is required to be provided. One should not forget that over and above the people residing in the city, there are thousands of visitors to the city coming regularly in their own vehicles. Considering the number of vehicles, including heavy motor vehicles and the public vehicles i.e. taxis or autorickshaws, if the people are permitted to use the buildings other than the purpose for which they were constructed certainly it would be nothing but adding to the problems. Considering the nature of the use zones provisions have been made for roads, parking, sewerage and other general facilities. If there is a change in the use zones unauthorisedly, that would be burdensome on the public facilities and people will suffer. It is in view of these reasons other authorities are also bound by the provisions contained in the Development Act and the Building Byelaws made there under. While issuing a license or permit it is not open to such authority to ignore the provisions contained in Development Act, Corporation Act and Building Byelaws. Section 14 of the Development Act, specifically indicates that after 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 than in conformity with such plan. thereforee, it is clear that the residential areas where the buildings are erected can only be used for residential purpose. Section 14 of the Development Act prohibits a person not only from using the building himself in contravention of the Master Plan but also prevents its use by others as well.
11. In a residential area the people, who are allotted land or the owners of the land are permitted to develop the land for the purpose of residence only. If the building is used as an office or hotel or eating house or any other commercial activity, i.e. other than the residence, it will cause nuisance and annoyance to the people occupying the building and residing in the vicinity. When in a residential area people are buying the land or property and develop the property or occupy the property for the purpose of residence, they are assured by the legislature/rule makers that the area is meant for residential purposes and they will be in a position to enjoy a good housing atmosphere. It is in view of this also the use zone cannot be changed as the people have invested money for housing accommodation.
12. It is also required to be noted that the Legislature has made cumbersome and tedious procedure for modifications to the Master Plan and the Zonal Development Plan with clear intention that such modifications are to be carried out only when absolutely essential. It can be done only by following the procedure laid down in Section 11A of the Development Act. This provision is to be resorted to only if the modifications does not affect important character of the plan and does not relate to the extent of the land user or the standards of the population density. Before such exercise is undertaken, objections are to be invited with respect to the proposed modifications. After considering the objections a report is to be made about the suggested modifications to the Central Government with full particulars. The people including the authorities under different statutes cannot be allowed indirectly to modify the development plan by change of the user of the building or the plot to the detriment of the other bonafide users. In short in violation of Master Plan or the Development Plan, the property cannot be used. Sub-section (2) of Section 29 of the Development Act provides for punishment in case any person who uses any land or building in contravention of provision of Section 14 of the Development Act or in contravention of any terms and conditions prescribed by regulations under the proviso to that section. It is punishable with imprisonment and/or fine which may extend to Rs. 5000/- and higher penalties are provided in case of continuing offence or the offence is repeated. It is very clear that no person can use or be permitted to use any land or building otherwise than in conformity with the plan and if one is contravening the provision it is the duty of the Development Authority or the Corporation to take action in the matter.
13. It is required to be understood that if in a colony when permission is granted to erect several buildings for the purpose of residence and facilities are provided accordingly by the builder as well as by the Development Authority and subsequently the buildings are put to commercial use, the same cannot be permitted unless the bye laws are amended/modified after following the provisions of law and that too after making adequate provisions for traffic, parking, water, sewerage and electricity. The Apex Court in Friends Colony Development Committee v. State of Orissa and Ors. : AIR2005SC1 examined the case of unauthorized construction made by a builder and held as under:-
'In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalization of laws by way of legislative enactments and rules and regulations framed there under. Zoning and planning do result in hardship to individual property owners as their freedom to use their property in the way they like, is subjected to regulation and control. The private owners are to some extent prevented from making the most profitable use of their property. But for this reason alone the controlling regulations cannot be termed as arbitrary or unreasonable. The private interest stands subordinated to the public good. It can be stated in a way that power to plan development of city and to regulate the building activity therein flows from the police power of the state. The exercise of such governmental power is justified on account of its being reasonably necessary for the public health, safety, morals or general welfare and ecological considerations; though an unnecessary or unreasonable intermeddling with the private ownership of the property may not be justified.
XXX XXX XXX Structural and lot-area regulations authorize the municipal authorities to regulate and restrict the height, number of stories and other structures; the percentage of a plot that may be occupied; the size of yards, courts, and open spaces; the density of population; and the location and use of buildings and structures. All these have in view and do achieve the larger purpose of the public health, safety or general welfare. So are front setback provisions, average alignments and structural alterations. Any violation of zoning and regulation laws takes the toll in terms of public welfare and convenience being sacrificed apart from the risk. Inconvenience and hardship which is posed to the occupants of the building. [For a detailed discussion reference may be had to the chapter on Zoning and Planning in American Jurisprudence, 2d. Vol.82.]'
14. Thus the Court has pointed out that use of buildings, according to the Regulation, is with a view to achieve the larger purpose, the public health, safety or general welfare. It is in view of this when a building is approved for residential purposes and is allowed to use for commercial purposes, it would be contrary to law and all authorities entitled to issue license or permission are duty bound to see the sanctioned plan as well as completion certificate before issuing license or permits, as the case may be. If the use zone does not allow the use of a building for a purpose other than residence, the building is permitted for residential use only and the completion certificate is granted for that purpose only, then other authorities are duty bound by the said certificate and if satisfied on production of such certificate that the building can be used for commercial purpose, then license can be issued to carry on trade or business. This would obviously apply to the M.C.D. also while issuing certificate for running shop or business or factory.
15. Under the public trust doctrine it is the obligatory duty of the Development Authority as well as the Corporation to maintain public places as public places, to maintain residential areas as residential areas and it is for these authorities not to allow anyone to deface the area. Public trust doctrine is part of Indian law. Those who are charged with the administrative responsibilities, under the pressures of the changing needs of an increasingly complex society, cannot be allowed to encroach upon the rights of the residents.
16. It is required to be noted that there is no dispute by the Development Authority that the area in question is in a residential zone. However, on behalf of the respondent Development Authority, it was submitted that mixed use is permissible for certain areas such as Walled City, Karol Bagh and other parts of the special area. According to the Development Authority clause 10.0 'Mixed Use Regulations' permits commercial activity. However, it is required to be noted that even in such areas it is permissible only on the ground floor to the extent of 25% or 50 sq. mtrs of the total area whichever is less, and, that too the establishment must be run by the owner of the dwelling unit. It is also clear that the front set back of the plot must be surrendered without compensation unconditionally to the local body for the use as part of the right of way, parking etc. Over and above this, it is clear that there must be a lay out plan of the area, indicating parking as per standard, public convenience, landscaping, road and carriage ways for the approval of the authority. This is provided for the benefit of people at large. In absence of such approval, if people are permitted to use the residential premises for commercial activity it would be contrary to law.
17. thereforee, even in the areas where it is indicated that mixed use is permissible stringent conditions are provided. It is also required to be noted that at the time of preparation of layout of residential area at suitable location/clusters of plots are required to be especially reserved for intended mixed use for shops and household industry at the ground floor and for residence on the first floor and above. thereforee, it is not that in every residential house commercial activities can be carried out. It is at the time of preparation of layout plan of a residential area, if reserved area for mixed use for shops etc. is provided, only then at such specified places the commercial activities to a limited extent indicated, is permissible and not otherwise. It is not the case of the DDA that in the instant case the area is a special area and the commercial activity is allowed on the ground floor, and that the establishment is run by the owner of the dwelling unit. It is also not the case that front set back of these plots have been surrendered without compensation unconditionally as a part of the right of way, parking etc. It is also not stated that there is a layout plan indicating facilities to be provided. It is clear that in contravention of the provisions contained in building bye laws, Development Act and Corporation Act, there is misuse of buildings, yet Development Authority has taken no action.
18. When there is a mis-user which amounts to violation of the provisions contained in the Development Act and the Rules made there under as also the violations of the provisions contained in the lease deed, the Corporation and the Development Authority ought to have taken action immediately. Learned counsel for the petitioners submitted that in view of Section 347 of the Corporation Act no person shall, without the written permission of the Commissioner or otherwise than in conformity with the conditions, if any, of such permission, change or allow the change of use of any land or building. Thus in view of this provision even Commissioner is required to take action when there is a change of user or mis-user.
19. It would be clear from the aforesaid discussion that:
i)there cannot be a commercial activity in residential zone and thus chemists shops are not permitted.
ii)the area in question does not fall in the mixed-use.
iii)the DDA & MCD are required to take action under the respective laws against these violators running chemists shops in the residential zone, viz in a building allowed to be used for the purpose of residence only by the competent authority.
However, the issue which is raised in this petition for our consideration is as to whether this aspect is to be looked into by Drug Controller before granting the license
20. A person carrying on business as a trader in Drugs and Cosmetics is required to have a license from the competent authority under the Drugs Act for sale of drugs and/or cosmetics. For the purpose of sale of drugs one is required to make an application for grant or renewal of a license as indicated in the Drug Rules. Rule 63 contemplates that license either original or renewed unless sooner suspended or cancelled shall be valid up to 31st December of the year following the year in which it is granted or renewed. Rule 64 indicates conditions to be specified before a license is granted or renewed.
21. It is in this background the respondent No. 3 invited our attention to the decision in the case of Shri Kulbhushan Kumar Wason (CWP 2343/86 decided on March 6, 1987). It was submitted that in that case also an application was made to cancel the license in the premises allotted for residential purpose in the residential locality very near to the commercial complex. The Division Bench observed 'We are, thereforee, unable to see anything wrong in the granting of the license by the Drug Controller'. The court expressed an opinion after examining Rule 64 of the Drug and Cosmetic Rules 1945. During the pendency of the application, DDA turned down the request of respondent No. 4 for change of user and on questioning, the development authority assured the court that the matter will be pursued further in view of unauthorized use and steps shall be taken as may be available under the law. It is in view of this statement no further directions were given.
22. It is very much relevant to refer to a decision of this Court in Surender Kumar Vohra v. Commissioner, M.C.D, : 1995IVAD(Delhi)935 . In that case, grant of registration certificate from health point of view to run floor shows (Cabarets) was rejected. Under Delhi Police Act, 1978, Deputy Commissioner of Police (Licensing) as a Licensing Authority rejected the application because the Municipal Corporation of Delhi did not grant no objection certificate to the petitioner. Various contentions were raised, such as: (i) that MCD was estopped from raising the ground of misuser; (ii) that MCD could not be allowed to raise the plea that basement could be used for storage purposes as the petitioner had been using the basement for restaurant for over 25 years; (iii) that MCD could not be permitted to raise the ground of misuse when other similarly situated properties (basements) were permitted to be used for commercial purposes; (iv) that MCD had provided levy of charges for misuse of basement and at best it was entitled to such surcharge. On behalf of the Municipal Corporation of Delhi, it was contended that basement could be used only for the purpose of storage.
23. The Division Bench examined the provisions of Section 333 of the Delhi Municipal Corporation Act, 1957 for erection of buildings; Section 347 for restriction on use of buildings. The Court pointed out that misuse is a cognizable offence for purpose of investigation etc.(S.466A) and entails simple imprisonment which may extend to six months or fine which may extend to Rs. 5000/- or with both. The Court held that it cannot issue a mandamus to grant no objection certificate in respect of premises misuse of which is punishable under the law on that ground and that the MCD could also levy misuse charges. The Court opined that 'there can also be no estoppel against the statute.' The Division Bench further pointed out that 'under Section 333 of the DMC Act, a person intending to erect a building is to give notice of such erection in the prescribed form to the Municipal Commissioner. The notice is to indicate the extent of construction which the person wishes to undertake and the use to which he would put the premises to. It is the contention of the MCD that the plans in the case of the building E-1 and E-2, South Extension Part II (Mahajan House), were sanctioned where the basement was only for the purpose of storage. Under the building bye-law 14.12.1, a basement could be used only for the purpose permitted under the Master Plan'.
24. The Division Bench further observed that 'it has been rightly pointed out that extent of construction of building is determined prior to its construction and extent of legally permissible limit determined at the time of sanction of the building plans. Thus, a person intending to construct a building must disclose to what use he would put the basement to. If he says that it would be for storage purposes, then the extent of basement would not be considered for FAR(sic)..'
25. The Court further, while accepting the contention raised on behalf of the Corporation, said as under:-
'Mr.Jaitley, however, pointed out that the extent and kind of user of a building affect the life of the citizens and the occupants of the locality. He said if all the basements in the locality were permitted to put to commercial use they would affect the life of the ordinary residents as that would increase the population density and would have an adverse effect on all municipal facilities such as sewerage, open spaces, environment, etc. In our view MCD is right in its submission that the effect of misuse of property for commercial purposes would affect the population, density etc. as envisaged in the Master and Zonal Plans and could not be considered as 'alien from health point of view of citizens.' In the present case, the plans were sanctioned with basement only for storage purposes and cannot, thus, be used for any other purposes.'
26. Keeping the aforesaid aspects in mind, the Division Bench further observed as under:-
'The authorities are also to see the sanctioned plans as well as the completion certificate. If on the examination of these documents it is found that the premises can be used only for storage purposes, question of grant of no objection certificate from the health point of view would not arise. M.C.D. was, thereforee, quite justified in declining to issue no objection certificate from health point of view to run Safina Restaurant and floor shows in the basement of E-1 and E-2 (Mahajan House), New Delhi South Extension Part II, New Delhi, on the ground that the land use of the basement of the premises as specified under the sanctioned plan of the building department could be only for storage purposes, and that the trade of running of cabarets and floor shows in the basement was not permitted under the building bye-laws of the M.C.D./Master Plan.'
27. In view of this pronouncement, it is very clear that the authorities are duty bound to see the sanctioned plan as well as completion certificate while issuing permission to carry on trade or business. It applies to all the authorities. In our view, the Court after considering the scheme of the Act has arrived at a conclusion aforesaid, and, it has interpreted the provisions contained in the Act, and it has pointed out that the authorities are required to see the sanctioned plan as well as completion certificate before issuing any license/permission etc. Thus, the authority, acting under other statute is also required to see that the Development Authority or the Municipal Corporation has put no restriction on the use of premises in question and the user for which license is sought is permissible. The decision rendered earlier by another Division Bench in C.W.No. 2343 of 1986 titled as Kulbhushan Kumar Wasan v. Lt.Governor of Delhi and Ors. dated 6.3.1997, in our view, does not pronounce the correct law on the subject.
28. We may notice at this stage the contention of the learned counsel for the Drug Authority, is based on Rule 65 of the Drug Rules. Rule 65 prescribes requirements and satisfaction and the manner in which one has to deal in drugs. The manner in which registers, records of purchase, bills etc are to be maintained by the person concerned are indicated. In short it refers how to deal in the drugs in greater detail. Rule 65A is reproduced as under:-
'65A. Additional information to be furnished by an applicant for license or a licensee to the licensing authority.-- The applicant for the grant of a license or any person granted a license under this Part shall, on demand, furnish to the licensing authority, before the grant of the license or during the period the license is in force, as the case may be, documentary evidence in respect of the ownership or occupation on rental or other basis of the premises, specified in the application for license or in the license granted, constitution of the firm, or any other relevant matter which may be required for the purpose of verifying the correctness of the statements made by the applicant or the licensee while applying for or after obtaining the license, as the case may be.'
29. It was submitted on behalf of the respondent Drug Authority, that under the rules, the licensing authority is required to be satisfied whether the area is adequate; it is equipped with proper storage accommodation for preserving the properties of the drugs to which the license applies and there is a person in charge, who in the opinion of the licensing authority is capable to supervise particularly the sale, distribution and preservation of the drugs. According to the respondents there is no other obligation on the licensing authority and, thereforee, it is not for the Authority to examine whether the area is residential or commercial.
30. We do not agree with this submission. It is required to be noted that when a person is making an application under the Drugs Act to the licensing authority to run a chemist shop or a drug store he intends to carry on the business. Under the Development Act one can carry on business if the use zone permits a use of a building for commercial purpose, and not otherwise. Rule 65A of the Drug Rules contemplates calling for additional information to be furnished by the applicant for a license, or a licensee to the licensing authority.
31. When a license is to be granted or is already granted on demand being made by the licensing authority certain informations are required to be furnished. Documentary evidence in respect of ownership or occupation on rental or other basis of the premises may be called for which are specified in the application for license or where the license is granted. Licensing authority may ask for the constitution of the firm or any other relevant matter which may be required for the purpose of verifying the correctness of the statements made by the applicant or the licensee. From a reading of this Rule 65A it appears that any other relevant material can be called for to find out whether a person is the owner or in occupation of the property. It was submitted on behalf of the respondents that no further information can be called for to find out the use of a building.
32. Once a statute,namely, the Delhi Development Act prohibits the use of a premises for commercial purposes, what is the fun in granting a license to a person to deal in the drugs as a chemist or as a dealer at the same place permitting him to carry on trade and thus, allow the use of the premises for commercial purposes. Certainly it is not the intention of the legislature that if the law prohibits the use of a premises for commercial purposes, then a licensing authority under another statute can grant a license to carry on business in the premises which is otherwise prohibited. Before a person is made to understand that in view of the issuance of the license under the Drugs Act he can carry on business in a residential locality, it becomes the duty of the other government department to see that no such misunderstanding is created by the act of an officer by issuance of a license. Harmonious reading of different Acts is a must. If one Act prohibits use of the premises for commercial purpose, then any other statutory authority cannot give license thereby permitting the person to carry on commercial activity in that premises.
33. It is the duty of the Courts to avoid a head on clash between the two provisions and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them. The provisions of a rule cannot be used to defeat the other provisions unless the court, inspire of its efforts finds it impossible to effect reconciliation between them. It is required to be noted that the provisions are required to be interpreted in such a way so as to see that effect is given to the provision which is made by the Parliament, and, if between the two Acts there is a conflict then the effect should be given in such a way so as to see that the purpose and object of the legislation is achieved. The Court must keep in mind that an interpretation which reduces one of the provisions as a 'dead letter' or 'useless lumber' is not harmonious construction. To harmonise is not to destroy any statutory provision or to render it otiose. The principle of harmonious construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other provisions so as to make it workable. It is equally well settled that if two constructions are possible the Court must adopt that which will implement and which ensures the smooth and harmonious working of the Act or the Rule, and reject the other that stultifies the apparent intention, and, thereforee, eschew that which leads to absurdity or gives rise to practical inconvenience or makes well established provisions of law nugatory. In case of Harshad S. Mehta and Ors. v. State of Maharashtra : 2001CriLJ4259 , the Court held that harmonious construction of the provisions of the Act and the Code makes the Act workable that is what is required by the principles of statutory interpretation. It is not necessary that the rule of harmonious construction is applicable to the conflicting provisions of the same statute only but also in cases where the provisions of different statutes are in conflict. The Courts have to take help from the preamble, objects, the scheme of the Act, its historical back ground, the purpose of enacting the provision, the mischief, if any which existed, which is sought to be eliminated. It is in this back ground while examining the provisions contained in the Rules made under the Drugs Act and the provisions contained in the Development Act and/or the Corporation Act, one has to see the preamble, object, the scheme of the Act, historical back ground and the purpose of enacting the provision. The Development Act is for the benefit of public at large and for providing a civilised society. If there is breach of the provisions contained in the Development Act or the Corporation Act in so far as the use of premises is concerned which is contrary to the use zone, the same would be violating the rights of other citizens and would be vocative of Article 21 of the Constitution of India. Under the Rules, the Licensing Authority is issuing the license to carry on business at a place indicated in the license. If the contention raised by the respondent that the authority under the Drugs Act can issue license to carry on trade at a place which, cannot be used to carry on trade on account of use zone, i.e. residential, it would amount to authorize the person to carry on trade at a place located in a residential zone. This obviously could not be the intention of the legislature. The harmonious construction requires that the authority may issue a license in a commercial zone or may issue a license to carry on trade in a premises which can be used for the purpose of business in view of the certificate granted by the authority under the Development Act or the Corporation Act and not otherwise.
34. It is expected that honest citizen will make use of property in accordance with laws, Building Byelaws, rules and regulations. Keeping these aspects in mind, the Legislature made the rules. It is clear that property can be put to legitimate use and rule is required to be read in that context i.e. license to trade in drugs can be granted, if the use of the property is permissible for such use and not otherwise.
35. A Division Bench of this Court in the case of Dr. B.L. Wadhera v. Government of NCT of Delhi WP(C) No. 2710/1998 decided on 29.5.2003 had an occasion to examine the question of fire safety to be provided in high rise buildings in Delhi. The Division Bench examined various provisions and the decisions of the Apex Court. One has to consider the impact of constitutional provisions. Fundamental rights are placed beyond the reach of ordinary legislations inspired by motives. With a view to protect the lives of citizens and also with a view to see that they are in a position to live life in a residential locality having decent environment, pollution free both air and noise, building byelaws are made. Despite the specific provisions buildings are occupied and used for the purposes other than for which they can be used. In case of Delhi Development Authority vs. Skipper Construction Co (P) Ltd and Another : : AIR1996SC2005 the Apex Court held in para 37 as under:-
'37. Before parting with this case, we feel impelled to make a few observations. What happened in this case is illustrative of what is happening in our country on a fairly wide scale in diverse forms. Some persons in the upper strata (which means the rich and the influential class of the society) have made the 'property career' the sole aim of their life. The means have become irrelevant - in a land where its greatest son born in this century said 'means are important than the ends'. A sense of bravado prevails; everything can be managed. All it takes is to 'tackle' or 'manage' it in an appropriate manner. They have developed an utter disregard for law - nay, a contempt for it; the feeling that law is meant for lesser mortals and not for them. The courts in the country have been trying to combat this trend, with some success as the recent events show. But how many matters can we handle. How many more of such matters are still there The real question is how to swing the polity into action, a polity which has become indolent and soft in its vitals Can the courts alone do it Even so, to what extent, in the prevailing state of affairs Not that we wish to launch upon a diatribe against anyone in particular but Judges of this Court are also permitted, we presume, to ask in anguish, 'what have we made of our country in less than fifty years ?' Where has the respect and regard for law gone And who is responsible for it ?'
36.There is absence of regulatory method. We find that inefficiency and laxity on the part of the authorities concerned which has led various buildings flouting planning legislations. There seems to be inefficiency and slackness and failure of the statutory functionaries in performing their obligations under various provisions. The Division Bench in the case of Dr. B.L. Wadhera (supra) directed the respondent authorities not to supply essential services unless and until the building is erected in accordance with law and byelaws. All electricity supply companies were directed in this behalf. This direction was given for the protection and welfare of the people at large. If there is compliance of the provisions of the law, there was no restraint to the companies from supply of electricity. Similar directions were also given by a Division Bench of Gujarat High Court in case of Lok Adhikar Sangh v. State of Gujarat ; Special Civil Application No. 4578/97 decided on 25.7.2000. The matter was carried in appeal and the Apex Court dismissed the appeal.
37. Exercise of powers under Article 226 of the Constitution is an extraordinary remedy which is essentially discretionary although founded on legal injury. It is perfectly open for the Court exercising this flexible power to make such order as public interest dictates and equity projects. It must be noted that the Constitution has given a right to live with human dignity. Life of a human being must be meaningful, complete and worth living. It is also expected that there is a right to decent environment. The Development Plan which regulates or prohibits use of land/building is a positive step in the direction of providing a decent life with human dignity. Any act or attempt which amounts to nothing but mischief with the Development Plan is vocative of Article 21 of the Constitution of India.
38. It is always open to the High Court while exercising powers under Article 226 of the Constitution of India to grant relief or issue directions to the authorities to see that by their act or omission there is no contravention of the provisions contained in the other Acts or no belief is created in the mind of applicant that because the license is issued a person can carry on business in a residential premises. There is no question of rewriting the rules. Authorities are required to be satisfied that not only the premises are adequate, but the authorities must be satisfied that premises can be used for commercial activities in a residential area. Provisions contained in Drug rules for issuance of a license is to satisfy the authority about adequate space and other facilities. At the same time other statute puts restriction or prohibition about the use, the same cannot be ignored by the authority acting under the rules.
39. State holds power which is available for the use of general public. The Court will look with considerable scientism upon any governmental conduct which is calculated to mislead the public. Government executives cannot be allowed to use the power against the provision of law made by the legislature so as to benefit a class against good mass. In such a situation, public trust doctrine will be enforced. By issuing licenses for trading in residential areas the authorities are enabling to violate the mandatory provisions of other statutes for the interest of private parties. The Court must interfere and must issue appropriate directions.
40. So far as issuance of permission/license by the authorities is concerned, it is required to be noted that the same cannot be issued as it results in violation of right of life enshrined in Article 21 of the Constitution of India. The question will have to be considered not only from the angle of those who have set up shops in violation of the Master Plan, but also those who are residents and are using their premises for residence as allowed by the law in a residential locality. Before authorization/license, its effect on the entire area, particularly, with respect to infrastructure available is to be seen. With a view to see that Article 21 is not breached, the provision contained in the Development Act indicates that there shall be no change in the plan except by following the procedure and, that too, substratum cannot be changed. The licensing authorities are equally responsible for mushrooming of shops in a residential area. The State Government, Development Authority, Authorities functioning under other Statutes and Municipal Corporation are required to address themselves to the larger question as to what Delhi is intended to be left for the children and future generation. By allowing the residential areas for the use of trade or business, we have indicated that all the authorities have been wholly remiss of all their functions, duties and obligations.
41. It is noticed that growth of commercial activities in the residential areas has been without any check and hindrance from the authorities. The manner in which such large scale violations have been commenced and continued leaves no manner of doubt that it was not possible without the connivance of those who are required to ensure compliance of the law, and reasons are obvious. Such activities result in putting of extra load on infrastructures. The planning has gone totally haywire. Law abiders are sufferers. All this has happened at the cost of healthy and decent living of the residents of the city violating their constitutional rights enshrined under Article 21 of the Constitution of India.
42. In view of the aforesaid discussion, we dispose of this writ petition with following directions:-
(i) Henceforth the Drug Authorities, before issuing or renewing license to run a chemists shop, shall also ensure that area where the shop is intended is not residential and is meant for commercial use.
(ii) The DDA shall initiate appropriate action under Section 14 read with section 29 of the Delhi Development Act against those chemists shop being run in the residential area, particulars whereof are given by the petitioner.