Delhi Pollution Control Committee v. Vardhman Properties Ltd & Ors

l~ IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved on : lanuarv 2012 ludament Pronounced on: 23'''' lanuarv. 2012 LPA 7/2011 & CM No.6780/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dlnesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAIOG. I. For orders see LPA No.895/2010. n (PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) JUDGE JANUARY 23, 2012 dk If-) * ISM THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved on : 16'^" lanuarv 2012 i. n ludament Pronounced on: 2J^ (anuarv, 2012 + ^ LPA 895/2010 DELHI POLLUTION CONTROL COMMITTEE Appellant Through: Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus SPLENDOR LANDBASE LTD Respondent: Through: Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Marl Haran, Advocates LPA 1/2011 & CM Mo.6781/2011 (Cross Obiectioris) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus SACHDEVA BUILDON PVT LTD & ORS ..... Respondents Through. Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 6/2011 & CM No.'6779/2011 (Cross Qbiections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.O. I •* LPA 895/2010& connected matters PaRe 1 of 3S versus VARDHMAN PROPERTIES LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 7/2011 & CM No. DELHI POLLUTION CONTROL COIMIV|ITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & ORS Respondent; Through Mr.Sanjay Goswami, Advocate for R-1 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mlohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & ORS Respondents Through Mr.Anil Sapra, Sr. Advocate with Mis.Llrvi Kothiala, Ms.Praneeta Vir and Mr.Sanjay. Coswami, Advocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L-.0. versus MANISH BUILDWELL PVT LTD & ORS Respondents Through 'Mr.Sanjay Coswami, Advocate for R-1 LPA 895/2010 & connected matters If DELHI POLLUTION CONTROL COMMITTEE Appellant ' Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus MANISH BUILDWELL PVT LTD & 0R5 Respondents Through Mr.Saniay Goswami, Advocate for R-1 LPA 11/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Elharma, Advocates with Mr.Dinesh Jindal, L.O'. versus VARDHMAN LAND DEVELOPERS PVT LTD&ANR • Respondents Through None LPA 22/2-011 & CM No.6824/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus PANI<AJ BUILDWELL LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for lR-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 23/2011 & CM IMo.6832/2011 (Cross Objections) ' DELHI POLLUTION CONTROL COMMITTEE Appellant LPA 895/2010gt connected matters Page3. of;»B Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates withhMr.Dinesh Jindal, L,,0. versus RAJESH PROJECTS INDIA PVT LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, ' Advocates for UOI 3,v-24/2011 & Cl DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BEST REALTORS (INDIA) LTD ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mir.Khalid Arshad, Advocates for UOI LPA 25/2011 & CM Ho. DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao.and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. V'- versus BEST CITY DEVELOPERS (INDIA) PVT LTD. & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid /Arshad, Advocates for UOI LPA 895/2010 & connected matters Page 4 of 3i8 LPA 26/2011 & CM y^o.6831/2011. (Cross Obiect? DELHI POLLUTION CONTPxOL COMMITTEE Appellant Through ' Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus HOME LINKERS PVT LTD & ORS Respondents . Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Ghandra and Mr.Khalid Arshad, Advocates for UOI LPA 27/2011 & CM Mo.683 DELHI POLLUTION GONTROL GOMMITTEE Appellant Through Mr.G. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O, versus RAJESH PROJECTS INDIA PVT LTD G ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid y\rshad. Advocates for UOI LPA 28/2011 & CM i\io.6826/2011'(Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD G ORS. Respondents LPA 895/2010 & connected matters Page b d 3H Through Mr.Sanjoy Goswami, Advocato foi R-1 Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.KhaUd Arshad, Advocates for UOI DELHI POLLUTION CONTPvOL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus JINDAL BIOCHEM PVT LTD & 0R5 Respondents Through Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.Khalid Arshad, AVdvocates for UOI LPA 46/2011 & CM No.8164/2011 (Cross Qbiections) DELHI POLLUTION CONTROL COMMITTEE A\ppellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus AS BUILDWELL PVT LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI I PA 47/2011 & CM No.6825/2Q'll (Cross Qbiections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sljatma, Advocates with Mr.Dinesh Jindal, L.O'. versus LPA 895/2010 & connected matters MAITRl MUTUAL BENEFITS LTD & ORS Respondents . Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshdy Chandra and Mr.Khalid Arshad, Advocates for UOl LPA 48/2011 & CM No. DELHI POLLUTION CONTROL COMMLTTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharnna, Advocates with Mr.DineshJindal, L.O, versus NIRVAN HIRE PURCHASE LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-l Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOl LPA 50/2011 & CM [Mo.6827/2011- (Cross Obiection.s) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.DineshJindal, L.O. versus ,NIPUN BUILDERS & DEVELOPERS PVT LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-l Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOli LPA 51/201-1& CM IMo.6829/2011 (Cross Objections] DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.DineshJindal, L.O. n LPA 895/2010 & connected matters ^ Page/of 3E V'- VARDHIVIAN PROPERTIES LTD & ORS Respondents Through Mr.Sanjay GoswamI, Advocate for R-1 jVjr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 53/201 !■ DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus ESS CEE CEE & ASSOCIATES (INDIA) PVT LTD .. Respondent Through Mr.AVnil Sapra, Sr. Advocate with Ms.Urvi Kothiala, Ms.Praneeta Vir and Mr.Sanjay Goswami, Advocates LPA 54/201-1 & CM IMo.6004/2011. (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharnna, Advocates with Mr.Dinesh Jindal, L.O. versus FARGO ESTATES PVT LTD Respondent Through Mr.Ankit Jain, Advocate LPA 58/2011& CM Mo, DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C: Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus: LPA 895/2010 & connected matters Page Sot 38. VARDHMAN PROPERTIES LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid ArshacI, Advocates for UOI DELHI POLLUTION CONTROL COMIVjlTTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrria, Advocates with Mr.Dinesh Jindal, L.O. versus DLF RETAILER DEVELOPERS LTD Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shanrna, Advocates with Mr.Dinesh Jindal, L.O. versus LAXMI BUILDTECH PVT LTD & ANR Respondents Through Mr.Kailash Vasdev, Sr. Advocate with Ms.Neoma Vasdev Gupta, Ms.Ekta Mehta and Ms.Joanne Pudussery, Advocates for respondent No.1. Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, ^ Advocates for UOI LPA 96/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharnia, LPA 895/2010& connected matters V. Advocates with Mr.Dinesh Jindal, L.O, versus MANISH BUILDWELL PVT LTD & 0R5 , Pxespondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 97/2011 n DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrria, Advocates with Mr.Dinesh Jindal, L.O. versus BRIGHTWAY5 HOUSING & DEVELOPMENT LTD&ANR Respondents Through Mr.Anil Sapra, Sr. AVdvocate with Mls.Urvi Kothiala and Ms.Praneeta Vir, Advocates for R-l. Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus DLF COMMERCIAL DEVELOPERS LTD Respondent LPA 895/2010 & connected matters y\ u. Through Mr.B.B. Gupta, Ms.Mandeep Kaurand Mr.Harsh Hari Haran, Advocates LPA 99/2011 DELHI POLLUTION COMTPxOLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal,"L.O. versus GALLERIA PROPERTY MANAGEMENT SERVICES PVT LTD Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma Advocates with Mr.Dinesh Jindal, L.O. versus PROSPEROUS ESTATES PVT LTD Respondent Through None LPA DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao.and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus ' REGENCY PARK PROPERTY MANAGEMENT SERVICES PVT LTD Respondent . Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 895/2010& connected matters DELHI POLLUTION CONTPxOL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dlnesh Jindal, L.O. versus PALIWAL DEVELOPERS LTD Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaurand Mr.Harsh Hari Haran, Advocates DELHI POLLUTION CONTROL COMMITTEE Appellant, Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O, versus RIDGE VIEW CONSTRUCTION PVT LTD Respondent Through Mr.Ani l Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vir, Advocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.O. versus RC sbOD & CO PVT LTD Respondent Through Mr.Shobhit Chandra, /Advocate LPA 895/2010 & connected matters ' Pagel2of3t5 LPA 709/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shainia, Advocates with Mr.Dinesh Jindal, L.O. versus LODHI PROPERTY CO LTD Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Tlari Haran, A\dvocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BHARTI REALTY LTD . Respondent Through Mr.Dushyant Manocha and Ms.Tarunirna Vijra, Advocates DELHI POLLUTION. CONTROL COMMITTEE ....; Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus ANUSH FINLEASE & CONSTRUCTION PVT ltd Respondent Through Mr.AJay Kumar and Mr.Naveen Tayal ,, Advocates LPA 895/2010 & connected matters t I PA 867/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus TIRUPATI INFRAPR0JECT5 PVT LTD Respondent Through Mr.Ajay Kunnar and Mr.Naveen Tayal, Advocates CORAN: HOIM'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAIOG, j.

¶1A batch of 38 writ petitions was decided by a learned ^ Single Judge vide order dated September 30, 2010. The said decision has been followed subsequently by another learned Single Judge. Instant appeals lay a challenge to the said decisions pronounced by the learned Single Judges of this Court, and since the reasoned decision is the one which was pronounced on September 30, 2010, learned counsel for the parties conceded that it is said decision which needs to be reflected upon by us ii^i the appeal(s).

¶2Writ petitions were filed challenging notices issued by the Delhi Pollution Control Committee (DPCC) to the writ petitioners or penalties levied, which were paid under protest oi bank guarantees submitted by the writ petitioners, which were under threat of being invoked. The petitions have succeeded, not in full, but in part. Directions have been issued to DPCC to take , PaE0 14 of 38 LPA 895/2010 connected matters HI, action afresh and guided by the. decision of the learned Single judge. 3_ The buildings with respect whereto action was proposed to be taken or was taken by DPCC, are of three kinds; (i) Residential Housing Complexes, (ii) Commercial Shopping Complexes, and (ill) Shopping Malls. Actions were initiated or decisions were taken on the allegation-that with lespect to the buildings constructed, the writ petitioners had not obtained a 'consent to establish'd^s required, under The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'the Water Act') and 'consent to operate' as required under The Air' (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'the Air Act').

¶4Issues have been debated before the learned Single Judge and even before us with reference to Sections 2(g), 2(gg), 2(k), Section 25 and Section 33A of the Water Act, and sections 2(a), 2(j), 2(k), Section 21 and Section 31A of the Air Act. Thus, we begin, our chartered journey by noting the said provisions.

¶5Section 2(g), 2(gg), 2(k), relevant part of Section 25 and Section 33A of The Water (Prevention-and Control of Pollution) Act, 1974 read as under:-^ "2. Definitions.-In this Act, unless the context otherwise requires,-

(a)

(b)

(c)

(d)

(e)

(f) LPA 895/2010 & connected matters .

(g) 'sewage effluent' means effluent from any sewerage system or sewage disposal works and includes sullage from open drains:

(gg) 'sewer' means any conduit pipe or channel, open or closed, carrying sewage or trade effluent;

(h)

(i)

(j)

(k) 'trade effluent' includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any industry, operation or process, or tr63atment and disposal system, other than domestic sewage. n 25. Restrictions on new outlets and new discharges.-

(1) Subject to the provisions of this section, no person shall, without the previous consent of the State Board,-

(a) establish or take any steps to establish any industry, operation or process, or any tieatmei it and disposal system or any extension or addilibi i thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage), oi '

(b)

(c) Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of , the Water (Prevention and Control of Pollution) Amendment Act, LPA 895/2010 & connected matters Mr 1988, for which no consent was necessary prior'to such comnnencement, may continue to do so for a period ot three months fiom such commencement or, if he has made an application for such consent, within the said period of three months, tsll the disposal of such application.

(2)

(3)

(4)

(5) Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlet is brought into use for the discharge of sewage or a. new discharge of ■sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be, a notice imposing any such conditions as it might have imposed on an application for its consent in respect of such establishment, such outlet or discharge.

(6) ^

(7) The consent referred to in sub-section (1). 5haip unless given or refused earlier, be deemed to have been given unconditionally on the expiry of a period of four months .of the making of an application in this behalf complete in all respects to the State Board.

(8) Paee 17 of 38 LPA 895/2010& connected matters V/\ b 33A. Power to give ''directions.-Notwithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, officer or authority, and such person, officer or authority shal l be bound to comply with such directions. Explanation.-^ov the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service."

¶6Section 2(a), 2(j), 2(l<), relevant part of Section 21 and Section 31A of The Air (Prevention and Control of Pollution) Act, 1981 read as under:-

¶2Definitions.-In this Act, unless the .context otherwise requires,-

(a) 'air pollutant' means any solid, liquid or gaseous substance (including noise) present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other living creatures or plants or property or environment;

(b)

(c)

(d) . n (e) LPA 895/2010 & connected matters

(f) . (g) .

(h)

(i)

(j) 'emission' means any solid or liquid or gasqous substance coming out of any chimney, duct or flue or any other outlet;

(k) 'industrial plant' means any plant used for any industrial or trade purposes and emitting any air pollutant into the atmosphere;

¶21Restrictions on use of certain industrial plants.- (1) Subject to the provisions of this section, no person shal l, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control mk area; Provided that a person operating any industrial plant in any air pollution control area immediately before the commencement of section 9 of the Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), for which no consent was necessary prior to such commencement, may continue to, do so for a period of three months from such commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application. ,

(2)

(3)

(4) Within a period of four months after the receipt of the application for consent referred to in sub-section (1), the State Board shall, by oider LPA 895/2010 & connected matters in writing, and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in the order, or refuse such consent: Provided that it shall be open to the State Board to cancel' such consent before the expiry of the period for which it is granted or refuse further consent a'fter such expiry if the conditions subject to which such consent has beer, granted are not fulfilled: Provided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportunity of being heard shal l be given to the person concerned.

(5).

(6)

(7) 31A. Power to give directions-Notwithstanding anything contained in any other law, but subject to the provisions of this Act and to any directions that the Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, office or authority, and such person, officer or authority shall be bound to comply with such directions. Explanation.- For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-LPA 895/2010 & connected matte rs

(a) the closure, prohibition or regulation of any industry, operation or process; or

(b) the stoppage or regulation of supply of electricity, water or any other service.

¶7With reference to the Water Act as originally framed in the year 1974 and as amended in the year 1988 and with reference to the Statement of Objects and Reasons of the Amending Act, the learned Single Judge has opined that the legislative amendments carried out in the original Water Act were intended to expand the scope of the Water Act. The learned . Single judge has highlighted that the expression 'establish any industry, operation or process or any treatment and disposai system or any extension or addition thereto, which is iikeiy to discharge sewage or trade effluent'\v\ clause (a) of Sub-Section (1) of Section 25 made it clear that the-requirement to obtain previous consent to establish any industry, operation or process was no ^ longer restricted to trade effluent being discharged but would also encompass if 'sewage effluent' was discharged and with reference to the definition of 'sewage effluent' as per Section 2(g), has held that the same would include sewage of any kind, including domestic sewage. The learned Single Judge has also noted the expanded definition of 'trade effluent' as per.Section 2(l<) of the Water Act. Noting the definition of the words 'operation' and 'process' in para 12 of the decision, and thereafter noting the decisions that purposive construction needs to be followed where the mischief which existed before passing the statute was detected and was intended to be remedied, the learned Single Judge has concluded that collective operation or process of LPA 895/20i0&connected matters n H'A bathing in the bathroom and such processes as take piace in ihe toiiet and cooking and washing in the kitchen wouid be opeiaiion:^ and processes contempiated by Section 25(l)(a) of the Waiei Act for its appiicabiiity to residentiai compiexes. This is the conclusion arrived at in para 16, but in the immediate next para i.e. paia 17, the learned Single Judge has lodged a caveat by stating that he was not answering the question with reference to single stoieyed constructions.

¶8With reference to the commercial complexes i.e. Commercial Shopping Complexes and Shopping Malls, the learned Single judge has held that the definition of 'trade effluent' as per Section 2(k) would encompass al l kinds of non-domestic sewage and has thus held that these buildings would be governed by ^ clause (a) of Sub-Section 1 of Section 25 of the Water Act.

¶9As regards the very act of constructing a building, in paras 19 and 20, the learned Single Judge has held that the very act of constructing a commercial shopping complex, shopping mall or a residential complex would make applicable clause (a) of Sub-Section 1 of Section 25 and for which the reasoning of the learned Single Judge is that construction of commercial shopping or residential complexes is likely to have impact on wate!r pollution because large quantities of water are used during constiuction an(i are also, discharged.

¶10Since, in all the cases, DPCC rose from the slumber after buildings were completed and put to use, the learned Single Judge opined that DPCC could not levy penalties and for which ' remedial action, as per the learned Single Judge, was as provided LPA 895/2010& connected matters n ■^2: of-»B in Sub-Section 5 of Section 25 of'the Water Act.

¶11The argument of DPCC that the power to give directions under Section SBA of the Water Act has been negated by the learned Single Judge, with reference to various decisic)n5 cited which hold that the power to levy penalty has to be expressly conferred by the statute.

¶12Pertaining to the Water Act, the learned Single Judge has summarized the legal position, in para 29 as under;- "29. The discussion so far on the legal position under the Water Act in relation to the petitioners may be summarized thus:

(i) Section 25 (1) of the Water Act is intended to cover not just 'industry' which discharges 'trade effluent' but any 'process or operation' that results in a discharge of 'sewage' not limited to trade effluent.

(ii) The words 'operation or process' occurring in Section 25(l)(a) have to be given the widest possible meaning and scope. This approach is consistent with the SOR of the 1988 amendments to the Water Act which make it clear that the legislative intent was to expand the scope of the regulatory powers of the state PCC. The principle of ejusdem generis is therefore inapposite in the context.

(iii) Commercial shopping complexes, shopping malls and even residential complexes are covered by Section 25(l)(a) of the Water Act.

(iv) The liabi lity under the, Water Act does not get exempted only because the sewage LPA 895/2010& connected matters Psgs Z3 of 38 fl-discharged from such' complexes joins the main municipal sewerage system which may or may not be treated in keeping with the water poilution norms.

(v) The pollution caused by discharge of domestic sewage from a residential complex or trade effluent from a commercial complex or industry during the construction phase as weil as at any stage after the complex becomes functional would attract the various provisions of the Water Act.

(vi) With the buildings . in question having already been constructed without obtaining prior consent to establish, the direction of the DPCC that those who had faiied to obtain prior consent to establish should now apply for such consent is a direction that is not capable of being complied with. Instead the DPCC should invoke the powers under Section 25(5) of the Water Act, issue show cause notices setting out the conditionalities required to be coimplied with within a time frame and upon failure to do so, invoke the powers to issue directions under Section 33A Water Act.

(vii) The Water Act is in a separate domain and its provisions will have to be complied with notwithstanding that the MCD has the power to lay down a separate set of regulations and bye-laws for use of water. Where an applicant has not been communicated any decision of the DPCC for four months after the making of an application, the deeming provision of Section 25(7) would kick in and it wouid be deemed that; the consent to establish has been granted. In such circumstances. Section 25(1) of the Water Act cannot LPA 895/2010& connected matters fy obviously thereafter be enforced."

¶13Discussing the applicabi lity of the Air Act, as conceded to by learned counsel for the parties at the hearing of the appeal, the learned Single Judge has inadvertently referred to the pre-amended provisions of the Air Act, though the learned Single Judge has referred and noted the fact that the Air Act of 1981 was amended in the year 1988.

¶14Pertaining to residential compiexes, the learned Single Judge has noted the unamended Section 21 of the Air A,ct which did not have the word 'establish' and had only the word 'operate' in Sub-Section 1 thereof, and thus the learned Single Judge has held that no permission from DPCC is needed to establish residential complexes, but on the same reasoning as followed in paras 19 and 20 pertaining to the Water Act, has held that during construction phase of residential complexes, permission under the Air Act. has to be obtained. Qua shopping complexes and shopping malls, it has been held that under the Air Act, for these complexes, to operate them, prior permission has to be obtained as also during construction phase.

¶15The learned Single Judge has summarized the position under the Air Act, in para 41 as under:- "41. The position under the Air Act may be summarized:

(i) A collective reading of Section 21(1) of the Air Act with Section 2(a), 2(b) and 2(k) thereof leads this Court to the conclusion that a commercial ; shopping complex or a shopping mall would be covered within the scope of Section 21(1) of the Air Act. LPA 895/2010 & connected matters Page .25 of 3['

(ii) The definition of 'air pollution' under Section 2(a) read with Section 21(1) of the Air Act, and the fact that the . commercial shopping complexes or shopping malls are going to be used for a trade activity, is sufficient to attract the provisions of Section 21(1) of the Air Act. (i ii)As far as a purely residential complex is concerned, on the present wording of Section 21(1) of the Air Act,, there is no requirement of obtaining the prior consent of the DPCC to operate.

(iv)During the construction phase and after the complex becomes functional, every building, whether it is a commercial shopping complex or a shopping mall or a residential complex, wi l l have to comply with the norms under the Air Act and the Water Act and for that matter the EPA.

(v) Where the construction of a commercial shopping complex or shopping mal l has been allowed to be completed without a prior consent to operate, the DPCC can inspect the building, issue a show cause notice requiring time bound compliance with the conditionalities imposed by it under the Air Act fai ling which it can issue directions under Section 31A Air Act."

¶16A perusal of Section 25 of the Water Act would reveal, on a bare reading thereof, that without the previous consent of the State Pollution Board, 'no person could establish or take any steps to establish any Industry, operation or process, which is likely to discharge sewage or trade effluent. Thus, even if sewage effluent as defined in Section 2(g) was discharged from any LPA 895/2010& connected matters , Page 26 ot 38 rv industry, operation or process Intended to be established, the requirement of prior consent would be necessary and to this extent the view taken by the learned Single Judge is correct.

¶17But, what would encompass 'any industry, operation or processl

¶18The Water Act does not define,-.'industry', 'operation' or 'processk As held in the decisions reported as 1993 (3) SC 2529 Commissioner of income Tax Orissa i/5. M/s.N.C.Budiiiraia 6i Co. and 2010 (320) ITR 420 (Delhi) Ansai Housing & Construction Ltd. vs. Commissioner of income Tax, the ordinary dictionary meianing of 'industry' or an 'industrial undertaking' would not include the activity of construction. The word .'operation' is defined, as noted by the learned Single Judge, in the New Shorter Oxford English Dictionary (Lesie Brown Ed.) as follows: "operation; An action, deed; exertion of force or influence; working, activity; an act of a practical or technical nature, esp one forming a step in a process."

¶19The same dictionary defines 'process', as noted by the learned Single Judge, as under:- "process : The action or fact of going on or being carried on; a continuous series of actions, events or changes; a systematic series of actions or operations V directed at a particular end."

¶20As noted herein above, applying purposive construction, the learned Single Judge has held, in para 15, that the two words 'operation' and 'process' have to be given their widest amplitude and meaning. The purposive construction LPA 895/Z010& connected matters 27 of 38 applied by the learned Single Jud'ge is that widest amplitude needs to be given to Section 25(l)(a) of the Water Act.

¶21The error committed by the learned Single Judge is to mechanically note the definition 'operation' 'process', and ignore the sweep of the span of the two words. We do so. Operation is defined as an activity or an act of a practicai or technicai nature, with emphasis of the acts forming 'a step in a process'. The word 'process'\s a going on action or a continuous series of actions 'directed at a particuiar end'. Thus, an operation would be a working or an activity, where the core of the act constituting the" activity, is of a practical or technical [.liLtliie esoeciallv one forming a step in a process, and since process is an going on action or a continuous series of action directed at ^ particular end, the conjoint reading of an operation and a process or even if the two have to be read disjunctively would mean that the expression 'estabiish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, winch is iikeiy to discharge sewage or trade effiuent' would mean to t^e_.step_s_tp. establish anv industrv. establishment or undertaking wlriere_die operation, or process i.e. activity is of a practical—gr_Le^UijTicaj nature, at the core of which are ongoing acts, in a series, directed. at a particular end. Thus, the act of ablution in the toilet or washing vegetables and dishes in the kitchen of a residential complex, within the precincts of residential flats, by no stretch of imagination can be called or labeled as an operation or a process.

¶22The view taken by the learned Single judge pertaining LPA 895/2010& connected matters to shopping malls and commercial shopping complexes on the applicability of the Water Act Is accordingly upheld and the view taken pertaining to the applicabi lity of the Water Act to residential housing complexes Is Incorrect.

¶23A building where shops would be made and in which shops goods or services would be sold as also shopping malls would be buildings where operation and or process Is carried on for the reason they would be places where the activity carried on Is of a practical or a technical nature and at the coie of which activity would be ongoing acts, In a series, directed at a particular end I.e. If goods are purchased and sold, the sale and purchase of goods; and if service Is rendered, the rendition of service dir-ected towards a particular end. If from these buildings sewage is discharged, since sewage effluent as defined In Section 2(k) of the Water Act means effluent from any sewage system. If these buildings are Intended to be established, necessary permission would be required from the Board under the Water /Act.

¶24With respect to the decisions reported as 1993 (3) SC 2529 Commissioner of Income Tax Orissa vs. M/s.N.C.Budhiraja^ Co, and 2010 (320) ITR 420 (Delhi) Ansai Housing & Consiructior' Ltd. 1/5. Commissioner of income Tax, where It has been held that constructing a building per-se Is not an Industrial activity the view taken by the learned Single Judge/that constructing a building, whether to be used for a residential purpose or to be used for a commercial shopping complex or for shopping malls would be ar Industrial activity; running contrary to the aforesaid judgments is. Incorrect. Dr^pp I'Q di" 3iS) LPA 895/2010& connected matters B n The reasoning of the learned Single Judge to eApand . the scope of Section 25(l)(a) of the Water Act; that the object of the Water Act was to control water pollution in its widest amplitude and hence the reasoning that while constructing buildings, water is used and sometimes discharged thus requiring a wider meaning to be given, ignores that the Environment (Protection) Act 1986 deals with this larger issue in the context of 'environment' therein being defined to include water, air and land and the inter relationship which exists amongst them and human beings and other living creatures, plants and micro-organisms. The said Act and the Rules framed under the said Act are wide enough to cover exploitation of water and the impact theieoi on environment and we see no vacuum in the fight against environmental degradation, by understanding the various expressions and their meaning in Section 25(l)(a) of the Waiei Act as adopted by us.

¶26A word on purposive construction. It simply means that while adopting a purposive approach. Courts should seek to give effect to the true purpose of legislation and must keep in view all material that bears on the background against which a legislation was effected and where more than one construction is possible, the one which eliminates the mischief identified should be ^ favoured. But, where only one construction is possible, the Court is not to strain backwards and then bend forward followed by leaning to the left and then to the right to appropriate a space not intended to be appropriated by the legislation. The Water Act requires prior permission to establish any industry, opeiation oi LPA 895/2010& connected matters Page jO of process which is likely to discharge sewage or trade effluent. It is not intended to apply to all and sundry establishments. It is restricted to only when a building, housing an industry is sought to be established or a building in which an operation or a process is intended to be carried on where effluent or trade effluent would be discharged.

¶27To summarize the position under the Water Act the position may be summarized thus: 'Section 25(1) of the VV/ater Act would apply where a building is proposed to be constructed to set up an industry or carry on an operation or a process as explained in para 21 above and this would mean that the Water Act would not apply to buildings housing residential apartments/units. It would apply to all other buildings where effluent or trade effluent is discharged, be they where manufacturing activity is carried on, sale or purchase of goods is carried on or services are provided.

¶28Pertaining to the Air Act, there is a material difference in the language used in Section 21 of the said Act, vis-a-vis the language used in Section 25 of the Water Act. Whereas the Water Act requires a permission to establish any industry, operation or process, the Air Act restricts its span to prior permission being necessary only where it is intended to establish or opetate any industrial plant.

¶29' Since the learned Single Judge has referred to the uhamended provision and has ignored the amendments carried out to the Air Act in the year 1988, we note that as per the amended Section 21, the obligation to obtain the consent of the State Pollution Controh Board is only to establish or operate any LPA 895/2010& connected matters 31 of industrial plant In an Air Pollution Control Aroa. Soction 2(k) defines an 'industrial plant' to mean any plant used for any Industrial or trade purposes and emitting any air pollutant.

¶30The learned Single Judge has read the unarnended Section 21 of the Air Act to mean that prior consent is needed to operate an industrial plant. Since the decision of the ieained Single Judge has not noted the language of the amended Section ■'Where the words 'establish or' .have been inserted prior to the word 'operate', we need to re-look into the issue.

¶31Highlighting the definition of the words 'industrial plant' as defined in Section 2(l<) of the Air Act, the learned Single Judge has noted that the definition expands the meaning of the words 'industrial plant' to include a building used for a trade purpose and with reference to Section 21 of the Air Act has held that a building where trade is carried on the prior consent would be required to operate the building.

¶32Since the learned Single Judge has noted the unamended Section 21 and since the amended Section 21 requires prior consent even to establish an industrial plant in an Air Pollution Control Area, agreeing with the reasoning of the learned Single Judge that in view of the extended definition of the expression 'industrial plant', which includes a building where trade yj is carried on, the inevitable conclusion has to be that prior consent under the Air Act would be needed where a building is proposed to . be constructed wherefrom trade would be carried on and since from a shopping mall and from a commercial shopping complex trade is carried on, we hold that prior consent under the Air Act LPA 895/2010& connected matters 32 oi 38 LI would be required when commercial shopping complexes and shopping malls are established i.e. at the commencement of the-process of establishment i.e. before the building construction activity commences.

¶33As noted herein above, the learned Single Judge has held construction per-se as requiring prior permission, both under the Water Act and the Air Act, and thus the learned Single Judge has held that under the Air Act, consent during construction phase would have to be obtained.

¶34. For our reasoning herein above pertaining to the Water Act, the said reasoning of the learned Single Judge pertaining to the Air Act is overruled, but would make no difference to the final conclusion arrived at by us pertaining to the applicabi lity of the Air Act when construction activity commences in respect of shopping malls and commercial shopping complexes for the reason, prior consent-to establish the same is required on the language of Section 21 of the Air Act in view of the expanded definition of the expression 'industrial plant'. But,- for residential complexes, we hold that neither to establish nor'to operate, (in fact the concept of 'to operate' is not even applicable to a residential complex), any permission is required under the Air Act.

¶35The learned Single Judge has held that neither the ^ language of Section 33A of the Water Act nor the language of Section 31A of the Air Act contemplates the power on the State Pollution Boards to levy any penalty:

¶36The learned Single Judge has noted the decisions reported as 1975 (2) SCC 22 Khemkd & Co. (AQencies) Pvt. Licf. LPA 895/2010& connected matters state of Maharashtra, 1994 (4) SCC 71^ J.K.Synthetics L Cement Works vs. Commercial: Taxes Officei and 1997 (6) .jCC 479 India Carbon Ltd. vs. State of Assam to opine that power to levy penalty has to be conferred by a substantive provision in the, enactment. We concur with the reasoning of the leained ._>ingle Judge in paras 58 to 64 of the impugned decision and thus do not elaborate any further, but would additionally highlight that the power to issue directions under Section 33A of the Water Act and the power to issue directions under Section 3lA of the Air Act, on their piain language, does not confer the power to levy any penalty. We would further highlight that under Chapter VU of the Water Act,, and under Chapter VI of the Air Act penalties and procedure to levy the same have been set out. A perusal of the provisions under the Wa.ter Act would reveal that penalties can be levied as per procedure prescribed and only Courts can take cognizance of offences under the Act and levy penalties, whether by way of imprisonment or fine. Similar is the position under the Air Act. The legislature having enacted specific provisiorij fot I-y of penalties and procedures to be followed has specifically made the offences cognizable by Courts and the power to levy penalties under both Acts has been vested in the Courts. The lole of the Pollution Control Boards is to initiate proceedings before the court of Competent jurisdiction and no more. we would be failing not to note that on the issue of a delegatee not being empowered (by law) to further sub-delegate the delegated power, learned counsel for DPCC conceded to said Page 34 of 3B LPA 895/2010& connecteiJ matters position and thus we leave undisturbed, the view taken by the learned Single Judge on the subject.

¶29Since our reasoning aforesaid results in the finding, by way of interpreting the provisions in the Water Act and the Ai i Act, as requiring prior consent to establish and operate shopping malls and commercial shopping complexes,and the provisions being not applicable to residential complexes, we declare void actions initiated by DPCC pertaining to residential complexes and we further hold that said writ petitions are allowed in terms of the. prayers, made. The impugned decision(s) by the learned Single judge(s) qua residential complexes is set aside. Qua shopping malls and commercial shopping complexes, since we have helc that prior-permission is required under both Acts to cstdblish shopping malls and commercial shopping complexes as also to operate thern and noting that even DPCC was not too sure of the legal position and thus misinformed a few applicants that no permission was required and qua most persons permitted them to commence and complete construction of shopping malls and commercial shopping complexes, the question which now needs to be answered is; Whether, pertaining to the Water Act, Sub-bection 5 of Section 25 is the answer to what needs to be done and in the absence of a similaV provision in the Air Act, what action needs to be directed to be taken.

¶40The language of Sub-Section 5 of Section 25 of ^the Water Act makes it plain clear that the only solution to a situation of a building being constructed to establish an industry, operation or process without obtaining prior consent of the Stale Pollution Page of 3iS LPA 895/2010& connected matters '\ Control Board is the power of the Board to serve upon the person concerned a notice imposing such conditions as might have been imposed on an application seeking prior consent; and we find that the learned Single Judge has correctly so opined and has rightly issued the direction that the only v\/ay out, pertaining to the Water Act, is to permit DPCC to inspect the . shopping malls and the shopping commercial complexes and if it is found that pertaining to discharge of sewage from these buildings any steps are required to prevent water pollution, DPCC would be authorized to issue notices requiring the owner of the-building to take steps in terms of the notice issued. Pertaining to the Air Act, notwithstanding there being no similar provision, but the concept of a post.>decisional hearing may be made applicable with the f'"" modification that no hearing would be required inasmuch as there is no decision, but DPCC should be empowered to inspect the shopping malls and the shopping commercial complexes and pertaining to air pollution, if any deficiencies are found, to notify the same to the.owner requiring corrective action to be taken. Needless to state. If the owners of the buildings do not take corrective action, DPCC would always have the povwer tO' file criminal complaints before the Courts of Competent Jurisdiction, which Courts woufS alone have the power to Impose fine and ^ / additionally Impose sentence of imprisonment upon the offending persons.

¶41On the issue of Air Pollution, we would like to pen a , , post-script pertaining tO;Shopping complexes and shopping malls for the reason the only activity of air pollution in these buildings LPA 895/2010 & connected matters Page36of3!8 would be through the air conditioning plants and generators installed to supply electricity to the buildings in case of power cuts, for the reason the trade of sale ar'iid purchase of goods in these complexes does not entail any activity which causes air pollution. We find that pertaining to DG sets, permissions in any case have to be obtained from DPCC if the capacity of the DG set-is beyond a prescribed wattage and thus DPCC may suitably reconsider all shopping complexes and shopping malls where consent of DPCC has been obtained with respect to DC sets installed as also air-conditioning plants installed in the buildings, for if for the DC sets and air-conditioning plants, sanctions have already been obtained, nothing further remains to be got sanctioned-mnder the Air Act.

¶42In a few cases, we find that since DPCC was not permitting the buildings to be occupied, under protest, the owners paid the penalty to DPCC and have immediately approached the Court seeking refund and the same has been ordered for the reason neither under the Water Act nor under the Air Act there exists any power in DPCC to levy penalty or impose conditions of furnishing bank guarantee. The decision of the learned jingle Judge is correct in directing the bank guarantees to be discharged and penalties levied to be refunded for the reason the said act of DPCC'is ultra-vires its power under the two statutes and Lne levy of penalty Is without any authority of law. In the decision reported as 1997 (5) 5CC 536 Mafatlal Industries Ltd. & Ors. i/5. UP! bL^Ofs., under writ jurisdiction refund can be directed where the levy is \^ithdut jurisdiction and the same would include a penalty levied \ LPA 895/2010 & connected matters Pagej7of./o without any jurisdiction, in the instant case the penalty levied is unconstitutional being not sanctioned by .any power vested ir DPCC either under the Water Act or the Air Act. The impugned decisions where penalty levied has been directed to be refundec are upheld.

¶43The appeals filed by DPCC are dismissed and the cross objections filed are allowed in terms of paras 27, 33, 34 and 39 above.

¶44We leave the parties to bear their own costs.

¶45All interim orders stand vacated. JANUARY 23" 2012 / t-' LPA 895/2010 & connected.matters -f.-- r- (PRADEEP WANIDIR'AJOG: I IL