Delhi Pollution Control Committee v. Rajesh Projects India Pvt Ltd

PRADEEP NANDRAJOG, J. For orders see LPA No.895/2010. JANUARY 23, 2012 dk (PRADEEP NANDRAJOG) JUDGE ~"' (P~ATIBHA RANI JUDGE $- * IN THE HIGH COURT Of DElHI J.J,T NEV\f DEILIH~ % + /udq1nent Reserved on : 161h /anuary_~~'.Q12 /udqn7ent Pronoul7ced on: 23rd Januan~ __ Z_..012 lPA. 895/2010 DELHI POLLUTIOl\I 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 l<aur ancl. Mr.Harsh Hari Haran, Advocates ' ' lPA 1/2011 & CM No.6781/2011. (Cross Obiections}, DELHI POLLUTION CONTROL COMMITTEE ..... /-\ppellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. versus SACHDEVA BUILDON PVT LTD & ORS ... :.Respondents. Through Mr.Sanjay Goswami, Advocate for Ft-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid J\rshad, Advocates for UOI lPA 6/2011 & CM No.6719i2011 (Cross Obiec1tionsJ . DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. LPA 895/2010& connected matters Page 1of33 . 4 versus VARDHMAN PROPERTIES LTD & ORS ·~··· Responcle~nts Through Mr.Sanjay Goswami, Advocate for R-·l LPA 7 /2011 & CM No.6780/20il (Cross Obiectiorn~~~ DELHI POLLUTION CONTROL COMMITTEE ..... App12llant Through Mr.C. Mohan Rao and Mr.Lokesh Shanna, Advocates with Mr.Dinesh Jindal, LO. versus VARDHMAN PROPERTIES LTD & ORS ..... Responclents Through Mr.Sanjay Goswami, Advocate for l~··l LPA 8/2011 &r CM Nlo.6782/2011 (Cross Obiections~l DELHI POLLUTION COl\ITROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shanna, Advocates with Mr.Dinesh Jindal, L.O. versus VAR DH MAN PROPERTIES LTD & ORS ..... Respondents . Through Mr.An ii Sapra, Sr. Advocate with Ms.Urvi l<othiala, Ms.Praneeta Vir and Mr.Sanjav Goswami; Advocates , · · lPA .9/2011 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 &1 ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for H-1 LPA 895/2010 & connected matters Page 2 of 3\8 ·-··--- .. ------- c···- -- -·------·'··---··- -- -·-··---·-·--··---·--·- .... --···---, -· ·-·-·--~·-·· -··•····---··-·•-- .• I ·,, ,"1 I lPA 10/2011 . DELHI POLLUTION CONTROL COMMITTEE ..... J-\ppellant ~hrough Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with ~~r.Dinesh Jindal, LO. versus MAN.ISH BUILDWELL PVT LTD &t ORS ..... Respondents Through Mr.S.anjay Goswami, /-\dvocate for R·-1 lPA 11/2011 DELHI POLLUTION CONTROL COMMITTEE ..... /.\ppeH2.rnt Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. vers4s VARDHMAN LAND DEVELOPERS PVT LTD & ANR Through None .... : Respondents lPA 22/2011 & CM No.6824/2011 (Cross Obiection~~l DELHI POLLUTION CONTROL COMMITIEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocate.s with Mr.Dinesh Jindal, L.O. versus PANKAJ BUILDWELL LTD &t ORS ..... Respondents ·11 Through Mr.Sanjay Goswami, Advocate for iR--1 Mr.l\leeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid .Arsihad, · Advocates for UOI LPA 23/2011 & CM l\Jlo.6832/2011 (Cross Ob~ect~orr1~J DELHI POLLUTION:coNTROL COMMllTEE ..... /-\ppellant LPA 895/2010 & connected matters Page 3, of J.B '· Through versus Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with;Mr.Dinesh Jindal, LO. RAJESH PROJECTS INDIA PVT LTD & ORS. .. ... Respondents · Through Mr.Sanjay Goswami, Advocate for P,-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid 1\rs1·1ad, Advocates for UOI LPA 24/2011 & CM No.8168/2011' (Cross Obijection!~l DELHI POLLUTION CONTROh. 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 Ft-1 · Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid /-\rshad, Advocates for UOI LPA 25/2011 .& CM No.6828/2011 (Cross Objection~~~} DELHI POLLUTION COl\ITROL COMMITTEE ..... /-\ppellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BEST CITY DEVELOPERS (INDIA) PVT LTD. & ORS . .... Respondents Mr.Sanjay Goswami, Advocate for 1=~-l Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay: Chandra and Mr.Khalid /-\rshad, Advocates for UOI Through LPA 895/2010 & connected matters Page 4 of3:g . --------.-- - - -·--- . -·- ·- --·------· -- -· -~ -· ~ -- --- - ~ ', . ·- ····--·-··~--·· i lPA 26/2011 & CM No.6831/20ll_{Cross Obiectron:~J_ DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through · Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus HOME LINKERS PVT LTD & ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for H-1 Mr.Neeeraj Chaudhari, CGSC with ". Mr.Aksh_ay Chandra and Mr.Khalid /\rshad, Advocates for UOI LPA 27/2011 & CM No.6833/2011 (Cross Objections} DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LQ_. versus RAJESH PROJECTS INDIA PVT LTD &1 ORS ..... Respondents Through Mr.Sanjay Goswami, Advocate for n~-1 Mr.l\leeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid 1~,rshad, Advocates for UOI lPA 28/2011 & CM No.6826/2011 (Cross Obiection~;l DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rab and Mr.Lokesh Shanna., Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD &(ORS. ..... Respondents LPA 895/2010 & connected matters· --~"· -- ··-··---· ·- - ·----···-·----,·- - -· w, Through Mr.Sanjay Goswami, Advocate for H-1 }'1. Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshcid, Advocates for UOI LPA 45/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shanna, Advocates with Mr.Dinesh Jindal, L..O. versus JINDAL BIOCHEM PVT LTD &! ORS ..... Respondents Through Mr.l\leeeraj Chaudhari, CGSC with Mr.Akshay· Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 46/2011 & CM No.8164/2011._(Cross Obiection~J DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shanna, Advocates with Mr.Dinesh Jindal, L.O. versus AS BUILDWELL PVT LTD & ORS ..... Responcle11ts Through Mr.Sanjay Goswami, Advocate for R--1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Ar'.;had, Advocates for UOI lPA 4 7 /2011 & CM No.6825/2011 (Cross Obiectiori1il DELHI POLLUTION CONTROL COMMITTEE . .. .. : Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shanna, Advocates with Mr.Dinesh Jindal, LO. versus: LPA 895/2010 & connected matters . ~ . . ' ._,. -~··-·············-- ····--·-· .. ·-··-- -····· ! MAITRI MUTUAL BENEFITS 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 48/2011 & CM No.6823/2011 (Cross Obiection~~J DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sha1·ma, Advocates with Mr.Dinesh Jindal, L..O. versus l\llRVAN HIRE PURCHASE LTD lS{ ORS ..... Respondent5 Through Mr.Sanjay Gbswami, Advocate for H-1 IVI r. l\leeeraj Cha ud ha ri, CGSC with · Mr.Akshay Chandra and Mr.Khalid ,t\rshad, Advocates for UOI lPA 50/2011 & CM No.6821/2011 (Cross Objection'.~~} DELHI POLLUTION CONTROL COMMITTEE ..... t-\ppellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O .. versus NIPUN BUILDERS & DEVELOPERS PVT LTD & ORS · ..... Responclent:s Through · Mr.Sanjay Goswami, Advocate for i=~.-1 Mr.Neeeraj, Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid /\rshad, Advocates for UOI lPA 51/2011& CM No.6829/2011 (Cross Obiec1tions} DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. LPA 895/2010 & connected matters . Page 7 of 3g A )' -··r·----.-- ·--·-···~- ----·~ f versus VARDHMAN PROPERTIES LTD 61 ORS ..... Responcjents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.l<l1alid ,L\rshad, Advocates for UOI LPA 53/2011 DELHI POLLUTION CONTROL COMM.ITTEE ..... P1ppellant Through Mr.C. MOhan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. versus ESS CEE CEE & ASSOCIATES (11\IDlfai.) PVT LTD .. Respondent Through Mr.J'..\nil Sapra, Sr. Advocate with Ms.Urvi Kothiala, Ms.Praneeta Vir and Mr.Sanjay Goswami, Advocates .'· lPA 54/2011 & CM No.6004/2011 (Cross Obiection~~l DELHI POLLUTION CONTROL COMMITTEE ..... i6,ppellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrr1a, Advocates with Mr.Dinesh Jindal, L.O. versus FARGO ESTATES PVTLTD ..... Respondent Through Mr.Ankit Jain, Advocate LPA 58/2011& CM No.6830/2011 (Cross Obiections~~ DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C: Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus: LPA ~95/2010 & connected matte~s Page 8 of 3\fl, I . i I, -4./ VARDHMAN PROPERTIES LTD 61 OHS:> ..... Respondents Through Mr.Sanjay Goswami, Advocate for F~-1 Mr.Neeeraj Chaudhari, CGSC with. Mr.Akshay Chandra and Mr.Khalid ,l),rshad, Advocates for UOI LPA 94/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates wit_h Mr.Dinesh Jindal, L.O. versus DLF RETAILER DEVELOPERS LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep l<aur and Mr.Harsh Hari Haran, Advocates lPA 95/2011 DELHI POLLUTION CONTROL COMMITTEE .: ... /~ppellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, 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.Elda Mehta and Ms.Joanne Pudussery, Advocates for respondent No.1. · Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid J\rshad, · Advocates for UOI lPA 96/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through M·r.C. Mohan Rao and Mr.Lokesh Sharma, LPA 8SS/2010 & connected matters · J? /. ······ r······-·········- ... --······· I Advocates with Mr.Dinesh Jindal, L.O. versus MAN.ISH BUILDWELL PVT LTD 6( OHS ..... Respondents Through Mr.Sanjay Goswami, Advocate for H-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshacl, Advocates for UOI lPA 97/2011 DELHI POLLUTION CONTROL COMMITTEE ...... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. versus BRIGHTWAYS HOUSING & DEVELOPMENT LTD & ANR ..... Respondents Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vir, /-\dvocates for R-1. Mr.Neeeraj Chaudhari, CGSC with . Mr.Akshay Chandra and Mr.Khalid ,1\rshad, · Advocates for UOI LPA 98/2011 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 8%/2010& connected matters· Page lO of 3:8 : ./ Through Mr.B.B. G,upta, Ms.Mandeep Kaur and Mr.Hars,h Ha'ri Haran, Advocates LPA 99/2011 DELHI POLLUTION CONTROL COMMITIEE ..... Appell~1nt Through Mr.C. Mohan Rao and Mr.Lokes.h Sharrna,, 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 lPA 100/2011 DELHI POLLUTION CONTROL COMMITIEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrr1a, Advocates with Mr.Dinesh Jindal, L.O. versus PROSPEROUS ESTATES PVT LTD ..... Respondent Through None LPA 101/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh St1arma, Advocates with Mr.Dinesh Jindal, L.O. · versus REGENCY PARK PROPERTY MANAGEMENT SERVICES PVT LTD ..... Respondent Through Mr.B.B. Gupta~ ·Ms.Mandeep Kaur ancl Mr. Harsh Ha ri Haran, /-\dvocates LPA 895/2010& connected matters Page 11 of 3,g ··' " .I lPA 102/2011 DELHI POLLUTION CONTROL COMIVllTIEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharr11a, Advocates with Mr.Dinesh Jindal, LO. versus PALI WAL DEVELOPERS LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur ancl Mr.Harsh Hari Haran, Advocates· lPA 103/2011 DELHI POLLUTION COl\ITROL COMMITIEE ..... /..\ppellant 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.Anil Sapra, Sr. Advocate with Ms.Urvi l<othiala and Ms.Praneeta Vir, /..\dvocat:es. LPA 104/2011 DELHI POLLUTION CONTROL COMM!TIEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. versus RC SOOD & CO PVT LTD ..... Respondent· Through Mr.Shobhit Chandra, /-\dvocate LPA 895/2010 & connected matters Page 12 of3B ---r-·-· - LPA 709/20ll DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Moh'ailRao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus LODHI PROPERTY CO LTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep l<aur ancl Mr.Harsh Hari Haran, ,L\dvocates LPA 710/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohah Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus BHARTI REAL TY LTD ..... Respondent Through Mr.Dushyant Manocha and Ms.Tarunirna Vij ra, Advocates LPA 866/2011 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Shanr1a, Advocates with Mr.Dinesh Jindal, L.O. versus ANUSH FIN LEASE & CONSTRUCTION PVT LTD ..... Respondent ' Through Mr.Ajay Kumar and Mr.Naveen Tayal, Advocates LPA_ 895/2010 & connected matters: Page ]3 of :?m ./ lPA 867/2011 DELHI POLLUTION CONTROL COMMITTEE ...... AppiE=:~llant Through Mr.C. Mohan Rao and Mr.Lokesh Shanr1a, Advocates with Mr.Dinesh Jindal, L.O. versus TIRUPATI INFRAPROJECTS PVT LTD ..... Respondent Through Mr.Ajay Kumar and Mr.Naveen Taycil, Advocates CORAM:. HON'BLE MR. JUSTICE PRADEEP NANDRA~OG HON'BLE MS. JUSTICE PRATmH°A HAN~ PRADEEP NANDRAJOG, l l. A batch of 38 writ petitions was decided by a learnecl Single Judge vide order dated September 30, 2010. The saicl decision has been followed .subsequently by another learnecl 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 in the appeal(s).

¶2\/\/rit petitions were filed challenging notices issued b~; . the Delhi Pollution Control Committee (DPCC) to thi~~ writ petitioners or penalties levied, which were paid under protest: or 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 tak 1 ~ LPA 895/2010 & connected matters· Page 14 of 3:.B ( action afresh and guided by the. decision of the learned Single judge.

¶3The 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 (iii) Shopping Malls. Actions were initiated or decisions were taken on the allegation -that with respect to the _buildings constructed, the writ petitioners had not obtained a 'consent to establish' as required under The \/\later (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'the ·Water Act') and 'consent to operate' as' required under· The ,~ir -.j (Prevention and Control of Pollution) Act, 1981 · U1ereinafter referred to as 'the Air Act').

¶4· Issues have been debated before the learned SinqlE~ ·Judge and even before us with reference to Sections ·2(~J), 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 /-\ir /-\ct:. 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 1-'ol!ution) 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 . ·-- ~-.. -··- ·-·---:------ ------ --- -- --~- Page 15 of 3\B ,. I

(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, ca_rrying ·sewage or trade effluent;

(h) ( i)

(j)

(k) 'trade effluent' includes any liquid, gaseou'.; or solid substance which is discharged from any premises used for carrying on any industry, operation or process, or treatment and disposa I system, other than domestic sewage.

¶25Restrictions on new . outlets and new discharges.- ( l) 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 treatment and disposal system or any extension or addition thereto; \Nhich 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); or

(b)

(c) Provided that a person in the process of taking any steps to establish any industr)I, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment /-\ct, LPA 895/2010 & connected matters Page lfi of :.1.a r / '

(2)

(3) 1988, for which no consent was necessary prior to such c::ommencement, may continue to do so for a period of three months frorn 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.

(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 ne\IV or altered outlet is brought ·into use for the discharge of se\/Vage 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 mi9l1t , 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) shall; 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) · LPA 895/2010& connected matters Page 11of38 ··--.. ·1-.. ··-""' -·-···· ---.. ··---·--··~--- --···- ·-----·-· ... ···-···--- -·· ·-··-·- -- --·-··-·- ···-······ .. -· - . -- -· --·----·- -......-·-- .... /"'• . (· .. "!-- .. ---..... --· I

¶633A. Power to 9ive :directions.-Notwithstanding anything contained in any o.ther law, but subject to the provisions of this Act, and to any directions that the Central Government may give in tl1is beha If, a Boa rd may, in the exercise of its powers and performance of its functions under this ,1),ct, issue any directions in writing to any person, officer or authority, and sucil 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 is:::;ue 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." Section 2(a); 2(j), 2(k), 1-elevant part of Section 21 and Section 31A of The Air (P1-evention 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)

(e) LPA 895/2010& connected matters Page rn of ~:s . - ~·: ____ ... ____ __:, __ --. --·- --- ------·- - - ··- " --·... -- ,,_ -- - ~ -· - ... ' ~ .

(f)

(g)

(h)

(i) .....

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

(k) 'industrial plant' means any plant used fo1' any industrial or trade purposes and emitting any air pollutant into the atmosphere;

¶21Restrictions on use of. certain industria~ plants.- (1) Subject to the provisions of this section, no· person shall, without the previous . consent of the State Board, establish or operate any industrial plant in an air pollution control area:

(2)

(3) Provided that a pei-son operating any industrial plant in any air pollution control area immediately · before the commencement of section 9 of the /.\ir (Prevention and Control of Pollutiion) ·Amendment Act, 1987 (47 of 1987), for which no consent was necessary p1·ior to such commencement, may continue to do so for a period of three months from :;uch commencement or, if he has made an application for such consent within the said period of three months, till the disposal of such application·.

(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 order LPA 895/2-010 & connected matters --···1-··-.. - ......... ·- ·-··--·- ··:·--··-·=·-. -·-··-----·-- . .. . ____ ,, ___ -··-· ·--. ·--·- - .... . j . I '-- 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 refus.e such consent:

(5) ( 6) ( 7) 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 after such expiry if the conditions subject to which such consent has beer: granted are not fulfilled: Provided further that before cancellin~1 a consent or refusing a further consent under the first prov·iso, a reasonable opportunity of being heard shall be given to the person concerned .

31.A. Power to give directions.- Notwithstandiri~1 anything contained in any other law, but subject to the provisions of this Act and to ~ny direction~; that the Central Government may give in this behalf, a Board may, in the exercise of its power~; and performance of its functions under this /-\ct, issue any directions in wribng to any person, office or authority, and such person, officer or authority shall be bound ·to . comply with such directions. i. Explanation.- For the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to dir"ect-LPA 895/2010 & connected matters Page :w of 38

(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 tl1e 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 tl1e original \Nater Act were intended to expand the scope of the \Nater Act. The learned . Single Judge has highlighted thpt the expression 'esta/Jlis/7 any industry; operation or process or any treat1nent and disposal. syste1n or any extension or addition thereto, which is like1)1 to discharge sewage or trade effluent' in 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(k) of the . Water Act. Noting the definition of the words 'operation' and · /- 'process' in para 12 of the decision, and thereafter noting the . i I . decisions that purposive construction needs to be followeci where the mischief which existed before passing the statute was detected and was intended to be remedied, the learned Sin9le Judge has concluded that collective·. operation or proces.s-of' LPA 89512010& connected matters Page 21of38 -·---- ·~---~··-·----:1·--·-·- -.-.~ ,• bathing in the ba~hroon? and sucl1 pro'cesses as take place in the toilet and cooldt?g and was(?ing in the kitchen would be operations and process~s contemplated by Section 25(l)(a) of tl?e Mlater Act for its applicability to residential complexes. This is the conclusion arrived at in para 16, but in the inimediate next para i.e. para 17, the learned Single Judge has lodged a caveat by stating that he was not answering the question with reference to single storeyed constructions.

¶8With reference to the commercial complexe~; 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 all· kinds of non-domestic sewage and has thus held that these bu.ildings would be governed by clause (a) of Sub-Section 1 of Section 25 of the Water .Act. )_ I

¶9As regards the very act of constructing a building, 1n paras 19 and 20, the learned Single judge has helq that thE~ very act of constructing a commercial shop1i-ing complex, shoppin9 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 water pollution because large quantities of water are used during construction and are also discharged.

¶10. Since, 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 89512010& connected matters Page :ZZ cjf ~U~ 14'. in Sub-Section 5 of Section 25 of.the Water Act.

¶11The argument of DPCC that the power to give dirE~ctions under Section 33A of the \/Vater Act has been negated by the learned Single Judge, with reference to various deci~ions cited which hold that the power to levy penalty has to be e><pressly . 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 dischan;Jes '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' occurrin9 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 ejusden1 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 \/\fater Act.

(iv) The liability under the. \Nater Act does not get exempted only because the sewaqe LPA 895/2010& connected matters Page ;~3 of 38 fl \j I discharged frorh such complexes joins the main municipal se\/\/erage system which may or may not be treated in keeping with the water pollLJtion norms.

(v) The pollution caused by discharge of domestic se\/\/age from a residential complex or trade effluent from a commercial complex or industry during the construction phase as well as at any stage after the complex becomes functional \/\/Oulcl attract the various provisions of the VVater Act.

(vi) With the buildings . in question having already been constructed \/\/ithout obtainin~J prior consent to establish, the directio1·1 of the DPCC that . those \/\/ho had failed to obtain prior consent to establish should no\/\/ apply for such consent is a direction that is not capable of being complied \/\/ith. Instead the DPCC. should invoke the po\/\/ers under Section 25 (5) of the \Nater Act, issue sho\/\/ ca use notices setting out tr1e conditionalities required to be cornplied with \/\/ithin 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 w.ill have to be complied with notwitl1standing that the MCD has Hie power to lay do\/\/n a separate set: of regulations and bye-laws for use of \/\later. Where an applicant has not been communicated any decision of the DPCC for four months after the makirnJ of an application, the deeming provision of Section 25(7) would kick in and it would be deemed that the consent to establish has been granted. In such circumstances, Section 2,5(1) of the \Nater Act cannot LPA 895/2010& connected matters. Page 24. of 38 obviously thereafter be enforced."

¶13Discussing the applicability of the Air Act, as concedec! ' ' · to by learned counsel for the parties at the hearing of the appeal, the learned Single Judge has inadv~rtently referred to the pre·-· amended provisions of the Air Act, though the learned Sin~1le Judge has referred and noted the fact that the ,L\ir Act of 1981 wa5, amended in the year 1988.

¶14Pertaining to residential. complexes, the learned :Single Judge has noted the unamended Section 21 of the Air /-.\ct which did not have the word 'establish' and had only the word 'operate' in Su)J:.Section 1 thereof, and thus the learned Single Jud9e has held that no permission from DPCC is needed to est~blish 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 co,mplexes ancl shopping malls, it has been held that under the Air Act, for these cornple)(1~s, to operate them, prior permission has to be obtained as. also during construction phase. ,_. · 15. The learned Single Judge has :~ummarized 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(1<) thereof leads this .Court to the conclusion that a commercial . shopping complex or a shoppin9 mall would be covered within the ·scope of· Section 21(1) of the Air Act. LPA 895/2010 & connected matters Page :l5 of 3H j I

16.

(ii) The definition of 'air pollution' under Section 2(a) read with Section 21(1) of the Air Act,.ancl the fact that the commercial shoppin9 complexes or shopping malls are going to be used for a trade ac;:tivity, is sufficient to attract the provisions of Section· 21(,1) of the Air Act.

(iii) 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, will have to comply with the norms under the Air Act and the Water Act and for that matter t:hE~ EPA.

(v) Where the construction of a commercial shopping complex or shopping mall 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 failing which it can issue directions under Section 31A Air Act." A perusal of Section 25 of the Water Act woulcl reveal, 1 j. 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 anv industrv, operation or process, ........ which is likely to discharge sewage or trade efflue11f. Thus, even .if sewage effluent as defined in Section 2(g) was discharged from any LPA 895/2010& connected matters ·\ ;i ;. . 1 industry, operation or process !intended to be established,. the requirement of. prior consent would be necessary and to this extent the view taken by tl1e learned Single Judge is correct.

¶17But, what would encompass 'any indust1y, operation or . process?

¶18The Water Act does not define,:_'industry', 'operation' or 'process'. As held in the decisions reported as 1993 (3) SC 2529 Co1nn?issioner of lnco1ne Tax Orissa vs. ll!f/s.N. C.Budhira1~~;~ __ Co. and 2010 (320) ITR 420 (Delhi) Ansal Housing & Constructio~z_~td. vs. Co1n1nissioner of Income Tax, the ordinary dictionary meaning of 'industry' or an 'industrial undertaking' would not include t:he < v' activity of construction. The word 'operation' is defined, as noted by the learned Single Judge, in the New Shorter Oxford Enqlish 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."

¶19, The same dictionary defines 'process', as noted by the ·1earned Single Judge, as under:-

¶20" process : The action or fact of going on or bein~J carried on; a continuous series of actions, event'.:; or changes; a systematic series of actions or operations directed at a particular end." As ·.noted herein above, applying purposive . constructiOn, the learned Single Judge has held, in para 15, that the two words 'operati.on' and. 'process'_ have to be given their widest amplitude and meaning. The purposive con~;truc:tion LPA 895/2010& connected matters Page n of 38 \ l .. / 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 of 'operation' and 'process', and ignore the sweep of the span of the two words. V\fe do so. Operation is defined as an activlty or an act of a practical or technical nature, with emphasis of the acts forming 'a step in a process'. The word 'process' is a going on action or a continuous series of actions 'directed at a particular end'. Thus, an operation would be a working or an activity, where the core of the act co0stituting. the activity is of a practical or technic:al_r]iiture especially one forming a step in a ·process, and since process is an going on action or a continuous series of action direct:ecLat_g_ particular end, the conjoint reading of an operation and a process or even if the two h~ve to be read disjurictively would mean that the expression 'establish or take any steps to establish any industry, operation or process, or any treatment and disposa/ system or any extension or addition thereto, which is likely tc discharge sewage or trade effluent' would mean to take __ st~ps 'to. establish any industry, establishment or undertaking wt1erE~Jhe operation or process i.e. activity is of a, practical or j~ecJJJJjcal. nature, at the core of which are ongoing acts, in a serie~~_r__dig~~ted IL at a particular end. Thus, the act of ablution in the toilet or washing vegetables and dishes in the kitchen of a residE~ntia! complex, within the precincts of residential flats, by no stretch of imagination can be called or labeled as an operation or a proce~;s.

¶22The view taken by th~ learned Single Judge pertainin~J LPA 895/2010& connected matters . - --··- - .. - - -- ~·- ·~ -- - -- - - .... ~~~~~~~~- ... to shopping malls and commercial shopping complexes on the applicability of the Water Act is accordingly upheld and tl1e view ' taken pertaining to the applicability of the Water Act to residential housing complexes is incorrect. f 7

¶23A building where shops would be made and in vvhich shops goods or services· would be sold as also shopping malls would be buildings where operation and or process is carriE~d on for the reason they would be p·laces whe1;e the activity carried on is of a practical or a technical nature and at the core 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. ~ '-\J goods; and if service is rendered, the rendition of service directed· towards a· particular end. If from these buildings sewci9e 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 penTtission would be required from the Board under the \/\later /-\ct.

¶24.With respect to the decisions reported as 1993 {3) SC 2529 Co1n1nissioner of lnco1ne Tax Orissa vs. IV//s.1\1. C.Bulihin?J~~ S Co. and 2010 (320) ITR 420 (Delhi) Ansa'/ Housing & Con~'ittJ.{Ction Ltd. vs. Co1nmissioner of Income Tax, .where it has been held that ·constructing a building per-se is not an industrial activity the vie\1\1 taken by the learned Single Judge that constructing a building, whether to be used for a residential pur'pose or to be used for 0~ commercial shopping complex or for shopping malls would tie ar industrial activity; running contrary to 'the aforesaid jud9rnents i~: incorrect. LPA 895/2010& connected matters Page 2'.9 of 3:1]; ' .. "' "-/ '

¶25The reasoning of the learned Single Judge to expand· the scope of Section 25(l)(a) of the Water Act; that the obj<2ct of the Water Act was ·to control water polluti~n 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 retationship which exi?ts amongst them and human beings and other living creatures, plants and micro-·or~]anisms. · ·The said Act and the Rules framed under the said Act are wide < enough to cover exploitation of water and the impact then::of on environment and we see no vacuum in the fight a~Jainst environmental degradation, by understanding the various expression.sand their meaning in Section 25(l)(a) of the V\lat:e1-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 v.iew all material that bears on the background against which a lei;Jislation was effected and where more than one construction is possible, the· one which eliminates the mischief identified should be II 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 appropri:ated by the legislation. The \/\later Act requires prior permission to establish any industry, operation or ' . LPA 895/2010& connected matters ···--··-···--- .... ~ ···-· --·-- .. ---·- ·- ' 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, ho'using an industry is souqht 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 Water f!\ct · -would apply whe~e 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 iL\ct would '<' V 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 prov~ded.

¶28Pertaining to the Air Act, there is a material difference in the language used in Section 21 of the said Act, vis-i~i-vis the language used in Section 25 of the Water Act. \/\/hereas 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 operate any industrial plant.

¶29Since the learned Single judge has referred to the unamended provision and has ignored the amendments carried out to the Air Act in the year 1988, we note that as per the ah1e_nded Section 21, the obligatinn to obtain the consent of the State Pollution Control B·oard is only to establish or operate any LPA 895/2010& connected matters Page 31 ofJB f 1 industrial plant in an Air Pollution Control f-\rea. Section 2(1<) defines an 'industrial plant' to .'mean any plant used for any industrial or trade purposes and emitting any air pollut.ant.

¶30The learned Single Judge has read the unamended Section 21 of the Air Act to mean that prior consent is needed to operate an industrial plant. Sin'ce the decision of the learned Single Judge has not noted the language of the amended Section ;where the words 'establish or' have beeri inserted p~rior 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(1<) of the Air Act, the learned Single Judqe •t has noted that the definition expands the meaning of the vvords '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 arid 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 tirade /\ : 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 anp from a commercial shopping complex trade is carried on, we hold that prior consent under the Air /-\ct LPA 895/2010& connected matters . Page 3\2'. of 38 I( would be required wh<:;n commercial shopping complexes and ·shopping malls are established i.e. at the commencernent of the· process of establishment i.e. before the building construction activity commences.

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

¶34For our reasoning herein above pertaining to the VVater Act, the said reasoning of the learned Single Judge pertaining to ,, "-.. ) the Air Act is overruled, but would make 110 difference to the final ';·· ..... . ; ~ .conclusion arrived at by us pertaining to the applicability of the ,L\ir 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 langua<]e 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 K/1en1ka & Co. (Agencies) Pvt. __ LtIL_JIS. LPA 895/2010& connected matters Page 3\3 of 33 I ~. ~ . State of Maharas/1tra, 1994 (4) SCC 276 /.K.Svnthetics Ltd. 6c)1f.rla Ce1nent Works vs. Comtnercial Taxes Officer and 1997 (6) SCC 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.

¶37We concur with the reasoning of the learned Sin9le 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 iss.ue directions under Section 33A of the \/\later Act and . the power to issue directions under Section 31A of the /~ir 1'.\.ct, on their plain language, does not confer the power to levy any penalty. We would further l1ighlight that under Chapter VII of the \Nater Act, and under Chapter VI of the Air Act penalties and procedure to levy the same have been set out. /-\ perusal of the provisions under the Water /\ct 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 provision:; for levy . . . of penalties and procedures to be followed has specifically rnade. the offences cognizable by Courts and the power to levy penalties. under both Acts l1as been vested in the Courts. The role of the. /--, Pollution Control Boards is to initiate proceedings before the Court· of Competent jurisdiction and no more.

¶38We would be failing not to note that on the issue of a delegatee not being empowered (by law) to further sub·-dele9ate the delegated power, learned counsel for DPCC conceded to said LPA 895/2010& connected matters Page J4 of ]g L_ ·---· --·-·--···----... --·· -- . - - position and thus we leave undisturbed the view taken by the. learned Single Judge on the subject.

¶39Since our reasoning aforesaid results in the firn]in~J, by way of interpreting the provisions in the Water Act and the Air /-\ct, as requiring prior consent to establish and operate shopping malls and commercial shopping complexes and the provisions beinq 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 J~dge(s) qua residential complexes is set aside. Qua '.:;hopping malls and commercial shopping complexes, since we have helc: that prior permission is required under both Acts to establish shopping malls and commercial shopping complexes as also to operate them 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 rnalls and commercial shopping complexes, the q·uestion which now needs to be answered is: Whether, pertaining to the VVater Act, Sub-Section 5 of Section 25 is the answer to what needs to be done a nc:I in the absence of a similar provision in the Air Act, w.hat action needs to /" be directed to be taken.

¶40The language of Sub-Section 5 of Section 25 of· the VVater Act makes it plain clear that the only solution to a situation of a building being constructed to establish an industry, operation or proce?s without obtaining prior consent of the State Pollution LPA 895/2010& connected matters Page ?Vi of 3;g 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 fincl U1at the learned Single Judge has correctly so opined and has ri~Jhtly 'i issued the direction that the only vvay out, pertaining to the \/\later Act, is to permit DPCC to inspect the r 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 /\ir t\ct, ~ notwithstanding there being no similar provision, but the concept of a post decisional hearing may be made applicable with the modification that rio hearing would be required inasmuch as there' is no decision, but DPCC should be empowered to inspect the shopping malls and the shopping commercial comple><es and pertaining to air pollution, if any deficiencies are found, to notify the same to the owner requiring corr~ctive action to be taken. Needless· to state, if the owners of the buildings do not take corrective action,. DPCC would always have the power to file criminal complaints before the Courts of Competent Jurisdiction, , which Courts would 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 Page 36 of 3',n -·-····--·----·- -. - ··--·-··--·- ··---·--.. ·- ... ·---- --·· .. --····---- ------------- -- -------·. ------- . . ' , /5 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 and purchase of goods in these complexes does not entail any activity which causes air pollution. \Ne find that pertaining to DG sets, permissions in any case have to be obtained from DPCC if the capacity of the [l(:J, set is beyond a prescribed wattage and thus DPCC may. suitably reconsider all shopping complexes and shopping mall~; vvl1ere · consent of DPCC has been obtained with respect to DG sets installed as also air-conditioning plants installed in the buildinqs, for if for the DG sets and air-conditioning plants, sanctions 'have "-/· · already been obtained, nothing further remains to be ~~ot ' ! · sanctioned under 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 imrnediately 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 Single Judge is correct in directing the bank guarantees to be di~>char9ed and penalties levied to be .refunded for the reason the said act of . ,. DPCC is uftra-vires its power under the two statutes and the levy of penalty is without any authority of law. In the decision reported. as 1997 (5) SCC 536 Mafatlal Industries Ltd. &(Ors. vs. UOl_li( Ors., under writ jurisdiction refund can be directed where the levy is . . without jurisdiction and ·the same would include a penalty levied LPA 895/2010 & connected matters ~· without any jurisdiction. In the instant case the penalty levied i~; unconstitutional being not sanctioned . by any pov1/e1~ 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 cros~. olJjections filed are allowed in terms of paras 27, 33, 34 and 39 above.

44.

¶4,-:J. We leave the parties to bear their own costs. All interim orders stand vacated. J)ANl!JARY 23, 2012 dlk LPA 895/2010 & connected.matters Page 38of38

* IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Judgment Reserved on : 1 ffh January 2012 Judgment Pronounced on: 23rd January, 2012 LPA 23J2011 & CM No.6832/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. 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 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI