Delhi Pollution Control Committee v. Prosperous Estates Pvt Ltd

PRADEEP NANDRAJOG, J For orders see LPA No.895/2010. (PRADEEP NANDRAJOG) JUDGE (PRATIBHARAN I) JUDGE JANUARY 23, 2012 dk C ^-^ $* IN THE HIGH COURT OF DELFfl AT NEW DELH % Judgment Reserved on : 16117 /anuar 2012 /udQment Pronounced on: 23-°' 1a17ua2012 ± LPA895/2010 DELHI POLLUTION CONTROL COMMITTEE ..... . Appeflant Through.: Mr.C. Mohan Rao and I1r.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus SPLENDOR LAN DBASE LTD Respondent. Through: W.B.B. Gupta, Ms.Mandeep Kaur and Mr:.Harsh Hari Haran, Advocates LPA 1/2011 & CM No6781/2011 (Cross Objections) [DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus SACHDEVA BUILDON PVT LTD ORS .....Respondents Through Mr..Sanjay Goswami, Advocate for 1-(-1 Mr.Neeeraj Chaudhari, CGSC With Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 6/2011 & CM1o.6779/2011 (Cross ObIectioi DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, [.0. .. versus VARDHMAN PROPERTIES LTD & ORS . Respondents Through Mr.SanjayGoswami, Advocate for R-It LPA 7/2011 & CM No.6780/2011 (Cross Objections,- i DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.O. versus VARDH MAN PROPERTIES LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-i LPA 8/2011 & CM No.6782/2011 (Cross Objections-1 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through M•r.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, [0. versus VARDH MAN PROPERTIES LTD & ORS .....Respondents Through Mr.AniI Sapra, Sr. Advocate with Ms.Urvi Kbthiala, Ms,Praneeta Vir and Mr.Sariay Goswami, Advocates LPA 9/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. 1p versus MANISH BUILDWELL PVT LTD & ORS .....Respondents Through Mr.Saniay Goswami, Advocate for R-i LPA 895/2010 & connected matters LPA 10/2011 DELHI POLLUTION CONTROL COMMITTEE ...... AppeIInt Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, 1-0. versus MANISH BUILDWELL PVT LTD & ORS ......Respondents Through Mr.Sanjay Goswarni, Advocate for R-i LPA 11/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.O. versus VARDHMAN LAND DEVELOPERS PVT LTD & ANR .....Respondents Through None LPA 22/2011 & CM No.6824/2011 (Cross Obiections DELHI POLLUTION CONTROL COMMITTEE ......Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.O. versus PAN IKAJ BUILDWELL LTD & ORS .....Respondents Through Mr.Sanjay Goswami, Advocate for R-I Mr.Neeeraj Chaudhari, CGSC with '-S Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 23/2011 & CM No.6832/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharina, Advocates withMr.Dinesh Jindal, L.O. versus RAJESH PROJECTS INDIA PVT LTD & ORS. Respondents Through Mr.Sanjay Goswami, Advocate for R4 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 24/2011 & CM No.8168/2011 (Cross Obflectioft DELHI POLLUTION CONTROL COMMITTEE .....AppeIant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, [.0, versus BEST REALTORS (INDIA) 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 UDI LPA 25/2011 & CM No.6828/2011 (Cross Obections DELHI POLLUTION CONTROL COMMITTEE .....Appellant 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 Through MrSanjay Goswami, Advocate for R-1 MrNeeeraj Chaudhari, CGSC with MrLAkshay Chandra and Mr.Khalid Arshad, Advocates for UOI Page 40138 LPA 26/2011 & CM No6831/2011 (Cross ObectioftE 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 R4 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid .Arshad, Advocates for UOI LPA 27/2011 & CM No.6833/2011 (Cross Obections DELHI POLLUTION CONTROL COMMITTEE .....Appellant a: Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L,O. versus RAJESH PROJECTS INDIA PVT LTD & ORS .....Respondents Through MrSanjay Goswami, Advocate for R-1 MrNeeeraj Chaudhari, CGSC with MrLAkshay Chandra' and Mr.Khalid ,Arshad, AdVocates for UOI LPA 28/2011 & CM No.6826/2011 (Cross Obijections) DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through MrC. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus VARDH MAN PROPERTIES LTD ORS Respondents LPA 895/2010 & connected matters (-^ D , Through Mr.Sanjay Goswami, Advocate for R-i Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshadr, Advocates for UOI LPA 45/2011 DELHI POLLUTION CONTROL COMMITTEE ... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, [.0. versus JINDAL BIOCHEM PVT LTD & ORS ..... Respondents Through MLNeeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshaci, Advocates for UOI LPA 46/2011 & CM No.8164/2011 (Cross Obectkm5 DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus AS BUILDWELL PVT LTD & ORS ......Responclents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 47/2011 & CM No.6825/2011 (Cross Objection) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.[okesh Sharma, Advocates with Mr.Dinesh jindal, L.O. versus LPA 895/2010 & connected matters Page of 38 .... ........... MAITRI MUTUAL BENEFITS LTD & ORS .....Respondents Through Mr.Sanjay Goswami, Advocate for R•-i Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 48/2011 & CM No682312011 (Cross Objection!,;) DELHI POLLUTION CONTROL COMMITTEE .....Appellant • Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus NIRVAN HIRE PURCHASE 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 UOJ LPA 50/2011 & CM N0.682712011 (Cross Obiections DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus NIPUN BUILDERS & DEVELOPERS PVT LTD & ORS .Respondents Through Mr, Sanjay Goswami, Advocate for R-i MrNeeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 51/2011& CM No.6829/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. LPA 895/2010 & connected matters Page 7 f: 38 versus VARDH MAN PROPERTIES LTD & ORS .....Respondents Through Mr.Sanjay Goswami, Advocate for 11-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 53/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus • ESS CEE CEE & ASSOCIATES (INDIA) PVT LTD .. Respondent • •• Through Mr.AniI Sapra, Sr. Ad'v'ocate with Ms.Urvi Kothiala, Ms.Praneeta Vir and Mr.Sanjay Goswami, Advocates LPA 54/2011 & CM No.6004/2011 (Cross Objections • DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao.and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, [.0,, versus FARGO ESTATES PVT LTD Respondent Through Mr.AnkitJain, Advocate LPA 58/2011& CM No6830/2011 (Cross Obfjections DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C, Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.O. versus LPA 395/2010 & connected matters Page g of 3 •.- cil) VARDH MAN PROPERTIES LTD & ORS . Respondents Through Mr.Sanjay Go-swami, Advocate for k-i Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalicl /\rshad, Advocates for UOI [PA 94/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, 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 LPA 95/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh jindal, [.0. versus LAXMI BUILDTECH PVT LTD & ANR .....Respondents Through Mr.Kailash Vasdev, Sr. Advocate with MsNeoma Vasdev Gupta, Ms.Ekta Meha 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 Sharrna, ... .. .......- ......... .................. Advocates with Mr.Dinesh Jindal,. L.O. versus MANISH 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 LPA 97/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BRIGHTWAYS HOUSING & DEVELOPMENT LTD & ANR ......Respondents Through MrAnl Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vr, Advocates for R1. MrNeeeraj Chaudhari, CGSC with MrAkshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA98/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through MrC. Mohan Rao and Mr.Lokesh Sharma, AdVocates with Mr.Dinesh Jindal, L.O. versus DLF COMMERCIAL DEVELOPERS LTD .....Respondent Page 1.0 of 3 c c-^4) Through Mr.B.B. Gupta, Ms.Mandeep Ikaur and Mr.Harsh Hari Haran, Advocates LPA 99/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through M.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh JindaI,L.O. versus GALLERIA PROPERTY MANAGEMENT SERVICES PVT LTD Respondent Through W.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari 1-laran, Advocates LPA 100/2011 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 101/2011 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 SOT' LPA 102/2011 DELHI POLLUTION CONTROL. COMMITTEE . Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus PALl WAL DEVELOPERS LTD .....Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 103/2011 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.AniI Sapra, Sr. Advocate with Ms.Urvi I<othiala and Ms.Praneeta Vir, Advocates. • LPA 104/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao ãndMr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus RC SOD & CO PVT LTD Respondent S Through Mr.Shobhit Chandra, Advocate LPA 895/2010 & connected matters : atters Page 1I.2 of 38 LPA 70912011 DELHI POLLUTION CONTROL COMMITTEE . Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, LO. versus LODHI PROPERTY CO LTD Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 710/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jinda!, L.O. versus BHARTI REALTY LTD Respondent Through Mr.Dushyant Manocha and Ms.Tarunirria Vijra, Advocates LPA 866/2011 DELHI POLLUTION. CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh jindal, L.D. versus ANUSH FINLEASE &CONSTRUCTION PVT LTD Respondent: Through M,r.Ajay Kumar and Mr.Naveen Tayal, Advocates LPA 67/2011 DELHI POLLUTION CONTROL COMMITTEE .....Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus TIRU PAIl INFRAPROJECTS PVT LTD .....Respondent Through Mr.Ajay Kumar and Mr.Naveen Tayal, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATBHA RAM

PRADEEP NAN DRAJOG, 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 in the appeal(s).

¶2Writ petitions were filed challenging notices issued by • the Delhi Pollution Cortrol Committee (DPCC) to the 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 ietitions have succeeded, not in full, but in part. Directions have been issued to DPCC to take LPA 895/2010 connected matters 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 Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as 'the Water Act') and 'consentto operate' as required under The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as 'the Air Act').

¶4' Issues have been debated before the learned Single Judge and even before us with reference to Sections 2(q), 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 o k^ ,

(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 treatment and disposal system, other than domestic sewage.

¶25Restrictions 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 treatment and disposal system or any extension or addition 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); or

(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 c k^ 0 1988, 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)

(5) Where, wfthout 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 establishrnent 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 lischarge, as the case may be, a notice imposin 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) 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 respec:ts to the State Board.

(8) ... _^11 33/¼. Power to give directions.-NotwithstancUing 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 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-

(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." • . 6; Section 2(a), 2(j), 2(k), 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)

(e) Page 18 of

(f)

(g)

(h)

(i)

(j) 'emission', means any solid or liquid or gaseous 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 shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control 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 commendement or, if he has made an app-lication for such consent within the said period of! three months, till the disposal of such appl;ication'. .

(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 order LPA 895/2010 & connected matters . ..............--'., c k, I,) "V 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 befoie the expiry of the period for which it is granted or refuse further consent after s..ich expiry if the conditions subject to which such consent has been 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 shall 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 dftections in writing to any person, • office or authority, and such person, officer or authority shall be bound • to comply with such directions. • Explanation.-f or the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes the power to direct-- LPA 895/2O10& connected matters

(a) the cloure, 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 lerned Single Judge has opined that the legislative amendmentscarried out in the original Water-Act ivere 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 an y treatment a/7cJ disposal system or any extension or addition thereto, which is /7ke(y to discharge sewage or trthe effluent' in clause (a) of S u b - Section (1) of Section 25 made it clear that the requirement to obtain previous consent to establish any industry, operation or process vvas no I. 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(1<) 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/'2010& connected matters C ke), bathing in the bathroom and such processes as take place in the toilet and cook/hg and washing in the kitchen would be 0,00-3 60175 and processes contemplated by Section 25(1)('a) of the Water Act for its applicability to residential complexes. This is the CO ci us io ri arrived at in para 16, but in the immediate 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 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 all kinds of non-domestic sewage and has thus held thatthese 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 islikely to have impact on water poUution because large quantities of water are used during construction and are arso 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 asprovided CQ^) in Sub-Section 5 of Section 25 of the Water Act.

¶11The argumentof DPCC that the power to give directions under Section 33A of the Water Act has been negated by the learned Single Judge, with reference to various decisions 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 petitioner:; 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(1)(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 01: ejusdem generis is therefore inapposite in the context.. L. (iii) Commerdial shopping complexes, shopping malls and even residential complexes are covered by Section 25(1)(a) of the Water Act.

(iv) The liability under the. Water Act does not get exempted only because the sewage Page 23 o'[38 0" discharged fro M' such complexes joins the main municipal sewerage system which may ormay not be treated in keeping jiith the water pollution norms.

(v) The pollution caused by discharge of domesti,c sewage 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 would I attract the various provisions of the VVater 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 failed 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 complied 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 il 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 would be deemed that: the consent to establish has been granted. In such circumstances, Section 25(1) of the Water Act cannot (e:_I) O obviously thereafter be dnforced."

¶13Discussing the. applicability of the Air Act, as conceded to by learned counsel for: the parties al: the hearing of the appeal, the learned Single Judge has inadvertently referred to the pre amended provisions of the Air Act, though the learned Sinqie judge has referred and noted the fact that the Air Act of 1.981 was amended in the year 1988.

¶14Pertaining to residential complexes, the learned Single Judge has noted the unamended Section 21 of the Air Act 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 resdentiaI complexes, permission under the Air Act has to be obtained . Qua shopping complexes and shopping malls, it has been held tht under the Air Act, for these complexes, to operate them, prior permission has to be obtained a s 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: 4'-'--

(i) A collective reading of Section 21(1) of t:he 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& coflnected matters Page ;zs 0 1: 38,

(ii) The definition of 'air pollution' under Section 2(a) read with Section 21(l) 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(l) 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 t:he 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 the EPA. (\/) 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."

¶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 /ike/y to discharge sewage or trade effluent'. Thus, even if sewage effluent as defined in Section 2(g) was discharged from any (9 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:. But, what would encompass 'any industry, operation or process?

¶18The Water Act does not define, 'industry', 'operation' or 'process'. As held in the decisions reported as 1993 (3) SC 2529 commissioner of Income )-ax Orissa vs. M/s. N. c. Bud/7i/a1.fQ and 2010 (320) hR 420 (Delhi) Ansal Housing & construction I±I VS. Commissioner of Incorrie Tax, the ordinary dictionary ni ea n in q 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 Oxfod EncHsh r V 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 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 con5JTu(;:tiOfl & IS applied by the learned Single judge is that widest amplitude needs to be given to Section 25(1)(a) of the Water Act.

¶21The error committed by the learned Single Judge is to mechanically note the definition of 'operation' and 'processc and ignore the sweep of the span of the two woras. we no so. Operation is defined as an activity 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 constituting the activity is of a practical or technical n ature especiall y one forming a step in a process, and since process is an going on action or a continuous series of action direciecLaL 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 "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 stei:)s to establish any industry, establishment or undertaking where the operation or process i.e. activity is of. a practical ortechnica nature, at the core of which are ongoing acts, in a series,dircLd at a'particular end. Thus, the act of ablution in the toilet or - washing vegetables and dishes in the kitchen of a. residentia complex, within the precincts of residential flats, b no stretch of imagination can be called or labeled as an operation or a process.

¶22The view taken by the learned Single Judge pertaining Page 218 of :38 to shopping malls and cohimercial shopping complexes on the applicability of the Water Act is accordingly upheld and the view • taken pertaining to the aplicabilitY 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 caried on r 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 goods; and if service is rendered, the rendition of service directed 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 199:3 (3) Sc 2529 Commissioner of Income Tax Orissa vs. M/sN.SLk and 2010 (320) ITR 420 (Delhi) A17saI Housing & constrqçiiQf vs, Commissioner of Incomea where it has been held that constructing a building peHse is not an industrial activity the vie\ taken ' by 'the learned Single Judge that constructing a building whether to be used for aresidentiat purpose or to be used or a commercial shopping complex or for shopping malls would be am industrial activity; running contrary to the aforesaid j.uclçime nts is-incorrect. Page 29 of 3g

¶25The reasoning Of the learned Single Judge to expand the scope of Section 25(1)(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 thereof on envirQnment and we see no vacuum in the fight against environmental degradatibn, by understanding the various expressions and their meaning in Section 25(1)(a) of the Water Act as adopted by us.

¶26A word on purposive construction. It simply means that while adopting a purposive app.roach, Courts should seek to give effect to the true purpose of legislatior, 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 perrnissionto establish any industry, operation or 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 r a building in which an operation or a process is intended to be carried on where effluent or trade effluent would he discharged.

¶27To summarize the position under the Water Act the position may be summarized thus: 'Section 25(1) of the Water 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 \/vould 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 provLded.

¶28Pertaining to the Air Act, there is a material difference in the language used in Section 21 of the said Act, vis-à-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 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 amended Section 21, the obligation to obtain the consent of the State Pollution Control Bord is only to establish or operate any Page 31 of industrial plant in an Air Pollution Control Area. Section 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 learned 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(k) 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 buildinq 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 is carrid on, the invitable 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 andfrom a commercial shopping complex trade is carried on, we hold that prior consent under the Air Act CSV) 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.

¶33:As 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.

¶34For 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 applicability 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 langutge 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) SC'C 22 Khemka & Co. (Agencies) Pvt.LL/vs. CS) II State of Maharashtra, 1994 (4) 5CC 276 JJ(S ynt/7etics Li&j!1 cement Works vs. commecIa/ Taxes Officer and 1997 (6) 5CC 479 India carbon Ltd. vs. State of Ass 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 Single 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 Ad: and the power to issue directions under Section 31A of the Air Ad, on their plain language, does not confer the power to levy any penalty. We would further highlight that under Chapter VII 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 Water Act would reveal that penafties 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 hving enacted specific provisions for levy 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 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-delegate the delegated power, learned counsel for DPCC conceded to said C60) position and thus we leave undisturbed the view taken by the learned Single Judge on the subject.

¶39Since our reasoning aforesaid results in the finding, by way of interpreting the provisions in the Water Act and the Air 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 wit 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 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 malls and commercial shopping complexes, the question which now needs to be answered is: Whether, pertaining to the Water Act, Sub-Section 5 of Section 25 is the answer to what needs to be done and in the absence of a similar 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 State Pollution Page 35 of 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 way out, pertaining to the \/Vater 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 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 arid pertaining to air pollution, if any deficiencies are found, to notify the same to the owner requiring corrective action to b( --1 tak:en. 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 toshopping complexes and shopping malls for the reason the only activity of air pollution in these buildings LPA 895/2010 & connected matters

(F) would be through the air conditioning, plants and generators installed to supply electhcity 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. We find that pertaining to DG sets, permissions in any case have to be obtained from DPCC if the capacity of the [)G 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 DG sets installed as also air-conditioning plants installed in the buildings, for if for the DG sets and air-conditioning plants, sanctions have already been obtained; nothing further remains to be got 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 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 DPCç 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 dis r chaged and penalties levied to be refunded for the reason the said act of DPCC is ultra-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) 5CC 536 Ma fat/al Industries Ltd. & Ors. vs. LIO,'&rQrs., 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 E) without any jurisdiction. Iln 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 fild by DPCC are dismissed and the cross objections filed are allowd in terms of paras 27, 33, 34 and :39 above.

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

¶45All interim orders stand vacated. • (RADEIEP ADRAC rnc

i) •- - (PRATARA JJAMJARY 23 2012 d LPA 895/2010 & cOnnected matters .-.-.-..-. .........

9) * IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 1617 January 2012 Judgment Pronounced on: 23 1i /anuary, 2012 LPA 100/2011 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 CORAM: HON'BLE MR. JUSTICE PRADEEP NAN DRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI