Delhi Pollution Control Committee v. Ridge View Construction Pvt Ltd

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 reasoned decision, is one which was pronounced on September 30, 2010, lea|rned 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 Delhi Pollution Cotjitrol Committee

(DPCC) to 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 takis LPA 895/2010^ connectedmatters ; Page 14 of ^8 3-action afresh and guided |by the. decision of the learned Single udge. ;

¶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) Connmercial Shopping Complexes! and (iii) Shopping Malls. • Actions were initiated or decisions were taken on the allegation -that with respect to the buildings constructed, writ petitioners had not obtained a 'consent to establish'required, under The Water (Prevention and Control of Pollution) Act, i1974 (hereinafter referred to as 'the Water Act') and 'consent\to operate' as required under The Air (Prevention and Controlof Pollution) Act, 1981 (hereinafter referred to as 'the Air Act')i.

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

¶5. Section 2(g), 2(gg), 2(k), relevant part of Section 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 requifes,-

(a) :

(b) ...... :

(c) :

(d) ;

(e) ...... • ;

(f) I LPA 895/2010&connectedmatters j

(g) 'sewage effluent' means effluent from any sewerage systelm or sewage disposal works and includessullage'fromopen drains;

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

(h) '

(i) i

(j)

(k) 'trade effluent' includes any liquid, gaseous or solid substailce which is discharged from any premises used; for carrying on any industry, operation or process, or treatrnent and disposal system, other than domestic sewage.

¶25Restrictiorjis on new outlets and new' discharges- ;

(1) Subject to ithe provisions of this section, no person shall, wkhout the previous consent of the State Board,- i

(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) I

(c) : Provided that a person in the process of taking lany steps to establishany industry, operationl or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, LPA 895/2010&connectedmatters ; Pagel6of:S8 1988, for vyhich 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) I

(4) I

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

(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 tljiis behalf complete in all respects to the State Board.

(8) LPA 895/2010& connected matters 33A. Power to igive directions-Motv\/ithstanding anything contained in any other law, but subject to the provisions of this Act, and to any directions that Central Government may give in this behalf, a Boardimay, in the exercise of its powers • and performanizeof its functions under this Act, issue any directions in. writing to any person, officer or authority, and such person, officer or authority shalli 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 power to direct-la) the Closure, prohibition or regulation of any industry, operation or process; or

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

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

¶2Definitions-In this Act; unless the .context otherwise requ;ires,-

(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; i

(b) ;

(c) :

(d) I

(e) i LPA 895/2010&connectedmatters : PagelSofrSa

(f) I . (g) ^ I ,

(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 qr 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 previous consent of the: State Board, establish or operate any industrial ;plant in an air pollution control area: ' I Provided that a person operating any industrial: plant in any air pollution control area immediately before commenciement of section of /Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), for which noi consent was necessary prior to such conimencement, may continue to do so for a jDeriod 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 appliication-. I

(2) I

(3) i

(4) Within a: period .;of four months after receipt of the iapplication for consent referred to in sub-section i(l), the State Board shall, by order LPA 895/2010&connectedmatters : Page 19of38 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 nnay be specified in tlie order, or refuse such consent: I Provided that it shall be open to the State Board to cancel such consent before expiry of the period for which it is granted ior refuse further consent after such 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 first proviso, a reasonable opportunity of being heard shall be given to the person concerned'. I

(5), r

(6) I

(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 Central Government may give in this behalf, a Board may, in the exercise of its powers and performance of its functions under this Act, issue any directions in writing to any person, office or autlyiority, and such person, officer or authority shaill be bound to comply with such directions. i Explanation - the avoidance of doubts, it is hereby declared that the power to issue directions under this section includes, the power to direct-LPA 895/2010 &connected matters I

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

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

¶7With, reference to the Water Act as originally framed in 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 legislative amendments!carried out in the original Water Act were intended to expand the scope of the Water Act. The learned Single Judge has highlighted that the expression 'establish any industry, operation or \proces5 or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent'm clause (a) of Sub-Section (1) of Section 25 made it clear that the requirement to obtain previous I 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 same would iinclude sewage of any kind, including domestic sewage. The: learned Single Judge has also noted the expanded definition of 'itrade 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 decisions that purposive construction-needs to be followed where I mischief which existed before passing 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 i-i • . , bathing in tiie bathroom \and such processes as tal<e place m the toiiet and cooidng and washing in the idtchen would be operations and processes contemplated by Section 25(l)(a) of the Water Act for its applicability to residential complexes. This is the conclusion I 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. i .

¶8With reference to commercial complexes i.e. Commercial Shopping Co|nplexe5 and Shopping jvialls, 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 buildings would be governed by clause '(a) of Sub-Section jl 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 Iwould make applicable clause (a) of Sub-I Section 1 of Section 25 ajnd for which the reasoning of the learned I Single Judge is that construction of commercial shopping or i residential complexes is |likely to have impact on water pollution because large quantities of water are.used during construction ancJ 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 DPCd could not levy penalties and for which remedial action, as per the learned Single Judge, was as provided LPA 895/2010&connectedmatters i Page 22 of38 I in Sub-Section 5 of Section 25 of'the Water Act. 11-The argument:of DPGC that the power to give directions under Section 33A of tijie Water'Act.has been negated by the learned Single Judge, w;ith reference to various decisions cited which hold that the power to levy penalty has to be expressly conferred by the statute. |

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

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

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

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

(iv) The liabiliity under the. Water Act does not get exempted only because sewage LPA 895/2010&connectedmatters i Page23of38 discharged from such complexes joins the main municipal sewerage system which may or;may not be treated in l<eeping vA/'ith the water pollution norms.

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

(vi) With tlie buildings . in question having already!been constructed without obtaining prior consent to establish, the direction of DPiCC that those who had failed to obtain prior consent to establish should now apply for such consent is a direction that is not caplable of being complied with. Instead DPCC should invoke the powers under Section; 25(5) of the Water Act, issue show cause ; notices setting out conditionalities required to be complied with within a time frame and upon failure to do so, iinvoke 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 MCD has power ;to. lay down a separate set of regulations and bye-laws for use of water. Where an applicant has not been communicated any decision of the DPCC for four months after the making of an application, the deeming provision of Section 25(7) would kick in and it would be deemed that the consent to establish has been granted. In such circumstances. Section 25(1) of the Water Act cannot LPA 895/2010& connected matters: obviously thereaftjer be dnforced."

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

¶14Pertaining to residential complexes, the learned Single Judge has noted the una,mended Section 21 of the Air, Act which did not have the word 'e$tablish' 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 pertainiipgto the Water Act, has held that during construction phase of residential complexes, permission under the Air Act has to be obtained. Qua shopping complexes and shopping malls, it has been held that under the Air Act, for these connplexes, to operate them, prior permission has to be obtained as also during construction phase.

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

(i) A collective reading of Section 21(1) of the Air Act withiSection 2(a), 2(b) and 2(l<) thereof leads this Court to conclusion that a commercial ishopping complex or a shopping mall would i be covered within scope of Section 21(1|) of the Air Act. LPA 895/20.10&connectedmatters ; Page 25 of38

(ii) The definition of 'air pollution' under Section 2(a) read witii Section 21(1) of the A\ir Act, and fact that commercial shopping complexes oh shopping malls are going to be used for a tra;de activity, is sufficient to attract the provisions; of Section 21(1) of the Air Act.

(iii)As far as; a purely residential complex is concerned, oh the present wording of Section 21(1) of the Air Act, there is no requirement of obtaining 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 EPA. :

(v) Where construction of a commercial shopping complex or shopping mall has been allowed to beicompleted 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 und,er Section 31A Air Act."

¶16A perusal of Section 25 of the Water Act would reveal, pn 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 !il<eiy to discharge sewage or trade effluent. Thus, even if sewage effluent as defined in Section 2(g) was discharged from any LPA 895t/2010&connected matters ; s industry, operation or process intended to be estabiislied, requirement of prior cons,ent would be necessary and to this extent the view tal<en by th|e learned Single Judge is correct.

¶17But, what would; encompass 'any industry, operation or process 1 i

¶18The Water Act does not define, 'industry', 'operation' or 'process'. As held in the decisions reported as 1993 (3) 5C 2529 Commissioner of Income tax Orissa vs. Ivi/s.N.C.Budhiraia & Co. and 2010 (320) ITR 420 (Dpihi) Ansai Housing & Construction Ltd. vs. Commissioner of incorrie Tax, the ordinary dictionary meaning of 'industry' or an 'industrial undertaking' would not include activity of construction. The word .'operation' is defined, as noted : by the learned Single Judge, in the New Shorter Oxford English 'If Dictiona'ry(Lesie Brown Ed.:) as follows: An action, deed; exertion of force or influence; worl<ing;, activity; an act of a practical or techni-cal nature,! esp one forming a step in a process." ;

¶19The same dictionary defines 'process', as noted by the learned Single Judge, as under;- i "process : The actiion 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 . i 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 mjeaning. The purposive construction LPA 895/2010& connected matters > 5^^ applied by tiie learned SingleJud'ge is that widestamplitudeneeds 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. VVe do so. Operation is defined as ;an activity or an act of a practical or technical nature, with ennphasis.of the acts forming 'a step in a process'. The word 'process'\s a going on action or a continuous series of actions 'directed at a particular end'. Thus, an operation I would be a working or ^an activity, where the core of the act constituting. activity; is of a practical or technical nature especially one forming a step in a process, and since process is an I going on action or a continuous series of action directed at a I particular end, the conjoiint reading of an operation and a process or even if the two have to be read disjunctively would mean that expression '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 would mean to take steps to establish anv industry, establishment or undertaking where operation or process i.e. activity is of a practical or technical nature, at the core of which are ongoing acts, in a series, directed at a particular end. Thus, the act of ablution in the toilet or washing vegetables and dishes , in the kitchen of a residential complex, within the precincts of residential flats, by no stretch of imagination can be called or labeled as an operation or a process.

¶22The view taken by the learned Single Judge pertaining LPA 895/2010&connectedmatters : PageZ8of3& >3 to shopping malls and commercial shopping complexes on the applicabilityof the Water Act is accordinglyupheld and the view-taken pertainingto the applicabilityof 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 mails would be buildings where operation and or process is carried on for the reason they would be places where the activity carried on is of a practical or a technical nature and at the core of which activitywould 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 W discharged,since sewage effluentas defined in Section 2(k) of the Water Act means effluent from any sewage system, if these - buildings are intended to| be established, necessary permission would be required from the Board under the Water /Act.

¶24With respect to; the decisions reported as 1993 (3) 5C 2529 Commissioner of Income Tax Orissa i/5. M/s.N.C.Budhiraja & Co. and 2010 (320) ITR 420 (Delhi) Ansa! Housing & Construction Ltd. vs. Commissioner of Income Tax, where it has been held that constructinga building pef-se is not an industrialactivitythe view • ^ taken by the learned Sinigle Judge that constructinga building, ^ whether to be used for a|residentialpurpose or to be used for a commercialshopping coniplex or for shopping malls would be an industrialactivity; running contraryto the aforesaidjudgments is incorrect. LPA 895/2010& connected matters 5H

¶25The reasoning of the learned Single Judge to expand the scope of Section 25(l)(a) of the Water Act; that the object of 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 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 environment and we see no vacuum in fight against environmental degradation, by understanding various expressions and their meaning in Section 25(l)(a) of the Water Act as adopted by us. :

¶26A word on purposive construction. It simply means that while adopting a purposiv|eapproach. Courts should seek to give effect to the true purpose:of legislation and must keep in view all I material that bears on the background against which a legislation was effected and where more than one construction is possible, one which eliminates 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 thein to the right to appropriatea space not intended to be appropriated by the legislation. The Water Act requires prior permission!to establish any industry, operation oi LPA 895/2010&connectedmatters ! Page 310 of iS ^5 process which is likely to discharge sewage,or trade effluent. It is not intended to apply to lall and sundry establishments. It is restricted to only when a building, housing an industry is sought to be established or a building in which an operation or a process is •: intended to be carried on where effluent or trade effluent would be discharged. i

¶27To summarize'the. position under the Water Act the position may be summarized thus: 'Section 25(1) of the Water Act : i I • • vyould app!y where a building is proposed to be consti^ucted to set up an industry or carry on ian operation or a process as explained in para 21 above and this iwOuid mean that the Water A\ct wouici not apply to buildings housing residential apartments/units. It vyould apply to all other buildings, where effluent or trade effluent is discharged, be they wheire manufacturing activity is carried on, sale or purchase of goods is carried on or services are provided.

¶28Pertaining to the Air Act, there is a material difference in the language used in Section 21 of the' said Act, vis-a-vis ' I 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 restritts its span to prior permission being I • . . necessary only where it is intended to establish or operate any industrial plant. - ^ ~ .

¶29Since learned Single Judge has referred to ^unamended provision andj has ignored the amendments carried out to the Air Act in the! year 1988, we note that as per the amended Section 21, the dbligation to obtain the consent of the State Pollution Control Board is only, to establish or operate any LPA 895/2010&connected matters ' 5^ industrial plant in an Air Pollution Control Area. Section 2(k) defines an 'industrial plant' to mean any plant used for any • industrialor trade purposesiand emitting any air pollutant.

¶30The learned Sirigle Judge has read 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 SingleJudge has not notedjthelanguageof 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 k building used for a trade purpose and If 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 learned Single Judge has noted unamended Section and since amended Section , requires prior consent even to establish an industrial plant in an Air Pollution Control Area; agreeing with reasoning of the learned Single Judge that in view of the extended definition of the expression 'industrial plants which includes a building where trade 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 I be constructed wherefromi trade would be carried on and since from a shopping mall and Ifrom a commercial shopping complex trade is carried on, we hold that prior consent under the Air Act LPA 895/2010& connected matters i 5r would be required when icommercial shopping connplexes and shopping malls are established i.e. at the commencemientof the-process of establishment; i.e. before the building construction activity commences. i

¶33As noted herein above, the learned Single Judge has held construction per-se as requiring prior permission, both under the Water Act and the Air iAct, and thus the learned Single Judge has held that under the Airi 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 wh'en construction actiyity commences in respect of shopping mafls and commercial shopping comiplexes 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 plan;t'. 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 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 decisions reported as 1975 (2) SCC 22 Khemka &Co. (Agencies)Pvt. Ltd. vs^ I LPA 895/2010&connectedmatters i' Page :rf3 of 38 5^ nf Maharashtra..1994 (4) SCC ITU J.K.Synthetics LtcLjL.Bm rpmpnt Work'; rnmmSrrial TaxesOfficerand 1997 (6) SCC 479 India Carbnn itd. vs. 'itate nf 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 Single Judge in paras 58 to 64 of; the impugneddecision and thus do not elaborate any further, but would additionally highlight that the power to issue directionsunder Section 33A of the Water Act and the power to issue directionsunder Section 31A of the Air Act,,on their plain language, does not confer the power to levy any penalty. We would further highlightthat under ChapterVII of the Water Act, and under Chapter VI of the Air Act penalties and procedureto levy the same have been set out. /-\ perusal of the provisionsunderthe Water Act would reveal that penaltiescan be ;levied as. per procedure:prescribed and only Courts can take cognizanceof offences under the Act and levy penalties,whether by way of imprisonmentor fine. Similar is the position undet the Air Act. The legislaturehaving enacted specificprovisionsfor levy of penaltiesand proceduresto be followed has specificallymade the offencescognizableby Courts and the powerto levy penalties :under both Acts has been vested in the Courts. The role of the PollutionControl Boards is to initiate proceedings before the Court of Competent Jurisdiction iand 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 LPA 895/2010&connectedmatters : Page 34 af-.8 5^ position and thus we ieave undisturbedthe view tal<en by the learned Single Judge on the subject. 39_ Since our reasoningaforesaid results in the finding, by way of interpretingthe provisionsin the WaterAct and the An Act, as requiringprior consentto establishand operateshopping nnalls and commercialshopping!complexesand the provisionsbeing not applicable to residential; complexes, we declare void actions initiated by DPCC pertaining to residential complexes and we further hold that said writ petitions are allowed in terms of the, prayers made. The impugned decision(s) by the learned Single Judge(s) qua residential;Complexes is set aside. Qua shopping malls and commercial shopping complexes, since we have held that prior permission is: required under both Acts to establisli shopping malls and commercial shopping complexes as also to operatethem and noting;that even DPCC was not too sure of the legal position and thus misinformed a few applicants that no permissionwas requiredand qua most persons permittedthem to commence and complete construction of shopping malls and commercialshoppingcomplexes,the questionwhich now needs to be answered is: Whether, pertainingto the Water Act, Sub-Section 5 of Section 25' is the answer to what needs to be done and in the absence of a similarprovision in th^ Air Act, what action needs to be directed to be taken. :

40.' The language of Sub-Section 5 of Section 25 of the Water Act makes it plain clearthat the only solutionto a situation of a building being constructedto establishan industry,operation or process without obtaining prior consent of the State Pollution LPA 895/2010& connected matters: Control Board is the power of the Board to serve upon the person concerned a notice imposing such conditions as might have been imposed on an application seeking prior consent; and we find that the learned Single Judge has correctly so opined and has rightly issued the direction that the only way out, pertaining to the Water Act, is to permit DPCC to inspect shopping malls and 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 notice ! issued. Pertaining to 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 and pertaining to air pollution, if any deficiencies are found, to notify the same to the owner: requiring corrective action to be taken. Needless to state, if tlie owners of the buildings do not take corrective action, DPCC would always have power to file criminal complaints before the Courts of Competent Jurisdiction, which Courts would alo;ne have the power to impose fine and additionally impose sentence of imprisonment upon the offending persons. 41-On the issue:of Air Pollution, we would like to pen a post-script pertaining tolshopping complexes and shopping malls for the reason the only activity of air pollution in these buildings LPA 895/2010&connectedmatters ^ & would be through the iair conditioning plants and generators installed to .supply electi-icity 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 Db set is beyond a prescribed; wattage and thus DPCC may suitably reconsider all shopping i 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 casjes, 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 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 discharged and penalties levied to b:e 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 Mafat!a! Industries Ltd. Sc Ors. vs. UO! & 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 ; w without any jurisdiction. In the instant case the penalty levied is • unconstitutional being not sanctioned by any power vested ir DPCC either under the Water Act or the Air Act. The impugned decisions where penalty levied has been directed to be refundec are upheld. Bd by DPCC are disnnissed and the cross 2d in terms of paras 27, 33, 34 and 39

¶43The appeals fil objections filed are allow above.

¶44We leave the p arties to bear their own costs.

¶45All interim orders stand vacated. (PIRADEEP WAWDRAJ ). LPA 895/2010 & connected matters

( ) IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved on : lanuarv 2012 ludament Pronounced on: 23^^ lanuarv. 2012 LPA 103/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dlnesh Jindal, L.O. versus RIDGE VIEW CONSTRUCTION PVT LTD Respondent Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vir, Advocates. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAIOG. I. For orders see LPA No.895/2010. JANUARY23, 2012 dk (PRADEEP NANDRAJOG) JUDGE (p^^VraS^^ JUDGE * IN THE HIGH COURT OF DELHI AT .MEW % ludament Reserved on : laiiuary 2012 ludament Pronounced on: 23''"^ lanuarv. 2012 + LPA!89,5/2010 ' I DELHI POLLUTION CONTROLCOMMITTEE ApiDellant Through: Mr;.C. Mohan,Pxao and Mr.Lokesh Sharrna, Adyocates with Mr.Dinesh Jindal, L.O. versus ; SPLENDOR LANDBASE LTD ..... Respondent: Through: Mri.B.B. Gupta, Ms.Mandeep Kaur and Mr:.Harsh Hari Haran, /Advocates LPA 1/2Q11 & CM'No.6781/2011 (Cross Objections) DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. I versus ! SACHDEVA BUILDON PVT LTD & ORS Respondents Through Mn.Sanjay Goswami, Advocate for R-1 Mri.Neeeraj Chaudhari, CGSC with Mri.Akshay Chandra and Mr.Khalid /Vrshad, Advocates for UOI v'- LPA 6/2011 & CM'No.6779/2011 (Cross Objections DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mn.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. I •' LPA 89.5/2010&connectedmatters ' Page 1of 38 versus VARDHMAN PROPERTIES LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 7/2011 & CM {Mo.678.0/2011 (Cross Qbiections) DELHI POLLUTION CONTROL COIMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus VARDHMAN PROPERTIES LTD & 0R5 Respondents Through Mr.Sanjay Goswami, Advocate for R-1 LPA 8/2011 & CM Nq.6782/2011 (Cross Qbiections] DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lol<e5h Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus ! VARDHMAN PROPERTIES LTD & ORS Respondents Through M.r.Anil Sapra, Sr. Advocate with Ms.Urvi , Kbthiala, Ms.Praneeta Virand Mr.Sanjay Goswanni, Advocates LPA 9/201 !• DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L-,0. versus : MANISH BUILDWELLPVT LTD & ORS Respondents Through Mr.SanjayGoswarni,/Xdvocatefor R-1 LPA 895/2010&connectedmattersi ^ XI DELHI POLLUTION CONTROL COMMITTEE Appellant Through- Mir.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus i MANI5H BUILDWELL PVT LTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-l LPA 11/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mf.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O'. versus VARDHMAN LAND DEVELOPERS PVT V LTD&ANR ; .....Respondents Through None LPA 22/2-011 & ClVi 'IMo.6824/2011 (Cross Qfoiections) DELHI POLLUTION CONTROL COMMITTEE /Appellant Through Mir.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus ; PANICAJ BUILDWELlIlTD&ORS Respondents Through Mr.Sanjay Goswami, Advocate for lR-1 Mr.Neeeraj Chaudhari, CGSC with Mir.AkshayChandra and Mr.KhalidArshad, Advocates for UOI LPA 23/2011 & CM No.6832/2011 (Cross Qiiiectionis) DELHI POLLUTION CONTROL COMMITTEE Appellant LPA 895/2010gi connected matters Page3.ofi-8 Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates withiMr.Dinesh Jindal, L.O. 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.Khaiid Arshad, ' Advocates for UOI LPA 24/2011 & CM l\!o.8168/2011 (Cross Objections) DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus