R C Sood and Company Pvt.Ltd v. Delhi Pollution Control Committee

JUDGMENT

30.09.2010 Introduction

1.1 These are 38 writ petitions filed by builders Of various properties in the National Capital Territory of Delhi (NCT of Delhi) who 'have . been issued show cause notices and also directions by the Respondent Delhi Pollution Control Committee ('DPCC') for alleged violation of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 [hereafter 'the Water Act') and Sections 21. and 22 of the Air (Prevention and Control of Pollution) Act, 1981 [hereafter 'the Air Act']. Barring two petitions where the buildings constructed are residential complexes, in each of the other petitIons the building constructed is a commercial shopping complex or a shopping mall. W.P. (C) No. 54312008 batch . Page 2 01122

1.2 The show cause: notices have been issued on the ground that; these Petitioners had not, prior to commencing construction, applied to the DPCC for and obtained from it the 'consent to establish' under Section 25 of the Water Act or the DPCC's. 'consent to operate' under Section 21 of the Air Act

1.3 Some of the petitioners have constructed commercial compieçé or. shopping malls of a built up area of over 20,000 sq.m. They were therefore required to comply with the environment impact assessment

(ETA) notifications in terms of the EnvirOnment (Protection) Act, .1986 S

(EPA). The ETA norms with which they are expected to comply are set out in the ETA notification dated 27thi January 1994 as further amended on 7th July 2004 and 14th September 2006. The issue that arises in some of, these petitions, where the commercial or residential cornple.x is of a built. up area of.over 20,000 sq.rn, is whether indepe.ndent of the lilA clearance obtained by such petitioners from the Government of India in the Ministry of Environment and Forests ("MoEF'), a separate consent to establish i.nder the Water.• Act and a consent to operate under the Air Act .

,would ne'ertheless be required to be obtained from the DPCC.

1.4 Anothfr issue, common to some of these petitions is the \'alidity of the. levy by t e DPPC of penalties, fines and environment damages jn the form of fxed sums of monies or by requiring the Petitioners to furnish bank guarantees as a condition to the grant of consent under the Air, Act and the Water Act. . . W.P. (C) No. 54312008 batch Page3of 122 -T ...................................................... -,.

• • The case of the Petitioners broadly stated is. that 'the, residential and commercial shopping complexes and shopping malls are not covered under either the Water Act or the Air Act Therefore there was no need• for any of these Petitioners to have obtained from the DPCC either prior consent to establish under Section 25 of Water Act or prior consent to operate under Section 21 of the Air Act. The case of the DPCC is that the activity of construction of cdmrnercial complexes, shopping mal l and even residential. comp1ees is covered under both the Air Act and the Water Act and the failur to obtain prior ôohsent to establish: or prior.. consent to operate makes the petitioners liable under either or both Acts For complexes where the built up area is over 20,000 sq.m, the stand of-the DPCC is that the mere 'obtaining by such builders of EIA clearance from the MoEF' will not obviate the need to obtain separate prior consents from the DPCC under the Water Act and Air Act. Background to the Water Act and amendments . The first issue to be considered is the applicability of the Water Act to the complexes in question. Emphasis has been placed by both sides on the background to the enactment of the Water' Act. The Statemeht of • Objects and Reasons ('SOR') to the'Water Act as it was,first enacted on 23td March 1974 referred to a Committee set up in 1962 to draw iup a. H • draft enactment for the prevention of water pollution. The SOR noted that • "the problem of pollution of rivers and streams has assumed cOnsiçIcab!e • importable and urgency in recent years as a result of the growth of the industries and the increasing tendency to urbanization." The Report of the Committee was circulated to the State Governments and was also W.P. (C) No. 54312008 batch . . .............................. .' . ... .'. • . .. • H , considered by the Central..Council of Local Self-Government. Basbd on the recommendation of the Central Council a draft bill was prepared. The Bill was passed by. both the Houses of Parliament and received the assent of the President in 1974.

¶4The Water Act underwent further chnges in 1978 and. thereafter in; 1988. Section 25 of the Water Act in its preent form was a result of certain extensive amendments made to it in 1988. Para 2 of the SOR of the Amendment Act No. 53 of 1988, which is relevant for the preselItIl purposes, reads as under: . S "2. The Water Act is implemented by the Central and State Governments and the Central and State Pollution Contrdl Boards. . Over the past few years, the implementing agencies have experienced some mOre administrative and practical ; difficulties in effectively implementing the provisions of the Act The ways and means to remove these difficulties havb been thoroughly examined in bonsültation with the implementing agencies Taking into account the views expressed,, it is prOposed to 'amend, certain provisions of the Act in order to remove such difficulties.. The State Legislatures 'of Himachal Pradesh, Manipur, and Tripura have passed resolutions under Article 252(2) of the Constitution authorizing the Parlianient to aniend the provisions of the Water Act to give effect to those amendments"

¶5Thereafter in Para 3(iii) and 3(vi) of the SOR, it was explained that the' Bill inter alia sought to make the following amendnents to the, Act, namely:'

"(iii) it is proposed to make it obligatory on the' part of a person W.P. ( No. 54312008 batch - Page5of 122 / to obtain the consent of the relevant Board foi establishing or taking any steps to establish any industry, Operation or process which is likely to cause pollution of water and also to empower the Boards to limit their consents for suitable periods, so as to enable, them to monitor observance of th prescribed conditions; . . .

(vi) it is proposed to empower the Boards to give directions to any person, offier or authority including the power. to direct closure on regulation of . '.o.ffending industry, operation or process or stoppage or regulation of supply of services such as water and electricity" 6 It is plain, therefore, that the amendments made in 1988 were with a view to making it obligatory on the part of the person taking any steps to establish "any industry, operation or process' 'which is likely to cause pollution of water...." to obtain the prior consent of the State Pollution. Control Committee (PCC).'

Position under the Water Act . . . .

¶7To recapitulate, one of the cntral issues in these petitions is whether there is statutory requirement in' terms of Section 25(1).(a) of the Vater Act for persons establishing a commercial shopping complex or shopping :, mall or a residential complex to Obtain prior, consent to establish from the' DPCC. Section 25 of the Water 'Act which mandates such requirment reads as under:

"25. Restrictions on new outlets and new discharges. H Subject to the provisions of this section, no person shall, without the previous consent of the State Board,

W.P.(C)No 54312008 batch Pageóof 122

(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 dis.charge of sewage);'or . • (b) bring into use any new or altered outlet for the • . discharge of sewage; or

(c) begin to make any new discharge of sewage: . Provided that a person in theprocess of taking any steps to establish any •industr.y, operation •.or process, immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988, for which no consent was necessary prior to such commencement, may , continue to do so for a period of three rnonths from such commencement 'or, if he has made an application 'for sudh consent, within the said period of three months, till the posal of such application. n application for consent of the State Board. under sib-on (1) shall be made in such form,, contain such particulars thall be accompanied by such fees as may be prescribed. Phe State Board may niake such inquiry as it may deern.fit spect of the application for consent re'ferred to in sub-on (1) and in making any such inquiry shall follow such edure as may' be prescribed. Phe State Board may-grant its onsent referred to in sub-section (l),subject to such conditions as it may impose, being- • 543/2008 batch . in cases Teferred to in clauses (a) and (b) of sub-section (1) of section 25,conditions as to the point of discharge of sewage or as to the use of that outlet or any other oUtlet for discharge of s&wage; in the case of a new discharge, conditions as to the nature and composition, temperature, volume or rate of discharge of the effluent from the land or premises from which the discharge or new discharge is to be made; and that the consent will be valid only for such peri9d as may be specified in the order, and any such conditions imposed shall be binding on any person establishing or taking any steps to establish any industry, operation or process, or treatment and disposal system of etension or addition thereto, or using the new. or altered outlet, or discharging the effluent from the lard or premises aforesaid; or

(b) refuse such consent for reasons to be recorded in writing. Where, without the consent of the State Board, any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, is established, or any steps for such establishment have been taken or a new or altered outlt is brought into use for the discharge of sewage or a new discharge of sewage is made, the State Board may serve on the person who has established or taken steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, or using the outlet, or making the discharge, as the case may be a notice imposing any such conditions as it might have ithposed on an application for its consent in respect of such establishment, such outlet or discharge. Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so W.P. (C) No. 54312008 batch Pages of 122 - --------•:-r--n----------- WI much of the register as relates to any outlet, or to 'any effluent, from any land oi premises shall be open to inspection at all reasonable hours by any person interested in, or affected by such.' outlet, land. or premises, as the case may be, or by any, person authorized by him in this behalf and the conditions so contained in such register shall be, conclusive .proof that the consent was granted subje& to such conditions:

(7)Theconsent referred to in sub-section (1) shall, unless giveli or refused earlier, be deemed to have been .givn 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). For the purposes of this section and sections 27 and 30-the expression "new or altered Outlet" ineans any outlet which is wholly or partly constructed On or after 'the comrnericement of this Act or which (whether, so constructed or not) is substantially altered after such commencement;

the e4resion "new discharge" means a discharge which is not, as , respects the . nature ' and 'composition, temperature, volume, and rate of discharge of the effluent S . substantially a continuation of a discharge made within the preceding twelve months (whether by the same or a different outlet), so however that a discharge which is in other respects a continuation of previous discharge made as aforesaid shall not be deemed to.be a new discharge.by reason of any reduction of the temperature or. volume or rate of discharge of the effluent as compared with the previous discharge." . . . '. .

¶8For further understanding the scope of the expressions used in Secti'oi W.P. (C) No. 54312008 batch ' " " . . . ............ ..

¶25(1) of the Water Act, the definitions therein of the terms "outlet" occurring in Sectioh 2(d)(d), "sewage effluent" under Section 2(g) and "trade effluent" under Section 2(k) are relevant. They read as under: • "2 (dd) "outlet" includes .any conduit pipe or channel, open or • closed, carrying sewage or trade effluent or any other • holding arrangement which causes, or is likely to cause, pollution; 2 (g) "sewage effluent" means effluent from any sewerage system or sewage disposal works' and includes sullage from open drains; 2 (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.".

¶9One of the subrnission made by Mr. Sorabjee, learned Senior counsel on behalf of the Petitioners is that the requrernent of obtaining prior. consent to establish in terms ofSection 25 (1) (a) of the Water Act arises, .• only where the activity in question is to establish an 'industry, operation or process' which in turn discharges 'trade effluent'. The argument is that • a residential complex cannot produce 'trade effluent'. It can only produce domestic sewage which the legislature has consciously excluded from the expression 'trade effluent'. It is further urged that what takes place in a commercial shopping complex or shopping mall is mere retail sale of goods and.ervic.es. There is no 'industry, operation or process' that goes on inside a commercial shopping complex or mall that discharges 'trade effluent'. On behalf of the Petitioners, it is sought to be contended that - • W.P. (C) No. 54312008 ba.tch •

• •• • • " PagelO of 122 •1 - the above provision was never intended to cover shopping complexes, malls or the residential complexes. Mr. Sorabjee submitted that the words "operation or process or any treatment and disposal system or any system of extension or addition thereto" following the word "indistry" have to beread ejusdem generis the word "industry" and therefore was not meant to cover an activity which is not an industrial activity. It is contended that there is no industrial activity that takes place in a shopping complex or mall or a commercial complex In other words, only industiies such as chemical industries, metallurgical, industry, engineering industry and on are meant to be covered by the Water Act. Consequently, it is argued that Section 25 (l)'of the Water Act is not attracted in any of the p'rescni cases.

¶10It must be noticed that the definition of trade effluent' under Setiori 2(k)undérwent a change with the Amendment Act .No. 53 Of .1988. The definition of 'trade effluent' in the unamended Section 2(k) contained i.1i words "carrying on any trade or industry" following the words . .any premises used for.." This was. replaced by the words " .....om any! premises carrying on any industry, operation or process, or treatment and disposal system." The idea was to expand the use Of the premises and not limit it to an industry, but also any process or treatment and dipoal system. What stood excluded from the definitjon of 'trade effiuen.' was H "domestic sewage". The word 'sewage' itself has been defined lunde.i' Section 2(g) to mean effluent from any sewerage system or, sewage disposal works and includes sullage produced from open drains. The': woid sewage' when qualified by, the word domestic' should necessai i W.P. (C) No. 54312008 batch , . . . Page 11 of 122 ., ..............T ..---- ............- -.---- .,---.-'- - .---.-...- -.... ..... mean sewage produced from premises used for domestic purposes. The word "domestic" when contra-distinguished from the expression "trade" could mean a place used for residence rather than for business or trade.

¶11However, the above definition of 'trade effluent' does not take a residential complex or even a commercial shopping complex or shopping mall out of the purview of Section 25 (1) of the Water Act. A careful reading of Section 25 (1) of the Water Act would show that it is intnded 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. The expression 'sewage or trade effluent' in Section 25

(1) (a) Water Act which follows the words 'operation or process, or any treatment and disposal system' or any extension or addition thereto, which is likely to discharge..' is wide enough to cover all kinds of sewage and not just 'trade effluent'.• Likewise, the expressions 'process' and 'operation' is not meant to' be confined to 'industry' but to all kinds of processes and operations including those that take place in kitchehs ,and bathrooms of residential ornp1exes and retail sales' in shops ,and restaurants and activities in the rest rooms of commercial shopping complexes and malls.

¶12Thedefinition of the words "operation" and "process" as occurring in the New Shorter Oxford English Dictionaty (Leslie Brown Ed.) are as follows:

operation: An action, deed; exertion of force or influence; 'working, activity; an act of a practical or technical nature, esp one W.P..(C) No.543/2008 batch , ' ' ' ' ' Pagel2ofl22 i forming a step n a process 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 aparticular end.

¶13Under Section 25(1) (b) Water Act if the operation, processor the process that is proposed to be established brings into use "any new or,

altered outlet for the discharge of sewag" then Section 25(1) wi1lstand attracted. The proviso to Section 25(1) states that ,where the steps to establish an industry, operation or process have already commenced: before the commencement of.the 1988 Amendment Act,,such. steps may •continue for a period of three months and if, the, person who has taken such steps makes an application for consent within that period, 'till the disposal of such application. The proviso underscores the' mandatory nature of the requirement of even an ongoing construction to obtain prior consent to establish from the State PCC.

¶14When the Water Act was first enacted in 1974, the scale of both • commercial and residential, shopping complexes as a result of urbanization was perhaps not anticipated There has been a dramatic increase in the number of residential and commercial shopping complexes that have éorne up in urban metropolises in the recent past. More significant is the size of such commetcial/shopping complexes. Having huge shopping malls having a built up area of 20,000 sq: M. is not an unusual feature as is evident in seven cases in the presnt batch o:f writ petitions. The volume of sewage that such residential and W.P. (C) No. 54312008 batch' ' . commercial complexes and shopping malls are likely to discharge into the sewage system would indeed be enormous. The rcognition of the, need to have the regulatory authority, in these cases the DPCC, to be approached. by the builders of such complexes and malls for prior consent to establish under the Water Act is consistent with the object of the Water Act as amended in 1988. The ultimate object is to ensure that there is effective, prevention and control of poIlution. Purposive cons fruction . .

¶15In the considered view of this Court, it is not pssible to place a narrow construction on the words "operation" and "process" occurring in Section 25(1) of the Water Act. The words 'operation or proçes" occurring in Section 25(1) (a) have to be given the widest posibe meaning and scope. This approach is consistent with the SOR of the, 198 amendments to the Water Act which make it clear that the legislative intent was to expand the scope Of the regulatory powers of the state PCC The principle of ejusdem keneris is therefore inapposite in the context. On the other hand the principle of purpdsive . construction commends itself for application In Anderton v Ryan (1985) 2 All ER 355, it was

explained that: "Statutes should be given what has become knqwn as the purposive constru.ction, that is to say the Courts should identify tile 'mischief that existed before passing of the statute and then if rnor than one construction is possible, favour that which will eliminate the mischief so identified." In Pepper v. Hart (1993) .1 All ER 42, it was held: "The courts now adopt a purposive approach 'vhich 'seeks to give effect to the true purpose of legislation and are prepared to look at much. W.P. (C) No. 54312008 batch . .. extraneous material that bears on the background against, which the legislation was enacted." This has been consistently followed by. our Supreme Curt in New India Assurance Co. Lt4. v. Nusli Neville Wadia

(2008) 3 SCC 279; 'Tanna and 'Modi v. CIT AIR 2007 SC 2301 and recently in a decision dated 31stAugust 2010 in Civil Appeal No. 5842 of 1998 (Grid Corporation of Orissa Ltd. v. Eastern Metals and Ferro' Alloys).

Position of residential complexes under the Water Act

¶16While it is clear that commercial shopping complexes and, shopping malls would stand covered under Section 25 (1) (a) of the Water Act, the position vis-à-vis resi4ential complexes is examined next The DPCC is right in its contention that residential complexes where there are a large number of residential apartments would also be within the purview of Section 25(1) (a) of the Water Act. The residential complexes are likely to discharge large volumes of "ewage", as distinguished from 'trade effluent' Section 25(1) (a) of the Water Act envisages any "opelation or process" which, is likely to discharge "sewage". The collective opeiation or processes that take place within a residential complex is likely to dischaige large volumes of sewage into the municipal sewerage system I To repeat, these processs or operations may take place within the toilets and bathrooms and .kitchens of a residential complex. They could also take place as a result of any treatment of such sewage collected iri some effluent treatment plant within a residential complex. Then there is the watering of the lawns and plants in such residential complexes Laige volumes of water may be used for central air-conditioning or cooling W.P. (C) No. 54312008 batch . . Page 1501122 -ITT' - ............................................. . . . ....... ( There can be many activities in a residential complex Which result. in the use of water, generation and discharge of sewage and the carrying of, such sewage into main sewerage system for furthr treatment. In the. circumstances, it is difficult. to accept the contention of the Petitioners that residential complexes would fall outside the purview of Section 25(1) (a) of the Water Act. The question whether the construction of a single-storeyed residentia.1 building of insubstantial dimensions would attract Section 25(1) (a) of the Water Act need not be answered in these.petitions since none of :them concerns such a situation. As far as the present cases are concerned, the two residential conplexes which have been constructed have a built up area of 23,281 sq.m and 10,733 sq.m respectively. It is not possible therefore to underestimate the impact that the discharge' from such residential complexes of large. volumes of sewage would have on water pollution in general particularly when such. sewage joins, the i main sewerage system. . . it was urged that as long as the municipal sewage system is being treated in effluent treatment plants, and the discharged sewage froii these complexes joins such systems, there is no need' for each of these complexes to obtain a prior consent to establish from the DPCC under the: Water Act. This argument although attractive, does not account for the mandatory nature of the requirement to Obtain consent to 'establish under the Water 'Aët. It also does not acëount for the fact that at the stages of' pre-cnstruction, during construction and post-construction these W.P. (C) No. 54312008 batch ' , complexes would continue to attract the provisions of the Water Act. The liability under the. Water Act does not get exempted only because thc sewage discharged from such complexes joins the main municipal sewerage system which may . or may not be treated in k,eeping with the water pollution norms. . . . . . M Th' Water pollution during the construction phase . At this juncture it is important to understand, the impact that th acti'ity of construction of a commercial shopping or residential complex or 'a shopping mall is likely to have on wter pollution. This court wishe,s to draw a distinction between the pre-construction stage when Section 25

(1) Water Act is attraëted ñd a prior consent to establish is mandated and the construction phase itself which can also result in pollution being caused.. For instance during construction, water is drawn from bore wells dug in the property itself or water is brought in through water tanks. Large quantities of water are 'used during construction and used water, is also discharged. If unregulated, this could have an adverse impact on the neighbourhood, the 'ground water and generally On the municipal sewerage system.

The pollution that can possibly be caused by discharge of doinesic sewage from a residential complex or trade cffluent from a commercial.! complex or industry during the construction phase would, attract the various provision , of the Water Act. Even after completion of, 'construction a functional residential or commercial 'complex will have to abide by the water pollution norms stipulated, by the Water Act. The W.P. (C) No. 54312008 batch , . ' , ' , ' Page 17 of.122 . S • DPCC has been constituted under Section 4(4) of the Water Act. Section 9 of the Water.Act permits the constitution of committees by the DPCC. • Under Section 1 1A the DPCC can delegate its powers to its CJairman. •Section 16 of the Water Act sets out the functions of the Central Pollution Control Board ('CPCB'). Section 21 of the Water Act empowers the DPCC or any of its officials to take samples of water "from any stream or wellor samples. of any sewage• or trade efflun.t which is passing from any plant or vessel or from or over any place into any such stream or well" for the puoses of analysis. The word 'sewa& in this context would include 'domestic sewage' as well. Section 23, gi1es the DPCC power of entry at any time . any place for the purposes of performing any of the functions entrusted by the DPCC to such officer for the purposes of determining "whether and if so in what manner, thiy such functions are to be performed or whether any direction or authorization seed, made, given, or grathed under this Act is being or has been complied with." SeCtion 24 of the Water Act pr9hibits the use of a stream or well for disposal of polluting matters. Consequently, all of the above provisions of the Water Act get attracted 'when , an activIty, including an industrial, trade, cothmrcial or 'domestic activity; - causes pollution. This power can be exercised by the DPCC at any tim. during the construction phase and after the completion of construction when the complex in question becomes functional.

Applicability of Section25 ('5) Water Act to the cases on-hand

¶21While this Court accepts the 'contention of the DPCC that Section 25(1) (a) stood attracted in these cases, the DPCC for some reason did . W.P. (C) No. 54312008 batch . , PagelS of 122' -.---.-,.-.---•-------- .---,--------.•-----.. ---•---• ------------------------. •.-- . •. not act at a the when the construction of these residentiad cornrnerthal complexes had either not cornmencd or havihg commenced, had not been completed. In other words, in most cases, as will be seen in the discussion of the individual petitions, the DPCC did not issue a. show cause notice at a time when the constructions had either not beguh or were in progress. The show cause nOtice was. invariably issued by the DPCC after the construction had been.cornpleted and in many cass after the completion certificate was issued In such a situation, to requiic the builder of such complex to obtain 'prior, consent to establish', under Section 25 (1) (a) of the Water Act was a direction that was not dapabl.e of being complied with.. Unfortunately, this . was the only provision invoked by the DPCC in each of the cases to pass consequential orders of either imposition of fine or damages or order closure.

¶22It appears to this Court that with the buildings in question having a1read been constructd without obtaining prior, consent to estab1ih:, the DPCC ought to have fallen back on the legislatively envisioned 'Pan B'. What ought to have been done by the DPCC was to invoke Section' 25 (S) of the Water Act. Section 25(5.) talks of a situation where an industry operation or process has already been established or the steps for establishment have already been taken without obtaining thd prior. consent of the State PCC. In such an event the State PCC has to s9've, on the person who has established or taken steps to establish, a notice imposing any such conditions as it might have imposed if an applicatio.n had ' been made for its consent "in respect of such establishment, such - . 23. The DPCC ought to have proceeded on the premise that each of the buildings of the petitioners were constructed without its prior consent to establish and then should have invoked its powers under Section 25(5.) of. the Water Act. What the DPCC has however done in each of the cass is invoke Section 25 (1) and therefore require the petitioners. to apply at that stage to it for consent to establish. While the DPCC Was armed, with sufficient powers under Sectio•.33A of the. Water Act to issue direptions, such directions must be such as are capable of being coitiplied with. .24. It was urged by Mr. Sudhir Chandra, learned SeniOr counsel for the DPCC. that by letdng off the petitioners who had admittedly acted in violation of section.25 (1) (a) of the Water Act .a wrong message would be sent and a premium placed, as it were, on brazen violations of the Water Act Such submission, in the considered view of this Court, dos not reflect the correct legal position.. If for sorne reason the DPC has faild to take action against those who have established commercial i residential complexes without obtaining prior consent to establish, then..it is not as if no action can at all be taken against the builders, owners or occupiers of such complexes Section 25 (5) has been enacted precisel) for such a contingency. Section 26 of the Water Act further arms the DPCC with review and monitoring powers '.nd to change the conditions imposed if they are found to be not effective. The DPCC can even after

¶1the construction is complete, proceed to act in exeicise of its powcr :undet, Section 25. () of the Water Act. In other words, the legislature expects that the DPCC will act vigilantly at all times to ensure that no. violator escapes legal liability under the Water Act W. P. (C) No. 54312008 batch . . . Page 20 of .122

¶25There is another aspect to the matter. There was no clarity about the orrect legal position till now even as far as the DPCC was QQncemed. • These cakes were for the DPCC, in a sense, test cases. SectiOn 25 of the Water Act was perhaps not invoked by the DPCC earl jer and in any event • . • not on this scale against commercial or residential complexes Not having F acted at a time when it shoujdhave under Section 25 (.1) of the Water Act and having allowed the constructionof the complexes to be coixipleted,.it would not be reasonable for the DPCC to insist that these petitiners must go back to the stage of obtaining 'prior consent to establish' If after F a show cause notice is issued under Section 25(5) of the Water Act and within the time, stipulated, the corrective measures are not put in place by • the person who has established the shopping mall or residential cothplcx, F then it would be open to the DPCC to take further steps in accordance with Section 33A of the Water Act As long as the powei to take action under Section 25(5) of the Water Act remains, there need not be any' apprehension of any wrong message being given to those who failed to obtain consent of the DPCC prior to establishing the complexes I Multiplicity of authorities does not render exercise ofpowers under the Water Act illegal

¶26It was argued on behalf, of the Petitioners ,that under Schedule XII to the Constitution of India, read with Article 243W thereof, the powers., authority and responsibility in relation to water and water treatment is icipalities, i e , in this case the Municipai exclusively vested in the mun Corporation of Delhi ('MCD'). It was further submitted that under the Delhi Municipal Corporation Act, 1957 ('DMC Act') the powers to grant W.P.(C) No. 54312008 batch • ' ' ' permission and regulate constructions of buildings in Delhi are exclusively vested with the MCD. Reference is also made to the provisions of the Delhi Jal Board Act (Delhi Water Board Act). The submission is that there cannot be a multiplicity of authorities over the same subject matter and that if the control and regulation of water and sewage is within the exclusive domain of the MCD then the DPCC cannot also exercise such powers in relation to the same subject matter undet the Water Act. . :.

¶27This Court is unable to..agrèe with the above submission. The. Water Act is in a separate domain and its provisions will have to be .conplied • with notwithstanding that the MCD has thepower to lay down a searaie •set of regulations and bye-laws for use of water. For instance, the MCD • may have the power to levy tariffs for the use of water. That does not mean that the DPCC cannot issue directions in regard to the prevntion and control of pollution of water. They operate in separate fields and both sets of regulations and norms will ha'e to be complied with. Incideit1ly Entry 5 in Schedule XII reads: "water supply for domestic, industriaJ and commercial purposes" It obviously does not cover the entire field of the use of water and treatment and discharge of sewage. . Deemed consent in terms of Section 25(7) Water Act • . . 28 The Court would like to observe that when an application is made by a project proponent for consent to establish under the Water. Act, the • DPCC has to process and decide such application within four months in terms of Section 25(7) of the W.ater Act. As will be presently seen while W.P. (C) No. 54312008 batch • •' , .' discussing the individual cases, there has been no answer by the DPCC to the factual assertion in some of these cases that despite applying twice for, the consent to establish under Section 25(1) of the Water Act, no response was received from the DPCC for well over four months after the making of such application. Consequently, where an applicant has not V 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 deernd that the consent to establish has been granted. If thereafter DPCC finds that any activity in the building whicti has already been constructed attracts the provisions of the Watci Act then it will have to proceed in accordance with other provisions of the jct to

pievent or control such polluting activity. Section 25(1) of the Watci Act cannot obviously be enfofced if the DPCC has :allowed the four months' period after the making of an application. for conset to establish, as envisaged under Section 25(7) of the Water Act, to elapse. Surnmaiy of the position under the Water Act 29 The discussion so far on the legal position under the Water Act.r1 relation to the petitioners maybe. summarized, thus:

(i) Section 25 (1) of the Water Act is intended to cover not just V 'industry' which discharges 'trade effluent' but any 'process or operation' that results in a discharge of 'sewage' not limited to tiade effluent • • (ii) The words "operation or process" occurring in Sectiofl 50)

(a) have to be given the widest possible meaning and scope ' This

approach is .consitent With the SOR of the 1988 . amendrnentsto the Water Act which make it clear that the legislative intçnt as to W. P. (C) No. 54312008 batch • . Page 23of 122 -.-,-- expand the scope of the regulatory powers of the state PCC. The principle of ejusdern generis is therefore inapposite in the context. Cornmecial' shopping complexes, shopping mails and even residential complexes are covered by Section 25 (1) (a) of the Water Act. . The liability under the Water Act does not get exempted only

because the sewage discharged from such complexes joins the • main municipal sewerage ystem which may or may not he teated in keeping with the water pollution norms. The pollution caused by discharge of domestic sewage from a o 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 •attract the vàious provisions of the Water Act. With the buildings in question having already been constucted 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 cpable. of being complied with. Instead the DPCC should invoke the S powers under Section 25 (5) of the Water Act, issue show caUse notices setting out the conditionalities required to be complieil with within a time frame and upon failure to do so, invoke the powers to issue directions under Section 33A Water Act. The Water Act isin a separate domain and its provisions will have to be complied with notwithstanding that the MCD has the power to lay down a separate set of regulations and bye-laws for : use of water. •• • • Where an applicant has not been cornmuniated any deision W.P. (C) No. 54312008 batch • Page 24 of .122 - F] • .. Wi 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 obviously thereafter be enforced. Position under the Air Act .

¶30Next for consideration are the provisions of the Air Act and the validity of the action taken thereunder by the DPCC. It requires to be first noticed that the definitions of the different terms uflder the. Air Abt are not identical to the conespotding.terms in the .Water Act. The words "air pollutant" or "air pollution", "emission", "industrial lant" occurring in • . Section 2(ã), 2(b), 20) and 2(k) respectively of the Air Act read as udder: "(a) "air pollutant" means any solid,, liquid or gaseous subtance including noise present in the atmosphere in such concentration as may be or tend to be injurious to human beings or other hying creatures or plants or property or environment;.

(b) "air pollution" means the presence in the atmosphere of any air pollutant"

(j) "emission" mears 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 atmosphçre"

¶31The requirement of obtaining from the DPCC a prior consent to operate flows from Section 2 1(1) of the Air Act which reads as under: "21. Restrictions on use of certain industrial plants. (1) Subject to the provisions, of this section, no person shl1, W.P. () No. '54312008 batch N) without the revioUs consent of the State: Board, operate any industrial plant for the purpose of any industry specified in the Schedule in an air pollution control area: - Provided that a person operating any industrIal plant in any air pollution control area immediately before the comrnçncement of sectibn 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 dà so for a period of three months from such commencement 01, if he 'has made an application for such consent within the said period Of three months, till the disposal of suchapplication."

¶32After its amendment in 1988, the essential definitions remaine4i unchanged. The consentto establish or operatehad to beobtainéd bnl where it was concerning "any indutria1 plant in an air pollution control area". It appearto this Court that as far as the Air Act is concerned, th emphasis was only on consent to operate having to be obtairied for establishment of an. industrial plant. Section 2(k) define§ industrial plat to mean "any plant used for any industrial or trade purpose and made any area pollutant into the atrnosphere". In the instant case, the exprcssioi1 "trade purposes" therefore have to be distinguished from the .ihustri! purposes. The word "trade" could have a wide meaning. It could includ the transaction that takes place within a commercial shopping conplex or a shopping mall. The word "air pollutant", as defined in Sectin 2(a, means the presence in the atmosphere "in such concentration as may be or tend to be injurious to the atmosphere or the other breeding ceature or plants or property or environment". Therefore the activity has to b such that it results in the establishment of an industrial plant in an air W.P. (C) No.543/2008 batch I; pollution control area. Air pollution, in tes Of Section 2(b) is "presce in the atmosphere of any air pollutant". '

¶33A collective reading of Section 2 1(1) df the Air Act with Section

2(a), 2(b) and 2(k) thereof leads this Court to the conclusion that a commercial shopping complex or a shopping malI would be covereçi within tliescope of Section 21(1) df the Air Act. Mr. B.B. Gupta, 1earne counsel for some of the Petitioners thew the attention of the Court to th Air (Preveition and Control of Pollution) Union Territory Rules, 198 (UT Rules). He submitted that Rule 2 (h) of the UT Rules is the only • ' provision which defines the word "premises" which has been defined to mean "any building constructed or already used for industrial or commercial purposes". Far from supporting the submission of Mr. Gupt, this definition suggests that even a building used for commerci1 purposes wou1dbe covered by Section 21(1) of the Air Act. Likewis, Rules , 9 and 10 of the UT Rules and the form. thereunder do not exclude a commercial/shopping complex from the applicability of the Section 21 • oftheAirAct. '

¶34One of the submissions on behalf of the DPCC was. that'in most Of these buildings, whether' it was a commercial shop.ping complex or a residential cornp1ex, there would be a. 24-hour' pdwer back-up diesel generator set (DG set) that was likely to cause air pollution and attract the provisions of the Air Act. This submission was sought to be counterd by the Petitioners by pointing. out'that only suchDG sets that sati's the W.P. () No. 54312008 batch pollution control norms would be used by the Petitioners and that this i an event that was likely to take place afte.r the building was commissioned and not at the stage of consent to operate.

¶35Here the Court wOuld like to make two observations. The position of the applicability of Section 21(1) of the Air Act to commercial shopping complexes and shopping malls is 'different from its applicability, to • residential éornplexes. This will be discussed in some detail siortiy hereafter. Secondly, these cases are, concerned with the applicabilty of • Section 21(1) of the Air Act at a stage when construction of the bu1ding S in question has not commenced. The p.osition of the applicability of the Air Act to any on.-going construction and to any building complex vhich is functional is again different.. . .

¶36As far as. commercial shopping complexes or shopping malts are concerned, it might be difficult to anticipate, even befoie the stait ot construction, what would be the extent of use of DG sets. In any evnt . this need not be the only factor that will determine whether Sectin 21

(1) .Air Act applies tO commercial shopping complexes or hoppiig malls Given the definition of 'air pollutant' under Section 2(a) reat with Section 2 1(1) of the Air Act, and the fact that the commeicial shoping complexes or .shopping mall are going to be used for a trade. or comrnerciai. activity, is sufficient to attr'ct the provisions of Sction 2 1(1) of the Air Act, Whether or not the use of a DG set will attract the provisions of the Air Act is a separate matter. It is obvious as and when W.P. (C) No. 54312008 batch . , the building begins to get used for a trade or commeicial purpose and DY~

sets. are used therein, if such DG sets do not comply with the pollution control norms, a separate .. cause of action arises for the DPCC to take action.

¶37Next the position vis-â-vis residential cornp1xes may be exarrind.. Since Section 21(1) of the Air Act only talks of obtaining prior consent to operate where the air pollution, is likely to be caused as a result Of the operation of any "indUstrial plant for the purpose of any industry specified in the Schedule", there is. no possibility of expanding the. S meaning of the word "industrial plant", even on a purposive construction, to include a residential complex. Reliance was placed by learned Senior, counsel for the DPCC on the judgment of the Karnataka High Coiirtin Nitin Majumdar v. State of Ktirnataka 2007 (4) Kar LJ 569. That' case concerned a place used for storage, which was held to be covered under the definition of 'plant'. It is not possible to stretch the meaning of the word 'plant' to include a residential complex. The ratio of the said . decision is therefore inapplicable to a complex used only for residentiii purposes The contrast with the corresponding words in Section 25(1) (a) .of the Water Act is indeed striking when one examines. Section 21(1) of the Air Act. The crucial words . "operation or process" inserted into Section 25 (1) (a) of the Water Act after the 1988 amendment do n.oi find place in Section 21(1) of the Air Act. The resultant position is that as a purely residential complex is concerned, on the present wordig of W.P. (C) No. 54312008 batch Section 21 (1) of the Air Act, there is no requirement of obtaining the prior consent of DPCC to operate.

38.. It was further contended on behalf of the DPCC that the construction activity itself could, cause both air and water pollution. One of tile purposes of requiring the obtaining of prior consents, as noticed by the Supreme Court in T.N. Godavarman Tirumulpad v. Union of. 1(ndia 2006 (1,0) SCALE 246 (the' Vasant Kunj Ridge matters) is the inevitable use of reinforced cement concrete (RCC) mix during construction. There is a likelihood of air pollution being caused due to use of loose cement during construction. aôtivity. Clearly, therefore, it is anticipated that the very activity of construction . is likely to cause both air and water. pollution. This can be apprciated in more than one context. Where what is being constructed is a building that has to be used for the purposes of a commercial complex or shopping complex or shopping mall, then apart from obtaining the cnsent to establish under the .ater Act and consent to operate under the Air Act, after the construction I activity commences such activity will have to nevertheless comply with the pollution control norms . that would give rise to a separate caüe of action to the DPCC for the applicability of the provisions of the Water Act and the 'Air Act..

¶39'Where it is a residential 'complex, V'hiie there may be no ned to obtain prior consent to operate under Section 21 (1) of the Air Act, once the construction activity commences, / that activity has to le in W.P. () No. 54312008 batch ' consonance with the provisions of both the kir Act as well as the V~ater Act; Needless to mention, onôe the complex, whether commercial or , residential or a shopping mall, is functional, the norms under both the Air Act and the Water Act, or for that matter the EPA or any oth,er environmental law, will have to be complied with: .40. The position where the construction of a commercial shbpping complex or shopping mall has been allowed to be completed without a prior .consent to operate is examined next. In such event, unlike the fall back plan of action under Section 25 (5) of the Water Act, the cohise of action available to the DPCC. would be to inspet the building in ekercise of its powers under the Air . Act and the Rules thereunder and then issue a. •show cause notice requiring the builder or the owners or occupiers as the case may be to comply with the conditionalities imposed by it unIer the Air Act within a specified time frame, failing which the DPCC can issue further directions under Section 3 1A Air Act. Summary of the position under the Air Act I 41 The position under the An Act may be summarized

(i) A collective reading of Section 21(1).of .the . Air A9t with Section 2(a),. 2(b) and 2(k) thereof 1eaØ this Court to the • conclusion that a commercial shopping complex or a shoppina. mall would be covered within the .s'cope of Section 21(1) of the Ai. Act. •. W.P. (C) No. 54312008 batch Page3io122 The definition of 'air pollutant under Section 2(a) readh Section 21(1) of the Air Act, and the fact that the . commercial shopping complexes or shopping malls are going to be used for a trade activity, is sufficient to attract the provisions of Section 21

(1) of the Air Act . . As far as a purely residential complex is concerned, on the present wording of Section 2 1(1) of the Air Act, there is no requirement of obtaining the prior consent of the DPCC to operate. During, the construction phase. and after the complex becomes functional, every building, whether it is a c6mmercial shoppin.g complex or a shopping nall 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 3 1A Air. Act. . . • . The position under the EPA

¶42The EIA Notification dated 14th Septeinber 2006 requires the obtaining of a prior EIA clearance for "new proj ects or activities listed in the . schédüle to this notification." The schedule includes, inter alia, building/construction projects/area developrñent projects and townships. Serial 8(A) concerns building and coflstruction projects. In column 4 it is stated that whe the extent is of equal to or more than 20,000 sq.rn. and less than 50,000 sq.rn. of built up area, the EIA clearance is mandatory. W.P. (C) No. 54312008 batch ..- ----.--.. --.-. -... 43: . The appendix to the above EIA Notification sets out the form affi which anapplication has to be made for an EIA.cleãrance. The second part of the format conces "use of natural resources for construction or operation of the Projeët (such as land, water, materials or energy, esecia1ly any resources which are non-renewable, or in short supply)". Serial No. 2.2 asks for details about "Water. (expected soures .& competing users)". Appendix 2 sets out the exclusive requirement for construction projects.. In. para 2 there is a detailed checklist concerning 'Water Environment'. Para 2.1 requires the applicant to "glve,.the total,. quantity of water requirement for the proposed project with the bi eakup S of requirements for various users". in particular, the following qustions are asked: "2.9. What the impacts of the proposal on the ground water? (Will there be tapping of ground water give the.' details of ground water table, recharging capacity, and approvals obtained from competent authority, if any)

2.10. What precautionlmeasures are taken to the • prevent the run-off from construction activities polluting land & aquifers 9 (Give details of quantities and the measures. taken to avoid the adverse impacts)

2.11. How is the storm water from within the site managed7 (Since the provisions made to avoid flooding of the..area, details of the drainage facilities proyided aloig with a site layout indication contour leyels)

2.12. With the deploythent of construction. labOurers particularly in, the peak period lead to unsanitary H W.P. (C) No. 54312008 batch . . ... -...-..--- ...................................................... conditions around the proj ct site (Justify with proper2 explanation)

•

2.13. What on-site facilities are provided for the • collection, treatment &. safe disposal of sewage? (Give' details of the quantities of wastewater • generation, treatrnnt capacities with technology & facilities for recycling and disposal) •

2.14. Give dtai1s of dual plumbing system if treated • waste used is used for, flushing of toilets or any other use' • 44. As regards 'Air Enyironment' para 5 of the form lists out the various H • questions that have to be answered by the applicant. The questions read asunder: •

5.1. Will the project increase atmospheric concentration of gas & result in heat islands7 (Give • details• of background air quality levels with.........based for, dispersion models taking into account the increased traffic generation as a result of, • ' the proposed constructions) • ' • • ' •

5.2. What are the impacts oii generation of dust,, smpke, odours, fumes or other hazardous gases? Give details in relaition to all the metrological parameters.

5.3. Will the proposal create 'shortage of parking space for vehicles2 Furnish details of the present level of • trahsport infrastructure and measures proposed for improvement including the traffic management at the • • entry & exit to the project site. • W.P. (C) No. 54312008 batch • • • 5 4 Provide details of the movement patterns with internal roads, bicycle tracks, pedestrian pathways, footpaths etc., with areas under each category.

5.5. Will there be significant increase in traffic noise & vibrations? Give details of the sources and the measures proposed for mitigation of the above. • 5.6 What will be the impact of DO sets & other equipment on noise levels & vibrtion in & ambient air quality aroundthe project site? Provide details."

¶45The contention of those Petitioners who have obtained EtA clearance for their projects is that by requiring them to again approach the 1PCC for consent to establish under the Water Act and consent to operate under the Air Act, the same exercise is being unnecessarily asked to be repeated by the DPCC. It is further submitted that once the MoEF has afready given clearance, it would not be open to the DPçC to again examine those very issues and refuse either the consent to . establish undei the Water Act or the consent to operate under the Air Act. 46 In reply it is pointed out, by the DPCC that under most of th EJ.A clearances,l one of the conditionalities imposed is that the applicant has to obtain consent to establish under the Water Act and consent to operate under the Air Act respectively from the DPCC. Additionally, referehee is • made to a Circular dated 21st . Npvernber 2006 issued by the MoEF • clarifying that an NOC from the State Pollution Control Board ('SPCB') and its consent to establish are "separate legal requirements, any project proponent has to fulfil." It is clarified that "NOCs are required .mder W.P. (C) No. 54312008 batch Water and Air Acts are mandatory requirement underthose Acts and w have to be taken as required and do not, require to be intended as environmental clearnce" The DPCC has also pointed out that there is. no question of rpugnancy betweefl the Air and Water Acts on the one hand and the EPA on the other. To be fair to the Petitioners, it was not their case that there is any repugnancy between the statutes in question Their submission is that once they have obtained EIA clearance unqer the ETA Notification dated 14th September2006, they do not have to again go - before the DPCC for, a separate consent to establish• and cOnsnt to operate.

¶47This Court finds 'that there is indeed an elrnent.of overlap beween some of the aspects examined by the MoEF while granting ETA clearance,, and those, aspects on which the DPCC grants either consent to: establish or consent to operate or both. At the same time, the ncd to separately obtain 'consent to establish undej the Water Act and conent to operate under the Air Act from the DPCC is mandatory as claiified by,

• the MoEF in its Circular dated 24" NovehTher 2006. As explained by the Supreme Court in State of Bihar v. Kedar SaO 2004 9 SGC34, it is possible that more than one enactment applies to the same facts and' circumstances and it is possible that the applicant may have to get: clearances from different agencies for the same activities. The mere fact that an ETA clearance has been obtained from the MoEF cannot be a ground to seek exemption from obtaining consent to establish under the Water Act and consent to operate under the Air Act. W P (C) No 54312008 batch

¶48A possible balance that can be struck with .a view to avoidin~ duplication is to hold that when a holder of an ETA clearance applies to the DPCC for either consent to establish under the Water Act or consent to operate under the Air Act, it would be incumbent on the DPCC to ascertain the aspects that have already been examined by the MoEF in granting the ETA clearance. Those aspects need not be again examined .by the DPCC. There is usually a role asignêd to the SPCB under the EIA notifications. Even 'assuming that the position in Delhi is different . id the DPCC does not come into the picture when an ETA clearance is grantcd. by the MoEF, it would nevertheless be necessary for the DPCC to' avoidi repeating the same exercise which has been performed by the MpEF M. granting the EIA clearance.. Therefore, to the extent that certain aspect:, • have not be en covered by the EIA clearanc, it would certainly be open for the DPCC to examine those aspects and decide whether or not to grant, consent to establish under .the Water Act and consent to dperatc under the Air Act. Who should applyfor consent

¶49It was submitted on behalf of the Petitioners that after the cornpletion of the construction in terms of.validly sanctioned plans the ownerhip of the property, or portions thereof, usually changes hands. The question posed is, in such event, who should apply for consent to establish 01 to operate and who should be called upon to comply with the environieital norms? .,

¶50It is not as if the person who originally applied for ETA c1earace or WY. (C) No. 54312008 batch , the consent to establish or consent to operate would have nothing to d LI with the property in question once the construction is complete. There may indeed be multiple owners in a constructed building. In such event, if the builder already knows who they are, even; before construction F commences, then the application for EIA clearance or consent to establish or operate, as the case may be, will be made jointly by, the builder and such individual owners. If the building has been comp leted without obtaining prior consent to establish (un4er Section 25 (1) () of the Water Act it would'be incumbent ,upon the person receiving a ShOW cause notice from the DPCC in terms of Section 25(5) of the WaterF Act C to inform the DPCC the names of the persons to whom the whole or ipart. of the building in question has been sold or transferred. Notices can thcn be issued to such persons as well. Till such time the person first recei'ing a show cause notice furnishes the complete particulars of subseqie.nt IK: transferees and till diséhaged, such person will continue to be liabie to answer• the show cause notice and to explain why he should not be proceeded against for the violations of the Water Act. The position wuld be more or less similar under the Air Act. In any. event, since under the Rules under both the Water Act and the Air , Act thefe is a rquireient H that the DPCC should conduct an enquiry or investigation before issuing a show cause notice, that i-night reveal the names of the persons to whom the notices should be issued. . . . . The ambit of DPCC's powers under Section 33A Water Act and Section 31AAirAct;

¶51This brings up thc.next question as to the scope of the powers of the

W.P. (C) No. 54312008 batch I DPCC under Section 33A of the Water Act and Section 3 1A of the Act which are ioeoi less identically worded. Section 33A of the Wate Act reads as under: • "33A. Power to give directions. Notwithstanding anything contained in any other law, but subj ect 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 povers and performance of its function.s under this Act, issue any directions in writing to any person, officer or authoiity, and such person, officer or authority shall be bound to comply with suchdirections. • Explanation-For the avoidance of doubts, it is hereby decired that the power to issue directions under this section jncludes the power to direct-the closure,, prohibition or regulation of any 'indusry, operation or, process; or the stoppage or regulation ofsupply of electricity, watei or any other service;" 52 The above provision opens with a non obstante clause However, it is subject to the other pröisions of the Water Act. It gives the DPCC the power to issue directions in writing to any person, officer or auhorit and such person, officer or authority shall be bound to comply with such directions. The directions would include the power to order dlosur prohibition or regulation of any "industry, operation or process". or the "stoppage or regulation of supply of electricity, water or anyi other service". The power of the DPCC under Section 33A Water Act is indeed wide. It implies within it the requirement of following the princiles of

W.P. (C) No. 54312008 batch Page 39 of122 natural justice before the exercise of such power. On a collective readig of Sections 25 and 33A, the legislative scheme appears to be that where there is a failure by a person fo comply with either Section 25(l)(a) or Section 25(5) of the Water Act then it would be open to the DPCC to exercise its powers under Section 33A of the Act. Without giving any show cause notice under Section 25(5) in the instant case and without waiting for the expiry of the time within which the corrective steps have to be taken, it will not be open to the DPCC to straightway invoke its power under SectiOn 33A to order closure of the. shopping mall or commercial or resi4ential complex concerned That would make such • . exercise of power vulnerable to invalidation on the grounds of arbitrariness and unrëasonab1eness The position as regards Section 3.1 A of the Air Act is no different. That power too cannot be exercisd to straightaway order closure of a building without .giving : the person concerned a prior, show cause notice consistent with the procdure outlined under. the Rules under the Air Act. Validity of the levy ofpenalties and environniental damages

¶53The powers of the DPC.0 to,levy environmental damages and seek, the furnishing of bank guarantees as a pre-condition to the grant of éonsents are examined next. Connected with this issue is the quetion whether the Chairman of the DPCC . had the power to constitte a Consent Management Committee ('CMC') which proceeded to levy environmental damages, penalties, fines and require the furnishirjg of bank guarantees in some of these cases. . W.P. (C) No. 54312008 batch .. ' 54 Section 15 of the Air Act provides for delegation of powers stating that a State. Board may, by general or special order, delegate to the Chairman or the member-secretary or any Other officer of the Board, its powers. Under Section 12(3B) of the Water Act, 'a similar power has been conferred on the State. Board to delegate its 'powers. It is pointed out by the Petitioners that the DPCC has, contrary to the relevant provisions of the Water Act and Air Act,, delegated its powers with regard to granting prior consent to establish or consent to operte and to issue directions under Section 3 1A of the Air Act and Section 33A ~1 of the Water Act to the Chairman and Member-Secretary. It is stted thit the Chairman DPCC is also the Chairman of the CMC svhiclr dals with the aspect concerning consent. It is accordingly sought to be contendçd that there can be no sub-delegation by the Chairman of his powers to the CMC and the decision iaken by the ChainTlan with the assistane' of the Members of the CMC' is invalid. If in4eed it was the Chairman alone who was acting in exercise of the N- 'powers , elegated to him under Section 3 1A of the Air. Act' and SectiEi 33A of the Water Act, then the flnal decision to either agree to or to refuse ti e consent to establish or consent to operate should have been taken in ependently by the Chairman. The minutes of the m:eeting, however , show that this was the decision of the CMC. A1thoigh the Chairman of the DPCC. may be the Chairman of the CMC, he is but one member in the CMC. There is nothing to indicate that the decision df W. P. (C) No. 54312008 batch ' ' CMC was unanimous or by majority or that it was the decision only of the Chairman. There is no power under the Water Act or the 4ir Act given to the Chairirnan to further sub-delegate his powers in regard to consent to establish or consent to operate, to the CMC. Such sub-delegation was obviQusly bad inlaw. Unless it is shown, and it is not, that the other members of the CMC apart from the Chairinan were performing a mere advisory role and had nothing to do with the actual grant or refusal of the consent to establish or consent to Operate, such decision by the CMC is clearly ultra vires the Air ACt and Water Act. S

¶57In the instant case, this Court is unable to find any justification. for the CMC to itself take decision as regards the grant and refusal f the consent to establish under the Water Act and consent to operate under the Air Act. Secondly, even where it agreed to grant consent toçstablish, the CMC imposed a pre-condition that the applicant should pay a penalty or fine Or furnish a bank guarantee or in some cases all or some of them. Ther is no statutory basis for such a direction to be issued by the çMC, . or fo that matter by even the Chairman of the DPCC. The grant of the cons nt to, establish or consent, to operate ought not to be made cond tional uponayrnent of some 'fine or penalty. or furnishing o bank guar ntee. Given the object of the Water Act and the Air Apt, which is the revention and control of pollution, the mere paymen of fiic or pna ty or furnishing of bank guarantee is unlikely to prevent I and cpntrol the 1 kely pollution that can be. caused. The basic approach 1 adopted by W.P. (C) No. 54312008 batch ' . . the CMC where such penalty or fine has been leVied or bank guarntec secured appears to be faulty. The decision to levy environmental damage's and to seek i the furnishing of bank guarantees has been sought to be justified by 1 the DPCC with reference to Section 31A. of the Air Act and Section 3 3 A of the Water Act. As already noticed, Section 3 1 A of the Air Act is more or less similarly worded as Section 33A of the Water Act and both provisions have been inserted by the 1988 Amendments. A reference has already been made to Section 33A of the Water Act. The power, underl, the said provision includes the power of the DPCC to issue "any dixections in writing to any person". The 'Explanation' to the provision c1arifies t1hat the power to issue directions includes the power to direct "closiirc, prohibition or regulation of any industry, pperation or process or the stoppage or regrilation of supply of electricity, water or any otler seryice" Yet, this power has to be one coupled with a duty to tact 1y and fairly. It cannot be stretched to include a powerko levy' a S penalty. in.tl considered view of this Court, the power to levy a p1lalty on any pai is in the nature of a penal power. It is ettled law that unless there is specific power in the statute enabling the authority to do so it cannot iy penalties or damages with reference to . the general porer under Sction 31A of.the Air Act or Section 33A of the Water Act. Tiè decisions in Khemka & co. (Agencies) FyI. Ltd. v. State of Mainirashira W.P. (C) No. 54312008 batch E ,

(1975) 2 SCC 22, J.K. Synthetics Limited & Birla Cement : Works v. Commercial Taxes Office: (1994) 4.SCC 276 and India Carbon Ltd. v. State of Assam (1997) 6 SCC479 are relevant in this regard. In Khen,ka & Co., the question was whether an assessee under the Central Sales Tax. Act 1956 could be made liable for penalty under the provisions ofthe Mysore Sales Tax 1957 when there was no provision in the Central Act for imposition of penalty for default in payment of tax. Answering the question in the. negative, the opinion of Ray CJ, writing for the majority explained (SCC, p.31): "25. Penalty is not merely sanction. It is not merely adjunt to S ' assessment. It is not merely consequential to assessment. It is not merely machinery. Penalty is in addition to tax and is a liability under the Act.' Reference may be made to Section 28 of the Ifldian Income-tax Act, 1922 where penalty is provided fof concealment. of income Penalty is in addition to the amount of income-tax this Court in Jam Brothers and .Ors. v. Union of India [197i] 77 ITR ]07"SG) said that penalty is not a continuation of assessment proceedings and that penalty partakes of the character of additional O

¶60In hi 3 concurring opinion Beg, J: (as His Lordship then was) bserved (SCC@ .35):.

"39. On a consideration of the provisions mentioned above, ii. se ms to me to be clear that. 'whatever may be the objects of le ying a penalty, its imposition gives rise to a substantive liability w Tlich can be. viewed either as an additional tax or as a fine for the iningernent of the . law. The machinery or procedure for its realization conies into operation after its imposition. In any case, it is an imposition of.a pecuniary liability which is comparable to a W. P. (C) No. 54312008 batch ' . FTF .-- ...................., . . . . -v • •. punishment for the commission of an offence. It is a welll settled • cannon of constru&ion of .statutes that neither a pecuniary Uabilily can be imposed nor an offence created by mere implication. It may be debatable whether a particular procedural provision, creates a substantive right' or liability. But, I do not think that the imposition of a pecuniary liability, which takes the form of a penalty or fine for a breach of alegal obligation, can be relegated to the 1egion of mere procedure and machinery for the realization of tax. It is more than that. Such liabilities must be created by clear, unambiguous, and epress enactment. The language used should leave no Serious • doubts about, its effect so that the persons who are to be subjected to such a liability for the infringement, of law arc not left in Ia state of uncertainty as to what their duties or liabilities arb. This is an essential requirement of a good government of laws. It is ii1nplied in the Constitutional. mandate •found in Section 265 of Constitution: "No tax shall be levied or collecte4 except by authority of law"." '

¶61Later in 'India Carbon Ltd., the question arose whether sa1s tax authorities in the States could charge interest when co1lectin. and enforing. payment of central sales tax. Following the 'decisin in Khe ka it was held that absent a substantive proviion in the centrl Act requi ing the payment of interest on central sales tax, the aUthorities in the st, tes could not charge interest thereon. The resUltant poition i's that there being no specific provisiOn in the Water Act, or' AirL Act empo ering the DPCC 'to levy penalties, fins or environnenta1 dama es, or to require the ftimishing. of bank guarantees, no such order or dir ction can be issued by the DPCC, imich less the CMC,inexrcise of the general powers to issue directions under Section 33 A' 1 Water Act and Section 31 A Air Act. ' W.P. (C) No. 54312008 batch . .. , . Page' 45 of 122 ---n-.-•-'--- The DPCC has placed reliance upon the decision of the learned. Single Judge of this Court dated 16thi Januaiy 2009 in Wiit Petitioi (C No. 7516 of 2007 (Regent Automobiles FyI. Ltd v. .cNCTD.) The Court in Regent Automobiles was interpreting the provisions, of the Delhi Common Effluent Treatment Plants Act, 2000 (DCETP Act). Sectin 11 of the DCETP Act which contains a specific provision foi penalty jeads • asunder: U. Penalty for non-payment within the specified time. If any amount payable by any person is notpaid within the date specified in the order it shall be • '. deemed to be in arrears and the apprOpriate authority may after such inquiry as it deems fit, impose on such • •. person a penalty not exceeding the amount in arrears." Section 16 of the DCETP Act reads as under:

¶16Power to give directions-NotwithstanIing an5'thing contained in any other law, but subject tqthe prOvisions of this Act, the appropriate athority may, in exercise of its powers and performance of its functions under this Act, issue any directions in writing to any occupier, society; person, officer or authority, and such occupiers, society, person, officer or authority shall be bound to comply with directions. Explanation-For the avoidance of doubts, it is h.eieby declared that the power to issue directions under this Clause includes the power to direct-

(a) the closure, prohibition or regulation of any industry, establishment, operation or process; or W.P. (C) No 54312008 batch - ....--• ,-••.•--,-. •------•-••• 'I /

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

¶64Further Section 17 DCETP Act spells out the consequences of failing to comply with the direction issued ',by the authority. It enables the authority to levy' a further penalty in the, event of such failure. In addition, Section 18 DCETP Act talks of penalty for certain kinds of acts. Section 19 DCETP Act provides for residual penalty for contraveUtion of' certain provi.sions of the Act. It was noticed by leathed Single Judge that, "but for Section 16 it can be argued that the entire range of sanctions • including penalties have been specifically provided by variou provisions such. as Section 11, 18, 19 & 20." It was in the above context that the question posed by the learned Single Judge was "whether the general power to issue directions comprehends the power to require bank guarantees to be furnished?" After referring to certain decisions which explaired that "everything necessary to carry out the purposes of the grant 9an be done by the authority entrusted with th power", the learned Single Judge came to the conclusion that the "court cannbt limit the option.s available to statutory authorities to meet emerging challenges, towaics ensuring compliance with the provisions" Yet, even in that case the Court accepted the, contention of the Petitioners that in the sh6w cause Htices, preceding the impugned orders, there was. io mention about he possibility of issanCe of orders requiring bank guarntees to bc furnisIed; Further the orders did not' indicate the 'application'of mind to what eisted on site, and what was the standard requfred to be complied • • " • ' W.P. (No. 54312008 batch : • rir ...................................- ....-"- .................................... .......................• ................................................. with. Therefore while the challenge on account of lack of power failed, the impugned ordeis were held not sustainable in law and set aside In the considered view of this Court, the above decision in Rgent Automobiles is of no 'assistance to the DPCC in the present case. The provisions of the DCETP Act are different from the provisions of the Air Act and Water . Act particularly with reference to the penalty! proviions. In the DCETP Act, Sections 11, 17 9 18 and 19 talk of penalties and it is in that context it was held that the power under Section 16 iof that Act, includes power to require 'furnishing of bank guarantee. Nether in the . Water Act nor in the Air Act is there any provision that permits DPC to levy a penalty. That .power is with the courts and that too after 'returñng a' conviction. Chapter VI of the Air Act and Chapter YlI of the Wate' Act. talks of penalties which result from a conviction for violation of the provisions. Clearly, the penalties envisaged, under the Air Act and the Water Act can be levied only at the end of judicial proccedin'8 befoic a criminal court. That power cannot be exercised by the DPCC :. Thee is . no. protvision 'either under the Water Act or under the" Air Act that empowers a State Board to levy penalties or environmental ! damges. much lss .require the furnishing of a bank guarantee. This Court has, therefore, no hesitation' in coming to the êonc1uion that or ers issued by the CMC or even the DPCC in the instant case 1vying penalty and requiring furnishing of bank guarantees and maibng the grant of' consent to establish under the Water Act and consent' to. W.P. (C) No 54312008 batch - "nr...........................'----------"- operate under the Air Act conditional payment of such penalties and furnishing of such bank guarantees are entirely without the, authority of law and require to be set aside. Procedural violations by the DPCC

¶67This Court finds that the procedure 'adopted in the instant case by the DPCC in levying the damages and requiring the Petitioners to furnish bank guarantees was not consistent with the requirements of the Rules under the Air Act.and Water Act. Under Rule 20A(3) of the UT Rules the requirement is of serving a copy on-the, alleged violator of the proposed S directions and being given an opportunity of not less than 15 days; fioii the date of service of a notice to file objections to the proposed directions. 'Where the direction is; for the stoppage or regulation of electricity or water or any other service then under Rule 20A(4) copy of the proposed direction should be endorsed to the occupier of th4 industry, operation or process. After the receipt of the objection and withn 45 days O . from th t day, the DPCC should give an opportunity to the person to' file objections and after considering the objections and for reasns to be recorded, in writing, either confirm, modify or decide not to issue such directio s Where the DPCC decides that it is not expedient to piovide such an opportunity on account of 'a likelihood of grave inj dry to the environment, it should record an opinion to that effect.

6.8. Rule 33 of the Water (Prevention and Control of Pollutiod) Rules, W.P. (C) No. 54312008 batch . , ' • " 1975 ('Water Rules') spells out the procedure for makingan inquiry into applioation for consent. 'The said Rule reads as under: "33. Procedure for making inquiry into application for consent-(1) On receipt Of an application for. consent under Section 25 or. Section 26, the Central Board may depute any of its Officers, accornpanied:by as many assistants as may be necessary, to visit the • premises of the applicant, to which such application relates, for the purpose .of verifying the correctness or otherwise of the particulars furnished in the application or for obtaining such furthei particulai S 01 information as such' officer may consider necessary. • Such officer may, for that purpose, inspect any place where. water or sewage or trade effluent is discharged by the applicant, or . treatment plants, purification works or disposal systems of the applicant., and may required the applicant to • furnish to. him any plaiis, • . specifications and other data relating to such treatinent • . . plants, purification works or 'disposal" systems or any part thereof, that he considers necessary Such officer shall before visiting any premises of the applicant for the purpose of inspection under sUb-rule (1) above, give notice to the applicant of his intention to do so in Form )UV. The applicant shall. furnish to such officer all facilities that such officet may legitimately require for the.purpose. An 'officer of the Central Board may, before or after canying but an inspection under sub-rule (1) above, required the applicant to furnish to him, orally or in writing such . additional inE"ormation Or clarification, or to produce before him such documents, as he may consider. necessary for the W.P. (C) No. 54312008 batch • "'''"ir''"' '''':" •"' ' purpose of investigation of the application and may, for that purpose, summon the. . applicant or his authorised agentto the office of the Central Board."' • 69. This Court finds that in none of the cases .the above procedure has been. followed by the DPCC. This would be discussed, in greater detail while dealing with the individual cases This Court would like to emphasise the pOwer of the DPCC under Section 3 1A of the Ai,r Act and 33A of the Water Act, which is indeed a coercive power, has to be exercised with caution and after complying with the due, process requirements. The Rules under both statutes have to be mandatorily followed while exercising such.powers. . . . Conclusions

¶70The summary of the conclusions of this Court are set out hereunder. It is clarified that these summaiy coticlusions have to be read with .the specific conclusions under different sub-topics ' already set out hereinbefore.

Where a person propose's to establish a. commercial shopping complex or a shopping mall or even a residential complex, it would.. be necessary for such person to, comply with the requirements of Section 25(1)(a) of the Water Actand apply to the DPCC for prior consent to establish.

Where a person has already established a commercial shoppihg mall or shopping complex or residential complex and has not been issued any show cause notice till the completion of such buildmg then it would be pointless to 'require such person to thereafter W.P. (C) No. 543/2008 batch , comply with the requirements of Section 25(1) of the Water Act. The available course to the DPCC in such event is to invoke the powers under. Section 25(5) of the Water Act and set out a time limit for such person to comply with the requirements of the Water Act. Upon failure to comply with the requirements as specified by the DPCC, it would be open to the DPCC. to invoke its powers. under Section 33A of the Water Act after complying with the due • . process outlined under the Water Rules. - (iii) Where a person has made an application for consent to • . establish and Tour months have elapsed during which the IPCC has not communicated to him its decision thereon, then in terms of Section 25(7) Water Act consent to establish will be deemed to - have been granted. In such event the question of the person being thereafter required to apply for consentto establish does not arise

(iv) Where the built up area is more than 20,000 sq.rn., the requirement of obtaining an ETA clearance for such äctivty is mandatory. I The mere fact that an EIA clearance has been applied for and obtained by a person seeking to establish a shopping niall, shopping complex or residential complex will not obviate the necessity of such person to again separately apply to the DPCC for a .consentto establish under the Water Act.

(y) Where an ETA clearance has already been granted b the MoEF, and the DPCC is thereafter approached for grant of prior consent to establish or prior consent to operate, it would be incumbent on the DPCC to avoid re-examining those aspects that have been examined by the MoEFwhi1e granting ETA clearance.- • The DPCC will examine other aspects not covered by. the E1A clearance. •

(vi) The requirement of obtaining prior consent to operate. under Section 21(1) of the Air Act applies to a commercial shopping - • • complex or shopping mall as these would fall within the definition W.P. (C)No. 54312008 batch • 2rv of 'industrial plant' under Sectiôn2(k) of the Air Act. However on the present wording Of Section 21(1) Air Act, there is no such requirement as regards aresidential complex. The requirement of having to obtain the consent to operate under Section 21 of the Air Act does not get. obviated only because the person has an ETA clearance under the EPA. - The DPCC when approached with an application for cOnsent to operate by a person who has already obtained an ETA clearance, will examine only those aspects not covered by the EIA clearance. During the phase of construction, and.. postconstructioi, the provisions of the Water Act, the Air Act and the EPA and other environmental -statutes will apply to all types of buildings and activities. . Without issuing a show cause notice and without giviPg an opportunity to the . alleged violator to . rectify the defects detected during an inspection of the premises carried out in accordance with the relevant rules, the power to order a closure under either Sectipn 3 3 A Water Act or 3 1A Air Act should not generally be straighiway invoked. .. . .. . • . There is no power vested in the Chairman of the DPCC, either • .. under the Water Act or under the Air Act to further sub-delegate the powers delegated to him by the DPCC as regarcs granting or • refusing consent to establish or consent to operate under the Water Act and the Air Act respectively. . Any Committee established by - the Chairman of the DPCC like the CMC has no power to itself decide whether to grant or refuse the consent to establish or consent to operate. Such decision can be taken either by the DPCC itself or by its delegate i.e. the Chairman DPCC and no one else. W.P. (C) No. 54312008 batch . . Page 5. of 122 zzrJot'a 6od qajoq 800Z/EtS 0N () dM LH JOB Inq 'O3TSqOM. sil qno143 Ajuo 30U uiouJ Ajojqnd uoqisod

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¶0110 S0131LT13 J131UU1IUOJ1AU0 S0J3113U0d 300JJOO PUB JcAoI 03 ULIUMTRIlD s.T 10 iXidU 3ftLuod 4OT4M 2°V IT pUl3 1°V JONM. 043 10Ufl SUOTS!AOJd ogioods P'qv sJOplO 40fl5 SS13d 03 'J/\fl aill S50J 4011W 'U13UUTrn4Tj S31 Jo 1X1)du 043 S0J13U0 qoTqM 3°V 103 13M 041 10 ioV iTy 0143 JopunJoMod OU 51 01041 M13J JO c31IO43fl13

¶0411nO4TTM 0113 031310dO 03 1UOSUOO JO qSTJ(313350 01 3UOSUOO JO 11U131 JOJ UOT3!PUOO 13 S13 soolutren2 Ju13q JO Sul4S1U1flJ uo 3515U1 PUB S02RUILIP ITU0WUOJAU0 JO 1c3113U0d IcAOJ °4 X)dU 'tT131LUT1343 0141 Xq . UOAO Jo 3JAJ3 all cq suOTST0O 041 (Tix) . coordination with the governmental and municipal agencies, the pla fling authorities; the construction industry, consurnr associations as well as civil society groups involved in issues of environmental protection. Not only should DPCC reorganize itself as a vigilant regulator but seek the active cOoperation of all of the above interested parties. Also, to avoid any criticism of selective application of law, the DPCC should ensure that the law applies and is enforced in a uniform, predictable and certain way, while ensuring that action taken is within the four corners of the law. . . n Consideration of individuaj petitions . .71. The individual petitions are now taken up for consideration ; W.P. (C) No. 271.4óf 2008 (Vardhman Properties Ltd.)

¶72The building in this case is a shoppingcui-office complex built ona commercial plot. The total built up area is 7700 sq.m The show caus(i

notice was issued by the DPCC on 13th February 2008 askiig the . Petitioner to explain why it should not be proceeded against for its 'failure to apply for a consent to establish under Section 25 of the Water Act and consent to operate under Section 21 of the Air. Act. The show' cause notice further stated with reference. "you are proposing to construct/have started construction activities without obtaining prior . 'Consent to Establish' under Air. & Water Act from DPCC". The Petitioner was asked to show cause why "prosecution proceedings should not be initiated against you and/or. your . establishment should not be 1osed W.P. (C) No. 54312008 batch . . . . rTr under the appropriate provisions of the Acts for contravention of th provisions of the aforesaid Acts". By the time the above show cause notice was: issued, the bui1din had already been constructed. In fact, construction commenced on 7th June; 2005 in terms of the sanctioned building plan and was completed on 25th June 2007. The Petitioner replied to the above notice on 18 1h February 2008. Inter alia, it was pointed out that an application was made on 3' • September 2007 under the Right to Information Act, 2005 ('RTI At') on the exact criteria adopted by the .DPCC for identifying corniñercial complexes for the purposes of consent under the Air Act and the Watei Act. The DPCC had replied that commercial/residential buildings not generating trade effluent are required to discharge their sewage into sewage system maintained by Delhi Jal Board/MCD/DDA which in turn was responsible for treating the sewage in the sewage treatment plant as per the norms prescribed under the pollution control laws and iii such event consent was not required for the said commercial/residntia] • buildings On 181h March 2008, an order was passed by.the DPCC noting that a reply had been filed by the Petitioner to the show cause notice on • 1.8111 February 2008 that "no application has been made till date". The case. was then placed before the CMC (Orange) It was decided by the CMC to direct the Petitioner to apply for consent to establish and submit "Environmental Clearance obtained from MoEF, Govt. of India" and an W.P. (C)No. 54312008 batch . • . Page 56 of 122. • • . . . "affidavit indicating date of start Of construction aid completion of

construction, approved architectural drawing and completion certificate within 15 days from the issue of this letter" • 75. The challenge in the present petition is to the aforementioned order dated 18thMarch2008 . 76 As already held by this Court hereinbefore that there was no question of the Petitioner having to apply for environmental clearance from the • MoEF in terms of the EIA Notification dated 14" September 2006 since • the built up area was not above 20,000 sq.m. In. the present case the built: up area was 7700 sq rn The categorization of an industry as Orang, Red or Blue appears to that of the DPCC. It is not found either under the Air Act or under the Water Act. Nevertheless, a commercial sh9ppin.g complex required prior consent to establish prior to comrnencernnt .p'f construction. But once the construction was already complete,then it was pointless to require the Petitioner to apply thereafter 'for consnt to establish.

77..Thirdly, the Petitioner's reply dated 18th February 2008 has been noticed but not discussed by the DPCC in the impugned order. In particular, the Petitioner's response to the reply received by it undpr the RTI Act has not been adverted tO at all. Although it is possible that the sewage generated by the shopping complex will join the main swage systeiTi which is being taken to the efflunt treatrneit plant of the I)JB, W.P. (C) No. 54312008 batch S

¶79Inasmuch as the building already was constructed on 25 1h Junb200. by the time the howause notice dated 131h February 2008 was issued the direction issued by the DPCC re4uiring the Petitioner to threafte apply for a consent to establIsh under the Water Act and cpnent t operate, under the Air Act was a direction which was incapable of bein, complied with. his is, however, not the end of the matter. The DPCC can stili ed under Section 25(5) of.the Water Act requiring the Petitinei tol ly with the pollution control norms under' the Water Act. This: it can er following the procedure under Section 25(5). s far as Air Act is concerned, the DPCC can inspect the prernses to :ain what is the extent of the airpllution caused, if any, and then H. notice to the Petitioner. . . . ) No. 54312008 batch . Page 58 of 122. that by itself will not obviate the need to obtain consent to establish from the DPCC.

¶78It appears that DPCC itself was not very clear about the legal positidn and, therefore, the above reply was given under the RTI Act: It cdnnot be said that the DPCC estopped fromrectifiing its position or correcting is understanding of the law. The direction issued in the impugned order dated 18th March 200.8; requiring the Petitioner to apply for consent to establish and consent to operate, is for the aforementioned reasons not sustainable in .law.. While setting aside the impugned order dated 18th March 2008 for the aforementioned reasons, this Court leaves it open to the DPCC to proceed in accordance with Section 25(5) of the Water. Act and other relevant provisions of the Air Act. If it finds after an enquiry or investigation that the use of the premises is causing either water or air pollution, and corrective action is not taken, within the time limit set for the purpose, it can proceed further to issue directions as envisageI undc Section 3 1A Air Act and Section 33A Water Act. The writ petition is disposed of with the above directions. WY. (C) No. 2771 of 2008 (Yardhman Properties Ltd.) The total built up, area in the present case is to an extent of 6131.22 sq.m. The building, has been, constructed on a commercial plot.. The n building is a shopping complex. Like in Writ Petition (C) No. 2714 of 2008, a 'show cause notice was issued by the DPCC on 13th Februaryl 2008 requiring the Petitioner to apply for prior consent to establish and consent to operate under the Air Act and the Water Act respectively. .A similar response was received from the Petitioner on 18th February 2008 and a similar order as in Writ Petition (C) No. 2714 of 2008 was assd by the DPCC on 18" March 2008.

W.P. (C) No. 54312008 batch Page59ofl22 , - 85 Here again the construction commenced on 151h Febivary 2005 an was completed on 4 December 2006 i.e. much prior to the issuance .f the .show cause notice. For the reasons already explained in Writ Petition.

(C) No. 2714 of 2008, the impugned order cannot be sustained in law and is hereby set aside. It would nevertheless be open to the DPCC t no. proceed in accordance. with Section 25(5). of the Wter Act and othe relevant provisions of the Air Act but only after complying with the du process requirements under the Rules. If after making its owr' enquiry/investigations into the matter, it finds that the use of the premise is causing either water or airpdllution, and the corrective action is no taken within the time limit set for the purpose, it can proceed further'to issue directions as envisaged under Section 3 1A Air Act and Section 33i Water Act. The writ petition is disposed Of with the above directions. W.P. (C) No. 2772 of 2008 (Vardhman Properties Ltd.) The building in this case is a shOpping complex built on a commercial1 plot. .The total built up area is 5907.25 sq.m. The facts are identical to thel., • . facts in Writ 'Petition (C) Nos. 2714 and 2721 of 2008. The date of completion of the building is 14th December 2006. . For the reasons already stated hereinbefore, the impugned order 'dated 18 March 2008 passed by the DPCC is unsustainable in law and is hereby set aside. It woUld' nverthe1ess be open to the 'DPCC to now proceed in accordance with Section 25(5) of the Water Act and other relevant provisions of the Air Act but only after complying with the due W.P. (C) No. 54312008 batch .' Page 60..of 122 process requirements under .. the Rules. If after making its 'own enquiry/investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is not taken within the time limit set for the purpose, it can proceed further to issue directions as envisaged under Section 31A Air Act and Section 33A Water Act. The writ petition is disposed of with the abo'c directions.

W P (C) No 7081 of 2008 (Pankaj Bujidwell Ltd) •

¶88The total built up area in this case is 1593 sq.m.. The building is a • 'shopping complex and is built up on 'a commercial plot. The cornpletipi certificate was obtained on 2' June 2008 itself. It is only thereafter on 14 February 2008 that the standard show cause notice was issued by the DPCC which was identically worded as the show cause notice dated 1 3t!1 r February 2008 in the cases of Writ. Petition(C) Nos. 2714, 277I and • ' 2772 of 2008. The impugned order is dated 9th September 2008. whch is • again identically worded.

• 89. The decision taken by the, CMC on 3' September• 2008. has been placed on record. It shows that apart from the Chairman, DPCC t hére were three other members along with the Executive Engineer, Assistant Executive Engineer and Joint Executive Engineer of the CMC. As • . • regards the Peitioner, its contention, that it had no DG set and no bore well and there was no effluent were noted The decision was to let the unit file its application to the DPCC and its case would be considered by W. P. (C) No. 54312008 batch

• the CMC on 30t1 September 2008 The above decision of the CMC wa3)

communicated to The Petitioner on 9t1 September 2008 asking it to file an application for consent to establish. This is the decision which has been challenged in the writ petition.

¶90For the .reasons already stated hereinbefore, the impugned. order dated 9th September 2008 passed by the DPCC .is unsustainable in law and is hereby set aside. It would nevertheless be open to the DPCC to now proceed in accordance with Section 25(5) of the Water Act ançl other lelevant provisions of the Air Act but only after complying with the due S process requirements under the Rules. If . after making its own enquiry/investigations into ihe matter if it finds that the use of the premises is causing either water or air pollution, and the colTective action is not taken within the time limit set for the purpose, it can proceed further to issue directions . as envisaged under Section 31 A Air Act and Section 33A Water Act The writ petition is disposed of with the above directions. . . . . .. •. . ... . ..,.. W.P. (C) No. 3815 of 2008 (Vardhman Properties Ltd)

¶91The buildingih question has a total built up area 4735.62 sq.rn.i and is on a commercial plot. The construction of the building commenbed on 27 November 2003 and was completed on 2nd December 2004. A show ëause notice was issued on 241hi April 2008 requiring PetitionertO apply for consent to establish.. It was at this stage that the present writ petition was filed challenging the said show cause notice. An interim order was W.P. (C) No. 54312008 batch . . . . . passed by this Court on 191h May 2008 directing the Respondent not S take coei cive action pursuant to the abovernentioned notice dated 24th April 2008. In the reply filed to the petition, a reference is niade by the DPCC to. the Petitioner's response dated 6th May 2008 to the show cause notice in which it was mentioned that the DDA has already. issued a completion certificate It appears that the DPCC undertook an inspection of the site on lStJuly 2008 and confiirned that the built uparea was 4735.62 sq.m., and that the completion of the c'dntruction took place on 2 Decernhcr 2004. . The inspection team was also informed that the buildilig was. under occupation since 1 8t April 2005 and the occupancy was to the extent of 50 to 60 persons. There was oneDG set of 140 KVA along with two more DG sets located at the terrace, there was, no information about their KVA. Sewage connection was 'available and the estimated waste water generation was 11.2 KLD. It was jnforrned that the CMC was yet to take any decision on the said report. . . This Court finds that the built up area being 4735.62 sq.rn., thre was no question of the Petitioner .having to obtain an EIA clearance in terffis of the EIA Notification dated 14th September . 2006. The constuction having already been completed on 2 nd December 2004, the direction to the Petitioner to apply for consent to establish which had to happen.prior to commencement of construction was incapable of being complied with. W.P. (C) No. 54312008 batch. . The irnpuied ordersi dated 24' April 2008 of the DPCC are unsustainable in law and are hereby set aside. It would nevertheless be open to the DPCC to now proceed in accordance with Section 25(5) of the Water Act and other relevant provisions of the Air Act but only after complying with the due process requirements uiider the Rules. If after making its own enquiry/investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is not taken within the time limit set for the purpose, it can proceed further to issue directions as envisaged under SectiOn 31 A Air Act and SectiOn 33A Watr Act. Th.writ petition is disposed of with • the above directions. W.P. (C) No. 8143 .of 2008 (Manish Buildwell Pvt. Ltd). The total built up area of the commerciaj complex. in the present petition is 2160 sq.m. Constuction of the building commenced soipetimé in May 2007 and was completed in May 2008. A show cause notice was thereafter issued on 6th.June 2008. On 16 1h October 2008, a directi9n was issued by the DPCC requiring the Petitioner to apply for consent to

establish. This is, identically worded as the direction issued by the DPCC on 10th September. 2008 in Writ Petition (C) No. 7081 of 2008. For the reasons already explained hereinbefore, the dirctions contained in the order dated 10th Septembei 2008 and 16th Octobei 200 passed by the DPCC are.ünsustainable in law and are hereby 'set aside. it. • would nevertheless be open to the DPCC to now proceed in accordance W.P. (C) No. 54312008 batch . ' 1C at its meeting on 7h1 Qctober 2008 askingthe. Petitioner to apply fr ;ent to establish and also give para wise reply to the obserVatioi made he special inspecting team on the inspection that was carried out on ;eptember 2008.

For reasons already mentioned, the direction to the Petitioner to apply consent to establish is now incapable of being complied with much as construction was already completed on 14th September 2007. not clear if the dueprocess, requirement of a prior show causenotice complied with by the DPCC before issuance of the above direction. ile setting aside the impugned order dated 24th October 2008, this

(C) No. 54312008 batch with Section 25(5) of the Water Act and other relevant, provisions .0 the Air Act but only after complying with the due process requirements under the Rules. If after making its own enquiry/investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is not taken within the time limit set for the purpose, it can proceed further to issue directions as ervisaged under Section 3 1A Air Act and Section 33A Water Act. The writ petition is disposed of with the above directions. W.P. (C) No. 8144 of 2008 (Vardh man .Propertis Ltd.)

¶97The total built up area of the commercial complex constructed on a commercial plot in the present petition isl8,250 sq.rn. Construction of the building was completed on 14th September 2007. An order was passed On 24th October 2008 by the DPCC in terms of the decision of the Court leaves it open to the DPCC to initiate appropriate proceedings in accordance with Section. 25(5) of the Water Act and other relevant provisions of the 'Air Act but only after complying with the due process requirements• under the Rules. If after making its own enquiry/ investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is not taken within the time limit set for the purpose, it can proceed further to issue directions as envisaged under Section 3 lA Air .Act and Sectin 3 3 A Watr Act. The wit petition is disposed of with the above directioPs. W.P..(C)No. 8145 of2OO8 (Sachdeva Buildc,on Pvt. Ltd.) The total built up area of the commercial shopping complex constructed on a commercial plot in the present petition is 2407.7 sqm. Construction of the building commenced sometime in January 2005 and was completed in May 2006. It appears that on 281h April 2008 and 29th1 May 2008 the DPCC' passed orders directing the Petitioner to apply for consent to establish. ' For the reasons already explained hereinbefore, this Court fines that the impugned directions are unsustainable in law and are hereby set aside. It would nevertheless be open to the DPCC to now proceed in accordance with Section 2 5(5) of the Water Act and other relevant provisions of the Air Act but only after complying with the due process requirements under the Rules. If aftef making its own enquiry/ investigations into the matter if it finds that the use of the premises is W.P. (C) No. 54312008 batch ' ' causing either water or air pollution, and the corrective action is not taken within .the time limit set: for the purpose, it can proceed further to issue directions as envisaged under Section 3 1A Air Act and Section 33A Water Act. The writ petition is disposed ofwith the above directions. W.P. (C) No. 8146 of 2008 (Rajesh Projects India Pvt. Ltd.) The total built up area of the buildiug constructed on a comiierci1 plot in the present petition is 5000 sq.m.(approx). Construction of the building commenced on 51h July 2005 and cothpleted in April 2007. A • show cause notice was issued on 241h April 2008 and a direction was • issued on 41h November 2008 asking the Petitioner to apply for consent to • establish. For the reasons already exp1aind hereinbefore, this Court finds that the impugned directions are unsustainable in law and are hereby set aside. It would nevertheless be open' to the DPCC to now proceed in accordance with Section 25(5) of the Water Act and other, relevant provisions of the Air Act but only after complying with the due piocess requirements under the Rules. If after making its own enquiry/ investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is nottaken within the time limit set for the purpose, it can proceed further toi issue directions as envisaged under Section 3 A Air Act and Sectior 33A Water Act. The writ petition is disposed of with the above directions. W.P (C) No. 54312008 batch 1~ W P (C) No 8147 of 2008 (Rajesh Projects India Pvt Ltd) The totaL built up area of the shopping mall constructed on, a commercial plot in the present petition is 3990 sqm. ConstructiOn of the building comrnenëed on 27 February 2003 and was completed on 27th July 2006. A show cause notice was issued on 24th April 2008 and A . direction was issued on :41h November 2008 asking the Petitioner to apply for consent to establish. Forthe reasons already explained hereinbefore, this Court fids that the impugned directions are . unsustainable in law and are hereby set aside. It would nevertheless be open to the DPCC to now proceed in accordance with Section. 25(5) of the Water Act and other relevant provisions of the Air Act but only acer cOmplying with the due rcess requirements under the Rules. If after making its own ehquiry/ investigations into the matter if it finds that the use of the premises is causing either water Or air pollution, and the corrective action is not taken within the time limit, set for the purpose, it can proceed further to issue directions as envisaged under Section 3 1A Air Act and Sectioh 33A Water Act. The writ petition is disposed of withthe above directiois. W.P. (C) No. 8148 of 2008 (Manish Buildwell Pvt. Ltd.) The total built up area of the building constructed on a comercia1 plot in the present petition is 8485.75 sq.rn. Construction of the bu1ding commenced on 15thi June 2005 and was completed on 22 May 20Q7. A W.P. (C) No. 54312008 batch . H . show cause notice was issued on 131h February 2008 and a direction J issued asking the Petitioner to.apply for consent to establish.

¶106For the reasons already explained heieinbefore, this Court finds that the impugned directions dated 18th March 2008 and 291h May 20.08 are unsustainable in law and are .hereby set aside. It would nevertheless be open to the DPCC to now proceed in accordance with Section 25(5) of the Water. Act and other relevant provisions of the Air Act but oPl' after complying with the due process requirements under the Rules. If' after making its own enquiry/investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is not taken, within the time limit set for the purpose, it can proceed further to issue directions as envisaged under Section 3 [A Air Act and Section 33A Water Act The wiit petition is disposed of with the above directions. W.P. (C) No. 8149 of 2008 (Fargo Estates Pvt. Ltd.)

¶107The total built, up area of the building constructed on a commercial plot in the present petition is 10,100 sq.rn. Construction of the building commenced on 2 nd May 2004 and was completed sometime in May 2006. A show cause notice was issued on 21 May 2007 and an order was passed on, 31St October 2008 requiring the Petitioner to , pay environmental damages of Z 40 lakhs and furnish bank guarantee of Z 95. lakhs.

W.P. (C) No. 54312008 batch , f The above directions were stayed by this Court by an order dated 17t1'l November 2008. For the reasons already explained hereinbefore, the impugned order dated 31St October 2008 cannot be sustained in law and is hereby set aside. It would nevertheless be I open to the DPCC . to now proceed in accordance with Section 25(5) of the Water Act and . other relevant. provisions of the Air Actbut only after complying with the due process requirements under the Rules. If after making its own equiry/ investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective action is not taken within the time limit set for the purpose, it Can proceed further, to issue directions as envisaged under Section 3 1A Air Act and Section 33A Water Act The writ petition is disposed of with the above dii ections It will however not be open to the DPCC to levy any environmental darnges or requiring the Petitioner to, furnish any bank guarantee 'for non-compliance with the provisions of either Acts. The writ petition is disposed of with the.above directions. . W.P.(C) No. 9040 of 2008 (Home Linkers Pvt. Ltd.) The total built .up 'area, of the building constructed on a commercial plot in the present petition is 3,526.83 sq.m. Construction of the building commenced on 1 1th November 2004 and was coipleted on 7th June 200. A show cause notice was issued on 14 February 2008 and orders were ,W.P. (C) No. 54312008 batch . . , . '. passed on 1 8 March 2008 and 19th September 2008 requiring th Petitioner to apply for consent to establish. For the reasons: already explained herèinbefore, the impugned ordrs dated 181h March 2008 and 19th September 2008 cannot be sustained in. law and are hereby set aside. It wOuld nevertheless be open to the DPC to now proceed in accordance with Section 25(5) of the Water At and other relevant provisions of the Air Act but only after complying with the due process requirements under the Rules. If after making jts own enquiry/investigations into the matter if it finds that the use of the premises is causing either water or air pollution, and the corrective actiop is not, taken within the time limit set for the purpose, it can jDrocee1 further to issue directions as envisaged under Section 31 A Air Act and Section 33A Water Act. The writ petition is disposed of with the abovb directions W P (C) No 464 of 2009 (Vardhman Land Developers Pvt Ltd) The Petitioner purchased a commercial plot measuring 51 1 sq.mL in Raja Garden, New Delhi in an open auction held by the MCD on 6 May 2002 and a peetua1 lease deed was executed and building plan were sanctioned by the DDA on 241h March 2004 A cornpletiui St certificate was issued on 31 January 2005. . .. 114 The Petitioners pointed out that although they did not considei it necessary to apply for consent to establish, they nevertheless did apply on W.P. (C) No. 54312008 batch _____ . ... .... . 22 November 2007 with the DPCC. A show cause notice was issued on 5th December 2007 which was replied to on 131h December 2007 informing the DPCC that the application seeking 'consent to establish 1 ' was already pending No reply was received from the DPCC The DPCC again sent a notice dated 141h March 2008 requiiing the Petitioner tp submit environmental clearance, approved architectural drawings a.nd th completion cethficate Thereafter the DPCC sent a letter dated 26 " May

2008 informing the Petitioner that its case was being placed befoie the

CMC. 115 At its meeting on 2l't August 2008, the CMC took note of the fact that the total project cost is! 44.14 crores and that in similar caes th CMC has levied damages of l°o of the 'project cost and 2% of the project

cost for bank guarantee which in the present case worked Qut to ddmage as cash penalty of! 44 lakhs and bank guarantee of! 88 1alds 1 aforesaid damages as cash penalty and bank guarantee valid for thi years was asked to be furnished by 17th September 2008. The Pettioner / I then made a representation which was again considered by the CMC in its meeting held on 7 th October 2008. The CMC now reduced the penalty amount to! 40 lakhs and bank guarantee amount to! 85 lakhs and asked the unit to comply with the directions of 6th July2008.

¶116It was at that. stage that the Petitioner filed the present writ pétitioni in which by an oider dated 27th January 2009 an interim oider was passed W. P. (C) No. 543/2008 batch ----.--.-..-.---.--.----- -,...- . .. restraining the Respondents from taking any coercive action against the Petitioner. As explained hereinbefore, the DPCC had no power to require the Petitioner to pay environmental damages or to furnish bank guarantee and, therefore, the impugned direction is wholly unsustainable in th.w and is hereby set aside. If indeed the Petitioner had already filed an • appliëation for consent to establish n 22 November 2007, then in the absence of any reply thereto by the DPCC in terms of Section 2(7) of the Water Act such consent is deemed to have been granted. . F. This will, in any event, not preclude the DPCC from taking action against the Petitioner after an inspection undertaken by it of the premises hereafter. If the Petitioner or any one in occupation of the building in question is found to be. acting in violation of the piovisions of either the Water Act or the Air Act, the DPCC can proceed to take action but only after following the due process of law as envisaged by the Rules. The .

writ petition is disposed of with the above.directions. W.P. (C) No. 543 of 2008 (Splendor Landbase Ltd.) The property in question is an office complex-curn-shopping mail on Plot No.3, District Centre, Jasola, New. Delhi known as Splendor Forum. The area of the plot is about 5704 sq. m. It was purchased from the Delhi Development Authority for commercial purposes in an Qpen auction. The Petitioner' states that all the necessary permissions from all W.P. (C) No. 54312008 batch authorities concerned including /the municipalitie, electricity. dejrtment,. Chief Fire Officer, Delhi Urban. Art Commission, and Aiiort Authority of India were taken. The construction Of the building started in Mardi 2004 and the construction up to the plinth level was completed in December 2005. The ETA Notification dated 71h July 2004 brought within its fold construction activity. The Petitioner states that in terms of the said ETA Notification where, construction was .cornplet& till the plinth level,. no environmental clearance was, necessary. However, since DDA insisted on the Petitioner producing the ETA clearance certificate in oi det to process its case for additions, alterations and modifications, the

Petitioner applied and was granted ETA clearance by. the MoEF on 2 November 2007. . . 120 In iesponse to a notice dated 201h121st August 2007 from the DPCC, the Petitioner applied, for consent to establish under Section 25 (1) (a) of the Water Act on 51h September 2007. A reply to the notice dated 20/2Is1 August 2007 was also sent to the DPCC by the Petitioner. The aforesaid application for consent dated 5th September 2007 was never forina1ly rejected by the DPCC. However, an order dated 3 December 2007 was passed by the DPCC issuing dirëctioñs under Section 3 1 A of the Air Act and Section 33A of the Water Act primarily on the ground that the construction was started and completed without first obtaining consent to establish. It was also alleged that there. were certain violations of the conditions of the ETA clerance 'although according to the Petitioner this was outside the scope Of the powers of the DPCC By the impugned order W.P. () No. 54312008 batch ' . . . —''r''. '' ........- .....--- ---------- .. ....................... '' , dated 31st December 2007,the Petitionei was asked to pay fine ai furnish a bank guarantee. The Petitioner, submits that said order was passed without complying with the principles of natural justice and v.'as contrary to the procedure under the Rules. The.premises was inspected by.. MoEF. It 'is stated that in its' report dated 5th May 2009 the M0EF recorded that there has: been satisfactory compliance of most of,.the conditions laid down in the ETA . clearance. It was conclUded that the commencement of construction by the Petitioner in March 2004 1 could not be treated as a violation of the EPA. Hence no legal action was recommended by the MoEF against the Petitioner under the. EPA. The directions issued by the DPCC on 31" December 2007: have been assailed as being ultra ,vires the powers of the DPCC under the Air Act and the Water Act. The said order, is also challenged on the grouhd of non-compliance with the applicable Rules and further that DPCC cannot take action for 'alleged non-compliance with the conditions forming part of the ETA clearance In its counter affidavit. dated 31st January 2008 the DPCC contended that the Petitioner initially did, not apply to the DPCC for prior consents under either the Water Act or the Air Act. It was only after a formal notice was issued to the Petitioner inAugust 2005 that on 5thi Septeniber 2007, the Petitioner applied to the DPCC for consent to establish under the Water Act and consent to operate under the Air Act. According to' the DPCC the Standing counsel ofthe GNCTD advised it that it could not W.P. (C) No. 54312008 batch ' ... :.. •" '......................... '.7 initiate actions udder Sections 15, 16 and '19 of the. EPA. An inspection was carried out' in the premises on 23rd December. 2007 and the deficiencies noted . at that time have been listed out . in the counter affidavit. The conditions imposed by the amended clearance dated 10 th February 2007 and the status of compliance was also set out in dtai1 in the countei affithtvit. It is stated, that the CMC at its meeting on ,261 December 2007 and 281h December 2007 deliberated upon the 'matter considering the facts and circumstances including the representation dated 271h December 2007 made by the Petitioner. Thereaftr the impugned order dated 3 1St December 2007 was passed under Section 3 IA of the Air Act and Section 33A of the Water Aát asking the'PetitiOnerto pay 0.5% of the project costof Z 65 crores as fine, which was required to. be deposited in the DPCC's account within 30 days. The DPCC's stànd'.is that "any smaller amount of fine will only mean. that a non-desrving Petitioner with no bohafides of commitment to preserving clean. air and water in his environment, would'not work towards a correction. Surely environment deserves 1/2 %of his total project cost to rnake.him realize the degree of his callousness." A detailed parawise reply to the writ petition has also been given by the DPCC.

123..In its rejoinder filed on 61h Febmaty 2008,.'the Petitioner pointed out that it had in fact obtained EIA clearance.' A reference was made tè the website' of the DPCC where under the 'caption frequently aked questions' under the sub-heading 'consent procedure' the fo11o\'ing questions and answers appear:'

"Q. I am involved in trading activity Do I need to apply for W.P. (C) No. 54312008 batch' , . , , 'P1age 76 of 122 'S coi'zsent?. . .. Ans. At present, consents are not required for enterprises engagM only in trading activities. Q. I have an office and have installed a D. G. Set. Do I need to tike consent from DPCC? Ans. DPCC does not issue consent for offices. For D. G. Sets ybu are required to install acoustic enclosure meeting the prescribd norms/standards for noise for D. G. Sets."

¶124It is painted out that, it is only by the athendment with effect from Ith

July 2004 that construction activity came to be added to the ETA Notification and again it was clarified that such amcndrnenl would not apply to "any construction project falling under entry 31 of Schedule,l including . new townships, 'industrial townships, settlement cp1onie, commercial complexes, hotel complexes, hospitals and office cornp1exs for 1,000 (one thousand) persons or below Or discharging seage of 50,000 (fifty thousand) litres per day or below or with an investii-ie'nt of Rs. . 50,00,000/- (Rupees Fifty Lakhs) or 'below." The Petitioner proceeded on the assumption that the term 'investment' in the said Notification would include the amount invested in constructidn an raising the super-structure and since that was around Z. 34 crores, no ETA' clearance was required Thereafter when a further. modified HI" Notification was issued on 14th September 2006, the Petitioner applied to the MoEF for EIA clearance on 121h March 2007. Time was granted by a Circular dated 21st November 2006 of the Central Government up to.3.0 U1) June 2007 for applying for EIA clearance. 125 It is not the submission of learned counsel for the Petitioner that there is any repugnancy between the EPA and the Air Act and the Water W.P. (C) No. 54312008 batch . ' Act On the other hand, it is not denied that the EPA would apply an ' that in the Petitioner's case, the EIA clearance would have to be obtained. What is contended is that once ETA. clearance has been obtained, there is no occasion to again apply to the DPCC under the Air Act and the Watei Act for consent to operate and con,ent to establish respectively. F.urtherL. it is submitted that there are many aspects of the ETA clearance' whicl include water and air pollution ahd, therefóre, the exercise would becorn repetitive and cumbersome Thirdly, it is sought to be contended that the • jurisdiction as regards the ETA clearance is of the Central Goveinrnent • and not .of the DPCC particularly with reference to the National Capital! Territory of Delhi. . . . . . The stand of the Respondents, on the other hand, is. that cbnsent under the Air Act and the Water Act are independent of the ETA clearance and that . although the DPCC may have no jurisdictin as regards the ETA clearance, to the extent that, such ETA clearance itself mandates that the person in whose favour such clearance has been granted has to obtain consent under.the Air Act and the Water Act, th e

DPCC's jurisdiction will stand attracted It is furthei submitted that the parameters that would weigh with the.DPCC in processing an applicution for consent under the Air Act and the Water Act might be different from those which would weigh with the MoEF in granting HA clearance.. ' This Court. has considered the above submissions. In view of the built up area of the building being over 20,000 sq.m., an ETA clearance is mandatory. For the reasons already' discussed, it must be hld thatL the W.P. (C) No. 54312008 batch • . '. ' .. ' • . , ' requement of obtaining consent to establish under the Watei Act and n consent to operate under . the Air Act is independent of the EIA clearance obtained in respect of the Petitioner' s shopping complex or shopping mall. But this requirement would have applied at the stage when construction had not commenced. -

¶128However, in this case atthe time whenthe Petitioner app1ied for an obtained the EIA clearance, the construction of. the buildiig was complete. There was no show cause notice issued to it by the DPQC from the time it commenced construction sometime in March 2004 till it completed its construction in December 2005. C1early, the DPCC woke up very late. The first.show cause notice was issued sometime in August 2007. Even then the show cause notice was issued to MIs.. G.S. Developers. & Contractors Pvt. Ltd. who were only contractors whereas' the whole shopping 'complex was built by the. Petitioner. Be that, as it may, for the reasons already discussed the course open to the DPC IC was to invoke Section 25(5) of the Water Act to require the Petitioier to rectify any deficiency that must have been noticed on the inspection of the premises. Even under the Air .Act, there is no qustion 61 now requiring the Petitioner to apply for 'prior coPsent to .operaë' sine the construction of the building is already complete.

129.., There are enough provisions in both the Air Act and the Water Act to deal with a situation where without obtaining prior consent a building been constructed and has become functional. As already pointed out the, action under Section 31A of the Air Act and Section 33A of the Water W.P. (C) No. 54312008 batch ' ~7 _ Act will have to be exercised reasonably after complying with the rules envisaged under both these Acts. The exercise should not be. a mechanical one. Since this is a building which has been granted EIA clearance, the DPCC should find out first whether there are other aspects, not covered by the EIA clearance that require to be rectified by the Petitioner bo.th under the Water as well as the Air Act. In other words,. the exercise to be undertaken by the DPC.0 ought not to be repetitive of the exercise undertaken by the MoEF while granting ETA clearanc. • 130. Thirdly, there is no legal ,basis for the DPCC to impose pehlty and environmental darnages on the Petitioner or require it• to furnish a bank guarantee. For the reasons already discussed such orders are plainly outside the powers of the DPCC under the Water Act and the Air Act and • cannot be sustained in law. • 131. The DPCC has relied upon an order dated 14111 October 2003 jassed : • by the Supreme Court in Writ Petition (C) No. 657 of 1995 (Reearch: • Foundation for Science Technology and National Resource Policy v. Union of India) where inpara 70.6 an observation was made to the • following effect: •• "MoEF should consider making a provision for bank guarantee being given by importer while seeking permission to import used oil, furnace oil and zinc wastes to be released only • on the imported consignment being found to be in conformity with the declared item of import. After taking a decision,• affidavit shall be filed within four weeks". W. P. (C) No. 54312008 batch • 132 The above observation of the Supreme Court does not by any means implythat an SPCB like theDPCC can begin to levy penaltis áidfides and environmental damages or require bank guarantees to be furnished in exeréise of Its powers under Section 31A of the Air Act and Section 3A of the Water Act. The above contention is accordingly rej ecte1. 133 Reliance has been placed by the DPCC on an order dated 17th October 2006 passed by the 'Suprenie Court in the Vasant Kunj Ride matters The above order was passed in an application filed seeking S acceptance of the report of the Expert Committee relating to violation of • environmental norms by certain parties who had constructed shopping malls or hotel complexes in the Vasant Kunj Ridge area. Aiter referri4g • to the earlier orders dated 19th August 1997 and 8th March 2004, the Supreme Court observed "that the parties were not aware that they had, to • take EIA clearance in terms of the amended EIA Notification dated July 2004 It was then observed as under S "The confusion arose because DDA all through all through gave an impression to the parties participating in auction that all requisie clearances had been obtained. Had such parties inkling of an id,a • that such clearances were not obtained by DDA, they would not have invested such huge sums of money. The stand that wierevr constructions have been made unauthorisedly demolition is th only option cannot apply to the present cases, more partiularly, when they unlike, where some private indjviduals or privat • , limited companies or firms being allotted to have rnade contraventions, are corporate bodies and institutions and the question of their haviiig indulged in any malpractice's in getting the

W.P. (C) No. 54312008 batch • • approval or sanction does not .rise. Some of the 11ottees are the Natioia1 Book Trust, School: of Planning or Architecture,. Shri Ram Vithala Sikha Seva Samiti, International Centre for Alternate Dispute Resolution and Institute for Studies and Industrial Development. In most of these cases the constructions are already complete and have become functional." Consequently, the following directions were issued: "10. In view ofwhat has been stated above, the MoEF 1as now to take a decision by taking the land as constraint area it is needless to say that even if the land is held to be constraint area the constructions thereon have to be made after having the, requisite . clearance. The MoEF shall take note of the stands projected by the Respondents. We are pritha facie satisfied about the bonafides of the Respondents but at the same time it needs no emphasis that DDA should have been more transparent in ensuring that it was not putting a site for auction where there was scope -for litigation. It had definitely created an impression that all necessary clearances had been obtained, though it does not appear .to be so. What . remains to be decided as to what remedial measures including imposition of such amounts as costs can be taken". The position as far as the present set of cases is concerned, is not very different. The DPCC appears to have woken up after the construction of the shopping-curn-comrneri.a1 complexes/malls as completed. Therefore as far as the present cases are col2cemed, the abve orders do not come to the aid of the DPCC for seeking to proceed against the Petitioner for failing to obtain prior consent to operate under the Air W.P. (C) No. 54312008 batch Act and prior consent to operate under the Water Act As already clarified, this would not preclude the DPCC from proceeding undei the Air Act and Water Act in the manner already discussed hereinbefore. 136 The understanding of the law by the DPCC as reflected on its website should not be taken to be determinative. There is no estoppel against law. The position depicted by the DPCC on its website will be obviously subject to and in consonance with the correct legal pOsiion. • . There has been a lack of clarity even: within the DPCC on whethet the • provisions . of the Water . . Act and the Air Act apply to constru4tion activity. Hopftil1y that ôonfusion should not remain any longer. 137 For the aforementioned reasons, this Court while setting aside the • . order dated 31 s' December 2007 passed. by the DPCC permits. i to proceed in accordance with law against the Petitioner in terms of Setion 2 5(5) of the Water Act and the relevant provisions of the Air Act.. .

¶138A pOint has been urged .by the Petitioner that subtantia1 portions of the complex have been sold/leased out to different persons and, therepre • the complex is no longer in the control of the'Petitione.r. As and whn a, fresh show cause notice is issued to the Petitioner by the DPCC, it will be open to the Petitioner to furnish to the DPCC the names of the individual owners of the different portions who might be liable to the extent, of their respective portIons. This .by no means will absolve the Petitioner • oil its liability which is joint and several with such individual owners/lessees,M It will be for the DPCC. to deide who should be made liable for complyirig W.P. (C) No. 543/2008 batch . . . . Page 83 of 122,. with the various provisions under the Water Act and the Air Act

139..The writ petition is accordingly disposed of with the above directions. W.P.. (C) No. 3095 of 2008 (DLF Ltd.).

¶1401 The case of the Petitioner is 'that a plot of land admeasuring. 1565 9.50 sq.rn. situated at District Centre, Saket, New Delhi with an attached general ,parking plot admeasuring 14072.48 sq. rn, was purchased in an auctioii from DDA to be used as retail/office/rnultip1exA; service apartment pUrposes. Although according to the Petitioner no formal consent was requird, to avoid any hyper-technical objection and impediment at a later stage and without prejudice to its rights, thL Petitioner applied to the DPCC for consent to establish under the Water Act.and consent to operate under the Air Act on June 2005. The first • of the applications .has not tilidate been formally rejeêted and thus sha]1 be deemed to have been granted on 2nd October 2005 in terms of Section 25 (7) Water Act. . • 1.41. The Petitioner applied on 2 December 2005 seeking EIA clearance • . under the EIA Notification as amended on 7th July 2004. As pei the requirement of the said Notification, ano objection certificate and piibliC hearing Was to be afforded by the public hearing panel of which the representative of the DPCC was a member. 142 The Petitioner states that all necessary permissions for W.P. (C) No. 54312008 batch commencement of construction including those from the. MCD, Fire v1 Department,. Electricity Department, Airport Authority. of India and Delhi . • Urban Arts CommIssion were taken. The MoEF granted ETA clearance to the Petitioner on 151h January 2007 DPCC wrote to the Petitioner on and 30th August, 2007 that the earlier application filed by it for conscnt June 2005 has been forwarded to the Government of India and that it should file a fresh application 143 A fresh application for consent to establish was filed by the Petitioner with the DPCC on 251h1261 September, 2007. .The said 1~ application was not disposed of or rejected within a period of four H months thereafter. Thus conset.was deemed to have been granted on 25th January 2008 in tes of Section 25 (7) Water Act. Neverthe1ess, the DPCC issued the impugned otder dated 41h April 2008 and directed the Petitioner to pay fine and furnish a bank guarantee This has been challenged in the present writ petition. . • 144. The stand of the DPCC is no different from its stand in.WP.(C)N.o. 543 of 2008 (SplendorLandbase).

¶145For the .reasons already discussed, the need for the Petitionet to apply under the Air Act and the Water Act did not get obviated on account of the fact that it had an environmental clearance Howevei, hLI C the construction was already complete 50% of the construction was complete by end of 200 6. and no show cause notice was issued to the H Petitioner An order was straightway passed requiring the Petitione to W P. (C) No 54312008 batch pupp- / pay penalty and furnish a bank guarantee Such a dnection is, for rcaons already stated, ultra vires the powers of the DPCC under the Water Act and the Air Act and is unsustainable in law. 146 For the aforementioned reasons, the impugned ordei dated 4th Apul 2008 is set aside. It would nevertheless be open to the PPCC to now proceed in acëordance with Section 25(5) of the .Water Acf, and other relevant provisions of the Air Act but only after complying with th o due process requirements under the Rules. If after making its ovn enqÜiry/ investigations into the matter, it finds that the use of the prernis4s is causing either water Or air pollution, and the corrective action. is not tl en within the time limit set for the purpose, it can proceed further to i'suc duections as envisaged under Section 3 1A An Act and Seclion 3 3i\ •Water Act. The wit petition is disposed of with the above direefions. W.P. (C) No 4319 of 2008 (DLFLtd)

¶147The Petitioner is the owner of a residential plot at WBlock, Gre.tr Kailash-Il, New Delhi It purchased the ploçcl ly horn a pna1c indiiidual in terms of Sale Deed dated 3 1 March 1959 The Petitioc piopc'sed to construct a re3ldentlal housing complex The Peiitioner fih c an apphcation on 231 Februaiy 2007 with,the'MoEF for EJA cic1aranL. i. which v as granted on 26th December 2007 Wjihout piejudiec to its rights the Petitioner applied to DP€C foi consent to establsh on March 2.0(57. The application remained, pending and was not reicted 'bc over, -four months thereafter. Consequently consent to establish was WP (c No. .543/2008 batch S deemed to have been granted on 71h July 2007 in terms of Section 25 (7) WaterAct. 148 The Petitioner had not started the construction till the filing of this petition. Reminders dated 12th March 2008, 27th March 2008, 10 April 2008 and 16th, May 2008 ere sent to DPCC but to no effect. pPC . wrote to the Petitioner on P April 2008 seeking to take action against thei Petitioner for not taking the prior consent before cornrnencemnt of construction. By lettets dated 20th and: 3Qth August 007, the DPCC wrote to the Petitioner asking, him to apply afresh as .the. èarlier [ application had been forwarded to Central Government. 'During the 1 coursev of hearing in Other cases of group companies, it was explained that the project is for residential group housing and not for tiade commercial Or industrial purp.oses; environment clearance had i been. grante4 and there was a deemed consent in view, of the fact that their application dated 8th March 2007 was not rejected for over four rnnths thereafter. . . . . Feeling aggrieved by the threatened action of the Respondent, inter alia, of closure, imposition of penalty and bank guarantee, the Petit'oner filed the present petition. It is further pointed out that during the prsent petitiOn the DPCC has granted. consent to establish. There is no denily the DPCC. of the, aboVe assertions by the Petitioner. . Even if the building had an ETA clearance, the provisions of the Water .Act would continue to apply for the reasons already explained by W.P. (C) No. 54312008 batch , , . S . this Court hereinbefore ' However, considering that it is a residential H ' • complex the Petitioner was not required to obtain consent under the .Air Act The Petitioner has already been granted EIA clearance on September 2007 The order passed by the DPCC directing the Petitioner to apply for consent to establish does, not survive sinpe consent to

• establish has been granted to the Ptiioner. Any violations of either th Water Act or Air Act detected hereafter by the DPCC will obviosly be • actionable but only after the DPCC follow the due process requirement of the law. 151 The writ petition is disposed of W.P. (C) No. 4321 of 2008 (Paliwal Developers Ltd.)

¶152The Petitioner purchased a plot of land admeasuring abQut 5495 sq m situated at Mayur Vihar Phase-I Extension, Delhi in an open auction from the DDA for constructing a shopping complex Accoding to the Petitioner, since the built up area proposed was 12325 sq m no H environment clearance was considered necessary. All the necessary permissions for construction were granted by the MCD and' other authorities On 5th September 2006, an application for consent to establish was filed with the DPCC. The application remained peiding and was not rejected for over four months thereafter. The Petitionei 's case is that consent to establish should be deemed to have been granted on 4th January 2007.' Reminders were sent on 12th March2008, 27t March 2008, 10th April 2008 and 16th May 2008 to 'avoid any difficuiy at i. nd a later stae but to no effect. DPCC 1 wrote, to the Petitioner on W.P. (C) No. 54312008 batch ' Novernber 2007, 14th March 20008 and 21st April 2008 for taking~~ ion

• for not taking prior , cOnsent to establish and prior environthent clearances The Petitioner replied to these letters The DPCC by lettet s dated and 30th August 2007 asked the Petitioner to apply afresh as Its earlier application dated 5th September 2006 had been set to the Cntrai Government Another application for consent to establish was filed by the Petitioner with the DPCC on 8" February 2007 This wasl also not • diposéd of within four months. Consequently the Petitioner contends that for a second time consent to establish should be deemed to hve been • granted on 7th June 2007. After about one year of the filing of the second S application, the DPCC asked the Petitioner to file an affidavit compliance, which was complied with It was explained that no environrneflt clearaflce was necessary as the built up area' was 1ss than • • 20,000 sq.m. In any event consent to establish should be dèemedto have been granted Yet, the DPCC insisted and threatened to take legl action - including levying a penalty, asking for• a bank guarantee and 9rdering closure In the circumstances, the Wesent writ petition was filed ... .. , •

¶153The DPCC has not denied the above contentions of the Petitiner. In particular , there is no denial of the assertion that the applicaton foi consent to establish filed by the Petitioner on 5th Septembe+ 2006 should be deemed to have been granted on 4 January 2007. Ihetefore, in ths case even the proceedings under Section 25(5) of the Watr Act cannot be initiated by the DPCC This will, in any event, not preclude theDPCC from taking any action against the Petitioner . Upon any inspection taken hereinafter, if the Petitioner or any one in occupation of thp building in

Pa e89 of 122 W.P. (C) No. 54312008 batch: • '; • •g C~ question is found acting in violation of the provisions of either the ater Act or the Air Act. Such action will of course be taken only aiter due process of law as eni/isaged by the RUles. The impugnedorders passed by the DPCC on 2nd Noembr 2007, 14th March 2008, and 21 st.April 2008 directing the Petitioner to. apply for consent to establish are hereby set aside The writ petition is disposed of with the above directions. . . . . W.P. (C) No. 4322 of 2008 (DLF. Ltd.) . . . . . The Petitioner .states that it is the owner of a residental plot . at E Block, Greater Kailash-Il, New Delhi having purchased the arne rom a private individual in terms of Sale Deed for the purpose of bonstriction of a residential complex. According to the inspection report. dated 2 June 2008, the total built up area is 14,246.918 sq.rn. As sucL no environment clearance was necessary under EIA . NotifiCationI All necessary permissions to construct a residential housing complex iwere granted on 22 nd August 2007. Before commencement of constuctiori, the • . . Petitioner filed an application dated 14 th May 2007 with the DCC, complete in all respects, seeking consent to establish. The 1 said application was not rejected for over four months theiafter. iThe Petitioner submits that in the circumstances, in terms of Section 2 5 , (7) Water. Act, consent to establish shall be deemed to have been grantel on l3 th September 2007 However, to avoid any difficulty at a latei stage, • rethinders were sent to the DPCC by the Petitioner on 12th March 2008, 27t1 March 2008, 10th April 2008 and 16th May 2008 The DPCC W.P. (C) No. 54312008 batch . . Page 9,0 of 122 threatened to take action against the Ptitioner by its leers .. dated March 2008 and 2 ,Mai 2008 for not taking prior consent and prior enviromnent clearance. The Petitioner explained the entire position to the Respondent. By-letters dated 20th and 301 August 2007, the DPCC. asked the Petitioner to apply afresh as its earlier applications had been forwarded to the Central Government. During the course of hearing before the CMC, it was explained that the project was for residential group housing and not for trade, commercial or industrial purposes; no • environment clearance was necssary and• consent to establish hould he • deemed to have been grantd since the Petitioner's application.dated 14thl S . May 2007 for ôonsent to establish had not been rejected even four months thereafter. Feeling aggrieved by the threatened action of the DPCC of directing closure, imposition of penalty . nd requiring the furnishing of bank guarantee, the present petition was filed..

156.. The facts of this ëae are no different from the facts in W.P(C) No. 4319 of 2008 except that the construction commenced 5th March 2008 : • and the construction was proposed to be conipleted in 3 years fforri the date of its commencement. Further, the total built up area is 14,246.91 8 sq.m. and, therefore, there was no requirement for obtaining EIA clearance. The DPCC is not disputing that the Petitioner had qied an application on 141h May 2007 which was not disposed of within four •ionths thereafter. In terms of Section 25(7) of the Water Act, threfore, the consent to establish must be deemed to have been granted. This bing a residential complex, there was no need. to obtain conent to operate under the Air Act. . W.P. No. 54312008 batch • . . . Aj

¶157Cons eqently, the iiñpugned orders dated 2 November 2007, 3 March 2008 and 2 May 2008 passed by the DPCC directing the Petitioner to apply to the DPCC for consent to establish are hereby set aside. This will, in any event, not preclude the DPCC from taking any action against the Petitioner upon any inspection taken hereinafter, if thc Petitioner or any one in occupation of the building in question is fo 4und acting in violation of the provisions of either the Water Act or the Air Act. Such action will of course be taken only after following due process of law as envisaged by the Rules. The writ petition is disposed of with the above directions. . S W.P.(C) No. 4323 of 2008 (DLF Retailer.Developers Ltd.). 158 The Petitioner purchased two plots of land bearing No A-i and 2B Saket Place, New Delhi admeasurmg about 9492 sq rn and 8775 sq.m. respectively from the DDA in an open auction for the purpose shopping-cum-commercial complex. BIA clearance was grante'd on 1 January 2007 According to the Petitioner, all necessary permissiois from the MCD and other authOrities were granted in November 2006. St Jme 2006, the Petitioner applied to DPCC for consent to establish The application remained pending and was not .rejected for over 'foLir months thereafter. The Petitioner's case is that consent, to establish is deemed to have been granted on .30th September 2006. However, to avoiE any difficulty at a later stage, reminders were sent by the Petitioner to th DPCC in March/April 2008 but to no avail During the couise of heaiing concerning 'other projects of the group companies, it was explained to th.. CMC that EIA clearance had been granted and that consent to .estab1ish W. P. (C) No. 54312008 batch ' . should be deemed to have been granted By its letters 1dated 20th and ~~`V August 2007 DPCC asked the Petitioner to apply a fresh for 'consent to establish as its earlier application had been forwarded to the Central. Government. A fresh application for consent to establish was flied by the Petitioner with the DPCC on 25th September 2007. This too was not rejected for over four months thereafter. According to the Petitioner, for a second time consent to establish should be deemed to have beeh graned • on 241h1.January 2008. On one of the yisits. to the office of the Resp.ondnt, the Petitioner was directed to file the affidavit of compliance. This was done by the Petitioner. Nevertheless, the DPCC threatened to take actibn. • against the Petitioner by ordering closure, imposing a penalty and/or requiring the furnishing of a bank guarantee on the ground 'that the • Petitioner had commenced construction without prior consent to 6stabli.sh. and without prior EIA clearance In the circumstances, the preseJiìl petition was filed. '.

¶159The construction commenced in February2007 and was conipletecl in December 2008. The Petitioner obtained EIA clearance on 15t January 2007. The Petitioner applied to the DPCC for connt :tQ establish on 1St June 2006 and there was no decis!on.thereon for over fou months thereafter. The consent to establish should be deemed to ha c been granted under Section 2 5(7) of the Water Act on Sept1e.rnber 2006. The subsequent letters dated 201h and 30t1 August 2007 written. hy the DPCC requiring the Petitioner to apply afresh were without the authority of law.. Nevertheless, even the fresh application filed on 25'

September 2007 for consent was not rejected • within. •four months W.P. (C) No. 54312008 batch • • . • Page 93of22 thereafter. Therefore the Petitioner shoui'd deemed to have been gr)It5I

consent to establish on 24th January 2008 as well.

¶160With the DPCC having failed to act upon the Petitioner's application for consent to establish, there was no legal basis for its orders dated20th1 and 301h August 2007. They are accordingly set aside. This will not preclude the DPCC 'in any event from. taking any action against the Petitionei upon any inspection undertaken hereinafter, if the Petitionei or any, one in occupation of the building in question is found acting in violation of the provisions of either the Water Act or the Air Act Such S action will of course be taken only after followingdue process of law as envisaged by the Rules. The writ petition is disposed of with the above directions. W.P. (C) No. 4330 of 2008 (DLF Commercial Developers Ltd.) 161 The Petitioner purchased a plot of land bearing No 10-11 at Jasoa, New Delhi, admeasuring 12,880 sq m in an open auction held by DD The land was to be used for construction of a commercial and ietthl centre. The total built up area of the propQsed building Was 4703.41 sq.m. the Petitioner was granted EIA clearance on 16th May 2007. rl Petitioner states' that all necessary permissions to construct 'fr'prn the municipal and other autlorities were grailted. On 6 September 2006/1 4 October 2006, the Petitioner a'plied to the DPCC for consent t establish. The application 'was, not rejected for over four onth thereafter and in terms of section 25(7) of the Water Act it was c!,eeme. to have been granted on 13th February 2007 Reminders were sent' by the

W.P.(C) No 54312008 batch '------'-"-'---'.'-'-"-'-''''-."--- .'--".'-''''-'-."-' ' '''''''"-"'".'.'''''--"".'-"..''.'"'' Petitioner to the DPCC in March and April 2008 to avoid any di'fficulfy at a later stage but to no avail. DPCC sent notices dated 18th 'March 2008 and 30th April 2008 and threatened to take action against the Ptitioner for not obtaining prior consent to establish and 'prior environment clearance The Petitioner replied to the DPCC stating that environrne't clearance had been granted and consent to establish should be derned to have been granted. During the course of hearing before the CMC, 'this was reiterated Nevertheless by its letters dated 201h and 30h1 August 2007, the DPCC required the Petitioner to apply afresh, as the earlier application had been forwarded to the Central Government. A . frsh application was filed on 8th February 2007.This toO was not rejected for over four months thereafter. The Petitioner cOntends that for a second time, the Consent to establish should be deemed to have been gianted on th ' ' ' * 7 June 2007. On one 'of the visits to the office of the .DPCC; tne Petitioner was directed to file the affidavit of compliance. This was done. Nevertheless, the DPCC threatened to take action against the Petitiori'ci , . for closure, imposition of penalty and furnishing of bank guarantee on the •, . 'ground that it had commenced construction without obtaining prior - . consent 'to establish and without prior environment c1earance In then circumstances, the present writ petition wasfiled.

¶162The total built up area here is 47603.46 sq.m. The E1A clarance was obtained on 1,6th May 2007. The Petitioner commenced construction sometime in December 2006/January 2007 and completed it in August 2008. The letters receivd by the, Petitioner on 20th August 2007 and 30 111

August 2007 asking it to apply for consent to establish were, in fact, to no W.P. (C) No. 54312008 batch . , '.------.- -----------,.-..-..''.'------.'.'---............. --- .... ---- .........................-... .. / effect since application had been filed earlier on 6thi September 2.006 aid 14t1' December. 2006 which were not rejected within four months thereafter. Again On 8th February 2007 a fresh application was filed. Therefore these two show cause notices were to no effect. The subsquent letters dated 18th March 2008 and 3011 April 2008 asking the Petitioner again to apply were also to no effect. The said two letters are hereby set aside. It is made clear that this will, in any event, notpreclude the DPCC from taking actiOn against the Petitioner if upon any inspection undertaken hereinafter, the Petitioner or any one in ocupation of the building in question is found to be acting in violatior of the provisions of either the Water Act or the Air Act. Such action will be taken only after fol1oing the due process of law as envisaged by the Rules. The writ petition is disposed of with the above directions. W.P. (C) No. 4333 of 2008 (Galleria Property Management Services., Pvt. Ltd.) . .

¶163The Petitioner purchased a plot of land at Shalirnar Bagh, New Delhi admeasuring 14145.040 sq.rn. in an open auction held by the I2DA. The plot of land was to be used for, construction. of a shopping cntre. The Petitioner was granted ETA clearance on. 15th January 2007 All necessary permissions to construct from the municipal and other authorities were granted. On 51hi April 2005, the Petitioner applied to the DPCC for consent to establish. The applicationwas not disposed for ver four months thereafter. According to the Petitioner, consent to establish should be deemed to have been granted in terms of Section 25(7) Water Act on 4th August 2005. The DPCC sent notices dated 14th March 2008 ,W. P. (C) No. 54312008 batch . . Page .96 of 122 _____ ---- .............................. and 9th May 2008 and threatened to take action against the Petitioner\ not obtaining prior consent to establish and prior, environment clearance. The Petitioner replied to the DPCC stating that ETA clearance had been granted and consent to establish should be deeined to have been granted. During the course of hearing before the CMC this was reiterated By its letters dated 20" and 30th August 2007, the DPCC asked the Petitioner to apply afresh for consent to' etablish as its earlier application, had been forwarded to the Central Government A fresh application was filed on 25th September 2007 This too was not rejected for over four months According to. the Petitioner for a second time consent to estabish should • be deemed to have been granted on 24th January 2008. On pne of the visits to the office of the Respondent, the Petitioner was directed'to file an affidavit of compliance, which it did. Nevertheless the DPCC threatened to take action against the Petitioner for closure, irnosition of penalty and furnishing of bank guarantee on the ground that it had not obtained consent to establish prior to commencement of contrction. In the circumstances, the present writ petition was filed •

¶164This shopping complex has a total built up area of 34895.55 sq.m. The Petitioner obtained ETA clearance on 15th January 2007. The letters • received by the Petitioner from the DPCC on .4th March 2008 and 9 th

May 2008 asking him to apply for prior consent is to no effect since the Petitioncr had applied 'as early as 5th April 2005 to DPCC which was not rejected within four months thereafter. A fresh application was riled on 2 5 th September 2007 and that too was not rejected for over four iTlonths thereafter. Thus, for the second time, consent should be deemed to have W.P. (C) No. 54312008 batch Page 97 of, 122 '' S been granted under the Water Act on 24 th January 2008. The orders dated ,14th March 2008 and 91h May 2008 of the DPCC are accordingly set aside. It is made clear that this will not preclude the DPCC from taking action against the Petitioner upon any inspctio.n undertaken hereinafter and if the Petitioner or any one in occupatibn of the building in question is found to be acting in violation of the provisions of either the Water Act or the Air Act. Such actipn will be taken only after following the due process of law as envisaed b the Rules. The.writ petition is disposed of with the above directions. W.P. (C) NO.3905 of 2008 (Regency Park Property Management• Services Pvt. Ltd.). The Petitioner states thatinan auction held on 15th December 2003, the Petitioner purchased a commercial Plot No. 4 in the layout plan of Shopping Mall, Vasant Kunj, New Delhi admeasuring about 15300 ..q. rn. The necessary permissions. from municipal: authorities, E1ctricity, Airport Authority of India, Fire. Services and Delhi Urban A.t Commission were obtained. On 27th April 2005, an app1icaton f61r consent to establish was filed by the Petitioner with the DPCC. Th DPCC was a party to the proceedings before the Supreme Court of Indi, in W.P. (C) .No. 202 of 1995 titled as T.N. Godavarman.Thirumulpad v Union of India. The Supreme Court, by an order dated 20th1 March 2006, took note of the ongoing construction and directed that as a special cac all permissions and clearances in the present case would be dealt with by the Central Government The DPCC was directed to foiward all th W.P. (C) No. 54312008 batch Page98ofl22 1 ........................-- papers to the Cetral Government. The DPCC did so. A public heahg S -was organized to which a Member, DPCC was a party. One of the,. requirements of the public hearing was the grant of a No Objection Certificate by the DPCC, which apparently. was granted or was deemed to have been granted by the DPCC before conducting the public hering. The EIA Notification 1994 as amended on 7th July 2004 was replaced by a Notification dated 14th September 2006 Certain clarificatory Circijdci dated 13th October. 2006 and 21 " November 2006 Were issued by the Central Government permitting the existing projects to contrnue 11'\ clearance was granted by the MoEF on 24t1 November 2006. application for consent.to establish filed by the Petitioner with EPCC 'pn 27th April 2005 remaed pndig. . A reminder was sent by th etitior on 16th1 July 2007 to know the fate of their application. By letters dat4d 20th and 3 oth August 2007, the DPCC directed the PetitiOner to fi l a fresi application for consent as the earlier application had been forwardedt the Central Government. A fresh application for consent to estab1sh waFI filed by the Petitioner on 21st 125th September 2007 but this too was iio rejected within four months. For a second time, the consent to esablish was deemed to have been granted on 24th January 2008. It. was for the first time on 18th March 2008 that the DPCC asked for crtain documents These were supplied The CMC insisted on levying a penalt) on the Petitioner. apart from requiring the, furnishing of a bank guarantee I

¶167The total built up area is 59731.67 sq.rn. The. construcien commenced in September2005 and was completed on 17th August 2008' ETA clearance was granted on 24th November 2006. On 27th April 2005; W. P. (C) No. 54312008 batch rTr•—............ application for consent was filed Fresh applications were filed 21st1251h September 2007 and no rejection order was . passed for at least four months thereafter. The Petitioner is right in its contention that consent under the Water Act must have been deemed to 'be granted on 24th January 2008. On 18th March 2008, DPCC asked fdrdociTments and these were supplied. ' 168 The order dated 18th March 2008 of the DPCC impos1'g environmental damages and requiring the Petitioner to furnih a bank guarantee are, for the reasons already explained, unsustainable in law. The said order is hereby set aside. It is made clear, that this. will not preclude the DPCC from, taking any action against the Petitioner upon any inspection taken hereinafter, if the Petitioner or any one in occupation of.the building in question is found acting in violation of the provisions of either the .Water Act or the Air Act. Such action will be taken only after following the due process of law as envisaged by the Rules. The. writ petition is disposed of with the above directions. ItI W.P. (C) No.8789 of 2008 (Laxmi Buildtech Pvt. Ltd.) '

¶169The, Petitioner states that EIA clearance had been granted to the Petitioner by the MoEF under the EPA on an 'application filed by it on' 28th March 2007 i.e. much before it commenced construction. The very basis on which penalties are sought to be imposed on the Petitioner under the Air and •Water Acts do not per se amount to acts of pollution inuch less industrial pollution or air pollutiOn or water pollution as contemplated by the said acts. 'This fact is not denied by Respondent No.. W.P. (C) No. 54312008 batch . ' Page 100 of 122 ____ . . ........." "." I I 1 in its pleadings.

¶170The case of the Petitioner is that .the CMC or the DPCC has no power to impose environmental damages and/or seek barTk guarantee under either the Water Act or the Air. Act. It is submitted b' the Petitioner that the 'precautionary principle' and/or the polluter pay principle ai e being misconstrued and misused by Respondent No 1 Fcc and fines/penalties are two totally different concepts in law. While t CL or a levy can be collected under an appropriate statute by way bi a statutory interdict and used for the purpose for which it has been imposed, a fine or penalty cannot be collected and used for discharing governmental obligations or meeting expenses of the government. It is submitted that the actions, of the Respondent in 'imposing and colIecting penalties are ultra vires their powers under the Air Act and Water /ct and beyond the powers vested in the said Respondent under the said Acts. . .

¶171This is a commercial plot over a total built up area of 27,667.28 sq.rn. EIA clearance has'been granted on.31 st January 2008. The date of. cornmenfement Of construction was sometime in March 2007 and it was

propose4 to be completed in June 2009 It appears, that by a letter: dated' ; 7th Dece ber 2007, the Petitioner was asked to apply 'for cqnsnt to establish which it disputed. The. impUgned order dated 151h October' 200 was p4sed imposing environmental damages and requiring the furnishing of bank guarantee and also directing the Petitionei to obtain consent to establish. . . W.P. (C) No. 54312008 batch S

¶172For the reasons already discussed, the order imposing environmental damages to the extent of Z40 lakh and requiring the Petitioner to furnish a bank guarantee are unsustainable in law. and hereby st aside. The direction that the Petitioner should now apply afresh for 1 consent to esablish is also not capable of being complied with; The said order is I. hereby set aside It is made clear that this will, in any event, not preclude the DPCC from taking any .action against the Petitioner upon an inspection being undertaken hereafter if the Petitioner or any one in occupation of the building in question is found to be acting in violation of the provisions of either . the Water Act or the Air Act. Such acti9n will be • taken only after following the due process of law as envisaged by the Rules. The writ petition is disposed of with the above directions. W.P. (C) No.8901 of 2008 (Brightways Housing and Development Ltd.) . . . . .

¶173A commercial plot No. 7, Non-Hierarchical Commercial Centre, Jasola, Iew Delhi, meastiring 5198 sq.rn. was purchased by the Petitioner in an open auction of the DDA on 71h July 2004 for a total considera ion of Z 33,07,50,000/-. A perpetual Lease Deed was executed in favou of the Petitioner on 291h September 2005 and the actual, ph3sical possession of the. said plot was also handed over on the same date. B ilding plans for raising construction on the said plot were sanctione by the DDA on February 2006. The Petitioner states that. although io EIA clearance was required for raising construction on the said plot, either prior or subsequent to the raising of construction, but to avoid precipitate action, the Petitioner filed an application dated I W.P. (C) No. 54312008 batch . ................ -.-. ....- ii............................................................ - : • September, 2007 with Respondent No.3 for ETA clearance and al submitted the requisite dOcuments. •

¶174The Petitioner filed an application dated 25th October 2007 with the DPCC for consent to etab1ish. A notice dated 1 81h March 200 was received by the Petitioner from the DPCC alleging that the Petitioiir had • commenced construction without obtaining prior consent to çstablih. A reply dated 27th Maich 2008 was sent by. the Petitioner informing that it application seeking consent to establish was already pending with the DPCC. The DPCC sent a notice dated 30th April 2008 requiring the S Petitioner to submit an ETA clearance, approved architectural dra'iiig • and completion certificate. Thereafter the DPCC sent a letter dateI 1st July 2008 informing the Petitioner that its case was being placed .beiore the CMC. The Petitioner submits that.after exchange of correspondence • and certain meetings held, the CMC in its meeting held on 281 Aust 2008, without appreciating the case of the Petitionei and without any • authorit imposed a penalty of T 1 croie and further called upon the • Petitioner to furnish a bank guarantee of Z 2 crores.

¶175Th MoEF intimated the Petitioner of the creation of a Stats Corniniteè for obtaining • environmental clearance. As a. reult the Petitioner applied afresh to the State Committee of the MoEF for an EIA Cleaiance by way of application dated 211(1 Septembei 2008 No decision was ho4ver taken on the said application. On a representation mde b)k the Petitioner to the DPCC on 16 th September 2008, the CMC of the' DPCC in a meeting held on 24th . November 2008 reduced the penalty to: W.P. (C) No. 54312008 batch • Page 103 oj122 ! 72 laUs and required the Petitioner to ffirnish a bank guarantee in the sum of 1.5 crores considering an amount of! 28 lakhs had been earlier paid by the Petitioner to the DDA.

¶176This Court finds that the impugned order imposing the penalt' has not been issued by DPCC but by the CMC, which is a Coinnittee constituted by the Chairman, DPCC by an office order dated \281 December 2006. First, no power vests with the Chairman, DCC uder the Water At or the Air Act to further de!egate his powers to the CT1{: Therefore CMC had no authority to conduct any proceedings for S imposing penalty on the Petitioner. In any event, even the consttuti on i, of the CMC was solely for the purpose of granting/rcfttsing/revbking 01' consent to establish. It had no power delegated to it to irn1ose any, penalty or seek bank guarantee or order closure of the preiises (r. iecornmend piosecutlon For the afoiesaid reasons, the impugnd ordel

dated 24th November 2008 of the CMC imposing environmental damags t6 the tun of! 72 lakhs and requiring the Petitioner to furnish a ba4 guarantee in the sum of! 1.5 crore is unsustainable in law and is hei cb\ setaside. S

¶177The construction commenced in June 2005 and was completed in June 2007. It is only thereafter that an impugned notice dated 8 March 2008 was issued by the .DPCC asking the Petitioner to apply afresh for consent tJ, establish For the reasons already mentioned, such a direction was not capable of being complied with. It would nevertheless be open to the DPCC to now proceed in accordance • with Section 2 5(5) of the W.P. (C) No. 54312008 batch S '" ifl' ................................ '• Water Act and relevant provis . ions of the Air Act but only after folioing the due process of law. If, after making its enquiry/investigatiOfl into the., matter, the DPCC finds that the use of the premises is causing '. either water or• air pollution, then it can proceed thereafter in accOrdance with law. It may be observed that EIA clearance was required for the pojeC1 of the Petitioner since the total built up area is 2109.6.513 sq.m. It is not clear whether the MoEF has taken a decision. on the Petitiqner'S application dated 2nd September 2005 The writ petition is disposed of with the above directions.Y W.P. (C) No.1391 of 2010 (R.C. Sood and Co. Pvt.Ltd.) The Petitionet is stated to be the Owner of Plot Nol 10, Shiaji Palace District Center, 'Shivaji Palace, Raja Garden, New DeihiL The ize of the plot is 5,832 sq.m. The plot was purchased from the MCD throigh a tendr process on 301h July .2004. The; Petitioner was granted the eriiiission "to construct a shopping-.cum-reSidefltial comple requisite x y the DDA The Petitioner, on 7th September 2006, applied to the MoEF. fpr EIA rnce. The Petitioner resumed the' Construction of the shoppi.g, complex n accodance with the notifications and circulars. The Petitioner states that it proceeded on the basis that it vas nct iequired to 'obtain conent to establish or consent to operate uner th Water A 't and AIr Act respectively. However, since the Petitioner did not want any impediment in its project, it made an application dathd 1l September ' 2006 to' the DPCC seeking coflsent to establish, along with W.Pa (C) No. 54312008 batch

---S.-.-'. ........ _S.S.S'' -'S.. •'_' ... ' iequisite documents The Petitioner alleges that the DPCC eiioneously forwarded the said application of the Petitioner to the MoEF for issuance of a No Objection Certificate' under the 2006 Notification. The Petitioner claims to have been surprised to receive a notice slated 15 ti' January 2007 from the DPCC to show cause why prosecution proceedii'igs should not be initiated against it and why the establishment should not be closed down as the Petitioner had started construction without obtaining prior consent to establish under the Water Act and piior consent to operate under the Air Act The Petitionet teplied to the show cause notice on 28th 'February 2007 stating that it wa, the DPCC • itself which had forwarded the application of the Petitioner tOthe MoEF. Nevertheless, as a measure of caution, the Petitioner re-subrnitted the application along, with all requisite documents to the Respondent on 27th • February 2007. •

¶181The Petitioner stats 'that after an inordinate, delay, DPCC iepliecl to the Petidoner on 51h December 2007 by directing the Petitioner• to first' prsue is application for obtaining ETA clearance from the MoEF and forward a ,copy of the said ETA clearance to the DPCC for" considerition of 'its application. The Petitioner was granted the •EIA clearanc by the MoEF on 26th March 2008 which the Petitioner forward d to the DPCC' on 271h March 2008. Thereafter the DPCC by • letter da ed 281h April 2008 directed the Petitioner to .subrnitan affidavit giving iem-wise compliance of all the conditions laid down in the LI A clearance. It is submitted that although the DPCC had no role in the matter of ETA clearance, the Petitioner, with a view to avoiding • • W.P. (C) No.543/2008 batëh • , "'''"'''rr"'-'""'''-""" ""'''"''','"'"'',' '"""''"''"''" •' A controversy; submitted the said affidavit under dover of its letter dated lOthJune 2008 . . . The Petitioner was called for a heariflg: before the CMC of the DPCC on 171hi September 2008. During the course' of the 'hearing, it appeared that the Petitioner had been called for the purposes of deciding on the. imposition of penalty and requiring the furnishing of a, bank guarantee for the purported violation of the Water Act and Air Act on part of the Petitioner. Ultimately, the CMC imposed a penaty of lakhs and directed the Petitioner to furnish a bank guaiantee for Z 1.18 Crores for a period of three years.

On 28th Novethber 2008, the Petitioner received a letter from the DPCC alleging that the Petitioner had commenced constructiob activities without obtaining prior consent, under the aforesaid Acts and therefore had violated the provisions of the aforesaid Acts. It was further alleged that certin deficiencies were noted in the project/bui1ding. of the Petitionei! On 3rd December 2008, in another meeting called by the DPCC, 4ie Petitioner tried to explain to the DPCC that it had lint committeki any violation of any of the laws, iules, iegulations On this the DPCC, made a marginal reduction of the penalty from Z 59 lâkhs to 50 1akIs and of the bank guarantee from !, 1.18 crores to Z 1 crore. In response to the letter dated 281h November 2008 of the Respondeit. the Petitioneil filed an affidavit on 30th January 2009 claiming that the deficiencies pointed out by the .DPCC in its letter dated 28th November 2008 had been duly rectified. .. , W.P.(C)No.543/2008batch . . . . . . . . . . Page101of 122 ..-..'-.. .. . . . . ' The Petitioner states that after the completion of construction it let out the building to MIs. Shoppers Stop Ltd. and executed a sublease dated 11th May 2007. for running a shopping mall in the said buildin; Shopper's Stop took possession of the building in June 2007. The 1.PCC in its meeting held on 23 d December 20.08 directed Shoppers Stop btd. to apply for consent.td operate. . . The Petitioner states that it received arother letter from\the DICC rd March 2009 referring to the inspection conducted by "Special Inspection Team" of the DPCC on 16'h January 2009 wherein certain I . . deficiencies were noted by SIT in the premises of the Petitioner. May 2009, the Petitioner clarified to the Respondent that it had alredy rectified the deficiencies pointed out by the SIT. The Petitioner states tJiat it was given a hearing on 21'st January 2010. According to the Petitioi.ev, the DPCC at this meeting took a decision to launch prosecution agaiist the Petitioner. Tè Petitioner received a letter dated 1. 1 th Februry .2010 from the LPCC stating that its earliei application of 11th September 2006 had becone infructuous. With the Petitioner's representation daled 26th February 2010 to the DPCC eliciting no response, the prese1t writ letition w s filed challenging the minutes of the CMC's meetings date •71h Septeiber 2008, 3DeCember 2008 and 21st January 2010. The decision dated 171h September 2008 of the CMC of the DPCC rnpoing dnvironrnental damages to the tune of 59 lakhs and requiring the Petitioner to furnish bank guarantee in the sum of Z 1.18 crores is fbr reasons already discussed unsustainable in law and is hereby set aside: W.P. (C) No. 54312008 batch . Tle subsequent decisions dated 3,rd December 2008 and 21st January 2010 are also without the, authority of law and are hereby set aside. It is made clear that this will, in any event, not preclude the DPCC from taking any action against the Petitioner upon an 'inspection being undertaken hereafter if the Petitioner or any one in occupation of the bui1ing in question is found, to be acting in violation . of the provisions of either the Water Act or the Air Act. Such action will be taken only after foliowing the due process of law as envisaged by the Rules. The writ petiion is disposed of with the above directions.

S W.P. (C) No. 9128 of 2009 .(Ridge View Construction Pvt. Ltd.) 187 A commercial plot measunng 2500 sq rn being Plot No D-2 District Centre, Saket, New Delhi was 'purchased by the Petitioner iin an open auction conducted by DDA on 29 t' September 2003 for a 1 total consideration of,Z 43,41,00,000/- and the possession of thel said plot was handed over to the Petitioner soon thereafter.. A prpetual lease deed dated 1st uly 2004 was subsequently executed by the DDA in fav,oir of the Petitiner. The DDA 'handed over to the Petitioner the architectural condition and.controls which enabled the Petitioner to raise construction as per tle control drawings.. Construction was thus raised by I the Petitioneron the plot till the plinth level much before 7th July 2004.'

¶188The Petitioner filed an application with the MoEF seeking IIA clearance Ion 2d September 2008. The PetitiOner also filed an application dated 2' September 2008 with DPCC for consent to establish. The .Petitioner states that it was surprised to receive a notice dated 9th August W.P. () No. 54312008 batch ' . 2008 issued by the DPCC to MIs Taneja Developeis and Infiastiuctu • Limited ('TDIL') wherein it was alleged that the construction of a retail-cum-office complex was being carried out by TDIL The Petitioner states that on various occasions it clarified to the DPCC that the said commercial complex was being developed by the Petitioner. However the show cause notices continued to be issued to TDIL. Subsequóntly, the CMC by an order dated 15th October 2008 issued directions for closure of the Petitioner's retail-curn-office complex immediately and furthr asked the electricity distribution companies to disconnect the electricity supply and the DJB to disconnect the water supply. I Aggrieved by the ipugned order dated 15 October 2008, the Petitioner filed W.P.(C) No. 7850 of 2008. This Court stayd the operation of the impugned order. Another show cause notiëe datçd 10 November 2008 was issued by the DPCC. This Court at the, Pext haring held that on account of issuance of the fresh show cause nOi ice nthing, survivel in the said writ petition • Tle Petitioner rep1id to the fresh show cause notie on 21 Novemer 2008. Thereafter, the DPCC issued a letter dated 8th May 2009 directin the Petitioner to close its commercial building irnmediateIyan.d further irecting the NDPLIBSES. to disèonnect.the electricity supply nd the DJ to disconnect the water connection to the said bui1ding. The aid directiohs were purportedly as a result of a decision taken by th, CMCon 23rd April 2009 and an inspection carried out at the site on 8 Apiil 2009 W.P. (C) No. 54312008 batch 191 The Petitioner submitted that no ETA clearance was required since the built up area of the prei'nises (19,227.15 sq.m.) was less than 20,000 sq.m. The Petitioner had installed a Sewage Treatment Plant (STP) of 56 KLD capacity which was fully operational prior to 8t1 April 2009 aid fore which an adequacy report/certificate had also been granted by a • recognised institute nominated by the. DPCC itself. Regarding no permission having been obtained from the DJB for extraction; of grund • water from bore well, it. is submitted that the Petitioner has alrady obtained permission from the concerned authorities The Petitipner states that it is not utilizing the water from the bore well and it :has, deployed tankers for fulfilling its requirements of water in the complex The Petitionei alleges that when its representative went to the DPCC 10 submit an application for consent to operate,. the applieation was refijsei. 192 In the above circumstances, the present writ petition was filed challenging the closure order dated 23rd April 2009 communicated to thoo

Petitioner on 8th May 2009 S

¶193. For the detailed reasons. already . di.susse4, the question of th DPCC takingaction for the Petitioner. not having obtained ETA clearancO.

does not arise. In any . event, the Petitioner with, the 'built up area' .beirig less.than 20,000. sq.th., there Was perhaps no requirement to obtain such ETA clearance. If this was one of the .reasons for the closure orde then such closure order is unsustainable in law. As regards . the other deficiencies pointed out, and the Petitioner.' s claim to have cured them, they involve 'disputed questions which this Court 'cannot possible go into. W.P. (C) No. 54312008 batch . •• Page 111 of 122 H Nevertheless, it appears to this Court that the procedural requirement tQ) be followed by the DPCC prior to passing .suh cloure order was not complied with by the DPCC in the instant case.

¶194For the aforementioned reasons, this Court sets aside the cosure order dated 23rd April 2009 communicated to the Petitioner on 81 May 2009. However, this will not preclude the DPCC from taking any action against the Petitioner upon any inspection taken hereinafter, if the Petitioner or any one in occupation of the building in questibn is found acting in \'iolation of the provisions Of either the Water Act or the Air I Act. Such action will of course be taken only after due processof law , as envisaged by the Rules. The writ petition is disposed of with the aove directions. W.P. (C) No. 465 of 209 (Prosperous' Estate Pvt. Ltd.) The total built up area of the building constructed on a comrneriai plot in the present petition is 14,850.227 sq.im Completion certifidate. [] was granted on 12th October 2006 No show cause notice was issued On ~ Ih December 2008, the DPCC issued a letter to the Petitioner ghiing it an opportunity of , being heard on 23' December 2008.On 23' Decern8er 2008,:' an order was passed directing the Petitioner to pay damags furnish bank guarantee and to apply for consent to establish. For the reasons already explained hereinbefre, the impugnel ord4. dated 23' December 2008 cannot be sustained in law and is hereby set W.P. (C) No. 54312008 batch aside It would nevehe1ess be open to the DPCC to now pioceed accordance with Section 25(5) of the Water Act and other relevant provisions of the Air Act. The DPCC will follow the due process of law. If after making an enquiry/investigation into the matter it finds that the use of the premises is causing either water or air pollution, it can pr.oceed to take action in the manner explained hereinbefore. It will however not be open to the DPCC to levy any environmental damages or reqiiring. the Petitioner to furnish any bank guarantee for non-compliance, with the provisions of either of the Acts The writ petition is disposed of with the above. directions. .

.. . W.P. (C) No. 508 of 2009 (Best Realtors India Pvt. Ltd.) 197 The total built up area of the building constructed on a commei cial plot in the present petition is 9171.63 sq.m. The construction of the building commenced sometime in January 2007 and was completed in January 2009. No show cause notice was issued. 0•27th October 2008, the DPCC issued a letter to the Petitioner giving it an opportuinity, of being heard on 6th November 2008. On 6th November 2008, an or4eras passed directing the Petitioner to pay damages, furnish a bank guarantee. and to apply for consent to establish.. This order was communicated to the Petitioner on 9th, January 2009 and the Petitioner ' was asked to take necessary action to comply with the said order.

¶198For the reasons already explained hereinbefore, the impugned order dated 6' November 2008 cannot be sustained in law and is hereby set W.P. (C) No. 54312008 batch , ' ' aside It would nevertheless be open to the DPCC to now pioceed in accordance with Section 25(5) of the Water Act and other relevant provisions of the Air Act. The DPCC will follow the due process of law. If after making an enquiry/investigation into the matter it finds that the use of the premises is causing either water or air'pollution, it can proceed to take action in the manner explained hereinbefore. It will however not be open to the DPCC to levy any environmental damages or reqliring the Petitioner to furnish any bank guarantee for non-compliance with the provisions of either Acts. The writ, petition is disposed of with the above directions. PA W.P. (C) No. 509 of 2009 (Nfrvan Hire Purchase Ltd.) The total built up area of the building constructed on a cornhierciai plot in the present petition is 8060.80 sq. rn. Construction of the building commenced sometime in January 2007 and was completed in January 2009. No show cause nofice was issued. On 2711 October 2008, the DPCC issued a letter to the Petitioner giving it an opportunity ofbeing heard on 6th November 2008. On 6th November 2008, an order was passed directing the Petitioner to pay damages, furnish bank guarntec and to apply for consent to establish. This order was communicated tb the Petitioner, on 9th January 2009 and the Petitioner was asked to take necessary action to comply with the said order. For the reasons already explained hereinbefore, the impugned order dated 6thi November 2008 cannot be sustained in law and is hereby set W.P. (C) No. 54312008 batch Page 114 of 122 , aside. It would nevertheless be open. to the DPCC to now proceed accordance with Section 25(5). of the Water Act and other, relevant provisions of the Air,Act. The DPCC will follow the due processof law. If after making an enquiry/investigation into the matter it finds that the use of the premises is causing either water or air pollution, it can pi oceed to take action in the maimer explained hërinbefore. Itwi1lhoweer not be open to the DPCC to levy any environmental damages or requiring the Petitionei to furnish any bank guarantee for non-compliance with the provisions of either Acts The writ petition is disposed of with the above directions. . . . S W.P. (C) No. 510 of 2009 (Maitri Mutual Benefits Ltd.) 201 The total built up area of the building constructed on a cornrnei cial plot in the present petitionis $060.80 sq.rn. Construction of the building commenced sometime in Jativary 2007 and was completed inNoveiTher 2008.. No show cause notice was issued. On 27th October 2008 the DPCC issued a letter to the Petitioner giving it an opportunit' of bing • • . . . heard on 6th November 2008. On 6th November 2008, an prder, was passed directing the Petitioner to pay damages, furnish bank guarahtLe and .to apply for consent to establish. This crder was cornmunicted tothe Petitioner on 91h January 2009 and the Petitinner was asked to tke necessary action to comply with the said order. . . .

¶202.For the reasons already exlaind hereinbefore, the irnptigiied order dated . November 2008 cannot be sustained in law and is hreby set W.P.(C) No 54312008 batch PagellS of 122 • (1 aside It would nevertheless be open to the DPCC to now proceed in accordance with Section 25(5) of the Water Act and other relevant • provisions of, the. Air Act. The DPCC will follow the due process of l.av. If after making an enquiry/investigation into the matter it finds that the use of the premises is.causing either water or air pollution, it can 'proceçd to take aëtion in the thanner epIained hereinbefore. It will however not be open to the DPCC to levy any environmental damages or requiring the Petitioner to furnish any bank guarantee for non-compliance with the provisions of either Acts; The writ petition is disposed of with the above directions. •' : °'W.P.(C) No. 511 of 2009 (A.S. Bu1dwell Pvt. Ltd.). . The total built up areaof the building constructed on a'.cornrnrcial plot in the present petition is 989.548 sq. rn. Construction of the building commenced sometime in January 2006 and was completed in October 2007. No show cause notice was issued. On 27thi October 2008 the DPCC issued a letter to the Petitioner giving it an opportunity of being S heard, on 61h November 2008. On 6th November 2008, an order was passed directing the Petitioner to pay damages, furnish a bank gualantee and to apply for consent to establish. This order was communicated 'to the Petitioner on 9th January 2009 and the Petitioner was asked to take.

necessary action to comply with the said order. • , . For the reasons already explained hereinbefore, theimpugned order dated 6t1 November 2008 cannot be sustained in law and is heieby set W.P. (C) No. 54312008 batch ' . , . Page 116 of 122 aside It would ue¼rtheless be open to the DPCC to now proceed in accordance with Section 25(5) of the Water. Act and other relevant provisions of the Air ActThe DPCC will follow the due process of law If after making an enquiry/investigation into the matter it finds that the use of the premises is causing either water or air pollution, it can proceed to take action in the maimer explained hereinbefore It will however, not • ' be opeti to the DPCC to levy any environmental damages or re4uiring41 -le Petitioner. to fuish any' bank guarantee. for non-omp1iance with the provisions of either Acts The writ petition is disposed of with the abve directions. . . . . . W.P. (C) No. 525 of 2009 (ES CEE CEE and Associates (India) Pvt. Ltd.) . . . . . .The total built .up area Of the building constructed on a coiñmercii1 plot in the present petition is 15883.097 sq. rn. Construction of the building commenced on 10th January 2005 and was completed on 2d Febniary 2007. A show' cause notice was issued 05th December 2007. S and an order was passed on 121h August 2008 requiring the Petitionei lo pay, environmental damages of 201akhs and furnish a bank guarantee of Z 1 crore.

For the reasons already explained hereinbefore, the impugned order' dated 12th August 2008 cannot be sustained in law and is hereby set aside. It would nevertheless be open to the DPCC to now proceed in. accordance with Section 25(5) of the Water Act and other relevant W.P. (C) No. 54312008 batch . . . . , 'Page 117 of 422 .' provisions of the Air . Act The DPCC will follow the due process of T 1w-If. after making an enquiry/investigation into the matter it finds that the use of the premises is causing either water or air pollution, it can proceed to take action in the manner explained hereinbefore. It will however not be open to the DPCC to levy any environmental damages-or requ.iring the • Petitioner to furnish any bank guarantee for non-compEiance with the provisions of either Acts. The writ petition is disposed of with the above directions. W.P. (C) No. 794 of 20.09 (Nipun Builders and Develiipers Pvt. Ltd.).

¶207The total built up area of the building constructed on .a commercial plot in the present petition is 2802 sq. rn. Construction of the building commenced on I Oth September 2004 and was completed on 24th March 2005. A show cause notiôe was. issued on 28th April 2008 and an order was passed on 61h November 2008 requiring the Petitioner to pay environental damages of Z2 lakhs and furnish a bank guáranteë of 4 lakhs. 208 Fo the reasons already explained hereinbefore, the impugned oidei dated 6 November 2008 cannot be sustained in law and is hereby, set aside. 11 would nevertheless be open to the DPCC to now proceed in accorda ce with Section 25(5) of the Water Act and other relevant: piovisios of the Au Act The DPCC will follow the due process of law. If after making an enquiry/investigation into the matter it finds that th use of the-premises is causing either water or air pollution, -it. can proceed W.P. (C) No. 54312008 batch - -------.-----.- II .., - .- - .- to take action in the marm.er explained hereinbefore. It will however not be open to the DPCC to levy any environmental damages or requiring the Petitioner to furnish any, bank guarantee for non-compliance with the provisions of either of the Acts. The writ petition is disposed of with the above directions. W.P. (C) No. 7575 of 2009 (Jindal Biochem Pvt. Ltd.) 209 The total built up area of the building constiucted on a commeicial • plot in the present petition is 3290 sq. m. Constniction of the building commenced on 2nd February 2005 and was completed on 31 St May 2006. A show cause notice was issued on 27th June 2008 and an order was passed on 6th1 November 2008 requiring the Petitioner, to pay • environmental damages of Z.2 lakhs and furnish a bank guarantee of Z 4 lakhs.

¶210For the reasons already explained hereinbefore, the impugned order dated 6" November 2008 cannot be sustaired in law and is hereby t aside. It whuld nevertheless be open to the. DPCC to now proceed in accordance with Section 2 5(5) of the Water Act and other relevai.t rovisions . of the Air Act, The DPCC will follow he due .processof laM. If after ma ing an enquiry/investigation into the matter it finds that t1i. use of the premises is cauing either water or air pollution, it. can proceed to take acf on in the manner explained hereinbefore. It will hwever not 11e open to he DPCC to levy any environmental damages or requiring the Petitioner to furnish any bank guarantee foi non-compliance with ii ie W.P. () No. 54312008 batch • . . . . . rm , r-:----'---------------------------------------• provisions of ëithêr of the Acts. The writ petition is disposed of with the above directions. W.P. (C) NO. 8208 of 2009 (Best City Developers (India) Pvt. Ltd..) The total built up area of the building constructed on a commercial plot in the present petition is 1066 sq. iii. No show cause notice was issued. On 7th Janua' 2009, the DPCC issued a letter to the Petitioner giving it an qpportunity of being heard on 61h November, 2008. On 21st January 2009 an order was passed reqqiriñg the Petitioner to pay environmental damages of ZI lakh and furnish a bank guarantee of Z 1 lakh. This order was communicated to the Petitioner on 27 March 2009 and the Petitioner was asked to take necessary action to comply with the said order. - For the reasons already explained hereinbefore, the impugned order dated 1s January 2008 cannot be sustained, in law and -is hereby 'set aside. would nevertheless be open to the DPCC to now .proced in accordance with Section 2 5(5) of the Water.. Act and othr relevant provisins of the Air Act. The DPCC will follow the due process of law. If after, making an enquiry/investigation into the matter it finds that the use of the premises is causing either water or air pollution, it cn proceed to take action in the manner explainedhereinbefoi:e. It will however not be opei to the DPCC to levy any environmental damages or requiring the Petitioer to furnish any bank guarantee for noncornpliance with the W.P. (C) No. .54312008 batch provisions of either of the Acts. The writ petition is disposed of witi the above directions W.P. (C) No.8751 of 2009 (Vardhman Properties .Ltd.) The total built up area of the building constructed on a commercial • plot in the present petition is 5461: sq. m. Construction of the building commenced on 10th September 2007 and was completed in April 2009. An order was received by the Petitioner on 3' January 2009 directing the Petitioner to obtain consent to establish. Another show cause ntice was issued on 9th March 2009 to apply for consent to establish. On j0 t11 April 2009, an order was passed directing closure of the Petitionr's building.. For the reasons already explained hereinbefore, the impugned orders dated 3 d January. .2009 and 30t1 April 2009 cannot be sustained in law and ai e hei eby set aside It would nevertheless be open to the D1CC to now proceed in accordance with Section 25(5) of the Water 1ct and other releva it provisions of the Air Act. The DPCC will follow the\due process of la\*. If after making. an enquiry/investigation into the ma.ter it finds that tI1e use of the premises is causing either water or air polhtion, it can proced to take action in the . manner. explained hereinbefre. It will howe er not be open to the DPCC to levy any environmental damages or requiing the Petitioner to furnish any bank guarantee for non-cômpliancè with te provisions of either of the Ats. The writ petition is disposed of with the above directions. . . •. W.P. (C) No. 54312008 batch Page 121 01122 W.P.(C) No. 10860 of 2009 (Mnish.BuiJdwe11 Pvt. Ltd.). The total built up area of the building constructed on .a commercial plot in the present petition is 8478.27 sq. rn. A 'show cause notice, was received by the Petitioner on 13111 February 2008 alleging that he had completed construction without obtaining the consent to establish. An order dated 18th March 2008 was passed directing the Petitionei, to obtain consent to establish. On 24th Jtily. 2009 an order waspassed. directing the closure of the Petitioner's building.. . . For the reasons already explained hereinbefore, the impugned orders dated 131h Februaiy. 2008, 18th March 2008 and 24th July 2009 cainot he sustained in law and are hereby set aside. It would nevertheless b6 open to the DPCC to now proceed in accordance with Section p5(5) bf the Water Act and othei relevant provisions of the Air Act I he DPCC will follow the due process of law. If after making an enquiry/iivestigtion into the inatter it finds that the use of the premises is causing either v'ater or air p1lution, it can proceed to take action in the manner explained hereinbe ore. It will however not be open to the DPCC, to levy any environ ental damages or requiring the Petitioner to furnish any hank guarant4 for non-cothpliance with te provisions of either of the A&: The writj petition is disposed of with the above directions.

S. MURALIDHAR, J. SEPTEMBER 30, 2010 dn W.P. (c) No. 54312008 batch. TJ ir - -----

IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 543/2008 with 2714/08, 2771/08, 2772/08, 3815/08, 7081/08, 8143/08 7 8144/08, 8145/08, 8 146/08, 8147/08, 8 148/08, 8 149/08, 9040/08, .464/09, 465/09, 508/09, 509/09, 5 10/09, 511/09 5 525/09, 794/09, 7575/09, 8208/09, 8751/09, 10860/09, 3095/08, 4319/08, 4321/08, 4322/08 1 4323/08, 4330/08 5 4333/08, 3905/08, 8789/08, 8901/08, 9128/09 & 1391/2010 Reserved on: 1 i th August 2010 Decision on: 30th September 2010 SPLENDOR LANDBASE LTD :Petjtj01r Through Mr. Soli J Sorabjee, Senior Advocate with Mr. B.B; Gupta and Mr. B. Mohanty, Advocates for Petitioners in 'WP (C) 543/08, 3095/08, 3905/08, 4319/08 5 4321/08 5 4322/08, 4323/08, '4330/08, 4333/08. Mr. Sanjay Goswaini with Mr. H.K. Balajee, Advocates for WP (C) Nos. 2714/08, 2771/08, 2772/08, 7081/08, 3815/08, 8143/08 5 8144/08, 8145/08, 8146/08,: 8147/08, 8148/08, 9040/08, 508/09, 509/09, 510/09, 511/09, 794/09, 8208/09 1 8751/09, 10860/09. Mr. Amit Sood, Advocate for Petitioner in WP (C) 7575/09. . Mr. Prem Kumar with Mr. Girish Kumar, Advocate for Petitioner in WP (C) 465/09. Mr. Gaurav Gupta, Advocate, for Petitionerin WP (C) 8149/08. Mr. Sanjay K. Shandilya with Ms. Ekta Mchta, Advocate for Petitioner in WP (C) 8789/08. Mr. Deepak Khurana with Mr. Shobhit Chandra, Advocate for Petitioner in WP(C) 1391/10. • . Ms. Urvi Kuthiala, Advocate for Petitioner in WP(C) 9 128/09, 464/09, 890 1/08, 525/09. versus DELHI POLLUTION CONTROL COMMITTEE .......Respondent Through Mr.. Sudhir Chandra, Senior Advocate with Mr. C. Mohan Rao, Advocate for Respondent/DPCC. Mr. Satya Sehrawat with Ms. Rashi Bansal, Advocate for R-1 in WP(C) 508/09 509/09, 510/09, 5 11/09 and 794/09. . . Mr. Neeraj Chaudhari, Advocate for UOI in WP (C) 794/09. Mr. Manish with Ms. Sadhna, Mr. Rajesh Pratap, Advocates for UOI in WP (C) 8143/08, 8144/08, 8 145/08, 8 146/08, 8 147/08, 8 148/08. W.P. (C) Na. 54312008 batch . Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Q'11 Mr. Darpan Wadhwa with Ms. Divya Jha, Advocate for GNCTD in WP(C) 543/08,. 2714/08, 7081/08, 8148/08. Mr. TBaldev Malik, Advocate for R-3 in WP (C) 9040/08. Mr. N. Waziri, Standing Counsel with Mr. Shoaib Haider, Advocate for GNCTD in WP (C) 875 1/09, 10860/09. Mr. AtulNanda with Mr. SUmeer Sodhi and Mr. Gaurav Gupta, Advocates for UOI in WP (C) 7081/08, 508, 510, 511 and 8751 of 2009. Mr. Ravinder Aggarwal, Advocate for UOI in WP (C) 901/08. Mr. Ajay. Verma, Advocate for the DDA in WP(C) 8901/08. CORAM: JUSTICE S. MURALIDHAR . 1. Whether reporters of the local newspapers be allowed to see the judgment? To be refrted to the Reporter or not? Whether the judgment should be reported in the Diget?