Delhi Pollution Control Committee v. Tirupati Infraprojects Pvt Ltd

I / * IN THE HIGH COURT OF DELHI AT NEW DELHI % ludament Reserved on : W lanuarv 2012 ludament Pronounced on: 23'"' lanuarv, 2012 LPA 867/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus TIRUPATI INFRAPROJECTS PVT LTD Respondent Through Mr.Ajay Kumar and Mr.Naveen Tayal, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE PRATIBHA RANI PRADEEP NANDRAIOG. I. For orders see LPA No.895/2010. (PRADEEP NANDRAJOG) JUDGE (PRATIBHA RANI) / JUDGE JANUARY 23, 2012 dk IN THE HIGH COURT OF DELHI AT DELHI r. % ludament Reserved on : 16^'' lanuary 2012 ludament Pronounced on: 23''^ lanuarv, 2012 + LPA:895/2010 DELHI POLLUTION CtblMTROLCOMMITTEE Appellant Through; ' MrlC. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.D.inesh Jindal, L.O, versus iPLENDOR LANDBASE LTD Respondent Through: Mri-B.B. Gupta, Ms.Mandeep Kaurand Mri-Harsh Hari Haran, /Advocates LPA 1/2011 St CM !lMo.6781/2011 (Cross Objections] I I DELHI POLLUTION CONTROLCOMMITTEE /Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Adjvocates with Mr.Dinesh Jindal, L.O. I versus i 5ACHDEVA BUILDON PVT LTD & 0R5 ..... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CG5C with Mri.Akshay Chandra and Mr.Khalid /\rshad, Advocates for UOI i - . • LPA 6/2011 & CiVl'lMo.6779/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. LPA 895/2010& connected matters versus ; VARDHMAN PROPERTIESLTD &0R5 Respondents Through Mr.SanjayGoswami,Advocatefoi R-1 I PA 7/2011 &. CN Mn,fi780/2Q11 (Cross Qbiectiong,! i DELHI POLLUTION CONTROLCOMWIITTEE A\ppellant Through Mr.C. Mohan Rao and Mr.LokeshSharrna, Advocates with Mr.Dinesh Jindal, LO. versus ; I VARDHMAN PROPERTIESLTD & ORS Respondents Through Mir.SanjayGoswanii, Advocate for R-1 LPA 8/2011 & CM Mq.678272011 (Cross Obiections) DELHI POLLUTION CONTROLCOMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.LokeshSharrna, Advocates with Mr.Dinesh Jindal, L"0. i I versus ; VARDHMAN PROPERTIES LTD & ORS Respondents Through Mr.Anil Sapra, Sr. Advocatewith Ms.Urvi Kbthiala, Ms.Praneeta Vir and Mr.Sanjay Gioswami, Advocates / • LPA 9/2011' I DELHI POLLUTION CONTROL COMMITTEE ..... Appellant Through Mr.C. Mohan Rao and Mr.LokeshSharrna, Advocates with.Mr.Dinesh Jindal, L-.O. versus ; MANISH BUILDWELLPVT LTD & ORS Respondents Through Mr.SanjayGoswami, Advocate for R-1 LPA 895/2010&connectedmatters: Page2of38 LPA 10/2011 DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mir.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.DineshJindal, L.O. versus i MANISH BUILDWELLPVT LTD & 0R5 Respondents 1 hrough Mr.Saniay Goswami, Advocate for R-1 LPA 11/2011 • DELHI POLLUTION CONTROLCOMMITTEE Appellant Through M:r.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O, versus , VARDHMAN LAND QEVELOPERS PVT , LTD&ANR Respondents Through None: LPA 22/2-011 •& CM Nq.6824/2011 (Cross Ofoiections) DELHI POLLUTION CONTROLCOMMITTEE AVppellant Through M;r.C. Mohan Rao and Mr.Lo.keshSharma, Advocateswith Mr.DineshJindal, L.O. versus | PANIO\J BUILDWELL;LTD S,i ORS Respondents; Through Mir.Sanjay Goswami, AVdvocatefor IR-l Mr.Neeeraj Chaudhari, CG5C with ^ Mjr.AkshayChandra and Mr.KhalidArshad,' ' Advocates for UOI, • LPA 23/2011 CM IMo.6832/2011 (Cross Qijiectionis) DELHI POLLUTION CONTROLCOMMITTEE Appellant LPA 895/2010&connectedmatters ; • Page 3. of 38 Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with-Mr.Dinesh Jindal, L.Q. versus RAJE5H PROJECTS INDIA PVT LTD & 0R5 Respondents Through Mr.Sanjay 'Goswan-ii, Advocate for R-1 Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.Khalid Arshad, ' Advocates for UOI LPA 24/2011 & CM Nq.8168/2011 (Cross Qbiections) DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.C. Mohan'Rao and Mr.Lokesh Sharnia, Advocates with Mr.Dinesh Jindal, L.O. versus : BEST REALTORS (INDIA) LTD S; ORS Respondents Through Mii.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mri.AkshayChandra and Mr.KhalidArshad, Advocates for UOI • LPA 25/2011 & CM'iMo.6828/2011 (Cross Qbiections) DELHI POLLUTION CONTROLCOMMITTEE Appellant Through . Mr.C. Mohan Rao and Mr.Lokesh Sharrna, , Adyocates with Mr.Dinesh Jindal, L.O. versus : . , BEST CITY DEVELOPERS (INDIA) PVT LTD. ^ OFIS •: ...... Respondents Through Mr.Sanjay Goswami, Advocate for R-1 MrtNeeeraj Chaudhari, CGSC with MriAkshay Chandra and Mr.Khalid V-Vrshad, Advocates for UOI LPA 895/2010&connectedmatters : Page 4 of38 /O •w' • LPA 26/2011 & CM No.6,831/2011 (Cross Objections) DELHI POLLUTION CONTROL COMMITrEE ..... Appellant Through' Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.DineshJindal, L.O. versus ; HOME LINKERS PVT LTD & ORS Respondents Through Mn.Sanjay (^osviami, Advocate for R-1 Mn.Neeeraj Chaudhari, CG5C with Mn.Akshay Chandra and Mr.Khalid Arshad, Advocates for DO! LPA 27/2011 & Cm No.6833/2011 (Cross Objections) i DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Adyocates with Mr.DineshJindal, L.O, versus ; RAJESH PROJECTS INpiA PVT LTD Si ORS ..... Respondents Through MKSanjay Goswami, Advocate for R-1 Mr;Neeeraj Chaudhari, CGSC with MrAkshay Chandra and Mr.Khalid .Arshad, Advocates for UOI LPA 28/2011 El CM No.6826/2011 (Cross Obiections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through MriC. Mohan Rao and Mr.Lokesh Sharrna, • Advocates with Mr.Dinesh Jindal, L.O. versus ; VARDHMAN PROPERTIES LTD & ORS Respondents LPA 895/2010 & connected matters ' Through Mj-.SanjayGoswaini,AdvocatGfoi R-l Mr.Neeeraj Chaudhari, CG5C with Mr.AkshayChandra and Mr.KhalidArshad, Advocates for UOI . LPA 45/2011 DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.LokeshSharma, Advocates with Mr.Dinesh Jindal, L,0. versus | . JINDAL BIOCHEM PV^ LTD &ORS Respondents Through Mr.Neeeraj.Chaudhari, CGSC with Mr.Akshay Chandra and Mr.KhalidArshad, Advocates for UOI. LPA 46/2011 & CM IMo.8164/20ri (Cross Objections DELHI POLLUTION CONTROLCOMMITTEE Appellant . Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus AS BUILDWELLPVTiLTD & ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid A\rshad, Advocates for UOI LPA 47/2011 & gyi No.6825/2011 (Cross Objections) DELHI POLLUTION CONTROLCOMMITTEE /Appellant Through Mir.C. Mohan Rao and Mr.LokeshSharma, Advocates with Mr.Dinesh Jindal, L.O'. versus LPA 895/2010 &connected matters ; MAURI MUTUAL BENEFITS LTD & ORS Respondents . Through Mr.Sanjay G;oswami, Advocate for R-1 • Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.Khalid. Arshad, Advocates for UOI LPA 48/2011 & CM No.6823/2011 (Cross Objections) DELHI POLLUTION CONTROLCOMMIITEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O, versus NIRVAN HIRE PURCHASE LTD &ORS Respondents Through Mr.Sanjay- (Joswami, /Advocate for R-1 Mr:.Neeeraj Chaudhari, CGSC with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 50/2011 & CM !Mo.6827/2011 (Cross Objections) DELHI POLLUTION CONTROLCOMMITTEE Appellant Through MrlC. Mohan Rao and Mr.LokeshSharrna, Advocates with Mr.Dinesh Jindal, L.O. versus ; I NIPUN BUILDERS & DEVELOPERS PVT LTD & ORS Respondents Through MrSanjay Gdswaini, Advocate for R-1 Mr.jNeeeraj Chaudhari, CGSC with Mr.AI<shayChandra and Mr.Khalid Arshad, Advocates for UOI LPA.51/2011& CM :IMo.6829/2011 (Cross Objections) DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.:C. Mohan Rao and Mr.Lokesh Sharrna, Advocates w'ith Mr.Dinesh Jindal, L.O. :LPA 895/2010&connectedmatters i Page 7of38 ,p i versus VARDHMAN PROPERTIESLTD & 0R5 Respondents Through Mr.SanjayGoswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.KhalidArshad, Advocates for UOI DELHI POLLUTION CONTROL COMMITTEE Appellant Through M|r.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O, versus ESS CEE CEE & ASSOCIATES (INDIA) PVT LTD .. Respondent Through |V|',r.A\nilSapra, Sr. Advocate with Ms.Urvi Kothiala, Ms.Praneeta Virand Mr.Sanjay Goswami, Advocates LPA 54/2011 & CM IMo.6004/2011 (Cross Qbiections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through M;r.C. Mohan Rao and Mr.Lol<eshSharrna, Advocates with Mr.Dinesh Jindal, L.0" versus : FARGO ESTATES PVT LTD Respondent Through Mr.Anl<itJain, Advocate LPA 58/2011«St CM Mo.6830/2011 (Cross Qbiections) DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus LPA 895/2010 & connected matters Page 8 of 3!5 1^ : VARDHMAN PROPERTIES LTD.& ORS Respondents Through Mr.Sanjay Goswami, Advocate for R-1 Mr.Neeeraj Chaudhari, CG5C with Mr.Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI LPA 94/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.iC. Mohan Rao"an.d Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus i DLF RETAILER DEVELOPERS LTD Respondent Through Mr.iB.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates LPA 95/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C.-Mohan Rao and Mr.Lokesh Sharrna, Advocates with Mr.Dinesh Jindal, L.O. versus : LAXMI BUILDTECH PyT LTD & ANR Respondents Through Mr.Kailash Vasdev, Sr. Advocate with MsiNeoma Vasdev Gupta, Ms.Ekta Mehta and Ms.Joanne Pudussery, Advocates for respondent No.l. Mr.iNeeeraj Chaudhari, CGSC with Mr.;Akshay Chandra and Mr.Khalid Arshad, Advocates for UOI i LPA 96/2011 DELHI POLLUTION CONTROLCOMMITTEE Appellant Through . Mr.|C. Mohan Rao and Mr.LokeshShanna, LPA 895/2010 &connected matters : /5 Advocates with Mr.Dinesh Jindal, L.O. versus MANISH BUILDWELLiPVTLTD & 0P:S Pxespondents Through Mtl.Sanjay Goswami, Advocate for FM Mr.Neeeraj Chaudhari, CGSC with Mri.AI<5hayChandra and Mr.KhaiidArshad, Advocates for UOI . LPA:97/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through ^ Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus BRIGHTWAY5 HOUSING & DEVELOPMENT LTD&ANR I .....Respondents v/ Through Mr.Anil Sapra, Sr. A^dvocatewith Ms.Urvi. Kothiala and Ms.Praneeta Vir, Advocates for R-1. . MriNeeeraj Chaudhari, CGSC with Mr'.Al<shay Chandra and Mr.Khaiid Arshad, Advocates for UOI LPA:98/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mric. Mohan Rao and Mr.Lol<eshSharma, Advocates with Mr.Dinesh Jindal, L.O. versus r DLF COMMERCIAL DEVELOPERS LTD Respondent LPA 895/2010& connected matters ; Through Mr.B.B. Gupta, Ms.MandeepKaur and Mr.Harsh Hari Haran, Advocates LPA 99/2011 DELHI POLLUTION CONTROLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.LokeshSharma, Advocates with Mr.Dinesh Jindal, L.O. versus • GALLERIA PROPERTY MANAGEMENT SERVICES PVT LTD : Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, Advocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus : PROSPEROUS ESTATES PVT LTD Respondent Through None LPA 101/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao.and Mr.Lokesh Sharma, •Advocates with Mr.Dinesh Jindal, L.O. versus : REGENCY PARK PROPERTY MANAGEMENT SERVICES PVT LTD ; Respondent Through Mir.B.B. Gupta, Ms.Mandeep Kaur and Mir.Harsh Hari Haran, /Advocates LPA 8g5/2010&connected matters : 11 of ifi DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharrria, • Advocates with Mr.Dinesh Jindal, L.O. versus i PALIWAL DEVELOPERSLTD ..... Respondent Through Mr.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Han Haran, Advocates LPA 103/2011 DELHI POLLUTION CONTROLCOMMITTEE Appellant Through lyir.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.DineshJindal, L.O, versus : RIDGE VIEW CONSTRUCTIONPVT LTD Respondent Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi Kothiala and Ms.Praneeta Vir, Advocates. DELHI POLLUTION CONTROLCOMMiTTEE Appellant Through lyir.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O., versus RC SOOD CO PVT LTD Respondent Through ; Mr.Shobhit Chandra, Advocate LPA 895/2010 connectedmatters; Pagel2of35{ LPA 709/201-1 DELHI POLLUTION CONTPxOLCOMMITTEE Appellant Through Mr.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus LODHI PROPERTY CO LTD Respondent Through M.r.B.B. Gupta, Ms.Mandeep Kaur and Mr.Harsh Hari Haran, A\dvocates DELHI POLLUTION CONTROL COMMITTEE Appellant Through Mir.C. Mohan Rao and Mr.Lokesh Sharnna, Advocates with Mr.Dinesh Jindal, L.O. versus BHARTI REALTY LTD Respondent Through Mr.Dushyant Manocha and Ms.Tarunirna Vijra, Advocates LPA 866/2011 DELHI POLLUTION CONTROL COMMITTEE Appellant Through M'r.C. Mohan Rao and Mr.Lokesh Sharma, Advocates with Mr.Dinesh Jindal, L.O. versus : ANUSH FINLEASE &; CONSTRUCTION PVT LTD Respondent Through M,r.Ajay Kumar and Mr.Naveen Tayal, Advocates LPA 895/2010 & connected matters Page 13of3B h I PA 867/2011 ' DELHI POLLUTIONCONTROLCOMMITTEE Appellant Through Mr.C-Mohan Rao and Mr.LokeshSharma, Advocates with Mr.DlneshJindal, L,0. versus ^ TIRUPATI INFRAPROJECTSPVT LTD Respondent; Through Mr.AjayKumarand Mr.NaveenTayal, Advocates CORAIVI: I HOINJ'BLE MR. JUSTICE PRADEEP NANDRAJOG H05\!'BLEHS. JUSTICE PRATIBHA-RANI ; _ I ' PRADEEP NANDRAIOG, J. ! I : ,1. A batch of 38 Writ petitions was decided by a learned Single Judge vide order dated September 30, 2010. The said decision has been followed subsequently by another learned SingleJudge. Instantappealslay a challengeto the said decisions pronounced by. the learned Single Judges of this Court; and since • the reasoned decision. is the one which was pronounced on September 30, 2010, lea|rned counsel for the parties conceded that it is said decision which needs to be reflected upon by us in the appeal(s). :

¶2Writ petitions were filed challengingnotices issued by the Delhi Pollution Control .Committee

(DPCC) to the writ ^ •petitionersor penaltieslevied, which were paid under protest or bank guarantees submittjed by the writ petitioners,which were under threat of being invoked. The petitions have succeeded, not in full, but in part. Directionshave been issued to DPCC to take LPA 895/2010pt connectedmatters ; Page 14 of jo action afresh and guided iby the. decision of the learned Single Judge.

¶3The buildings ' with respect whereto action was proposed to be taken or was taken by DPCC, are of three kinds:

(i) Residential Housing Complexes,

(ii) Commercial Shopping Complexes, and

(iii) Shopping Malls. Actions were initiated or decisions were taken on the allegation -that with respect to the buildings constructed, the writ petitioners had not obtained a 'consent to establish'3S required under The Water (Prevention and Control of Pollution) Act, :1974 (hereinafter referred to as 'the Water Act') and 'consent'to operate' as required under The Aw (Prevention and Control ; of Pollution) Act, 1981 (hereinafter referred to as 'the Air Act');.

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

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

(a)

(b)

(c)

(d) i

(e) i

(f) i LPA 895/2010&connectedmatters ; Page 15of38

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

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

(h) ....... :

(i) ;

(j) ;

(k) 'trade effluent' includes any liquid, gaseous or solid substance which is discharged from any premises used| for carrying on any industry, operation or process, or^ treatment and disposal system, other tlpan domestic sewage. • 25. Restrictiofiis on new outlets and new discharges- ; V'

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

(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, whichi is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or

(b) I

(c) : ^ Provided that a person in the process of taking ;any steps to establish any industry, operation! or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, LPA 895/2010&connectedmatters i 1988, for vyhich no consent was necessary prior to 5uc|li commencement,may continue to do so fo'.r a period ot three months from such commencement or, if he has made an application'forsuch consent,within the said period of three months, till the disposal of such application.

(2) i

(3) ;

(4) ;

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

(6) :

(7) The consent referred to in sub-section (1) shall, unless given or refused earlier,,be deemed to have been given unconditionallyon the expiry of a period of four months of the making of an applicationin tlpis behalf complete in all respects to the State Board.

(8) i iPA 895/2010& connected matters 33A. Power toigiv-e 'directions.-Notwithstanding anything contained in any other law, but subject to the provisionsof this Act, and to any directions that the Central Governnnent may give in this behalf, a Boardjmay, in the exercise of its powers and performance of its functions under this Act, • • issue any directions in writing to any person, officer or authority, and such person, officer or authority shall, be bound to comply with sucli directions. | Explanatibn.-For the avoidance of doubts, it is hereby!declared that the power to issue directions! under this section includes the power to direct-

(a) the tlosure, prohibition or regulation of any industry,operationor process;or

(b) the stoppage or regulation of supply of electricity, water or any other service." I - I ' 6. . Section 2(a), 2(j), 2(l<), relevant part of Section 21 and Section 31A of Thi Air (Prevention and Control of Pollution) Act, 1981 read as under:-. I

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

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

(b)

(c) :

(d) I ^

(e) I • LPA 895/2010&connectedmatters : Page:i8of;Sa

(f) :

(g) :

(h) I • ^ '

(i) i

(j) 'emission'; means any solid or liquid or gaseous substance coming out of any chimney, duct orflue or ^ny other outlet;

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

¶21Restrictioijis on use of certain plants-

(1) Subject to the provisions of this section, no person shall, without the previous consent of the! State Board, establish or operate any industrial |plant in an air pollution control area: , ; Provided that a person operating any industrialIplant in any air pollution control . area | immediately ' before the commenciement of section of the /Air (Prevention and Control of Pollution) Amendment Act, 1987 (47 of 1987), for which noi consent was necessary prior to such commencement, may continue to, do so for a period of three months from such commencement or, if. he has made an application for such consent within the said period of: three months, till the disposal of such application.

(2) •

(3), I

(4) Within a I period of four months after the receipt of the lapplicationfor consent referred to . in sub-section i(l), the State Board shall, by order LPA 895/2010 &connected matters ' in writing, and for reasons to be recorded in the order, grant the consent applied for subject to such conditions and for such period as may be specified in ttie order, or refuse such consent: Provided that it shall be open to the State Board to cancel such consent before the expliry of the period for which it is granted lor refuse further consent after such expiry ]f the conditions subject to which such consent has been granted are not fulfilled;: I Prqvided further that before cancelling a consent or refusing a further consent under the first proviso, a reasonable opportuitiity of being heard shall be given to the perspn concerned.

(5), , I t

(6) :

(7) ^ 31A. Power to give directions.-Notwithstanding anything contained in any other law, but subject-to the provisionsof tliis Act and to any directions that the Central Government may give in this behalf, a Boatjd may, in the exercise of its powers and performance of its functions under this Act, issue any diifections in writing to any person' office or autljiority, and such person, officer or authority shall be bound to comply with such directions. Explanation. hereby decia under this se LPA 895/2010 &connected matter For the avoidance of doubts, it is Bd that the power to issue directions tion includes the power to direct-

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

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

¶7With reference to the Water Act as originally framed .in the year 1974 and as amended in the year 1988 and with reference to the Statement of Objects and Reasons of the Amending Act, the learned Single Judge has opined that the I legislative amendments;carried out in the original VVater Act were intended to expand the scope of the Water Act. The learned Single Judge has highlighted that the expression 'establish any industry, operation or \proce5s or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent'\r\ clause (a) of Sub-Section

(1) of Section 25 made it clqar that the-requireinent to obtain previous consent to establish any industry, operation or process was no longer restricted to trade effluent being discharged but would also encompass if 'sewage effluent' was discharged and with reference to the definition of 'sewage effluent' as per Section 2(g), has held that the same would ;include sewage of any kind, including domestic sewage. The: learned Single Judge has also noted the expanded definition of 'trade effluent' as per Section 2(k,) of the Water Act. Noting the; definition of the words 'operation' and 'process' in para 12 of; the decision, and thereafter noting the decisions that purposive| construction needs to be followed where the mischief which existed before passing the statute was I detected and was intended to be remedied, the learned Single Judge has concluded that collective operation or process of LPA 895/2010& connected matters 1 s/. bathingin tiie bathrooni\andsuch processesas tal<e place in the toilet and cooking and washing in the l<itchen wouldbe operations and processes contemplated by Section 25(l)(a) of the Water Act for its applicability to residential complexes. This is the conclusion arrived at in para 16, but in the immediate next para i.e. para 17, the learned Single Judge; has lodged a caveat by stating that he was not answering the question with reference to single storeyed constructions. ;

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

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

¶10Since, in all the cases, DPCC rose from the slumber after buildings were coim'pleted and put to use, the learned Single Judge opined that DPCC could not levy penalties and for which remedial action, as per the learned Single Judge, was as provided LPA 895/2010&connected matters : Page 22 of :58 I ^ in Sub-Section 5 of Section 25 of the Water Act.

¶11The argument;of DPCC that the power to give directions under Section 33A of tlie Water Act has. been negated by the learned Single Judge, w;ith reference to various decisions cited which hold that the povyer to levy penalty has to be expressly conferred by the statute.:

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

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

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

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

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

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

(vi) With the buildings . in question having already!been constructed without obtaining prior cbnsent to establish, the direction of the DPiCC that ,those who had failed to obtain prior consent to establish should now apply f9r such consent is a direction that is not cap|ableof being compliedwith. Instead the DPCC should invoke the powers under Section; 25(5) of the Water Act, issue show cause ; notices setting out the conditionalities required to be complied with within a time frame and upon failure to, do so, iinvoke the powers to issue directions under Section 33A Water Act.

(vii) The Water Act is in a separate domain and its provisions will have to be complied with notwithstanding that the MCD has the power !to lay down a separate set of regulations and bye-laws for use of water. Where an applicant has not been communicated any decision of the DPCC for four months after the making of an application, the deeming provision of Section 25(7) would kick in and it would, be deemed that the consent to establish has been granted. In such circumstances. Section 25(1) of the Water Act cannot LPA8g5/2010&connected matters: - Page24of38 3o obviously thereaftler be driforced."

¶13Discussing the; applicability of the Air Act, as conceded to by learned counsel fonthe parties at the hearing of the; appeal the learned Single Judge has inadvertently referred to the pre-amended provisions of the Air Act, though the learned SingleJudge has referred and noted ithe fact that the Air Act of 1981 was amended in the year 1988. .14. Pertaining ,to riesidential. complexes, the learned Single judge has noted the unajmended Section 21 of the Air Act which did not have the word 'establish' and had only the word 'operate' in Sub-Section 1 thereof! and thus the learned Single Judge has held, that no permission from DPCC is needed to establish residential complexes, but on the same reasoning as followed in paras 19 and 20 pertainiijigto the Water Act, has held that during constructionphase of resjdentialcomplexes,permissionunder the Air Act has to be obtained. Qua shopping complexes and shopping malls, it has been held that under the Air Act, for these complexes, to operate them, prior permission has to be obtained as also, during construction phase.

¶15The learned Single Judge has summarized the position under the Air Act, in para 141 as under:- "41. The position under the Air Act may be • summarized: !

(i) A collective reading of Section 21(1) of the • Air Act withiSection 2(a), 2(b) and 2(1<) thereof leads this fcourt to the conclusion that a commercial ishopping complex or a shopping mall would ; be covered within the scope of Section 21(1:) of the Air Act. • LPA 895/2010&connectedmatters ; Page IS ofsa J 3'^

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

(iii)As far as; a purely residential complex is concerned, on the present wording of Secti.on 21(1) of the Air Act, there is no requirement of obtaining the prior consent of the DPCC to operate. ;

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

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

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

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

¶18The Water Act does not define,'industry','operation'or 'process'. As held in the decisions reported as 1993 (3) SC 2529 Commissioner of Income tax Orissa vs. l\^/5.N.C.BLidhiraia • and 2010 (320) ITR 420 (oblhi) Ansa!Housing&ConstructionLtd._ 1/5. Commissioner of Incorhe Tax, the ordinary dictionary meaning of 'industry' or an 'industrial undertaking' would not include the. activity of construction. The word 'operation' is defined, as noted by the learned Single Judge, in the New Shorter Oxford English Dictionary (Lesie Brown Ed.;) as follows; "operation: An action,' deed; exertion of force or influence; working!, activity; an act of a practical or technical nature,! esp one forming a step in a process." ; . • I i'

¶19The same dictiohary defines 'process', as noted by the learnedSingleJudge, as un'der;- "process : The acti:on or fact of going on or being carried on; a contiriuous series of actions, events or changes; a systematic series of actions or operations , directed at a particular end."

¶20As noted hbrein above, applying purposive I construction, the learned Single Judge has held, in para 15, that the two words 'operation'! and 'process' have to be given their widest amplitude and mjeaning.. The purposive construction LPA895/2010&connectedmatters ' 3M applied by t^^e learnedSingleJud'ge is that widestamplitudeneeds to be given to Section25(;l)(a)ofthe WaterAct. 2x_ The error comtnitted by the learned Single Judge is to mechanicallynote the definitionof 'operation and ptocess, and ignore the sweep of the span of the two words. We do so. Operation is defined as ;an activity or an act of a praLlical oi technical nature, witli ernphasis of the acts forming a step in a process': The word 'process'\sa going on action or a continuous series of actions 'directedat a particuiar end. Thus, an opeiation would be a working or ;an activity, where the core of the act constituting, the activity; is of a practical or technical— especially one formino a step in a process, and since process is an goinq on action or si continuous series of action djre^,^L_a|L_9 particular end, the conjoiintreading of an operation and a process or even if the two have to be read disjunctively would mean that : the expression 'establish or tal<e any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is iil<.ely to dischargesewage or trade would mean to t^e..stej35_to, establishment or undertaking where_yne establish anv industry, activity is of a practical or technic. operation or process i. nature, at the core of which are onqoino acts, in a 5erie!3^.dii.j^t_ed. us, the .act of ablution in the toilet .or dishes in the kitchen of a residential nets of residential flats, by .no stretch ot or labeled as an operation or a process. at a particular end. T washing vegetables an complex, within the prec imagination can be calle

¶22The view tak^n by the learned Single Judge pertaining LPA 895/2010& connected matters to shopping malls and comiTiercial shopping complexes on the applicabilityof the Water Act is accordinglyupheld and the view taken pertainingto the applicabilityof the Water /Act to residential, housing complexes is incorrect.

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

¶24With respect to; the decisions reported as 1993 (3) 5C 2529 Commissioner of Income Tax Orissa i/5. M/s.N.C.Budhiraja S: Co. and 2010 (320) ITR 420 (Delhi) Ansai Housing & Construction I Ltd. 1/5. Commissioner of Income Tax, where it has been held that constructing a building peh-se is not an industrial activity the view taketn by the learned Sinigle Judge that constructing a building, residential purpose or to be used for a commercial shopping connplex or for shopping malls would be ar industrial activity; running contrary to the aforesaid judgments is incorrect. ,LPA 895/2010&connectedmatters I Page 2.9 of 38 0,5

¶25The reasoning of the learned Single Judge to exjoand the scope of Section 25(.l)(a) of the Water Act; that the object of the Water Act was to control water pollution in its widest amplitude and hence the reasoning that while constructing buildings, water is used and sometimes discharged thus requiring a wider meaning to be igiven, ignores that the Environment (Protection) Act 1986 deals with this .larger issue in the context of 'environment' therein being defined to include water, air and land I and the inter relationship which exists amongst them and human I beings and other living cjreatures, plants and micro-organisms. The said Act and the Rules framed under the said Act are wide enough to cover exploitatiion of water and the impact thereof on t environment and we see no vacuum in the fight against environmental degradation, by understanding the various si. ' expressions and their meaning in Section 25(l)(a) of the Water Act as adopted by us. I

¶26A word on purposive construction. It simply means that while adopting a purposiv.e approach. Courts should seek to give •. i effectto the true purposejoflegislationand must keep in view all material that bears on thd background against which a legislation was effected and where more than one construction is possible, " I the' one which eliminates the mischief identified should be favoured. But, where only, one construction is possible, the Court I ^ is not to strain backwards and then bend forward followed by •leaning to the left and the;n to the right to appropriate a space not intended to be appropriated by.the legislation. The Water Act requires prior permission;to establish any industry, operation oi" -1 LPA 895/2010&connectedmatters i Page3!Oof38 process which is lil<ely to di|schargesewage or. trade effluent. It is ' I • - not intended to apply to lali and sundry establishments. It is restricted to only when a building, housing an industry is sought to be established or a building in which an operation or a process is intended to be carried on where effluent or trade effluent would be , discharged. : '

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

¶28Pertaining to the Air Act/there is a material difference in the language used in Section 21 of the said Act, vis-a-vis the language used in Section 25 of the Water Act. Whereas the Water Act requires a permission to establish any industry, operation or process, the Air Act restricts its span to prior permission being necessary only where it is intended to establish or operate any industrial plant. Since the learned Single Judge has referred to the has ignored the amendments carried year 1988, we note that as per the . ai'nended Section 21, the bbligation to obtain the consent of the State Pollution Control Board is only to establish or operate any LPA 895/2010&connected matters >

¶29^•^unamended provision and out to the Air Act in the industrial plant in an Air jPoliution Control. Area. Section 2(k) defines an 'industrial plant' to mean any plant used for any - industrial or trade purposesland enn|tting any air pollutant. I

¶30The learned Single Judge has read the unarnended Section 21 of the Air Act to| nnean that prior consent is needed to ,• operate an industrial plant. Since the decision of the learned Single Judge has not noted|the language of the amended Section ' where the words 'establish or' have been inserted prior to the i I word 'operate', we need to re-lool< into the issue.

¶31Highlighting the definition of the words 'industrial plant' as defined in Section 2(l<) of the Air. Act, the learned Single Judge • • has noted that the definition expands the meaning of the words 'industrial plant' to include 'a building used for a trade purpose and with reference to Section 21 of the Air Act has held that a building • i • where trade is carried on the prior consent would be required to operate the building. ; . 32. Since the learned Single Judge has noted the unamended Section, and since the amended Section requires prior consent even to establish an industrial plant in an Air Pollution Control Area; agreeing with the reasoning of the learned SingleJudge that iiji view of the extended definitionof the expression 'industrial plant', which incl.udes a building where trade is carried on, the inevitable] conclusion has to be that prior consent -^under the Air Act would be |neededwhere a building is proposedto be constructed wherefrom: trade would be carried on and since from a shopping mall and Ifrom a commercial shopping complex trade is carried on, we hold that prior consent under the Air Act LPA 895/2010&connectedmatters i • 3? would be required when :commercial shopping complexes and shopping malls are established i.e. at the commencemientof the process of establishment! i.e. before-the building construction activity commences. ;

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

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

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

¶36The learned Single Judge has noted the decisions reported as 1975 (2) SCC 22 Khemka & Co. (Agencies) Pvt. Ltd. LPA 895/2010&connectedmatters : Page 33of38 3^ . state of Maharashtra, 1994 (4) 5CC 276 J.K.SyntheticsLt^_&_BjrM Cement Works vs. Commercial Taxes Officerd.n61997 (6) SCC 479 India Carbon Ltd. vs. State of Assam to opine that power to levy penalty has to be conferred by a substantive provision in the enactment. ; .

¶37We concur with the reasoning of the learned Single Judge in paras 58 to 64 of: the impugned decision and thus do not elaborate any further, but would additionally highlight that the power to issue directionsUnder Section 33A of the Water Act and the power to issue directionsunder Section 31A of the Air Act', on their plain language, does not confer the power to levy any penalty. We would further highlightthat under ChapterVII of the Water Act, and under Chapter VI of the Air Act penalties and procedureto levy the same have been set out. l\ perusal of the provisionsunder the Water Act would reveal that penaltiescan be levied as per procedure;prescribed and only Courts can take cognizanceof offences uriderthe Act and levy penalties,whether by way of imprisonmentor fine. Similar is the position undei the Air Act. The legislature having enacted specific provisionsfor levy of penaltiesand proceduresto be followed has specificallymade the offences cognizable by Courts and the power to levy penalties under both Acts has been vested in the Courts. The role of the PollutionControl Boards is to initiate proceedings before the Court of Competent Jurisdiction land no more.

¶38We would be failing not to note that on the issue of a delegatee not being empowered (by law) to further sub-delegate: the delegated power, learned counsel for DPCC conceded to said LPA 895/2010&connectedmatters : ifo . ^ position and thus we leave undisturbed the view taken by the • learned Single Judge, on the subject. •

¶39Since our reasoning aforesaid results in the finding, by way of interpretingthe provisionsin the WaterAct and the Air Act, as requiring prior consentto establishand operate shopping malls and commercial shopping:complexes and the provisions being not applicable to residential: complexes, we declare void actions • initiated by DPCC pertaining to residential complexes and we further hold that said writ petitions are allowed in tenns of the prayers made. The impugned decision(s) by the learned Single Judge(s) qua residential^complexes is set aside. Qua shopping malls and commercial shopping complexes, since we have held that prior permission is: required under both Acts to establish shopping malls and commercial shopping complexes as also to operate them and noting:that even DPCC was not too sure of the, legal position and thus' misinformed a few applicants that no permissionwas required and qua most persons permittedthem to commence and complete construction of shopping malls and commercialshoppingcomplexes,the question which now needs to be answered is: Whether, pertaining to the Water Act, Sub-Section 5 of Section 25. is the an$wer to what needs to be done and in the absence of a similar provision in the Air Act, what action needs to 'V • be .directed to be taken. ;

¶40- The language of Sub-Section 5 of Section 25 of the Water Act makes it plain clear that the only solutionto a situation of a building being constructedto establishan industry,operation or process without obtaining prior consent of the State Pollution LPA 895/2010&connectedmatters; of ;i.a •, i Control Board is the power of the Board to serve upon the person concerned a notice imposing such conditions as might have been imposed on an application seel<ing prior consent; and we find that , the learned Single Judge has correctly so opined and has rightly issued the direction that the only v\iay out, pertaining to the Water Act, is to permit DPCC to inspect the shopping malls and the shopping commercial complexes and if it is found that pertaining to discharge of sewage from these buildings any steps are required to prevent water pollution, DPCC would be authorized to issue notices requiring the owner of the building to take steps in . terms of the notice | issued. Pertaining to the Air Act, notwithstanding there being no similar provision, but the concept of a post decisional hearing may be made applicable with 'the modification thpt no hea|ring would be required inasmuch as there is no decision, but DPCC should be empowered to inspect the shopping malls and th:e shopping commercial complexes and pertaining to air pollution, if any deficiencies are found, to notify the same to the owner; requiring corrective action to be taken. Needless to state, if the owners of the buildings do not take corrective action, DPCC would always have the power to file criminal complaints before the Courts of Competent Jurisdiction, which Courts would alo;ne have the power to impose fine and additionally impose sentence of imprisonment upon the offending persons. :

¶41On the issue;of Air Pollution, we would like to pen a I ' ' post-script pertaining to!shopping complexes and shopping malls for the reason the only pctivity of air pollution in these buildings LPA 895/2010&connectedmatters ^ Page 36 of38 would be through the air conditioning plants and generators installed to supply electi^icityto the buildings in case of power cuts, for the reason the ^ade of sale and purchase of goods in these complexes does not entail any activity which causes air pollution. We find that pertaining to DG sets, permissions in any case have to be obtained from DPCC if the capacity of the Db set is beyond a prescribed; wattage and thus DPCC may suitably reconsider all shopping •complexes and shopping malls where - consent of DPCC has been obtained with respect to DG sets installed as also air-conditioning plants installed in the buildings, for if for the DG sets and air-conditioning plants, sanctions have already been obtained,; nothing further remains to be got sanctioned under the Air Act;

¶42In a -few casjes, we find that since DPCC was not permitting the buildings to be occupied, under protest, the owners paid the penalty to DPCC and have immediately approached the Court seeking refund and the same has been ordered for the reason neither under the Water Act nor under the Air Act there exists any power in DPCC to levy penalty or impose conditions of furnishing bank guarantee. The decision of the learned Single , Judge is correct in directing the bank guarantees to be discharged and penalties levied to be refunded for the reason the said act of DPCC is ultra-vires its power under the two statutes and the Jevy of penalty is without any ;authority of law. In the decision reported . , as 1997 (5) 5CC 536 Mafatlal Industries.Ltd. & Ors. vs. UOl & Ors.. under writ jurisdiction refund can be directed where the levy is without jurisdiction and the same would include a penalty levied LPA 895/2010 &connected matters ; Page37 of 33 without any jurisdiction. In the instant case the penalty levied is unconstitutional being not sanctioned by any power vested in DPCC either under the Water Act or the Air Act. The impugned decisions where penalty levied has been directed to be refundec: are upheld. d by DPCC are dismissed and the cross Bd in terms of paras 27, 33, 34 and 39

¶43The appeals fil objections filed are allow above.

¶44We leave the p

¶45All interim orde LPA 895/2010 & cdnnecled.matters arties to bear their own costs, rs stand vacated. • r'T Page 38 of 3S