//
you're reading...
legal issues

Since our reasoning aforesaid results in the finding, by way of interpreting the provisions in the Water Act and the Air Act, as requiring prior consent to establish and operate shopping malls and commercial shopping complexes and the provisions being not applicable to residential complexes, we declare void actions initiated by DPCC pertaining to residential complexes and we further hold that said writ petitions are allowed in terms of the prayers made=The buildings with respect whereto action was proposed to be taken or was taken by DPCC, are of three kinds: (i) Residential Housing Complexes, (ii) Commercial Shopping Complexes, and (iii) Shopping Malls. Actions were initiated or decisions were taken on the allegation that with respect to the buildings constructed, the writ petitioners had not obtained a „consent to establish‟ as required under The Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as „the Water Act‟) and „consent to operate‟ as required under The Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as „the Air Act‟).

LPA 895/2010 & connected matters Page 1 of 38

Air Pollution Control Device

Image via Wikipedia

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : 16th January 2012
Judgment Pronounced on: 23rd January, 2012
+ LPA 895/2010
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through: Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
SPLENDOR LANDBASE LTD ….. Respondent
Through: Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 1/2011 & CM No.6781/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
SACHDEVA BUILDON PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 6/2011 & CM No.6779/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
LPA 895/2010 & connected matters Page 2 of 38
versus
VARDHMAN PROPERTIES LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
LPA 7/2011 & CM No.6780/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
VARDHMAN PROPERTIES LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
LPA 8/2011 & CM No.6782/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
VARDHMAN PROPERTIES LTD & ORS ….. Respondents
Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi
Kothiala, Ms.Praneeta Vir and Mr.Sanjay
Goswami, Advocates
LPA 9/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
MANISH BUILDWELL PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
LPA 895/2010 & connected matters Page 3 of 38
LPA 10/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
MANISH BUILDWELL PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
LPA 11/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
VARDHMAN LAND DEVELOPERS PVT
LTD & ANR ….. Respondents
Through None
LPA 22/2011 & CM No.6824/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
PANKAJ BUILDWELL LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 23/2011 & CM No.6832/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
LPA 895/2010 & connected matters Page 4 of 38
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
RAJESH PROJECTS INDIA PVT LTD & ORS. ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 24/2011 & CM No.8168/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
BEST REALTORS (INDIA) LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 25/2011 & CM No.6828/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
BEST CITY DEVELOPERS (INDIA) PVT LTD.
& ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 895/2010 & connected matters Page 5 of 38
LPA 26/2011 & CM No.6831/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
HOME LINKERS PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 27/2011 & CM No.6833/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
RAJESH PROJECTS INDIA PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 28/2011 & CM No.6826/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
VARDHMAN PROPERTIES LTD & ORS. ….. Respondents
LPA 895/2010 & connected matters Page 6 of 38
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 45/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
JINDAL BIOCHEM PVT LTD & ORS ….. Respondents
Through Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 46/2011 & CM No.8164/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
AS BUILDWELL PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 47/2011 & CM No.6825/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
LPA 895/2010 & connected matters Page 7 of 38
MAITRI MUTUAL BENEFITS LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 48/2011 & CM No.6823/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
NIRVAN HIRE PURCHASE LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 50/2011 & CM No.6827/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
NIPUN BUILDERS & DEVELOPERS PVT
LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 51/2011& CM No.6829/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
LPA 895/2010 & connected matters Page 8 of 38
versus
VARDHMAN PROPERTIES LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 53/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
ESS CEE CEE & ASSOCIATES (INDIA) PVT LTD .. Respondent
Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi
Kothiala, Ms.Praneeta Vir and Mr.Sanjay
Goswami, Advocates
LPA 54/2011 & CM No.6004/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
FARGO ESTATES PVT LTD ….. Respondent
Through Mr.Ankit Jain, Advocate
LPA 58/2011& CM No.6830/2011 (Cross Objections)
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
LPA 895/2010 & connected matters Page 9 of 38
VARDHMAN PROPERTIES LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 94/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
DLF RETAILER DEVELOPERS LTD ….. Respondent
Through Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 95/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
LAXMI BUILDTECH PVT LTD & ANR ….. Respondents
Through Mr.Kailash Vasdev, Sr. Advocate with
Ms.Neoma Vasdev Gupta, Ms.Ekta Mehta
and Ms.Joanne Pudussery, Advocates for
respondent No.1.
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 96/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
LPA 895/2010 & connected matters Page 10 of 38
Advocates with Mr.Dinesh Jindal, L.O.
versus
MANISH BUILDWELL PVT LTD & ORS ….. Respondents
Through Mr.Sanjay Goswami, Advocate for R-1
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 97/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
BRIGHTWAYS HOUSING & DEVELOPMENT
LTD & ANR ….. Respondents
Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi
Kothiala and Ms.Praneeta Vir, Advocates
for R-1.
Mr.Neeeraj Chaudhari, CGSC with
Mr.Akshay Chandra and Mr.Khalid Arshad,
Advocates for UOI
LPA 98/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
DLF COMMERCIAL DEVELOPERS LTD ….. Respondent
LPA 895/2010 & connected matters Page 11 of 38
Through Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 99/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
GALLERIA PROPERTY MANAGEMENT
SERVICES PVT LTD ….. Respondent
Through Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 100/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
PROSPEROUS ESTATES PVT LTD ….. Respondent
Through None
LPA 101/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
REGENCY PARK PROPERTY MANAGEMENT
SERVICES PVT LTD ….. Respondent
Through Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 895/2010 & connected matters Page 12 of 38
LPA 102/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
PALIWAL DEVELOPERS LTD ….. Respondent
Through Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 103/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
RIDGE VIEW CONSTRUCTION PVT LTD ….. Respondent
Through Mr.Anil Sapra, Sr. Advocate with Ms.Urvi
Kothiala and Ms.Praneeta Vir, Advocates.
LPA 104/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.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 & connected matters Page 13 of 38
LPA 709/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
LODHI PROPERTY CO LTD ….. Respondent
Through Mr.B.B. Gupta, Ms.Mandeep Kaur and
Mr.Harsh Hari Haran, Advocates
LPA 710/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
BHARTI REALTY LTD ….. Respondent
Through Mr.Dushyant Manocha and Ms.Tarunima
Vijra, Advocates
LPA 866/2011
DELHI POLLUTION CONTROL COMMITTEE ….. Appellant
Through Mr.C. Mohan Rao and Mr.Lokesh Sharma,
Advocates with Mr.Dinesh Jindal, L.O.
versus
ANUSH FINLEASE & CONSTRUCTION PVT
LTD ….. Respondent
Through Mr.Ajay Kumar and Mr.Naveen Tayal,
Advocates
LPA 895/2010 & connected matters Page 14 of 38
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 NANDRAJOG, J.
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
Single Judge. Instant appeals lay a challenge to the said decisions
pronounced by the learned Single Judges of this Court; and since
the reasoned decision is the one which was pronounced on
September 30, 2010, learned counsel for the parties conceded
that it is said decision which needs to be reflected upon by us in
the appeal(s).
2. Writ petitions were filed challenging notices issued by
the Delhi Pollution Control Committee (DPCC) to the writ
petitioners or penalties levied, which were paid under protest or
bank guarantees submitted by the writ petitioners, which were
under threat of being invoked. The petitions have succeeded, not
in full, but in part. Directions have been issued to DPCC to take
LPA 895/2010 & connected matters Page 15 of 38
action afresh and guided by the decision of the learned Single
Judge.
3. The buildings with respect whereto action was
proposed to be taken or was taken by DPCC, are of three kinds: (i)
Residential Housing Complexes, (ii) Commercial Shopping
Complexes, and (iii) Shopping Malls. Actions were initiated or
decisions were taken on the allegation that with respect to the
buildings constructed, the writ petitioners had not obtained a
„consent to establish‟ as required under The Water (Prevention and
Control of Pollution) Act, 1974 (hereinafter referred to as „the
Water Act‟) and „consent to operate‟ as required under The Air
(Prevention and Control of Pollution) Act, 1981 (hereinafter
referred to as „the Air Act‟).
4. Issues have been debated before the learned Single
Judge and even before us with reference to Sections 2(g), 2(gg),
2(k), Section 25 and Section 33A of the Water Act, and Sections
2(a), 2(j), 2(k), Section 21 and Section 31A of the Air Act. Thus, we
begin our chartered journey by noting the said provisions.
5. Section 2(g), 2(gg), 2(k), relevant part of Section 25
and Section 33A of The Water (Prevention and Control of Pollution)
Act, 1974 read as under:-
“2. Definitions.– In this Act, unless the context
otherwise requires,–
(a) ……
(b) ……
(c) ……
(d) ……
(e) ……
(f) ……
LPA 895/2010 & connected matters Page 16 of 38
(g) „sewage effluent‟ means effluent from any
sewerage system or sewage disposal works and
includes sullage from open drains;
(gg) „sewer‟ means any conduit pipe or channel,
open or closed, carrying sewage or trade effluent;
(h) …….
(i) …….
(j) …….
(k) „trade effluent‟ includes any liquid, gaseous
or solid substance which is discharged from any
premises used for carrying on any industry,
operation or process, or treatment and disposal
system, other than domestic sewage.
25. Restrictions on new outlets and new
discharges.–
(1) Subject to the provisions of this section, no
person shall, without the previous consent of the
State Board,–
(a) establish or take any steps to establish any
industry, operation or process, or any treatment
and disposal system or any extension or addition
thereto, which is likely to discharge sewage or
trade effluent into a stream or well or sewer or on
land (such discharge being hereafter in this
section referred to as discharge of sewage); or
(b) ………
(c) ………
Provided that a person in the process
of taking any steps to establish any industry,
operation or process immediately before the
commencement of the Water (Prevention
and Control of Pollution) Amendment Act,
LPA 895/2010 & connected matters Page 17 of 38
1988, for which no consent was necessary
prior to such commencement, may continue
to do so for a period of three months from
such commencement or, if he has made an
application for such consent, within the said
period of three months, till the disposal of
such application.
(2) ……..
(3) ……..
(4) ……..
(5) Where, 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 outlet is brought into use for the
discharge of sewage or a new discharge of
sewage is made, the State Board may serve on
the person who has established or taken steps to
establish any industry, operation or process, or
any treatment and disposal system or any
extension or addition thereto, or using the outlet,
or making the discharge, as the case may be, a
notice imposing any such conditions as it might
have imposed on an application for its consent in
respect of such establishment, such outlet or
discharge.
(6) ……..
(7) The consent referred to in sub-section (1)
shall, unless given or refused earlier, be deemed
to have been given unconditionally on the expiry
of a period of four months of the making of an
application in this behalf complete in all respects
to the State Board.
(8) …….
LPA 895/2010 & connected matters Page 18 of 38
33A. Power to give directions.– Notwithstanding
anything contained in any other law, but subject
to the provisions of this Act, and to any directions
that the Central Government may give in this
behalf, a Board may, in the exercise of its powers
and performance of its functions under this Act,
issue any directions in writing to any person,
officer or authority, and such person, officer or
authority shall be bound to comply with such
directions.
Explanation.– For the avoidance of doubts, it
is hereby declared that the power to issue
directions under this section includes the
power to direct–
(a) the closure, prohibition or regulation of
any industry, operation or process; or
(b) the stoppage or regulation of supply of
electricity, water or any other service.”
6. Section 2(a), 2(j), 2(k), relevant part of Section 21
and Section 31A of The Air (Prevention and Control of
Pollution) Act, 1981 read as under:-
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 injurious to human beings or other
living creatures or plants or property or
environment;
(b) …..
(c) …..
(d) …..
(e) …..
LPA 895/2010 & connected matters Page 19 of 38
(f) …..
(g) …..
(h) …..
(i) …..
(j) „emission‟ means any solid or liquid or
gaseous substance coming out of any chimney,
duct or flue or any other outlet;
(k) „industrial plant‟ means any plant used for
any industrial or trade purposes and emitting any
air pollutant into the atmosphere;
21. Restrictions on use of certain industrial
plants.– (1) Subject to the provisions of this
section, no person shall, without the previous
consent of the State Board, establish or operate
any industrial plant in an air pollution control
area:
Provided that a person operating any
industrial plant in any air pollution control
area immediately before the
commencement of section 9 of the Air
(Prevention and Control of Pollution)
Amendment Act, 1987 (47 of 1987), for
which no consent was necessary prior to
such commencement, may continue to do
so for a period of three months from such
commencement or, if he has made an
application for such consent within the said
period of three months, till the disposal of
such application.
(2) …….
(3) ……
(4) Within a period of four months after the
receipt of the application for consent referred to
in sub-section (1), the State Board shall, by order
LPA 895/2010 & connected matters Page 20 of 38
in writing, and for reasons to be recorded in the
order, grant the consent applied for subject to
such conditions and for such period as may be
specified in the order, or refuse such consent:
Provided that it shall be open to the
State Board to cancel such consent before
the expiry of the period for which it is
granted or refuse further consent after such
expiry if the conditions subject to which
such consent has been granted are not
fulfilled:
Provided further that before cancelling
a consent or refusing a further consent
under the first proviso, a reasonable
opportunity of being heard shall be given to
the person concerned.
(5) ……..
(6) ……..
(7) …….
31A. Power to give directions.– Notwithstanding
anything contained in any other law, but subject
to the provisions of this Act and to any directions
that the Central Government may give in this
behalf, a Board may, in the exercise of its powers
and performance of its functions under this Act,
issue any directions in writing to any person,
office or authority, and such person, officer or
authority shall be bound to comply with such
directions.
Explanation.– For the avoidance of doubts, it is
hereby declared that the power to issue directions
under this section includes the power to direct–
LPA 895/2010 & connected matters Page 21 of 38
(a) the closure, prohibition or regulation of any
industry, operation or process; or
(b) the stoppage or regulation of supply of
electricity, water or any other service.
7. With 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
legislative amendments carried out in the original Water Act were
intended to expand the scope of the Water Act. The learned
Single Judge has highlighted that the expression „establish any
industry, operation or process or any treatment and disposal
system or any extension or addition thereto, which is likely to
discharge sewage or trade effluent‟ in clause (a) of Sub-Section (1)
of Section 25 made it clear that the requirement to obtain previous
consent to establish any industry, operation or process was no
longer restricted to trade effluent being discharged but would also
encompass if „sewage effluent‟ was discharged and with reference
to the definition of „sewage effluent‟ as per Section 2(g), has held
that the same would include sewage of any kind, including
domestic sewage. The learned Single Judge has also noted the
expanded definition of „trade effluent‟ as per Section 2(k) of the
Water Act. Noting the definition of the words „operation‟ and
„process‟ in para 12 of the decision, and thereafter noting the
decisions that purposive construction needs to be followed where
the mischief which existed before passing the statute was
detected and was intended to be remedied, the learned Single
Judge has concluded that collective operation or process of
LPA 895/2010 & connected matters Page 22 of 38
bathing in the bathroom and such processes as take place in the
toilet and cooking and washing in the kitchen would be operations
and processes contemplated by Section 25(1)(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.
8. With reference to the commercial complexes i.e.
Commercial Shopping Complexes and Shopping Malls, the learned
Single Judge has held that the definition of „trade effluent‟ as per
Section 2(k) would encompass all kinds of non-domestic sewage
and has thus held that these buildings would be governed by
clause (a) of Sub-Section 1 of Section 25 of the Water Act.
9. As regards the very act of constructing a building, in
paras 19 and 20, the learned Single Judge has held that the very
act of constructing a commercial shopping complex, shopping mall
or a residential complex would make applicable clause (a) of Sub-
Section 1 of Section 25 and for which the reasoning of the learned
Single Judge is that construction of commercial shopping or
residential complexes is likely to have impact on water pollution
because large quantities of water are used during construction and
are also discharged.
10. Since, in all the cases, DPCC rose from the slumber
after buildings were completed and put to use, the learned Single
Judge opined that DPCC could not levy penalties and for which
remedial action, as per the learned Single Judge, was as provided
LPA 895/2010 & connected matters Page 23 of 38
in Sub-Section 5 of Section 25 of the Water Act.
11. The argument of DPCC that the power to give directions
under Section 33A of the Water Act has been negated by the
learned Single Judge, with reference to various decisions cited
which hold that the power to levy penalty has to be expressly
conferred by the statute.
12. Pertaining to the Water Act, the learned Single Judge
has summarized the legal position, in para 29 as under:-
“29. The discussion so far on the legal position
under the Water Act in relation to the petitioners
may be summarized thus:
(i) Section 25 (1) of the Water Act is intended
to cover not just „industry‟ which discharges
„trade effluent‟ but any „process or
operation‟ that results in a discharge of
„sewage‟ not limited to trade effluent.
(ii) The words „operation or process‟ occurring
in Section 25(1)(a) have to be given the
widest possible meaning and scope. This
approach is consistent with the SOR of the
1988 amendments to the Water Act which
make it clear that the legislative intent was
to expand the scope of the regulatory
powers of the state PCC. The principle of
ejusdem generis is therefore inapposite in
the context.
(iii) Commercial shopping complexes, shopping
malls and even residential complexes are
covered by Section 25(1)(a) of the Water
Act.
(iv) The liability under the Water Act does not
get exempted only because the sewage
LPA 895/2010 & connected matters Page 24 of 38
discharged from such complexes joins the
main municipal sewerage system which
may or may not be treated in keeping 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 consent to establish, the direction of
the DPCC that those who had failed to
obtain prior consent to establish should now
apply for such consent is a direction that is
not capable of being complied with. Instead
the DPCC should invoke the powers under
Section 25(5) of the Water Act, issue show
cause notices setting out the
conditionalities required to be complied
with within a time frame and upon failure to
do so, invoke the powers to issue directions
under Section 33A Water Act.
(vii) The Water Act is in a separate domain and
its provisions will have to be complied with
notwithstanding that the MCD has the
power to lay down a separate set of
regulations and bye-laws for use of water.
Where an applicant has not been communicated any
decision of the DPCC for four months after the making
of an application, the deeming provision of Section
25(7) would kick in and it would be deemed that the
consent to establish has been granted. In such
circumstances, Section 25(1) of the Water Act cannot
LPA 895/2010 & connected matters Page 25 of 38
obviously thereafter be enforced.”
13. Discussing the applicability of the Air Act, as conceded
to by learned counsel for the parties at the hearing of the appeal,
the learned Single Judge has inadvertently referred to the preamended
provisions of the Air Act, though the learned Single Judge
has referred and noted the fact that the Air Act of 1981 was
amended in the year 1988.
14. Pertaining to residential complexes, the learned Single
Judge has noted the unamended Section 21 of the Air Act which
did not have the word „establish‟ and had only the word „operate‟
in Sub-Section 1 thereof, and thus the learned Single Judge has
held that no permission from DPCC is needed to establish
residential complexes, but on the same reasoning as followed in
paras 19 and 20 pertaining to the Water Act, has held that during
construction phase of residential complexes, permission under the
Air Act has to be obtained. Qua shopping complexes and shopping
malls, it has been held that under the Air Act, for these complexes,
to operate them, prior permission has to be obtained as also
during construction phase.
15. The learned Single Judge has summarized the position
under the Air Act, in para 41 as under:-
“41. The position under the Air Act may be
summarized:
(i) A collective reading of Section 21(1) of 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
mall would be covered within the scope of
Section 21(1) of the Air Act.
LPA 895/2010 & connected matters Page 26 of 38
(ii) The definition of „air pollution‟ under Section
2(a) read with 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.
(iii) As far as a purely residential complex is
concerned, on the present wording of Section
21(1) of the Air Act, there is no requirement of
obtaining the prior consent of the DPCC to
operate.
(iv) During the construction phase and after the
complex becomes functional, every building,
whether it is a commercial shopping complex or
a shopping mall or a residential complex, will
have to comply with the norms under the Air
Act and the Water Act and for that matter the
EPA.
(v) Where the construction of a commercial
shopping complex or shopping mall has been
allowed to be completed without a prior consent
to operate, the DPCC can inspect the building,
issue a show cause notice requiring time bound
compliance with the conditionalities imposed by
it under the Air Act failing which it can issue
directions under Section 31A Air Act.”
16. A perusal of Section 25 of the Water Act would reveal,
on a bare reading thereof, that without the previous consent of the
State Pollution Board, „no person could establish or take any steps
to establish any industry, operation or process,…….. which is likely
to discharge sewage or trade effluent ‟. Thus, even if sewage
effluent as defined in Section 2(g) was discharged from any
LPA 895/2010 & connected matters Page 27 of 38
industry, operation or process intended to be established, the
requirement of prior consent would be necessary and to this
extent the view taken by the learned Single Judge is correct.
17. But, what would encompass „any industry, operation or
process‟?
18. The 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. M/s.N.C.Budhiraja & Co.
and 2010 (320) ITR 420 (Delhi) Ansal Housing & Construction Ltd.
vs. Commissioner of Income 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.”
19. The same dictionary defines „process‟, as noted by the
learned Single Judge, as under:-
“process : The action or fact of going on or being
carried on; a continuous series of actions, events or
changes; a systematic series of actions or operations
directed at a particular end.”
20. As noted herein above, applying purposive
construction, the learned Single Judge has held, in para 15, that
the two words „operation‟ and „process‟ have to be given their
widest amplitude and meaning. The purposive construction
LPA 895/2010 & connected matters Page 28 of 38
applied by the learned Single Judge is that widest amplitude needs
to be given to Section 25(1)(a) of the Water Act.
21. The error committed by the learned Single Judge is to
mechanically note the definition of „operation‟ and „process‟, and
ignore the sweep of the span of the two words. We do so.
Operation is defined as an activity or an act of a practical or
technical nature, with emphasis of the acts forming „a step in a
process‟. The word „process‟ is a going on action or a continuous
series of actions „directed at a particular end‟ . Thus, an operation
would be a working or an activity, where the core of the act
constituting the activity is of a practical or technical nature
especially one forming a step in a process, and since process is an
going on action or a continuous series of action directed at a
particular end, the conjoint reading of an operation and a process
or even if the two have to be read disjunctively would mean that
the expression „establish or take any steps to establish any
industry, operation or process, or any treatment and disposal
system or any extension or addition thereto, which is likely to
discharge sewage or trade effluent‟ would mean to take steps to
establish any industry, establishment or undertaking where the
operation or process i.e. activity is of a practical or technical
nature, at the core of which are ongoing acts, in a series, directed
at a particular end. Thus, the act of ablution in the toilet or
washing vegetables and dishes in the kitchen of a residential
complex, within the precincts of residential flats, by no stretch of
imagination can be called or labeled as an operation or a process.
22. The view taken by the learned Single Judge pertaining
LPA 895/2010 & connected matters Page 29 of 38
to shopping malls and commercial shopping complexes on the
applicability of the Water Act is accordingly upheld and the view
taken pertaining to the applicability of 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 operation and or process is carried on
for the reason they would be places where the activity carried on
is of a practical or a technical nature and at the core of which
activity would be ongoing acts, in a series, directed at a particular
end i.e. if goods are purchased and sold, the sale and purchase of
goods; and if service is rendered, the rendition of service directed
towards a particular end. If from these buildings sewage is
discharged, since sewage effluent as defined in Section 2(k) of the
Water Act means effluent from any sewage system, if these
buildings are intended to be established, necessary permission
would be required from the Board under the Water Act.
24. With respect to the decisions reported as 1993 (3) SC
2529 Commissioner of Income Tax Orissa vs. M/s.N.C.Budhiraja &
Co. and 2010 (320) ITR 420 (Delhi) Ansal Housing & Construction
Ltd. vs. Commissioner of Income Tax, where it has been held that
constructing a building per-se is not an industrial activity the view
taken by the learned Single Judge that constructing a building,
whether to be used for a residential purpose or to be used for a
commercial shopping complex or for shopping malls would be an
industrial activity; running contrary to the aforesaid judgments is
incorrect.
LPA 895/2010 & connected matters Page 30 of 38
25. The reasoning of the learned Single Judge to expand
the scope of Section 25(1)(a) of the Water Act; that the object of
the Water Act was to control water pollution in its widest
amplitude and hence the reasoning that while constructing
buildings, water is used and sometimes discharged thus requiring
a wider meaning to be given, ignores that the Environment
(Protection) Act 1986 deals with this larger issue in the context of
„environment‟ therein being defined to include water, air and land
and the inter relationship which exists amongst them and human
beings and other living creatures, plants and micro-organisms.
The said Act and the Rules framed under the said Act are wide
enough to cover exploitation of water and the impact thereof on
environment and we see no vacuum in the fight against
environmental degradation, by understanding the various
expressions and their meaning in Section 25(1)(a) of the Water Act
as adopted by us.
26. A word on purposive construction. It simply means that
while adopting a purposive approach, Courts should seek to give
effect to the true purpose of legislation and must keep in view all
material that bears on the background against which a legislation
was effected and where more than one construction is possible,
the one which eliminates the mischief identified should be
favoured. But, where only one construction is possible, the Court
is not to strain backwards and then bend forward followed by
leaning to the left and then to the right to appropriate a space not
intended to be appropriated by the legislation. The Water Act
requires prior permission to establish any industry, operation or
LPA 895/2010 & connected matters Page 31 of 38
process which is likely to discharge sewage or trade effluent. It is
not intended to apply to all and sundry establishments. It is
restricted to only when a building, housing an industry is sought to
be established or a building in which an operation or a process is
intended to be carried on where effluent or trade effluent would be
discharged.
27. To summarize the position under the Water Act the
position may be summarized thus: „Section 25(1) of the Water Act
would apply where a building is proposed to be constructed to set
up an industry or carry on an operation or a process as explained
in para 21 above and this would mean that the Water Act would
not apply to buildings housing residential apartments/units. It
would apply to all other buildings where effluent or trade effluent
is discharged, be they where manufacturing activity is carried on,
sale or purchase of goods is carried on or services are provided.
28. Pertaining to the Air Act, there is a material difference
in the language used in Section 21 of the said Act, vis-à-vis the
language used in Section 25 of the Water Act. Whereas the Water
Act requires a permission to establish any industry, operation or
process, the Air Act restricts its span to prior permission being
necessary only where it is intended to establish or operate any
industrial plant.
29. Since the learned Single Judge has referred to the
unamended provision and has ignored the amendments carried
out to the Air Act in the year 1988, we note that as per the
amended Section 21, the obligation to obtain the consent of the
State Pollution Control Board is only to establish or operate any
LPA 895/2010 & connected matters Page 32 of 38
industrial plant in an Air Pollution Control Area. Section 2(k)
defines an „industrial plant‟ to mean any plant used for any
industrial or trade purposes and emitting any air pollutant.
30. The learned Single Judge has read the unamended
Section 21 of the Air Act to mean that prior consent is needed to
operate an industrial plant. Since the decision of the learned
Single Judge has not noted the language of the amended Section
where the words „establish or‟ have been inserted prior to the
word „operate‟, we need to re-look into the issue.
31. Highlighting the definition of the words „industrial plant‟
as defined in Section 2(k) of the Air Act, the learned Single Judge
has noted that the definition expands the meaning of the words
„industrial plant‟ to include a building used for a trade purpose and
with reference to Section 21 of the Air Act has held that a building
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 21 and since the amended Section 21
requires prior consent even to establish an industrial plant in an
Air Pollution Control Area, agreeing with the reasoning of the
learned Single Judge that in view of the extended definition of the
expression „industrial plant‟, which includes a building where trade
is carried on, the inevitable conclusion has to be that prior consent
under the Air Act would be needed where a building is proposed to
be constructed wherefrom trade would be carried on and since
from a shopping mall and from a commercial shopping complex
trade is carried on, we hold that prior consent under the Air Act
LPA 895/2010 & connected matters Page 33 of 38
would be required when commercial shopping complexes and
shopping malls are established i.e. at the commencement of the
process of establishment i.e. before the building construction
activity commences.
33. As noted herein above, the learned Single Judge has
held construction per-se as requiring prior permission, both under
the Water Act and the Air Act, and thus the learned Single Judge
has held that under the Air Act, consent during construction phase
would have to be obtained.
34. For our reasoning herein above pertaining to the Water
Act, the said reasoning of the learned Single Judge pertaining to
the Air Act is overruled, but would make no difference to the final
conclusion arrived at by us pertaining to the applicability of the Air
Act when construction activity commences in respect of shopping
malls and commercial shopping complexes for the reason, prior
consent to establish the same is required on the language of
Section 21 of the Air Act in view of the expanded definition of the
expression „industrial plant‟. But, for residential complexes, we
hold that neither to establish nor to operate, (in fact the concept of
„to operate‟ is not even applicable to a residential complex), any
permission is required under the Air Act.
35. The learned Single Judge has held that neither the
language of Section 33A of the Water Act nor the language of
Section 31A of the Air Act contemplates the power on the State
Pollution Boards to levy any penalty.
36. The learned Single Judge has noted the decisions
reported as 1975 (2) SCC 22 Khemka & Co. (Agencies) Pvt. Ltd. vs.
LPA 895/2010 & connected matters Page 34 of 38
State of Maharashtra, 1994 (4) SCC 276 J.K.Synthetics Ltd. & Birla
Cement Works vs. Commercial Taxes Officer and 1997 (6) SCC 479
India Carbon Ltd. vs. State of Assam to opine that power to levy
penalty has to be conferred by a substantive provision in the
enactment.
37. We concur with the reasoning of the learned Single
Judge in paras 58 to 64 of the impugned decision and thus do not
elaborate any further, but would additionally highlight that the
power to issue directions under Section 33A of the Water Act and
the power to issue directions under Section 31A of the Air Act, on
their plain language, does not confer the power to levy any
penalty. We would further highlight that under Chapter VII of the
Water Act, and under Chapter VI of the Air Act penalties and
procedure to levy the same have been set out. A perusal of the
provisions under the Water Act would reveal that penalties can be
levied as per procedure prescribed and only Courts can take
cognizance of offences under the Act and levy penalties, whether
by way of imprisonment or fine. Similar is the position under the
Air Act. The legislature having enacted specific provisions for levy
of penalties and procedures to be followed has specifically made
the offences cognizable by Courts and the power to levy penalties
under both Acts has been vested in the Courts. The role of the
Pollution Control Boards is to initiate proceedings before the Court
of Competent Jurisdiction and no more.
38. We 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 & connected matters Page 35 of 38
position and thus we leave undisturbed the view taken by the
learned Single Judge on the subject.
39. Since our reasoning aforesaid results in the finding, by
way of interpreting the provisions in the Water Act and the Air Act,
as requiring prior consent to establish and operate shopping malls
and commercial shopping complexes and the provisions being not
applicable to residential complexes, we declare void actions
initiated by DPCC pertaining to residential complexes and we
further hold that said writ petitions are allowed in terms of the
prayers made. The impugned decision(s) by the learned Single
Judge(s) qua residential complexes is set aside. Qua shopping
malls and commercial shopping complexes, since we have held
that prior permission is required under both Acts to establish
shopping malls and commercial shopping complexes as also to
operate them and noting that even DPCC was not too sure of the
legal position and thus misinformed a few applicants that no
permission was required and qua most persons permitted them to
commence and complete construction of shopping malls and
commercial shopping complexes, the question which now needs to
be answered is: Whether, pertaining to the Water Act, Sub-Section
5 of Section 25 is the answer to what needs to be done and in the
absence of a similar provision in the Air Act, what action needs to
be directed to be taken.
40. The language of Sub-Section 5 of Section 25 of the
Water Act makes it plain clear that the only solution to a situation
of a building being constructed to establish an industry, operation
or process without obtaining prior consent of the State Pollution
LPA 895/2010 & connected matters Page 36 of 38
Control Board is the power of the Board to serve upon the person
concerned a notice imposing such conditions as might have been
imposed on an application seeking prior consent; and we find that
the learned Single Judge has correctly so opined and has rightly
issued the direction that the only way out, pertaining to the Water
Act, is to permit DPCC to inspect the shopping malls and the
shopping commercial complexes and if it is found that pertaining
to discharge of sewage from these buildings any steps are
required to prevent water pollution, DPCC would be authorized to
issue notices requiring the owner of the building to take steps in
terms of the notice issued. Pertaining to the Air Act,
notwithstanding there being no similar provision, but the concept
of a post decisional hearing may be made applicable with the
modification that no hearing would be required inasmuch as there
is no decision, but DPCC should be empowered to inspect the
shopping malls and the shopping commercial complexes 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 alone have the power to impose fine and
additionally impose sentence of imprisonment upon the offending
persons.
41. On the issue of Air Pollution, we would like to pen a
post-script pertaining to shopping complexes and shopping malls
for the reason the only activity of air pollution in these buildings
LPA 895/2010 & connected matters Page 37 of 38
would be through the air conditioning plants and generators
installed to supply electricity to the buildings in case of power
cuts, for the reason the trade of sale and purchase of goods in
these complexes does not entail any activity which causes air
pollution. We find that pertaining to DG sets, permissions in any
case have to be obtained from DPCC if the capacity of the DG 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.
42. In a few cases, we find that since DPCC was not
permitting the buildings to be occupied, under protest, the owners
paid the penalty to DPCC and have immediately approached the
Court seeking refund and the same has been ordered for the
reason neither under the Water Act nor under the Air Act there
exists any power in 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 levy
of penalty is without any authority of law. In the decision reported
as 1997 (5) SCC 536 Mafatlal Industries Ltd. & Ors. vs. UOI & 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 Page 38 of 38
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 refunded
are upheld.
43. The appeals filed by DPCC are dismissed and the cross
objections filed are allowed in terms of paras 27, 33, 34 and 39
above.
44. We leave the parties to bear their own costs.
45. All interim orders stand vacated.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JANUARY 23, 2012
dk

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,887,333 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: