Delhi High Court
Splendor Landbase Ltd vs Delhi Pollution Control ... on 30 September, 2010
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) 543/2008 with
2714/08, 2771/08, 2772/08, 3815/08, 7081/08, 8143/08, 8144/08,
8145/08, 8146/08, 8147/08, 8148/08, 8149/08, 9040/08, 464/09, 465/09,
508/09, 509/09, 510/09, 511/09, 525/09, 794/09, 7575/09, 8208/09,
8751/09, 10860/09, 3095/08, 4319/08, 4321/08, 4322/08, 4323/08,
4330/08, 4333/08, 3905/08, 8789/08, 8901/08, 9128/09 & 1391/2010
Reserved on: 11th August 2010
Decision on: 30th September 2010
SPLENDOR LANDBASE LTD ..... Petitioner
Through Mr. Soli J Sorabjee, Senior Advocate with
Mr. B.B. Gupta and Mr. B. Mohanty, Advocates for
Petitioners in WP (C) 543/08, 3095/08, 3905/08,
4319/08, 4321/08, 4322/08, 4323/08, 4330/08,
4333/08.
Mr. Sanjay Goswami with Mr. H.K. Balajee,
Advocates for WP (C) Nos. 2714/08, 2771/08,
2772/08, 7081/08, 3815/08, 8143/08, 8144/08,
8145/08, 8146/08, 8147/08, 8148/08, 9040/08,
508/09, 509/09, 510/09, 511/09, 794/09, 8208/09,
8751/09, 10860/09.
Mr. Amit Sood, Advocate for Petitioner in WP (C)
7575/09.
Mr. Prem Kumar with Mr. Girish Kumar, Advocate
for Petitioner in WP (C) 465/09.
Mr. Gaurav Gupta, Advocate for Petitioner in WP (C)
8149/08.
Mr. Sanjay K. Shandilya with Ms. Ekta Mehta,
Advocate for Petitioner in WP (C) 8789/08.
Mr. Deepak Khurana with Mr. Shobhit Chandra,
Advocate for Petitioner in WP(C) 1391/10.
Ms. Urvi Kuthiala, Advocate for Petitioner in WP(C)
9128/09, 464/09, 8901/08, 525/09.
versus
DELHI POLLUTION CONTROL COMMITTEE .....Respondent
Through Mr. Sudhir Chandra, Senior Advocate with
Mr. C. Mohan Rao, Advocate for Respondent/DPCC.
Mr. Satya Sehrawat with Ms. Rashi Bansal, Advocate
for R-1 in WP(C) 508/09 509/09, 510/09, 511/09 and
794/09.
Mr. Neeraj Chaudhari, Advocate for UOI in WP (C)
794/09.
Mr. Manish with Ms. Sadhna, Mr. Rajesh Pratap,
Advocates for UOI in WP (C) 8143/08, 8144/08,
8145/08, 8146/08, 8147/08, 8148/08.
W.P. (C) No. 543/2008 batch Page 1 of 122
Mr. Darpan Wadhwa with Ms. Divya Jha, Advocate
for GNCTD in WP(C) 543/08, 2714/08, 7081/08,
8148/08.
Mr. Baldev Malik, Advocate for R-3 in WP (C)
9040/08.
Mr. N. Waziri, Standing Counsel with Mr. Shoaib
Haider, Advocate for GNCTD in WP (C) 8751/09,
10860/09.
Mr. Atul Nanda with
Mr. Sumeer Sodhi and Mr. Gaurav Gupta, Advocates
for UOI in WP (C) 7081/08, 508, 510, 511 and
8751 of 2009.
Mr. Ravinder Aggarwal, Advocate for UOI
in WP (C) 901/08.
Mr. Ajay Verma, Advocate for the DDA
in WP(C) 8901/08.
CORAM: JUSTICE S. MURALIDHAR
1. Whether reporters of the local news papers
be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
30.09.2010
Introduction
1.1 These are 38 writ petitions filed by builders of various properties in
the National Capital Territory of Delhi (NCT of Delhi) who have been
issued show cause notices and also directions by the Respondent Delhi
Pollution Control Committee (`DPCC‟) for alleged violation of Section
25 of the Water (Prevention and Control of Pollution) Act, 1974
[hereafter `the Water Act‟) and Sections 21 and 22 of the Air (Prevention
and Control of Pollution) Act, 1981 [hereafter `the Air Act‟]. Barring two
petitions where the buildings constructed are residential complexes, in
each of the other petitions the building constructed is a commercial
shopping complex or a shopping mall.
1.2 The show cause notices have been issued on the ground that these
Petitioners had not, prior to commencing construction, applied to the
DPCC for and obtained from it the „consent to establish‟ under Section
25 of the Water Act or the DPCC‟s „consent to operate‟ under Section 21
of the Air Act.
1.3 Some of the petitioners have constructed commercial complexes or
shopping malls of a built up area of over 20,000 sq.m. They were
therefore required to comply with the environment impact assessment
(EIA) notifications in terms of the Environment (Protection) Act, 1986
(EPA). The EIA norms with which they are expected to comply are set
out in the EIA notification dated 27th January 1994 as further amended on
7th July 2004 and 14th September 2006. The issue that arises in some of
these petitions, where the commercial or residential complex is of a built
up area of over 20,000 sq.m, is whether independent of the EIA clearance
obtained by such petitioners from the Government of India in the
Ministry of Environment and Forests (`MoEF‟), a separate consent to
establish under the Water Act and a consent to operate under the Air Act
would nevertheless be required to be obtained from the DPCC.
1.4 Another issue common to some of these petitions is the validity of the
levy by the DPPC of penalties, fines and environment damages in the
form of fixed sums of monies or by requiring the Petitioners to furnish
bank guarantees as a condition to the grant of consent under the Air Act
and the Water Act.
2. The case of the Petitioners broadly stated is that the residential and
commercial shopping complexes and shopping malls are not covered
under either the Water Act or the Air Act. Therefore there was no need
for any of these Petitioners to have obtained from the DPCC either prior
consent to establish under Section 25 of Water Act or prior consent to
operate under Section 21 of the Air Act. The case of the DPCC is that the
activity of construction of commercial complexes, shopping malls and
even residential complexes is covered under both the Air Act and the
Water Act and the failure to obtain prior consent to establish or prior
consent to operate makes the petitioners liable under either or both Acts.
For complexes where the built up area is over 20,000 sq.m, the stand of
the DPCC is that the mere obtaining by such builders of EIA clearance
from the MoEF will not obviate the need to obtain separate prior consents
from the DPCC under the Water Act and Air Act.
Background to the Water Act and amendments
3. The first issue to be considered is the applicability of the Water Act to
the complexes in question. Emphasis has been placed by both sides on
the background to the enactment of the Water Act. The Statement of
Objects and Reasons (`SOR‟) to the Water Act as it was first enacted on
23rd March 1974 referred to a Committee set up in 1962 to draw up a
draft enactment for the prevention of water pollution. The SOR noted that
"the problem of pollution of rivers and streams has assumed considerable
importable and urgency in recent years as a result of the growth of the
industries and the increasing tendency to urbanization." The Report of
the Committee was circulated to the State Governments and was also
considered by the Central Council of Local Self-Government. Based on
the recommendation of the Central Council a draft bill was prepared.
The Bill was passed by both the Houses of Parliament and received the
assent of the President in 1974.
4. The Water Act underwent further changes in 1978 and thereafter in
1988. Section 25 of the Water Act in its present form was a result of
certain extensive amendments made to it in 1988. Para 2 of the SOR of
the Amendment Act No. 53 of 1988, which is relevant for the present
purposes, reads as under:
"2. The Water Act is implemented by the Central and State
Governments and the Central and State Pollution Control
Boards. Over the past few years, the implementing agencies
have experienced some more administrative and practical
difficulties in effectively implementing the provisions of the
Act. The ways and means to remove these difficulties have
been thoroughly examined in consultation with the
implementing agencies. Taking into account the views
expressed, it is proposed to amend certain provisions of the
Act in order to remove such difficulties. The State
Legislatures of Himachal Pradesh, Manipur and Tripura have
passed resolutions under Article 252(2) of the Constitution
authorizing the Parliament to amend the provisions of the
Water Act to give effect to those amendments."
5. Thereafter in Para 3(iii) and 3(vi) of the SOR, it was explained that the
Bill inter alia sought to make the following amendments to the Act,
namely:
"(iii) it is proposed to make it obligatory on the part of a person
to obtain the consent of the relevant Board for establishing
or taking any steps to establish any industry, operation or
process which is likely to cause pollution of water and also
to empower the Boards to limit their consents for suitable
periods so as to enable them to monitor observance of the
prescribed conditions;
......
(vi) it is proposed to empower the Boards to give directions to
any person, officer or authority including the power to
direct closure on regulation of offending industry,
operation or process or stoppage or regulation of supply of
services such as water and electricity"
6. It is plain, therefore, that the amendments made in 1988 were with a
view to making it obligatory on the part of the person taking any steps to
establish "any industry, operation or process which is likely to cause
pollution of water...." to obtain the prior consent of the State Pollution
Control Committee (PCC).
Position under the Water Act
7. To recapitulate, one of the central issues in these petitions is whether
there is statutory requirement in terms of Section 25(1) (a) of the Water
Act for persons establishing a commercial shopping complex or shopping
mall or a residential complex to obtain prior consent to establish from the
DPCC. Section 25 of the Water Act which mandates such requirement
reads as under:
"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) bring into use any new or altered outlet for the
discharge of sewage; or
(c) begin to make any new discharge of sewage:
Provided that a person in 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, 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) An application for consent of the State Board under sub-
section (1) shall be made in such form, contain such particulars
and shall be accompanied by such fees as may be prescribed.
(3) The State Board may make such inquiry as it may deem fit
in respect of the application for consent referred to in sub-
section (1) and in making any such inquiry shall follow such
procedure as may be prescribed.
(4) The State Board may-
(a) grant its consent referred to in sub-section (1),subject to
such conditions as it may impose, being-
(i) in cases referred to in clauses (a) and (b) of sub-
section (1) of section 25,conditions as to the point of
discharge of sewage or as to the use of that outlet or any
other outlet for discharge of sewage;
(ii) in the case of a new discharge, conditions as to the
nature and composition, temperature, volume or rate of
discharge of the effluent from the land or premises from
which the discharge or new discharge is to be made; and
(iii) that the consent will be valid only for such period as
may be specified in the order,
and any such conditions imposed shall be binding on any
person establishing or taking any steps to establish any
industry, operation or process, or treatment and disposal
system of extension or addition thereto, or using the new or
altered outlet, or discharging the effluent from the land or
premises aforesaid; or
(b) refuse such consent for reasons to be recorded in writing.
(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) Every State Board shall maintain a register containing
particulars of the conditions imposed under this section and so
much of the register as relates to any outlet, or to any effluent,
from any land or premises shall be open to inspection at all
reasonable hours by any person interested in, or affected by such
outlet, land or premises, as the case may be, or by any person
authorized by him in this behalf and the conditions so contained
in such register shall be conclusive proof that the consent was
granted subject to such conditions.
(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) For the purposes of this section and sections 27 and 30-
(a) the expression "new or altered outlet" means any outlet
which is wholly or partly constructed on or after the
commencement of this Act or which (whether so
constructed or not) is substantially altered after such
commencement;
(b) the expression "new discharge" means a discharge which
is not, as respects the nature and composition,
temperature, volume, and rate of discharge of the effluent
substantially a continuation of a discharge made within
the preceding twelve months (whether by the same or a
different outlet), so however that a discharge which is in
other respects a continuation of previous discharge made
as aforesaid shall not be deemed to be a new discharge by
reason of any reduction of the temperature or volume or
rate of discharge of the effluent as compared with the
previous discharge."
8. For further understanding the scope of the expressions used in Section
25 (1) of the Water Act, the definitions therein of the terms "outlet"
occurring in Section 2(d)(d), "sewage effluent" under Section 2(g) and
"trade effluent" under Section 2(k) are relevant. They read as under:
"2 (dd) "outlet" includes any conduit pipe or channel, open or
closed, carrying sewage or trade effluent or any other
holding arrangement which causes, or is likely to cause,
pollution;
.....
2 (g) "sewage effluent" means effluent from any sewerage
system or sewage disposal works and includes sullage
from open drains;
.....
2 (k) "trade effluent" includes any liquid, gaseous or solid
substance which is discharged from any premises used for
carrying on any industry, operation or process, or treatment
and disposal system, other than domestic sewage."
9. One of the submissions made by Mr. Sorabjee, learned Senior counsel
on behalf of the Petitioners is that the requirement of obtaining prior
consent to establish in terms of Section 25 (1) (a) of the Water Act arises
only where the activity in question is to establish an „industry, operation
or process‟ which in turn discharges „trade effluent‟. The argument is that
a residential complex cannot produce „trade effluent‟. It can only produce
domestic sewage which the legislature has consciously excluded from the
expression „trade effluent‟. It is further urged that what takes place in a
commercial shopping complex or shopping mall is mere retail sale of
goods and services. There is no „industry, operation or process‟ that goes
on inside a commercial shopping complex or mall that discharges „trade
effluent‟. On behalf of the Petitioners, it is sought to be contended that
the above provision was never intended to cover shopping complexes,
malls or the residential complexes. Mr. Sorabjee submitted that the words
"operation or process or any treatment and disposal system or any system
of extension or addition thereto" following the word "industry" have to
be read ejusdem generis the word "industry" and therefore was not meant
to cover an activity which is not an industrial activity. It is contended that
there is no industrial activity that takes place in a shopping complex or
mall or a commercial complex. In other words, only industries such as
chemical industries, metallurgical industry, engineering industry and so
on are meant to be covered by the Water Act. Consequently, it is argued
that Section 25 (1) of the Water Act is not attracted in any of the present
cases.
10. It must be noticed that the definition of „trade effluent‟ under Section
2(k) underwent a change with the Amendment Act No. 53 of 1988. The
definition of „trade effluent‟ in the unamended Section 2(k) contained the
words "carrying on any trade or industry" following the words "...any
premises used for.." This was replaced by the words "...from any
premises carrying on any industry, operation or process, or treatment and
disposal system." The idea was to expand the use of the premises and not
limit it to an industry but also any process or treatment and disposal
system. What stood excluded from the definition of „trade effluent‟ was
"domestic sewage". The word `sewage‟ itself has been defined under
Section 2(g) to mean effluent from any sewerage system or sewage
disposal works and includes sullage produced from open drains. The
word `sewage‟ when qualified by the word `domestic‟ should necessarily
mean sewage produced from premises used for domestic purposes. The
word "domestic" when contra-distinguished from the expression "trade"
could mean a place used for residence rather than for business or trade.
11. However, the above definition of „trade effluent‟ does not take a
residential complex or even a commercial shopping complex or shopping
mall out of the purview of Section 25 (1) of the Water Act. A careful
reading of Section 25 (1) of the Water Act would show that it is 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. The expression „sewage or trade effluent‟ in Section 25
(1) (a) Water Act which follows the words „operation or process, or any
treatment and disposal system or any extension or addition thereto, which
is likely to discharge..‟ is wide enough to cover all kinds of sewage and
not just „trade effluent‟. Likewise, the expressions „process‟ and
„operation‟ is not meant to be confined to „industry‟ but to all kinds of
processes and operations including those that take place in kitchens and
bathrooms of residential complexes and retail sales in shops and
restaurants and activities in the rest rooms of commercial shopping
complexes and malls.
12. The definition of the words "operation" and "process" as occurring in
the New Shorter Oxford English Dictionary (Leslie Brown Ed.) are as
follows:
operation: An action, deed; exertion of force or influence;
working, activity; an act of a practical or technical nature, esp one
forming a step in a process
process: The action or fact of going on or being carried on; a
continuous series of actions, events or changes; a systematic series
of actions or operations directed at a particular end.
13. Under Section 25(1) (b) Water Act if the operation, process or the
process that is proposed to be established brings into use "any new or
altered outlet for the discharge of sewage" then Section 25(1) will stand
attracted. The proviso to Section 25(1) states that where the steps to
establish an industry, operation or process have already commenced
before the commencement of the 1988 Amendment Act, such steps may
continue for a period of three months and if, the person who has taken
such steps makes an application for consent within that period, till the
disposal of such application. The proviso underscores the mandatory
nature of the requirement of even an ongoing construction to obtain prior
consent to establish from the State PCC.
14. When the Water Act was first enacted in 1974, the scale of both
commercial and residential shopping complexes as a result of
urbanization was perhaps not anticipated. There has been a dramatic
increase in the number of residential and commercial shopping
complexes that have come up in urban metropolises in the recent past.
More significant is the size of such commercial/shopping complexes.
Having huge shopping malls having a built up area of 20,000 sq. m. is
not an unusual feature as is evident in seven cases in the present batch of
writ petitions. The volume of sewage that such residential and
commercial complexes and shopping malls are likely to discharge into
the sewage system would indeed be enormous. The recognition of the
need to have the regulatory authority, in these cases the DPCC, to be
approached by the builders of such complexes and malls for prior consent
to establish under the Water Act is consistent with the object of the Water
Act as amended in 1988. The ultimate object is to ensure that there is
effective prevention and control of pollution.
Purposive construction
15. In the considered view of this Court, it is not possible to place a
narrow construction on the words "operation" and "process" occurring in
Section 25(1) of the Water Act. 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.
On the other hand the principle of purposive construction commends
itself for application. In Anderton v. Ryan (1985) 2 All ER 355, it was
explained that: "Statutes should be given what has become known as the
purposive construction, that is to say the Courts should identify the
„mischief‟ that existed before passing of the statute and then if more than
one construction is possible, favour that which will eliminate the
mischief so identified." In Pepper v. Hart (1993) 1 All ER 42, it was
held: "The courts now adopt a purposive approach which seeks to give
effect to the true purpose of legislation and are prepared to look at much
extraneous material that bears on the background against which the
legislation was enacted." This has been consistently followed by our
Supreme Court in New India Assurance Co. Ltd. v. Nusli Neville Wadia
(2008) 3 SCC 279; Tanna and Modi v. CIT AIR 2007 SC 2301 and
recently in a decision dated 31st August 2010 in Civil Appeal No. 5842
of 1998 (Grid Corporation of Orissa Ltd. v. Eastern Metals and Ferro
Alloys).
Position of residential complexes under the Water Act
16. While it is clear that commercial shopping complexes and shopping
malls would stand covered under Section 25 (1) (a) of the Water Act, the
position vis-à-vis residential complexes is examined next. The DPCC is
right in its contention that residential complexes where there are a large
number of residential apartments would also be within the purview of
Section 25(1) (a) of the Water Act. The residential complexes are likely
to discharge large volumes of "sewage" as distinguished from „trade
effluent‟. Section 25(1) (a) of the Water Act envisages any "operation or
process" which is likely to discharge "sewage". The collective operation
or processes that take place within a residential complex is likely to
discharge large volumes of sewage into the municipal sewerage system.
To repeat, these processes or operations may take place within the toilets
and bathrooms and kitchens of a residential complex. They could also
take place as a result of any treatment of such sewage collected in some
effluent treatment plant within a residential complex. Then there is the
watering of the lawns and plants in such residential complexes. Large
volumes of water may be used for central air-conditioning or cooling.
There can be many activities in a residential complex which result in the
use of water, generation and discharge of sewage and the carrying of such
sewage into main sewerage system for further treatment. In the
circumstances, it is difficult to accept the contention of the Petitioners
that residential complexes would fall outside the purview of Section
25(1) (a) of the Water Act.
17. The question whether the construction of a single-storeyed residential
building of insubstantial dimensions would attract Section 25(1) (a) of
the Water Act need not be answered in these petitions since none of them
concerns such a situation. As far as the present cases are concerned, the
two residential complexes which have been constructed have a built up
area of 23,281 sq.m and 10,733 sq.m respectively. It is not possible
therefore to underestimate the impact that the discharge from such
residential complexes of large volumes of sewage would have on water
pollution in general particularly when such sewage joins the main
sewerage system.
18. It was urged that as long as the municipal sewage system is being
treated in effluent treatment plants, and the discharged sewage from these
complexes joins such systems, there is no need for each of these
complexes to obtain a prior consent to establish from the DPCC under the
Water Act. This argument although attractive does not account for the
mandatory nature of the requirement to obtain consent to establish under
the Water Act. It also does not account for the fact that at the stages of
pre-construction, during construction and post-construction these
complexes would continue to attract the provisions of the Water Act. The
liability under the Water Act does not get exempted only because the
sewage discharged from such complexes joins the main municipal
sewerage system which may or may not be treated in keeping with the
water pollution norms.
Water pollution during the construction phase
19. At this juncture it is important to understand the impact that the
activity of construction of a commercial shopping or residential complex
or a shopping mall is likely to have on water pollution. This court wishes
to draw a distinction between the pre-construction stage when Section 25
(1) Water Act is attracted and a prior consent to establish is mandated
and the construction phase itself which can also result in pollution being
caused. For instance during construction, water is drawn from bore wells
dug in the property itself or water is brought in through water tanks.
Large quantities of water are used during construction and used water is
also discharged. If unregulated, this could have an adverse impact on the
neighbourhood, the ground water and generally on the municipal
sewerage system.
20. The pollution that can possibly be caused by discharge of domestic
sewage from a residential complex or trade effluent from a commercial
complex or industry during the construction phase would attract the
various provisions of the Water Act. Even after completion of
construction a functional residential or commercial complex will have to
abide by the water pollution norms stipulated by the Water Act. The
DPCC has been constituted under Section 4(4) of the Water Act. Section
9 of the Water Act permits the constitution of committees by the DPCC.
Under Section 11A the DPCC can delegate its powers to its Chairman.
Section 16 of the Water Act sets out the functions of the Central
Pollution Control Board (`CPCB‟). Section 21 of the Water Act
empowers the DPCC or any of its officials to take samples of water
"from any stream or well or samples of any sewage or trade effluent
which is passing from any plant or vessel or from or over any place into
any such stream or well" for the purposes of analysis. The word „sewage‟
in this context would include „domestic sewage‟ as well. Section 23 gives
the DPCC power of entry at any time any place for the purposes of
performing any of the functions entrusted by the DPCC to such officer
for the purposes of determining "whether and if so in what manner, any
such functions are to be performed or whether any direction or
authorization served, made, given, or granted under this Act is being or
has been complied with." Section 24 of the Water Act prohibits the use of
a stream or well for disposal of polluting matters. Consequently, all of the
above provisions of the Water Act get attracted when an activity,
including an industrial, trade, commercial or domestic activity, causes
pollution. This power can be exercised by the DPCC at any time during
the construction phase and after the completion of construction when the
complex in question becomes functional.
Applicability of Section25 (5) Water Act to the cases on hand
21. While this Court accepts the contention of the DPCC that Section
25(1) (a) stood attracted in these cases, the DPCC for some reason did
not act at a time when the construction of these residential and
commercial complexes had either not commenced or having commenced,
had not been completed. In other words, in most cases, as will be seen in
the discussion of the individual petitions, the DPCC did not issue a show
cause notice at a time when the constructions had either not begun or
were in progress. The show cause notice was invariably issued by the
DPCC after the construction had been completed and in many cases after
the completion certificate was issued. In such a situation, to require the
builder of such complex to obtain „prior consent to establish‟ under
Section 25 (1) (a) of the Water Act was a direction that was not capable
of being complied with. Unfortunately, this was the only provision
invoked by the DPCC in each of the cases to pass consequential orders of
either imposition of fine or damages or order closure.
22. It appears to this Court that with the buildings in question having
already been constructed without obtaining prior consent to establish, the
DPCC ought to have fallen back on the legislatively envisioned „Plan B‟.
What ought to have been done by the DPCC was to invoke Section 25 (5)
of the Water Act. Section 25(5) talks of a situation where an industry
operation or process has already been established or the steps for
establishment have already been taken without obtaining the prior
consent of the State PCC. In such an event the State PCC has to serve, on
the person who has established or taken steps to establish, a notice
imposing any such conditions as it might have imposed if an application
had been made for its consent "in respect of such establishment, such
outlet or discharge."
23. The DPCC ought to have proceeded on the premise that each of the
buildings of the petitioners were constructed without its prior consent to
establish and then should have invoked its powers under Section 25(5) of
the Water Act. What the DPCC has however done in each of the cases is
invoke Section 25 (1) and therefore require the petitioners to apply at that
stage to it for consent to establish. While the DPCC was armed with
sufficient powers under Section 33A of the Water Act to issue directions,
such directions must be such as are capable of being complied with.
24. It was urged by Mr. Sudhir Chandra, learned Senior counsel for the
DPCC that by letting off the petitioners who had admittedly acted in
violation of section 25 (1) (a) of the Water Act a wrong message would
be sent and a premium placed, as it were, on brazen violations of the
Water Act. Such submission, in the considered view of this Court, does
not reflect the correct legal position. If for some reason the DPCC has
failed to take action against those who have established commercial or
residential complexes without obtaining prior consent to establish, then it
is not as if no action can at all be taken against the builders, owners or
occupiers of such complexes. Section 25 (5) has been enacted precisely
for such a contingency. Section 26 of the Water Act further arms the
DPCC with review and monitoring powers and to change the conditions
imposed if they are found to be not effective. The DPCC can even after
the construction is complete, proceed to act in exercise of its powers
under Section 25 (5) of the Water Act. In other words, the legislature
expects that the DPCC will act vigilantly at all times to ensure that no
violator escapes legal liability under the Water Act.
25. There is another aspect to the matter. There was no clarity about the
correct legal position till now even as far as the DPCC was concerned.
These cases were for the DPCC, in a sense, test cases. Section 25 of the
Water Act was perhaps not invoked by the DPCC earlier and in any event
not on this scale against commercial or residential complexes. Not having
acted at a time when it should have under Section 25 (1) of the Water Act
and having allowed the construction of the complexes to be completed, it
would not be reasonable for the DPCC to insist that these petitioners
must go back to the stage of obtaining „prior consent to establish‟. If after
a show cause notice is issued under Section 25(5) of the Water Act and
within the time stipulated, the corrective measures are not put in place by
the person who has established the shopping mall or residential complex,
then it would be open to the DPCC to take further steps in accordance
with Section 33A of the Water Act. As long as the power to take action
under Section 25(5) of the Water Act remains, there need not be any
apprehension of any wrong message being given to those who failed to
obtain consent of the DPCC prior to establishing the complexes.
Multiplicity of authorities does not render exercise of powers under the
Water Act illegal
26. It was argued on behalf of the Petitioners that under Schedule XII to
the Constitution of India, read with Article 243W thereof, the powers,
authority and responsibility in relation to water and water treatment is
exclusively vested in the municipalities, i.e., in this case the Municipal
Corporation of Delhi (`MCD‟). It was further submitted that under the
Delhi Municipal Corporation Act, 1957 (`DMC Act‟) the powers to grant
permission and regulate constructions of buildings in Delhi are
exclusively vested with the MCD. Reference is also made to the
provisions of the Delhi Jal Board Act (Delhi Water Board Act). The
submission is that there cannot be a multiplicity of authorities over the
same subject matter and that if the control and regulation of water and
sewage is within the exclusive domain of the MCD then the DPCC
cannot also exercise such powers in relation to the same subject matter
under the Water Act.
27. This Court is unable to agree with the above submission. 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. For instance, the MCD
may have the power to levy tariffs for the use of water. That does not
mean that the DPCC cannot issue directions in regard to the prevention
and control of pollution of water. They operate in separate fields and both
sets of regulations and norms will have to be complied with. Incidentally
Entry 5 in Schedule XII reads: "water supply for domestic, industrial and
commercial purposes". It obviously does not cover the entire field of the
use of water and treatment and discharge of sewage.
Deemed consent in terms of Section 25(7) Water Act
28. The Court would like to observe that when an application is made by
a project proponent for consent to establish under the Water Act, the
DPCC has to process and decide such application within four months in
terms of Section 25(7) of the Water Act. As will be presently seen while
discussing the individual cases, there has been no answer by the DPCC to
the factual assertion in some of these cases that despite applying twice for
the consent to establish under Section 25(1) of the Water Act, no
response was received from the DPCC for well over four months after the
making of such application. Consequently, where an applicant has not
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. If thereafter DPCC finds that any activity in the building which
has already been constructed attracts the provisions of the Water Act then
it will have to proceed in accordance with other provisions of the Act to
prevent or control such polluting activity. Section 25(1) of the Water
Act cannot obviously be enforced if the DPCC has allowed the four
months‟ period after the making of an application for consent to
establish, as envisaged under Section 25(7) of the Water Act, to elapse.
Summary of the position under the Water Act
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 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.
(viii) 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 obviously
thereafter be enforced.
Position under the Air Act
30. Next for consideration are the provisions of the Air Act and the
validity of the action taken thereunder by the DPCC. It requires to be first
noticed that the definitions of the different terms under the Air Act are
not identical to the corresponding terms in the Water Act. The words "air
pollutant" or "air pollution", "emission", "industrial plant" occurring in
Section 2(a), 2(b), 2(j) and 2(k) respectively of the Air Act read as under:
"(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) "air pollution" means the presence in the atmosphere of
any air pollutant."
.....
(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"
31. The requirement of obtaining from the DPCC a prior consent to
operate flows from Section 21(1) of the Air Act which reads as under:
"21. Restrictions on use of certain industrial plants. (1)
Subject to the provisions of this section, no person shall,
without the previous consent of the State Board, operate any
industrial plant for the purpose of any industry specified in the
Schedule in an air pollution control area:
Provided that a person operating any industrial plant in any air
pollution control area immediately before the 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."
32. After its amendment in 1988, the essential definitions remained
unchanged. The consent to establish or operate had to be obtained only
where it was concerning "any industrial plant in an air pollution control
area". It appears to this Court that as far as the Air Act is concerned, the
emphasis was only on consent to operate having to be obtained for
establishment of an industrial plant. Section 2(k) defines industrial plant
to mean "any plant used for any industrial or trade purpose and made any
area pollutant into the atmosphere". In the instant case, the expression
"trade purposes" therefore have to be distinguished from the industrial
purposes. The word "trade" could have a wide meaning. It could include
the transaction that takes place within a commercial shopping complex or
a shopping mall. The word "air pollutant", as defined in Section 2(a),
means the presence in the atmosphere "in such concentration as may be
or tend to be injurious to the atmosphere or the other breeding creatures
or plants or property or environment". Therefore the activity has to be
such that it results in the establishment of an industrial plant in an air
pollution control area. Air pollution, in terms of Section 2(b) is "presence
in the atmosphere of any air pollutant".
33. 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. Mr. B.B. Gupta, learned
counsel for some of the Petitioners drew the attention of the Court to the
Air (Prevention and Control of Pollution) Union Territory Rules, 1983
(UT Rules). He submitted that Rule 2 (h) of the UT Rules is the only
provision which defines the word "premises" which has been defined to
mean "any building constructed or already used for industrial or
commercial purposes". Far from supporting the submission of Mr. Gupta,
this definition suggests that even a building used for commercial
purposes would be covered by Section 21(1) of the Air Act. Likewise,
Rules 9 and 10 of the UT Rules and the forms thereunder do not exclude
a commercial/shopping complex from the applicability of the Section 21
of the Air Act.
34. One of the submissions on behalf of the DPCC was that in most of
these buildings, whether it was a commercial shopping complex or a
residential complex, there would be a 24-hour power back-up diesel
generator set (DG set) that was likely to cause air pollution and attract the
provisions of the Air Act. This submission was sought to be countered
by the Petitioners by pointing out that only such DG sets that satisfy the
pollution control norms would be used by the Petitioners and that this is
an event that was likely to take place after the building was
commissioned and not at the stage of consent to operate.
35. Here the Court would like to make two observations. The position of
the applicability of Section 21 (1) of the Air Act to commercial shopping
complexes and shopping malls is different from its applicability, to
residential complexes. This will be discussed in some detail shortly
hereafter. Secondly, these cases are concerned with the applicability of
Section 21 (1) of the Air Act at a stage when construction of the building
in question has not commenced. The position of the applicability of the
Air Act to any on-going construction and to any building complex which
is functional is again different.
36. As far as commercial shopping complexes or shopping malls are
concerned, it might be difficult to anticipate, even before the start of
construction, what would be the extent of use of DG sets. In any event
this need not be the only factor that will determine whether Section 21
(1) Air Act applies to commercial shopping complexes or shopping
malls. Given the definition of „air pollutant‟ 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 or
commercial activity, is sufficient to attract the provisions of Section
21(1) of the Air Act. Whether or not the use of a DG set will attract the
provisions of the Air Act is a separate matter. It is obvious as and when
the building begins to get used for a trade or commercial purpose and DG
sets are used therein, if such DG sets do not comply with the pollution
control norms, a separate cause of action arises for the DPCC to take
action.
37. Next the position vis-à-vis residential complexes may be examined.
Since Section 21(1) of the Air Act only talks of obtaining prior consent to
operate where the air pollution is likely to be caused as a result of the
operation of any "industrial plant for the purpose of any industry
specified in the Schedule", there is no possibility of expanding the
meaning of the word "industrial plant", even on a purposive construction,
to include a residential complex. Reliance was placed by learned Senior
counsel for the DPCC on the judgment of the Karnataka High Court in
Nitin Majumdar v. State of Karnataka 2007 (4) Kar LJ 569. That case
concerned a place used for storage, which was held to be covered under
the definition of „plant‟. It is not possible to stretch the meaning of the
word „plant‟ to include a residential complex. The ratio of the said
decision is therefore inapplicable to a complex used only for residential
purposes. The contrast with the corresponding words in Section 25 (1) (a)
of the Water Act is indeed striking when one examines Section 21 (1) of
the Air Act. The crucial words "operation or process" inserted into
Section 25 (1) (a) of the Water Act after the 1988 amendment do not find
place in Section 21 (1) of the Air Act. The resultant position is that 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 DPCC to operate.
38. It was further contended on behalf of the DPCC that the construction
activity itself could cause both air and water pollution. One of the
purposes of requiring the obtaining of prior consents, as noticed by the
Supreme Court in T.N. Godavarman Tirumulpad v. Union of India
2006 (10) SCALE 246 (the Vasant Kunj Ridge matters) is the inevitable
use of reinforced cement concrete (RCC) mix during construction. There
is a likelihood of air pollution being caused due to use of loose cement
during construction activity. Clearly, therefore, it is anticipated that the
very activity of construction is likely to cause both air and water
pollution. This can be appreciated in more than one context. Where
what is being constructed is a building that has to be used for the
purposes of a commercial complex or shopping complex or shopping
mall, then apart from obtaining the consent to establish under the Water
Act and consent to operate under the Air Act, after the construction
activity commences such activity will have to nevertheless comply with
the pollution control norms that would give rise to a separate cause of
action to the DPCC for the applicability of the provisions of the Water
Act and the Air Act.
39. Where it is a residential complex, while there may be no need to
obtain prior consent to operate under Section 21 (1) of the Air Act, once
the construction activity commences, that activity has to be in
consonance with the provisions of both the Air Act as well as the Water
Act. Needless to mention, once the complex, whether commercial or
residential or a shopping mall, is functional, the norms under both the Air
Act and the Water Act, or for that matter the EPA or any other
environmental law, will have to be complied with.
40. The position where the construction of a commercial shopping
complex or shopping mall has been allowed to be completed without a
prior consent to operate is examined next. In such event, unlike the fall
back plan of action under Section 25 (5) of the Water Act, the course of
action available to the DPCC would be to inspect the building in exercise
of its powers under the Air Act and the Rules thereunder and then issue a
show cause notice requiring the builder or the owners or occupiers as the
case may be to comply with the conditionalities imposed by it under the
Air Act within a specified time frame, failing which the DPCC can issue
further directions under Section 31A Air Act.
Summary of the position under the Air Act
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.
(ii) The definition of „air pollutant‟ 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 31-A Air Act.
The position under the EPA
42. The EIA Notification dated 14th September 2006 requires the
obtaining of a prior EIA clearance for "new projects or activities listed in
the schedule to this notification." The schedule includes, inter alia,
building/construction projects/area development projects and townships.
Serial 8(A) concerns building and construction projects. In column 4 it is
stated that where the extent is of equal to or more than 20,000 sq.m. and
less than 50,000 sq.m. of built up area, the EIA clearance is mandatory.
43. The appendix to the above EIA Notification sets out the format in
which an application has to be made for an EIA clearance. The second
part of the format concerns "use of natural resources for construction or
operation of the Project (such as land, water, materials or energy,
especially any resources which are non-renewable or in short supply)".
Serial No. 2.2 asks for details about "Water (expected sources &
competing users)". Appendix 2 sets out the exclusive requirement for
construction projects. In para 2 there is a detailed checklist concerning
„Water Environment‟. Para 2.1 requires the applicant to "give the total
quantity of water requirement for the proposed project with the breakup
of requirements for various users". In particular, the following questions
are asked:
"2.9. What the impacts of the proposal on the ground
water? (Will there be tapping of ground water give the
details of ground water table, recharging capacity, and
approvals obtained from competent authority, if any)
2.10. What precaution/measures are taken to the
prevent the run-off from construction activities
polluting land & aquifers? (Give details of quantities
and the measures taken to avoid the adverse impacts)
2.11. How is the storm water from within the site
managed? (Since the provisions made to avoid
flooding of the area, details of the drainage facilities
provided along with a site layout indication contour
levels)
2.12. With the deployment of construction labourers
particularly in the peak period lead to unsanitary
conditions around the project site (Justify with proper
explanation)
2.13. What on-site facilities are provided for the
collection, treatment & safe disposal of sewage?
(Give details of the quantities of wastewater
generation, treatment capacities with technology &
facilities for recycling and disposal)
2.14. Give details of dual plumbing system if treated
waste used is used for flushing of toilets or any other
use."
44. As regards „Air Environment‟ para 5 of the form lists out the various
questions that have to be answered by the applicant. The questions read
as under:
"5.1. Will the project increase atmospheric
concentration of gas & result in heat islands? (Give
details of background air quality levels
with.........based for dispersion models taking into
account the increased traffic generation as a result of
the proposed constructions)
5.2. What are the impacts on generation of dust,
smoke, odours, fumes or other hazardous gases? Give
details in relation to all the metrological parameters.
5.3. Will the proposal create shortage of parking space
for vehicles? Furnish details of the present level of
transport infrastructure and measures proposed for
improvement including the traffic management at the
entry & exit to the project site.
5.4. Provide details of the movement patterns with
internal roads, bicycle tracks, pedestrian pathways,
footpaths etc., with areas under each category.
5.5. Will there be significant increase in traffic noise
& vibrations? Give details of the sources and the
measures proposed for mitigation of the above.
5.6. What will be the impact of DG sets & other
equipment on noise levels & vibration in & ambient
air quality around the project site? Provide details."
45. The contention of those Petitioners who have obtained EIA clearance
for their projects is that by requiring them to again approach the DPCC
for consent to establish under the Water Act and consent to operate under
the Air Act, the same exercise is being unnecessarily asked to be repeated
by the DPCC. It is further submitted that once the MoEF has already
given clearance, it would not be open to the DPCC to again examine
those very issues and refuse either the consent to establish under the
Water Act or the consent to operate under the Air Act.
46. In reply it is pointed out by the DPCC that under most of the EIA
clearances, one of the conditionalities imposed is that the applicant has to
obtain consent to establish under the Water Act and consent to operate
under the Air Act respectively from the DPCC. Additionally, reference is
made to a Circular dated 21st November 2006 issued by the MoEF
clarifying that an NOC from the State Pollution Control Board („SPCB‟)
and its consent to establish are "separate legal requirements, any project
proponent has to fulfil." It is clarified that "NOCs are required under
Water and Air Acts are mandatory requirement under those Acts and will
have to be taken as required and do not require to be intended as
environmental clearance". The DPCC has also pointed out that there is
no question of repugnancy between the Air and Water Acts on the one
hand and the EPA on the other. To be fair to the Petitioners, it was not
their case that there is any repugnancy between the statutes in question.
Their submission is that once they have obtained EIA clearance under the
EIA Notification dated 14th September 2006, they do not have to again go
before the DPCC for a separate consent to establish and consent to
operate.
47. This Court finds that there is indeed an element of overlap between
some of the aspects examined by the MoEF while granting EIA
clearance, and those aspects on which the DPCC grants either consent to
establish or consent to operate or both. At the same time, the need to
separately obtain consent to establish under the Water Act and consent to
operate under the Air Act from the DPCC is mandatory as clarified by
the MoEF in its Circular dated 21st November 2006. As explained by the
Supreme Court in State of Bihar v. Kedar Sao (2004) 9 SCC 344, it is
possible that more than one enactment applies to the same facts and
circumstances and it is possible that the applicant may have to get
clearances from different agencies for the same activities. The mere fact
that an EIA clearance has been obtained from the MoEF cannot be a
ground to seek exemption from obtaining consent to establish under the
Water Act and consent to operate under the Air Act.
48. A possible balance that can be struck with a view to avoiding
duplication is to hold that when a holder of an EIA clearance applies to
the DPCC for either consent to establish under the Water Act or consent
to operate under the Air Act, it would be incumbent on the DPCC to
ascertain the aspects that have already been examined by the MoEF in
granting the EIA clearance. Those aspects need not be again examined by
the DPCC. There is usually a role assigned to the SPCB under the EIA
notifications. Even assuming that the position in Delhi is different and the
DPCC does not come into the picture when an EIA clearance is granted
by the MoEF, it would nevertheless be necessary for the DPCC to avoid
repeating the same exercise which has been performed by the MoEF in
granting the EIA clearance. Therefore, to the extent that certain aspects
have not been covered by the EIA clearance, it would certainly be open
for the DPCC to examine those aspects and decide whether or not to
grant consent to establish under the Water Act and consent to operate
under the Air Act.
Who should apply for consent?
49. It was submitted on behalf of the Petitioners that after the completion
of the construction in terms of validly sanctioned plans the ownership of
the property, or portions thereof, usually changes hands. The question
posed is, in such event, who should apply for consent to establish or to
operate and who should be called upon to comply with the environmental
norms?
50. It is not as if the person who originally applied for EIA clearance or
the consent to establish or consent to operate would have nothing to do
with the property in question once the construction is complete. There
may indeed be multiple owners in a constructed building. In such event,
if the builder already knows who they are, even before construction
commences, then the application for EIA clearance or consent to
establish or operate, as the case may be, will be made jointly by the
builder and such individual owners. If the building has been completed
without obtaining prior consent to establish under Section 25 (1) (a) of
the Water Act it would be incumbent upon the person receiving a show
cause notice from the DPCC in terms of Section 25(5) of the Water Act
to inform the DPCC the names of the persons to whom the whole or part
of the building in question has been sold or transferred. Notices can then
be issued to such persons as well. Till such time the person first receiving
a show cause notice furnishes the complete particulars of subsequent
transferees and till discharged, such person will continue to be liable to
answer the show cause notice and to explain why he should not be
proceeded against for the violations of the Water Act. The position would
be more or less similar under the Air Act. In any event, since under the
Rules under both the Water Act and the Air Act there is a requirement
that the DPCC should conduct an enquiry or investigation before issuing
a show cause notice, that might reveal the names of the persons to whom
the notices should be issued.
The ambit of DPCC's powers under Section 33A Water Act and Section
31A Air Act
51. This brings up the next question as to the scope of the powers of the
DPCC under Section 33A of the Water Act and Section 31A of the Air
Act which are more or less identically worded. Section 33A of the Water
Act reads as under:
"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."
52. The above provision opens with a non obstante clause. However, it is
subject to the other provisions of the Water Act. It gives the DPCC the
power to issue directions in writing to any person, officer or authority
and such person, officer or authority shall be bound to comply with such
directions. The directions would include the power to order closure
prohibition or regulation of any "industry, operation or process" or the
"stoppage or regulation of supply of electricity, water or any other
service". The power of the DPCC under Section 33A Water Act is indeed
wide. It implies within it the requirement of following the principles of
natural justice before the exercise of such power. On a collective reading
of Sections 25 and 33A, the legislative scheme appears to be that where
there is a failure by a person to comply with either Section 25(1)(a) or
Section 25(5) of the Water Act then it would be open to the DPCC to
exercise its powers under Section 33A of the Act. Without giving any
show cause notice under Section 25(5) in the instant case and without
waiting for the expiry of the time within which the corrective steps have
to be taken, it will not be open to the DPCC to straightway invoke its
power under Section 33A to order closure of the shopping mall or
commercial or residential complex concerned. That would make such
exercise of power vulnerable to invalidation on the grounds of
arbitrariness and unreasonableness. The position as regards Section 31A
of the Air Act is no different. That power too cannot be exercised to
straightaway order closure of a building without giving the person
concerned a prior show cause notice consistent with the procedure
outlined under the Rules under the Air Act.
Validity of the levy of penalties and environmental damages
53. The powers of the DPCC to levy environmental damages and seek
the furnishing of bank guarantees as a pre-condition to the grant of
consents are examined next. Connected with this issue is the question
whether the Chairman of the DPCC had the power to constitute a
Consent Management Committee („CMC‟) which proceeded to levy
environmental damages, penalties, fines and require the furnishing of
bank guarantees in some of these cases.
54. Section 15 of the Air Act provides for delegation of powers stating
that a State Board may, by general or special order, delegate to the
Chairman or the member-secretary or any other officer of the Board, its
powers. Under Section 12(3B) of the Water Act, a similar power has
been conferred on the State Board to delegate its powers.
55. It is pointed out by the Petitioners that the DPCC has, contrary to the
relevant provisions of the Water Act and Air Act, delegated its powers
with regard to granting prior consent to establish or consent to operate
and to issue directions under Section 31A of the Air Act and Section 33A
of the Water Act to the Chairman and Member-Secretary. It is stated that
the Chairman DPCC is also the Chairman of the CMC which deals with
the aspect concerning consent. It is accordingly sought to be contended
that there can be no sub-delegation by the Chairman of his powers to the
CMC and the decision taken by the Chairman with the assistance of the
Members of the CMC is invalid.
56. If indeed it was the Chairman alone who was acting in exercise of the
powers delegated to him under Section 31A of the Air Act and Section
33A of the Water Act, then the final decision to either agree to or to
refuse the consent to establish or consent to operate should have been
taken independently by the Chairman. The minutes of the meetings,
however, show that this was the decision of the CMC. Although the
Chairman of the DPCC may be the Chairman of the CMC, he is but one
member in the CMC. There is nothing to indicate that the decision of
CMC was unanimous or by majority or that it was the decision only of
the Chairman. There is no power under the Water Act or the Air Act
given to the Chairman to further sub-delegate his powers in regard to
consent to establish or consent to operate to the CMC. Such sub-
delegation was obviously bad in law. Unless it is shown, and it is not,
that the other members of the CMC apart from the Chairman were
performing a mere advisory role and had nothing to do with the actual
grant or refusal of the consent to establish or consent to operate, such
decision by the CMC is clearly ultra vires the Air Act and Water Act.
57. In the instant case, this Court is unable to find any justification for the
CMC to itself take decision as regards the grant and refusal of the
consent to establish under the Water Act and consent to operate under the
Air Act. Secondly, even where it agreed to grant consent to establish, the
CMC imposed a pre-condition that the applicant should pay a penalty or
fine or furnish a bank guarantee or in some cases all or some of them.
There is no statutory basis for such a direction to be issued by the CMC,
or for that matter by even the Chairman of the DPCC. The grant of the
consent to establish or consent to operate ought not to be made
conditional upon payment of some fine or penalty or furnishing of bank
guarantee. Given the object of the Water Act and the Air Act, which is
the prevention and control of pollution, the mere payment of fine or
penalty or furnishing of bank guarantee is unlikely to prevent and control
the likely pollution that can be caused. The basic approach adopted by
the CMC where such penalty or fine has been levied or bank guarantee
secured appears to be faulty.
58. The decision to levy environmental damages and to seek the
furnishing of bank guarantees has been sought to be justified by the
DPCC with reference to Section 31A of the Air Act and Section 33A of
the Water Act. As already noticed, Section 31A of the Air Act is more or
less similarly worded as Section 33A of the Water Act and both
provisions have been inserted by the 1988 Amendments. A reference has
already been made to Section 33A of the Water Act. The power under the
said provision includes the power of the DPCC to issue "any directions in
writing to any person". The `Explanation‟ to the provision clarifies that
the power to issue directions includes the power to direct "closure,
prohibition or regulation of any industry, operation or process or the
stoppage or regulation of supply of electricity, water or any other
service". Yet, this power has to be one coupled with a duty to act
reasonably and fairly. It cannot be stretched to include a power to levy a
penalty.
59. In the considered view of this Court, the power to levy a penalty on
any party is in the nature of a penal power. It is settled law that unless
there is a specific power in the statute enabling the authority to do so, it
cannot levy penalties or damages with reference to the general power
under Section 31A of the Air Act or Section 33A of the Water Act. The
decisions in Khemka & Co. (Agencies) Pvt. Ltd. v. State of Maharashtra
(1975) 2 SCC 22, J.K. Synthetics Limited & Birla Cement Works v.
Commercial Taxes Officer (1994) 4 SCC 276 and India Carbon Ltd. v.
State of Assam (1997) 6 SCC 479 are relevant in this regard. In Khemka
& Co., the question was whether an assessee under the Central Sales Tax
Act 1956 could be made liable for penalty under the provisions of the
Mysore Sales Tax 1957 when there was no provision in the Central Act
for imposition of penalty for default in payment of tax. Answering the
question in the negative, the opinion of Ray CJ, writing for the majority
explained (SCC, p.31):
"25. Penalty is not merely sanction. It is not merely adjunct to
assessment. It is not merely consequential to assessment. It is not
merely machinery. Penalty is in addition to tax and is a liability
under the Act. Reference may be made to Section 28 of the Indian
Income-tax Act, 1922 where penalty is provided for concealment
of income. Penalty is in addition to the amount of income-tax. This
Court in Jain Brothers and Ors. v. Union of India [1970] 77 ITR
107(SC) said that penalty is not a continuation of assessment
proceedings and that penalty partakes of the character of additional
tax."
60. In his concurring opinion Beg, J. (as His Lordship then was) observed
([email protected] p.35):
"39. On a consideration of the provisions mentioned above, it
seems to me to be clear that whatever may be the objects of
levying a penalty, its imposition gives rise to a substantive liability
which can be viewed either as an additional tax or as a fine for the
infringement of the law. The machinery or procedure for its
realization conies into operation after its imposition. In any case, it
is an imposition of a pecuniary liability which is comparable to a
punishment for the commission of an offence. It is a well settled
cannon of construction of statutes that neither a pecuniary liability
can be imposed nor an offence created by mere implication. It may
be debatable whether a particular procedural provision creates a
substantive right or liability. But, I do not think that the imposition
of a pecuniary liability, which takes the form of a penalty or fine
for a breach of a legal obligation, can be relegated to the region of
mere procedure and machinery for the realization of tax. It is more
than that. Such liabilities must be created by clear, unambiguous,
and express enactment. The language used should leave no serious
doubts about its effect so that the persons who are to be subjected
to such a liability for the infringement of law arc not left in a state
of uncertainty as to what their duties or liabilities are. This is an
essential requirement of a good government of laws. It is implied
in the Constitutional mandate found in Section 265 of our
Constitution: "No tax shall be levied or collected except by
authority of law"."
61. Later in India Carbon Ltd., the question arose whether sales tax
authorities in the States could charge interest when collecting and
enforcing payment of central sales tax. Following the decision in
Khemka it was held that absent a substantive provision in the central Act
requiring the payment of interest on central sales tax, the authorities in
the states could not charge interest thereon. The resultant position is that
there being no specific provision in the Water Act or Air Act
empowering the DPCC to levy penalties, fines or environmental
damages, or to require the furnishing of bank guarantees, no such order
or direction can be issued by the DPCC, much less the CMC, in exercise
of the general powers to issue directions under Section 33 A Water Act
and Section 31 A Air Act.
62. The DPCC has placed reliance upon the decision of the learned
Single Judge of this Court dated 16th January 2009 in Writ Petition (C)
No. 7516 of 2007 (Regent Automobiles Pvt. Ltd. v. GNCTD.) The Court
in Regent Automobiles was interpreting the provisions of the Delhi
Common Effluent Treatment Plants Act, 2000 (DCETP Act). Section 11
of the DCETP Act which contains a specific provision for penalty reads
as under:
"11. Penalty for non-payment within the specified
time. If any amount payable by any person is not paid
within the date specified in the order it shall be
deemed to be in arrears and the appropriate authority
may after such inquiry as it deems fit, impose on such
person a penalty not exceeding the amount in arrears."
63. Section 16 of the DCETP Act reads as under:
"16. Power to give directions- Notwithstanding
anything contained in any other law, but subject to the
provisions of this Act, the appropriate authority may,
in exercise of its powers and performance of its
functions under this Act, issue any directions in
writing to any occupier, society, person, officer or
authority, and such occupiers, society, person, officer
or authority shall be bound to comply with directions.
Explanation- For the avoidance of doubts, it is hereby
declared that the power to issue directions under this
Clause includes the power to direct-
(a) the closure, prohibition or regulation of any
industry, establishment, operation or process; or
(b) the stoppage or regulation of supply of electricity,
water or any other service."
64. Further Section 17 DCETP Act spells out the consequences of failing
to comply with the direction issued by the authority. It enables the
authority to levy a further penalty in the event of such failure. In
addition, Section 18 DCETP Act talks of penalty for certain kinds of acts.
Section 19 DCETP Act provides for residual penalty for contravention of
certain provisions of the Act. It was noticed by learned Single Judge
that, "but for Section 16 it can be argued that the entire range of sanctions
including penalties have been specifically provided by various provisions
such as Section 11, 18, 19 & 20." It was in the above context that the
question posed by the learned Single Judge was "whether the general
power to issue directions comprehends the power to require bank
guarantees to be furnished?" After referring to certain decisions which
explained that "everything necessary to carry out the purposes of the
grant can be done by the authority entrusted with the power", the learned
Single Judge came to the conclusion that the "court cannot limit the
options available to statutory authorities to meet emerging challenges,
towards ensuring compliance with the provisions." Yet, even in that case
the Court accepted the contention of the Petitioners that in the show
cause notices, preceding the impugned orders, there was no mention
about the possibility of issuance of orders requiring bank guarantees to be
furnished. Further the orders did not indicate the application of mind to
what existed on site, and what was the standard required to be complied
with. Therefore while the challenge on account of lack of power failed,
the impugned orders were held not sustainable in law and set aside.
65. In the considered view of this Court, the above decision in Regent
Automobiles is of no assistance to the DPCC in the present case. The
provisions of the DCETP Act are different from the provisions of the Air
Act and Water Act particularly with reference to the penalty provisions.
In the DCETP Act, Sections 11, 17, 18 and 19 talk of penalties and it is
in that context it was held that the power under Section 16 of that Act
includes power to require furnishing of bank guarantee. Neither in the
Water Act nor in the Air Act is there any provision that permits DPCC to
levy a penalty. That power is with the courts and that too after returning a
conviction. Chapter VI of the Air Act and Chapter VII of the Water Act
talks of penalties which result from a conviction for violation of the
provisions. Clearly, the penalties envisaged under the Air Act and the
Water Act can be levied only at the end of judicial proceedings before a
criminal court. That power cannot be exercised by the DPCC. There is
no provision either under the Water Act or under the Air Act that
empowers a State Board to levy penalties or environmental damages,
much less require the furnishing of a bank guarantee.
66. This Court has, therefore, no hesitation in coming to the conclusion
that orders issued by the CMC or even the DPCC in the instant case
levying penalty and requiring furnishing of bank guarantees and making
the grant of consent to establish under the Water Act and consent to
operate under the Air Act conditional upon payment of such penalties
and furnishing of such bank guarantees are entirely without the authority
of law and require to be set aside.
Procedural violations by the DPCC
67. This Court finds that the procedure adopted in the instant case by the
DPCC in levying the damages and requiring the Petitioners to furnish
bank guarantees was not consistent with the requirements of the Rules
under the Air Act and Water Act. Under Rule 20A(3) of the UT Rules the
requirement is of serving a copy on the alleged violator of the proposed
directions and being given an opportunity of not less than 15 days from
the date of service of a notice to file objections to the proposed
directions. Where the direction is for the stoppage or regulation of
electricity or water or any other service then under Rule 20A(4) copy of
the proposed direction should be endorsed to the occupier of the industry,
operation or process. After the receipt of the objection and within 45 days
from that day, the DPCC should give an opportunity to the person to file
objections and after considering the objections and for reasons to be
recorded in writing, either confirm, modify or decide not to issue such
directions. Where the DPCC decides that it is not expedient to provide
such an opportunity on account of a likelihood of grave injury to the
environment, it should record an opinion to that effect.
68. Rule 33 of the Water (Prevention and Control of Pollution) Rules,
1975 („Water Rules‟) spells out the procedure for making an inquiry into
application for consent. The said Rule reads as under:
"33. Procedure for making inquiry into application
for consent-(1) On receipt of an application for
consent under Section 25 or Section 26, the Central
Board may depute any of its Officers, accompanied by
as many assistants as may be necessary, to visit the
premises of the applicant, to which such application
relates, for the purpose of verifying the correctness or
otherwise of the particulars furnished in the
application or for obtaining such further particulars or
information as such officer may consider necessary.
Such officer may, for that purpose, inspect any place
where water or sewage or trade effluent is discharged
by the applicant, or treatment plants, purification
works or disposal systems of the applicant and may
required the applicant to furnish to him any plans,
specifications and other data relating to such treatment
plants, purification works or disposal systems or any
part thereof, that he considers necessary.
(2) Such officer shall before visiting any premises of
the applicant for the purpose of inspection under sub-
rule (1) above, give notice to the applicant of his
intention to do so in Form XIV. The applicant shall
furnish to such officer all facilities that such officer
may legitimately require for the purpose.
(3) An officer of the Central Board may, before or
after carrying out an inspection under sub-rule (1)
above, required the applicant to furnish to him, orally
or in writing such additional information or
clarification, or to produce before him such
documents, as he may consider necessary for the
purpose of investigation of the application and may,
for that purpose, summon the applicant or his
authorised agent to the office of the Central Board."
69. This Court finds that in none of the cases the above procedure has
been followed by the DPCC. This would be discussed in greater detail
while dealing with the individual cases. This Court would like to
emphasise the power of the DPCC under Section 31A of the Air Act and
33A of the Water Act, which is indeed a coercive power, has to be
exercised with caution and after complying with the due process
requirements. The Rules under both statutes have to be mandatorily
followed while exercising such powers.
Conclusions
70. The summary of the conclusions of this Court are set out hereunder.
It is clarified that these summary conclusions have to be read with the
specific conclusions under different sub-topics already set out
hereinbefore.
(i) Where a person proposes to establish a commercial shopping
complex or a shopping mall or even a residential complex, it would
be necessary for such person to comply with the requirements of
Section 25(1)(a) of the Water Act and apply to the DPCC for prior
consent to establish.
(ii) Where a person has already established a commercial shopping
mall or shopping complex or residential complex and has not been
issued any show cause notice till the completion of such building
then it would be pointless to require such person to thereafter
comply with the requirements of Section 25(1) of the Water Act.
The available course to the DPCC in such event is to invoke the
powers under Section 25(5) of the Water Act and set out a time
limit for such person to comply with the requirements of the Water
Act. Upon failure to comply with the requirements as specified by
the DPCC, it would be open to the DPCC to invoke its powers
under Section 33A of the Water Act after complying with the due
process outlined under the Water Rules.
(iii) Where a person has made an application for consent to
establish and four months have elapsed during which the DPCC
has not communicated to him its decision thereon, then in terms of
Section 25(7) Water Act consent to establish will be deemed to
have been granted. In such event the question of the person being
thereafter required to apply for consent to establish does not arise.
(iv) Where the built up area is more than 20,000 sq.m., the
requirement of obtaining an EIA clearance for such activity is
mandatory. The mere fact that an EIA clearance has been applied
for and obtained by a person seeking to establish a shopping mall,
shopping complex or residential complex will not obviate the
necessity of such person to again separately apply to the DPCC for
a consent to establish under the Water Act.
(v) Where an EIA clearance has already been granted by the
MoEF, and the DPCC is thereafter approached for grant of prior
consent to establish or prior consent to operate, it would be
incumbent on the DPCC to avoid re-examining those aspects that
have been examined by the MoEF while granting EIA clearance.
The DPCC will examine other aspects not covered by the EIA
clearance.
(vi) The requirement of obtaining prior consent to operate under
Section 21(1) of the Air Act applies to a commercial shopping
complex or shopping mall as these would fall within the definition
of „industrial plant‟ under Section 2(k) of the Air Act. However on
the present wording of Section 21(1) Air Act, there is no such
requirement as regards a residential complex.
(vii) The requirement of having to obtain the consent to operate
under Section 21 of the Air Act does not get obviated only because
the person has an EIA clearance under the EPA.
(viii) The DPCC when approached with an application for consent
to operate by a person who has already obtained an EIA clearance,
will examine only those aspects not covered by the EIA clearance.
(ix) During the phase of construction, and post-construction, the
provisions of the Water Act, the Air Act and the EPA and other
environmental statutes will apply to all types of buildings and
activities.
(x) Without issuing a show cause notice and without giving an
opportunity to the alleged violator to rectify the defects detected
during an inspection of the premises carried out in accordance with
the relevant rules, the power to order a closure under either Section
33A Water Act or 31A Air Act should not generally be straightway
invoked.
(xi) There is no power vested in the Chairman of the DPCC, either
under the Water Act or under the Air Act to further sub-delegate
the powers delegated to him by the DPCC as regards granting or
refusing consent to establish or consent to operate under the Water
Act and the Air Act respectively. Any Committee established by
the Chairman of the DPCC like the CMC has no power to itself
decide whether to grant or refuse the consent to establish or
consent to operate. Such decision can be taken either by the DPCC
itself or by its delegate i.e. the Chairman DPCC and no one else.
(xii) The decisions by the CMC or even by the Chairman, DPCC to
levy penalty or environmental damages and insist on furnishing of
bank guarantees as a condition for grant of consent to establish or
consent to operate are without the authority of law. There is no
power under the Air Act or the Water Act which enables the DPCC
or its Chairman, much less the CMC, to pass such orders. Absent
specific provisions under the Water Act and Air Act which permit
the DPCC or its Chairman to levy and collect penalties,
environmental damages or to pass orders for furnishing of bank
guarantees, the general power to issue directions under Section
31A of the Air Act and Section 33A of the Water Act cannot be
invoked for such purpose.
(xiii) Where there are multiple owners in a constructed building,
the application for EIA clearance or consent to establish or operate,
as the case may be, will be made jointly by the builder and such
individual owners or occupiers. If the building has been completed
without obtaining prior consent to establish under Section 25 (1)
(a) of the Water Act it would be incumbent upon the person first
receiving a show cause notice from the DPCC in terms of Section
25(5) of the Water Act to inform the DPCC the names of the
persons to whom the whole or part of the building in question has
been sold or transferred. The position is more or less similar under
the Air Act. Notices can then issue to such persons as well. Till
such time the person first receiving a show cause notice furnishes
the complete particulars of subsequent transferees and till
discharged, such person will continue to be answerable under the
Water Act and/or the Air Act.
70.1 This Court would like to end this part of the judgment, before
commencing to examine the individual petitions, with the observation
that the DPCC should take proactive steps to make the correct legal
position publicly known not only through its website, but act in
coordination with the governmental and municipal agencies, the planning
authorities, the construction industry, consumer associations as well as
civil society groups involved in issues of environmental protection. Not
only should DPCC reorganize itself as a vigilant regulator but seek the
active cooperation of all of the above interested parties. Also, to avoid
any criticism of selective application of law, the DPCC should ensure
that the law applies and is enforced in a uniform, predictable and certain
way, while ensuring that action taken is within the four corners of the
law.
Consideration of individual petitions
71. The individual petitions are now taken up for consideration
W.P. (C) No. 2714 of 2008 (Vardhman Properties Ltd.)
72. The building in this case is a shopping-cum-office complex built on a
commercial plot. The total built up area is 7700 sq.m. The show cause
notice was issued by the DPCC on 13th February 2008 asking the
Petitioner to explain why it should not be proceeded against for its failure
to apply for a consent to establish under Section 25 of the Water Act and
consent to operate under Section 21 of the Air Act. The show cause
notice further stated with reference "you are proposing to construct/have
started construction activities without obtaining prior „Consent to
Establish‟ under Air & Water Act from DPCC". The Petitioner was
asked to show cause why "prosecution proceedings should not be
initiated against you and/or your establishment should not be closed
under the appropriate provisions of the Acts for contravention of the
provisions of the aforesaid Acts".
73. By the time the above show cause notice was issued, the building had
already been constructed. In fact, construction commenced on 7 th June
2005 in terms of the sanctioned building plan and was completed on 25 th
June 2007. The Petitioner replied to the above notice on 18th February
2008. Inter alia, it was pointed out that an application was made on 3 rd
September 2007 under the Right to Information Act, 2005 („RTI Act‟) on
the exact criteria adopted by the DPCC for identifying commercial
complexes for the purposes of consent under the Air Act and the Water
Act. The DPCC had replied that commercial/residential buildings not
generating trade effluent are required to discharge their sewage into
sewage system maintained by Delhi Jal Board/MCD/DDA which in turn
was responsible for treating the sewage in the sewage treatment plant as
per the norms prescribed under the pollution control laws and in such
event consent was not required for the said commercial/residential
buildings.
74. On 18th March 2008, an order was passed by the DPCC noting that a
reply had been filed by the Petitioner to the show cause notice on 18 th
February 2008 that "no application has been made till date". The case
was then placed before the CMC (Orange). It was decided by the CMC to
direct the Petitioner to apply for consent to establish and submit
"Environmental Clearance obtained from MoEF, Govt. of India" and an
"affidavit indicating date of start of construction and completion of
construction, approved architectural drawing and completion certificate
within 15 days from the issue of this letter".
75. The challenge in the present petition is to the aforementioned order
dated 18th March 2008.
76. As already held by this Court hereinbefore that there was no question
of the Petitioner having to apply for environmental clearance from the
MoEF in terms of the EIA Notification dated 14 th September 2006 since
the built up area was not above 20,000 sq.m. In the present case the built
up area was 7700 sq.m. The categorization of an industry as Orange, Red
or Blue appears to that of the DPCC. It is not found either under the Air
Act or under the Water Act. Nevertheless, a commercial shopping
complex required prior consent to establish prior to commencement of
construction. But once the construction was already complete, then it was
pointless to require the Petitioner to apply thereafter for consent to
establish.
77. Thirdly, the Petitioner‟s reply dated 18th February 2008 has been
noticed but not discussed by the DPCC in the impugned order. In
particular, the Petitioner‟s response to the reply received by it under the
RTI Act has not been adverted to at all. Although it is possible that the
sewage generated by the shopping complex will join the main sewage
system which is being taken to the effluent treatment plant of the DJB,
that by itself will not obviate the need to obtain consent to establish from
the DPCC.
78. It appears that DPCC itself was not very clear about the legal position
and, therefore, the above reply was given under the RTI Act. It cannot be
said that the DPCC estopped from rectifying its position or correcting its
understanding of the law.
79. Inasmuch as the building already was constructed on 25 th June 2007,
by the time the show cause notice dated 13 th February 2008 was issued,
the direction issued by the DPCC requiring the Petitioner to thereafter
apply for a consent to establish under the Water Act and consent to
operate under the Air Act was a direction which was incapable of being
complied with.
80. This is, however, not the end of the matter. The DPCC can still
proceed under Section 25(5) of the Water Act requiring the Petitioner to
comply with the pollution control norms under the Water Act. This it can
do after following the procedure under Section 25(5).
81. As far as Air Act is concerned, the DPCC can inspect the premises to
ascertain what is the extent of the air pollution caused, if any, and then
issue notice to the Petitioner.
82. The direction issued in the impugned order dated 18 th March 2008,
requiring the Petitioner to apply for consent to establish and consent to
operate, is for the aforementioned reasons not sustainable in law. While
setting aside the impugned order dated 18th March 2008 for the
aforementioned reasons, this Court leaves it open to the DPCC to now
proceed in accordance with Section 25(5) of the Water Act and other
relevant provisions of the Air Act. If it finds after an enquiry or
investigation that the use of the premises is causing either water or air
pollution, and corrective action is not taken within the time limit set for
the purpose, it can proceed further to issue directions as envisaged under
Section 31A Air Act and Section 33A Water Act.
83. The writ petition is disposed of with the above directions.
W.P. (C) No. 2771 of 2008 (Vardhman Properties Ltd.)
84. The total built up area in the present case is to an extent of 6131.22
sq.m. The building has been constructed on a commercial plot. The
building is a shopping complex. Like in Writ Petition (C) No. 2714 of
2008, a show cause notice was issued by the DPCC on 13th February
2008 requiring the Petitioner to apply for prior consent to establish and
consent to operate under the Air Act and the Water Act respectively. A
similar response was received from the Petitioner on 18 th February 2008
and a similar order as in Writ Petition (C) No. 2714 of 2008 was passed
by the DPCC on 18th March 2008.
85. Here again the construction commenced on 15 th February 2005 and
was completed on 4th December 2006 i.e. much prior to the issuance of
the show cause notice. For the reasons already explained in Writ Petition
(C) No. 2714 of 2008, the impugned order cannot be sustained in law and
is hereby set aside. It would nevertheless be open to the DPCC to now
proceed in accordance with Section 25(5) of the Water Act and other
relevant provisions of the Air Act but only after complying with the due
process requirements under the Rules. If after making its own
enquiry/investigations into the matter, it finds that the use of the premises
is causing either water or air pollution, and the corrective action is not
taken within the time limit set for the purpose, it can proceed further to
issue directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
W.P. (C) No. 2772 of 2008 (Vardhman Properties Ltd.)
86. The building in this case is a shopping complex built on a commercial
plot. The total built up area is 5907.25 sq.m. The facts are identical to the
facts in Writ Petition (C) Nos. 2714 and 2721 of 2008. The date of
completion of the building is 14th December 2006.
87. For the reasons already stated hereinbefore, the impugned order dated
18th March 2008 passed by the DPCC is unsustainable in law and is
hereby set aside. It would nevertheless be open to the DPCC to now
proceed in accordance with Section 25(5) of the Water Act and other
relevant provisions of the Air Act but only after complying with the due
process requirements under the Rules. If after making its own
enquiry/investigations into the matter if it finds that the use of the
premises is causing either water or air pollution, and the corrective action
is not taken within the time limit set for the purpose, it can proceed
further to issue directions as envisaged under Section 31A Air Act and
Section 33A Water Act. The writ petition is disposed of with the above
directions.
W.P. (C) No. 7081 of 2008 (Pankaj Buildwell Ltd.)
88. The total built up area in this case is 1593 sq.m. The building is a
shopping complex and is built up on a commercial plot. The completion
certificate was obtained on 2nd June 2008 itself. It is only thereafter on
14th February 2008 that the standard show cause notice was issued by the
DPCC which was identically worded as the show cause notice dated 13th
February 2008 in the cases of Writ Petition (C) Nos. 2714, 2771 and
2772 of 2008. The impugned order is dated 9th September 2008 which is
again identically worded.
89. The decision taken by the CMC on 3rd September 2008 has been
placed on record. It shows that apart from the Chairman, DPCC there
were three other members along with the Executive Engineer, Assistant
Executive Engineer and Joint Executive Engineer of the CMC. As
regards the Petitioner, its contention that it had no DG set and no bore
well and there was no effluent were noted. The decision was to let the
unit file its application to the DPCC and its case would be considered by
the CMC on 30th September 2008. The above decision of the CMC was
communicated to the Petitioner on 9th September 2008 asking it to file an
application for consent to establish. This is the decision which has been
challenged in the writ petition.
90. For the reasons already stated hereinbefore, the impugned order dated
9th September 2008 passed by the DPCC is unsustainable in law and is
hereby set aside. It would nevertheless be open to the DPCC to now
proceed in accordance with Section 25(5) of the Water Act and other
relevant provisions of the Air Act but only after complying with the due
process requirements under the Rules. If after making its own
enquiry/investigations into the matter if it finds that the use of the
premises is causing either water or air pollution, and the corrective action
is not taken within the time limit set for the purpose, it can proceed
further to issue directions as envisaged under Section 31A Air Act and
Section 33A Water Act. The writ petition is disposed of with the above
directions.
W.P. (C) No. 3815 of 2008 (Vardhman Properties Ltd.)
91. The building in question has a total built up area 4735.62 sq.m. and is
on a commercial plot. The construction of the building commenced on
27th November 2003 and was completed on 2nd December 2004. A show
cause notice was issued on 24th April 2008 requiring Petitioner to apply
for consent to establish. It was at this stage that the present writ petition
was filed challenging the said show cause notice. An interim order was
passed by this Court on 19th May 2008 directing the Respondent not to
take coercive action pursuant to the abovementioned notice dated 24th
April 2008.
92. In the reply filed to the petition, a reference is made by the DPCC to
the Petitioner‟s response dated 6th May 2008 to the show cause notice in
which it was mentioned that the DDA has already issued a completion
certificate. It appears that the DPCC undertook an inspection of the site
on 1st July 2008 and confirmed that the built up area was 4735.62 sq.m.,
and that the completion of the construction took place on 2 nd December
2004. The inspection team was also informed that the building was
under occupation since 1st April 2005 and the occupancy was to the
extent of 50 to 60 persons. There was one DG set of 140 KVA along with
two more DG sets located at the terrace, there was no information about
their KVA. Sewage connection was available and the estimated waste
water generation was 11.2 KLD. It was informed that the CMC was yet
to take any decision on the said report.
93. This Court finds that the built up area being 4735.62 sq.m., there was
no question of the Petitioner having to obtain an EIA clearance in terms
of the EIA Notification dated 14th September 2006. The construction
having already been completed on 2nd December 2004, the direction to
the Petitioner to apply for consent to establish which had to happen prior
to commencement of construction was incapable of being complied with.
94. The impugned orders dated 24th April 2008 of the DPCC are
unsustainable in law and are hereby set aside. It would nevertheless be
open to the DPCC to now proceed in accordance with Section 25(5) of
the Water Act and other relevant provisions of the Air Act but only after
complying with the due process requirements under the Rules. If after
making its own enquiry/investigations into the matter if it finds that the
use of the premises is causing either water or air pollution, and the
corrective action is not taken within the time limit set for the purpose, it
can proceed further to issue directions as envisaged under Section 31A
Air Act and Section 33A Water Act. The writ petition is disposed of with
the above directions.
W.P. (C) No. 8143 of 2008 (Manish Buildwell Pvt. Ltd).
95. The total built up area of the commercial complex in the present
petition is 2160 sq.m. Construction of the building commenced sometime
in May 2007 and was completed in May 2008. A show cause notice was
thereafter issued on 6th June 2008. On 16th October 2008, a direction was
issued by the DPCC requiring the Petitioner to apply for consent to
establish. This is identically worded as the direction issued by the DPCC
on 10th September 2008 in Writ Petition (C) No. 7081 of 2008.
96. For the reasons already explained hereinbefore, the directions
contained in the order dated 10th September 2008 and 16th October 2008
passed by the DPCC are unsustainable in law and are hereby set aside. It
would nevertheless be open to the DPCC to now proceed in accordance
with Section 25(5) of the Water Act and other relevant provisions of the
Air Act but only after complying with the due process requirements
under the Rules. If after making its own enquiry/investigations into the
matter if it finds that the use of the premises is causing either water or air
pollution, and the corrective action is not taken within the time limit set
for the purpose, it can proceed further to issue directions as envisaged
under Section 31A Air Act and Section 33A Water Act. The writ petition
is disposed of with the above directions.
W.P. (C) No. 8144 of 2008 (Vardhman Properties Ltd.)
97. The total built up area of the commercial complex constructed on a
commercial plot in the present petition is18,250 sq.m. Construction of
the building was completed on 14th September 2007. An order was
passed on 24th October 2008 by the DPCC in terms of the decision of the
CMC at its meeting on 7th October 2008 asking the Petitioner to apply for
consent to establish and also give para wise reply to the observation made
by the special inspecting team on the inspection that was carried out on
3rd September 2008.
98. For reasons already mentioned, the direction to the Petitioner to apply
for consent to establish is now incapable of being complied with
inasmuch as construction was already completed on 14th September 2007.
It is not clear if the due process requirement of a prior show cause notice
was complied with by the DPCC before issuance of the above direction.
While setting aside the impugned order dated 24th October 2008, this
Court leaves it open to the DPCC to initiate appropriate proceedings in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act but only after complying with the due process
requirements under the Rules. If after making its own enquiry/
investigations into the matter if it finds that the use of the premises is
causing either water or air pollution, and the corrective action is not taken
within the time limit set for the purpose, it can proceed further to issue
directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
W.P. (C) No. 8145 of 2008 (Sachdeva Buildcon Pvt. Ltd.)
99. The total built up area of the commercial shopping complex
constructed on a commercial plot in the present petition is 2407.7 sq.m.
Construction of the building commenced sometime in January 2005 and
was completed in May 2006. It appears that on 28th April 2008 and 29th
May 2008 the DPCC passed orders directing the Petitioner to apply for
consent to establish.
100. For the reasons already explained hereinbefore, this Court finds that
the impugned directions are unsustainable in law and are hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act but only after complying with the due process
requirements under the Rules. If after making its own enquiry/
investigations into the matter if it finds that the use of the premises is
causing either water or air pollution, and the corrective action is not taken
within the time limit set for the purpose, it can proceed further to issue
directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
W.P. (C) No. 8146 of 2008 (Rajesh Projects India Pvt. Ltd.)
101. The total built up area of the building constructed on a commercial
plot in the present petition is 5000 sq.m.(approx). Construction of the
building commenced on 5th July 2005 and completed in April 2007. A
show cause notice was issued on 24th April 2008 and a direction was
issued on 4th November 2008 asking the Petitioner to apply for consent to
establish.
102. For the reasons already explained hereinbefore, this Court finds that
the impugned directions are unsustainable in law and are hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act but only after complying with the due process
requirements under the Rules. If after making its own enquiry/
investigations into the matter if it finds that the use of the premises is
causing either water or air pollution, and the corrective action is not taken
within the time limit set for the purpose, it can proceed further to issue
directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
W.P. (C) No. 8147 of 2008 (Rajesh Projects India Pvt. Ltd.).
103. The total built up area of the shopping mall constructed on a
commercial plot in the present petition is 3990 sq.m. Construction of the
building commenced on 27th February 2003 and was completed on 27th
July 2006. A show cause notice was issued on 24 th April 2008 and a
direction was issued on 4th November 2008 asking the Petitioner to apply
for consent to establish.
104. For the reasons already explained hereinbefore, this Court finds that
the impugned directions are unsustainable in law and are hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act but only after complying with the due process
requirements under the Rules. If after making its own enquiry/
investigations into the matter if it finds that the use of the premises is
causing either water or air pollution, and the corrective action is not taken
within the time limit set for the purpose, it can proceed further to issue
directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
W.P. (C) No. 8148 of 2008 (Manish Buildwell Pvt. Ltd.)
105. The total built up area of the building constructed on a commercial
plot in the present petition is 8485.75 sq.m. Construction of the building
commenced on 15th June 2005 and was completed on 22nd May 2007. A
show cause notice was issued on 13th February 2008 and a direction was
issued asking the Petitioner to apply for consent to establish.
106. For the reasons already explained hereinbefore, this Court finds that
the impugned directions dated 18th March 2008 and 29th May 2008 are
unsustainable in law and are hereby set aside. It would nevertheless be
open to the DPCC to now proceed in accordance with Section 25(5) of
the Water Act and other relevant provisions of the Air Act but only after
complying with the due process requirements under the Rules. If after
making its own enquiry/investigations into the matter if it finds that the
use of the premises is causing either water or air pollution, and the
corrective action is not taken within the time limit set for the purpose, it
can proceed further to issue directions as envisaged under Section 31A
Air Act and Section 33A Water Act. The writ petition is disposed of with
the above directions.
W.P. (C) No. 8149 of 2008 (Fargo Estates Pvt. Ltd.)
107. The total built up area of the building constructed on a commercial
plot in the present petition is 10,100 sq.m. Construction of the building
commenced on 2nd May 2004 and was completed sometime in May 2006.
A show cause notice was issued on 21st May 2007 and an order was
passed on 31st October 2008 requiring the Petitioner to pay
environmental damages of ` 40 lakhs and furnish bank guarantee of ` 95
lakhs.
108. The above directions were stayed by this Court by an order dated
17th November 2008.
109. For the reasons already explained hereinbefore, the impugned order
dated 31st October 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act but only after complying with the due process
requirements under the Rules. If after making its own enquiry/
investigations into the matter if it finds that the use of the premises is
causing either water or air pollution, and the corrective action is not taken
within the time limit set for the purpose, it can proceed further to issue
directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
110. It will however not be open to the DPCC to levy any environmental
damages or requiring the Petitioner to furnish any bank guarantee for
non-compliance with the provisions of either Acts. The writ petition is
disposed of with the above directions.
W.P. (C) No. 9040 of 2008 (Home Linkers Pvt. Ltd.)
111. The total built up area of the building constructed on a commercial
plot in the present petition is 3,526.83 sq.m. Construction of the building
commenced on 11th November 2004 and was completed on 7th June 2006.
A show cause notice was issued on 14th February 2008 and orders were
passed on 18th March 2008 and 19th September 2008 requiring the
Petitioner to apply for consent to establish.
112. For the reasons already explained hereinbefore, the impugned orders
dated 18th March 2008 and 19th September 2008 cannot be sustained in
law and are hereby set aside. It would nevertheless be open to the DPCC
to now proceed in accordance with Section 25(5) of the Water Act and
other relevant provisions of the Air Act but only after complying with the
due process requirements under the Rules. If after making its own
enquiry/investigations into the matter if it finds that the use of the
premises is causing either water or air pollution, and the corrective action
is not taken within the time limit set for the purpose, it can proceed
further to issue directions as envisaged under Section 31A Air Act and
Section 33A Water Act. The writ petition is disposed of with the above
directions.
W.P. (C) No.464 of 2009 (Vardhman Land Developers Pvt. Ltd.)
113. The Petitioner purchased a commercial plot measuring 5112 sq.m.
in Raja Garden, New Delhi in an open auction held by the MCD on 6th
May 2002 and a perpetual lease deed was executed and building plans
were sanctioned by the DDA on 24th March 2004. A completion
certificate was issued on 31st January 2005.
114. The Petitioners pointed out that although they did not consider it
necessary to apply for consent to establish, they nevertheless did apply on
22nd November 2007 with the DPCC. A show cause notice was issued on
5th December 2007 which was replied to on 13th December 2007
informing the DPCC that the application seeking „consent to establish‟
was already pending. No reply was received from the DPCC. The DPCC
again sent a notice dated 14th March 2008 requiring the Petitioner to
submit environmental clearance, approved architectural drawings and the
completion certificate. Thereafter the DPCC sent a letter dated 26th May
2008 informing the Petitioner that its case was being placed before the
CMC.
115. At its meeting on 21st August 2008, the CMC took note of the fact
that the total project cost is ` 44.14 crores and that in similar cases the
CMC has levied damages of 1% of the project cost and 2% of the project
cost for bank guarantee which in the present case worked out to damages
as cash penalty of ` 44 lakhs and bank guarantee of ` 88 lakhs. The
aforesaid damages as cash penalty and bank guarantee valid for three
years was asked to be furnished by 17th September 2008. The Petitioner
then made a representation which was again considered by the CMC in
its meeting held on 7th October 2008. The CMC now reduced the penalty
amount to ` 40 lakhs and bank guarantee amount to ` 85 lakhs and asked
the unit to comply with the directions of 6th July 2008.
116. It was at that stage that the Petitioner filed the present writ petition
in which by an order dated 27th January 2009 an interim order was passed
restraining the Respondents from taking any coercive action against the
Petitioner.
117. As explained hereinbefore, the DPCC had no power to require the
Petitioner to pay environmental damages or to furnish bank guarantee
and, therefore, the impugned direction is wholly unsustainable in law and
is hereby set aside. If indeed the Petitioner had already filed an
application for consent to establish on 22nd November 2007, then in the
absence of any reply thereto by the DPCC in terms of Section 25(7) of
the Water Act such consent is deemed to have been granted.
118. This will, in any event, not preclude the DPCC from taking action
against the Petitioner after an inspection undertaken by it of the premises
hereafter. If the Petitioner or any one in occupation of the building in
question is found to be acting in violation of the provisions of either the
Water Act or the Air Act, the DPCC can proceed to take action but only
after following the due process of law as envisaged by the Rules. The
writ petition is disposed of with the above directions.
W.P. (C) No. 543 of 2008 (Splendor Landbase Ltd.)
119. The property in question is an office complex-cum-shopping mall
on Plot No.3, District Centre, Jasola, New Delhi known as Splendor
Forum. The area of the plot is about 5704 sq. m. It was purchased from
the Delhi Development Authority for commercial purposes in an open
auction. The Petitioner states that all the necessary permissions from all
authorities concerned including the municipalities, electricity department,
Chief Fire Officer, Delhi Urban Art Commission, and Airport Authority
of India were taken. The construction of the building started in March
2004 and the construction up to the plinth level was completed in
December 2005. The EIA Notification dated 7th July 2004 brought within
its fold construction activity. The Petitioner states that in terms of the
said EIA Notification where construction was complete till the plinth
level, no environmental clearance was necessary. However, since DDA
insisted on the Petitioner producing the EIA clearance certificate in order
to process its case for additions, alterations and modifications, the
Petitioner applied and was granted EIA clearance by the MoEF on 2nd
November 2007.
120. In response to a notice dated 20th/21st August 2007 from the DPCC,
the Petitioner applied for consent to establish under Section 25 (1) (a) of
the Water Act on 5th September 2007. A reply to the notice dated 20th/21st
August 2007 was also sent to the DPCC by the Petitioner. The aforesaid
application for consent dated 5th September 2007 was never formally
rejected by the DPCC. However, an order dated 31st December 2007 was
passed by the DPCC issuing directions under Section 31A of the Air Act
and Section 33A of the Water Act primarily on the ground that the
construction was started and completed without first obtaining consent to
establish. It was also alleged that there were certain violations of the
conditions of the EIA clearance although according to the Petitioner this
was outside the scope of the powers of the DPCC. By the impugned order
dated 31st December 2007, the Petitioner was asked to pay fine and
furnish a bank guarantee. The Petitioner submits that said order was
passed without complying with the principles of natural justice and was
contrary to the procedure under the Rules. The premises was inspected by
MoEF. It is stated that in its report dated 5th May 2008 the MoEF
recorded that there has been satisfactory compliance of most of the
conditions laid down in the EIA clearance. It was concluded that the
commencement of construction by the Petitioner in March 2004 could
not be treated as a violation of the EPA. Hence no legal action was
recommended by the MoEF against the Petitioner under the EPA.
121. The directions issued by the DPCC on 31st December 2007 have
been assailed as being ultra vires the powers of the DPCC under the Air
Act and the Water Act. The said order is also challenged on the ground of
non-compliance with the applicable Rules and further that DPCC cannot
take action for alleged non-compliance with the conditions forming part
of the EIA clearance.
122. In its counter affidavit dated 31st January 2008 the DPCC contended
that the Petitioner initially did not apply to the DPCC for prior consents
under either the Water Act or the Air Act. It was only after a formal
notice was issued to the Petitioner in August 2005 that on 5 th September
2007, the Petitioner applied to the DPCC for consent to establish under
the Water Act and consent to operate under the Air Act. According to the
DPCC the Standing counsel of the GNCTD advised it that it could not
initiate actions under Sections 15, 16 and 19 of the EPA. An inspection
was carried out in the premises on 23rd December 2007 and the
deficiencies noted at that time have been listed out in the counter
affidavit. The conditions imposed by the amended clearance dated 10 th
February 2007 and the status of compliance was also set out in detail in
the counter affidavit. It is stated that the CMC at its meeting on 26 th
December 2007 and 28th December 2007 deliberated upon the matter
considering the facts and circumstances including the representation
dated 27th December 2007 made by the Petitioner. Thereafter the
impugned order dated 31st December 2007 was passed under Section 31A
of the Air Act and Section 33A of the Water Act asking the Petitioner to
pay 0.5% of the project cost of ` 65 crores as fine, which was required to
be deposited in the DPCC‟s account within 30 days. The DPCC‟s stand is
that "any smaller amount of fine will only mean that a non-deserving
Petitioner with no bonafides of commitment to preserving clean air and
water in his environment, would not work towards a correction. Surely
environment deserves ½ % of his total project cost to make him realize
the degree of his callousness." A detailed parawise reply to the writ
petition has also been given by the DPCC.
123. In its rejoinder filed on 6th February 2008, the Petitioner pointed out
that it had in fact obtained EIA clearance. A reference was made to the
website of the DPCC where under the caption „frequently asked
questions‟ under the sub-heading „consent procedure‟ the following
questions and answers appear:
"Q. I am involved in trading activity, Do I need to apply for
consent?
Ans. At present, consents are not required for enterprises engaged
only in trading activities.
Q. I have an office and have installed a D.G. Set. Do I need to take
consent from DPCC?
Ans. DPCC does not issue consent for offices. For D.G. Sets you
are required to install acoustic enclosure meeting the prescribed
norms/standards for noise for D.G. Sets."
124. It is pointed out that it is only by the amendment with effect from 7 th
July 2004 that construction activity came to be added to the EIA
Notification and again it was clarified that such amendment would not
apply to "any construction project falling under entry 31 of Schedule-1
including new townships, industrial townships, settlement colonies,
commercial complexes, hotel complexes, hospitals and office complexes
for 1,000 (one thousand) persons or below or discharging sewage of
50,000 (fifty thousand) litres per day or below or with an investment of
Rs. 50,00,000/- (Rupees Fifty Lakhs) or below." The Petitioner
proceeded on the assumption that the term „investment‟ in the said
Notification would include the amount invested in construction and
raising the super-structure and since that was around ` 34 crores, no EIA
clearance was required. Thereafter when a further modified EIA
Notification was issued on 14th September 2006, the Petitioner applied to
the MoEF for EIA clearance on 12th March 2007. Time was granted by a
Circular dated 21st November 2006 of the Central Government up to 30 th
June 2007 for applying for EIA clearance.
125. It is not the submission of learned counsel for the Petitioner that
there is any repugnancy between the EPA and the Air Act and the Water
Act. On the other hand, it is not denied that the EPA would apply and
that in the Petitioner‟s case, the EIA clearance would have to be obtained.
What is contended is that once EIA clearance has been obtained, there is
no occasion to again apply to the DPCC under the Air Act and the Water
Act for consent to operate and consent to establish respectively. Further,
it is submitted that there are many aspects of the EIA clearance which
include water and air pollution and, therefore, the exercise would become
repetitive and cumbersome. Thirdly, it is sought to be contended that the
jurisdiction as regards the EIA clearance is of the Central Government
and not of the DPCC particularly with reference to the National Capital
Territory of Delhi.
126. The stand of the Respondents, on the other hand, is that consent
under the Air Act and the Water Act are independent of the EIA
clearance and that although the DPCC may have no jurisdiction as
regards the EIA clearance, to the extent that such EIA clearance itself
mandates that the person in whose favour such clearance has been
granted has to obtain consent under the Air Act and the Water Act, the
DPCC‟s jurisdiction will stand attracted. It is further submitted that the
parameters that would weigh with the DPCC in processing an application
for consent under the Air Act and the Water Act might be different from
those which would weigh with the MoEF in granting EIA clearance.
127. This Court has considered the above submissions. In view of the
built up area of the building being over 20,000 sq.m., an EIA clearance is
mandatory. For the reasons already discussed, it must be held that the
requirement of obtaining consent to establish under the Water Act and
consent to operate under the Air Act is independent of the EIA clearance
obtained in respect of the Petitioner‟s shopping complex or shopping
mall. But this requirement would have applied at the stage when
construction had not commenced.
128. However, in this case at the time when the Petitioner applied for and
obtained the EIA clearance, the construction of the building was
complete. There was no show cause notice issued to it by the DPCC from
the time it commenced construction sometime in March 2004 till it
completed its construction in December 2005. Clearly, the DPCC woke
up very late. The first show cause notice was issued sometime in August
2007. Even then the show cause notice was issued to M/s. G.S.
Developers & Contractors Pvt. Ltd. who were only contractors whereas
the whole shopping complex was built by the Petitioner. Be that as it
may, for the reasons already discussed the course open to the DPCC was
to invoke Section 25(5) of the Water Act to require the Petitioner to
rectify any deficiency that must have been noticed on the inspection of
the premises. Even under the Air Act, there is no question of now
requiring the Petitioner to apply for „prior consent to operate‟ since the
construction of the building is already complete.
129. There are enough provisions in both the Air Act and the Water Act
to deal with a situation where without obtaining prior consent a building
been constructed and has become functional. As already pointed out the
action under Section 31A of the Air Act and Section 33A of the Water
Act will have to be exercised reasonably after complying with the rules
envisaged under both these Acts. The exercise should not be a
mechanical one. Since this is a building which has been granted EIA
clearance, the DPCC should find out first whether there are other aspects,
not covered by the EIA clearance that require to be rectified by the
Petitioner both under the Water as well as the Air Act. In other words,
the exercise to be undertaken by the DPCC ought not to be repetitive of
the exercise undertaken by the MoEF while granting EIA clearance.
130. Thirdly, there is no legal basis for the DPCC to impose penalty and
environmental damages on the Petitioner or require it to furnish a bank
guarantee. For the reasons already discussed, such orders are plainly
outside the powers of the DPCC under the Water Act and the Air Act and
cannot be sustained in law.
131. The DPCC has relied upon an order dated 14th October 2003 passed
by the Supreme Court in Writ Petition (C) No. 657 of 1995 (Research
Foundation for Science Technology and National Resource Policy v.
Union of India) where in para 70.6 an observation was made to the
following effect:
"MoEF should consider making a provision for bank
guarantee being given by importer while seeking
permission to import used oil, furnace oil and zinc
wastes to be released only on the imported
consignment being found to be in conformity with the
declared item of import. After taking a decision,
affidavit shall be filed within four weeks".
132. The above observation of the Supreme Court does not by any means
imply that an SPCB like the DPCC can begin to levy penalties and fines
and environmental damages or require bank guarantees to be furnished in
exercise of its powers under Section 31A of the Air Act and Section 33A
of the Water Act. The above contention is accordingly rejected.
133. Reliance has been placed by the DPCC on an order dated 17 th
October 2006 passed by the Supreme Court in the Vasant Kunj Ridge
matters. The above order was passed in an application filed seeking
acceptance of the report of the Expert Committee relating to violation of
environmental norms by certain parties who had constructed shopping
malls or hotel complexes in the Vasant Kunj Ridge area. After referring
to the earlier orders dated 19th August 1997 and 8th March 2004, the
Supreme Court observed "that the parties were not aware that they had to
take EIA clearance in terms of the amended EIA Notification dated 7 th
July 2004. It was then observed as under:
"The confusion arose because DDA all through all through gave an
impression to the parties participating in auction that all requisite
clearances had been obtained. Had such parties inkling of an idea
that such clearances were not obtained by DDA, they would not
have invested such huge sums of money. The stand that wherever
constructions have been made unauthorisedly demolition is the
only option cannot apply to the present cases, more particularly,
when they unlike, where some private individuals or private
limited companies or firms being allotted to have made
contraventions, are corporate bodies and institutions and the
question of their having indulged in any malpractices in getting the
approval or sanction does not arise. Some of the allottees are the
National Book Trust, School of Planning or Architecture, Shri
Ram Vithala Sikha Seva Samiti, International Centre for Alternate
Dispute Resolution and Institute for Studies and Industrial
Development. In most of these cases the constructions are already
complete and have become functional."
134. Consequently, the following directions were issued:
"10. In view of what has been stated above, the MoEF
has now to take a decision by taking the land as
constraint area. It is needless to say that even if the
land is held to be constraint area the constructions
thereon have to be made after having the requisite
clearance. The MoEF shall take note of the stands
projected by the Respondents. We are prima facie
satisfied about the bona fides of the Respondents but
at the same time it needs no emphasis that DDA
should have been more transparent in ensuring that it
was not putting a site for auction where there was
scope for litigation. It had definitely created an
impression that all necessary clearances had been
obtained, though it does not appear to be so. What
remains to be decided as to what remedial measures
including imposition of such amounts as costs can be
taken".
135. The position as far as the present set of cases is concerned, is not
very different. The DPCC appears to have woken up after the
construction of the shopping-cum-commercial complexes/malls was
completed. Therefore as far as the present cases are concerned, the above
orders do not come to the aid of the DPCC for seeking to proceed against
the Petitioner for failing to obtain prior consent to operate under the Air
Act and prior consent to operate under the Water Act. As already
clarified, this would not preclude the DPCC from proceeding under the
Air Act and Water Act in the manner already discussed hereinbefore.
136. The understanding of the law by the DPCC as reflected on its
website should not be taken to be determinative. There is no estoppel
against law. The position depicted by the DPCC on its website will be
obviously subject to and in consonance with the correct legal position.
There has been a lack of clarity even within the DPCC on whether the
provisions of the Water Act and the Air Act apply to construction
activity. Hopefully that confusion should not remain any longer.
137. For the aforementioned reasons, this Court while setting aside the
order dated 31st December 2007 passed by the DPCC permits it to
proceed in accordance with law against the Petitioner in terms of Section
25(5) of the Water Act and the relevant provisions of the Air Act.
138. A point has been urged by the Petitioner that substantial portions of
the complex have been sold/leased out to different persons and, therefore,
the complex is no longer in the control of the Petitioner. As and when a
fresh show cause notice is issued to the Petitioner by the DPCC, it will be
open to the Petitioner to furnish to the DPCC the names of the individual
owners of the different portions who might be liable to the extent of their
respective portions. This by no means will absolve the Petitioner of its
liability which is joint and several with such individual owners/lessees. It
will be for the DPCC to decide who should be made liable for complying
with the various provisions under the Water Act and the Air Act.
139. The writ petition is accordingly disposed of with the above
directions.
W.P. (C) No. 3095 of 2008 (DLF Ltd.).
140. The case of the Petitioner is that a plot of land admeasuring
15659.50 sq.m. situated at District Centre, Saket, New Delhi with an
attached general parking plot admeasuring 14072.48 sq. m. was
purchased in an auction from DDA to be used as retail/office/multiplex/
service apartment purposes. Although according to the Petitioner no
formal consent was required, to avoid any hyper-technical objection and
impediment at a later stage and without prejudice to its rights, the
Petitioner applied to the DPCC for consent to establish under the Water
Act and consent to operate under the Air Act on 3rd June 2005. The first
of the applications has not till date been formally rejected and thus shall
be deemed to have been granted on 2nd October 2005 in terms of Section
25 (7) Water Act.
141. The Petitioner applied on 2nd December 2005 seeking EIA clearance
under the EIA Notification as amended on 7th July 2004. As per the
requirement of the said Notification, a no objection certificate and public
hearing was to be afforded by the public hearing panel of which the
representative of the DPCC was a member.
142. The Petitioner states that all necessary permissions for
commencement of construction including those from the MCD, Fire
Department, Electricity Department, Airport Authority of India and Delhi
Urban Arts Commission were taken. The MoEF granted EIA clearance to
the Petitioner on 15th January 2007. DPCC wrote to the Petitioner on 20th
and 30th August, 2007 that the earlier application filed by it for consent
on 3rd June 2005 has been forwarded to the Government of India and that
it should file a fresh application.
143. A fresh application for consent to establish was filed by the
Petitioner with the DPCC on 25th/26th September, 2007. The said
application was not disposed of or rejected within a period of four
months thereafter. Thus consent was deemed to have been granted on 25th
January 2008 in terms of Section 25 (7) Water Act. Nevertheless, the
DPCC issued the impugned order dated 4th April 2008 and directed the
Petitioner to pay fine and furnish a bank guarantee. This has been
challenged in the present writ petition.
144. The stand of the DPCC is no different from its stand in W.P.(C) No.
543 of 2008 (Splendor Landbase).
145. For the reasons already discussed, the need for the Petitioner to
apply under the Air Act and the Water Act did not get obviated on
account of the fact that it had an environmental clearance. However, here
the construction was already complete. 50% of the construction was
complete by end of 2006 and no show cause notice was issued to the
Petitioner. An order was straightway passed requiring the Petitioner to
pay penalty and furnish a bank guarantee. Such a direction is, for reasons
already stated, ultra vires the powers of the DPCC under the Water Act
and the Air Act and is unsustainable in law.
146. For the aforementioned reasons, the impugned order dated 4th April
2008 is set aside. It would nevertheless be open to the DPCC to now
proceed in accordance with Section 25(5) of the Water Act and other
relevant provisions of the Air Act but only after complying with the due
process requirements under the Rules. If after making its own enquiry/
investigations into the matter, it finds that the use of the premises is
causing either water or air pollution, and the corrective action is not taken
within the time limit set for the purpose, it can proceed further to issue
directions as envisaged under Section 31A Air Act and Section 33A
Water Act. The writ petition is disposed of with the above directions.
W.P. (C) No.4319 of 2008. (DLF Ltd.).
147. The Petitioner is the owner of a residential plot at W-Block, Greater
Kailash-II, New Delhi. It purchased the property from a private
individual in terms of Sale Deed dated 31 st March 1959. The Petitioner
proposed to construct a residential housing complex. The Petitioner filed
an application on 23rd February 2007 with the MoEF for EIA clearance,
which was granted on 26th December 2007. Without prejudice to its
rights, the Petitioner applied to DPCC for consent to establish on 8th
March 2007. The application remained pending and was not rejected for
over four months thereafter. Consequently consent to establish was
deemed to have been granted on 7th July 2007 in terms of Section 25 (7)
Water Act.
148. The Petitioner had not started the construction till the filing of this
petition. Reminders dated 12th March 2008, 27th March 2008, 10th April
2008 and 16th May 2008 were sent to DPCC but to no effect. DPCC
wrote to the Petitioner on 3rd April 2008 seeking to take action against the
Petitioner for not taking the prior consent before commencement of
construction. By letters dated 20th and 30th August 2007, the DPCC
wrote to the Petitioner asking him to apply afresh as the earlier
application had been forwarded to Central Government. During the
course of hearing in other cases of group companies, it was explained
that the project is for residential group housing and not for trade,
commercial or industrial purposes; environment clearance had been
granted and there was a deemed consent in view of the fact that their
application dated 8th March 2007 was not rejected for over four months
thereafter.
149. Feeling aggrieved by the threatened action of the Respondent, inter
alia, of closure, imposition of penalty and bank guarantee, the Petitioner
filed the present petition. It is further pointed out that during the present
petition the DPCC has granted consent to establish. There is no denial by
the DPCC of the above assertions by the Petitioner.
150. Even if the building had an EIA clearance, the provisions of the
Water Act would continue to apply for the reasons already explained by
this Court hereinbefore. However, considering that it is a residential
complex the Petitioner was not required to obtain consent under the Air
Act. The Petitioner has already been granted EIA clearance on 26 th
September 2007. The order passed by the DPCC directing the Petitioner
to apply for consent to establish does not survive since consent to
establish has been granted to the Petitioner. Any violations of either the
Water Act or Air Act detected hereafter by the DPCC will obviously be
actionable but only after the DPCC follow the due process requirements
of the law.
151. The writ petition is disposed of.
W.P. (C) No. 4321 of 2008 (Paliwal Developers Ltd.)
152. The Petitioner purchased a plot of land admeasuring about 5495
sq.m. situated at Mayur Vihar Phase-I Extension, Delhi in an open
auction from the DDA for constructing a shopping complex. According
to the Petitioner, since the built up area proposed was 12325 sq.m no
environment clearance was considered necessary. All the necessary
permissions for construction were granted by the MCD and other
authorities. On 5th September 2006, an application for consent to
establish was filed with the DPCC. The application remained pending
and was not rejected for over four months thereafter. The Petitioner‟s
case is that consent to establish should be deemed to have been granted
on 4th January 2007. Reminders were sent on 12th March 2008, 27th
March 2008, 10th April 2008 and 16th May 2008 to avoid any difficulty at
a later stage but to no effect. DPCC wrote to the Petitioner on 2nd
November 2007, 14th March 20008 and 21st April 2008 for taking action
for not taking prior consent to establish and prior environment
clearances. The Petitioner replied to these letters. The DPCC by letters
dated 20th and 30th August 2007 asked the Petitioner to apply afresh as its
earlier application dated 5th September 2006 had been sent to the Central
Government. Another application for consent to establish was filed by
the Petitioner with the DPCC on 8th February 2007. This was also not
disposed of within four months. Consequently the Petitioner contends
that for a second time consent to establish should be deemed to have been
granted on 7th June 2007. After about one year of the filing of the second
application, the DPCC asked the Petitioner to file an affidavit of
compliance, which was complied with. It was explained that no
environment clearance was necessary as the built up area was less than
20,000 sq.m. In any event consent to establish should be deemed to have
been granted. Yet, the DPCC insisted and threatened to take legal action
including levying a penalty, asking for a bank guarantee and ordering
closure. In the circumstances, the present writ petition was filed.
153. The DPCC has not denied the above contentions of the Petitioner. In
particular there is no denial of the assertion that the application for
consent to establish filed by the Petitioner on 5th September 2006 should
be deemed to have been granted on 4th January 2007. Therefore, in this
case even the proceedings under Section 25(5) of the Water Act cannot
be initiated by the DPCC. This will, in any event, not preclude the DPCC
from taking any action against the Petitioner upon any inspection taken
hereinafter, if the Petitioner or any one in occupation of the building in
question is found acting in violation of the provisions of either the Water
Act or the Air Act. Such action will of course be taken only after due
process of law as envisaged by the Rules.
154. The impugned orders passed by the DPCC on 2nd November 2007,
14th March 2008 and 21st April 2008 directing the Petitioner to apply for
consent to establish are hereby set aside. The writ petition is disposed of
with the above directions.
W.P. (C) No. 4322 of 2008 (DLF Ltd. )
155. The Petitioner states that it is the owner of a residential plot at E-
Block, Greater Kailash-II, New Delhi having purchased the same from a
private individual in terms of Sale Deed for the purpose of construction
of a residential complex. According to the inspection report dated 2nd
June 2008, the total built up area is 14,246.918 sq.m. As such, no
environment clearance was necessary under EIA Notification. All
necessary permissions to construct a residential housing complex were
granted on 22nd August 2007. Before commencement of construction, the
Petitioner filed an application dated 14th May 2007 with the DPCC,
complete in all respects, seeking consent to establish. The said
application was not rejected for over four months thereafter. The
Petitioner submits that in the circumstances, in terms of Section 25 (7)
Water Act, consent to establish shall be deemed to have been granted on
13th September 2007. However, to avoid any difficulty at a later stage,
reminders were sent to the DPCC by the Petitioner on 12th March 2008,
27th March 2008, 10th April 2008 and 16th May 2008. The DPCC
threatened to take action against the Petitioner by its letters dated 3rd
March 2008 and 2nd May 2008 for not taking prior consent and prior
environment clearance. The Petitioner explained the entire position to the
Respondent. By letters dated 20th and 30th August 2007, the DPCC asked
the Petitioner to apply afresh as its earlier applications had been
forwarded to the Central Government. During the course of hearing
before the CMC, it was explained that the project was for residential
group housing and not for trade, commercial or industrial purposes; no
environment clearance was necessary and consent to establish should be
deemed to have been granted since the Petitioner‟s application dated 14th
May 2007 for consent to establish had not been rejected even four
months thereafter. Feeling aggrieved by the threatened action of the
DPCC of directing closure, imposition of penalty and requiring the
furnishing of bank guarantee, the present petition was filed.
156. The facts of this case are no different from the facts in W.P.(C) No.
4319 of 2008 except that the construction commenced on 5 th March 2008
and the construction was proposed to be completed in 3 years from the
date of its commencement. Further, the total built up area is 14,246.918
sq.m. and, therefore, there was no requirement for obtaining EIA
clearance. The DPCC is not disputing that the Petitioner had filed an
application on 14th May 2007 which was not disposed of within four
months thereafter. In terms of Section 25(7) of the Water Act, therefore,
the consent to establish must be deemed to have been granted. This
being a residential complex, there was no need to obtain consent to
operate under the Air Act.
157. Consequently, the impugned orders dated 2nd November 2007, 3rd
March 2008 and 2nd May 2008 passed by the DPCC directing the
Petitioner to apply to the DPCC for consent to establish are hereby set
aside. This will, in any event, not preclude the DPCC from taking any
action against the Petitioner upon any inspection taken hereinafter, if the
Petitioner or any one in occupation of the building in question is found
acting in violation of the provisions of either the Water Act or the Air
Act. Such action will of course be taken only after following due process
of law as envisaged by the Rules. The writ petition is disposed of with
the above directions.
W.P.(C) No. 4323 of 2008 (DLF Retailer Developers Ltd.)
158. The Petitioner purchased two plots of land bearing No. A-1 and P-
2B Saket Place, New Delhi admeasuring about 9492 sq.m. and 8775.92
sq.m. respectively from the DDA in an open auction for the purpose of
shopping-cum-commercial complex. EIA clearance was granted on 15th
January 2007. According to the Petitioner, all necessary permissions
from the MCD and other authorities were granted in November 2006.
On 1st June 2006, the Petitioner applied to DPCC for consent to establish.
The application remained pending and was not rejected for over four
months thereafter. The Petitioner‟s case is that consent to establish is
deemed to have been granted on 30th September 2006. However, to avoid
any difficulty at a later stage, reminders were sent by the Petitioner to the
DPCC in March/April 2008 but to no avail. During the course of hearing
concerning other projects of the group companies, it was explained to the
CMC that EIA clearance had been granted and that consent to establish
should be deemed to have been granted. By its letters dated 20th and 30th
August 2007 DPCC asked the Petitioner to apply a fresh for consent to
establish as its earlier application had been forwarded to the Central
Government. A fresh application for consent to establish was filed by the
Petitioner with the DPCC on 25th September 2007. This too was not
rejected for over four months thereafter. According to the Petitioner, for a
second time consent to establish should be deemed to have been granted
on 24th January 2008. On one of the visits to the office of the Respondent,
the Petitioner was directed to file the affidavit of compliance. This was
done by the Petitioner. Nevertheless, the DPCC threatened to take action
against the Petitioner by ordering closure, imposing a penalty and/or
requiring the furnishing of a bank guarantee on the ground that the
Petitioner had commenced construction without prior consent to establish
and without prior EIA clearance. In the circumstances, the present
petition was filed.
159. The construction commenced in February 2007 and was completed
in December 2008. The Petitioner obtained EIA clearance on 15th
January 2007. The Petitioner applied to the DPCC for consent to
establish on 1st June 2006 and there was no decision thereon for over four
months thereafter. The consent to establish should be deemed to have
been granted under Section 25(7) of the Water Act on 13th September
2006. The subsequent letters dated 20th and 30th August 2007 written by
the DPCC requiring the Petitioner to apply afresh were without the
authority of law. Nevertheless, even the fresh application filed on 25 th
September 2007 for consent was not rejected within four months
thereafter. Therefore the Petitioner should deemed to have been granted
consent to establish on 24th January 2008 as well.
160. With the DPCC having failed to act upon the Petitioner‟s application
for consent to establish, there was no legal basis for its orders dated 20th
and 30th August 2007. They are accordingly set aside. This will not
preclude the DPCC in any event from taking any action against the
Petitioner upon any inspection undertaken hereinafter, if the Petitioner or
any one in occupation of the building in question is found acting in
violation of the provisions of either the Water Act or the Air Act. Such
action will of course be taken only after following due process of law as
envisaged by the Rules. The writ petition is disposed of with the above
directions.
W.P. (C) No. 4330 of 2008 (DLF Commercial Developers Ltd.)
161. The Petitioner purchased a plot of land bearing No. 10-11 at Jasola,
New Delhi, admeasuring 12,880 sq.m. in an open auction held by DDA.
The land was to be used for construction of a commercial and retail
centre. The total built up area of the proposed building was 47603.461
sq.m. The Petitioner was granted EIA clearance on 16th May 2007. The
Petitioner states that all necessary permissions to construct from the
municipal and other authorities were granted. On 6th September 2006/14th
October 2006, the Petitioner applied to the DPCC for consent to
establish. The application was not rejected for over four months
thereafter and in terms of Section 25 (7) of the Water Act it was deemed
to have been granted on 13th February 2007. Reminders were sent by the
Petitioner to the DPCC in March and April 2008 to avoid any difficulty
at a later stage but to no avail. DPCC sent notices dated 18th March 2008
and 30th April 2008 and threatened to take action against the Petitioner
for not obtaining prior consent to establish and prior environment
clearance. The Petitioner replied to the DPCC stating that environment
clearance had been granted and consent to establish should be deemed to
have been granted. During the course of hearing before the CMC, this
was reiterated. Nevertheless by its letters dated 20th and 30th August
2007, the DPCC required the Petitioner to apply afresh as the earlier
application had been forwarded to the Central Government. A fresh
application was filed on 8th February 2007.This too was not rejected for
over four months thereafter. The Petitioner contends that for a second
time, the consent to establish should be deemed to have been granted on
7th June 2007. On one of the visits to the office of the DPCC, the
Petitioner was directed to file the affidavit of compliance. This was done.
Nevertheless, the DPCC threatened to take action against the Petitioner
for closure, imposition of penalty and furnishing of bank guarantee on the
ground that it had commenced construction without obtaining prior
consent to establish and without prior environment clearance. In the
circumstances, the present writ petition was filed.
162. The total built up area here is 47603.46 sq.m. The EIA clearance
was obtained on 16th May 2007. The Petitioner commenced construction
sometime in December 2006/January 2007 and completed it in August
2008. The letters received by the Petitioner on 20 th August 2007 and 30th
August 2007 asking it to apply for consent to establish were, in fact, to no
effect since application had been filed earlier on 6 th September 2006 and
14th December 2006 which were not rejected within four months
thereafter. Again on 8th February 2007 a fresh application was filed.
Therefore these two show cause notices were to no effect. The
subsequent letters dated 18th March 2008 and 30th April 2008 asking the
Petitioner again to apply were also to no effect. The said two letters are
hereby set aside. It is made clear that this will, in any event, not preclude
the DPCC from taking action against the Petitioner if upon any
inspection undertaken hereinafter, the Petitioner or any one in occupation
of the building in question is found to be acting in violation of the
provisions of either the Water Act or the Air Act. Such action will be
taken only after following the due process of law as envisaged by the
Rules. The writ petition is disposed of with the above directions.
W.P. (C) No. 4333 of 2008 (Galleria Property Management Services
Pvt. Ltd.)
163. The Petitioner purchased a plot of land at Shalimar Bagh, New
Delhi admeasuring 14145.040 sq.m. in an open auction held by the DDA.
The plot of land was to be used for construction of a shopping centre.
The Petitioner was granted EIA clearance on 15th January 2007. All
necessary permissions to construct from the municipal and other
authorities were granted. On 5th April 2005, the Petitioner applied to the
DPCC for consent to establish. The application was not disposed for over
four months thereafter. According to the Petitioner, consent to establish
should be deemed to have been granted in terms of Section 25 (7) Water
Act on 4th August 2005. The DPCC sent notices dated 14th March 2008
and 9th May 2008 and threatened to take action against the Petitioner for
not obtaining prior consent to establish and prior environment clearance.
The Petitioner replied to the DPCC stating that EIA clearance had been
granted and consent to establish should be deemed to have been granted.
During the course of hearing before the CMC this was reiterated. By its
letters dated 20th and 30th August 2007, the DPCC asked the Petitioner to
apply afresh for consent to establish as its earlier application had been
forwarded to the Central Government. A fresh application was filed on
25th September 2007. This too was not rejected for over four months.
According to the Petitioner for a second time consent to establish should
be deemed to have been granted on 24th January 2008. On one of the
visits to the office of the Respondent, the Petitioner was directed to file
an affidavit of compliance, which it did. Nevertheless the DPCC
threatened to take action against the Petitioner for closure, imposition of
penalty and furnishing of bank guarantee on the ground that it had not
obtained consent to establish prior to commencement of construction. In
the circumstances, the present writ petition was filed.
164. This shopping complex has a total built up area of 34895.55 sq.m.
The Petitioner obtained EIA clearance on 15th January 2007. The letters
received by the Petitioner from the DPCC on 14th March 2008 and 9th
May 2008 asking him to apply for prior consent is to no effect since the
Petitioner had applied as early as 5 th April 2005 to DPCC which was not
rejected within four months thereafter. A fresh application was filed on
25th September 2007 and that too was not rejected for over four months
thereafter. Thus, for the second time, consent should be deemed to have
been granted under the Water Act on 24th January 2008.
165. The orders dated 14th March 2008 and 9th May 2008 of the DPCC
are accordingly set aside. It is made clear that this will not preclude the
DPCC from taking action against the Petitioner upon any inspection
undertaken hereinafter and if the Petitioner or any one in occupation of
the building in question is found to be acting in violation of the
provisions of either the Water Act or the Air Act. Such action will be
taken only after following the due process of law as envisaged by the
Rules. The writ petition is disposed of with the above directions.
W.P. (C) No.3905 of 2008 (Regency Park Property Management
Services Pvt. Ltd.).
166. The Petitioner states that in an auction held on 15th December 2003,
the Petitioner purchased a commercial Plot No. 4 in the layout plan of
Shopping Mall, Vasant Kunj, New Delhi admeasuring about 15300 sq.
m. The necessary permissions from municipal authorities, Electricity,
Airport Authority of India, Fire Services and Delhi Urban Art
Commission were obtained. On 27th April 2005, an application for
consent to establish was filed by the Petitioner with the DPCC. The
DPCC was a party to the proceedings before the Supreme Court of India
in W.P. (C) No. 202 of 1995 titled as T.N. Godavarman Thirumulpad v.
Union of India. The Supreme Court, by an order dated 20th March 2006,
took note of the ongoing construction and directed that as a special case,
all permissions and clearances in the present case would be dealt with by
the Central Government. The DPCC was directed to forward all the
papers to the Central Government. The DPCC did so. A public hearing
was organized to which a Member, DPCC was a party. One of the
requirements of the public hearing was the grant of a No Objection
Certificate by the DPCC, which apparently was granted or was deemed to
have been granted by the DPCC before conducting the public hearing.
The EIA Notification 1994 as amended on 7th July 2004 was replaced by
a Notification dated 14th September 2006. Certain clarificatory Circulars
dated 13th October 2006 and 21st November 2006 were issued by the
Central Government permitting the existing projects to continue. EIA
clearance was granted by the MoEF on 24th November 2006. The
application for consent to establish filed by the Petitioner with DPCC on
27th April 2005 remained pending. A reminder was sent by the Petitioner
on 16th July 2007 to know the fate of their application. By letters dated
20th and 30th August 2007, the DPCC directed the Petitioner to file a fresh
application for consent as the earlier application had been forwarded to
the Central Government. A fresh application for consent to establish was
filed by the Petitioner on 21st /25th September 2007 but this too was not
rejected within four months. For a second time, the consent to establish
was deemed to have been granted on 24th January 2008. It was for the
first time on 18th March 2008 that the DPCC asked for certain
documents. These were supplied. The CMC insisted on levying a penalty
on the Petitioner apart from requiring the furnishing of a bank guarantee.
167. The total built up area is 59731.67 sq.m. The construction
commenced in September 2005 and was completed on 17th August 2008.
EIA clearance was granted on 24th November 2006. On 27th April 2005,
application for consent was filed. Fresh applications were filed on
21st/25th September 2007 and no rejection order was passed for at least
four months thereafter. The Petitioner is right in its contention that
consent under the Water Act must have been deemed to be granted on
24th January 2008. On 18th March 2008, DPCC asked for documents and
these were supplied.
168. The order dated 18th March 2008 of the DPCC imposing
environmental damages and requiring the Petitioner to furnish a bank
guarantee are, for the reasons already explained, unsustainable in law.
The said order is hereby set aside. It is made clear that this will not
preclude the DPCC from taking any action against the Petitioner upon
any inspection taken hereinafter, if the Petitioner or any one in
occupation of the building in question is found acting in violation of the
provisions of either the Water Act or the Air Act. Such action will be
taken only after following the due process of law as envisaged by the
Rules. The writ petition is disposed of with the above directions.
W.P. (C) No.8789 of 2008 (Laxmi Buildtech Pvt. Ltd.)
169. The Petitioner states that EIA clearance had been granted to the
Petitioner by the MoEF under the EPA on an application filed by it on
28th March 2007 i.e. much before it commenced construction. The very
basis on which penalties are sought to be imposed on the Petitioner under
the Air and Water Acts do not per se amount to acts of pollution much
less industrial pollution or air pollution or water pollution as
contemplated by the said acts. This fact is not denied by Respondent No.
1 in its pleadings.
170. The case of the Petitioner is that the CMC or the DPCC has no
power to impose environmental damages and/or seek bank guarantee
under either the Water Act or the Air Act. It is submitted by the
Petitioner that the „precautionary principle‟ and/or the polluter pays
principle are being misconstrued and misused by Respondent No. 1. Fee
and fines/penalties are two totally different concepts in law. While a fee
or a levy can be collected under an appropriate statute by way of a
statutory interdict and used for the purpose for which it has been
imposed, a fine or penalty cannot be collected and used for discharging
governmental obligations or meeting expenses of the government. It is
submitted that the actions of the Respondent in imposing and collecting
penalties are ultra vires their powers under the Air Act and Water Act
and beyond the powers vested in the said Respondent under the said
Acts.
171. This is a commercial plot over a total built up area of 27,667.288
sq.m. EIA clearance has been granted on 31st January 2008. The date of
commencement of construction was sometime in March 2007 and it was
proposed to be completed in June 2009. It appears, that by a letter dated
7th December 2007, the Petitioner was asked to apply for consent to
establish which it disputed. The impugned order dated 15th October 2008
was passed imposing environmental damages and requiring the
furnishing of bank guarantee and also directing the Petitioner to obtain
consent to establish.
172. For the reasons already discussed, the order imposing environmental
damages to the extent of `40 lakhs and requiring the Petitioner to furnish
a bank guarantee are unsustainable in law and hereby set aside. The
direction that the Petitioner should now apply afresh for consent to
establish is also not capable of being complied with. The said order is
hereby set aside. It is made clear that this will, in any event, not preclude
the DPCC from taking any action against the Petitioner upon an
inspection being undertaken hereafter if the Petitioner or any one in
occupation of the building in question is found to be acting in violation of
the provisions of either the Water Act or the Air Act. Such action will be
taken only after following the due process of law as envisaged by the
Rules. The writ petition is disposed of with the above directions.
W.P. (C) No.8901 of 2008 (Brightways Housing and Development
Ltd.)
173. A commercial plot No. 7, Non-Hierarchical Commercial Centre,
Jasola, New Delhi, measuring 5198 sq.m. was purchased by the
Petitioner in an open auction of the DDA on 7th July 2004 for a total
consideration of ` 33,07,50,000/-. A perpetual Lease Deed was executed
in favour of the Petitioner on 29th September 2005 and the actual,
physical possession of the said plot was also handed over on the same
date. Building plans for raising construction on the said plot were
sanctioned by the DDA on 7th February 2006. The Petitioner states that
although no EIA clearance was required for raising construction on the
said plot, either prior or subsequent to the raising of construction, but to
avoid precipitate action, the Petitioner filed an application dated 1st
September 2007 with Respondent No.3 for EIA clearance and also
submitted the requisite documents.
174. The Petitioner filed an application dated 25 th October 2007 with the
DPCC for consent to establish. A notice dated 18th March 2008 was
received by the Petitioner from the DPCC alleging that the Petitioner had
commenced construction without obtaining prior consent to establish. A
reply dated 27th March 2008 was sent by the Petitioner informing that its
application seeking consent to establish was already pending with the
DPCC. The DPCC sent a notice dated 30th April 2008 requiring the
Petitioner to submit an EIA clearance, approved architectural drawing
and completion certificate. Thereafter the DPCC sent a letter dated 1st
July 2008 informing the Petitioner that its case was being placed before
the CMC. The Petitioner submits that after exchange of correspondence
and certain meetings held, the CMC in its meeting held on 28 th August
2008, without appreciating the case of the Petitioner and without any
authority imposed a penalty of ` 1 crore and further called upon the
Petitioner to furnish a bank guarantee of ` 2 crores.
175. The MoEF intimated the Petitioner of the creation of a States
Committee for obtaining environmental clearance. As a result the
Petitioner applied afresh to the State Committee of the MoEF for an EIA
Clearance by way of application dated 2nd September 2008. No decision
was however taken on the said application. On a representation made by
the Petitioner to the DPCC on 16th September 2008, the CMC of the
DPCC in a meeting held on 24th November 2008 reduced the penalty to
` 72 lakhs and required the Petitioner to furnish a bank guarantee in the
sum of ` 1.5 crores considering an amount of ` 28 lakhs had been earlier
paid by the Petitioner to the DDA.
176. This Court finds that the impugned order imposing the penalty has
not been issued by DPCC but by the CMC, which is a Committee
constituted by the Chairman, DPCC by an office order dated 28th
December 2006. First, no power vests with the Chairman, DPCC under
the Water Act or the Air Act to further delegate his powers to the CMC.
Therefore CMC had no authority to conduct any proceedings for
imposing penalty on the Petitioner. In any event, even the constitution of
the CMC was solely for the purpose of granting/refusing/revoking of
consent to establish. It had no power delegated to it to impose any
penalty or seek bank guarantee or order closure of the premises or
recommend prosecution. For the aforesaid reasons, the impugned order
dated 24th November 2008 of the CMC imposing environmental damages
to the tune of ` 72 lakhs and requiring the Petitioner to furnish a bank
guarantee in the sum of ` 1.5 crore is unsustainable in law and is hereby
set aside.
177. The construction commenced in June 2005 and was completed in
June 2007. It is only thereafter that an impugned notice dated 18 th March
2008 was issued by the DPCC asking the Petitioner to apply afresh for
consent to establish. For the reasons already mentioned, such a direction
was not capable of being complied with. It would nevertheless be open
to the DPCC to now proceed in accordance with Section 25(5) of the
Water Act and relevant provisions of the Air Act but only after following
the due process of law. If, after making its enquiry/investigations into the
matter, the DPCC finds that the use of the premises is causing either
water or air pollution, then it can proceed thereafter in accordance with
law. It may be observed that EIA clearance was required for the project
of the Petitioner since the total built up area is 21096.513 sq.m. It is not
clear whether the MoEF has taken a decision on the Petitioner‟s
application dated 2nd September 2005.
178. The writ petition is disposed of with the above directions.
W.P. (C) No.1391 of 2010 (R.C. Sood and Co. Pvt.Ltd.)
179. The Petitioner is stated to be the owner of Plot No. 10, Shivaji
Palace District Center, Shivaji Palace, Raja Garden, New Delhi. The size
of the plot is 5,832 sq.m. The plot was purchased from the MCD through
a tender process on 30th July 2004. The Petitioner was granted the
requisite permission to construct a shopping-cum-residential complex by
the DDA. The Petitioner, on 7th September 2006, applied to the MoEF for
EIA clearance. The Petitioner resumed the construction of the shopping
complex in accordance with the notifications and circulars.
180. The Petitioner states that it proceeded on the basis that it was not
required to obtain consent to establish or consent to operate under the
Water Act and Air Act respectively. However, since the Petitioner did
not want any impediment in its project, it made an application dated 11th
September 2006 to the DPCC seeking consent to establish along with
requisite documents. The Petitioner alleges that the DPCC erroneously
forwarded the said application of the Petitioner to the MoEF for issuance
of a „No Objection Certificate‟ under the 2006 Notification. The
Petitioner claims to have been surprised to receive a notice dated 15th
January 2007 from the DPCC to show cause why prosecution
proceedings should not be initiated against it and why the establishment
should not be closed down as the Petitioner had started construction
without obtaining prior consent to establish under the Water Act and
prior consent to operate under the Air Act. The Petitioner replied to the
show cause notice on 28th February 2007 stating that it was the DPCC
itself which had forwarded the application of the Petitioner to the MoEF.
Nevertheless, as a measure of caution, the Petitioner re-submitted the
application along with all requisite documents to the Respondent on 27th
February 2007.
181. The Petitioner states that after an inordinate delay, DPCC replied to
the Petitioner on 5th December 2007 by directing the Petitioner to first
pursue its application for obtaining EIA clearance from the MoEF and
thereafter forward a copy of the said EIA clearance to the DPCC for
consideration of its application. The Petitioner was granted the EIA
clearance by the MoEF on 26th March 2008 which the Petitioner
forwarded to the DPCC on 27th March 2008. Thereafter the DPCC by
letter dated 28th April 2008 directed the Petitioner to submit an affidavit
giving item-wise compliance of all the conditions laid down in the EIA
clearance. It is submitted that although the DPCC had no role in the
matter of EIA clearance, the Petitioner, with a view to avoiding
controversy, submitted the said affidavit under cover of its letter dated
10th June 2008.
182. The Petitioner was called for a hearing before the CMC of the
DPCC on 17th September 2008. During the course of the hearing, it
appeared that the Petitioner had been called for the purposes of deciding
on the imposition of penalty and requiring the furnishing of a bank
guarantee for the purported violation of the Water Act and Air Act on
part of the Petitioner. Ultimately, the CMC imposed a penalty of ` 59
lakhs and directed the Petitioner to furnish a bank guarantee for ` 1.18
Crores for a period of three years.
183. On 28th November 2008, the Petitioner received a letter from the
DPCC alleging that the Petitioner had commenced construction activities
without obtaining prior consent under the aforesaid Acts and therefore
had violated the provisions of the aforesaid Acts. It was further alleged
that certain deficiencies were noted in the project/building of the
Petitioner. On 3rd December 2008, in another meeting called by the
DPCC, the Petitioner tried to explain to the DPCC that it had not
committed any violation of any of the laws, rules, regulations. On this,
the DPCC made a marginal reduction of the penalty from ` 59 lakhs to
` 50 lakhs and of the bank guarantee from ` 1.18 crores to ` 1 crore. In
response to the letter dated 28th November 2008 of the Respondent, the
Petitioner filed an affidavit on 30th January 2009 claiming that the
deficiencies pointed out by the DPCC in its letter dated 28th November
2008 had been duly rectified.
184. The Petitioner states that after the completion of construction it let
out the building to M/s. Shoppers Stop Ltd. and executed a sub-lease
dated 11th May 2007 for running a shopping mall in the said building.
Shopper‟s Stop took possession of the building in June 2007. The DPCC
in its meeting held on 23rd December 2008 directed Shoppers Stop Ltd. to
apply for consent to operate.
185. The Petitioner states that it received another letter from the DPCC
on 3rd March 2009 referring to the inspection conducted by "Special
Inspection Team" of the DPCC on 16th January 2009 wherein certain
deficiencies were noted by SIT in the premises of the Petitioner. On 23 rd
May 2009, the Petitioner clarified to the Respondent that it had already
rectified the deficiencies pointed out by the SIT. The Petitioner states that
it was given a hearing on 21st January 2010. According to the Petitioner,
the DPCC at this meeting took a decision to launch prosecution against
the Petitioner. The Petitioner received a letter dated 11 th February 2010
from the DPCC stating that its earlier application of 11 th September 2006
had become infructuous. With the Petitioner‟s representation dated 26 th
February 2010 to the DPCC eliciting no response, the present writ
petition was filed challenging the minutes of the CMC‟s meetings dated
17th September 2008, 3rd December 2008 and 21st January 2010.
186. The decision dated 17th September 2008 of the CMC of the DPCC
imposing environmental damages to the tune of ` 59 lakhs and requiring
the Petitioner to furnish bank guarantee in the sum of ` 1.18 crores is for
reasons already discussed unsustainable in law and is hereby set aside.
The subsequent decisions dated 3rd December 2008 and 21st January 2010
are also without the authority of law and are hereby set aside. It is made
clear that this will, in any event, not preclude the DPCC from taking any
action against the Petitioner upon an inspection being undertaken
hereafter if the Petitioner or any one in occupation of the building in
question is found to be acting in violation of the provisions of either the
Water Act or the Air Act. Such action will be taken only after following
the due process of law as envisaged by the Rules. The writ petition is
disposed of with the above directions.
W.P. (C) No. 9128 of 2009 (Ridge View Construction Pvt. Ltd.)
187. A commercial plot measuring 2500 sq.m. being Plot No. D-2,
District Centre, Saket, New Delhi was purchased by the Petitioner in an
open auction conducted by DDA on 29th September 2003 for a total
consideration of ` 43,41,00,000/- and the possession of the said plot was
handed over to the Petitioner soon thereafter. A perpetual lease deed
dated 1st July 2004 was subsequently executed by the DDA in favour of
the Petitioner. The DDA handed over to the Petitioner the architectural
conditions and controls which enabled the Petitioner to raise construction
as per the control drawings. Construction was thus raised by the
Petitioner on the plot till the plinth level much before 7th July 2004.
188. The Petitioner filed an application with the MoEF seeking EIA
clearance on 2nd September 2008. The Petitioner also filed an application
dated 2nd September 2008 with DPCC for consent to establish. The
Petitioner states that it was surprised to receive a notice dated 9th August
2008 issued by the DPCC to M/s. Taneja Developers and Infrastructure
Limited (`TDIL‟) wherein it was alleged that the construction of a retail-
cum-office complex was being carried out by TDIL. The Petitioner states
that on various occasions it clarified to the DPCC that the said
commercial complex was being developed by the Petitioner. However
the show cause notices continued to be issued to TDIL. Subsequently, the
CMC by an order dated 15th October 2008 issued directions for closure of
the Petitioner‟s retail-cum-office complex immediately and further asked
the electricity distribution companies to disconnect the electricity supply
and the DJB to disconnect the water supply.
189. Aggrieved by the impugned order dated 15th October 2008, the
Petitioner filed W.P.(C) No. 7850 of 2008. This Court stayed the
operation of the impugned order. Another show cause notice dated 10th
November 2008 was issued by the DPCC. This Court at the next hearing
held that on account of issuance of the fresh show cause notice nothing
survived in the said writ petition.
190. The Petitioner replied to the fresh show cause notice on 21st
November 2008. Thereafter, the DPCC issued a letter dated 8th May 2009
directing the Petitioner to close its commercial building immediately and
further directing the NDPL/BSES to disconnect the electricity supply and
the DJB to disconnect the water connection to the said building. The said
directions were purportedly as a result of a decision taken by the CMC on
23rd April 2009 and an inspection carried out at the site on 8 th April 2009.
191. The Petitioner submitted that no EIA clearance was required since
the built up area of the premises (19,227.15 sq.m.) was less than 20,000
sq.m. The Petitioner had installed a Sewage Treatment Plant (STP) of 56
KLD capacity which was fully operational prior to 8th April 2009 and for
which an adequacy report/certificate had also been granted by a
recognised institute nominated by the DPCC itself. Regarding no
permission having been obtained from the DJB for extraction of ground
water from bore well, it is submitted that the Petitioner has already
obtained permission from the concerned authorities. The Petitioner states
that it is not utilizing the water from the bore well and it has deployed
tankers for fulfilling its requirements of water in the complex. The
Petitioner alleges that when its representative went to the DPCC to
submit an application for consent to operate, the application was refused.
192. In the above circumstances, the present writ petition was filed
challenging the closure order dated 23rd April 2009 communicated to the
Petitioner on 8th May 2009.
193. For the detailed reasons already discussed, the question of the
DPCC taking action for the Petitioner not having obtained EIA clearance
does not arise. In any event, the Petitioner with the built up area being
less than 20,000 sq.m., there was perhaps no requirement to obtain such
EIA clearance. If this was one of the reasons for the closure order then
such closure order is unsustainable in law. As regards the other
deficiencies pointed out, and the Petitioner‟s claim to have cured them,
they involve disputed questions which this Court cannot possible go into.
Nevertheless, it appears to this Court that the procedural requirement to
be followed by the DPCC prior to passing such closure order was not
complied with by the DPCC in the instant case.
194. For the aforementioned reasons, this Court sets aside the closure
order dated 23rd April 2009 communicated to the Petitioner on 8 th May
2009. However, this will not preclude the DPCC from taking any action
against the Petitioner upon any inspection taken hereinafter, if the
Petitioner or any one in occupation of the building in question is found
acting in violation of the provisions of either the Water Act or the Air
Act. Such action will of course be taken only after due process of law as
envisaged by the Rules. The writ petition is disposed of with the above
directions.
W.P. (C) No. 465 of 2009 (Prosperous Estates Pvt. Ltd.)
195. The total built up area of the building constructed on a commercial
plot in the present petition is 14,850.227 sq.m. Completion certificate
was granted on 12th October 2006. No show cause notice was issued. On
5th December 2008, the DPCC issued a letter to the Petitioner giving it an
opportunity of being heard on 23rd December 2008.On 23rd December
2008, an order was passed directing the Petitioner to pay damages,
furnish bank guarantee and to apply for consent to establish.
196. For the reasons already explained hereinbefore, the impugned order
dated 23rd December 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either of the Acts. The writ petition is disposed of with the
above directions.
W.P. (C) No. 508 of 2009 (Best Realtors India Pvt. Ltd.)
197. The total built up area of the building constructed on a commercial
plot in the present petition is 9171.63 sq.m. The construction of the
building commenced sometime in January 2007 and was completed in
January 2009. No show cause notice was issued. On 27th October 2008,
the DPCC issued a letter to the Petitioner giving it an opportunity of
being heard on 6th November 2008. On 6th November 2008, an order was
passed directing the Petitioner to pay damages, furnish a bank guarantee
and to apply for consent to establish. This order was communicated to the
Petitioner on 9th January 2009 and the Petitioner was asked to take
necessary action to comply with the said order.
198. For the reasons already explained hereinbefore, the impugned order
dated 6th November 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either Acts. The writ petition is disposed of with the above
directions.
W.P. (C) No. 509 of 2009 (Nirvan Hire Purchase Ltd.)
199. The total built up area of the building constructed on a commercial
plot in the present petition is 8060.80 sq. m. Construction of the building
commenced sometime in January 2007 and was completed in January
2009. No show cause notice was issued. On 27th October 2008, the
DPCC issued a letter to the Petitioner giving it an opportunity of being
heard on 6th November 2008. On 6th November 2008, an order was
passed directing the Petitioner to pay damages, furnish bank guarantee
and to apply for consent to establish. This order was communicated to the
Petitioner on 9th January 2009 and the Petitioner was asked to take
necessary action to comply with the said order.
200. For the reasons already explained hereinbefore, the impugned order
dated 6th November 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either Acts. The writ petition is disposed of with the above
directions.
W.P. (C) No. 510 of 2009 (Maitri Mutual Benefits Ltd.)
201. The total built up area of the building constructed on a commercial
plot in the present petition is 8060.80 sq. m. Construction of the building
commenced sometime in January 2007 and was completed in November
2008. No show cause notice was issued. On 27th October 2008, the
DPCC issued a letter to the Petitioner giving it an opportunity of being
heard on 6th November 2008. On 6th November 2008, an order was
passed directing the Petitioner to pay damages, furnish bank guarantee
and to apply for consent to establish. This order was communicated to the
Petitioner on 9th January 2009 and the Petitioner was asked to take
necessary action to comply with the said order.
202. For the reasons already explained hereinbefore, the impugned order
dated 6th November 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either Acts. The writ petition is disposed of with the above
directions.
W.P. (C) No. 511 of 2009 (A.S. Buildwell Pvt. Ltd.)
203. The total built up area of the building constructed on a commercial
plot in the present petition is 989.548 sq. m. Construction of the building
commenced sometime in January 2006 and was completed in October
2007. No show cause notice was issued. On 27th October 2008, the
DPCC issued a letter to the Petitioner giving it an opportunity of being
heard on 6th November 2008. On 6th November 2008, an order was
passed directing the Petitioner to pay damages, furnish a bank guarantee
and to apply for consent to establish. This order was communicated to the
Petitioner on 9th January 2009 and the Petitioner was asked to take
necessary action to comply with the said order.
204. For the reasons already explained hereinbefore, the impugned order
dated 6th November 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either Acts. The writ petition is disposed of with the above
directions.
W.P. (C) No. 525 of 2009 (ESS CEE CEE and Associates (India) Pvt.
Ltd.)
205. The total built up area of the building constructed on a commercial
plot in the present petition is 15883.097 sq. m. Construction of the
building commenced on 10th January 2005 and was completed on 23rd
February 2007. A show cause notice was issued on 5 th December 2007
and an order was passed on 12th August 2008 requiring the Petitioner to
pay environmental damages of ` 20 lakhs and furnish a bank guarantee
of ` 1 crore.
206. For the reasons already explained hereinbefore, the impugned order
dated 12th August 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either Acts. The writ petition is disposed of with the above
directions.
W.P. (C) No. 794 of 2009 (Nipun Builders and Developers Pvt. Ltd.).
207. The total built up area of the building constructed on a commercial
plot in the present petition is 2802 sq. m. Construction of the building
commenced on 10th September 2004 and was completed on 24th March
2005. A show cause notice was issued on 28th April 2008 and an order
was passed on 6th November 2008 requiring the Petitioner to pay
environmental damages of ` 2 lakhs and furnish a bank guarantee of ` 4
lakhs.
208. For the reasons already explained hereinbefore, the impugned order
dated 6th November 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either of the Acts. The writ petition is disposed of with the
above directions.
W.P. (C) No. 7575 of 2009 (Jindal Biochem Pvt. Ltd.)
209. The total built up area of the building constructed on a commercial
plot in the present petition is 3290 sq. m. Construction of the building
commenced on 2nd February 2005 and was completed on 31st May 2006.
A show cause notice was issued on 27th June 2008 and an order was
passed on 6th November 2008 requiring the Petitioner to pay
environmental damages of ` 2 lakhs and furnish a bank guarantee of ` 4
lakhs.
210. For the reasons already explained hereinbefore, the impugned order
dated 6th November 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either of the Acts. The writ petition is disposed of with the
above directions.
W.P. (C) No. 8208 of 2009 (Best City Developers (India) Pvt. Ltd.)
211. The total built up area of the building constructed on a commercial
plot in the present petition is 1066 sq. m. No show cause notice was
issued. On 7th January 2009, the DPCC issued a letter to the Petitioner
giving it an opportunity of being heard on 6th November 2008. On 21st
January 2009 an order was passed requiring the Petitioner to pay
environmental damages of `1 lakh and furnish a bank guarantee of ` 1
lakh. This order was communicated to the Petitioner on 27 th March 2009
and the Petitioner was asked to take necessary action to comply with the
said order.
212. For the reasons already explained hereinbefore, the impugned order
dated 21st January 2008 cannot be sustained in law and is hereby set
aside. It would nevertheless be open to the DPCC to now proceed in
accordance with Section 25(5) of the Water Act and other relevant
provisions of the Air Act. The DPCC will follow the due process of law.
If after making an enquiry/investigation into the matter it finds that the
use of the premises is causing either water or air pollution, it can proceed
to take action in the manner explained hereinbefore. It will however not
be open to the DPCC to levy any environmental damages or requiring the
Petitioner to furnish any bank guarantee for non-compliance with the
provisions of either of the Acts. The writ petition is disposed of with the
above directions.
W.P. (C) No.8751 of 2009 (Vardhman Properties Ltd.)
213. The total built up area of the building constructed on a commercial
plot in the present petition is 5461 sq. m. Construction of the building
commenced on 10th September 2007 and was completed in April 2009.
An order was received by the Petitioner on 3 rd January 2009 directing the
Petitioner to obtain consent to establish. Another show cause notice was
issued on 9th March 2009 to apply for consent to establish. On 30th April
2009, an order was passed directing closure of the Petitioner‟s building.
214. For the reasons already explained hereinbefore, the impugned orders
dated 3rd January 2009 and 30th April 2009 cannot be sustained in law
and are hereby set aside. It would nevertheless be open to the DPCC to
now proceed in accordance with Section 25(5) of the Water Act and other
relevant provisions of the Air Act. The DPCC will follow the due process
of law. If after making an enquiry/investigation into the matter it finds
that the use of the premises is causing either water or air pollution, it can
proceed to take action in the manner explained hereinbefore. It will
however not be open to the DPCC to levy any environmental damages or
requiring the Petitioner to furnish any bank guarantee for non-compliance
with the provisions of either of the Acts. The writ petition is disposed of
with the above directions.
W.P. (C) No. 10860 of 2009 (Manish Buildwell Pvt. Ltd.).
215. The total built up area of the building constructed on a commercial
plot in the present petition is 8478.27 sq. m. A show cause notice was
received by the Petitioner on 13th February 2008 alleging that he had
completed construction without obtaining the consent to establish. An
order dated 18th March 2008 was passed directing the Petitioner to obtain
consent to establish. On 24th July 2009 an order was passed directing the
closure of the Petitioner‟s building.
216. For the reasons already explained hereinbefore, the impugned orders
dated 13th February 2008, 18th March 2008 and 24th July 2009 cannot be
sustained in law and are hereby set aside. It would nevertheless be open
to the DPCC to now proceed in accordance with Section 25(5) of the
Water Act and other relevant provisions of the Air Act. The DPCC will
follow the due process of law. If after making an enquiry/investigation
into the matter it finds that the use of the premises is causing either water
or air pollution, it can proceed to take action in the manner explained
hereinbefore. It will however not be open to the DPCC to levy any
environmental damages or requiring the Petitioner to furnish any bank
guarantee for non-compliance with the provisions of either of the Acts.
The writ petition is disposed of with the above directions.
S. MURALIDHAR, J.
SEPTEMBER 30, 2010
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