2022/DHC/005414
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th December, 2022
+ W.P.(C) 15585/2022 & CM APPLs. 48485/2022, 48486/2022
SUNITA AGGARWAL ..... Petitioner
Through: Mr. Anirudh Bakhru, Mr. Ayush Puri,
Ms. Tejashwini Chandrasekhar, Mr.
Umang Tyagi and Mr. Prateek Kumar
Jha, Advocates. (M:9811439334)
versus
DELHI POLLUTION CONTROL COMMITTEE
AND ANR ..... Respondents
Through: Mr. Kush Sharma and Mr.
Shubhankar, Advocates for
R-1/DPCC. (M:9871177024)
Mr. Udit Malik, ASC, GNCTD/R-2.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
1. This hearing has been done through hybrid mode.
2. The present petition has been filed by the Petitioner/Landlady - Smt. Sunita Aggarwal (hereinafter, "Landlady"), who claims to be the owner of the premises bearing No.E-6, Sector-2, Bawana Industrial Area, Delhi - 110039 (hereinafter, "subject premises"), challenging the letter/order dated 29th August, 2019 issued by the Respondent No.1 - Delhi Pollution Control Committee (hereinafter, "DPCC"), and the order dated 15th October, 2019 issued by the Respondent No.2 - SDM, Narela. Vide the impugned order dated 29th August, 2019, the DPCC directed the Tenant of the subject premises - M/s. Shri Ram Dyeing, for closure of its industrial unit. Further, vide impugned order dated 15th October, 2019, the Respondent No.2 has
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directed the sealing of the industrial unit of M/s. Shri Ram Dyeing and its functioning.
3. The background of the present case is that the Petitioner/Landlady had entered into a rent agreement dated 7th December, 2017, along with her husband, vide which she rented out the subject premises to one M/s. Shri Ram Dyeing. As per the said rent agreement, the Tenant was to ensure that it does not undertake any activity in the subject premises which is in contravention to any law, byelaws, regulations and rules. The Tenant was also required to obtain necessary permissions for running of the business concern. Further, the Tenant was also to be responsible for proper working, in terms of the rules and regulations of various authorities, including the DPCC. The relevant clauses of the rent agreement dated 7th December, 2017 are extracted below:
"9. That the Tenant shall be liable and responsible for any accident, incident, causality, fire, injury, electric misuse or any other incidents during the tenancy period and the Landlord shall not be liable for the same in any manner.
12. That the Tenant shall not contravene any laws, bye-laws, Rules and Regulations made thereunder of the local bodies, viz MCD, DSIIDC, DVB/NDPL, and other local authorities including the Co-Society, in case of any violation, deviation or misuse of the tenanted premises, he/she shall be fully responsible for the same and the Landlord shall have no concern whatsoever of any sort with the same.
20. That tenant shall be responsible for proper working as per rule and regulation of MCD, ESI, Labour Law, Service Tax Department, Pollution Department (DPCC), and/or any other
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department/authority concerned which is related or applicable to the business of the tenant."
4. During the course of the said tenancy, the impugned order dated 29th August, 2019 was passed by the Respondent No.1 - DPCC, wherein various irregularities were observed as mentioned below:
i. Tenant had not switched over the boiler into PNG fuel. ii. Tenant was operating without valid Consent to Establish/Operate from DPCC and in violation of the provision of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974. iii. Tenant had not complied with Hazardous Waste Management Rules, 2016.
5. Accordingly, on the basis of the above findings, the Competent Authority of the DPCC directed the Tenant to close the unit with immediate effect, and an environmental compensation of Rs.36,40,000/- was imposed upon the Tenant, to be deposited in favour of the DPCC. The relevant portion of the impugned order dated 29th August, 2019, is set out below:
"Now, therefore, the Competent Authority in Delhi Pollution Control Committee, hereby issues the following directions:
(1) That you (the addressee unit) shall close your unit with immediate effect.
(2)That you (the addressee unit) shall deposit Environmental Compensation of Rs. 36,40,000/- (Rs. Thirty Six Lakhs and Forty Thousand only) by way of Demand Draft in Favour of Delhi Pollution Control Committee within 10 days of issuance of these directions.
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(3) That the concerned Sub Divisional Magistrate shall ensure the effective closure of the addressee unit with immediate effect.
(4)That the concerned authority in TPDDL shall disconnect the electricity/power supply connection of the addressee unit or used by the unit of the addressee unit with immediate effect.
(5) That the concerned authority in MCD shall cancel the permission/license (if any) for the operation of the said unit with immediate effect.
(6) That the concerned authority in DSIIDC shall disconnect the water supply connection of the said unit with immediate effect.
You shall be liable for penal action under the provisions of the Air (Prevention and Control of Pollution) Act, 1981, the Water (Prevention & Control of Pollution) Act, 1974 and Environment (Protection) Act, 1986 as amended to date in case of violation of above said directions and action as per law will be initiated without any further reference in this regard. This is being issued as per the approval of the Competent Authority of Delhi Pollution Control Committee."
6. The Tenant failed to pay the environmental compensation imposed, vide the impugned order dated 29th August, 2019. In view thereof, pursuant to the directions issued by the Respondent No.1 - DPCC, the Respondent No.2 - SDM, Narela, sealed the subject premises vide impugned order dated 15th October, 2019.
7. The case of the Petitioner/Landlady is that she had made a representation to the DPCC on 8th August, 2022, stating that she ought not to be penalized for the fault of the Tenant, leading to the sealing of the subject premises. The Petitioner had also assured the Respondents that she would extend full cooperation with the authorities in this regard. However, in the
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absence of any response thereto, the present writ petition has been filed by the Petitioner, seeking the following reliefs:
"a. Quash/set-aside the letter/order dated 29.08.2019 issued by the Respondent No. 1 against the Petitioner and the subject property.
b. Quash/set-aside the order dated 15.10.2019 issued by the Respondent No. 2 against the Petitioner and the subject property.
c. Direct Respondent No. 2 to deseal the subject property bearing address, E6, Sector 2, Bawana Industrial Area, Delhi 110039.
d. pass any other Order(s) as this Hon'ble Court may deem fit in the given facts and circumstances of the present case."
8. Mr. Anirudh Bakhru, ld. Counsel appearing for the Petitioners has made the following submissions:
i. On the question of maintainability, it is submitted that the impugned order itself is without jurisdiction, as the power to seal the premises does not emanate from Section 33A of the Water Act, 1974. Hence, the present writ petition is maintainable. ii. Reliance is placed upon the decision of the ld. Single Judge of this Court in Gopi Nath Pvt. Ltd. v. Department of Environment, GNCTD, [1998 (45) DRJ 284] to submit that the sealing of the industrial unit would not automatically lead to the sealing of the premises.
iii. The Petitioner/Landlady cannot be made to suffer due to the fault of the Tenant.
iv. The premises being sealed has led to an irreparable harm to the Petitioner/Landlady.
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v. The Petitioner/Landlady is unable to earn rent from the said subject property due to the sealing. It is, thus, prayed that the premises be de-sealed.
9. On the other hand, Mr. Sharma, ld. Counsel appearing on behalf of the Respondent No.1 - DPCC, submits that the industrial unit was functioning completely illegally, without obtaining proper environmental clearances. A substantial amount of environmental compensation has been levied on the Tenant, and if the subject premises are de-sealed, there would be no way to recover the same.
10. Mr. Malik, ld. ASC for Respondent No.2 - SDM, Narela, GNCTD submits that the subject premises were sealed only in compliance of the directions of the Respondent No.1 - DPCC issued vide impugned order dated 29th August, 2019.
11. Heard ld. Counsels for the parties. A perusal of the provisions of the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter, "the Water Act, 1974") shows that the Respondent No.1 - DPCC would have the power to close, prohibit, or regulate any industry, operation or process. It would also have the power to stop or regulate supply of electricity, water or any other services. The relevant provision contained in Section 33A of the Water Act, 1974, is set out below:
"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,
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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."
12. Insofar as the 'Offences by Companies' are concerned, in terms of Section 47 of the Water Act, 1974, it is only the person who is responsible for the conduct of the business of the company, as well as the company, who can be held to be guilty of such offence under the Water Act, 1974. Section 47 of the Water Act, 1974, reads as under:
"47. Offences by companies.--(1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where, an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager,
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secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purposes of this section,--
(a) "company" means any body corporate, and includes a firm or other association of individuals; and
(b) "director" in relation to a firm means a partner in the firm."
13. A perusal of the above provisions, clearly shows that the power of the Respondent No.1 - DPCC is to direct closure, prohibition or regulation of any industry, operation or process. The DPCC also has the power to stop or regulate supply of electricity, water or any other services. However, any activity which is non-polluting or non-offending cannot be stopped by the DPCC in exercise of the powers under Section 33A of the Water Act, 1974.
14. The Petitioner is clearly the Landlady of the premises, and the ownership of the subject premises has not been disputed. It is also an admitted fact that the Petitioner was herself not running any business/industry in the said premises. Thus, it appears to this Court that the Landlady has been deprived of the enjoyment of her premises and the rent therefrom, for the last three years, due to the acts of the Tenant. Clearly, the allegation of pollution is only against the Tenant, and the Landlady has not been held complicit in any manner along with the Tenant.
15. As per the judgment of ld. Single Judge of this Court in Gopi Nath (supra), which was passed under the provisions of the Air Act, 1981, which are pari materia to the provisions of the Water Act, 1974, an order of the DPCC directing closure or prohibiting the use of the premises shall be violative of the provisions of the Act itself. The relevant paragraphs of the said judgment in Gopi Nath (supra) are set out below:
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"3. The grievance of the petitioner is that without ever monitoring its Unit in terms of the order of the Appellate Authority, and acting beyond its powers, the Committee has directed the Sub-Divisional Magistrate to seal the Unit.
14. I have already reproduced above Section 31A of the Act. It undoubtedly invests the Board to issue "any directions" to "any person" subject, however, to the satisfaction of two requirements. Firstly, the direction so issued must be "in the exercise of its powers" under the Act and secondly it must also be in the "performance of its functions under this Act". But then Section 31A has an Explanation too and for avoidance of doubts, it declares that the power to issue directions under the Section "includes" the power to direct "the closure, prohibition or regulation" of any industry, operation or process.
15. Mr. Kashyap submits that "closure" is synonymous with "sealing" of any industry, operation or process and that, in any case, only the interpretation suggested by him would help achieve the purpose of the enactment as it is a social benefit oriented legislation.
16........
17. But then, as noticed above, the contention of Mr. Kashyap is that "sealing" and "closure" are inter-changeable and, in effect signify the same end result.
18. Is it so?
19. As I see it, a closure order is an order prohibiting the use of the premises as respects which an order is made for any purpose which violates the provisions of the Act and would not operate to close such user as is not found
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offending the provisions of the Act. Closure of the industry, operation or process would thus imply closure of only manufacturing or other such activity which is found offending the provisions of the Act through the management and/or the workers of such Unit and even others like customers etc. may still have easy or regulated ingress or egress from such a Unit. Closure here would thus mean discontinuance of the objectionable activity. An order to seal the industry would lead to consequences much harsher than closure. Sealing would prevent access to and egress from (an area or space), and thus close (entrances) for this purpose. Sealing means to fasten with or as with seal; to close (an aperture, etc.) securely be placing a coating of wax, cement, or lead over the orifice, or in wider sense, by any kind of fastening that must be broken before access can be obtained. And if that be so, what happens to the other non-offending activities of the petitioner? Closing down all industrial activity is neither the purpose nor the object of the Act. Prevention of pollution is. If one particular component is the cause of pollution, the Board may well, means much more than mere closure. In any case, if the Committee found its direction of closure having not been acted upon it could take recourse to Section 37 of the Act.
21. As for Mr. Kashyap's objection regarding maintainability of the writ petition, I need say no more than this that as the direction to seal the Unit is not authorized by the Act, and is thus beyond the powers of the Committee, the writ would lie."
16. Thus, on the basis of the above judgment, it is clear that the closure of any industrial unit or other activity, alleged to be polluting in nature, only results in discontinuance of the objectionable activities. The use of the subject
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premises for non-polluting or non-offending activities cannot be stopped as the sealing of the premises itself can have a deleterious impact. Moreover, the landlady cannot be deprived of the use and enjoyment of the subject premises due to the Tenant's offending activities.
17. In view of the foregoing discussion, the following directions are issued:
i. Respondent No.2 - SDM, Narela shall de-seal the subject premises of the Petitioner, within five working days. In view of the de-sealing of the premises, the electricity, water, and other basic amenities, shall be restored to the subject premises.
ii. At the time of de-sealing, if any mobile number or any other contact details of the Tenant - M/s. Shri Ram Dyeing, or any person related to the said entity, are available with the Petitioner, the same shall be provided to the Respondent No.1 - DPCC or the Respondent No.2 - SDM, Narela. iii. Respondent No.1 - DPCC is at liberty to proceed, in accordance with law, against the Tenant - M/s. Shri Ram Dyeing, for the recovery of the environmental compensation imposed upon the Tenant, vide impugned order dated 29 th August, 2019.
18. The present petition is allowed and disposed of in the above terms. All pending applications are also disposed of.
PRATHIBA M. SINGH JUDGE DECEMBER 5, 2022/dk/ad
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