Gauhati High Court
WP(C)/869/2016 on 30 May, 2025
GAHC010202272016
2025:GAU-AS:7052
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) NO.869 OF 2016
Assam Real Estate and Infrastructure
Developers Association (AREIDA),
represented by its President Sri P.K.
Sharma, Landmark Building, M.G.
Road, Machkhowa, Dist.- Kamrup (M),
Guwahati- 781009, Assam.
.......Petitioner
-Versus-
1. The State of Assam, represented by
the Chief Secretary to the Government
of Assam, Dispur, Guwahati- 781006.
2. Assam Environment and Forest
Department, represented by the Addl.
Chief Secretary to the Government of
Assam, Dispur, Guwahati- 781006.
3. Pollution Control Board, represented
by the Chairman/Member Secretary
Bamunimaidam, Guwahati- 781021,
Assam.
4. Guwahati Municipal Corporation
(GMC), represented by the
Commissioner, Panbazar, Guwahati-
781001.
Page 1 of 31
5. The Guwahati Metropolitan
Development Authority (GMDA),
represented by the Chief Executive
Officer, Bhangagarh, Guwahati-
781005, Assam.
.......Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) : Mr. K. N. Choudhury, Sr. Advocate.
: Mr. T. Kashyap, Advocate.
: Mr. N. Gautam, Advocate.
For the Respondent(s) : Mr. D. Gogoi, Standing Counsel,
Forest, for respondent No. 2.
: Mr. S. Barua, Standing Counsel, PCB,
for respondent No. 3.
: Mr. P. Nayak, Standing Counsel,
GMC, for respondent No. 4.
Date of Hearing : 08.05.2025.
Date of Judgment : 30.05.2025.
JUDGMENT & ORDER (CAV)
Heard Mr. K. N. Choudhury, learned senior
counsel assisted by Mr. T. Kashyap, learned counsel, & Mr.
N. Gautam, learned counsel, appearing for the petitioner.
Also heard Mr. D. Gogoi, learned standing counsel, Forest
Department, appearing for respondent No.2, Mr. S. Barua,
learned standing counsel, Pollution Control Board, Assam
appearing for respondent Nos. 3, and Mr. P. Nayak,
learned standing counsel, Guwahati Municipal Corporation
(GMC) appearing for respondent No.4.
2. By way of this petition under Article 226 of the
Constitution of India, the petitioner/association is
challenging, inter alia, the legality and validity of impugned
notification No. WB/G-1025/14-15/01 dated 03.07.2014
and notification No. WB/G-1025/14-15/57 dated
18.05.2015, issued by the Pollution Control Board, Assam
(hereinafter referred to as "PCB"), i.e., respondent No.3,
whereby it was made mandatory for all ongoing,
upcoming, and proposed, inter alia, housing complexes to
obtain prior consent from PCB for construction above 3000
sq. meters and for installation/construction of Sewage
Treatment Plant (hereinafter referred to as "STP"),
respectively.
3. The brief fact of the case is that the writ petition
is being filed by the Assam Real Estate and Infrastructure
Developers Association (AREIDA), which is a registered
society under the Societies Registration Act, 1860,
representing promoters, developers, and builders of
housing/ residential complexes.
4. The PCB, by issuing the impugned notification
dated 03.07.2014, necessitated a requirement of prior
consent from the Board for constructions above 3000 sq.
meters, which includes, among others, all ongoing,
upcoming, and proposed housing complexes within the
State of Assam, as per the Water (Prevention and Control
of Pollution) Act, 1974 (hereinafter referred to as the
"Water Act"), and the Environment (Protection) Act, 1986
(hereinafter referred to as the "Environment Act"), along
with Rules made thereunder before commencement of the
civil works.
5. Thereafter, the PCB, by notification dated
18.05.2015, stipulated that all existing, ongoing, upcoming,
and proposed Industrial Units/Processes/Establishment
must obtain prior "Consent to Establish" and "Consent to
Operate" from the Board in accordance with Section 25 of
the Water Act and Section 21 of the Air (Prevention and
Control of Pollution) Act, 1981 (hereinafter referred to as
"Air Act") and Rules framed thereunder. The said
notification, among other things, also stipulated STP for
Housing/Commercial/Office Complexes, etc., having built-
up areas above 3000 sq. meters. Thereafter, the
respondent No.4 and respondent No.5 have withheld all
building permission/occupancy certificate applications for
buildings above 3000 sq. meters, including for residential
purposes demanding NOC from the Board as a
prerequisite. It is the specific case of the
petitioner/association that due to these actions of the
respondent authorities, the business/livelihood of people
associated with the real estate business has been affected.
Situated thus, the present writ petition.
6. Mr. K. N. Choudhury, learned senior counsel
appearing for the petitioner/association, submits that the
impugned notifications are violative of Article 19(1)(g) read
with Article 19(2) of the Constitution of India and that
since the impugned notifications are executive fiat, the
same cannot restrict the fundamental right of the members
of the petitioner/association to carry on their respective
businesses. He further submits that as the members of the
petitioner/association do not operate any industrial plant in
an air pollution control area, the question of the operation
of the restrictions envisaged in the Air Act does not arise.
He further submits that similarly the measures envisaged
under the Water Act are also not applicable to the
members of the petitioner/association, who are involved in
the business of residential complexes. He further relies
upon the decision of the Delhi High Court pronounced on
23.01.2012 in the case of Delhi Pollution Control
Committee v. Splendor Landbase Limited, in LPA
895/2010, wherein the Delhi High Court has held that the
expression "sewage effluent" appearing in Section 25(1)(a)
of the Water Act cannot be equated with sewage
emanating from a domestic residential complex.
7. He further submits that as per the EIA notification
dated 14.09.2006, buildings and construction projects
exceeding 20,000 sq. meters alone are required to seek
environmental impact assessment clearance, and since the
residential projects undertaken by the
petitioner/association are not of such magnitude, the
impugned restrictions are not applicable in respect of the
building permissions and NOC applications submitted by
the members of the petitioner/association. He further
submits that the impugned notifications are without
jurisdiction and hence, liable to be dismissed.
8. Per contra, Mr. S. Barua, learned standing counsel
for the respondent No.3/PCB, submits that the impugned
notifications dated 03.07.2014 and 18.05.2015,
respectively, are interrelated and have been issued not
only under the Water Act and Air Act, but also under the
provisions of the Environment Act and the Rules made
thereunder. He further submits that in pursuance to the
impugned two notifications, it is in respect of „NOC‟ only
relating to housing complexes, etc., having built-up areas
above 3000 sq. meters within the State of Assam, which is
required to be obtained from the Board. He further submits
that the environmental clearance cannot be equated with
NOC/consent of a Board and that consent to establish and
prior environmental clearance are separate legal
requirements, which any project proponent has to fulfill.
9. Mr. P. Nayak, learned standing counsel for
respondent No.4/GMC, submits that as per Section 94 of
the Guwahati Building Construction (Regulation) Byelaws,
2014 (hereinafter referred to as the "Building Byelaws),
STP is mandatory to be proposed in service plans and
construction of residential complexes if the built-up is
above 3000 sq. meters, among others, and NOC is required
to be obtained from the Board for consideration of building
permissions and occupancy certificate proposals by
respondent No.4. He therefore submits that the impugned
notifications dated 03.07.2014 and 18.05.2015 are in
accordance with the Building Byelaws. He further submits
that the provision of STP is included under Clause 94 of the
Building Byelaws and is applicable to residential complexes
measuring 4000 sq. meters or more, group
housing/apartment houses measuring built-up areas
measuring 2000 sq. meters, or if the consumption of water
is 20,000 liters per day, or if it is a multistoried building
with more than 30 apartment houses, among others.
10. I have given my prudent consideration to the
arguments advanced by the learned counsels appearing for
the contending parties and have perused the material
available on record. I have also considered the case laws
cited at the bar.
11. The issue arising for determination in this writ
petition is as to whether the requirements of obtaining
consent from the PCB for construction of residential
complexes measuring above 3000 sq. meters within the
State of Assam are justified or not.
12. Apt at the outset to refer to the two impugned
notifications dated 03.07.2014 and 18.05.2015, issued by
the PCB.
13. Notification dated 03.07.2014 reads as
hereunder:-
"Pollution Control Board, Assam
Bamunimaidam : Guwahati-21
No. WB/G-1025/14-15/01 Dated Guwahati, the 03rd July, 2014
NOTICE
REQUIREMENT OF CONSENT FOR CONSTRUCTION
ABOVE 3000 SQ, MTRS
It is for the general information of all
concerned that all ongoing, upcoming and proposed
Housing Commerical/Office Complexes, Educational
Complexes including IT & Infrastructure and Town
Development Projects, Entertainment Projects, Resorts
etc. having built up area > 3000 sq. mtrs. within the
State of Assam must obtain prior Consent from
Pollution Control Board, Assam as per Water
(Prevention & Control of Pollution) Act, 1974 and
Environment (Protection) Act 1986 alongwith Rules
made thereunder before the commencement of the
civil works, henceforth. Violations would be dealt with
in accordance with the provisions of the Act.
Member Secretary (i/c)
Dated Guwahati, the 03rd July, 2014."
14. Reading the aforesaid notification, it appears that
the PCB, by issuing the said notification, has mandated a
requirement of obtaining consent for construction of
housing complexes, among others, having built-up areas
above 3000 sq. meters within the State of Assam. It
further appears that unless such consent is obtained, no
permission for construction of residential complexes having
built-up areas above 3000 sq. meters, among others, will
be permitted by the authorities concerned. It further
appears that the impugned notification is issued under the
provisions of the Water Act and the Environment Act along
with Rules made thereunder. Therefore, by issuance of the
aforesaid notification, prior consent from the PCB before
commencement of the civil works relating to such
residential complex has been made mandatory.
15. Notification dated 18.05.2015 reads as
hereunder:-
"Pollution Control Board, Assam
Bamunimaidam : Guwahati-21
No. WB/G-1025/14-15/57 Dated Guwahati, the 18th May, 2015
NOTICE
REQUIREMENT OF CONSENT
It is for the general information of all
concerned that the following all existing, ongoing,
upcoming and proposed Industrial Units/Processes/
Establishments must obtain prior "Consent to
Establish" and "Consent to Operate" from the Pollution
Control Board, Assam in accordance with Section 25
of the Water (Prevention & Control of Pollution) Act,
1974; Section 21 of the Air (Prevention & Control of
Pollution) Act, 1981 and Rules made thereunder:
1. Sewage Treatment Plant (STP) for
Housing/Commercial/Office Complexes,
Educational Complexes including IT &
Infrastructure and Town Development
Projects, Entertainment Projects, Resorts etc.
having built up area >3000 Sq.mtrs.
2. Restaurant / Dhabas.
3. Fuel Dispensing Units (Petrol, Diesel etc.)
4. LPG Gas Cylinder and Other Hazardous
Chemical Storage Godowns.
5. DG Sets (capacity ≥ 5KVA).
6. Jewellery using Mercury in Artisanl and
Small Scale Gold Mining (ASGM).
7. Marriage Hall / Function Hall.
8. Automobile Servicing Stations,
This Notice comes into force with immediate effect.
Any violation of this Notice will be dealt in accordance
with prevailing Acts & Rules inforce.
N.B.: Installation/Construction of Sewage
Treatment Plant (STP) is mandatory for all
existing. ongoing, upcoming and proposed
Housing/Commercial/Office Complexes,
Educational Complexes including IT &
Infrastructure and Town Development Projects,
Entertainment Projects, Resorts etc. having built
up area 23000 Sq.mtrs.
Member Secretary (i/c)
Dated Guwahati, the 18th May, 2015."
16. Reading the aforesaid notification, it appears that
by issuing the said notification, PCB has made it mandatory
for all existing, ongoing, upcoming, and proposed
Industrial Units/Processes/Establishments to obtain prior
(Consent to Establish) and (Consent to Operate) from the
Board in accordance with Section 25 of the Water Act and
Section 21 of the Air Act and Rules framed thereunder. It
further appears that the said notification, among others,
also stipulated STP for Housing/Commercial/Office
Complexes, etc., having built-up areas above 3000 sq.
meters. The dispute being the applicability of the said two
impugned notifications in respect of the construction of
residential complexes only, I shall confine myself to the
issue of the applicability of the aforesaid notifications in
respect of residential complexes. There is no quarrel with
the proposition urged by the senior counsel appearing for
the petitioner/association that the fundamental right of the
members of the petitioner/association to carry on their
respective businesses cannot be restricted without being
backed by any provision of law. Thus, the short question is
whether the PCB has the power and jurisdiction to impose
the subject restrictions under any law.
17. In order to answer the said question, it would be
essential to look into the relevant law to ascertain whether
the PCB is empowered to issue the subject restrictions. The
subject dispute being in relation to sewage disposal, I am
primarily concerned with the Water Act. Apropos to go into
the history that necessitated the enactment of the Water
Act by the Government of India. It is to be noted that due
to the rapid growth of industries and the increasing
tendency to urbanization, the problem of pollution of rivers
and streams assumes significant importance. It was thus
felt essential and necessary to ensure that the domestic
and industrial effluent is not allowed to be discharged into
the watercourses without adequate treatment. It is thus
with this very object, i.e., to provide for the prevention and
control of water pollution, that the said Water Act was
brought into force. The statement of objects and reasons
reads as hereunder: -
"STATEMENT OF OBJECTS AND REASONS
The problem of pollution of rivers and
streams has assumed considerable importance
and urgency in recent years as a result of the
growth of industries and the increasing tendency to
urbanization. It is, therefore, essential to ensure
that the domestic and industrial effluents are not
allowed to be discharged into the water courses
without adequate treatment as such discharges
would render the water unsuitable as source of
drinking water as well as for supporting fish life
and for use in irrigation. Pollution of rivers and
streams also causes increasing damage to the
country's economy.
A Committee was set up in 1962 to draw a
draft enactment for the prevention of water
pollution. The report of the Committee was
circulated to the State Governments and was also
considered by the Central Council of Local Self-
Government in September, 1963. This Council
resolved that single law regarding measures to
deal with water pollution control, both at the
Central and at the State levels, may be enacted by
the Union Parliament. A draft Bill was accordingly
prepared and put up for consideration at a joint
session of the Central Council of Local Self-
Government and the Fifth Conference of the State
Ministers of Town and Country Planning held in
1965. In pursuance of the decision of the joint
session, the draft Bill was considered
subsequently in detail by a Committee of Ministers
of Local Self-Government from the States of Bihar,
Madras, Maharashtra, Rajasthan, Haryana and
West Bengal.
Having considered the relevant local
provisions existing in the country and
recommendations of the aforesaid Committees, the
Government came to the conclusion that the
existing local provisions are neither adequate nor
satisfactory. There is, therefore, an urgent need for
introducing a comprehensive legislation which
would establish unitary agencies in the Centre and
States to provide for the prevention, abatement and
control of pollution of rivers and streams, for
maintaining or restoring wholesomeness of such
water courses and for controlling the existing and
new discharges of domestic and industrial wastes.
The Bill follows the recommendations of the
aforesaid Committees and seeks to-
(i) establish at the Centre as well as in the
States Water Pollution Prevention Boards
with the necessary complement of technical
and administrative staff and to confer on
them such powers as are necessary to deal
effectively with the problem of water
pollution in the country;
(ii) provide penalties for contravention of the
provisions of the Act; and
(iii) establish Central and State water testing
laboratories to enable the Boards to assess
the extent of pollution, lay down standards
and establish guilt or default.
Legislation in respect of the aforesaid
subject-matter is relatable to entry 17 read with
entry 6 of List II in the Seventh Schedule to the
Constitution and Parliament has no power to make
a law in the States (apart from the provisions of
articles 249 and 250 of the Constitution) unless the
Legislatures of two or more States pass a
resolution in pursuance of Article 252 of the
Constitution empowering Parliament to pass the
necessary legislation on the subject. The
Legislatures of the States of Gujarat, Jammu and
Kashmir, Kerala, Haryana and Mysore have
passed such resolutions. The Bill is intended to
give effect to the resolutions passed by the
Legislatures of the aforesaid States."
18. Reading the aforesaid statement of objects and
reasons, it is clear that the Water Act was enacted with the
object to prevent and control water pollution and the
maintaining or restoring of wholesomeness of water.
19. Apt at this juncture to refer to the relevant
provisions of the Water Act. "Board" as per subsection (a)
of Section 2 of the Water Act means the Central Board or
State Board and "State Board" as per subsection (h) of
Section 2 of the Water Act means a State Pollution Control
Board.
20. Subsection (dd) of Section 2 of the Water Act
defines "outlet", which reads as hereunder:-
"(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."
21. Subsection (e) of Section 2 of the Water Act
defines "pollution" which reads as hereunder:-
"(e) „pollution‟ means such contamination of water or
such alteration of the physical, chemical or biological
properties of water or such discharge of any sewage
or trade effluent or of any other liquid, gaseous or
solid substance into water (whether directly or
indirectly) as may, or is likely to, create a nuisance or
render such water harmful or injurious to public
health or safety, or to domestic, commercial,
industrial, agricultural or other legitimate uses, or to
the life and health of animals or plants or of aquatic
organisims."
22. Subsection (g) of Section 2 of the Water Act
defines "sewage effluent", which reads as hereunder:-
"(g) „Sewage effluent‟ means effluent from any
sewerage system or sewage disposal works and
includes sullage from open drains."
23. Subsection (gg) of Section 2 of the Water Act
defines "sewer" which reads as hereunder:-
"(gg) „sewer‟ means any conduit pipe or channel, open
or closed, carrying sewage or trade effluent."
24. Subsection (f) of Section 2 of the Water Act
defines "prescribed" which reads as hereunder:-
"(f) "prescribed" means prescribed by rules made
under this Act by the Central Government or, as the
case may be, the State Government."
25. Subsection (k) of Section 2 of the Water Act
defines "trade effluent" which reads as hereunder:-
"(k) „trade effluent‟ includes any liquid, gaseous or
solid substance which is discharged from any
premisis used for carrying on any [industry, operation
or process, or treatment and disposal system] other
than domestic sewage."
26. Section 17 of the Water Act which provides the
function of the State Pollution Control Board, reads as
under: -
"17. Functions of State Board.-(1) Subject to the
provisions of this Act, the functions of a State Board
shall be-
(a) to plan a comprehensive programme for the
prevention, control or abatement of pollution of
streams and wells in the State and to secure the
execution thereof;
(b) to advise the State Government on any matter
concerning the prevention, control or abatement of
water pollution;
(c) to collect and disseminate information relating to
water pollution and the prevention, control or
abatement thereof;
(d) to encourage, conduct and participate
investigations and research relating to problems of
water pollution and prevention, control or
abatement of water pollution;
(e) to collaborate with the Central Board in
organizing the training of persons engaged or to be
engaged in programmes relating to prevention,
control or abatement of water pollution and to
organise mass education programmes relating
thereto;
(1) to inspect sewage or trade effluents, works and
plants for the treatment of sewage and trade
effluents and to review plans, specifications or
other data relating to plants set up for the
treatment of water, works for the purification
thereof and the system for the disposal of sewage
or trade effluents or in connection with the grant of
any consent as required by this Act;
(g) to lay down, modify or annul effluent standards
for the sewage and trade effluents and for the
quality of receiving waters (not being water in an
inter-State stream) resulting from the discharge of
effluents and to classify waters of the State;
(h) to evolve economical and reliable methods of
treatment of sewage and trade effluents, having
regard to the peculiar conditions of soils, climate
and water resources of different regions and more
especially the prevailing flow characteristics of
water in streams and wells which render it
impossible to attain even the minimum degree of
dilution;
(i) to evolve methods of utilisation of sewage and
suitable trade effluents in agriculture;
(j) to evolve efficient methods of disposal of sewage
and trade effluents on land, as are necessary on
account of the predominant conditions of scant
stream flows that do not provide for major part of
the year the minimum degree of dilution;
(k) to lay down standards of treatment of sewage
and trade effluents to be discharged into any
particular stream taking into account the minimum
fair weather dilution available in that stream and
the tolerance limits of pollution permissible in the
water of the stream, after the discharge of such
effluents;
(l) to make, vary or revoke any order-
(i) for the prevention, control or abatement of
discharges of waste into streams or wells;
(ii) requiring any person concerned to
construct new systems for the disposal of
sewage and trade effluents or to modify,
alter or extend any such existing system or
to adopt such remedial measures as are
necessary to prevent, control or abate water
pollution;
(m) to lay down effluent standards to be complied
with by persons while causing discharge of
sewage or sullage or both and to lay down, modify
or annul effluent standards for the sewage and
trade effluents;
(n) to advise the State Government with respect to
the location of any industry the carrying on of
which is likely to pollute a stream or well;
(o) to perform such other functions as may be
prescribed or as may, from time to time, be
entrusted to it by the Central Board or the State
Government.
(2) The Board may establish or recognise a laboratory
or laboratories to enable the Board to perform its
functions under this section efficiently, including the
analysis of samples of water from any stream or well
or of samples of any sewage or trade effluents.
27. Section 25 of the Water Act reads as hereunder:
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 authorised 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."
28. Reading the aforesaid provisions, it is clear that
the provisions of the Water Act are not only applicable to
the sewage effluent that is discharged from any industry
alone but also in respect of other sewage effluent
emanating from premises other than industrial premises.
The Act clearly distinguishes sewage effluent and trade
effluent by providing that sewage effluent is effluent from
any sewerage system or sewage disposal works and
includes sullage from open drains, whereas trade effluent
is effluent including any liquid, gaseous, or solid substance
from any industrial premises. It is thus clear that while
sewage effluent is used by the legislature in general, trade
effluent is exclusively in relation to trade activities. It is
further clear that the PCB, under the provisions of Section
17 of the Water Act, is empowered to take necessary
measures in relation to sewage or trade effluent disposal
systems and to lay down effluent standards for the sewage
and trade effluents. That apart, it is further clear that
under Section 25 of the Water Act, the PCB is empowered
to restrict new discharge of sewage. In fact, it is condition
precedent under Section 25 of the Water Act for obtaining
consent of the PCB before establishing or taking any steps
to establish any industry, operation or process or any
treatment and disposal system that is likely to discharge
sewage or trade effluent into a stream or well or sewer or
on land. Subsection (2) of Section 25 of the Water Act
provides the manner in which application for consent from
PCB under subsection (1) is to be made. The expression
"or" used by the legislature between the expression
"establish any industry, operation or process" and "any
treatment and disposal system" would go to show that
both the expressions are mutually exclusive of one
another. Further, the expressions "which is likely to
discharge sewage" and "trade effluent into a stream or well
or sewer or on land" being separated by using the
expression "or" in the same sentence of subsection (1) of
Section 25 of the Water Act, it is manifest apparent that
the legislature has provided the power to the PCB to
impose restrictions in relation to sewage disposal
emanating from both industrial premises as well as
domestic premises. The expression "or" is disjunctive.
Apropos to refer to the Black‟s Law Dictionary 6th Edition,
wherein the expression "or" is defined as "a disjunctive
particle used to express an alternative or to give a choice
of one among two or more things. It is also used to clarify
what has already been said, and in such cases, means „in
other words,‟ „to-wit,‟ or „that is to say.‟ The word „or‟ is to
be used as a function word to indicate an alternative
between different or unlike things. City of Toledo v.
Lucas County Budget Commission, 33 Ohio St. 2d 62,
294 N.E.2d 661, 663. In some usages, the word „or‟
creates a multiple rather than an alternative obligation;
where necessary in interpreting an instrument, „or‟ may be
construed to mean „and.‟ Atchison v. City of England,
Colo., 568 P.2d 13, 18". It is thus clear that "or"
generally would mean an alternative between different and
unlike things; however, the same can also be read as "and"
while construing a statute if the provision is ambiguous and
unclear provided the said reading is not contrary with the
object and intention of the legislature. Reading subsection
(1) of Section 25 of the Water Act, the intention of the
legislature appears absolutely clear and unambiguous
inasmuch as if the legislature had intended both the
expressions "establish any industry, operation or process"
and "any treatment and disposal system" to read together,
it would have separated both the expressions by using the
expression "and." Therefore, the expression "or" as it
appears in Section 25 of the Water Act is disjunctive;
meaning thereby, "disposal system which is likely to
discharge sewage" as provided therein cannot be confined
to trade effluent alone. It is well-settled law that this Court
under Article 226 of the Constitution of India cannot
rewrite or recast the statutory provisions. The statutory
provisions have to be understood and given effect in the
context of the statute by keeping the intention of the
legislature in mind. Apropos that the object of enacting the
Water Act, amongst others, is for the protection of the
water bodies, which are being polluted due to sewage
emanating from both domestic as well as industrial
premises. In fact, in order to effectively control the sewage
effluent and disposal, it is imperative for the PCB to take
necessary measures, especially concerning the new and
upcoming projects, be it from domestic or industrial
premises. Thus, reading down the aforesaid provision to
mean that sewage disposal is exclusive for trade effluent
would be contrary to the clear intention of the legislature.
Therefore, I have no hesitation to hold that Section 25 of
the Water Act is applicable to both effluents emanating
from trade as well as domestic premises. The decision of
the Delhi High Court in the case of Delhi Pollution
Control Committee (Supra) being an authority rendered
by another high court is not binding upon this court;
however, the same is of persuasive value. In other words,
this court can consider the decision of another high court
as guidance, but is not obligated to follow it, meaning
thereby, this court can choose to agree or disagree with
the decision based on its own interpretation of the law and
the facts. I have considered the decision of the Delhi High
Court in the case of Delhi Pollution Control Committee
(Supra), however, in view of the interpretation of Section
25 of the Water Act, as held hereinabove, I am unable to
share the perception of the Delhi High Court as regards the
non-applicability of Section 25 of the Water Act, in respect
of domestic/residential complexes. Therefore, the aforesaid
decision of the Delhi High Court is of no relevance to the
petitioner.
29. Turning back to the impugned notification dated
03.07.2014, it appears that PCB necessitated the
requirement of obtaining prior consent for housing
complexes, among others, having built-up areas above
3000 sq. meters within the State of Assam under the
provisions of the Water Act. It is thus clear that the
aforesaid restriction imposed by the PCB is in terms of
Section 25 of the Water Act. Therefore, the PCB is
empowered under the provision of the Water Act to impose
the subject restriction.
30. This brings me to the argument of Mr. K. N.
Choudhury, learned senior counsel, to the effect that the
expression used in Section 25(1)(a) i.e., sewage or trade
effluent, has to be construed as an offshoot of industry,
operation, or process by applying the principles of ejusdem
generis, and hence, the restriction that can be imposed
under Section 25 of the Water Act is applicable only to
sewage emanating from an industry, operation, or process
cannot be accepted inasmuch as a plain reading of Section
25 of the Water Act makes it abundantly clear that the PCB
is competent to restrict sewage disposal from both
domestic and industry premises. There is no quarrel with
the proposition that when general words are juxtaposed
with specific words, general words cannot be read in
isolation. In other words, the colour and contents of the
general words are to be derived from their contexts. This is
a principle of construction, and this principle in Latin is
called "ejusdem generis," meaning thereby "of the same
kind or nature." However, there is a well-known exception
to this principle of ejusdem generis: that the same can be
applied only when there is no contrary intention manifest
on the face of the statute. Reference is made to
paragraphs 27 to 37 of the decision of the Apex Court in
the case of Maharashtra University of Health
Sciences and Ors. V. Satchikitsa Prasarak Mandal
and Ors., reported in (2010) 3 SCC 786.
"27. The Latin expression „ejusdem generis‟ which
means „of the same kind or nature‟ is a principle of
construction, meaning thereby when general words
in a statutory text are flanked by restricted words,
the meaning of the general words are taken to be
restricted by implication with the meaning of the
restricted words. This is a principle which arises
„from the linguistic implication by which words
having literally a wide meaning (when taken in
isolation) are treated as reduced in scope by the
verbal context‟. It may be regarded as an instance
of ellipsis, or reliance on implication. This principle
is presumed to apply unless there is some contrary
indication [see Glanville Williams, The Origins and
Logical Implications of the Ejusdem Generis Rule, 7
Conv (NS) 119].
28. This ejusdem generis principle is a facet of the
principle of noscitur a sociis. The Latin maxim
noscitur a sociis contemplates that a statutory term
is recognised by its associated words. The Latin
word „sociis‟ means „society‟. Therefore, when
general words are juxtaposed with specific words,
general words cannot be read in isolation. Their
colour and their contents are to be derived from
their context. (See similar observations of Viscount
Simonds in Attorney General v. Prince Ernest
Augustus of Hanover. AC at p. 461.)
29. But like all other linguistic canons of
construction, the ejusdem generis principle applies
only when a contrary intention does not appear. In
the instant case, a contrary intention is clearly
indicated inasmuch as the definition of „teachers‟
under Section 2(35) of the said Act, as pointed out
above, is in two parts. The first part deals second
part which begins by the expression „and other‟
envisages a different category of persons. Here
„and‟ is disjunctive. So, while construing such a
definition the principle of ejusdem generis cannot
cannot be applied.
30. In this context, we should do well to remember
the caution sounded by Lord Scarman in Quazi v.
Quaz. At p. 916 of the Report, the learned Law
Lord made this pertinent observation: (AC p. 824 )
„If the legislative purpose of a statute is such that a
statutory series should be read ejusdem generis, so he
it; the rule is helpful. But, if it is not, the rule is more
likely to defeat than to fulfil the purpose of the statute.
The rule, like many other rules of statutory
interpretation, is a useful servant but a bad master.‟
31. This Court while construing the principle of
ejusdem generis laid down similar principles in
Kavalappara Kottarathil Kochurni v. State of
Madras, A Constitution Bench of this Court in
Kochuni speaking through Subba Rao, J. (as His
Lordship then was) opined: (AIR p. 1103, para 50)
„50. ....The rule is that when general words follow
particular and specific words of the same nature, the
general words must be confined to the things of the
same kind as those specified. But it is clearly laid
down by decided cases that the specific words must
form a distinct genus or category. It is not an
inviolable rule of law, but is only permissible
inference in the absence of an indication to the
contrary.‟
(emphasis supplied)
32. Again this Court in another Constitution Bench
decision in Amar Chandra Chakraborty v. Collector
of Excise, speaking through Dua. J. reiterated the
same principles in para 9, at p. 1868 of the Report.
On the principle of ejusdem generis, the learned
Judge observed as follows: (SCC p. 447. para 9)
„9. ... The ejusdem generis rule strives to reconcile the
incompatibility between specific and general words.
This doctrine applies when (i) the statute contains an
enumeration of specific words; (ii) the subjects of the
enumeration constitute a class or category; (iii) that
class or category is not exhausted by the
enumeration; (iv) the general term follows the
enumeration; and (v) there is no indication of a
different legislative intent.‟
(emphasis supplied)
33. As noted above, in the instant case, there is a
statutory indication to the contrary. Therefore,
where there is statutory indication to the contrary
the definition of teacher under Section 2(35) cannot
be read on the basis of ejusdem generis nor can
the definition be confined to only approved
teachers. If that is done, then a substantial part of
the definition under Section 2(35) would become
redundant. That is against the very essence of the
doctrine of ejusdem generis. The purpose of this
doctrine is to reconcile any incompatibility between
specific and general words so that all words in a
statute can be given effect to and no word becomes
superfluous (see Sutherland: Statutory
Construction, 5th Edn.. p. 189, Vol. 2-A).
34. It is also one of the cardinal canons of
construction that no statute can be interpreted in
such a way as to render a part of it otiose. It is,
therefore, clear where there is a different legislative
intent, as in this case, the principle of ejusdem
generis cannot be applied to make a part of the
definition completely redundant.
35. By giving such a narrow and truncated
interpretation of „teachers‟ under Section 2(35), the
High Court has not only ignored a part of Section
2(35) but it has also unfortunately given an
interpretation which is incompatible with the
avowed purpose of Section 53 of the Act.
36. The purpose of setting up the Grievance
Committee under Section 53 of the Act is to provide
an effective grievance redressal forum to teachers
and other employees. Any interpretation of
„teachers‟ under Section 2(35) of the Act which
denies the persons covered under Section 2(35) an
access to the said forum completely nullifies the
dominant purpose of creating such a forum. It goes
without saying that unapproved teachers need the
protection of this forum more than the approved
teachers.
37. By creating such a forum the University
virtually exercised its authority and jurisdiction as
a loco parentis over teachers-both approved and
unapproved and who are working in various
colleges affiliated with it. The idea is to give such
teachers and employees a protection against any
kind of harassment which they might receive in
their workplace. The creation of such a forum is in
tune with protecting the "dignity of the individual"
which is one of the core constitutional concepts."
31. Thus, it is a condition precedent to analyze the
general words used in a particular provision of the statute
in the context of the statute by giving due regard and
weightage to the intention of the legislature for enacting
the statute before confining the general words with specific
words. As noted above, the object of enacting the Water
Act is not only related to effluent emanating from
industries but also from domestic purposes. Thus, if the
argument of the learned senior counsel for the petitioner is
accepted, it shall exclude the applicability of the power of
the PCB to impose restrictions in relation to domestic
effluent thereby restricting the scope and ambit of the
statutory powers of the PCB, which would totally be
contrary to the object and the intention of the statute.
That being so, it is clearly established that the impugned
notification dated 03.07.2014, is issued by the PCB under
the provisions of Section 25 of the Water Act, and
therefore, the same is valid and legal.
32. Similarly, it is apparent that the PCB is competent
under Section 25 of the Water Act to provide restrictions as
necessitated under the said impugned notification dated
18.05.2015. As regards the second part of the said
notification, whereby it necessitated STP for housing
complexes having built-up areas above 3000 sq. meters,
apt to refer to relevant portion of the Clause 94 of the
Building Byelaws, which reads as hereunder: -
"94. Additional requirements for Multistoried
and special type of buildings.- (1) Service plan
showing the following details-private water,
sewage disposal system and detail of building
services where required by the Authority shall be
made available on scale not less than 1:100 and it
should also include the following :-
(a) For outlet from the soak-pit to municipal drain if
provided an intermediate treatment chamber
should be installed, details of which is to be shown
in service plan, subject to approval of the Authority;
(i) The space for a STP is mandatory to be
proposed in the layout/ service plan and
constructed as per the approved norms and
specifications in case of,-
(i a) residential layouts, areas
measuring 4000 Sq. m. or more;
(i b) group housing/ Apartment houses
if the builtup area measures above
2000 Sq.m. or if the consumption of
water is 20000 liters per day or if it is
a multi-storied building with more than
30 apartment houses;
(i c) commercial Complexes/
Institutional/Hotel and
Lodges/Industrial Buildings etc. if the
built-up area is above 2000 Sq m. or
water consumption is 20,000 liters per
day;
(i d) hospitals/Nursing Homes with 40
or more beds.
The STP is required to be certified by
independent expert accredited by
State Pollution Control Board/
Department of Environment and
Forest, Govt. of Assam before the
project is commenced for operation or
by State Pollution Control Board.
(ii) STP provision for building/ commercial
project, new, development project and
township > 20,000 sq.m. and < 1,50,000
sq.m. of buildup space will be governed by
environmental clearance required as per SO
1533 14th September 2006 notified by
Ministry of Forest, Govt. of India.
(iii) For all other projects requiring prior
environmental clearance the requirement will
be as per the clearance."
33. Reading the aforesaid provision, it appears that
the provision of STP is applicable, inter alia, for group
housing/apartment houses if the built-up areas measure
above 2000 sq. meters, or if the consumption of water is
20,000 liters per day, or if it is a multistoried building with
more than 30 apartment houses.
34. Pertinent that in relation to building permits,
GMDA has provided that NOC is also required to be
obtained from the PCB, among others. Thus, the
notification dated 18.05.2015 appears to be in terms of
Clause 94 of the Building Byelaws. That being so, it is also
established that the impugned notification dated
18.05.2015 is issued by the PCB under the provisions of
Section 25 of the Water Act, read with Clause 94 of the
Building Byelaws, and therefore, is valid and legal. The
aforesaid measures having been taken by the PCB for
preventing and mitigating water pollution, which is crucial
for sustainable development and public well-being, the
same cannot by any stretch of imagination be said to be
arbitrary and unreasonable.
35. In view of the foregoing, the petitioner has failed
to make out any case whatsoever warranting interference
from this Court under Article 226 of the Constitution of
India. Hence, the writ petition fails.
36. Accordingly, the writ petition stands dismissed
and is disposed of.
37. Interim order, if any, stands vacated.
No order as to costs.
JUDGE
Comparing Assistant
