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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.
W.P. (C) No. 543/2008 batch Page 2 of 122 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.
W.P. (C) No. 543/2008 batch Page 3 of 122
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 W.P. (C) No. 543/2008 batch Page 4 of 122 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 W.P. (C) No. 543/2008 batch Page 5 of 122 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, --W.P. (C) No. 543/2008 batch Page 6 of 122
(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-W.P. (C) No. 543/2008 batch Page 7 of 122
(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 W.P. (C) No. 543/2008 batch Page 8 of 122 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 W.P. (C) No. 543/2008 batch Page 9 of 122 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 W.P. (C) No. 543/2008 batch Page 10 of 122 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 W.P. (C) No. 543/2008 batch Page 11 of 122 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 W.P. (C) No. 543/2008 batch Page 12 of 122 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 W.P. (C) No. 543/2008 batch Page 13 of 122 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 W.P. (C) No. 543/2008 batch Page 14 of 122 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. W.P. (C) No. 543/2008 batch Page 15 of 122 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 W.P. (C) No. 543/2008 batch Page 16 of 122 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 W.P. (C) No. 543/2008 batch Page 17 of 122 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 W.P. (C) No. 543/2008 batch Page 18 of 122 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."
W.P. (C) No. 543/2008 batch Page 19 of 122
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. W.P. (C) No. 543/2008 batch Page 20 of 122
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 W.P. (C) No. 543/2008 batch Page 21 of 122 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 W.P. (C) No. 543/2008 batch Page 22 of 122 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 W.P. (C) No. 543/2008 batch Page 23 of 122 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 W.P. (C) No. 543/2008 batch Page 24 of 122 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, W.P. (C) No. 543/2008 batch Page 25 of 122 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 W.P. (C) No. 543/2008 batch Page 26 of 122 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 W.P. (C) No. 543/2008 batch Page 27 of 122 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 W.P. (C) No. 543/2008 batch Page 28 of 122 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 W.P. (C) No. 543/2008 batch Page 29 of 122 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 W.P. (C) No. 543/2008 batch Page 30 of 122 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.W.P. (C) No. 543/2008 batch Page 31 of 122
(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. W.P. (C) No. 543/2008 batch Page 32 of 122
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 W.P. (C) No. 543/2008 batch Page 33 of 122 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.
W.P. (C) No. 543/2008 batch Page 34 of 122 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 W.P. (C) No. 543/2008 batch Page 35 of 122 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.
W.P. (C) No. 543/2008 batch Page 36 of 122
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 W.P. (C) No. 543/2008 batch Page 37 of 122 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 W.P. (C) No. 543/2008 batch Page 38 of 122 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 W.P. (C) No. 543/2008 batch Page 39 of 122 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.
W.P. (C) No. 543/2008 batch Page 40 of 122
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 W.P. (C) No. 543/2008 batch Page 41 of 122 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 W.P. (C) No. 543/2008 batch Page 42 of 122 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 W.P. (C) No. 543/2008 batch Page 43 of 122 (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 (SCC@ 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 W.P. (C) No. 543/2008 batch Page 44 of 122 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.
W.P. (C) No. 543/2008 batch Page 45 of 122
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 W.P. (C) No. 543/2008 batch Page 46 of 122
(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 W.P. (C) No. 543/2008 batch Page 47 of 122 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 W.P. (C) No. 543/2008 batch Page 48 of 122 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, W.P. (C) No. 543/2008 batch Page 49 of 122 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 W.P. (C) No. 543/2008 batch Page 50 of 122 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 W.P. (C) No. 543/2008 batch Page 51 of 122 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 W.P. (C) No. 543/2008 batch Page 52 of 122 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. W.P. (C) No. 543/2008 batch Page 53 of 122
(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 W.P. (C) No. 543/2008 batch Page 54 of 122 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 W.P. (C) No. 543/2008 batch Page 55 of 122 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 W.P. (C) No. 543/2008 batch Page 56 of 122 "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, W.P. (C) No. 543/2008 batch Page 57 of 122 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.
W.P. (C) No. 543/2008 batch Page 58 of 122
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.
W.P. (C) No. 543/2008 batch Page 59 of 122
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 W.P. (C) No. 543/2008 batch Page 60 of 122 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 W.P. (C) No. 543/2008 batch Page 61 of 122 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 W.P. (C) No. 543/2008 batch Page 62 of 122 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. W.P. (C) No. 543/2008 batch Page 63 of 122
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 W.P. (C) No. 543/2008 batch Page 64 of 122 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 W.P. (C) No. 543/2008 batch Page 65 of 122 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 W.P. (C) No. 543/2008 batch Page 66 of 122 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. 543/2008 batch Page 67 of 122 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 W.P. (C) No. 543/2008 batch Page 68 of 122 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.
W.P. (C) No. 543/2008 batch Page 69 of 122
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 W.P. (C) No. 543/2008 batch Page 70 of 122 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 W.P. (C) No. 543/2008 batch Page 71 of 122 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 W.P. (C) No. 543/2008 batch Page 72 of 122 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 W.P. (C) No. 543/2008 batch Page 73 of 122 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 W.P. (C) No. 543/2008 batch Page 74 of 122 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 W.P. (C) No. 543/2008 batch Page 75 of 122 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 W.P. (C) No. 543/2008 batch Page 76 of 122 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 W.P. (C) No. 543/2008 batch Page 77 of 122 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 W.P. (C) No. 543/2008 batch Page 78 of 122 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.