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 7 8144/08, 8145/08, 8 146/08, 8147/08, 8 148/08, 8 149/08, 9040/08, .464/09, 465/09, 508/09, 509/09, 5 10/09, 511/09 5 525/09, 794/09, 7575/09, 8208/09, 8751/09, 10860/09, 3095/08, 4319/08, 4321/08, 4322/08 1 4323/08, 4330/08 5 4333/08, 3905/08, 8789/08, 8901/08, 9128/09 & 1391/2010 Reserved on: 1 i th August 2010 Decision on: 30th September 2010 SPLENDOR LANDBASE LTD :Petjtj01r 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 5 4321/08 5 4322/08, 4323/08, '4330/08, 4333/08. Mr. Sanjay Goswaini with Mr. H.K. Balajee, Advocates for WP (C) Nos. 2714/08, 2771/08, 2772/08, 7081/08, 3815/08, 8143/08 5 8144/08, 8145/08, 8146/08,: 8147/08, 8148/08, 9040/08, 508/09, 509/09, 510/09, 511/09, 794/09, 8208/09 1 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 Petitionerin WP (C) 8149/08. Mr. Sanjay K. Shandilya with Ms. Ekta Mchta, 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) 9 128/09, 464/09, 890 1/08, 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, 5 11/09 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, 8 145/08, 8 146/08, 8 147/08, 8 148/08. W.P. (C) Na. 54312008 batch . Page 1 of 122 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified Q'11 Mr. Darpan Wadhwa with Ms. Divya Jha, Advocate for GNCTD in WP(C) 543/08,. 2714/08, 7081/08, 8148/08. Mr. TBaldev 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) 875 1/09, 10860/09. Mr. AtulNanda 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 newspapers be allowed to see the judgment? To be refrted to the Reporter or not? Whether the judgment should be reported in the Diget? 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. 54312008 batch . Page 2 01122 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 compieçé 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 (ETA) notifications in terms of the EnvirOnment (Protection) Act, .1986 S (EPA). The ETA norms with which they are expected to comply are set out in the ETA notification dated 27thi 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 cornple.x is of a built. up area of.over 20,000 sq.rn, is whether indepe.ndent of the lilA clearance obtained by such petitioners from the Government of India in the Ministry of Environment and Forests ("MoEF'), a separate consent to establish i.nder the Water.• Act and a consent to operate under the Air Act . ,would ne'ertheless be required to be obtained from the DPCC. 1.4 Anothfr issue, common to some of these petitions is the \'alidity of the. levy by t e DPPC of penalties, fines and environment damages jn the form of fxed 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. 54312008 batch Page3of 122 -T ...................................................... -,. • • 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 cdmrnercial complexes, shopping mal l and even residential. comp1ees is covered under both the Air Act and the Water Act and the failur to obtain prior ôohsent 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 . 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 Statemeht of • Objects and Reasons ('SOR') to the'Water Act as it was,first enacted on 23td March 1974 referred to a Committee set up in 1962 to draw iup a. H • draft enactment for the prevention of water pollution. The SOR noted that • "the problem of pollution of rivers and streams has assumed cOnsiçIcab!e • 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. 54312008 batch . . Page 4 of 122 . .............................. .' . ... .'. • . .. • H , considered by the Central..Council of Local Self-Government. Basbd 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 chnges in 1978 and. thereafter in; 1988. Section 25 of the Water Act in its preent 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 preselItIl purposes, reads as under: . S "2. The Water Act is implemented by the Central and State Governments and the Central and State Pollution Contrdl 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 havb been thoroughly examined in bonsültation 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 Parlianient to aniend 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 amendnents to the, Act, namely:' "(iii) it is proposed to make it obligatory on the' part of a person W.P. ( No. 54312008 batch - Page5of 122 / to obtain the consent of the relevant Board foi 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 th prescribed conditions; . . . (vi) it is proposed to empower the Boards to give directions to any person, offier or authority including the power. to direct closure on regulation of . '.o.ffending 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 cntral issues in these petitions is whether there is statutory requirement in' terms of Section 25(1).(a) of the Vater 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 requirment reads as under: "25. Restrictions on new outlets and new discharges. H Subject to the provisions of this section, no person shall, without the previous consent of the State Board, W.P.(C)No 54312008 batch Pageóof 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 dis.charge 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 theprocess of taking any steps to establish any •industr.y, 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 rnonths from such commencement 'or, if he has made an application 'for sudh consent, within the said period of three months, till the posal of such application. n application for consent of the State Board. under sib- on (1) shall be made in such form,, contain such particulars thall be accompanied by such fees as may be prescribed. Phe State Board may niake such inquiry as it may deern.fit spect of the application for consent re'ferred to in sub- on (1) and in making any such inquiry shall follow such edure as may' be prescribed. Phe State Board may- grant its onsent referred to in sub-section (l),subject to such conditions as it may impose, being- • 543/2008 batch . ... Page 7 of 122 . in cases Teferred 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 s&wage; 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 that the consent will be valid only for such peri9d 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 etension or addition thereto, or using the new. or altered outlet, or discharging the effluent from the lard or premises aforesaid; or (b) refuse such consent for reasons to be recorded in writing. 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 outlt 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 ithposed on an application for its consent in respect of such establishment, such outlet or discharge. Every State Board shall maintain a register containing particulars of the conditions imposed under this section and so W.P. (C) No. 54312008 batch Pages of 122 - --------•:-r--n----------- WI much of the register as relates to any outlet, or to 'any effluent, from any land oi 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 subje& to such conditions: (7)Theconsent referred to in sub-section (1) shall, unless giveli or refused earlier, be deemed to have been .givn 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- the expression "new or altered Outlet" ineans any outlet which is wholly or partly constructed On or after 'the comrnericement of this Act or which (whether, so constructed or not) is substantially altered after such commencement; the e4resion "new discharge" means a discharge which is not, as , respects the . nature ' and 'composition, temperature, volume, and rate of discharge of the effluent S . 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 Secti'oi W.P. (C) No. 54312008 batch ' " " . . Page 9 of 122 . . ............ .. 25. (1) of the Water Act, the definitions therein of the terms "outlet" occurring in Sectioh 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 subrnission made by Mr. Sorabjee, learned Senior counsel on behalf of the Petitioners is that the requrernent of obtaining prior. consent to establish in terms ofSection 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.ervic.es. 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. 54312008 ba.tch • • •• • • " PagelO of 122 •1 - 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 "indistry" have to beread 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 industiies such as chemical industries, metallurgical, industry, engineering industry and on are meant to be covered by the Water Act. Consequently, it is argued that Section 25 (l)'of the Water Act is not attracted in any of the p'rescni cases. 0 10. It must be noticed that the definition of trade effluent' under Setiori 2(k)undérwent a change with the Amendment Act .No. 53 Of .1988. The definition of 'trade effluent' in the unamended Section 2(k) contained i.1i words "carrying on any trade or industry" following the words . .any premises used for.." This was. replaced by the words " .....om 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 dipoal system. What stood excluded from the definitjon of 'trade effiuen.' was H "domestic sewage". The word 'sewage' itself has been defined lunde.i' Section 2(g) to mean effluent from any sewerage system or, sewage disposal works and includes sullage produced from open drains. The': woid sewage' when qualified by, the word domestic' should necessai i W.P. (C) No. 54312008 batch , . . . Page 11 of 122 ., ..............T ..---- ............- -.---- .,---.-'- - .---.-...- -.... ..... 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 intnded 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 kitchehs ,and bathrooms of residential ornp1exes and retail sales' in shops ,and restaurants and activities in the rest rooms of commercial shopping complexes and malls. 12. Thedefinition of the words "operation" and "process" as occurring in the New Shorter Oxford English Dictionaty (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 , ' ' ' ' ' Pagel2ofl22 i forming a step n 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 aparticular end. 13. Under Section 25(1) (b) Water Act if the operation, processor the process that is proposed to be established brings into use "any new or, altered outlet for the discharge of sewag" then Section 25(1) wi1lstand 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 éorne up in urban metropolises in the recent past. More significant is the size of such commetcial/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 presnt batch o:f writ petitions. The volume of sewage that such residential and W.P. (C) No. 54312008 batch' ' . Page 13 of 122 commercial complexes and shopping malls are likely to discharge into the sewage system would indeed be enormous. The rcognition 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 poIlution. Purposive cons fruction . . 15. In the considered view of this Court, it is not pssible to place a narrow construction on the words "operation" and "process" occurring in Section 25(1) of the Water Act. The words 'operation or proçes" occurring in Section 25(1) (a) have to be given the widest posibe meaning and scope. This approach is consistent with the SOR of the, 198 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 keneris is therefore inapposite in the context. On the other hand the principle of purpdsive . 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 knqwn as the purposive constru.ction, that is to say the Courts should identify tile 'mischief that existed before passing of the statute and then if rnor than one construction is possible, favour that which will eliminate the mischief so identified." In Pepper v. Hart (1993)