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Do residential complexes need "Consents" from state's Pollution Control Board?

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Brief Synopsis of Delhi Pollution Control Committee Vs. Splendor Landbase Ltd. Judgment passed by Hon’ble Division Bench of Delhi High Court.

Issue: Whether the Developers need to obtain a prior “consent to establish” as required under the Water Act, 1974 and “Consent to operate” as required under Air Act, 1981 while developing (i) Residential Housing complex (ii) Commercial Complex (iii) Shopping Malls?

Relevant Sections: Ss.2(g), (gg), (k), S 25 and S 33A of the Water Act.

: Ss. 2(a)(j)(k), S. 21 and S. 31A of the Air Act.

Observation of the Hon’ble Court:

Meaning of words ‘Operation’ and ‘Process’ as used in Sec. 25(1)(a) of the water Act.

Operation: The word operation as used in the relevant section means activity or an act of a practical or technical nature, with emphasis of the acts forming “a step in a Process”. An operation would be a working or an activity, where the core of the act constituting the activity is of a practical or technical nature especially one forming a step in a process, and since process is an on going on action or a continuous series of action directed at a particular end.

Process: The word Process as used in the relevant section goes on to mean is a going on action or a continuous series of actions “directed at a particular end”.

The conjoint reading of an operation and a process or even if the two have to be read disjunctively would mean to take steps to establish any industry, establishment or undertaking where the operation or process i.e. activity is of a practical or technical nature, at the core of which are on going acts, in a series, directed at a particular end. Thus, the act of ablution in the toilet or washing vegetables and dishes in the kitchen of a residential complex, within the precincts of residential flats, by no stretch of imagination can be called or labelled as an operation or a process.

Findings of the Hon’ble Court qua Residential Housing Complex under Water Act and Air Act:

The Hon’ble Court held that the provisions of Sec 25(1) of the water Act would not apply to the buildings housing residential apartments/units but would apply to all other buildings where effluent or trade effluent is discharged (Commercial Complex and Shopping Malls).

Similarly, the Hon’ble Court also held that the provisions of Sec 21 of the Air Act are not applicable to Residential Housing Complex. The Developers are not required any permission under the Air Act. The Court went to the extent of holding that the concept of “to operate” is not even applicable to a residential Complex.

Findings of the Hon’ble Court qua Commercial Complex and Shopping Malls under Water Act and Air Act:

The Hon’ble Court reached to a different conclusion in respect of Commercial Complex and Shopping Malls. The Hon’ble Court giving an expansive meaning to the word “industrial plant” (as used in sec 21 of the Air Act) held that prior consent, both under the Water Act and the Air Act, would be required when a commercial shopping complex and shopping malls are established.

Observation of the Hon’ble Court qua powers of the State Pollution Board:

The Hon’ble Court held that neither the language of Sec 33A of the Water Act nor the language of the Sec 31A of the Air Act contemplates the power on the State Pollution Control Boards to levy any penalty.

The Court further observed that the power to issue directions under Section 33A of the Water Act and the power to issue directions under Section 31A of the Air Act, does not confer the power to levy any penalty. Under Chapter VII of the Water Act, and under Chapter VI of the Air Act penalties and procedure to levy the same have been set out. A perusal of the provisions under the Water Act would reveal that penalties can be levied as per procedure prescribed and only Courts can take cognizance of offences under the Act and levy penalties, whether by way of imprisonment or fine. Similar is the position under the Air Act. The legislature having enacted specific provisions for levy of penalties and procedures to be followed has specifically made the offences cognizable by Courts and the power to levy penalties under both Acts has been vested in the Courts. The role of the Pollution Control Boards is to initiate proceedings before the Court of Competent Jurisdiction and no more.

The language of Sub-Section 5 of Section 25 of the Water Act makes it plain clear that the only solution to a situation of a building being constructed to establish an industry, operation or process without obtaining prior consent of the State Pollution Control Board is the power of the Board to serve upon the person concerned a notice imposing such conditions as might have been imposed on an application seeking prior consent; DPCC is permitted to inspect the shopping malls and the shopping commercial complexes and if it is found that pertaining to discharge of sewage from these buildings any steps are required to prevent water pollution, DPCC would be authorized to issue notices requiring the owner of the building to take steps in terms of the notice issued. Pertaining to the Air Act, notwithstanding there being no similar provision, but the concept of a post decisional hearing may be made applicable with the modification that no hearing would be required inasmuch as there is no decision, but DPCC should be empowered to inspect the shopping malls and the shopping commercial complexes and pertaining to air pollution, if any deficiencies are found, to notify the same to the owner requiring corrective action to be taken. Needless to state, if the owners of the buildings do not take corrective action, DPCC would always have the power to file criminal complaints before the Courts of Competent Jurisdiction, which Courts would alone have the power to impose fine and additionally impose sentence of imprisonment upon the offending persons.

Decision of the Hon’ble Court:

The Hon’ble Court Setting aside the Judgment of the Single bench declared the action initiated by DPCC pertaining to residential complex as void.

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