Notifications mandating prior consent from the Pollution Control Board for constructions over 3000 sq. meters are valid under the Water Act, ensuring compliance with environmental regulations and not infringing on business rights.

J UDGMENT & O RDER (CAV)

Heard Mr. K. N. Choudhury, learned senior counsel assisted by Mr. T. Kashyap, learned counsel, & Mr. N. Gautam, learned counsel, appearing for the petitioner. Also heard Mr. D. Gogoi, learned standing counsel, Forest Department, appearing for respondent No.2, Mr. S. Barua, learned standing counsel, Pollution Control Board, Assam appearing for respondent Nos. 3, and Mr. P. Nayak, learned standing counsel, Guwahati Municipal Corporation (GMC) appearing for respondent No.4.

2. By way of this petition under Article 226 of the Constitution of India, the petitioner/association is challenging, inter alia, the legality and validity of impugned notification No. WB/G-1025/14-15/01 dated 03.07.2014 and notification No. WB/G-1025/14-15/57 dated 18.05.2015, issued by the Pollution Control Board, Assam (hereinafter referred to as “PCB”), i.e., respondent No.3, whereby it was made mandatory for all ongoing, upcoming, and proposed, inter alia, housing complexes to obtain prior consent from PCB for construction above 3000 sq. meters and for installation/construction of Sewage Treatment Plant (hereinafter referred to as “STP”), respectively.

3. The brief fact of the case is that the writ petition is being filed by the Assam Real Estate and Infrastructure Developers Association (AREIDA), which is a registered society under the Societies Registration Act, 1860 , representing promoters, developers, and builders of housing/ residential complexes.

4. The PCB, by issuing the impugned notification dated 03.07.2014, necessitated a requirement of prior consent from the Board for constructions above 3000 sq. meters, which includes, among others, all ongoing, upcoming, and proposed housing complexes within the State of Assam, as per the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the “Water Act”), and the Environment (Protection) Act, 1986 (hereinafter referred to as the “Environment Act”), along with Rules made thereunder before commencement of the civil works.

5. Thereafter, the PCB, by notification dated 18.05.2015, stipulated that all existing, ongoing, upcoming, and proposed Industrial Units/Processes/Establishment must obtain prior “Consent to Establish” and “Consent to Operate” from the Board in accordance with Section 25 of the Water Act and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 (hereinafter referred to as “Air Act”) and Rules framed thereunder. The said notification, among other things, also stipulated STP for Housing/Commercial/Office Complexes, etc., having built- up areas above 3000 sq. meters. Thereafter, the respondent No.4 and respondent No.5 have withheld all building permission/occupancy certificate applications for buildings above 3000 sq. meters, including for residential purposes demanding NOC from the Board as a prerequisite. It is the specific case of the petitioner/association that due to these actions of the respondent authorities, the business/livelihood of people associated with the real estate business has been affected. Situated thus, the present writ petition.

6. Mr. K. N. Choudhury, learned senior counsel appearing for the petitioner/association, submits that the impugned notifications are violative of Article 19(1)(g) read with Article 19(2) of the Constitution of India and that since the impugned notifications are executive fiat, the same cannot restrict the fundamental right of the members of the petitioner/association to carry on thei