Rajasthan State Electricity Board Vs. Cess Committee & Anr [1990] INSC
305 (8 October 1990)
Ahmadi,
A.M. (J) Ahmadi, A.M. (J) Rangnathan, S.
CITATION:
1991 AIR 597 1990 SCR Supl. (2) 120 1991 SCC (1) 93 JT 1990 (4) 123 1990 SCALE
(2)750
CITATOR
INFO : R 1992 SC 224 (19)
ACT:
Water
(Prevention & Control of Pollution) Act, 1974/The Water (Prevention and
Control of Pollution) Cess Act, 1977/The Water (Prevention and Control of
Pollution) Cess Rules, 1978. Sections 25(1), 26/Section 7/Rule 6-Trade effluent--Treatment
of--Liability to pay cess--Grant or refusal of rebate----Role of Assessing
Authority.
HEAD NOTE:
The
Water (Prevention & Control of Pollution) Act, 1974 was enacted inter alia
to provide for the prevention and control of water pollution, the maintaining
or restoring of wholesomeness of water, etc. Section 25 of the said Act
provides that no person shall without the consent of the State Board, bring
into use any new or altered outlet for the discharge of sewage or trade
effluent into a stream or well, or begin to make any new discharge of sewage or
trade effluent into a stream or well. Section 26 lays down that persons
discharging sewage or trade effluent into a stream or well before the
commencement of the Act shall apply for consent within a period of three months
of the Constitution of State Board. Thereafter the Water (Prevention and
Control of Pollution) Cess Act, 1977 was enacted to provide for the levy and
collection of cess on water consumed by persons carrying on certain industries,
Power (Thermal & Diesel) Generating Industry was one such industry included
at item No. 14 in Schedule I to the Act. Section 3 of the 1977 Act provides
that there shall be levied and collected a cess for the purposes of the 1974
Act and utilisation thereunder. The cess under the Act is made payable by every
person carrying on any specified industry and the same has to be calculated on
the basis of the water actually consumed at rates speci- fied in the Schedule.
Section 7 of the Act provides for rebate.
The appellant
has established a Thermal Power Station on the bank of River Chambal for
generating energy. It consumes water from the river for condensor cooling.
After the water is used for cooling, it is treated as a trade effluent in the neutralisation
plant before it is discharged into the river. According to the appellant, the
temperature, 121 after following the prescribed procedure, is brought down to
below 40 C, when it is discharged into the river. The appel- lant had also
installed a 0.4 MGD plant for treatment of sewage. According to the appellant
both these plants are working satisfactorily. The appellant, as required by the
rules, submitted monthly returns of the water consumed from the river for its
Thermal Station for the period from July 1983 to January 1984 and February 1984
to June 1984. The respondent authority. assessed the cess at Rs.13,13,710 for
the first period and Rs.9,42,013 for the subsequent period.
No
rebate was allowed under Section 7 of the 1977 Act on the ground that the
so-called neutralisation plant was not a plant for the treatment of sewage or
trade effluent within the meaning of the said provision.
The
appellant filed an appeal under section 13, in respect of the cess claimed for
the period July 1983 to January 1984, but the appellate authority dismissed the
same holding that the cess was correctly assessed and that the appellant was
not entitled to rebate. As regards the period from February 1984 to June 1984. the
appellant submitted a review petition which was rejected by respondent No. 2.
Thereupon,
the appellant filed separate writ petitions before the High Court challenging
the assessment orders.
Both
the writ petitions were dismissed by the High Court.
The
High Court opined that there was nothing on record to show that the appellant
had applied for consent of the State Board to install a plant either under
section 25 or section 26 of the 1974 Act nor was there any evidence to show
that such consent was given. It accordingly held that the author- ities under
the Act had rightly disallowed the claim of rebate to the appellant under
section 7. Against the orders of the High Court as also against various
assessment orders which were passed subsequent to the orders of the High Court
the appellant has filed these appeals, after obtaining special leave.
Allowing
the appeals, and remanding the cases to the Assessing Authority for fresh
disposal, this Court
HELD:
A plant has undoubtedly been installed for the treatment of sewage and no
dispute in that behalf was raised. However, as the bulk consumption of water
from the river is used at the condensor cooling plant the question is whether
the appellant can be said to have installed a plant for the treatment of a
trade effluent. [130G] The Appellate Authority took the view that a 150 fl.
long
channel meant for carrying the trade effluent cannot be described as treatment
plant. The appellant contended that the treatment plant installed 122 by it
comprised of an arrangement to lift the water to a height of 2211. and then
drop it from that height into an open channel so that it cools down on coming
in contact with the atmosphere and then flows towards and into the river.
[130H;
131A] Section 7 as well as Rule 6 do not envisage the Board's consent under
Section 25(1) of the 1974 Act as a sine-clua- non. Under Section 7 the consumer
has only to show that he has installed a plant for the treatment of sewage or
trade effluent and that it functioned successfully during the relevant period
to earn rebate. Section 25(1) operates in a different field and has nothing to
do with a plant installed for the treatment of a trade effluent although the
grant of consent to a new outlet can be conditional on the existence of a plant
for the satisfactory. treatment of effluents to safeguard against pollution of
the water in the stream.
[131C-E]
Since the Board's consent under Section 25(1) was not imperative that part of
the High Court's order cannot be sustained. [131E]
CIVIL
APPELLATE JURISDICTION: Civil Appeal Nos. 4843-44 of 1990.
From
the Judgment and Order dated 28.10.1988 of the Rajasthan High Court in D.B.
Civil W.P. No 966of 1986 and 121 of 1985.
Dr.
L.M Singhvi, P. Agarwal, S.K. Jain, Sahid Rizvi and D.K. Singh for the
Appellant.
N.S. Hegde,
Additional Solicitor General, J.D. Jain, R. Mohan, R.A. Perumal, Hemant Sharma,
Ms. A. Subhashini and Ms. Sushma Suri for the Respondents.
The
Judgment of the Court was delivered by AHMADI, J. Special leave granted in all
the cases.
Pursuant
to the resolution passed by certain State Legislatures including that of
Rajasthan under clause 1 of Article 252 of the Constitution, Parliament enacted
The Water (Prevention & Control of Pollution) Act,1974 (Act VI of 1974),
(hereinafter called the '1974 Act'), to provide for the prevention and control
of water pollution, the maintaining or restoring of wholesomeness of water, the
establishment 123 of Boards for the prevention and control of water pollution,
the conferring on and assigning to such Boards powers and functions relating
thereto and for matters connected there- with. 'Pollution', as defined in
section 2(e), means "such contamination of water or such alteration of
physical, chemical or biological properties of water or such discharge of any
sewage or trade effluent or of any other liquid, gaseous or solid substance
into water as may, or is likely to, create a nuisance or render such water
harmful or inju- rious to public health or safety, or to domestic, commer- cial,
industrial, agricultural or other legitimate uses, or to the life and health of
animals or plants or of acquatic organisms". "Sewage effluent"
according to section 2(g) means "effluent from any sewerage system or
sewage disposal works and includes sullage from open drains". "Trade efflu-
ent" according to Section 2(k) includes "any liquid, gaseous or solid
substance which is discharged from any premises used for carrying on any trade
or industry, other than domestic sewage". Section 3, 4 and 13 provide for
the con- stitution of a Central Board, a State Board and a Joint Board,
respectively. Section 16 enumerates the functions of the Central Board
constitution for promoting cleanliness of streams and wells in different areas
of the State. Section 17 sets out the functions of the State Board which,
amongst others, include preparing a comprehensive programme for the prevention,
control or abatement of pollution of streams and wells in the State and for
securing its execution; inspec- tion of sewage or trade effluents, works and
plants for the treatment of sewage and trade effluents: evolving methods for treatment
of sewage and trade effluents and for the disposal thereof and laying down
standards of treatment of sewage and trade effluents to be discharged into any partic-
ular stream. Sections 21 and 22 confer power on the State Board or any officer
empowered by it to take for the purpose of analysis 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 any other place into any stream or well and to send
the samples for analysis to the Laboratory established or recognised for that
purpose by the concerned Board. Section 24 prohibits the use of any stream or
well for the disposal of polluting matters. Section 25 imposes restrictions on
new outlets and new discharges.
Section
25(1) reads as under:
"Subject
to the provisions of this section, no person shall, without the previous
consent of the State Board, bring into use any new or altered outlet for the
discharge of sewage or trade effluent into a stream or well, or begin to make
any new discharge of sewage or trade effluent into a stream or well." 124
Under these provisions the application for consent has to be made to the State
Board in the prescribed form containing the particulars relating to the
proposed construction, installation or operation of any treatment or disposal
system or of any extension or addition thereto. Sub-section (7), which is
relevant for our purpose, reads as under:
"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." Section 26 provides that persons discharging sewage
or trade effluent into a stream or well before the commencement of the Act
shall apply for consent within a period of three months of the constitution of
the State Board. If the State Board refuses to grant consent or withdraws
consent already granted an appeal is provided to the appellate authority.
Section
29 confers revisional powers on the State Government to call for the records of
any case where an order has been made by the State Board under Sections 25, 26
and 27 for the purpose of satisfying itself as to the legality or propriety of
any such order. Failure to comply with the requirements of the statute is
punishable under Chapter VII. Thus, this law aims at prevention and control of
water pollution.
On 7th
December. 1977, the President gave his assent to the Water (Prevention and
Control of Pollution) Cess act,1977(Act No. XXXVI of 1977), (hereinafter
referred to as 'the 1977 Act'). This Act was enacted to provide for the levy
and collection of a cess on water consumed by persons carrying on certain
industries, with a view to augment the resources of the statutory Boards for
the prevention and control of water pollution. Section 2(c) defines
"specified industry" to mean "any industry specified in Schedule
I".
Power
(Thermal & Diesel) Generating Industry is included at item No. 14 in
Schedule I to the Act. Section 3 which is the charging section inter alia
provides that there shall be levied and collected a cess for the purposes of
the 1974 Act and utilisation thereunder. The Cess under sub-section (1) is made
payable by every person carrying on any specified industry to be calculated on
the basis of water actually consumed for any of the purposes specified in
column 1 of Schedule II, at such rate not exceeding the rate specified in the
corresponding entry in column 2 thereof. Schedule II enumerates in column 1 the
purposes for which water is consumed and sets out the maximum rate of cess
therefore in column 2. The rare of cess for industrial cooling is three-
fourths of a paisa, per 125 kilolitre, while it is one paisa per kilolitre for
domestic purpose. Where water gets polluted and the pollutants are easily
bio-degradable, the rate is 2 paise per kilolitre but where the pollutants are
not easily bio-degradable and are toxic, the rate is two and a half paise per
kilolitre. It is obvious that the rate of cess depends on the degree of
pollution. It may also be noticed at this stage that the cess is to be
calculated on the basis of the water 'con- sumed' for any of the purposes
specified in column 1 of Schedule II at the rate set out in the notification
issued by the Central Government not exceeding the rates specified in column 2
of the said schedule. Section 4 provides for affixing of meters for the
purposes of measuring and record- ing the quantity of water consumed. Section 5
requires every person carrying on any specified industry and every local
authority, liable to pay the cess under section 3, to fur- nish returns in such
forms and at such intervals containing such particulars as may be prescribed to
the officer or authority appointed therefore. The officer or authority to whom
the return has been furnished under section 5 is charged with the duty to make
an inquiry as to the particu- lars stated in the return and then pass an
assessment order stating the amount of cess payable by the concerned person or
local authority, as the case may be. Section 14 pre- scribes a penalty for
failure to file a return and section 11 provides a penalty for failure to pay
the cess within 'the specified time. Any person or local authority aggrieved by
an order of assessment made under section 6 or by an order imposing penalty
under section 11, may file an appeal under section 13 within the prescribed
time. Section 7 provides for a rebate if the cess is payable. It reads as
under:
"Where
any person or local authority, liable to pay the cess under this Act, instals
any plant for the treatment of sewage or trade effluent, such person or local
authority shall from such date as may be prescribed, be entitled to rebate of
seventy per cent of the cess payable by such person or, as the case may be,
local authority." The expressions 'sewage' and 'trade effluents' having
not been defined would have the same meanings respectively assigned to them
under the 1974 Act. Section 17 empowers the Central Government to make rules
for carrying out the pur- poses of the Act. Under that section, the Central
Government made the Water (Prevention & Control of Pollution) Cess Rules,
1978, (hereinafter called 'the Rules'). Rule 6 there- of deals with rebate.
Under that rule where a consumer instals any plant for the treatment of sewage
or trade effluent such consumer becomes entitled to the rebate under section 7
on or from the expiry of 15 days from the 126 date on which such plant is
successfully commissioned and so long as it functions successfully.
The
appellant, the Rajasthan State Electricity Board constituted' in 1957 under
section 5 of the Electricity (Supply) Act, 1948, established a Thermal Power
Station on the bank of River Chambal in Kota for generating energy. It admittedly
consumes water from the river for Condensor Cooling. The water drawn from the
river is filtered and thereafter passes through an enclosed pipeline over the condensor
unit for cooling the condensor, After the water is used for cooling, it is
treated as a trade effluent in the neutralisation plant installed by the
appellant at consider- able expense with a view to preserving the wholesomeness
of water before it is discharged into the river. After conden- sor cooling, the
water passes through an enclosed under- ground steel pipeline of the length of
about 478 meters upto the seal pit. On reaching the seal pit the water is
pumped to a height of about 22 feet from where it is made to fall into an open
channel and is then carried in that channel to a distance of about 150 feet
before it plunges into the river. In this manner the water at the seal pit
comes in contact with air. Its temperature is reduced firstly by the 22 feet
fall into the open channel and thereafter by cover- ing a distance of about 150
feet before getting merged in the river or stream. The temperature is thus
brought down to below 40 deg.C, the standard prescribed under the Minimum
National Acceptable Standards published by the State Board.
The
appellant had also installed a 0.4 MGD plant for treat- ment of sewage. Both
these plants, contends the appellant, are working satisfactorily.
The
appellant submitted monthly returns of the water consumed from river Chambal
for its Thermal Station, units 1 and 2, for the period from July, 1983 to January,
1984 and February, 1984 to June 1984. The Assessing Authority, re- spondent No.
2, assessed the cess at Rs. 13, 13,710 for the first period and Rs.9,42,013 for
the subsequent period. No rebate was allowed under section 7 of the 1977 Act on
the ground that the so-called neutralisation plant was not a plant for the
treatment of sewage or trade effluents within the meaning of the said
provision. Nothing was said about the plant for the treatment of sewage. The
appellant filed an appeal under section 13 in respect of the cess claimed for
the period from July, 1983 to January, 1984. The appel- late authority
dismissed the appeal holding that the cess was correctly assessed and the
appellant was not entitled to rebate. In respect of the assessment for the period
from February, 1984 to June, 1984 the appellant submitted a review petition
which was rejected by respondent No. 2. The appellant then preferred an appeal
but the 127 same was dismissed as barred by limitation. The appellant preferred
separate Writ Petitions Nos. 12 1/85 and 966/86 in the High Court challenging
the two assessment orders. In the former writ petition the High Court granted
interim stay against the recovery of the disputed cess amount to the extent of
seventy percent till the disposal of the writ petition. In the second writ
petition since the appellant had already paid the amount of cess, the
application for stay did not survive but for future assessment orders, it
directed the appellant to pay thirty percent regularly and the remaining seventy
percent with interest at 15% per annum in the event the challenge failed. Both
the aforesaid writ petitions were finally disposed of by a Division Bench on
28th October. 1988 which dismissed them holding that the cess was correctly
assessed and the appellant was not enti- tled to rebate. In taking this view
the Division Bench came to the conclusion that there was no material on record
to show that the appellant had applied for consent of the State Board to instal
a plant either under section 25 or section 26 of the 1974 Act nor was there
evidence to show that such consent was given. It, therefore, opined that the authori-
ties below had rightly concluded that the benefit of rebate under section 7 was
not admissible to the appellant. While dismissing the writ petitions the
Division Bench, however, observed as under:
"Anyhow
if the consent after the period of assessment in dispute has either been
obtained for discharge of effluent etc., or can be deemed to have been obtained
and if the treatment plants are working satisfactorily, the petitioner shall be
entitled to rebate according to the provisions of rules for that period."
It follows therefrom that the Division Bench refused to grant rebate to the
extent of seventy per cent for want of consent under section 25 or 26 of the
1974 Act.
Feeling
aggrieved by the Judgment and order passed by the Division Bench of the High
Court, the appellant pre- ferred special leave petitions (Civil) Nos. 1429 and
2157 of 1989 challenging the dismissal of the said two writ peti- tions. During
the pendency of these proceedings several assessment orders came to be made for
the subsequent periods upto may, 1989 for the water consumed at the appellant's
Thermal Units. The Assessing Authority also refused to grant rebate, The appellant
preferred appeals against the assess- ment orders passed from time to time but
to no avail. In- stead of approaching the High Court the appellant has filed
Special Leave Petitions Nos. 3223, 3262, 128 3272, 4599 and 4600 of 1990 in
this Court against the said assessment orders as well as the refusal to grant
rebate on the ground that similar questions were involved in the earlier two
special leave petitions which were pending in this Court. We have granted
special leave in all cases under Article 136 of the Constitution and we now proceed
to dis- pose them of by this common Judgment.
Dr. Singhvi,
the learned counsel for the appellant con- tended that the 1977 Act was an
independent piece of legis- lation and was not, what he called, 'the pari materia
or parasite legislation' to the 1974 Act, and hence once it is shown that the
appellant had installed a plant for the treatment of a trade effluent within
the meaning of section 7 of the 1977 Act read with rule 6 of the Rules, the appel-
lant was entitled to rebate regardless of whether or not the appellant had
secured the consent of the State Board under section 25(1) of the 1974 Act. He
contended that the State Board's consent became necessary only if an outlet new
or altered- was sought to be used for the discharge of sewage or trade effluent
in the stream and not otherwise. In the present case, contended Dr. Singhvi,
the appellant had put up an independent sewage plant for the treatment of
sewage and an independent neutralisation plant for the treatment of water
discharged from the condensor cooling plant of the Thermal Station. So far as
the former is concerned the consumption of water is negligible; the bulk
consumption takes place at the condensor cooling plant from where water is
discharged after use at a temperature far above the standard of 40 C, which if
discharged into the stream with- out treatment would be harmful and injurious
to acquatic organisms in the stream. That is why the neutralisation plant was
necessary to bring down the temperature of water to 40C or below before its
actual discharge in the stream.
At the
point where this water merges into the stream its temperature is below 40 C and
therefore it ceases to be a contaminated trade effluent. Since the outlet is
used for the discharge of this water which is no more polluted it cannot be
said that it is used for the discharge of a trade effluent within the meaning
of section 25(1) of the 1974 Act. According to Dr. Singhvi the enactment being
essential- ly for the prevention, control and abatement of pollution of streams
and wells. the duty to ensure the purity of streams and wells is cast on the
State Board and for the effective performance of the same, section 25( 1)'
provides for previ- ous consent if any new or altered outlet is intended to be
brought use for the discharge of sewage or trade effluent.
But no
such previous consent would be necessary if uncontam- inated water is sought to
be discharged into the stream. In other words according to Dr. Singhvi the
expression 'trade effluent' in section 2(k) must be read 129 in the context of
the purpose and object of the law and the mischief it seeks to curb. Yet, by
way of abundant caution, the appellant applied for the grant of consent under
section 25/26 of the 1974 Act by the letter dated 9th April, 1984 for the neutralisation
plant and by the letter dated I2th April, 1984 for the sewage plant meant for
the colony of workmen situate within the power Station. Under sub-section (7)
section 25 since the State Board neither granted nor refused consent within the
period of four months from the receipt of the applications, it must be deemed
to have been granted unconditionally on the expiry of the said period.
Lastly,
he pointed out that during the pendency of the two writ petitions in the High
Court, the Secretary of the State Board granted the required consent and
conveyed it by his letter No. F. 5(B-I4)RSEB/Tech/86/11472 dated 24th March,
1988. Therefore, when the Division Bench of the High Court disposed of both the
writ petitions the consent of the State Board under section 25(1) was already
granted and hence the High Court was not right in making the observations it
made in paragraphs 7 and 9 of the impugned judgment.
We may
clarify that in the present appeals we are not concerned with the legality and
validity of the levy of cess. Dr. Singhvi, however, stated that the appellant
re- served the right to challenge the validity of the 1977 Act, if the
interpretation placed by the authorities below on the true scope and meaning of
section 7 read with rule 6 is found to be correct. We may state that since we
are not required to go into the question of Parliament's competence to enact
the 1977 Act, we do not propose to delve into this aspect of the matter.
Now,
on a plain reading of sub-section (1) of section 25 it becomes clear that the
previous consent of the State Board is necessary where any new or altered
outlet is pro- posed to be used for the discharge of sewage or trade efflu- ent
into a stream or well. If what is discharged in the stream or well is not a pollutted
'trade effluent' (section 2(k)) or a 'sewage effluent' (section 2(g)), can
there be any question of seeking the previous consent of the State Board? The
appellant has a separate sewage plant. Since the bulk of the water is consumed
at the condensor cooling plant and the same is recycled into the stream, the
question is whether what is discharged in the stream can be said to be a trade
effluent? Dr. Singhvi emphasised that the consent of the State Board would not
be necessary under section 25(1) for the discharge of that recycled water,
unless it is shown that what the appellant discharged in the stream or river
was polluted water, According to Dr. Singhvi, the use of water at the condensor
cooling plant merely raises the temperature of water above the tolerance limit
130 of 400 C. if the water is discharged in the river or stream before its
temperature is reduced to 400 C or below, it may well be contended that within
the broad meaning of the expression 'pollution' in section 2(e), it was
imperative for the appellant to obtain the previous consent of the State Board
for making use of that outlet. But if, on the other hand, it is shown that the
temperature of water is brought down to the prescribed standard and the water
is no more harmful or injurious to acquatic organisms in the river or stream
i.e. is not polluted, the discharge of such water cannot be equated with
discharge of a trade effluent. This raises a mixed question of law and fact,
viz., whether the recycled water returned to the stream in the same condition
in which it was drawn with the temperature reduced to less than 400 C, can
still be said to be a 'trade effluent' requiring consent under Section 25( 1)?
It may, in this context be mentioned that samples of the trade effluent were
collected by the State Board for analysis on 24th May, 1984.
By
letter dated 3rd
December, 1984, the
appellant requested the Assistant Engineer, State Board, to supply a copy of
the analysis report which was refused by the letter dated 26th December, 1984. The appellant was informed that
the monitor- ing results conducted by the Board .were not supplied to the
concerned industries. He added that the appellant could get the sample tested,
if so desired, at the Board's Laboratory on payment basis. We think that if the
Board was in posses- sion of this vital information, it should have in all
fair- ness brought it on record rather than withhold it. If that information
was available on record Dr. Singhvi's contention could have been met. We are, however,
not inclined to raise any adverse inference as was suggested.
We now
come to the second limb of Dr. Singhvi's submis- sion. According to him,
section 7 of the 1977 Act is not dependent on the Board's consent under section
25(1) of the 1974 Act. In fact neither section 7 nor rule 6 speak about the
same. All that section 7 says is that any person or local authority which is
liable to pay cess can claim rebate of 70% of the cess payable by him or it, if
he or it has installed a plant for the treatment of sewage or trade effluent,
as the case may be. A plant has undoubtedly been installed for the treatment of
sewage and no dispute in that behalf was raised before us. However, as the bulk
consump- tion of water from the river is used at the condensor cool- ing plant
the question is whether the appellant can be said to have installed a plant for
the treatment of a trade effluent. The Appellate Authority took the view that a
150 ft. long channel meant for carrying the trade effluent cannot be described
as a treatment plant. The appellant contended that the treatment plant
installed by it comprises of an 131 arrangement to lift the water to a height
of 22 ft. and then drop it from that height into an open channel so that it
cools down on coming in contact with the atmosphere and then flows towards and
into the river. It would appear that this arrangement was not specifically
brought to the notice of the authorities below including the High Court and it
seems the authorities decided the question of the existence of the treatment
plant on the premise that it consisted of merely a single 150 ft. long channel.
However, this aspect has to be looked into.
The
High Court has, however, taken the view that in the absence of consent under
Section 25( 1 ), the appellant is not entitled to rebate. We find it difficult
to agree with this view. Section 7 as well as Rule 6 do not envisage the
Board's consent under Section 25(1) of the 1974 Act as a sine-qua-non. Under
section 7 the consumer has only to show that he has installed a plant for the
treatment of sewage or trade effluent and that it functioned successfully
during the relevant period to earn rebate. Section 25(1) operates in a
different field and has nothing to do with a plant installed for the treatment
of a trade effluent although the grant of consent to a new outlet can be
conditional on the existence of a plaint for the satisfactory treatment of
effluents to safeguard against pollution of the water in the stream. The High
Court refused the claim for rebate as it erroneously thought that the prior
consent of the State Board was a must. That is why in the concluding part of
the Judgment it observed that if the consent is subsequently obtained or deemed
to be obtained and the plant is working successfully, the appellant will be
entitled to rebate.
Since
we are of the view that the Board's consent under Section 25(1) was not
imperative, we think that that part of the High Court's order cannot be
sustained.
So far
as the 1977 Act is concerned it would be neces- sary to consider the true scope
and meaning of section 7 and rule 6. On a plain reading of the said provisions
it would be necessary to decide (i) whether water discharged from the condensor
cooling plant can be said to be a 'trade effluent' by reason only of the fact
of its temperature being above the prescribed standard, (ii) whether but for
the treatment given to it as described by the appellant and set out above such
water would have been discharged in the stream or river at a temperature above
40 deg.C, and (iii) whether the ar- rangement made by the appellant as set out
above can, there- fore, be described as a plant for the treatment of a trade
effluent. These and the related questions must be answered to effectively deal
with the appellant's claim for rebate.
The
authorities below including the High Court have not applied their minds to
these essential for deciding the question of grant or refusal of 132 rebate. If
it is found that the plant in question is one for the treatment of a trade
effluent, the appellant would be entitled to rebate notwithstanding the absence
of consent under section 25(1) of the 1974 Act. We feel that the par- ties did
not focus their attention on these vital aspects and, therefore, failed to
place on record the material essential for deciding the application for grant
of rebate.
In the
circumstances, we are left with no alternative but to remit the matter to the
Assessing Authority with a direction to permit the appellant as well as the
State Board to place on record such material as is considered relevant and
there- after give the parties an opportunity of being heard before deciding the
matter. The Assessing Authority should do so without being influenced by the
previous orders of the authorities as well as the High Court. In the meantime
i.e.
till
the Assessing Authority decides the matter afresh, the appellant will continue
to pay 30% of the cess amount and will file an undertaking in this Court within
eight weeks from today to the effect that in the event the appellant is finally
found liable to pay the balance of 70% the appellant will pay the same with
interest at 15% per annum within six months from the final determination. The
appeals are allowed accordingly. Having regard to the facts and circumstances
of these cases, we make no order as to costs.
Y. Lal
Appeals allowed.
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