SESHASAYEE PAPER AND BOARD LTD Vs. APPELLATE COMMITTEE CONSTITUTED UNDER SEC 13 OF THE WATER PREVENTION AND CONTROL OF POLLUTION CESS ACT READ WITH RULE 9 OF THE WATER PREVENTION AND CONTROL OF POLLUTION CESS RULES 1978

JUDGEMENT

(1.) THE writ petitioner has questioned the validity of the levy imposed upon it by the respondents under the provisions of the Water (Prevention and Control of Pollution) Cess Act, (36 of 1977 ). It has claimed that it is a scheduled industry, covered under item 11 of Schedule I to the act. THE Government of Tamil Nadu is authorised under Sec. 4 of the Act to appoint and constitute a State Board with effect from such date, being a date not later than six months of the commencement of the Act in the State, under such name as may be specified in the notification and the Government has exercised the said power and constituted a Board originally known as Tamil Nadu prevention and Control of Water Pollution Board and now known as Tamil Nadu pollution Control Board (represented by the second respondent herein), vide notification G. O. Ms. No. 340, Health and Family Welfare Department dated 19. 2. 1982, to function with effect from 27. 2. 1982 onwards. According to the petitioner, as required under Sec. 3 Of the Act read with Sec. 5 thereof and Rule 4 of the Water (Prevention and Control of Pollution) Cess Rules. 1978, it has, as requested by the Board so constituted by the State Government, been furnishing case returns regularly. Various provisions of the Act and the Rules take care of the modalities and the extent of the realisation of the cess by prescribing inter alia that any person or local authority liable to pay cess under the Act, can instal any plant for the treatment of sewage or trade effluent and claim rebate of 70% of the cess. THE petitioner has installed, it is so claimed, a huge effluent treatment plant at a cost of Rupees Fifty lakhs and meeting a cost of about Rs. 6,500 per day primarily as electricity charges besides maintenance, repair and other expenses right from 1. 1. 1379 on it. According to the petitioner, 'the power situation in the State of Tamil Nadu besides being capricious is dismal and it looks as though the petitioner-company is to be content with high levels of power cut during all the 12 months of the year. In view of the uncertain power from the grid and for the purpose of continuous running of the effluent treatment plant, the petitioner-company is compelled to connect the effluent treatment plant to turbo generator sets/diesel generating sets whose power cost is much higher as it involves use of furnace oil for steam generation.' THE effluent, treatment plant, however, has in all effectiveness, filtered and cleared the water discharge of the plants and machineries of the petitioner, clean and clear, and it is used by the farmers to their utmost advantage for irrigating roughly about 500 acres of dry and barren lands, which are otherwise exposed to the vagaries of monsoon. THE water so treated and released by the petitioner-company substantially conforms to i. S. I. specifications for irrigational requirements.' THE petitioner has stated as follows: 'it may not be out of plan to submit here that the superintending Engineer, Southern Minor Irrigation Circle, Ganjam, Berhampur, orissa, who undertook an extensive study of the lands irrigated by the treated effluent of the petitioner-company, and interviewed the agriculturists using the effluent water for quite some time, submitted a report to the Orissa government explaining how about 500 acres of dry and barren lands have been brought under cultivation successfully de novo by using treated effluent discharge by the petitioner-company. It was personally observed by him that the lands irrigated with the treated effluent of the petitioner-company have given normal output per acre without any pest attack whatsoever. In fact, he has recommended to the Orissa Government for utilisation of paper mill effluents from all paper mills in Orissa State for irrigation purposes. He has also recommended that the treated effluent of the petitioner-company can be utilised for paddy cultivation as well as cultivation of Cholam (Mai/a), Sugarcane and Groundnut (copy enclosedannexure 2 ).'

(2.) THE Chief Water Analyst, Principal Public Health laboratory, Coimbatore, attached to the Department of Public Health and preventive Medicine, collected samples of water taken from 14 wells in the effluent irrigated and adjoining areas for analysis and his concluding remarks, according to the petitioner, were as follows: 'as judged by the result of this examination, the effluent docs not show any objectionable features for irrigation as judged by its mineral content, per cent sodium, residual sodium carbonate, PH, BOD, Dil, grease and Boren figures'. THE soil characteristics and its suitability for agriculture has been reported by the Assistant Soil Chemist of Salem Soil testing Laboratory, who has found that there was no adverse effect on the soil characteristics after three years of cane cultivation irrigated with the petitioner's effluent. In long and short the petitioner has claimed that the irrigation with the effluent water, released by it, has. helped in the increase of the yield of sugarcane and plant characteristics. THE petition has taken full care that drinking water is not polluted, that effluent causes no health hazards, that there is no pollution by it to deny to it any amount of rebate, as above, and thus it is entitled to claim the rebate, as above. When however, the petitioner claimed the rebate of 70 per cent, as above, the second respondent assessed the petitioner, without accepting its claim for rebate, as follows: Since the second respondent did not grant to the petitioner 70% rebate, as claimed by it, it preferred appeal under Sec. 13 of the Act, read with Rule 9 thereof before the first respondent, the Appellate committee comprising of three members (1) the Chairman of Tamil Nadu Pollution control Board, (2) Deputy Secretary to Government, Environment Control department, Government of Tamil Nadu and (3) Chief Inspector of Factories (Health and Safety), Government of Tamil Nadu, Madras. THE first respondent, however, rejected all the contentions raised on behalf of the petitioner and declined to extend the benefit of the rebate to the petitioner. THE petitioner has questioned the validity of the assessment without granting to the petitioner the rebate and thus the validity of the assessment by the Second respondent as well as the order of the Appellate Authority.

(3.) THE sheet anchor thus of all the contentions raised in the writ petition is no longer available to the petitioner and it is not possible to hold in agreement with the submissions of the learned counsel for the petitioner that successful commissioning of a plant is a matter coming under the purview of the Pollution Act and so no rule can be made under the cess Act to achieve the purpose of another Act and that cess can be levied by the second respondent from the date of the constitution of the respondent/board and not from an earlier date, i. e. , the date on which the law authorised the respondents to collect cess. It is almost axiomatic that the two enactments arc complimentary to each other and the later, i. e. , Cess Act, has been introduced only for the purpose of facilitating and achieving the objects of the former, i. e. , Pollution Act. It will be difficult, only because no proper mechanism has been created at a certain point of time, to say that the competent authority cannot realise cess unless mechanism for the same is created. Assuming that there cannot be any cess collection unless the mechanism is created, once the mechanism has been created it is open to it to commence realisation from a retrospective date.