SHADI LAL ENTERPRISES Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These writ petitions involve common fact situations and common questions of law. The controversy raised in all the cases relates to claim of refund of the amounts stated to have been paid by the petitioners as water cess under the provisions of the Water (Prevention and Control of Pollution) Cess Act, 1977 (Act No. 36 of 1977) (hereinafter referred to the Act).Therefore, with the consent of learned counsel for parties, they were heard together and they are being disposed of by this common judgment. For the purpose of convenience Civil Misc. Writ Petition No. 13701 of 1993 is taken as the leading case.

(2.) The petitioners in all the cases are owners of industrial units manufacturing sugar from sugarcane and liquor/alcohol from molasses, which is a by product in the process of manufacture of sugar. On the demand made by the State Government through the Cess Officer/Assessing Authority of the U.P. Pollution Control Board, Lucknow (hereinafter referred to as the Board), the petitioners were required to pay water cess under the Act. The petitioners raised protest against the demand mainly on the ground that sugar industry and distillary were not industries covered by Item No. 15 of Schedule I of the Act and consequently they are not liable to submit any return or make any payment of water cess under the Act. When their protests were not heeded to by the authorities concerned, who persisted on the demand for payment of water cess, the petitioners paid the amount under protest. They filed writ petitions in this Court (being writ petitions Nos. 3558 of 1980, 494 of 1980, and 17646 of 1986, no writ petition was filed by the petitioner of Writ Petition No. 9046 of 1993). The writ petitions were dismissed. Thereafter, the petitioners filed applications for leave to file appeals before the Supreme Court which were disposed of by the judgment in M/s. Saraswati Sugar Mills v. Haryana State Board with Upper Doab Sugar Mills Ltd. v. Union of India, AIR 1992 SC 224. The Supreme Court reversed the decision of this Court and held, inter alia, that the sugar manufacturing industriesto do not come within within Entry 15 of the Act.

(3.) After the judgment of the Supreme Court was rendered, the petitioners made representations to the Board and the Cess Officer/Assessing Authority of the Board for refund of the amounts illegally realised from them as water cess. Despite repeated representations there was no response from the Board and its authorities. Under such compelling circumstances, the petitioners filed the writ petitions seeking a mandamus to the respondents to refund the amount in question along with interest at the rate of 18% per annum. It is the cess of the petitioners that they have themselves borne the liability of the illegal demand of water cess and they have not passed on the said liability to the customers.