UNION OF INDIA AND ORS. Vs. RAJASTHAN STATE BOARD FOR PREVENTION & CONTROL OF WATER POLLUTION AND ORS.

JUDGEMENT

(1.) This is perhaps the oldest writ petition pending before this court in which Union of India and Rajasthan Atomic Power Station have approached this court challenging assessment order dated 04.03.1985 passed by the Member Secretary, Rajasthan State Board for the Prevention and Control of Water Pollution, Jaipur, in the capacity as Assessing Authority, under Section 6 of the Water (Prevention & Control of Pollution) Cess Act, 1977. Also under challenge in the writ petition is the order dated 30.07.1985 by which the appeal filed by petitioner against aforesaid order of assessment has been dismissed by respondent No. 3 - the Appellate Committee, Rajasthan State Board for prevention and Control of Water Pollution, Jaipur. Petitioner No. 2 - the Rajasthan Atomic Power Station (for short, 'the petitioner RAPS') has been set up at Kota in the State of Rajasthan by the Central Government. The Parliament enacted the Water (Prevention and Control of Pollution) Act, 1974 (for short, 'the Pollution Act') for the purpose of prevention and control of water pollution and for maintenance or restoration of the wholesomeness of water and for the establishment of Boards for the prevention and control of water pollution, with a view to carrying out the purposes aforesaid, and for conferring on or assigning to, such Boards powers and functions relating thereto and for matters connected therewith. Section 2(e) of the Pollution Act has defined the word "pollution". Chapter V of the Pollution Act lays down as to how the said powers are exercised in respect of control and prevention of water pollution. The Central Government, in exercise of its powers conferred by Section 63 of the Pollution Act, has made Rules known as the Water (Prevention and Control of Pollution) Rules, 1975.

(2.) The Parliament also enacted the Water (Prevention & Control of Pollution) Cess Act, 1977 (for short, 'the Cess Act'). The Cess Act provides for levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities. Under the provisions of the Cess Act, it is provided that the cess shall be levieded and collected for the purposes of Pollution Act. The cess shall be payable by every person carrying on any specified industry and by every local authority, and shall be calculated on the basis of the water consumed by such person or local authority 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. The amount of cess so collected shall be remitted to the Central Government. Section 8 of the Cess Act stipulates that the proceeds of the cess levied under Section 3 shall first be credited to the Consolidated Fund of India and the Central Government may, if Parliament by appropriation made by law in this behalf so provides, pay the Central Board and every State Board, from time to time, from out of such proceeds, after deducting the expenses on collection, such sums of money as it may think fit.

(3.) Section 3(2)(a) of the Cess Act, as it originally stood at the relevant time, provided that the cess under sub-section (1) of Section 3 shall be payable by every person carrying on any industry. Section 2(c) of the Cess Act defines the word "specified industry" to mean any industry specified in Schedule-I to the Cess Act. Entry 14 of the Schedule-I, at the relevant time mentioned "Power (thermal and diesel) generating industry". Thereafter Entry 14 of Schedule-I was substituted by GSR 377 (E) dated 16.04.1993, and word "hydel" was also included in the bracketed portion aforesaid i.e. "Power (thermal, diesel and hydel) generating industry". Thereafter, by substitution by Act 19 of 2003, Section 2(c) of the Cess Act was substituted to the effect that "industry" includes any operation or process, or treatment and disposal system, which consumes water or gives rise to sewage effluent or trade effluent, but does not include any hydel power unit. This court, for the present case, however, is concerned with assessment period from April, 1984 to March, 1985 and therefore the matter has to be decided on the basis of the provisions and entry in Schedule-I as it existed at the relevant time.