vil Appeal No 277 1 of 1981
From the Judgment and Order dated 521980 of the Andhra Pradesh High Court in S A
No 526 of 1977
Jagdish K Agarwal NP for the Appellant
A Subba Rao for the Respondents
KANIA J This is an appeal by special leave from the decision of a learned Single Judge of the Andhra Pradesh High Court in Second Appeal No 526 of 1977
As we are with respect in agreement with the conclu sions arrived at by the learned Single Judge of the High Court we propose to set out only the bare facts essential for the purposes of our judgment
The appellant was the plaintiff and the respondent was the defendant in Suit
OS No 789 of 1973 filed in the Court of the Third Assistant Judge City Civil Court Hyd erabad
The appellant prayed for a decree for recovery of possession of the suit premises from the respondent and for mesne profits till the delivery of possession of the prem ises
The case of the appellant was that she was the owner of the suit premises and the respondent was in the occupa tion of the said premises on payment of Rs30 per month
The respondent had been 215 irregular in the payment of the said rent and had been a source of perpetual nuisance
It was on this ground that the eviction of the premises was sought by the appellant
In his written statement the respondent took a preliminary objec tion that the City Civil Court had no jurisdiction to enter tain the suit as the suit fell within the jurisdiction of the Rent Controller at Hyderabad
Two petitions had earlier been filed by the appellant before the Rent Controller for eviction of the respondent and the Rent Controller had rejected the same on the ground that the purported tenancy of the respondent was hit by section 3 of the AP Rent Control Act and hence the eviction suit was not entertain able by the Court of Rent Controller
This conclusion was arrived at on a plea to the said effect taken by the re spondent
In the Court of learned Third Assistant Judge of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain the suit
Certain pleas were made regarding amendments in the law with which we are not con cerned in this appeal
What is material to note for our purposes is that the learned Assistant Judge took the view that as the respondent had before the Rent Controller taken up the plea that it was not the Rent Controller but the City Civil Court which had the jurisdiction to entertain the eviction petition against him and the said plea was upheld it was not open to the respondent to take up the inconsistent plea before the City Civil Court that it was the Rent Controller and not the City Civil Court which had jurisdiction to entertain the proceedings
It was held that the respondent could not be allowed to approbate and repro bate and that he was estopped by way of pleading to take up an inconsistent plea regarding jurisdiction
On the basis of this conclusion and other conclusions with which we are not concerned the suit was decreed by the learned Assistant Judge in favour of the appellant
The decision of the learned Assistant Judge was upheld in an appeal filed by the respondent in the Court of the learned Additional Chief Judge of the City Civil Court at Hyderabad
On a second appeal preferred by the respondent the learned Single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise
If the City Civil Court has no jurisdiction to entertain the suit the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court
On the question of jurisdiction the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller
216 Learned counsel for the appellant submitted that the learned Judge of the High Court was in erroras the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent constituted res judicata between the parties on the question of jurisdiction
It was submitted by him that even if that decision was wrong the issue of jurisdiction was finally decided between the par ties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to enter tain and dispose of the suit for eviction
He further sub mitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdic tion to entertain the suit
He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Others vs Jagjit Singh and Another  which took the view that the Civil Court s decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit
In that case the Civil Court declined jurisdiction
The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court
When the claim was filed in the Revenue Court the Court took the view that it had no juris diction to try the claim
Thereupon a suit was again insti tuted in the Civil Court for the lame relief
This suit failed throughout on the ground of res judicata
Ihe High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view hat the principles of res judicata were applicable to the issue of jurisdiction
In our opinion the contention of learned counsel for the appellant cannot be upheld
We find that in Mathura Prasad Bajoo Jaiswal and Others vs Dossibai NB Jeejeebhoy  at p 836 a Bench comprising three learned Judges of this Court has taken the view that a decision on the question of jurisdiction of the court or a sure question of law unrelated to the right of the parties to a previous suit is not res judicata in the subsequent suit
The Court observed It is true that in determining the application of the rule of res judicata the Court is not concerned with the correct ness or otherwise of the earlier judgment
The matter in issue if it is one purely of fact decided in the earlier proceeding by a competent court must in a subsequent litiga tion between the same parties be regarded as finally decided and cannot be reopened
A mixed question of law and fact determined 217 in the earlier proceeding between the same parties may not for the same reason be questioned in a subsequent proceed ing between the same parties
But where the decision is on a question of law ie the interpretation of a statute it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same for the expression the matter in issue in section 11 of the Code of Civil Procedure means the right litigated between the par ties ie the facts on which the right is claimed or denied and the law applicable to the determination of that issue
Where however the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata for a rule of proce dure cannot supersede the law of the land
 The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta vs Gobind Ram Bohra dead through his Lrs  We find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo Jaiswal and Others vs Dossibai NS Jeejeebhoy has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Others vs Jagjit Singh and Another and hence to the extent that the judg ment in Avtar Singh s case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction it cannot be regarded as good law
In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata
It is well settled that there can be no estop pel on a pure question of law and in this case the question of jurisdiction is a pure question of law
In our view therefore the High Court was with re spect right in its conclusions arrived at and the appeal must be dismissed
The appeal is dismissed
Looking to the facts and cir cumstances of the case there will be no order as to costs
GN Appeal dis missed


Summary:
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 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 04 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 Rs1313710 for the first period and Rs942013 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 251 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 251 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 251 was not imperative that part of the High Court s order cannot be sustained
131E