(1) C.W.P.No. 15976 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 16.3.2011 (1) C.W.P.No. 15976 of 2009 M/s Greenline Developers Pvt. Ltd. ......Petitioner Versus Haryana State Pollution Control Board .......Respondents (2) C.W.P.No. 15978 of 2009 M/s RSG Housing and Finance Pvt. Ltd ......Petitioner Versus Haryana State Pollution Control Board .......Respondents (3) C.W.P.No. 16021 of 2009 M/s Ambience Hostels and Resorts Ltd. ......Petitioner Versus Haryana State Pollution Control Board .......Respondents (4) C.W.P.No. 16047 of 2009 M/s Sara Estates Pvt. Ltd. ......Petitioner Versus Haryana State Pollution Control Board .......Respondents (5) C.W.P.No. 16092 of 2009 M/s Prime Commercial Pvt. Ltd. ......Petitioner Versus Haryana State Pollution Control Board .......Respondents (6) C.W.P.No. 16105 of 2009 M/s Alankar Apartments Pvt. Ltd. ......Petitioner Versus Haryana State Pollution Control Board .......Respondents (1) C.W.P.No. 15976 of 2009 2 CORAM:- HON'BLE Mr. JUSTICE RANJAN GOGOI CHIEF JUSTICE HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. P.K.Agrawal, Advocate, for the petitioner(s) Mr. Arun Walia, Advocate, for the respondents RANJAN GOGOI, CJ. : (Oral) C.M.No.3978 of 2011 Allowed. Affidavit is taken on record. C.W.P.No. 15976 of 2009 Exchange of pleadings being complete and elaborate arguments having been heard, a common final order in the six cases under consideration is being passed. A recital of the facts involved in CWP No. 15976 of 2009 would be a sufficient elucidation of facts involved in all the cases. The petitioner in C.W.P. No. 15976 of 2009, M/s Greenline Developers Pvt. Limited, is a scheduled industry covered by the provisions of the Water(Prevention and Control of pollution) Cess Act, 1977 (hereinafter referred to as the Cess Act). A pro forma Cess Verification was carried out under the provisions of the Cess Act in the premises of the petitioner by which the daily water consumption under different heads was determined as 1,25,000/- Kilo Litres though in the same pro forma against column No. (iv) the daily consumption from all sources was computed at 1,25,000 litres. The pro forma was signed by the Assistant Environment Engineer of the Haryana State Pollution Control Board as well as by representative of the petitioner company. On the basis of the aforesaid pro forma an assessment order dated 24.12.2008 was passed for the period (1) C.W.P.No. 15976 of 2009 3 1.2.2004 to 30.9.2008 quantifying the consumption at 70,00,000 Kilo Litres and the amount payable at Rs.2,10,000/-. The petitioner filed an appeal against the said assessment before the Appellate Committee constituted under Rule 9 of the Water (Prevention & Control of Pollution) Cess Rule, 1978. The Appellate Authority by order dated 24.8.2009 maintained the order of the Assessing Authority. In the appellate order it has, however, been recorded that Shri Vijay Chaudhary, Assistant Environment Engineer had informed the Appellate Authority that “quantity given by the appellant in the return was considered for verification of cess as there was no other measure adopted by the unit to check the water consumption as the unit has not provided magnetic flow meters.” Contending that on the face of the aforesaid finding recorded by the Appellate Authority there was an obvious error in computing the total consumption as 1,25,000 Kilo Litres in the pro forma verification and consequently in the assessment order for the period 1.4.2004 to 30.9.2008 at 70 lakhs Kilo Litres, this writ petition has been filed calling into question the aforesaid determination of consumption and the demand raised on the basis thereof. Certain facts that had taken place during the pendency of the writ petition will now have to be noticed. By order dated 5.8.2010 passed by the Court in the present writ petition the respondent authority was directed to take meter readings from the flow meters that had been installed by the petitioner in the meantime. Accordingly a spot inspection was conducted on 24.11.2010 and the meter readings from flow meters were taken in respect of seven tubewells where such flow meters were installed. In the course of inspection though 22 numbers of tubewells were found to have been (1) C.W.P.No. 15976 of 2009 4 installed in the premises, however, only 7 were found to be in operation. Accordingly, the meter readings of the 7 tubewells were taken. The same have been placed before the Court alongwith an affidavit dated 25.1.2011 of the Assistant Environment Engineer Shri Vijay Chaudhary. Having taken into account all relevant facts the court may now proceed to examine the tenability of the claims raised in the present writ petition. Shortly put, the contention advanced before the court is that as an average daily consumption as 1,25,000 litres had been recorded against column No. (iv) of the pro forma of cess verification the daily consumption recorded in Col. (v) of the said verification which converts the said figure into Kilo Litres is an error apparent on the face of the record. It is contended that 1 Kilo Litre is equivalent to 1000 litres and therefore the obvious mistake in reflecting the figures of consumption of 1,25,000 litres as Kilo Litres has resulted in an exorbitant rise in the total consumption as recorded in the assessment order. The learned counsel for the petitioner has also drawn the attention of the court to the reply-affidavit wherein it is submitted that even if one is to go by the consumption as reflected from the meter readings, the liability, though would increase would not be to the extent as reflected in the assessment order. In this regard in para 9 of the affidavit of the petitioner dated 14.3.2011 it has been stated that going by the figures recorded in the pro forma the liability is about Rs.10,500/- whereas if one is go by meter reading the liability would be about Rs.20,000/-. The learned counsel for the respondents, at the very outset, has tried to persuade the court that the petitioner has not come to the court with clean hands inasmuch as he has suppressed the fact that there were 22 tubewells in the premises of the petitioner though 7 were found to be in (1) C.W.P.No. 15976 of 2009 5 operation. As against the said facts the petitioner has indicated that only three tubewells were in operation. In so far as the conversion of Litres into Kilo Litres is concerned, the learned counsel has left the matter for a just determination by the court. We have considered the materials on record as well as the arguments and counter arguments advanced on behalf of the rival parties. Looking to the pro forma (Annexure P-3 to the writ petition) we find that the same is signed by both the parties. In the said pro forma against column No.(iv) total water consumption from all sources is recorded as 1,25,000 Litres daily. The basis for arriving at the said figure, as noticed by us, is also indicated. The pro forma has been signed and accepted by the Assistant Environment Engineer. If that is so, it is difficult to comprehend how in column No.(v) of the said pro forma the said figure had been recorded as 1,25,000 Kilo Litres. There is an obvious mistake. If the figure shown against column No. (v) in Kilo Litres is to be understood as Litres, as we must understand, the total consumption in a period of 30 days would be 3750 Kilo Litres and over the period of about 54 months the figure would be approximately 2,00,000 Kilo Litres. As we have indicated above, flow meters had been installed by the petitioners in 7 of the tubewells. The meter reading, in terms of the direction of the court, has also been placed before us. According to the petitioner, the meter readings, if taken into consideration, will enhance the liability of the petitioner which in terms of the money would be double the amount calculated on the basis of the figures of 1,25,000 litres (daily) as recorded in the pro forma. The said liability will still be much lower than what has been assessed. According to us the above basis, which is not disputed before us by the learned counsel (1) C.W.P.No. 15976 of 2009 6 for the petitioner, would be a more accurate measure for determination of the liability of the petitioner. Coupled with the above, such liability, according to us, has to be computed on the basis of the use of 7 tubewells instead of 3 as mentioned in the pro forma. It is in the above manner that the liability of the petitioner(s) will have to be determined and thereafter enforced. We, therefore, close the writ petition by directing the Pollution Control Board to assess the liability of the petitioner(s) afresh by following the principles laid in the present order. Thereafter, once the determination is made, the petitioner(s) will pay the requisite amount without any delay. Before parting with the record, we would like to mention that 22 tubewells were found in the premises of the petitioner though flow meters were installed in respect of only 7 tubewells. The petitioner is directed to instal flow meter in respect of all the 22 tubewells forthwith and if does not consider feasible to use any such tubewell the same will be permanently shut down. The writ petitions shall stand disposed of in the terms of the above direction and observations. (RANJAN GOGOI) CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) JUDGE March 16, 2011 RSK NOTE: Whether to be referred to the Reporter or not? _____ (1) C.W.P.No. 15976 of 2009 7