IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.83 of 2007. Judgment Reserved on:8.12.2009. Decided on: December 22, 2009. H.P.State Environment Protection & Pollution Control Board …..Appellant. VERSUS Reliance Telecom Ltd. …..Respondent. Coram The Hon’ble Mr. Justice R.B.Misra, Acting Chief Justice. The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1Yes For the Appellant: Mr.Suneet Goel, Advocate. For the Respondents: Mr.B.C.Negi, Advocate for respondent No.1. Mr.R.K.Sharma, Sr.Addl.A.G., with Mr.Ankush Sood, Addl. A.G., for respondent No.2. R.B.Misra, Acting Chief Justice. The present Letters Patent Appeal has been directed against the judgment dated 26.6.2007 passed by learned Single Judge in CWP No.1553 of 2002. 2. The respondent – Reliance Telecom Limited, (hereinafter referred to as ‘the petitioner – company’ for convenience), has preferred CWP No.1553 of 2002 assailing the decision of appellant (hereinafter referred to as ‘the respondent – 1 Whether the reporters of the local papers may be allowed to see the Judgment? …2… Board’ for convenience) to apply for renewal of consent and also to pay a sum of Rs.35,900/- by way of penalty. 3. The ‘petitioner – company’ contended before the learned Single Judge that the ‘petitioner – company’ is non- polluting Unit and, thus, it was not required to get the consent under the Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 and Environment (Protection) Act, 1986 and also the Hazardous Wastes (Management and Handling) Rules, 1989. 4. The case of the ‘petitioner – company’ was also that the notification dated 5.12.1995 was not attracted and the ‘respondent – Board’ had no authority to levy the penalty. 5. Learned Single Judge accepted the plea of petitioner – company to the extent that since it was a non-polluting Unit, it was not required to get consent under the Water (Prevention and Control of Pollution) Act, 1974 and it was also not covered under notification dated 5.12.1995. Learned Single Judge also quashed the notification dated 30.12.1998 after referring to M/s.Khemka & Co.(Agencies) Pvt. Ltd. versus State of Maharashtra (1975) 2 SCC 22. 6. Mr.Suneet Goel, learned counsel for the appellant, has argued that the petitioner – company was required to get the consent from the Himachal Pradesh State Environment Protection and Pollution Control Board and the learned Single Judge has erred in law by quashing notification dated 30.12.1998 and also holding …3… that the ‘petitioner – company’ was not covered under notification dated 5.12.1995. 7. Mr.B.C.Negi, learned counsel for the ‘petitioner - Company’ (respondent herein), has supported the judgment of the learned Single Judge. 8. We have heard the learned counsel for the parties and have gone through the pleadings of the parties carefully and have perused the records. 9. In order to appreciate the rival contentions of the parties, it will be appropriate to refer to salient provisions of the Water (Prevention and Control of Pollution) Act, 1974. Section 2 of the ‘Act’ defines the following expressions as under: “Outlet” includes any conduit pipe or channel, open or closed, carrying sewage or trade effluent or any other holding arrangement which causes or is likely to cause, pollution;] “Pollution” means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of aquatic organisms; “Sewage effluent” means affluent from any sewerage system or sewage disposal works and includes sullage from open drains: …4… “Sewer” means any conduit pipe or channel, open or closed, carrying sewage or trade effluent: “Stream” includes- (i) River (ii) Water course(whether flowing or for the time being dry) (iii) Inland water (whether natural or artificial); (iv) Subterranean waters; (v) Sea or tidal waters to such extent, or, as the case may be, to such point as the State Government may, by notification in the Official Gazette, specify in this behalf. “Trade effluent” includes any liquid, gaseous or solid substance which is discharged from any premises used for carrying on any (industry, operation or process, or treatment and disposal system), other than domestic sewage.” 10. Section 25 of the ‘Act” imposes restriction on new outlets and new discharges. Mr. Suneet Goel has argued that in view of the provisions of Section 25 read with section 2 of the ‘Act’, the duty is cast upon the Unit to get the consent. We have gone through the provisions of the Water (Prevention and Control of Pollution) Act, 1974. These provisions are attracted only in case the Unit causes pollution while in operation by discharging sewage effluent and trade effluent. The respondent-Board has failed to substantiate in what manner the petitioner-company is a polluting Unit. The averments contained to this effect in the reply have been taken note of by the learned Single Judge. The petitioner- company cannot be brought within the ambit of the Water …5… (Prevention and Control of Pollution ) Act, 1974 by merely making assertion in the reply. The discharge of any effluent i.e. sewage effluent/trade effluent is sine qua non for the applicability of the Act. 11. The respondent-Board has also failed to substantiate its plea how the notification dated 5.12.1995 is attracted and applicable to the facts and circumstances of the present case. The respondent-Board had asked the petitioner-company to pay penalty on the basis of letter dated 30.12.1998. Learned Single Judge has dealt with this matter in depth. It is settled proposition of law that penalty can only be imposed under the enacted law in consonance to the spirit of statute. In other words, there should be legal sanctity behind the same. The penalty could not be levied merely by issuing a notification as per the decision of the Board of Directors. 12. Accordingly, we are in respectful agreement with the judgment of the learned Single Judge, we do not find any scope of indulgence in the verdict of learned Single Judge. Accordingly, the appeal is dismissed. ( R.B.Misra ) Acting Chief Justice December 22, 2009. (Kuldip Singh) (soni) Judge …6… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA LPA No.83 of 2007. Judgment Reserved on:8.03.2009. Decided on: December __, 2009. H.P.State Environment Protection & Pollution Control Board …..Appellant. VERSUS Reliance Telecom Ltd. …..Respondent. Judgment for consideration, please. ( R.B.Misra ) Acting Chief Justice I agree / do not agree. ( Kuldip Singh ) Judge List for pronouncement of judgment on _______________ ( R.B.Misra ) Acting Chief Justice Court Secretary: …7…