Case: Bilt Graphic Paper Products Vs. The State of Mah &amp; Others

Pepsico Industries. There were also other contentions. There was an argument that there was a continuing liability to pay increased rate from the year 2001 itself, and it was not paid in spite of representations. There was also an argument that the enhancement as per the Circular dated 25th October, 2001 [by ten times] cannot be said to be a retrospective demand because it was not altered in spite of representations [para 31]. Finally, there are observations in paras 43 and 44. The relevant part of para 44 reads thus :-44. ............................................................................ ..........The stand of the appellant that the increased rate of water charges is being demanded from them on a retrospective basis is erroneous and fallacious and not proper because it is established from the record that the appellant had the knowledge about the aforesaid increase in 2001 itself when the Government issued the notification intimating such increase which fact is an admitted position.28. Issue about retrospective operation was also one of the issues in case of Zawar Sales Ltd. [Supra]. Water rates were increased from Rs.16.50 per cubic meters to Rs.51.10 per cubic meter. Water was used as a raw material and also for allied activities. Above two judgments were also referred in para 17 of this judgment. In case State Bank of India [Supra], SBI was getting water from BMC and there was increase in water rates.JUDGMENTS RELIED UPON BY PETITIONER IN WRIT PETITION NO. 4313 OF 2004 29. In all, there are seven citations. They are as follows :-[a] Commissioner of Income Tax 5 Mumbai Vs. Essar Teleholdings Ltd [ (2018) 3 SCC 253],[b] Commissioner of Income Tax (Central)-I, New Delhi Vs. Vatika Township Pvt. Ltd. [ (2015) 1 SCC 1],[c] Vice-Chancellor, M.D. University, Rohtak Vs. Jahan Singh [ (2007) 5 SCC 77],[d] Regional Transport Officer, Chittoor & others Vs. Associated Transport Madras (P) Ltd., & others [ (1980) 4 SCC 597],[e] Bakul Cashew Co. & others Vs. Sales Tax Officer, Quilon & another [ AIR 1987 SC 2239],[f] Govind Das & others Vs. The Income Tax Officer & another [ (1976) 1 SCC 906 ], and[g] The Income-tax Officer, Alleppey (in both the Appeals) Vs. 1. M. C. Ponnoose & others (in C.A. No. 942 of 1966) 2. Excel Productions, Alleppey & others (In C.A. No. 943 of 1966) [ AIR 1970 SC 385 ].On perusing them we find more or less similar principles have been laid down. In order not to burden the judgment, we are only reproducing the ratios laid down in the judgment. In case of Income Tax Officer, Aleppi [supra], Issue was about investing Tahsildar with powers of Tax Recovery Officer. The question was whether such powers can be invested from the date of notification or earlier thereto. It has been turned down. There cannot be any dispute about proposition that there cannot be retrospective operation of delegated legislation. On this basis we will look into the factual aspects.NOTIFICATION 30. The notification does not specifically mentions of any section of any law. On reading it, one can very well infer that water rates were changed and it also mentions the reason and it is due to world wide industrial slackness and on the basis of representations made by various industrialists.31. There is reference of notifications dated 12/9/2001 and dated 24/10/2001 in it. It also mentions the considerations for increasing the charges 3 times. The factors were recommendations of Finance Commission, Irrigation Commission National Water Supply Authority. It also mentions the difference between the expenses incurred and income derived from present water charges.32. Now, it will be material to see the water rates mentioned in these two earlier notifications. The petitioners have not filed them on record. Respondents through referred them in their pleadings, have not filed them in time. When they attempted to file them at the time of arguments, it was strongly opposed on behalf of the petitioners. Hence even we have not granted permission.33. So we have no alternative to decide the factual aspects on the basis of pleadings and available record. The respondents no. 1 and 2 have in their Return have given the calculation thereby suggesting how rates were not made applicable retrospectively. In fact they want : to suggest that even though they have been made retrospectively applicable, they are not to the detriment of the petitioners but to their advantage. We have also read the rejoinder to the reply (filed by BILT PAPER PRODUCTS). They have simply denied the allegations. They have simply laid emphasis on the concessional rates granted as per the agreement and non application of the provisions of section 70 of M.L.R. Code.34. It is very well true that there are four periods mentioned in the schedule II attached to the impugned notification. It relates to industrial use other than cold drink. The periods start from 1/7/2000, 1/7/2001, 1/7/2002 and 1/7/2003. so the arguments on behalf of the petitioners are certainly attractive. But what we feel is that the petitioners ought to have filed earlier two notifications. They could not be taken on record due to attempt made belatedly by the respondents to file it on record. So we have no alternative to hold that the changes made as per the impugned notifications even though made applicable retrospectively, they are to the benefit of the petitioners. We draw support from the wordings of impugned notification. Industrial slackness was considered by the government and that too on the representations of the industrialists. 35. So we find that revised rates were made applicable retrospectively. We do think that all the petitioners will be having any objection if the revised rates will be given effect retrospectively. There is also no merit in the argument about enormous increase in water rates and changing the measure of computing water consumption. Earlier, it was per cubic feet. It is also changed to cubic liters. Ultimately, it is the policy decision. It has been done on the recommendations of various Authorities. It can not be interfered by the Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We agree with the submission made on behalf of Govt., and VIDC that 1976 Act is not applicable because it is not the canal water, but it is the Wardha river water.There is a broader meaning of canal given in 1976 Act than that was given in 1931 Act.However, there are two conditions prior to including river under canal.Either Govt. must notify river under the provisions of Section 11 of 1976 Act or such river water must have been used for the purpose of canal. Company does not claim fulfillment of either of the conditions at least till filing of this petition. For these reasons, we have no hesitation but to hold that 1976 Act is not applicable.We are satisfied that the provisions of 1966 Maharashtra Land Revenue Code are very much applicable.There is much stress on the provisions of Section 70 of the Code.Learned Adv. Shri Naik contends that second condition of Section 70 of the Code is not satisfied. It is disputed on behalf of the Govt. Section 70 of the Code empowers the Collector [when authorized by the Govt. ] to fix water rates. It can be done only when two conditions are fulfilled. One is right over the water must vest in the Govt. There is no dispute that this condition is fulfilled in case before us.On one hand, 1949 Act protects the rights acquired earlier in such water and on the other hand empowers the Govt., to make rules [including fixing of water rates].No such rules were placed before us.Immediately before 1966, 1949 Act was made applicable to State of Maharashtra with effect from 1st June, 1962 [notification dated 3rd May, 1962].. We feel that direction given as per letter dated 28th September, 1965 by Irrigation Department to the Company is a proper exercise of the power under 1949 Act. Water rate @ Rs.4.50 per 10,000 cubic feet was fixed. This direction is more appropriate than the directions dated 27th September, 1963 and 8th January, 1964. Because first does not pertain to water of Wardha river and second is superseded by 28th September, 1965 directions. So also, second was issued by Industries Department and not by Irrigation. So, admittedly, there was a law prescribing framing of rules [including fixing of rates]. But rules were not placed before us. Natural corollary will be there was no codified law in existence under which water rates are leviable prior to 1966. Hence, we conclude that second condition of Section 70 of the Maharashtra Land Revenue Code is also satisfied. So, Govt. was justified in fixing rates by issuing circular. Section 70 empowers the Govt., to do the same. Even otherwise, as per 1947 Agreement, there was a permission to manufacture nine thousand tons of paper. It must have increased due to passage of time. So, on one hand, Company cannot justify in claiming water charges at concessional rates, whereas, on the the hand, the manufacturing capacity must have been increased.. For above discussion, we conclude that there is no substance in the challenge to revise water rates. It needs to be rejected.The notification does not specifically mentions of any section of any law.On reading it, one can very well infer that water rates werechanged and it also mentions the reason and it is due to world wide industrial slackness and on the basis of representations made by various industrialists.. There is reference of notifications dated 12/9/2001 and dated 24/10/2001 in it. It also mentions the considerations for increasing the charges 3 times. The factors were recommendations of Finance Commission, Irrigation Commission National Water Supply Authority. It also mentions the difference between the expenses incurred and income derived from present water. Now, it will be material to see the water rates mentioned in these two earlier notifications. The petitioners have not filed them on record. Respondents through referred them in their pleadings, have not filed them in time. When they attempted to file them at the time of arguments, it was strongly opposed on behalf of the petitioners. Hence even we have not granted. So we have no alternative to decide the factual aspects on the basis of pleadings and available record. The respondents no. 1 and 2 have in their Return have given the calculation thereby suggesting how rates were not made applicable retrospectively. In fact they want : to suggest that even though they have been made retrospectively applicable, they are not to the detriment of the petitioners but to their advantage. We have also read the rejoinder to the reply (filed by BILT PAPER PRODUCTS). They have simply denied the allegations. They have simply laid emphasis on the concessional rates granted as per the agreement and non application of the provisions of section 70 of M.L.R.. It is very well true that there are four periods mentioned in the schedule II attached to the impugned notification. It relates to industrial use other than cold drink. The periods start from 1/7/2000, 1/7/2001, 1/7/2002 and 1/7/2003. so the arguments on behalf of the petitioners are certainly attractive. But what we feel is that the petitioners ought to have filed earlier two notifications. They could not be taken on record due to attempt made belatedly by the respondents to file it on record. So we have no alternative to hold that the changes made as per the impugned notifications even though made applicable retrospectively, they are to the benefit of the petitioners. We draw support from the wordings of impugned notification. Industrial slackness was considered by the government and that too on the representations of the industrialists.. So we find that revised rates were made applicable retrospectively. We do think that all the petitioners will be having any objection if the revised rates will be given effect retrospectively. There is also no merit in the argument about enormous increase in water rates and changing the measure of computing water consumption. Earlier, it was per cubic feet. It is also changed to cubic liters. Ultimately, it is the policy decision. It has been done on the recommendations of various Authorities. It can not be interfered by the Court.