Orissa High Court
Afr vs Member Secretary on 7 May, 2018
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
O.J.C. NO. 3090 OF 1998
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
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AFR Executive Officer, Cuttak Municipal Corporation ........ Petitioner
-Versus-
Member Secretary, ......... Opp. Parties State Pollution Control Board and another For petitioner : M/s. Niranjan Panda-1, S.K. Patnaik, S.K. Acharya and R.K. Sahu, Advocates.
For opp. parties : M/s. Srimanta Das,
S. Rath and A. Pattnaik, Advocates.
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PRESENT
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN AND THE HON'BLE DR. JUSTICE B.R.SARANGI
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DECIDED ON: 07.05.2018
------------------------------------------------------------------------ DR. B.R. SARANGI,J. The Executive Officer, Cuttack Municipal Corporation has filed this application challenging the order 2 dated 04.08.1997 passed by the Cess Appellate Committee, State Pollution Control Board, Bhubaneswar, by which the order of assessment dated 29.07.1997 passed by the Member Secretary and Assessing Authority, State Pollution Control Board imposing water cess has been confirmed.
2. Mr. Niranjan Panda, learned counsel appearing for the petitioner contended that the order dated 04.08.1997 in Annexure-3, having been passed by the appellate authority, without giving opportunity of hearing to the petitioner, is ex parte one and suffers from violation of principle of natural justice and, as such, is liable to be quashed.
3. Per contra, Mr. S. Das, learned counsel appearing for the opposite parties contended that the appellate authority, while passing the order impugned, had given adequate opportunity of hearing to the petitioner. As such, the petitioner, having received notice issued by the appellate authority with regard to date of hearing of the appeal, cannot say that it was not aware of the same. Therefore, it cannot be said that principle of natural justice has not been complied with so as to warrant interference of this Court.
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4. Having heard learned counsel for the parties and after going through the records, it appears that as per the provisions contained in Section 3 of the Water Cess Act, the Member Secretary is authorized by Rule 2(b) to assess, levy and collect cess from all local authorities as well as inhabitants on the quantity of water supplied to them, the petitioner is under obligation as per Section 5 of Water Cess Act read with Rule 4 of Cess Rule to furnish return on or before 5th of every month to the assessing authority, i.e., Member Secretary in Form I showing the quantity of water supplied in the previous month. Since the petitioner was consistently failing in its duty in furnishing returns in prescribed Form I, the matter was brought to the notice of Government in Science and Technology and Environment Department as well as House and Urban Development Department for intervention. Consequentially, a meeting was held on 17.03.1988 and a decision was taken, vide Annexure-4, making it clear that P.H.E. Organisation is acting on behalf of Urban Local Bodies so far as supply of water and collection of tax is concerned. The Urban Local bodies, being the owner of the water works, are statutorily liable to pay the cess. As the petitioner had failed in its duty in furnishing the return, the assessing authority conducted enquiry under Sub-section 4 (1) of Section 6 of the Water Cess Act and made an assessment for payment of water cess in consonance with the Statute itself under the provision of Municipal Act, as a duty has been cast on the Local Bodies to supply water fit for domestic use by the inhabitants. Consequently, the assessing authority passed an order of assessment of cess dated 29.07.1997 under Section 6 of the Water Cess Act for the period from 01.10.1996 to 31.12.1996 for a sum of Rs.2,68,783/- against the petitioner after giving due opportunity.
5. Challenging the said order, the petitioner preferred an appeal registered as Water Cess Appeal No.7 of 1997, which was posted for admission and hearing to 21.07.1997, notice of which was issued to the petitioner vide memo No.7822 dated 07.07.1997. But on 21.07.1997, the case was deferred to 04.08.1997 and notice of the same was communicated to the petitioner vide Memo No.8629 dated 22.07.1997. It is stated that in the said notice it was not specifically communicated whether the petitioner was required personal hearing by the Appellate Committee. Since the petitioner did not appear nor any communication was received pursuant to notice dated 22.07.1997, the Appellate Committee took up the matter on the 5 date fixed, i.e., 04.08.1997. Thereby, it cannot be said that opportunity was not given to the petitioner to participate in the process of hearing. As such, the appeal preferred by the petitioner was rejected by the order impugned, which reads as under:-
"The appellant case relies on non-liability of payment and shifts the payment liability to the P.H. Deptt. This is based on no law and relates to a minutes of the proceedings purported to have been held on 17.3.88 under the Chairmanship of Secretary, H & U.D. Deptt. The conclusions are unenforceable and has no legal validity. The appeal is accordingly rejected."
6. The minutes of discussion on Collection of cess from Urban Local Bodies held in the office chamber of the Secretary, Housing and Urban Development Department on 17.03.1988, on which reliance was placed by the petitioner, reads as follows:
"The Urban Local Bodies being under a financial stress to manage their day to day functions, it was felt that many of them may not be able to pay the cess from their own funds. It was decided that the cess may form part of operation and maintenance cost and, therefore, be paid by P.H.E.O. on behalf of Urban Local Bodies as in case of payment of electricity charges to Orissa State electricity Board."
On perusal of the above decision, it reveals that so far as liability of the petitioner is concerned it is not exempted rather by virtue of such decision the liability of payment of cess has 6 been shifted to P.H.E. Organisation on behalf of the Urban Local Bodies. If the assessing authority has determined the liability of payment of water cess vide Annexure-1 in accordance with the provisions of Water Cess Act, whether it is to be paid by the petitioner or somebody else as per minutes of discussion indicated above, that by itself cannot exonerate the liability of the petitioner to pay the said dues. Therefore, the Appellate Committee has rightly rejected the appeal preferred by the petitioner stating that the conclusion arrived at relying upon the minutes of the proceedings dated 17.03.1988 are unenforceable and has no legal validity. In the instant case, since the Water Cess Act imposes the liability on the petitioner to pay water cess and in compliance of the same the assessment was made and on being challenged the same was confirmed by the Appellate Committee after giving opportunity of hearing, the petitioner cannot be exonerated from statutory liability which it is otherwise liable to pay.
7. In view of such position, as the assessment has been made vide Annexure-1 dated 29.04.1997 for payment of water tax and it has been confirmed in appeal vide Annexure-3 giving opportunity of hearing to the petitioner, this Court is not 7 inclined to interfere with the same. Accordingly, the writ application is devoid of merits and is thus dismissed. No order as to cost.
Sd/-
( VINEET SARAN ) CHIEF JUSTICE Sd/-
(DR. B.R. SARANGI) JUDGE The High Court of Orissa, Cuttack Dated the 7th May, 2018/Alok/GDS True Copy P.A.