Gujarat High Court
M/S Grentex And Company Pvt. Ltd. vs State Of Gujarat on 31 July, 2018
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/SCA/5306/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5306 of 2018
M/S GRENTEX AND COMPANY PVT. LTD.
Versus
STATE OF GUJARAT
Appearance:
MR RUSHABH R SHAH(5314) for the PETITIONER(s) No. 1
MR SAHIL M SHAH(6318) for the PETITIONER(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP(99) for the
RESPONDENT(s) No. 1
MR DEVANG VYAS(2794) for the RESPONDENT(s) No. 6
MR MITUL K SHELAT(2419) for the RESPONDENT(s) No. 2,5
MR RUTVIJ M BHATT(2697) for the RESPONDENT(s) No. 3
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,4
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 31/07/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 The petitioner has filed this petition under Article 226 and/or 227 of the Constitution of India challenging the show cause notices dated 28.03.2018 issued by the respondent Nos.2 and 3 demanding the outstanding payment towards treatment charges of CETP at Sarigam and forcing the petitioner to enter into user agreement of CETP at Sarigam and failure to pay the amount so Page 1 of 12 C/SCA/5306/2018 ORDER demanded in the show cause notices would result into disconnection of the facilities of discharge of effluents and other usages.
2 For the sake of convenience, prayers made in this petition are reproduced herewith:
"[A] issue an appropriate Writ, Order or direction to the respondent authorities to quash and set aside the show cause notices dated 28/03/2018 and further restrain the respondent authorities in disconnecting the water supply of the petitioner company.
[B] pending admission and/or final disposal of this petition, stay the show notices dated 28/03/2018 and restrain the respondent authorities in disconnecting the water supply of the petitioner company and the petitioner shall not be forced to sign user agreement.
[C] pass such order or direction directing the respondents to clarify the details of accounts with regard to erection of CEPT and further clarify why the contribution of the industries association should be more than 25% of the total cost of erection of CEPT and that why it should be more than the contribution of respondent No.1."
3 As argued by learned counsel for the Page 2 of 12 C/SCA/5306/2018 ORDER petitioner, the genesis of grievance relates back to Public Interest Litigation being Special Civil Application No.7652 of 2009 wherein it was agreed upon and decided to construct a CETP by GIDC at Sarigam for treatment of effluents being discharged by industries situate at Sarigam and as per that understanding between Sarigam Industries Association, Gujarat Pollution Control Board and Central Government, it was decided that all the signatories to contribute certain amount towards cost of construction of CETP and the ratio prescribed for members of the industries was 25%, GIDC 25% and Central and State Governments 25% each.
3.1 Mr. Rushab Shah, learned counsel for the petitioner submits that the present petitioner is in the business of manufacturing of wools scouring and combing and the said manufacturing process is nonhazardous and low pollution potential and that the unit requires constant humidification of raw material, otherwise, Page 3 of 12 C/SCA/5306/2018 ORDER process would not be complete. It is further submitted that respondent Nos.2 and 3 are calculating the output of the sewage based on the inflow of the fresh water supplied by the GIDC and the respondent No.3 is charging the industries as per the inflow and if inflow is a particular amount, then the respondent No.2 is considering such volume as outflow by the industries for treatment in CETP and the treatment charges would be considered based upon the inflow instead of actual meter outflow. It is further submitted that the connection load of water given to the petitioner unit is 60 KL/day, whereas, outflow permitted to the petitioner is 36 KL/day. In addition to the above, the respondent No.3 is also charging for drainage facility since inception @Rs.9 per Kilo Liter and these charges are being regularly paid by the petitioner based on the actual discharge of effluents.
3.2 Learned counsel for the petitioner would Page 4 of 12 C/SCA/5306/2018 ORDER contend that the petitioner is having permission to run two units viz. one dry unit and one wet unit where water is used for drinking and other domestic purposes by the workers and also used for humidification. It is further submitted that initial figure of Rs.60 crores towards the cost of construction of CETP is now assessed as Rs.112 crores. In spite of the repeated requests made by the petitioner, no justification for the same is given about the ratio of 25% to be paid by the industries and rest of 75% to be paid by the Central as well as State Government. It is further submitted that even meters are installed at the outlet of their unit, which will measure the output towards the CETP and accordingly charges can be levied.
3.3 Learned counsel for the petitioner submits that the purpose for which the petitioner is compelled to invoke jurisdiction under Article 226 of the Constitution of India is the result of nonperformance of duties by the GIDC as it was Page 5 of 12 C/SCA/5306/2018 ORDER dutybound to put up facilities of CETP for which even portion of land was also earmarked and now the petitioner is charged twice viz. one for drainage and another for CETP and such arbitrary action on the part of the respondent Nos.2 and 3 violates fundamental right of the petitioner to carry out business subject to certain reasonable restrictions. Various documents are annexed with the petition by the petitioner, including the statement about various particulars pertaining to usage of water, drainage and charges levied and bills so far raised by the respondents and paid towards charges. Further, a statement is also annexed giving details of quantity of water used by the petitioner and discharge recorded in the meters installed by the petitioners and a statement giving details of actual construction charges at Sarigam [tentative cost]. It is further submitted that the representations made by the petitioner not only to respondent No.2 but also to concerned authorities, have remained unanswered and no final decision is taken. Page 6 of 12 C/SCA/5306/2018 ORDER 3.4 Learned counsel for the petitioner lastly submitted that, in all, the demand raised by respondent Nos.2 and 3 is not only exorbitant but without any basis for which no details supplied, and therefore, this Court may interfere by granting the prayers.
4 Mr. Mitul Shelat, learned counsel for the respondent No.2 would contend by raising preliminary objection that considering the nature of subject petition and prayers of the writ petition, this court will be loath in exercising jurisdiction under Article 226 and/or 227 of the Constitution of India. It is further submitted that in view of the subject matter of petition and the prayers made therein, this petition is not maintainable under Article 226 of the Constitution of India since the respondent No.2 is not the State within the meaning of Article 12 of the Constitution of India. Further, this petition is not even maintainable under Article Page 7 of 12 C/SCA/5306/2018 ORDER 227 of the Constitution of India as the impugned notices are not issued in exercise of any judicial or quasi judicial powers and the dispute is purely a private litigation and neither GIDC nor any other authority has to perform any duty under the Act. The basis of dispute has genesis to the orders passed by this Court in public Interest Litigation being Special Civil Application No.7652 of 2009 to which Association of the Industries of Sarigam has agreed and accordingly demand is raised towards capital contribution cost and other charges with interest divided in pro rata basis and barring a few industrial units none of the members has raised any grievance. However, for the subject matter of the petition and for some of the grievances, the respondent No.2 has entered into a dialogue with the GIDC and the outcome of the negotiations will be binding on the members or the aggrieved members can take appropriate action in accordance with law. Mr. Shelat, learned counsel for the respondent No.2 invited our attention to nature Page 8 of 12 C/SCA/5306/2018 ORDER of levy of usage charges and it is submitted that even if any dispute pertaining to levy of charges, etc. can be raised before the appropriate forum and challenge to the impugned show cause notices is premature, and therefore, the petition deserves to be rejected. 4.1 Even affidavit filed by the Executive Engineer, GIDC, Vapi on behalf of respondent Nos.3 and 4 stating that CETP is established pursuant to various orders passed by this Court in Public Interest Litigation and the duties to be discharged by various authorities GIDC Act, 1962. Further, Section 16(1) of the Act, 1962 empowers to declare any industrial area as Notified Area and such area is to be governed as per the Gujarat Municipalities Act. That submissions are made based on the above affidavit filed on behalf of respondent - GIDC, Vapi by referring to Circular dated 16.07.1991. It is submitted that the said circular dated 16.07.1991 contain certain guidelines for determination of Page 9 of 12 C/SCA/5306/2018 ORDER drainage connection charges, drainage cess, etc. It is further submitted that huge capital cost was incurred which contain various components viz. cost of land, overheads, agency charges, administrative charges, cost of CETP tankers, boilers, HDPE pipelines, powerline shifting, conversion of commercial plots etc. and contribution was given by the State Government and Central Governments by way of subsidy. It is further submitted that respondent No.3 vide its resolution dated 06.02.1997 determined the policy of calculating the rates of land to be allotted for creating CETP and components of other costs, overheads is also clarified therein. It is further submitted that guidelines for determining drainage connection were also issued and considering several issued modifications were made vide circular dated 12.03.1996 and all the members are bound by the same. It is further submitted that in case of any breach of condition of the agreement, the petitioner has to approach the appellate committee and instead of that the Page 10 of 12 C/SCA/5306/2018 ORDER petitioner has approached this Court. It is further submitted that in absence of any merit, the petition deserves to be dismissed. 5 Having heard learned counsels for the parties and on perusal of the record of case, including impugned notices and affidavits in reply filed by the concerned respondents, we find no substance in the petition inasmuch as irrespective of the fact that the petitioner is member of the Association or not, is dutybound to pay charges towards discharge of effluents, as demanded. So far as issues regarding computation of charges and the mode of payment and other ancillary issues, the respondent No.2 is negotiating with the GIDC and other concerned authorities and the outcome of the same is awaited. In addition to the above, the challenge in the writ petition is to the show cause notices dated 2.03.2018 and such challenge is not permissible. For nonpayment of charges, as demanded by the authorities, consequential effect Page 11 of 12 C/SCA/5306/2018 ORDER of disconnection of water supply of the petitioner company cannot be said to be in any manner arbitrary, perverse or illegal or contrary to initial agreement which is entered into between the parties pursuant to the order passed by this Court in the Public Interest Litigation. 6 In absence of any merit, the petition is dismissed. Notice discharged. However, there shall be no order as to costs.
(ANANT S. DAVE, J) (BIREN VAISHNAV, J) P. SUBRAHMANYAM Page 12 of 12