Telangana High Court
Authorized Signatory M/S. Gtn ... vs Hmwsandsb., Hyd And Ano on 15 April, 2024
THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI
WRIT APPEAL No.995 OF 2015
JUDGMENT:(per the Hon'ble Shri Justice Anil Kumar Jukanti) Mr. Chavali Ramanand, learned counsel appears for appellant.
Mr. G.Narender Reddy, learned Standing Counsel for Hyderabad Metropolitan Water Supply and Sewerage Board appears for respondents.
2. This intra court appeal is filed challenging the order, dated 03.09.2015, passed by the learned Single Judge in Writ Petition No.31322 of 2012.
3. Brief facts of the case:
Appellant, which is a company registered under the Companies Act, 1956 situated at Chitkul, Patancheru Mandal, Medak District, applied for supply of water 2 CJ & JAK, J W.A.No.995 of 2015 connection and was sanctioned. An agreement, dated 23.04.2003, was entered providing for various terms and conditions for supply of water and levy of charges including that of sewerage cess etc. It is averred that respondent No.1 Board has not laid any sewage lines for letting out the sewage or effluents and that appellant installed own Sewage Treatment Plant (STP) with state of art technology and the entire effluents are treated at its plant and the resultant treated water is utilized by the appellant itself. Vide letter, dated 28.04.2009, respondents decided to levy sewerage cess. Appellant by letter, dated 02.07.2009, requested for exemption of levying sewerage cess. Another representation was made on 17.04.2010 stating that appellant is not liable to pay any sewerage cess. Respondent No.2 vide letter, dated 02.05.2012, requested for payment of Rs.26,74,702.05/-
(inclusive of interest) as arrears of outstanding sewerage cess by appellant up to 30.04.2012, failing which water supply would be disconnected. Aggrieved, writ petition No.31322 of 2012 was preferred.
3 CJ & JAK, J W.A.No.995 of 2015 3.1 Learned Single Judge by order, dated 03.09.2015, held that the appellant was liable to pay sewerage cess and upheld the imposition of sewerage cess. Learned Single Judge considered Section 55 of the Hyderabad Metropolitan Water Supply and Sewerage Act, 1989 (for short 'the Act, 1989'), Rule 4 of Water Supply Rules, 1990 (for short 'the Rules, 1990') and clause 6 of the agreement, 23.04.2003 and concluded that appellant was liable to pay the demanded cess. It is this order which is under challenge in the writ appeal.
4. It is submitted by learned counsel appearing on behalf of appellant that appellant was supplied with a water connection on an application made and that appellant never let out pollutants or polluted water into sewerage system of Hyderabad Metropolitan Water Supply and Sewerage Board (hereinafter referred to "Board"). It is further submitted that the appellant installed its own Sewage Treatment Plant (STP) and the entire effluent is being treated in the plant and the 4 CJ & JAK, J W.A.No.995 of 2015 resultant treated water is utilized for gardening and horticulture purpose. It is also submitted that the demand made in respect of sewerage cess on the ground that effluents were treated by respondents directly or indirectly is bad in law.
4.1 It is submitted by learned counsel for appellant that letter, dated 02.05.2012, issued by respondents for payment of sewerage cess is without any basis. It is further submitted that on a perusal of Section 55 of the Act, 1989 and clause 6 of the agreement, dated 23.04.2003, it can be inferred that respondents are not entitled to collect sewerage cess and the proceedings are not in accordance with law. 4.2 In reply to the submissions of the learned counsel for respondents, it is submitted that the order of the Apex Court in Vasant Chemicals Limited v. The Managing Director, Hyderabad Metropolitan Water Supply and Sewerage Board and Others 1 relied by the learned counsel for the 1 Civil Appeal Nos.4616-4617 of 2009, dated 13.02.2019 5 CJ & JAK, J W.A.No.995 of 2015 respondents is not applicable to the facts of the case and the appellant is not liable to pay the cess levied.
5. Learned Standing Counsel appearing on behalf of respondents supported the order of the learned Single Judge. It is submitted that the learned Single Judge has considered the relevant provision(s) of the Act, 1989, relevant Rule(s), 1990 and clause(s) of the agreement and held that appellant being a polluting industry is letting out the effluents directly or indirectly which are being treated by the treatment plants of respondents. Learned counsel for the respondents relied on the decision of Apex Court in Vasant Chemicals Limited (supra) and contended that the issues raised have been considered by the Apex Court. Our attention has been invited to Paragraph No.5 of the order of the Apex Court and submitted that the issues were similar in nature and hence, the order of the Apex Court is applicable to the facts and circumstances of the case.
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6. Heard learned counsels, perused the record. Considered the rival submissions.
7. It is evident from the record that appellant was having a 50 mm diameter water supply connection under the category of Industries-Bulk vide CAN No.083200621 and that on request, 68.190 kilo litres per day of water was agreed to be supplied. An agreement for supply of potable water was entered on 23.04.2003. Vide letter, dated 02.05.2012, the respondents sought for payment of dues and in the said letter, it is stated as follows:
"With reference to the subject and references cited this is to inform that as per the Board Act 15 of 1989 U/S 8.55 read with rule 4 of water supply rules 1989 vide G.O.Ms.No.413. MA Dt:10-10-1990 Board is vested with powers to impose certain levies of charges towards the sewerage cess and every occupier of both domestic and non-domestic premises shall pay to board at the rate of not exceeding 35% of the bill charged for the water consumption or at such rate as may be prescribed by rules to defray the capital cost of sewerage and sewerage treatment works undertaken from time to time. In terms of Circular No.ED/RBS/Levy of Sew. cess/40 Dt:25-02-2009, under references 1st cited, sewerage cess cannot be exempted from 01-03-2009. Board is levying sewerage 7 CJ & JAK, J W.A.No.995 of 2015 cess to all the consumers and the exemption is not being given even for consumers having their own treatment plants. In this connection, it is also informed that a proposal was sent to the Government of A.P for considering part exemption of sewerage charges to the consumers who are having their own treatment plants with State of Art Technologies. Government after careful consideration has issued Board Proceeding No.136 Dt:10-11-2011 allowing up to 50% rebate in sewerage cess "Prospectively" from 01-01-2012 to those who have S.T.P with State of Art Technologies with in G.H.M.C, area. As your connection falls outside G.H.M.C area the sewerage cess levied till 31-12-2011 is not exempted and need to be paid total."
8. It is pertinent to extract clause 6 of agreement, dated 23.04.2003, which is as follows:
"In accordance with the provision of the Section 55 of the Hyderabad Metropolitan Water Supply and Sewerage Act, 1989 and subject to the rules and regulations made thereunder, the consumer shall pay sewerage cess along with water charges, at such rates as may be determined and prescribed by the Board from time to time.
a) The sewerage cess would apply to:
i) The customer who is provided with water supply connection and premises is situated within the area serviced by the sewerage system of the HMWSSB or the sewage system of the HMWSSB or the sewage system of the customer is ultimately let into the sewage transmission system of the HMWSSB.
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ii) The customer where a premises is not provided with water supply connection, but sewage from that premises is ultimately let into the sewage transmission system of the HMWSSB."
9. Section 55 of the Act, 1989, empowers the Board to levy sewerage cess which is as follows:
"Charges towards the use of sewerage cess:
Every occupier of both domestic and non-domestic premise shall pay to the Board at the rate not exceeding thirty five percent of the bill charging for the water consumed or at such rate as and sewage treatment works undertaken by the Board and the operation and maintenance of the sewerage system from time to time.
Provided that no such charges shall be levied in any premises situated in the areas which are not served by the sewerage system of the Board."
10. As per Rule 4 of the Rules, 1990, every consumer having a service connection for supply of potable water shall pay the sewerage cess as fixed by the Board. Rule 4 is as follows:
"4(1) Every applicant seeking new water supply service connection shall pay pipe line service charges at such rates as may be specified from time to time by the 9 CJ & JAK, J W.A.No.995 of 2015 Board. In addition to fees, rates, tariff, prescribed by the Board from time to time.
(2) Every consumer possessing a water supply service connection for any purpose shall pay such percentage of water bill as sewerage cess as fixed by the Board from time to time to defray to capital and maintenance and operation cost of sewerage system."
11. In paragraph No.8(ii) of the vacate stay application filed by the respondents along with an affidavit, it is stated that the appellant has been releasing sewage water in open areas. The relevant portion is as follows:
"It is also submit that the sewage water of the appellant company is overflowing from the STP and letting out to the open fields to the compound wall of the appellant company, that the sewerage let-out to the open fields is forming as narrow drain flow and leading to Peddavagu and there from Nakkavagu in Chitkel village and the waste water from the Canteen maintained by the appellant company is let out into a Board Nala which is also leading to Peddavagu and there from entered into Nakkawagu in Chitkul village, the effluents of the industry directly or indirectly which let-out to the open fields from the compound wall of the appellant industry and the waste water from the canteen let-out to the public nala belongs to the board or finding their way into storm water drain which are intercepted by the HMWS&SB transported and treated and thus there ultimately joins the sewerage system of the board. Therefore, the appellant industry releasing 10 CJ & JAK, J W.A.No.995 of 2015 the effluent and the same has been carried out by the board and getting treated through board sewerage treatment plant, the appellant petitioner is liable to be paid the sewerage charges, accordingly the demands raised by the respondent board as per the provisions of HMWS&SB Act and rules thereon."
12. Learned Single Judge, taking into consideration Section 55 of the Act, 1989, Rule 4 of the Rules, 1990 and clause 6 of the Agreement, dated 23.04.2003 held as follows:
"In the counter specific assertion is made stating that petitioner company is a polluting industry and is letting out the effluents directly or indirectly into open areas which find their way into storm drain which are intercepted by H.M.W.S & S Board, transported and treated and thus they ultimately join the sewerage system of the Board and are treated by the STPs of the Board set up at various locations like Amberpet/Nallacheruvu. As per clause 6 of agreement dated 23.04.2003 sewerage cess applies where sewage is ultimately let into the sewage transmission system of HMWSSB. This Court also upheld the imposition of sewerage cess, though the effluents are not directly let into the sewage mains of the respondent-Board and the same was followed in W.P.No.20117 of 2011."
13. Having perused the relevant provision(s) and rule(s) and the clause(s) in the agreement, this Court is of the opinion 11 CJ & JAK, J W.A.No.995 of 2015 that the appellant having been granted a water supply connection in the category of Industries-Bulk is required to pay sewerage cess. It is observed in the letter, dated 02.05.2012, that the Board is vested with powers to levy charges towards sewerage cess on every occupier of domestic and non-domestic premises at a rate of 35% of the bill charged for water consumption to defray the capital cost of sewerage and sewerage treatment works undertaken from time to time. It is evident from the record that the sewage water of the appellant company is let out to open fields forming a narrow drain flow and leading to Peddavagu and Nakkavagu (vagu in telugu means 'a small water stream') in Chitkel village and the waste water from the canteen is being let into Board Nala. It is also evident from the record that effluents of the industry directly or indirectly were let into open fields from the compound wall. It can be inferred that the appellant has been letting sewage water into open areas which is leading its way into streams and Board Nalas. This Court is of the opinion that demand made by the 12 CJ & JAK, J W.A.No.995 of 2015 respondents to pay the sewerage cess is in accordance with law.
14. Our opinion is fortified by a reading of Rule 4 of the Rules, 1990 and clause 6 of the agreement that the imposition of levy of sewerage cess is proper. The Apex Court in its judgment relied by the learned counsel for the respondents dealt with the issue "whether levy of sewerage cess was illegal and contrary to the provisions of HMWS&S Act as the appellant was contending that it was not discharging its effluents into the sewerage system of the Board."
15. The Apex Court has upheld the levy of sewerage cess being a statutory levy in terms of Section 55 of the Act, 1989 and clause-16 of the agreement which incorporates the statutory levy under Section 55 of the Act, 1989. It is trite to take note of the fact that clause 6 of the agreement, dated 23.04.2003, between the appellant and respondents also incorporates Section 55 of the Act, 1989. We are not inclined 13 CJ & JAK, J W.A.No.995 of 2015 to take a different view to that of the learned Single Judge that the appellant is a polluting industry and is liable to pay sewerage cess levied. We do not find any infirmity in the order passed by the learned Single Judge. The writ appeal is devoid of merits and is liable to be dismissed.
16. For the aforesaid reasons, the Writ Appeal is dismissed. No order as to costs.
Miscellaneous applications, if any pending, shall stand closed.
__________________________ ALOK ARADHE, CJ _____________________________ ANIL KUMAR JUKANTI, J Date: 15.04.2024 KRR