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18. The functions of supply of the water by the water and sewerage board as per the Hon'ble Supreme Court which recognises the water as a part of the right to life under Article 21 of the Constitution of India. It is a constitutional obligation of the Government or the State to provide water to PSK,J&NNR,J cea_04_2011 its citizens. Since the same is for the use of human life, which takes precedence over all the other uses, thus is called as sovereign function. Whereas when it comes to the Boards which have a regulatory role in controlling and managing water resources, promoting conservation and protecting sources which are essential functions of the said boards. Generally, for purpose of maintenance and Recovery of cost of infrastructure, therefore, they are performing sovereign functions.

8. Earlier, in the matter of GUJARAT WATER SUPPLY AND SEWERAGE BOARD versus HIRABHAI BHURABHAI, reported in 2002 (2) GLH 717, this court had an occasion to consider the question as to whether the petitioner GUJARAT WATER SUPPLY AND SEWERAGE BOARD is an industry or not. This Court, after considering the decision of the Constitution Bench of the apex court in the matter of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, and also after considering the activities carried out by the petitioner, has held that the petitioner is an industry within the meaning of section 2(j) of the ID Act, 1947. The Board is not having power to function any sovereign function. The powers to function any PSK,J&NNR,J cea_04_2011 sovereign function are enjoyed only by the State of Gujarat. No other body or person or corporate body are having such powers. The scarcity work wherein the State of Gujarat has declared any project or work of relief with a view to help the affected citizens, then only in such cases where the State has performed the work during the scarcity has been considered to be the sovereign function and not covered by the provisions of the ID Act, 1947 which is not so in this case. In this case, first of all, the petitioner has not raised such plea before the labour court. Even if it is believed that such plea has been raised by the petitioner before the labour court, considering the activities of the board, the petitioner board is having their own systematic activities organized by the cooperation between the employer and the employee for the production and/or distribution of the goods and services calculated to satisfy the human wants and wishes. Therefore, prima facie, there is an industry in that enterprise. The apex court has observed as under in the matter of Bangalore Water Supply and Sewerage Board Vs. A. Rajappa and Others, in para 161 of the said judgment:

11. It is also necessary to be noted that in entire written statement filed by the petitioner board before the labour court in reply to the statement of claim of the workman, the petitioner board has not raised any contention that it is not an industry within the meaning of section 2(j) of the ID Act, 1947; the ID Act, 1947 is not applicable to it. Not only that, the petitioner has also not raised a contention before the labour court that the scarcity work done by the petitioner board is a sovereign function and, therefore, the provisions of the ID Act, 1947 would not be applicable to it. The petitioner is raising such contention before this Court for the first time. Mere mention of the scarcity work wherein the workman worked would not convert the scarcity work into the sovereign function of the State, performed by the petitioner. The petitioner board is not a State of Gujarat to perform the sovereign function of the State within the jurisdiction of the State and that is not the function of the petitioner board. It makes lot of difference to perform sovereign function by any other authority which is otherwise not empowered for the same in law. In written statement, except the PSK,J&NNR,J cea_04_2011 reference of the appointment of the workman in scarcity work, no such contention has been raised by the petitioner that the provisions of the ID Act, 1947 are not applicable and that the scarcity work is not covered by the definition of the term industry within the meaning of section 2(j) of the ID Act, 1947; that the scarcity work performed by the petitioner is the sovereign function. No such contentions were raised by the petitioner before the labour court in its written statement. Not only that, during the course of hearing before the labour court, no such submission has been made by the advocate for the petitioner first party before the labour court. Bare perusal of the award in question makes it clear that no such submission has been made by the petitioner before the labour court at the time of hearing. Bare perusal of the written statement filed by it before the labour court makes it clear that no such contention has been raised by the petitioner before the labour court in its written statement and, therefore, the labour court was not able to deal with and decide such contention. Therefore, in absence of such contentions and submissions, the labour court has dealt with the question that the workman has completed more than two years'' continuous service which is not in dispute and before terminating the services of the workmen, legal and mandatory provisions of the Industrial Disputes Act, 1947 were not complied with by the petitioner and that is how the termination was found to be bad in law by the labour court. Now the question is that once when no such contentions were raised by the petitioner before the labour court, whether the petitioner is entitled to raise such contentions before this Court for the first time ? This aspect has been examined by the apex court in the matter of Krishi Utpadan Mandi Samiti v. Arvind Chaubey, (2002) 9 SCC 549 . In the said matter, the plea that the employer is not an industry was not taken before the tribunal. It was held by the apex court that it could not be canvassed higher up. In para 2 of the said judgment it has been observed by the apex court as under:

13. Two decisions were cited by the learned advocate Mr. Chauhan for the petitioner. One is the decision of the division bench of this court in the matter of J.J. Shrimali Vs. District Development Officer, Mehsana and Others, and the another one is the decision of the full bench of this court in the matter of HK Makwana versus State of Gujarat & Ors., reported in 1994 (2) GLH 213 wherein the decision of the division bench of this court in the matter of J.J. Shrimali Vs. District Development Officer, Mehsana and Others, was approved by the Full Bench of this Court. I have considered the said two decisions cited by the learned advocate Mr. Chauhan. In the said two decisions, the petitioner was not the GUJARAT WATER SUPPLY AND SEWERAGE BOARD. In the said matter, work of particular project and relief as managed by the State of Gujarat has been considered to be the sovereign function. It was not the decision in the said matter that any industry, if it is performing any type of work in scarcity has to be considered as the sovereign function. That is not the ratio of the said decisions. I am, therefore, of the opinion that both the said decisions are relating to the sovereign functions of the state and not in respect of any industry. Therefore, both the said decisions are not applicable to the facts of the present case. The facts of the present case and the facts of the said decisions are altogether different and there is no slightest similarity as regards the factual aspects of the matter and, therefore, said two decisions are not helpful to the petitioner in any manner whatsoever.