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3. Learned Counsel appearing for the petitioner submits that the Water Act, 1974 and Air Act, 1981 do not cover all kinds of discharge or emission of pollutants, but they cover only such discharge or emission of pollutants which are above the prescribed levels and thus if the pollution is within the limits, the said Acts have no application and the question of obtaining consent does not arise. A close reading of Sections 25 and 26 of the Water Act, 1974 makes it clear that the consent is required for establishment but not for carrying on. If the Act obligates on the constituent to seek consent for operation, it amounts to unreasonable restriction which in turn infractures fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. The specific use of expression to establish or to take steps to establish vis-a-vis the use of expression to carry on or carried on clearly denotes that Parliament intended to require a person to obtain consent only to establish, but not for carrying on. But only the expression to establish or to take steps to establish have been used in Section 25 and not the expression to carry on. In nutshell, his submission is consent is not required for carrying on and it is required only for establishing. His next submission is that the source of the power of the Board to insist upon consent to carry on industry, operation process or treatment or disposal system after having established such industry, operation process or treatment or disposal system is not traceable to any of the provisions contained under any of the Acts including the Water Act, 1974 and the Air Act, 1981. Hence, insisting on such a consent is one without jurisdiction. If such a consent is held to be obtained every year, then collecting the said fee would become compulsory in nature and since it is collected as fee for granting consent, there is no Quid Pro Quo, the same amounts to tax, but not fee. And no tax is leviable without source of power, for running an industry. As per the unamended Section 25 of Water Act, 1974, consent was intended only for bring into use any new or altered outlet for discharge of sewage or trade effluent or begin to make any new discharge of any sewage or trade effluent. Thereafter the Act was amended by Act No. 44 of 1978. Though Section 25 was amended by the 1978 Amendment Act, but the said amendment has no bearing on the point in question for the reason that the words "stream or well" have substituted by "stream or well or sewage or a land" and, after the words "under Sub-section (1)" the following words have been added "shall be accompanied with such fees as may be prescribed and". Thereafter the scope of the Water 1974 was enlarged by Act No. 53 of 1988 so as to cover industries operation etc., at the stage of their inception itself namely "for establishing or to take steps to establish."

5. Per contra, learned Standing Counsel for R1-Board submits that the applicability of Section 25 is not dependent on the discharge of trade effluents over and above the prescribed standards. The words likely to discharge sewage or trade effluents make it abundantly clear that likely discharge of sewage or trade effluent from industry....etc is enough to attract the requirement of Section 25 of the Water Act, 1974. The effluents discharged from the petitioner-industry are with several parameters having potential on water bodies, on land etc. The consent that is granted under Section 25 is for the industry operation or process, which is likely to discharge sewage or trade effluents, but not for the pollution that is generated. The proviso which is introduced through 1988 amendment Act further makes it clear that industries which have been in operation without consent were given three months time to apply for consent and continue to run till disposal of such application. The word 'establishment' should not be understood only to mean pre-production stage in an industry. The word establishment denotes a continuous act and so long as the activity goes on the Board is under obligation to call upon the unit to have the consent for operation from the Board. The State Government in exercise of its powers under Section 64(j)(k) of the Water Act, 1974 has rationalized the consent fee structure vide G.O. Ms No. 157 EFS&T, dated 22.11.1997. The G.Os have not only rationalized the consent fee structure on pollution potential and capital outlay to the units but also prescribed the consent fee for operation annually. The application of quid pro quo is uncontextual. The amount realized by way of consent fee are being utilized by the Board for discharging the functions under:

The reason for referring this letter is that the petitioner categorized its industry under ORANGE category. The categorization of the industries finds place in the official memorandum dated 27.9.1988, Government of India, Ministry of Environment, Forests and Wild Life. Consent fee for establishment and operation, renewal of industrial units under the Water Act, 1974 and the Air Act, 1981 has been fixed by the Government under G.O. Ms No. 157 EFS&T, dated 22.11.1997. The petitioner did not choose to challenge the above referred memorandum or the Government Order.

15. Learned Counsel for the petitioner submits that the consent fee charged is exorbitant and there is no nexus with the services being rendered. Learned Counsel for R1-Board contends that the amounts received as consent fee from the industries is being spent to oversee the operation under the Air and the Water Acts etc. and to contain the pollution to the bearest minimum. Section 37(2) of the Water Act, 1974 provides for spending the money received by the Board. It has been held by the Supreme Court in Krishi Upaj Mandi Samiti v. Orient Paper and Industries Limited, , that test of quid pro quo is not to be satisfied with close or proximate relationship in all kinds of fees. A good and substantial portion of the fee must, however, be shown to be expended for the purpose for which the fee is levied. We therefore do not see any substance in the contention of the learned Counsel for the petitioner that the consent fee is exorbitant and no nexus in the service being rendered.