Dismissed

Andhra Pradesh Gas Power Corporation Limited, v. Chairman, Appellate Committee Secretariat

Telangana HC9 Feb 2012WP/960/2005

Case brief

AI extract

What is this about?

This common order dismissed two writ petitions challenging corporate cess under the Water (Prevention and Control of Pollution) Cess Act, 1997. The Court held that there was no error apparent on the face of the record justifying certiorari to quash the appellate committee's orders confirming cess assessment and denying rebates.

What did the court decide?

Both writ petitions were dismissed; miscellaneous applications stood disposed of accordingly with no order as to costs.

Andhra Pradesh Gas Power Corporation Limited, Vs… — Environment and Pollution | Telangana HC (2012)

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*** THE HON’BLE SRI JUSTICE V.V.S.RAO** AND

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*** THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY**

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+ WRIT PETITION Nos.7158 OF 2004 AND 960 OF 2005

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% 09.02.2012

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# Andhra Pradesh Gas Power Corporation Limited .. Petitioner Vs. $ Chairman, Appellate Committee, Secretariat, Hyderabad and another .. Respondents

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! Counsel for the Petitioner : Sri S.Ravi

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Counsel for Respondents : --

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< Gist :

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> Head Note : ? Citations: 1. AIR 1964 SC 477 2. (2004) 4 SCC 714 : 2004 AIR SCW 3888

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION Nos.7158 of 2004 AND 960 of 2005

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Dated:09.02.2012

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Between:

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Andhra Pradesh Gas Power Corporation Limited, 201, My Home Sarover Plaza, Secretariat Road, Hyderabad, represented By its Managing Director Mr.N.S.Ramachandran Petitioner And

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Chairman, Appellate Committee, Secretariat, Hyderabad and another .. Respondents

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THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

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WRIT PETITION Nos.7158 of 2004 AND 960 of 2005

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COMMON ORDER: (Per Hon’ble Sri Justice V.V.S.Rao)

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As the issue for adjudication is common, this order shall dispose of both the writ petitions, filed by Andhra Pradesh Gas Power Corporation Limited (APGPCL) against the orders of the appellate committee confirming the orders of the assessment of Cess for various periods under Section 6 of the Water (Prevention and Control of Pollution) Cess Act, 1997 (the Cess Act, for brevity).

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The brief fact of the matter which is not in dispute is as follows. The APGPCL is a Captive Naphtha/Natural Gas based combined cycle thermal power unit. It established a plant with a capacity of 272 M.W. (Stage–I 100 M.W. and Stage–II 170 M.W.) on an island near Vijjeswaram Village on the Western Delta Main Canal and Irrigation Canal. It draws huge quantity of water from upstream of river Godavari for cooling purposes and other industrial purposes. The petitioner operates three pumps of 390 K.W. capacity and three pumps of 720 K.W. for drawing the river water. The APGPCL filed their returns for assessment of the

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cess. The second respondent passed assessment orders for various periods demanding cess amount under Section 3 of the Cess Act. The petitioner filed appeals before the appellate committee (first respondent), who dismissed them. The petitioner then approached the Supreme Court. The matters were allowed and remitted to this Court, which in turn, remitted the matter to the assessing authority with a direction to assess the liability to pay cess under Section

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3 of the Cess Act. The assessing authority again passed orders confirming earlier assessment. During personal hearing, the petitioner filed data to show the exact quantity of water consumed. Be that as it may, the petitioner again approached the appellate committee who passed separate orders in Appeal No.6 of 2003 on 03.03.2004 and Appeal Nos.8, 11 and 12 of 2003 on the same day. All these are assailed in W.P.No.7158 of 2004. For another period against the orders of the assessment, the petitioner filed appeal before the appellate committee, which was rejected on 05.11.2004. W.P.No.960 of 2006 is against this order.

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In both the writ petitions, the petitioner would contend that the procurement of water metres to measure such huge quantity of water drawn is difficult and therefore the quantity was calculated based on the capacity of the pumps; there is no violation of Section 4 of the Cess Act; the consent of the second respondent under Section 25 of the Cess Act was obtained except for a brief period; while discharging the water into the river/canal, the temperature was maintained below 5⁰ C and there is no violation of notification issued by the Ministry of Environment and Forests (MoEF); the allegation that the petitioner discharged material (DM) re-generated effluents is not correct and that the denial of rebate under Section 7 of the Cess Act is unsustainable.

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The Senior Administrative Manager filed detailed counter affidavits. While denying the various petition allegations, it is submitted that (i) the petitioner is consuming water from the river for cooling (once through cooling system), for boiler feed, discharged material (DM) plant regeneration, auxiliary cooling water (pumps and glands) for domestic/sanitary purposes of plant and townships; (ii) the petitioner is generating effluents by use of the water for various purposes; (iii) the petitioner failed to comply with the standards stipulated in Schedule VI i.e., the General Standards for Discharge of Environment Pollutants (Part A: Effluents (notified vide G.S.R.422 (E) published in Gazettee No.174, dated 19.05.1993) and Schedule I of Rule 3 under E(P) Rules, 1986; (iv) the once through cooling water from Stage-I to Stage-II as well as DM plant effluents are discharged into Western Delta Canal instead of their lands for green belt development after treatment; (v) the petitioner has not fixed metres for the purpose of measuring water as required under Section 4 of the Cess Act; and

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(vi) the petitioner did not obtain prior Consent For Operation (CFO); they applied for CFO only on 03.10.1996; but the plant was operated without CFO from 31.03.1996 to 03.10.1996.

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It is also submitted that the petitioner did not claim any rebate under Section 7 of the Cess Act before the assessing authority and did so for the first time before the appellate authority. In the counter affidavit in W.P.No.960 of 2005, it is also submitted that the officials of the second respondent collected samples every month and measured the temperature differences, which show that the temperature of discharged water exceed 5⁰ C.

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The counsel for the petitioner would submit that in the absence of any material that the discharged water does not

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conform to the standards the denial of rebate is illegal. It is further contended that the charge that DM water re-generated effluents are let out into Western Delta instead of land application and gardening was raised for the first time before the first respondent and therefore the appellate order is improper. The petitioner obtained CFE and CFO except for a brief period of three months and six months between the period from 01.04.1995 to 20.07.1995 and 01.04.1996 to 02.20.1996 and therefore the denial of rebate for alleged violation of Section 7(b) is illegal.

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The two issues that need to be considered are with reference to the calculation of exact water consumed for the purpose of levy under the Cess Act and the entitlement of the petitioner for rebate under Section 7 thereof.

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In so far as the first issue is concerned, for the reasons that follow, we do not find any error much less an error apparent on the face of the record to interfere with well considered order of the appellate committee. Section 3 is a charging section. It mandates levy and collection of cess at the rates as in Schedule II to the Cess Act. Section 4(1) of the Cess Act casts a duty on every person to install standard metres for the purpose of measuring quantity of water consumed for the purpose of levy. There is no denial that for the relevant period the petitioner did not affix the metres. Admittedly, long after the order of the first respondent, the petitioner negotiated with the vendors of the water metres. It is, however, submitted that even if a person fails to affix metres for the purpose of Sections 4(1) and 3, such person cannot be penalized and according to the counsel it is always open to the Central Government to fix the metres and collect costs from the consumer of the water. The submission is to be noted only for the purpose of rejection. The cess under Section 3 is strict liability,

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failure of which entails in penalty under Section 14. Therefore, Section 4(1) is mandatory and merely because Section 4(2) enables the Central Government to install the metres by itself, does not absolve the consumer from the liability under Section 4(1).

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Another issue related to the first one is the question whether the petitioner was discharging DM water re-generated effluent. As a fact the second respondent after making enquiries and the first respondent relying on reports, found that there was discharge of DM plant re-generation effluent into Western Delta Main Canal. As per the requirement, the petitioner is expected to use the DM water re-generated effluent for land application. Therefore, being a question of fact, the certiorari Court cannot go into the issue especially when there is no perversity in the finding recorded.

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The second issue is with regard to the rebate. Section 7 of the Cess Act is relevant and reads as under.

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7. REBATE.

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Where any person or local authority, liable to pay the cess under this Act, installs any plant for the treatment of sewage or trade effluent, such person or local authority shall from such date as may be prescribed, be entitled to a rebate of twenty five per cent of the cess payable by such person or, as the case may be, local authority.

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[Provided that a person or local authority shall not be entitled to a rebate, if he or it

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(a) Consumes water in excess of the maximum quantity as may be prescribed in this behalf for any [industry] or local authority; or

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(b) fails to comply with any of the provisions of section 25 of the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974) or any of the standards laid down by the Central Government under the Environment (Prevention) Act, 1986 (29 of 1986).]

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The Act permits rebate to a person only when one installs

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any plant for the treatment of sewage or trade effluent. The rebate is, however, denied when a person consumes water in excess of prescribed maximum quantity and/or fails to comply with the provisions of Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 or any of the specific standards laid down by the Central Government under the Environment (Protection) Act, 1986. The counter affidavit makes an allegation that the petitioner has not complied with the standards laid down in G.S.R.422, dated 19.05.1993. This is not denied by filing reply affidavit or rejoinder and in the absence of such rebuttal, the allegation stands proved. Further as admitted by the petitioner in Paragraph No.9 of the writ petition

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(in W.P.No.7158 of 2004), they operated the plant for some time without consent which would certainly disentitles them from claiming any rebate.

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Both the writ petitions are filed for a writ of certiorari. It is well settled that a writ of certiorari would issue for quashing an administrative or quasi judicial order only when there is an error apparent on the face of the record. I n Syed Yakoob v Radhakrishna n^[1] , while reiterating the law, the Supreme Court held as follows.

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….An error or law which is apparent on the face of the

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record can be corrected by a writ, but not an error of fact, however, grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or

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inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said findings are within the exclusive jurisdiction of the Tribunal and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised.

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What is error of law apparent on the face of record? The apex Court ruled on this thus.

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It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on the face of the record. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is based on an obvious misinterpretation of the relevant statutory provision, or sometimes in ignorance of it, or may be, even in disregard of it, or is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. In all these cases, the impugned conclusion should be so plainly inconsistent with the relevant statutory provision that no difficulty is experienced by the High Court in holding that the said error of law is apparent on the face of the record…. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of legal provision which is alleged to have been misconstrued or contravened.

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I n State of U.P. v Johri Mal^[2] , the Supreme Court laid down that though reappreciation of facts is not permissible in judicial review, to a limited extent the facts can be scrutinized to see legal compliance on the decision making process. The following observations are apposite:

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It is well settled that while exercising the power of judicial review the court is more concerned with the decisionmaking process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact-finding body or the arbitrator is given finality by the statute which governs a

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given situation or which, by nature of the activity the decisionmaker’s opinion on facts is final. But while examining and scrutinizing the decision-making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the court with special reference to a given case. This position is well settled in the Indian administrative law. Therefore, to a limited extent of scrutinising the decision-making process, it is always open to the court to review the evaluation of facts by the decision-maker.

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(emphasis supplied)

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Therefore, the findings on fact recorded by the appellate committee or mere errors, if any, would not attract the certiorari jurisdiction of this Court. It is only grave errors apparent on the face of the record which warrant the issue of certiorari. In this case, we are convinced that the petitioner has failed to demonstrate any grave error apparent on the face of the record. Both the writ petitions fail and are accordingly dismissed. The miscellaneous applications, if any, filed in these writ petitions shall stand disposed of accordingly. There shall be no order as to costs.

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_______________ (V.V.S.RAO, J)

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________________________________ (G.KRISHNA MOHAN REDDY, J)

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09.02.2012 Note:- L.R. Copy be marked. (B/o)

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