Haryana State Electricity Board vs Haryana State Board for Prevention and Control of Water Pollution and Others

S.P. Kurdukar, CJ. and Swatantar Kumar, J.—Admitted. Pleadings of the parties are complete. By consent writ petition placed on board and called our for hearing.

The petitioner is the Haryana State Electricity Board having its Civil Maintenance Division, Panipat Thermal Power Station, Assan, Panipat. The third respondent is the assessing authority, u/s 6 of the Water (Prevention and Control of Pollution) Cases Act, 1977, (hereinafter called the Act). The second respondent is the appellate committee constituted under the Act. It is not in dispute that the petitioner who was supposed to file the return u/s 5 of the Act, failed to file the same. Consequently, the assessing authority in exercise of its powers assessed the liability of the petitioner and served the assessment order-cum-water services cess bill for the period from February 1, 1992 to October 31, 1992, Annexure P-2. The petitioner carried an appeal to the appellate committee and the appellate committee vide its order dated August 31,1994, Annexure P-4, dismissed the appeal. It is this order of the appellate committee which is the subject matter of challenge in this writ petition.

The learned counsel for the petitioner while assailing the order of the assessing authority urged that notwithstanding the fact that the petitioner had not filed the return, yet under sub-section (2) of Section 5 of the Act, it was obligatory upon the assessing authority to hear the petitioner before finalising the liability and issuing the assessment order-cum-water services cess bill from February 1, 1992 to October 31, 1992. The learned counsel for the petitioner also brought to our notice the provisions of Section 6(1-A) of the Act. He urged that the order passed by the assessing authority is in violation of the principles of natural justice and if that be so, the same be set aside. He further urged that the appellate committee who should have accepted the contention of the petitioner has also overlooked the provisions of section 5(2) as well as section 6(1 -A) of the Act, and erroneously dismissed the appeal holding that there is no provision for hearing the petitioner. Mr. Vashishta, the learned counsel for the respondent, however, supported the order and urged that in a case of this nature where the petitioner has failed to comply with the provisions of section 5(1) of the Act, by not filing the return, the assessing authority was justified in passing ex parte order and serving the assessment order-cum-water services cess bill for the disputed period. He urged that a person who commits default in following the provisions of law cannot plead the violation of the principles of natural justice.

After hearing the counsel for the parties and after perusing the impugned orders, we are of the opinion that the assessing authority has violated the principles of natural justice and it ought to have heard the petitioner before determining the liability in respect of the water services cess. Having not done so, the order passed by the assessing authority and on appeal confirmed by the appellate committee, cannot be sustained.

In the result, the writ petition is partly allowed. The impugned orders, Annexures P-2 and P-3 are quashed and set aside and the matter is remitted to the assessing authority for disposal in accordance with law. It would be open to the petitioner to file the return at this stage within one month from today. If the petitioner fails to file the return within the period as indicated above, the assessing authority will be at liberty to invoke the provisions of Section 5(2) of the Act. It is needless to add that the assessing authority will give an opportunity to the petitioner to lead such evidence as they deem fit and proper and will pass a speaking order.

The petitioner has deposited with the Registrar of this Court the entire amount under the impugned order of the assessing authority. The Registrar to remit the said amount to the assessing authority who shall keep the same as deposit. The said amount will be adjusted in terms of the order that will be passed by the assessing authority. The Assessing authority to dispose of the matter as expeditiously as possible and preferably within four months from the date of the production of this order. In the circumstances, there will be no order as to costs.