ORDER
Dipak Misra, J.
1. Water is an essential requirement for existence continuance and growth of life. Without water no flower can bloom, no life can flourish. It is the sap of earth. Pure water vitalises the living kingdom and is the basic requisite for human society. In the days of yore Rishis used to have their Ashramas near the sacred rivers and had conferred divine status on them. The invocation ‘Apah Shanti’ in a way seeks benediction of the prime mover for the maintenance of purity of water. The passage of time has witnessed the individual attempts to impure the water. Therefore, there is collective attempt through the process of legislation to preserve the purity of water and sustain ecological balance having due regard for the needs in praesenti. The Water Prevention and Control of Pollution Act, 1974 has made endeavours to maintain and sustain the purity of water by controlling pollution, imposing restrictions and providing for regulatory measures. The petitioner herein has made efforts to expose certain lacunae which relate to the sphere of charging consent fees, licence fee, and the authority of the Pollution Board to cover the likes of the petitioner. The challenge has to be tested on the anvil of aforesaid background, on consideration of relevant provisions of the Act and the philosophy of ecology.
M. P. Rice Mills Association, Raipur, a society registered under the Societies Registration Act has invoked the extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India in the present writ petition praying for issue of writ of prohibition restraining the non- applicants i.e. State of M. P. and M. P. Pradushan Niwaran Mandal from enforcing the provisions of the Water (Prevention and Control of Pollution) Amendment Act, 1978 (hereinafter referred to as the Act) and the Rules framed thereunder by the State of M.P. direct renewal of licence of the Rice Mill Owners under the Rice Milling Industry (Regulation) Act, 1958 where they have obtained licence under the Act, and further declare the Rules 4(v) and 5(v) of the Water (Prevention and Control of Pollution Consent) M.P. Rules, 1975 (in short ‘the Rules’) ultra vires. Alternatively it is prayed that direction be issued that the aforesaid Rules be made applicable only to those industries which discharge effluent in a stream or well.
2. The essential facts required for disposal of the writ petition are thus : Rice being a staple food of millions of Indians the Government of India has recognized it to be an industry of special importance in the interstate trade or commerce. The policy of the Government of India as well as that of the State Government has been to give encouragement to the rice industry keeping in view the needs of urban population of India. In the State of M.P. the maximum concentration of rice mills is in the Chhatisgarh as in the said area maximum rice is produced. The Rice Mill is a small scale industry and the mills are mostly situate in rural or semi-rural areas of the State and are controlled under the provisions of Rice Milling Industry (Regulation) Act, 1958. The conventional type of rice hulling is effected by rubbing action between the rotating discs and by putting the paddy to the action of the aforesaid discs. The rice is thereafter subjected to pearling and polishing which removes most of the outer layers of the grain. This method of extracting rice is popularly known as ‘Arwa’ method and the mills which apply this method are known as Arwa Mills. It is pleaded that the Government does not encourage this method and, therefore, regulates by grant of licence under the Rice Milling Industry (Regulation) Act, 1958. The other method for producing rice from paddy is that where the paddy is steeped in water and then water is steamed and the product is dried. This method is called par-boiling method and the mills which adopt this method are called par-boiling mills. This method is encouraged by the Central Government as well as the State Government as the nutritive value is preserved. It is stated in the petition that this kind of rice mills do not contribute to water pollution and, more-so, 60% of rice mills are situated in rural areas. The business of the mill is a seasonal one as it continues for 4 to 6 months in a year. The industry involved in par-boiled rice discharge about 3 to 8 thousands litres daily for about 3-4 hours and this drainage is negligible as compared to other industries. It is asserted that far from being injurious to health this water is useful for fertility of the soil and does not any way adversely affect the life or health. The ‘Arwa’ type do not create any kind of pollution. These aspects were highlighted by the petitioner-association before the respondents for fixing proper standard before insisting for grant of consent under the Rules. The State Government considering the representation of the association by order 16-12-1986 relaxed the date of obtaining consent till 30-6-1987. On the basis of the order passed by the Govt. a consequential order was passed by the Collector on 1-1-1987 vide Annexure A-2. In spite of the extension of the period the pollution Board insisted for consent fees and the rice industry was threatened by the State and its officers that their licence under the Rice Milling Industry (Regulation) Act, should not be renewed unless and until they complied with the consent Rules. It has also been put forth that when no pollution takes place and no standard has been fixed for determining the pollution the question of realising consent fee does not arise. The aforesaid pleadings related to the time when the writ petition was filed. Along with the aforesaid pleadings it has also been highlighted in the petition that the consent fees and licence fees are not collectible as the State Government does not have the competency to frame such a rule as the Act does not make such provision nor does it authorise the State Government to make such rules in that regard. It has also been put forth that the element of quid pro quo is absent though the fee is levied. In addition to the above, alternatively it is pleaded that the par-boiled rice mills are not liable to pay consent fees as they only discharge water on land.
3. A return has been filed by respondent No. 2, Madhya Pradesh Pradushan Niwaran Mandal. Contending, inter alia, that the Act has been enacted with a specific object to provide for prevention and control of water pollution and maintaining or restoring of wholesomeness of water and for carrying out the aforesaid purposes. Boards for prevention and control of water pollution have been established and powers have been conferred on the Boards for their proper functioning. The averments have been made justifying imposition of consent and licence fees. It has also been put forth in the counter affidavit that on collection of appropriate analytical data it has been found out that the effluent discharge of these rice mills are of no use either to human beings or animals and it affects the fertility of the soil. The averment to the effect that the mills in question only discharge on land and, therefore, they would not be liable for consent and licence fees, has been controverted by referring to various provisions of the Act. It is also stated that the element of quid pro quo is satisfied under the scheme of the Act as the Board is required to do certain act for the collective good. It is further asserted that as 1975 Rules have been framed to further the implementation of the provisions of the Act; they are in consonance with the provisions of the Act and, therefore, cannot be regarded as ultra vires. Lastly, it is stated that the relaxing the date for applying or obtaining consent under the Act does not extinguish the obligations under the Act.
4. The contentions raised by Mr. G. S. Ahluwalia, learned counsel for the petitioner may be categorised as follows :-
(a) Levy of consent fees as well as licence fees as provided under the Rules, is beyond the competency of the State Government as the Act does not authorise it to frame Rules in this regard;
(b) assuming the Rules are held valid the likes of the petitioner are not covered as they discharge the water on land which is not covered under Rule 3 of the Rules;
(c) even assuming that the discharge is covered under Rule 3 of the Rules the effluent so discharged is not pollutive in nature, and in absence of any fixation of any standard, the provisions cannot be made applicable to the rice mills; and
(d) as no service is rendered by the Board there is total absence of quid pro quo, hence the levy of consent and licence fees is illegal.
5. Mr. Jha learned Dy. A. G. and Mr. Shroti learned counsel for the Pollution Board have supported the Rules and their action by referring in detail to the assertions made in the counter affidavit filed by the Board. It has been specifically canvassed by Mr. Shroti that the Board has taken due care by fixing the standard and the grievance on that score is untenable. Replying to the submission relating to absence of quid pro quo it has been proponed by the counsel for the Board that in a statute of this nature the question of individual quid pro quo does not arise, more so, when the Board is required to oversee many an aspect for the collective good as enjoined under the scheme of the Act.
6. We shall deal with the first contention first. The Act in question was enacted with an object to provide the prevention and control of water pollution and the maintaining or restoring of wholesomeness of the water; for the establishment, with a view to carry out the purpose aforesaid, of Boards for the prevention and control of water pollution for conferring on and assigning to such Boards power and function relating thereto and in matters connected therewith. The object and reasons also stipulate for establishment of Boards for the prevention and control of water pollution. Keeping the high ideals in view the Boards are established under the provisions of the Act. Section 4 of the Act deals with the constitution of the State Boards. Section 17 of the Act specifies the functions of the State Boards. Section 25 deals with restrictions on new outlets and new discharges. Sub-sections (4), (5) and (6) of the aforesaid sections were wholly substituted by Section 12 of the Act No. 83/88. Prior to that there was partial amendment vide Act No. 44 of 1978. Before 1978 amendment the concept of consent was provided under Section 25(2). These sub-sections deal with consent. We have referred to these amendments because the learned counsel for the petitioner has seriously urged before us that the amendment has come into effect only from 1978 and, therefore, the State Government could not have framed Rules for imposition of consent fees as such power did not flow from the Act. For better appreciation of the whole scenario we would refer to the relevant provisions existing before the 1978 amendment and the provisions incorporated thereafter : –
Section 25 (before amendment) – “Restrictions on new outlets and discharges. – (1) Subject to the provisions of this section no person shall, without the previous consent of the State Board, bring into use any new or altered outlets for discharge of sewage or trade effluent into a stream or well.
(2) An application for consent of the State Board under sub-section (1) shall be made in the prescribed form and shall contain particulars regarding the proposed constructions, installation or operation of the industrial or commercial establishment or of any treatment and disposal system or of any extension or addition thereto and such other particulars as may be prescribed.
(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed.”
After the amendment the provisions read as follows :-
“25. Restrictions on new outlets and new discharges. – (1) Subject to the provisions of this section, no person shall without the previous consent of the State Board, –
(a) establish or take any steps to establish any industry, operation or process, or any treatment and disposal system or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream or well or sewer or on land (such discharge being hereafter in this section referred to as discharge of sewage); or
(b) bring into use any new or altered outlet for the discharge of sewage; or
(c) begin to make any new discharge of sewage :
Provided that a person in the process of taking any steps to establish any industry, operation or process immediately before the commencement of the Water (Prevention and Control of Pollution) Amendment Act, 1988 for which no consent was necessary prior to such commencement, may continue to do so for a period of three months from such commencement or, he has made an application for such consent, within the said period of three months, till the disposal of such application.
(2) An application for consent of the State Board under sub- section (1) shall be made in such form, contain such particulars and shall be accompanied by such fees as may be prescribed.
(3) The State Board may make such inquiry as it may deem fit in respect of the application for consent referred to in sub-section (1) and in making any such inquiry shall follow such procedure as may be prescribed.”
7. It is not in dispute that the Rules were framed in the year 1975 before these provisions were brought in the statute book. Rules 2(g) and (h) define consent and consent fees respectively. Rule 3 prescribes the procedure for application in the requisite form. Rule 4 deals with the prevention and control by the Board and sub-rule (3) envisages submission of applications giving particulars indicated in consent form and sub-rules prescribes the consent fees as per the schedule mentioned therein. Other sub-rules deal with the grant of consent and imposition of conditions. Rule 5 deals with annual renewal. It is fairly conceded by the learned counsel for the petitioner that after amendment of Section 25 providing authority to the Board to grant consent on such conditions, the State Government has the authority to prescribe the regulatory measures. Thus we are required to answer whether before this amendment the State Government could have framed the Rules as have been framed. We have already referred to the objects and reasons of the Act and functions of the State Board. It is essential in the present context to reproduce the relevant provisions of Section 17 :-
“17. Functions of State Board. – (1) Subject to the provisions of this Act, the functions of a State Board shall be –
(a) to plan a comprehensive programme for the prevention control or abatement of pollution of streams and wells in the State and to secure the execution thereof;
(b) to evolve-methods of utilisation of sewage and suitable- trade effluents in agriculture;
(j) to evolve efficient methods of disposal of sewage and trade effluents on land, as are necessary on account of the predominant conditions of scant stream flows that do not provide for major part of the year the minimum degree of dilution;
(1) to make, vary or revoke any order –
(i) for the prevention, control or abatement of discharges of waste into streams or wells;
(ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify, alter or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution;
(iii) to lay down effluent standards to be complied with by persons while causing discharge to sewage or sullage of both and to lay down, modify or annul effluent standards for the sewage and trade effluents.”
8. Now we may refer to Section 64 of the Act which confers powers on the State Government to make Rules to carry out the purposes of this Act. It authorises the State Government under Section 62(2)(p) to make Rules relating to matters which are to be prescribed. Under Sub-section 2(k) there is provision for making Rules to provide for the form of application for the consent under the State Board as provided under Section 25(2). Reading the object and purpose of the Act and the role of the Board in the scheme of the Act and in view of control to be kept by the Board and the regulatory measures which are required to be provided by the Board, we are of the considered view that the State Government was competent to frame Rules prescribing consent fees as the same was needed to be prescribed as contemplated under Section 64(2)(p) of the Act keeping in view the purpose of the Act. Specific amendment brought in the year 1978 prescribing for payment of consent fees which have been emphasised by the learned counsel for the petitioner does not necessarily mean that under the earlier provision consent fees could not have been prescribed for under the Rules framed by the State Government.
9. Learned counsel for the petitioner in the course of hearing has submitted that assuming Rule 4 of the Rules has to be accepted as valid because of competency of the State Government to frame Rules in that regard, there is no authority on the part of the State Government to prescribe a licence fees. To buttress the submission Shri Ahluwalia referred us to Rule 2(j) where licence has been defined, it reads as follows :-
“2(j) – Licence fees means the licensing fees required to be paid annually to the Board for the discharge of sewage or trade effluent into a stream or well.”
Submission of the learned counsel is that licence fees is different than consent fees and sub-rule (5) deals with annual licence fees and such fees could not have been prescribed under the Rules in absence of such prescription in the Act. We have already held that fixing of consent fees could have been provided for under the Rules even before 1978 amendment. To appreciate the submissions of the learned counsel it is relevant to refer to sub-rules (1) to (4) of Rule 5 of the Rules which is as under :
“5. Annual Renewal. (1) The Board will have a right to revise its decision regarding the consent.
(2) The Board may alter, modify or include any particular conditions in the consent which has to be implemented by the applicant.
(3) In order to maintain a clean condition of natural streams, the Board will have right to inspect any premises and collect samples.
(4) The Board may also make surprise checks of premises and the applicant shall render all assistance desired for such officers authorised by the Board in the performance of the inspections.”
Sub-rule (5) provides that a applicant shall pay an annual licensing fees to the Board as provided in the schedule. Reading the definition in the dictionary clause and sub-rules (4) and (5) we have no hesitation in holding that the licence fees is a yearly renewal for the consent granted. It is not independent of consent. If a genus has the legal sanction there can be no doubt that a permissible species cannot be ostracised. Thus, we are of the considered view that Rules 4 and 5 are not ultra vires the Act.
10. The second submission canvassed by the learned counsel for the petitioner is that as the mills only discharge on land they are not covered within the mischief of the Act and Rules. Learned counsel for the petitioner had drawn our attention to Rule 3 of the Rules which reads as follows :-
“3. Procedures. – Any person who is discharging sewage or trade effluent into the stream or well shall apply in the form appended to these Rules to the Secretary, Madhya Pradesh, State Prevention and Control of Water Pollution Board, Bhopal.”
It is his submission that the Rule only covers the sewage or trade effluent into the stream or well but not the discharge of water on land. To appreciate this submission the learned counsel for the petitioner it is essential to refer to the definition of the word pollution provided under Section 2(e) of the Act which reads as follows :-
“2(e) Pollution means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any other liquid, gaseous or solid substance into water (whether directly or indirectly) as may, or is likely to, create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial agricultural or other legitimate uses, or to the life and health of animals or plants or acquatic organisms.”
This definition is of wide magnitude. True it is the Rules require any person who is discharging sewage or trade effluent into stream or well to make an application. The heading of the Rule is “procedure” and it does not include land but that has to be read in the context of other provisions of the Act. Definition of stream under Section 2(j) reads as follows :–
“2(j) Stream includes –
(i) river;
(ii) water-course (whether flowing or for the time being dry);
(iii) inland water (whether natural or artificial)
(iv) sub-terranean water;
(v) sea or tidal waters to such extent or as the case may be, to such point as the State Government may, by notification in the official gazette specify in this behalf;”
11. Keeping the purpose of the Act it would not be appropriate to give Rule 3 a meaning which will to hinder the purpose of the Act. That apart, there is no material on record that the trade effluent is not getting into the stream as defined under Section 2(j) of the Act. We are of the considered view that the submission of the learned counsel for the petitioner is devoid of merit and is liable to be rejected.
12. The next submission of the learned counsel for the petitioner is that no standard has been fixed by the Pollution Board to lay down the degree of pollution caused by the industry and therefore no consent fees and licence fees can be levied on them. In the counter affidavit of the Board it has been stated that in the process of milling the paddy is kept in a tank and the tank is filled-up with water. Stream treatment is given to the paddy and in this stage after 18-24 hours fermentation process starts. This fermentation process is nothing but a process by which some gases are emitted. The waste water which is generated contain high B.O.D. 400-500 mgs. per litre and high range of C.O.D. concentration which is about 1000 to 1500 mg. per litre. The analysis report has been brought on record as Annexure R-12. It has been mentioned that the same adversely affects the soil fertility and the effluent cannot be used for human or animal consumption. It is also stated that the plant life is destroyed because of this pollution. A copy of the Indian Standard tolerance limits for industrial effluents has been brought on record as Annexure R-13. We do not have any reason not to accept the stand of the Pollution Board that standard has already been fixed. We accept that Board has taken appropriate steps in fixing the stand with regard to the effluent discharged by the mills like that of the petitioners. In view of the above analysis we do not find any substance in the submission of the learned counsel for the petitioner.
13. Presently, we shall advert to the last contention raised by the learned counsel for the petitioner that the absence of quid pro quo vitiates the levy of consent as well as licence fees. To appreciate this contention of the learned counsel the function and responsibilities of the Board under the scheme of the Act are to be scrutinized. The Board has been established for prevention and control of water pollution. The Central Board functions under Section 16 of the Act and State Board functions under Section 17 of the Act. The Board is required to conduct and participate in investigation and research relating to water problem; to collaborate with the Central Board in programme for the prevention, control or abatement of water pollution; and to evolve methods of utilisation of sewage and suitable trade effluents in agriculture; and to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents; and to review plans, specifications or other data relating to plants set up for the treatment of water; to evolve economical and reliable methods of treatment of sewage and trade effluents, having regard to the peculiar conditions of soils; to establish or recognise a laboratory to enable the Board to perform its functions to lay down standards of treatment of sewage and trade effluent taking into account whether the minimum fair weather dilution available in the stream. From the aforesaid it is clear that it renders service to the persons of the locality. As indicated in the return, lot of amount is spent to carry on the functioning of the Board by which every individual, including the rice mill owners are benefited. In this context we may refer to the decision rendered in the case of Municipal Corporation of Delhi v. Mohd. Yasin, (1983) 3 SCC 229 has held as under :-
“Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. Further, neither the incidence of the fee nor the service rendered need be uniform. That others besides those paying the fees are also benefited does not detract from the character of the fee. In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the Court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulously the cost of the services rendered etc. against the amount of fees collected so as to evenly balance the two. A broad co-relationship is all that is necessary. Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax.”
The view expressed in the case of Municipal Corporation of Delhi (supra) was agreed to in the case of Commissioner and Secretary, the Government Commercial Taxes and Religious Endowment Department and Ors. v. Sree Murugan Financing Corporation, Coimbtore and Ors. (1992) 3 SCC 488.
14. The Apex Court in the case of Krishi Utpadan Mandi Samiti v. Ashok Kumar Dineshchandra and Anr., (1996) 10 SCC 100, referred to the case of Municipal Corporation of Delhi v. Mohd. Yasin (supra) and City Corporation Calicut v. Thachambaleth Sadasivan, (1985) 2 SCC 112. It is worthwhile to quote from City Corporation of Calicut, (1985) 2 SCC 112 :-
“It is thus well settled by numerous recent decisions of this Court that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services renders for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for collecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee.”
15. We may also refer to the decision rendered in the case of The Sirsilk Ltd. and Ors. v. Centuary Spinning and Manufacturing Company with the Textile Committee and Ors., AIR 1989 SC 317, wherein their Lordships taking into consideration that the fee levied was utilised in the whole Textile Industry, expressed as follows :-
“When the entire proceeds of the fee are utilised in financing the various projects undertaken by the Textile Committee, as also the inspection of all textiles including man made fibres and textile machinery it cannot be said that there is no reasonable and sufficient correlation between the levy of the fee and the services rendered by the Textile Committee. When the levy of the fee is for the benefit of the entire textile industry, there is sufficient quid pro quo between the levy recovered and the services rendered to the industry as a whole.” In the case of Krishi Upaj Mandi Samiti and Ors. v. Orient Paper and Industries Ltd., (1995) 1 SCC 655 after referring to the previous judgment of Apex Court, their Lordships culled in sub-para 27 of Paragraph 21 as follows :-
“It is not a postulate of a fee that it must have relation to the actual service rendered. However, the rendering of service has to be established. The service, further, cannot be remote. The 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. It is not necessary to confer the whole of the benefit on the payers of the fee but some special benefit must be conferred on them which has a direct and reasonable co-relation to the fee. While conferring some special benefits on the payers of the fees, it is permissible to render service in the general interest of all concerned. The element of quid pro quo is not possible or even necessary to be established with arithmetical exactitude. But it must be established broadly and reasonably that the amount is being spent for rendering services to those on whom the burden of the fee falls. There is no postulate of a fee that it must have a direct relation to the actual services rendered by the authorities to each individual to obtain the benefit of the service. The element of quid pro quo in the strict sense is not always a sine qua non for a fee. The element of quid pro quo is not necessarily absent in every tax. It is enough if there is a broad, reasonable and general co-relationship between the levy and the resultant benefit to the class of people on which the fee is levied though no single payer of the fee receives direct or personal benefit from those services. It is immaterial that the general public may also be benefited from some of the services the primary service intended is for the payers of the fees.”
Applying the aforesaid principles we are of the firm view that collection of consent and licence fees cannot be regarded as illegal or unjustified.
16. As all the contentions raised by the learned counsel for the petitioner fails, the writ application is dismissed being devoid of merit. However, there shall be no order as to costs. Security amount, if any, be refunded to the petitioner.
