JUDGMENT R.K. Abichandani, J.

1. By this application, the applicants Gujarat Chamber of Commerce and Industry and the Textile Processors' Association, pray for recalling the order dated 5th August, 1995 passed in Special Civil Application No. 770 of 1995 and after reviewing it, to direct the Ahmedabad Municipal Corporation to fulfil its statutory obligaton by permitting the industrial units to discharge the trade effluent into the main trunk line after meeting with the public sewer norms. A further direction is sought on the GIDC to lay down the internal drainage line within the estate areas within a stipulated time. A relief is also sought that the order dated 5th August, 1995 be modified by extending the time and permitting the industries to set up the CETP within the said estates and pending installation of the CETP, to permit them to discharge their effluent into the Kharicut canal, after meeting the necessary parameters as stated in the application.

2. It appears that during the pendency of this application, more than 35 interim orders came to be passed and the focus was so far laid on extending the time limit in favour of the industries represented by the applicants for setting up the CETP. By such extensions, the industries were able to ward off the closure, which they were facing, if they did not set-up the CETP within the time indicated in the order dated 5th August, 1995.

2.2 When this application is called out for final hearing, the applicants have now concentrated only on the aspect of recall of the order dated 5th August, 1995 made in Special Civil Application No. 770 of 1995, more particularly of the direction contained in paragraph 135B (ii) of the judgement. The crux of the contentions raised at the hearing of this application was that since it was the statutory obligation of the Corporations to lay drainage lines beyond CETP, the industres represented by the applicants could not have been asked to bear the costs of such drainage line. It is also the case of these industries that the obligation was not only statutory, but even under the contract after the take- over by the AMC, the Corporation was obliged to bear the expenses for the drainage line.

3. In Pravinbhai J. Patel v. State of Gujarat, reported in 36(2) G.L.R 1210, being the decision, the applicants would like us to review, more particularly as regards the direction contained in paragraph 135B(ii), the Division Bench of this Court, after a detailed consideration of all the relevant aspects of the matter, had directed the closure forthwith of the manufacturing operations, of those polluting industrial units who manufactured seven specified items mentioned in paragraph 135(i), the polluting chemical industrial units mentioned at item (ii), the carbonising units in the textile processing industries, till such units had the effluent treatment plant and were able to achieve the GPCB norms as specified at item (iii), stainless steel rolling and re-rolling mills until they had the requisite effluent treatment plant and were able to achieve GPCB norms specified at item (iv), the textile processing units using more than 25000 litres of water per day, unless they give primary and secondary treatment to their effluent and are able to achieve GPCB norms and obtain NOC/Consent as mentioned in item (v), and the two units that claimed zero effluent, unless they were able to satisfy GPCB that they were in a position to achieve norms and obtain NOC from it as stated in item (vi) of paragraph 135 of the judgement. It was directed that in order to ensure that production was suspended by those units, the State Government would issue necessary orders for stoppage of supply of electricity and/or water to ensure compliance. The units ordered to suspend or close their operations could start only after obtaining consent letters from the GPCB. In paragraph 135B(i), a direction was issued on the State Government to see that the textile units as well as the polluting chemical industrial units having a discharge of less than 25,000 litres of water per day achieve the GPCB norms by 31.12.95, failing which they were liable to be closed down with effect from 1.1.96 In short, the industries faced immediate closure as per these directions.

3.1 Then comes the direction which has been the subject matter of this Review Application and which is contained in paragraph 135B(ii) of the judgement and is reproduced hereunder:-

"Para 135B(ii) - The State of Gujarat, G.I.D.C and A.M.C are directed to lay separate/necessary pipes and/or drains to carry the treated industrial effluent to Pirana for mixing the same with the treated sewage before discharge into the river. The expense for this shall be borne entirely by the polluting units, who shall contribute pro-rata as and when demanded by the Government. The work on this should start immediately and be completed by 31st December, 1995, or within such extended time as the Court may allow on a proper application being made."

4. According to the applicants, the direction that the expenses for laying separate/necessary pipes and/or drains to carry the treated industrial effluent to Pirana for mixing the same with the treated sewage before discarge into the river shall be borne entirely by the polluting units who shall contribute pro-rata as and when demanded by the Government, requires to be reviewed. In this context, the learned Counsel appearing for the applicants argued that this direction was an accidental slip because the Court had directed in paragraph 129 of the judgement that the GIDC or AMC should continue to discharge their statutory or contractual obligations like laying of drains and pipes, which they would be required to do as a part of their normal duty. It was contended that the GIDC or AMC were restrained only from spending their own money for setting up the CETP. The CETP has been already set up by the industries by now after getting the extensions from time to time during the pendency of this application. Therefore, any drains and pipes which were required to be laid down under the statutory obligations of the Corporation, were to be laid down at its own expenses. Therefore, the direction to the effect that the expenses for laying down such pipes and drains for carrying the treated industrial effluent to Pirana should be pro-rata contributed by the polluting units as and when demanded by the Government, could not have followed the direction that it was the duty of the Corporation to lay such drains/pipes to carry the trade effluent. It was further argued that even if this was not to be treated as an accidental slip, it was an error apparent on the face of the record, because the Court lost sight of the fact that it was the statutory duty of the Corporation to lay the drainage. The Court also lost sight of the fact that there was no norm regarding TDS prevalent since 1993 under the Environment (Protection) Act, 1986. It was argued that since the TDS norm was withdrawn, the ground that the pipeline would be eroded because of high TDS content of the effluent and therefore, the industrial units should bear the expenses for laying a separate drain, did not survive. Even the ground that the TDS would destroy the secondary treatment plant would not survive because the factor of TDS was withdrawn under the Environment Pollution Rules framed under that Act. It was further argued that the industries were already paying conservancy tax and if at all their trade effluent caused a higher strain on the drainage system, some additional drainage cess or conservancy tax could have been imposed; but they could never have been required to bear the expenses of the drains/pipes which were required to be laid by the Corporation within its limits. It was also contended that the main objection was only against Vatva Industries and even if separate line was needed, it could have been only from Vatva and not from other industrial estates. The industries of such other industrial estates therefore could not have been asked to contribute to the expenses of laying drainage for carrying trade effluent to Pirana. It was also contended that the AMC and GIDC had played a virtual fraud on the Court because it was their contractual and statutory obligation to lay down such drainage and bear its expenses. In fact, commitment was already made in the past to incur these expenses under the statutory and contractual duties of the Corporation. The Counsel contended that this Court had plenary review powers and for this purpose, he placed reliance on the decision of the Supreme Court in Common Cause, a Registered Society v. Union of India, reported in (1999) 6 S.C.C 667, in which the Hon'ble Supreme Court in paragraph 179 of the judgement, held that the powers of the Supreme Court under Article 32 and of the High Courts under Article 226 are plenary powers and are not fettered by any legal constraints. If the Court, in exercise of these powers has itself committed a mistake, it has the plenary power to correct its own mistake. In view of this clear statement of law, we are not going into any debate over the ambit of the review powers of this Court and we would rather concentrate on the question whether there has been any such mistake committed while giving the aforesaid directions objected to by the applicants, which requires to be reviewed.

5. The learned Additional Advocate General arguing for the respondents contended that there was no error on the face of record of the said decision in giving the direction which is objected to by the applicants. It was argued that from the judgement it was clear that the Court had the benefit of various reports such as Pandya Committee Report, Neema Committee Report, Chokhvatia Committee Report and Bhanujan Committee Report and also of various affidavits which were placed on record. The Court had also the benefit of seeing the conditions in the consent orders given by the GPCB and the judgement shows that the decision requiring the industries to bear the expenses of such separate drainage line, was a conscious, just and legal decision. It was pointed out that the Court had specifically held that there was no justification for the GIDC and the AMC to shell out its own funds for setting up CETP or to incur the expenses to the tune of Rs. 20 crores as mentioned in Bhanujan's report. It was observed as to why should the public bodies pay for discharging an obligation of the industry and that the industry should mend its own ways at its own cost. These observations in paragraph 129 of the judgement were read somewhat differently by the learned Counsel for the applicants, who emphasised that they were directed to incurring the cost of setting up CETP and that the observations that the GIDC or AMC should continue to discharge their statutory and contractual obligations like laying of drains and pipes which they would be required to do as a part of their normal duty indicated this, and that these observations were not applicable to the drains and pipes which were required to be laid by the Corporation under the statute or under the contractual obligations. The learned Additional Advocate General further argued that an attempt to get the directions that the industry should contribute to setting up of the pipeline for taking trade effluents to Pirana, reviewed was earlier made and it failed in MCA No. 91 of 1996, which was filed by the Textile Processors' Association, which is the applicant No.2 in the present application. The Textile Processors' Association had earlier filed Special Leave Petition (Civil) No. 617 of 1995 against the decision in Pravinbhai's case (supra) before the Hon'ble Supreme Court and the Supreme Court was of the view that the matter should be gone into by the High Court and that is why the said petitioner No.2 Association filed the Review Application (MCA No. 91 of 1996), before the High Court. The Division Bench while dealing with the directions contained in paragraph 135B(ii) of the judgement in Pravinbhai's case (supra), held as under in para 19 of its order dated 26.7.1996:-

"Mr. Vakharia lastly submitted that, in any case, the direction that the industry alone ought to contribute for setting up the pipeline for taking effluents to Pirana dserved to be interfered with. The Division Bench was fully conscious that in normal circumstances it was the responsibility of the public bodies to lay the drains and pipes, within the municipal limits but at the same time, when the industry has violated all laws and norms all these years and discharged untreated or improperly treated effluents in a haphazard manner and made huge profits, it could not be said that again public funds be spent on putting up a separate pipeline as the municipal drains and pipelines would not be able to transport the quantity and quality of industrial effluents. That pipeline is required exclusively for carrying the industrial effluents and therefore, there was nothing erroneous in the direction that the industries alone ought to contribute and public funds may not be spent for that."

Admittedly, this deicision was challenged before the Hon'ble Supreme Court and the SLP (Civil) No. 18043/96 was dismissed by the Hon'ble Supreme Court by its order dated 16.9.1996. It was contended that since the SLP was summarily dismissed, there was no binding decision under Art. 141 of the Constitution of India and that this Court can go into the question again in the present application for review of the same directions in Pravinbhai's case (supra). The learned Additional Advocate General however, contested this proposition of the applicants by contending that the decision being affirmed by the Supreme Court, would not be amenable to review again and that this aspect was different from the aspect where the Supreme Court summarily rejects SLP and does not lay down any proposition of law that would be binding under Art. 141 of the Constitution.

6. In order to ascertain as to what are the duties of the Municipal Corporation in respect of laying drains and pipes, it would be necessary to refer to some of the provisions of the Bombay Provincial Municipal Corporation Act, 1949. These are:

"Sec. 2(35) "Municipal drains means" a drain vested in the Corporation"

"Sec. 153 - (1) The Commissioner shall maintain and keep in repair all municipal drains and shall with the approval of the Corporation construct such new drains as shall from time to time be necessary for effectually draining the City.

(2) The Commissioner shall also, in the case of any street in which there is a municipal drain, construct at the charge of the Municipal Fund such portion of the drain of any premises to be connected with such municipal drain as it shall be necessary to lay under part of such street and the portion of any connecting drains so laid under the street shall vest in the Corporation and be maintained and kept in repair by the Commissioner as a municipal drain."

"Sec. 159 - (1) Subject to the provisions of this section, the owner or occupier of any premises shall be entitled to cause his drain to empty into a municipal drain or other place legally set apart for the discharge of drainage:

Provided that nothing in this sub-section shall entitle any person --

(a) to discharge directly or indirectly into any municipal drain any trade effluent except in accordance with the provisions of Section 166 or any liquid or other matter the discharge of which is prohibited by or under this Act or any other law for the time being in force;

(b) where separate municipal drains are provided for foul water and for surface water, to discharge directly or indirectly --

(i) foul water into a drain provided for surface water; or

(ii) except with the permission of the Commissioner surface water into a drain provided for foul water; or

(c) to have his drain made to communicate directly with storm-water overflow drain.

(2) Every person desirous of availing himself of the provisions of sub-section (1) shall obtain the written permission of the Commissioner and shall comply with such conditions as the Commissioner may prescribe as to the mode in which and the superintendence under which connections with municipal drains or other places aforesaid are to be made.

(3) The Commissioner may, if he thinks fit, in lieu of giving permission under sub-section (2) to any person to have his drain or sewer connected with a municipal drain or other places as aforesaid himself connect after giving notice to the person concerned within fourteen days of the receipt of his application, and the reasonable expenses of any work so done shall be paid by the person aforesaid."

"Sections 166: - Subject to the provisions of this Act, rules and by-laws, the occupier of any trade premises may, with the consent of the Commissioner, or so far as may be permitted by any such rules or by-laws without such consent, discharge into the municipal drains any trade effluent proceeding from those premises."

"Section 166A(1) Notwithstanding anything contained in this Act, or the rules or by-laws or any usage, custom or agreement, where in the opinion of the Commissioner any trade premises are without sufficient means of effectual drainage of trade effluent or the drains thereof, though otherwise unobjectionable are not adapted to the general drainage system of the City, the Commissioner may by written notice require the owner or occupier of such premises --

(a) to discharge the trade effluent from the premises in such manner, at such times, through such drains and subject to such conditions as may be specified in the notice and to cease to discharge the trade effluent otherwise than in accordance with the notice;

(b) to purify the trade effluent before its discharge into a municipal drain, and to set up for purifying the trade effluent such appliances, apparatus, fittings and plant as may be specified in the notice'

(c) to construct a drain of such material, size and description and laid at such level and according to such alignment and with such fall and outlet as may be specified in the notice;

(d) to alter, amend, repair or renovate any purification plant, existing drains, apparatus, plant-fitting or article, used in connection with any municipal or private drain."

6.1 It will thus, be seen that the expression "Municipal drain" has a special meaning and it means a drain that has vested in the Corporation. It is the duty of the Municipal Commissioner to maintain and repair all such Municipal drains and with the approval of the Corporation to construct new drains from time to time as shall be necessary for effectively draining the city. The drains vesting in the Corporation under Section 153(2) of the Act, are required to be maintained and kept in repair by the Municipal Commissioner as Municipal drains.

6.2 So far discharge of trade effluent is concerned, as per the proviso to Section 159(1), no person is entitled to discharge directly or indirectly into any Municipal drain any trade effluent except in accordance with Section 166. Conditions imposed by the Commissioner as to the mode in which connections with municipal drains or other place set apart for the purposes of discharge of drainage are required to be followed as provided in Section 159(2) of the Act. The Commissioner has a discretion under Section 159(3), if he thinks fit, in lieu of giving permission under sub-section (2) to any person to have his drain or sewer connected with a Municipal drain or other places as aforesaid, to himself connect after giving notice to the person concerned as prescribed therein and the reasonable expenses of any work so done shall be paid by such person. This would mean that the expenses of the drains till the point they are connected with the Municipal drain or other place set apart for the discharge of trade effluent are required to be borne by such person and not the Corporation.

6.3 Section 166A of the Corporation Act, inter-alia, empowers the Commissioner to require the owner of trade premises to discharge the trade effluent from the premises in such manner, at such times, through such drains and subject to such conditions as may be specified in the notice and to cease to discharge the trade effluent otherwise than in accordance with the notice. The Commissioner may also require under the said provision such owner or occupier of any trade premises to construct a drain of such material, size and description and laid at such level and according to such alignment and with such fall and outlet as may be specified in the notice. The Commissioner can exercise these overriding powers where drainage of the trade premises is not adapted to the general drainage system. It will be seen that the distinction between drains and Municipal drains to which they are connected for discharge of effluent is maintained through out the provisions of Chapter XII of the said Act. It is also clear that the owner of trade premises can be required by the Municipal Commissioner to connect his drain at some other place which is set apart for discharge of effluent.

6.4 It will thus be seen that though it is the paramount duty of the Municipal Corporation to provide a Municipal drainage system, the Municipal Commissioner can require the owners of the trade premises to construct drains for discharge of trade effluent and empty their drains into Municipal drain or other place legally set apart for the discharge of drainage, in view of the provisions of Section 166A, read with Section 159 of the said Bombay Provincial Municipal Corporations Act. While it is the duty of the local authority to construct, maintain and repair all Municipal drains under Section 153 of the Corporation Act, it is not its duty to construct at its expenses drains other than Municipal drains which it may require the owner of the trade premises to construct under Section 166A, when the trade effluent or the drains thereof are not adapted to the general drainage system of the city. Thus, even the local authority could have insisted on a separate drain for the trade effluents of these persons upto Pirana where the drain is allowed to be emptied in the place set apart for the discharge of such drainage. Therefore, in our view the aforesaid direction contained in para 135B(ii) of the judgement in Pravinbhai's case is neither a slip nor an error and it is in consonance with the provisions of law as indicated above.

7. The fact that the parameter of TDS earlier prescribed is withdrawn from Part A of Schedule (vi) under Rule 3A of the Environment Protection Rules, 1986, is hardly of any consequence, because, Rule 3A itself provides that the State Board may specify more stringent standards for the relevant parameters with respect to specific nature or locations. Moreover, under Section 17(g) of the Water (Prevention and Control of Pollution) Act, the State Board is empowered to lay down, modify or amend effluent standards for sewage and trade effluents and admittedly the TDS parameters laid down by the Board remained in force. Section 60 of the said Water Act provides that the provisions thereof shall have effect notwithstanding anything inconsistent therewith contained in any other Act. Furthermore, when the parameter of TDS was omitted from the standards for discharge of environment pollutants, but that prescribed by the Board was prevailing for the purpose of effluent standards prescribed for trade effluent, there cannot be said to be any inconsistency arising between the provisions of these two Acts. In fact no such contention of inconsistency appears to have been raised earlier. Moreover, for discharge of trade effluents the owners of trade premises can be asked to construct drains for discharging trade effluent in the municipal drains or other place set apart (in the present case Pirana) as per the above statutory provisions and that does not depend on TDS factor. The edifice of the contention that the withdrawal of TDS parameter from Part A of Schedule (vi) under Rule 3(A) of the Rules was overlooked by the Court or that it would have had any impact requiring the industries to bear the cost of drainage as directed in paragraph 135-B(ii) therefore crumbles down.

7.1 The fact that conservancy tax is paid by the industries has no bearing on their liability to lay down drainage pipes to reach the contact point with the main drainage or other place legally set apart for the purpose of such discharge by the Corporation. The statute does not require the Corporation to provide outlets at every door step of trade premises and these owners of the trade premises will have to carry their drain to the spot of its acceptance fixed by the Corporation at Pirana. At what points the acceptance is to be made in the main drainage or other place legally set apart, depends on variety of factors that go with the city planning and the Corporation alone would be in the best position both legally and factually to take its own decision in such matters.

8. By this application filed on 6th December, 1995, apart from the cost of drainage as directed by the Court, the applicants represented through their Associations had prayed for extension of time to set up CETP and pending installation of CETP to permit the industries to discharge their trade effluent in Kharicut canal. There were more than 35 interim orders passed in this application. By virtue of all these orders the applicants were able to get the extensions and continue discharges and thereby ward off closure of industries which otherwise would have happened in order to prevent pollution as per the directions given in the judgement in Pravinbhai's case (supra). It is significant to note that the anxiety to get extensions and thereby avoid closure of industries dominated the hearings of most of the interim arrangements during the pendency of this application. In fact, as recorded in the order dated 10th May, 1996 of Hon'ble Mr.Justice M.S.Shah in paragraph 12, the learned Counsel appearing for the Associations had submitted that the Associations would make an attempt to persuade GIDC and AMC to accede to the request for treating the expenses incurred by the Associations for laying such pipelines as loan from the industries to the GIDC/AMC and that the Associations reserved their right to agitate the said issue at appropriate stage and before the appropriate forum. The Court in that context observed that it was made clear to Mr. B.R.Shah that while Associations may reserve their liberty, their present application would be considered only if they agreed to lay down pipelines themselves for carrying the effluents from primary treatment plants to CETP and that the dispute as to who should bear the expenses or whether the Associations should be given loans for the said purpose are not matters germane for the consideration of the present application for extension. Time was being extended to enable the industries to provide the CETP and avoid closure until that was done and this aspect is borne out from the conditions imposed while granting such extensions. We may refer to condition No.4.3 in the order of the Division Bench passed on the request for one such extension given during the pendency of this application. In that order dated 20.12.96, (which is reported in 1997 (1) GLH 136 - Gujarat Chamber of Commerce v. P.J. Patel) condition No.4.3 records that all the units shall pay towards construction of drainage line to Pirana and other ancillary works contribution at the rate of Rs. 4 per litre of the effluent discharged as per the earlier condition No.4.3 of the order dated 10th May, 1996 and any further amount as may be decided thereafter. Now that since the purpose of extensions is served in this application, focus is shifted to the prayer of recalling the order on the ground that there is an error in giving the direction that the expenses of laying drain pipes upto Pirana where the trade effluent was to be discharged being the place set apart for the purpose should be borne by the Corporation. In our view, the whole attempt is to cloud the main issue and wriggle out of the direction which in fact, as observed above by us, was given perfectly in consonance with the provisions of the Act.

9. In the Review Application MCA No.91/96 filed against the same decision by the present applicant No.2 Textile Processors' Association, many of whose members are members of the petitioner No.1 Chamber of Commerce also, their contention was noted that it was the responsibility of the Municipal Corporation or the GIDC or State to lay down drain pipes and that the direction in paragraph 135B(ii) was uncalled for and was harsh on the members and the Division Bench rejected that contention in paragraph 19 of its order which we have reproduced above. Thus, the same contention which was rejected is sought to be raised again in this application. For the reasons given by us as above, since the Corporation is statutorily empowered to direct the industry releasing trade effluents to lay down drains before it discharges trade effluents in the main drainage or at other place set apart for the purpose of such discharge, such drains are necessarily required to be put up by the industry at their own expenses and the duty of the Corporation to maintain and keep in repair all Municipal drains i.e. drains that vested in the Corporation does not create any liability to bear the expenses of laying drains other than the Municipal drains which are required to be constructed for carrying trade effluents for discharge in the main drainage or other place set apart for the purpose by the Corporation.

9.1 It would also appear that the question having bearing on the validity of the direction contained in paragraph 135B(ii) of the judgement in Pravinbhbai's case (supra) is already pending before the Hon'ble Supreme Court. We have however, considered the contentions raised in this Review Application, in view of the decision in Kapoor Chand and ors. v. Ganesh Dutt and ors. reported in AIR 1993 SC 1145, in which it was laid down that the High Court cannot dismiss the Review petition on the ground that in view of the Special Leave Petition having been filed against the judgement sought to be reviewed, the Review petition was no longer maintainable. In that decision, it was held that till the Supreme Court had considered the Special Leave petition on merits and passed an order on the matters dealt with in the judgement of the High Court, it was competent for the High Court to review its judgement and the review petition would not be dismissed as not maintainable merely because Special Leave Petition filed against the said judgement before the Supreme Court was pending. We may note that in Reliance Industries Limited v. P.J.Patel and ors. reported in 1997 (7) SCC 300 in paragraph 22 of the judgement, the order in SLP (C) No. 1455/97 was made directing that the said SLP was delinked and would stand adjourned sine-die awaiting the decision in the proceedings ordered to be remanded pursuant to the order in the other two SLPs (1456 of 1997 and 1457 of 1997). In paragraph 16 of the said judgement, there is reference to a direction contained in paragraph 135B(ii) of the judgement of the High Court in Pravinbbai's case(supra). It was observed that if the remanded review petition gets dismissed by the majority decision subject to the appellant challenging the said decision before the Supreme Court, the solitary question as regards the direction contained in paragraph 135B(ii) would arise for consideration in the said delinked SLP of the appellant against the main judgement. Against the judgement and order dated 12th May, 1999 of this Court in Misc. Civil Application No. 1939/95 in Special Civil Application No. 770/95, the Ahmedabad Municipal Corporation has already applied for Special Leave to appeal, being SLP (Civil) No. 13269/99, which we are told, is pending.

10. In our view, the decision in Pravinbhai's case (supra) which is sought to be recalled is glowing with erudition both on legal and environmental aspects and the ground for review proferred by the applicants is so very error-striken, as demonstrated above, that we would have answered this application in a negative monosyllable but for the extremely persuasive and elaborate way of the learned Counsel's approach. This application is decided in its representative capacity and we make it clear that the question of review on any ground whatsoever, which could have been raised against the decision in Pravinbhai's case, stands concluded so far as this Court is concerned and we expect that the review process will not be strained again by some differently named applicant. In this view of the matter, we reject the application with costs.