ORDER R.K. Mahajan, J.

1. This order will dispose of the above two writ petitions as there is a common question of law involved.

2. Sri Arun Prakash, learned counsel for the petitioner in both the petitions, has made a statement at the bar that he does not press the vires of the Water (Prevention and Control of Pollution) Cess Act, 1977 (hereinafter referred to as the Act.). The petitioner's counsel's submission is that the glass industries are not specified in Schedule 1 as defined in Section 2(c) of the Act, which runs as under :--

"2(c). "Specified industry" means any industry specified in Schedule I."

Therefore, the cess cannot be levied on the glass industry.

2A. The petitioner seeks toquash the recovery orders issued by the competent authority for realisation of amount mentioned in the citations annexure-1 to Writ Petition No. 15872 of 1993 as well as the impugned judgments andorders dated 18-9-1989 and 8-5-1991, wherein the assessment orders subsequently merged along with recovery certificate dated 27-11 -1990 in Writ Petition No. 15261 of 1991.

3. The petitioner's plea is that the glass industry does not fall under schedule as specified industry and as such, cess cannot be levied. It is further pleaded that since there is no consumption of water at all in the faclory, the question of pollution does notarise. The petitionerhasfurther pleaded that in the process of manufacturing of glass, moisture is strictly avoided. The glass is obtained from heating silica and water is considered to be an enemy in the process of manufacturing of glass and as such the question of levying cess does not arise. So much so, the question of pollution does not arise. The petitioner has taken further ground that in the manufacturing of ceramic (Porcelene), the water is to be used and there can be no similarity between ceramic industry and glass industry. Therefore, the glass indus-try cannot fall under ceramic industry.

4. The case of the respondents is that glass falls in ceramic industry as the glass industry comes under the purview of Schedule I of Act No. 36 of 1977 and the petitioner cannot claim exemption. It is further pleaded that the U. P. State gave consent to enact Act No. 36 of 1977 on the resolution by both the Housesof the State Assembly to the Central Government and the Act is applicable in the State of Uttar Pradesh. This question has not been disputed as it has not been argued. It is also pleaded that glass industry falls within the purview of ceramic industry which is under the schedule and is liable to pay cess to the pollution Board. Dr. H. N. Tripalhi, learned counsel for the respondents submitted that even the industry does not fall under ceramic industry, it is covered by item No. 2 of the Schedule. He further submitted that the petitioner should have filed appeal under Section 13 of the Act and non filing of appeal also disentitles the petitioner to the relief claimed. He has relied upon the definition of glass etc. from the encyclopaedia which would be referred lateron.

5. We are unable to agree with the submission of Sri Arun Prakash, learned counsel for the petitioner on the following lines of reasoning.

6. I would like first of all to advert the definition of "pollution" menlioned under Section 2(c) of the Water (Prevention and Control of Pollution) Act, 1974, which is quoted as under :--"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 publie health or safely, or to domestic, commercial, industrial, agricultural or other legitimate uses, or to the life and health of animals or plants or of acquatic organisms."

7. The legislature in its wisdom then framed the Water (Prevention and Control of Pollution) Gess Act, 1977. The aim and object was that the Slates were not having sufficient funds to prevent and control pollution. It became essential and imperative on account of rapid industrialization. There was explosion of pollution and the pressure of on environmental resources.

8. The Parliament framed mis Act. The aims and objects of the Act are :--

"An Act to provide for the levy and collection of a cess on water consumed by persons carrying on certain industries and by local authorities, with a view to augment the resources of the Central Board and the State Boards for the prevention and conirol of water pollution constituted under the Water (Prevention and Control of Pollution) Act, 1974.

Be it enacted by Parliament in the Twenty eighth year of the Republic of India as follows :

Prefatory Note -- Statement of objects and reasons :-- The water (Prevention and Control of Pollution) Act, 1974 has been enacted by Parliament under Article 252 of the Constitution with a view to control the pollution of rivers and streams which has assumed considerable importance and urgency in recent years as a result of increasing industrialisation and urbanisation. The Act is intended to ensure that the domestic and industrial effluents are not allowed to be discharged into water courses without adequate treatment.

This Act is now in force in fifteen States and in all Union territories. The other remaining States are also likely to adopt the Acl in the near future.

(2) According to the provisions of the Act, the Central Government and the State Governments have to provide funds to the Central Board and State Boards for prevention and control of water pollution respectively, for implementing the provisions of the Act. However, due to pressure on the limited resources, the State Governments are not able to provide adequate funds to the State Board for their effective functioning. It is, therefore, proposed to levy a cess on local authorities which are entrusted with the duty of supplying water under the law by or under which they are constituted and on certain specified industries. The cess proposed to be levied will be on the basis of the water consumed by such local authorities and industries. The cess will be collected by the State Governments concerned and will be paid to the Central Government and the Central Government, after due appropriation made by Parliament by law, will pay, having regard to the amount of cess collected by the concerned State Govern-ment such sums of money as it may think fit to the Central Board and the Stale Boards."

9. I would like to quote Article 51A, Part IV-A of Fundamental Duties of Constitution with advantage :--

It shall be the duty of every citizen of India :

(a) to (f).....

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures."

10. It becomes essential in view of the fundamental duty imposed and under Article 21 of the constitution which was interpreted by the apex Court and High Court, in catena of authorities that right to clean water, fresh unpolluted air etc. was brought within the ambit of Article 21 of the Constitution of India. The Hon'ble Supreme Court in itsjudgment directed the removal of hazardous and dangerous industries from Delhi and also the industries which were spoiling water of Rajasthan and other places. The Supreme Court thus gave a new dimension in interpreting the law of environment i.e. the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 as well as Environment (Protection) Act, 1986.

11. So in the light of this new philosophy to solve the human problems so as to sustain healthy life, the legislature thought it fit to impose cess on the industry so that the pollution Boards would not face any problem of funds for implementation of the cess Act and also to prevent pollution. Now let us examine the charging Section 3 of the Act: There shall be levied and collected a cess for the purposes the Water (Prevention and Control of Pollution) Act, 1976 (6 of 1976) and utilisation thereunder :--

12. The cess under sub-section (I) shall be payable by :

(a) every person carrying on any specified industry;

(b) every local authority, and shall be calculated on the basis of the water consumed by such person or local authority, as the case may be, for any of the purposes specified in column (1) of Schedule 11. at such rate, not exceeding the rate specified in the corresponding entry in column (2) thereof, as the Central Government may, by notification in the Official Gazette, from time to time, specify.

13. Section 4 provides for affixing of meters; Section 6 relates to the assessment of cess; Section 7 relates to the rebate while Section 8 deals with the distribution of cess by the Central Gov-' ernment. Section 13 provides for appeals. There is also provision regarding imposition of penalty. The Central Government has been also invested the powers to amend schedule regarding the specific entries which need not be quoted. Even tax can be levied on the local authorities on the person carrying specified industry. Obviously, it mean's that to prevent the pollution, the local authorities are supposed to supply unpolluted water. Explanation to Section 3, i.e. levy and collection of cess, provides that the "consumption of water" includes supply of water.

14. The argument of the learned counsel for the petitioner would be examined now whether gfass industry is covered under the Act or not. First of all, reference would be made to "The New Encyclopaedia Britannica Macropaedia, Volume8". It deals with Glass Products and production as under :--

The common article of commercial manufacture known as glass normally a transparent, hard brittle substance formed from certain liquids that have the property of cooling below their freezing point without crvstalizing thus becoming liquids of increasingly high viscosity (stiffness) until eventually they are so still that by all ordinary definitions these liquids have the properties of a solid.

Of all the many substances that can form glass, the most widely used in silica (S10), usually in combination with lime (calcium avide (Cao) and soda (sodium oxide Nao), in varying proportions, to make the soda lime glass used in enormous quantities for windows, lamp, bulbs bottles, and law cost table-were. Though glass could be made from silica alone, it would have an impractically high softening temperature, making it difficult to work. Nevertheless, it is the basic chemical nature of silica that determines both the structure of ordinary glass and the way in which it changes from a free-flowing liquid at high temperature to a virtually rigid condition as it cools." Now I would like to quote the meaning of 'metal' as contained in the Concise Oxford Dictionary, Ninth Edition. Metal means (a) any of a class of substances (including many chemical elements) which . are in general lusterous. malleable, ductile solids and good conductors of heat and electricity, i.g. gold, silver, iron, brass, steel. (b) material of this kind; material used for making glass in a molten state. Thus we can easily see that it has reference to silica etc.

15. Now reference would be made to the meaning of word 'Metallurgy' as mentioned in the aforesaid dictionary. Metallurgy means the science concerned with the production, purification and properties of metals and their application. The meaning of word 'ferrous' is containing iron (ferrous and non ferrous metals) Chem. containing iron in a divalent form.

16. Now we would iike to refer the meaning of 'ceramic'. Ceramic means made of (esp)clay and permanently hardened by heat or relating to ceramics a ceramic article or product.

17. Dr. H. N. Tripathi, learned counsel for the respondents, submits through the written submission, that in a text book of Chemical Technology Volume 1 (Inorganic) by Dr. S. D. Shukla, Director Harcourt Butler Technological Institute, Kanpur and professor Dr. G. N. Pandey. Head of the department Chemical Engineering Depart* ment Harcourt Butler Technological Institute, Kanpur. Published by Vikas Publisher House Private Ltd., New Delhi, Bombay, Bungalore, Calcutta, Kanpur, Chapter X page 321, the glass and cement, limes and plastics could also be classed as ceramic materials. It has been described in three groups and group (b) referred to products which when heated become fluid and are moulded in viscous/liquid state such as glass. So in modem technology, ceramic can be termed into glass.

18. Dr.H. N. Tripathi, learned counsel for the respondents further submits that according to the "Shreve's Chemical Process Industries v. Education" by George-1, Austin, the Ceramic industries can be referred as the clay products or silicate industries, have as their finished materials a veriety of products that they are essentially silicates. In recentyears new products have been developed as a resultof the demand for materials that withstand higher temperatures, resist greater pressures, have superior mechanical properties, possess special electrical characteristics or can protect against corrosive chemicals. The following type of products are considered in this chapter : --

"The glass, cement, abrassine industries are dealt wihin separate chapters. . . ." Hence it isclear from the above that glass. industry essentially comes under the ceramic industry. But for further discussions, we can also compare the raw materials and reactions involved in both the industries.

(1) Raw Materials:

 

Ceramic Industry Glass Industry Clay Soda (supplied by dense soda ash) Feldspar Feldspar Sand Sand Boray Borax Soda ash Salt Cake

19. In addition to the above raw materials, a wide variety of other minerals, salts and oxides is used as fluxing agents and special referectory ingredients : --

20. Clay are more or less impure hydrated aluminium silicates that have resulted from weathering of igneous rocks in which feldspar was a noteworthy original mineral. The reaction K2, A12,O3, 6 SIO2 + CO2 + H2O-K2 CO3 + A12 O32 SIO22, H2O + SIO2.

Reactions :

All ceramic products are made by combining various amounts of the foregoing raw materials, shaping, and heating to firing temperature such temperatures cause a number of reactions, which are the chemical bases for chemical conversions.

1. Dehydration or chemical water smoking.

2. Calcination.

3. Oxidations of ferrous iron and organic matter.

4. Silicates formation.

The final reaction is as follows :--

3 (A12 O32 SIO22 H2) - 3 Al2 O3.2 SIO2 + 6 H2O Glass Industries Na2 SO4 + SIO2 + C. Na, (.CSIO2 + SO2 + CO.

Here it should be very clear that feldspars have the general formula R,O .AI, O16 SIO2 where represents N2 KO2.

21. In our considered view, it is clear from the above that glass industry' is very well covered under the Schedule 1 point No. 7(8) of Cess Act.

22. Thus the argument of Sri Arun Prakash, learned counsel for the petitioner, that the water is not used in the manufacture of glass is of no consequence as the idea of the legislature is that steps must be taken to prevent pollution of water in the process of formation of glass. The melting process of material in the transformation of the glass process certainly produces fumes by burning process.

23. Cess is meant for prevention and control of pollution. It cannot be imagined that this industry is not consuming, water in the industry in any form. No industry can exist without water. In our considered view this industry of the petitioner would fall under Item No. 2 of Schedulel describing. 'Non ferrous metallurgical industry'. It may be mentioned that it is not possible for the legislature to mention each and every industry in the schedule. Non-ferrous metallurgical industry means not relating to ferrous metallurgical industry. Merely that the Board has taken a plea that it falls under ceramic industry is of no consequence as the Court is to see under what item of the schedule the industry falls.

24. As pointed out earlier, the science has developed and from the ceramic, glass can be prepared.... Dr. H. N. Tripathi, learned counsel for the respondents has made a reference to a decision reportedin(1989)IUPLBEC174(Modi Industries Ltd., Modinagar, Ghaziabad v. Union of India, regarding the point thai glass industry fall under the ceramic. The point was not involved but finding was given. It was observed that the entries in Schedule I have to be construed broadly and not in a-narrow, restricted sense. They are. more a description of the class of industries rather than of individual industries. The entries mention the genus and not the species. So constructed, it is impossible to hold that glass industry is not covered under Entry 8. So in our view the glass industry also falls under the non-ferrous metallurigical industry.

25. Therefore, it follows that the plea of petitioner that no water is consumed during the process is not tenable and this plea would have been available to him by way of taking the matter in appeal under Section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977. The cess is to be levied on the water consumed.

26. So this plea is of no consequence and it seems to be ridiculous and is nol tenable, liven in Schedule-II (See section 3) of the Cess Act, the purpose for which water is consumed and the maximum rate are mentioned as under :--

Purpose for which water is consumed.

maximum rate.

1.

2. 1 . Industrial pooling, spraying in mine, pits or boiler feed.

Three-fourths of a paisa, per kilo litre.

2. Domestic purpose.

One paisa, per kilo litre.

3. Processing whereby water gels polluted and the pulluiants are easily bio-degradable.

Two paisa, per kilo litre.

4. Processing whereby water gets polluted and the pollutants are not easily bio-degradable and arc toxic.

Two and a half paisa, per kilo litre.

27. Sri Arun Prakash, learned counsel for the petitioner, has invited our attention to AIR 1992 SC 224, Saraswati Sugar Mills Ltd. v. Haryana State Board on the aspect that the industries in the schedule are to be construed strictly and not liberally. In this Judgement, the Hon'ble Supreme Court set aside the judgment of High Court as the High Court has equated sugar cane industry under vegetable product and observed that since it is fiscal enactment, it has to be construed strictly and these industries are liable to pay cess. We do no find force in this contention.

28. There is a new principle developed in environment jurisprudence law based on the recent decisions of the Supreme Court. In Vellore Citizens Welfare Forum v. Union of India, reported in (1996) 7 JT(SC) 375 : (AIR 1996 SC 2715), it was observed as under (Para 11 of AIR) :--

" "The polluter Pays" principle has been held to be a sound principle by this Court in Indian Council for Enviro-Legal Action v. Union of India, (1996) 2 JT (SC) 196 : (AIR 1996 SC 1446). Consequently the polluling industries are "absolutely liable to compensate for the harm caused by them to villagers in the affected area, to the soil and to the underground water and hence, they are bound to take all necessary measures to remove sludge and other pollutants lying in the affected areas". The polluter pays principle as interpreted by this Court means that the absolute liability for harm to the environment extends not only to compensate the victims of pollution but also the cost of restoring the environmental degradation. Remediation of the damaged environment is part of the process of "Sustainable Development" and as such such polluter is liable to pay the costs of the individual sufferers as well as the cpsls of reversing the damaged ecology.

29. So this principle is in consonance with the Cess Act as by virtue of the said Act, financial resources are to be raised to prevent pollution.

30. The Supreme Court also in Indian Council for Enviro-Legal Act etc. v. Union of India, (1996) 2 JT (SC) 196 : (AIR 1996 SC 1446), observed that if the industry is continued to be run in blatant disregard of law to the detriment of life and liberty of the citizens living in the vicinity, can it be suggested with any modicum of reasonableness that this Court has no power to intervene and protect the fundamental right to life and liberty of the citizen; of the country. So the Supreme Court interpreted that right to life as envisaged ur.Jer Article 21 of the Constitution of India can be protected by giving direction to the authorities to observe the environmental laws. In fact, the cess law is nothing but it has to prevent the pollution in the environment.

31. In view of the aforesaid discussion, we are of the considered opinion that both the writ petitions are liable to be dismissed.

32. In the result the writ petitions are consequently dismissed.

33. Petition dismissed.