IMPORTANT POINT
Water cess can only be imposed when water is drawn from irrigation works as defined by the Bihar Irrigation Act, 1997, and requires a prior notification to classify a part of a river as such; failure to comply with these requirements invalidates the demand for water charges.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Since the matters involve common question of law regarding enhancement/imposition of water rent/cess by the State Authorities-respondents, therefore, they are being heard together and will be disposed of by this common order.

W.P. (C) No. 1581 of 2010

1. Petitioner-Company, Hindustan Copper Ltd. is involved in mining activity for which 542.72 acres of land at Rakha Mines and 437.09 acres of land at Musabani had been acquired. This company was previously known as Indian Copper Corporation, but was taken over by the Central Government under (Acquisition of Undertakings) Act, 1972 and had been granted mining lease for copper. Since 1928 onwards, the Company claims to be utilizing the uninterrupted flow of water from Subernrekha river.

2. This writ petition is for quashing the letter No.1041 dated 19.11.2009 issued by the Executive Engineer, Subarnrekha Canal Division, Ghatsila—Respondent No.4 whereby a demand of Rs. 7,05,83,363/- has been raised as water cess under Section 62 of the Bihar Irrigation Act, 1997 by way of the notification.

3. Some argument made in this case are common to argument raised on behalf of other petitioners. It is argued by the Senior counsel Sri Jitendar Singh that the charge for water can be levied under Section 62 of the Bihar Irrigation Act, 1997 only when water is supplied for the purpose of irrigation, municipal supply, industrial or commercial purposes from any irrigation work belonging to or constructed by or on behalf of the State Government.

4. It is contended that water drawn by the Company is from free flowing river and not from any irrigation work, so as to make it amenable to water cess imposed by the State. Chandil Dam constructed under the Subernrekha Multi Purpose Project is more than 70.00 Km from the township where the Hiundustan Copper Ltd is situate. The said dam does not in any manner help the petitioner in use of water nor the petitioner gets any supply of water from the said dam, therefore the water cess being levied is not supported by mandate of law. Water is being consumed from Subarnrekha river and there has not been any construction made by the State Government so as to come within the meaning of Section 62.

5. Water cess could not have been levied dehors the procedure as laid down under Bihar Irrigation Act, 1997. In order to bring part of Subarnrekha river within the meaning of “irrigation work” and raise water charge under Section 62 of the Bihar Irrigation Act, 1997, it was incumbent on the part of the State of Jharkhand to notify the part of river Subarnrekha under Section 2(o)(iv) of the Act. In the absence of such a notification water cess cannot be imposed. Specific mandate in (2018) 12 SCC 107 is that without any legislative authority, the State Government was not empowered to levy water cess in view of the ratio laid down. Once a procedure to do a thing in a particular manner is prescribed in an Act, it cannot be done otherwise.

6. Further case is that the quantum of water which is being consumed has been assessed is on mere conjecture. There is no scientific para-meter to show that 23,98,315.919 per thousand Gallons water was consumed by the petitioner in the years 2009-2010.

7. It is argued by learned counsel on behalf of petitioner(s) that Government is entitled to levy separate charge of water under Section 62 of the Bihar Irrigation Act, 1997, when it is supplied from any irrigation work belonging to constructed by or on behalf of State Government. Section 2(O) of the Bihar Irrigation Act, defines “Irrigation Work” to include only such part of river, stream, lake or natural collection of water or natural drainage or ground water to which the State Government has applied the provisions of the Act. In the absence of express notification of the State Government applying the provisions of the Act to any part of river or stream, it cannot be included within the definition of (Irrigation Work) and consequently it cannot be charged under Sect