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2016 Supreme(Ori) 1006
IN THE HIGH COURT OF ORISSA: CUTTACK
B.P.RAY, J.
W.P.(C) No.18907 of 2014
(Date of Judgment : 23.02.2016)
In the matter of an application under Articles 226 and 227 of the Constitution of India.
M/s. Ganesh Sponge (Pvt.) Ltd.
& another ... Petitioners
Versus
State of Odisha & others ... Opp.Parties
For Petitioners: M/s. A.Parija, A.Pattnaik, L.Swain & D.Mohapatra.
For O.Ps. 1 to 3:Additional Government Advocate
For O.P.4: Mr. A.K. Bose, Assistant Solicitor General of India
Ms. B.Tripathy, Central Government Counsel.
Headnote:ODISHA IRRIGATION RULES - Rules 23-A, 20-A, 31, 19 - Allegation of unauthorised drawal of ground water for drinking and civil construction - Notice raising demand with penalty - Writ - Nothing to indicate that the petitioner-Company acted dishonestly and disregrded the direction of the authorities in defiance of law - Imposition of penalty is arbitrary - Petitioner Company has also made a representation against the penalty imposed and demanded - No opportunity of hearing was afforded to the petitioner Company and the authority concerned disposed of the said representation in a manner unknown to the established principle of law - Order is illegal and accordingly not sustainable in the eye of law - Orders quashed - Directions issued.
I) To identify the water source to meet the water requirement of the industry and to incorporate the same in the M.O.U.
II) While handing over land to an industry, the water source so identified should be allotted to the industry along with the land by entering into an agreement as per the provisions of the Irrigation Act for the purpose of civil work and construction.
III) The Company shall inform the authorities at least three months before trial run of the industry and within a month of receipt of the said information, the State authorities shall enter into an agreement so required and shall provide water for the purpose of running of the industry at least fifteen days from the date of trial run of the industry.
All these shall be notified by the appropriate Department and incorporated in the M.O.U. so that the industrialists coming to Odisha will not be made to run from pillar to post at every stage of running the industry and ultimately rendering the policy of industrialization of Odisha and the creation of employment opportunity for the unemployed fruitless.
JUDGMENT
B.P. RAY, J. - In the present writ petition, petitioner No. 1, M/s. Ganesh Sponge (Pvt.) Ltd., which is a Company registered under the Companies Act, 1956, challenges the order dated 19.08.2014 passed by the E.I.C.-Cum-Special Secretary to Government in Water Resources Department rejecting its representation dated 7.7.2014 filed for waiving of penalty for consumption of ground water (Annexure-26) and the demand notice dated 9.9.2014 issued by the Executive Engineer, Angul Irrigation Division, O.P.3, directing it to deposit the fees assessed towards water consumption in shape of demand draft payable at S.B.I., Angul in the office of the said Executive Engineer, failing which action as deemed under the provisions of the Act and Rules would be taken against it (Annexure-28). A further prayer has also been made to direct the opposite party-authorities to forthwith execute an agreement with the petitioners for drawal of surface water from Nandira Nala.
2.Brief facts, as delineated in the writ petition, reveals that the petitioner –Company established a unit for manufacture of sponge iron and other allied materials at Krushnachandrapur in the district of Angul. As for the purpose of production of sponge iron as well as construction of the factory and residential colonies water is necessary, the petitioner-Company applied the State Government for supply of water for the said purpose from Derjang Project and applied for permission to draw water from Derjang Project.
It is worthwhile to mention here that by letter dated 24.8.2006 under Annexure-1, O.P.3 sought information from the petitioner-Company as to drawal of water from natural source/underground source as per the enclosed proforma as desired by the higher authority. The aforesaid letter was responded to by the petitioner-company on 5.10.2006, vide Annexure-2, with a detailed information and an application for drawal of water for industrial/municipal supply along with the feasibility report. It appears from the said letter that the petitioner-Company was registered under the Factories Act, 1948 and a consent order had been issued by the State Pollution Control Board in favour of the petitioner-Company under the Air Act and Water Act respectively. The said application was also detailed showing phase-wise requirement of water. The petitioner-Company had deposited the water cess towards consumption of ground water by it for the purpose of civil construction of the plant, vide Annexure-3, which was duly received by the Executive Engineer, O.P. 3. On 6.7.2007, O.P. 3 issued a demand notice for an amount of Rs. 12042/- towards cess for drawing water from Government water sources for use in its industrial establishment from January, 2005 to 31.3.2007, which was also deposited by the petitioner-Company. Thereafter, on 15.10.2007, the petitioner-Company approached the Regional Director, Central Ground Water Board, Ministry of Water Resources, Government of India, seeking permission to it to draw a further quantity of 750 Kilo Litres of water per day from ground water source for use in its plant. It is worthwhile to mention here that on 14.10.2008, O.P.3 also raised a further demand, which was duly satisfied.
3.While the matter stood thus, and the petitioner Company was drawing ground water with the knowledge of the authorities, demands raised were being satisfied by the petitioner-Company. On 19.3.2009 the Executive Engineer, O.P. 3 addressed the Chief Engineer to permit the petitioner-Company to made payment of water rate as usual for a further period of three months since the application of the petitioner-Company before the Central Ground water Authority, O.P. 4 for obtaining N.O.C. was pending consideration. Ultimately, on 19.05.2009 the Central Ground Water Authority, O.P.4 granted N.O.C. in favour of the petitioner-Company permitting it to draw ground water up to 640 m3 per day for a period of five years or till the area remained under safe category, vide Annexure-8. On 24.1
