1. The forty eight. writ appeals now raise one vital point about vires, scope and amplitude of Rule 6 of the Water (Prevention and Control of Pollution) Cess Rules, 1978. The rule has been framed under the Water (Prevention and Control of Pollution) Cess Act, 1977 (Central Act 36/77) (hereinafter referred to for brevity's sake as the 'Cess Act'). The inter connection between the Cess Act and the Water (Prevention and Control of Pollution) Act, 1974, (hereinafter referred to as the 'Pollution Act') (Central Act 6/74) would be an important facet of the question under consideration.
2. The writ petitions sought diverse reliefs; and raised before the learned single Judge three points :
(i) The Pulp Division is not a 'Specified industry' within the meaning of Section 2(c) of the Act, and no cess can consequently be levied in respect of that Division under Section 3;
(ii) The proceedings of the appellate committee are vitiated by legal bias; and
(iii) Rule (6) of the Water (Prevention and Control of Pollution) Cess Rules, 1978 relied on by the appellate committee for denying the benefit of rebate to the petitioners is ultra vires.
The learned Judge held that 'chemical industry', in the context in which it is used in Schedule I of, the Act can therefore include an industry manufacturing rayon-grade pulp'. The second contention also failed; said that learned Judge :
'Where a statute provides for an appeal and prescribes the appellate forum, an aggrieved person cannot resort to that forum and then complain that it is not a proper forum.'
On the interpretation of Rule 6, the learned Judge held :
'.........the words 'successfully commissioned' and 'functions successfully' in Rule 6 have to be read down so as to apply only to those cases where what is installed is ho plant, or where there is no installation worth the name. So read, the rule can be allowed to stand, though parts of Form I would still be otiose.'
3. The Kerala State Board for Prevention and Control of Water Pollution challenges the view so taken by the learned single Judge on the interpretation of Rule 6.
4. The bare facts leading to the writ petitions and writ appeals may be referred to before the legal question is posed and answered.
5. The petitioner-Company commissioned in 1963 a Pulp Factory in Kozhikode District. It was located on the banks of the Chaliyar river, at Mavur. Mavur was formerly a beauty spot which had elicited admiration of the administrators and appreciation of literary men. Not surprisingly. Beyond and around it were the swelling hills of greenery. The pellucid waters of Chaliyar river flowed along the pebbly bed before they fell into the Beypore Bay.
6. The installation of the factory was not without its deleterious effects on the purity and clarity of the river water. The factory had a rated capacity of 200 M.Ts. of pulp per day. The manufacturing process takes in various activities; it involves the conversion of bamboo, eucalyptus and other suitable species of wood into pulp. The raw materials are washed by a continuous stream of water sprayed on to the conveyors before they are fed into chippers. After the chips are reduced to uniform sizes, they are conveyed to the digesters and subjected to acid prehydrolysis, using dilute surphuric acid solution. The spent liquor is then drained out, and the chips washed to remove the acid. The chips are thereafter cooked using a solution containing cooking chemicals at high temperature of above 160 cc The cooked pulp is later sent to 'Knotter Screen' to remove the uncooked particles. The pulp is washed in a series of washers in a countercurrent manner. Other processes are also resorted to. The washed pulp is bleached in a multistaged Bleaching Plant. It is quite understandable that these activities of the company result in large scale pollution of water.
7. The Water Pollution Board constituted under the Pollution Act is empowered, under the Cess Act to levy a cess, for partly meeting the finances required for its working. The Cess Act grants a rebate in the cess payable to those who had installed a plant for the treatment of sewage or trade effluent. The company claimed that it had installed a treatment plant and was therefore entitled to the rebate. (Separate claims have been made through the 'Pulp Division' and the 'Staple Fibre Division' of the Company. Whether such a splitting of a single legal entity the company is permissible for making separate claims is a question which does not directly arise for consideration). The claim for rebate was declined in some cases and drastically reduced in others. The legality of the levy of cess was thereupon challenged in the writ petitions before the learned single Judge, who, as noted earlier, held that Rule 6 had to read down. And that view is under challenge in these writ appeals.
8. We shall in the first instance, embark upon an analysis of the Cess Act and the Rules framed thereunder and examine in that background, the view taken by the learned single Judge.
9. The Act with which we are concerned is a short one having only seventeen sections. The Act is primarily intended to levy a cess, for the purposes of the Pollution Act and utilisation thereunder. A levy of such cess was felt necessary, having regard to the limited financial resources of the State Government in providing adequate funds to the State Board for their effective functioning. (An indication of such inadequate funding of the State Board is seen from the statistics relating to the Kerala State Board (See 1984 Cochin University Law Review, Page 182.)).
10. Cess is levied from two groups: (a) industrialists and (b) local authorities. Only such of those persons carrying on specified industry (as given in Schedule I) are liable to pay the cess. Cess payable is linked with the water consumed by the industrialists or the local authority for the purposes specified in Schedule II of the Act. The rate is again to be specified by the Central Government. A ceiling for such rate is prescribed under the Act itself by the entry in column (2) of Schedule II. The machinery section for the . quantification of the cess payable is furnished by Sections 4 to 6. The measurement of the water consumed is taken by the metres installed for the purpose. The standards of such metres and the places of such installation are to be prescribed under the Rules. An obligation to furnish the return is cast on the persons liable to pay the cess.
The form of the return, the intervals in which such returns have to be submitted the particulars to be contained in such form and the officer or authority to whom the return has to be submitted -- are all prescribed by the Rules. The quantification of the cess is thereafter made by the officer on the basis of the enquiry and of other procedural formalities as referred to in the section. The time within which the cess has to be paid has to be intimated to the person concerned. (Vide Sub-section 2). A copy of the assessment order has also to be sent to the assessee. (Vide Sub-section (3)). Collection of the cess is to be made by the State Government through officers or authorities specified in that behalf by notification in the Gazette. (Vide Sub-section (4)). Then comes the section relating to rebate with which we are intimately concerned. That section is better extracted in full. It reads :
'7. Rebate -- Where any person or local authority, liable to pay the cess under this Act, instals any plant for the treatment of sewage or trade effluent, such person or local authority shall, from such date as may be prescribed, be entitled to a rebate of seventy per cent of the cess payable by such person or, as the case may be, local authority.'
The only other section which may be relevant for the consideration of the issue before us is Section 17. That relates to the power of the Central Government to make Rules. Under Section 17(1), 'the Central Government may make rules for carrying out the purposes of this Act.' Section 17(2) enumerates matters in Clause (a) to (i), the matters in respect of which rules may provide, without prejudice to the generality of the power under Section 17(1). Clause (d) refers to the date from which any person or local authority liable to pay cess shall be entitled to the rebate under Section 7.' Section 17(3) is also important in a sense and may also be extracted in its entirety. It reads :
'17(3). Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule,'
Other sections regarding the crediting of the proceeds of cess to Consolidated Fund of India and the application thereof (Section 8), the powers of entry conferred on officers or authorities of the State Government for carrying out the purpose of the Act (Section 9), provision for interest payable for delay in payment of cess (Section 10), the penalty for nonpayment of cess within the specified time (Section 11), and the recovery of amount due under the Act (Section 12), have no particular impact on the question on hand. Section 13 provides appeals from the assessment made under Section 6 or penalty imposed under Section 11. Section 14 is a general provision relating to the penalty for filing a false return or evasion of cess. Provisions relating to offences by companies are dealt with in Section 15. The power to amend Schedule I is conferred on the Central Government under Section 16. These sections too do not have any direct bearing on the question involved.
11. Rules were framed under the Cess Act in 1978. They were published on 24-7-1978. Rule 2 deals with definitions. Standards of meters and places where they are to be affixed are dealt with in Rule 3. The form and time of filing returns (Rule 4), the manner and the time within which cess is to be paid to the Central Government (Rule 5), enumeration of the powers to be exercised by the Officer or the Authority of the State Government under Section 9 (Rule 7), the specification of assessing authority as the authority for the imposition of the fine also, (Rule 8), and the appeal procedure (Rule 9) are the rules so framed. Rule 6 which is the controversial rule, and which is particularly relevant and important for the case, deals with rebate; and it reads :
'6. Rebate -- Where a consumer instals any plant for the treatment of sewage or trade effluent, such consumer shall be entitled to the rebate under Section 7 on and from the expiry of fifteen days from the date on which such plant is successfully commissioned and so long as it functions successfully.'
12. In the present case, the treatment plant was established by the company before the Cess Act came into force; even before the Pollution Act. (See the claim of the company as summarised in the appellate order). The word 'instal' has been interpreted as contemplating an action at the inception and not its continuous user. (See Muthu Balu Chettiar v. Chairman, Madura Municipality, 1927 Mad WN 835 : (AIR 1927 Mad 961) and Arunachala Chetty v. Emperor, 1931 Mad WN 495 : (AIR 1931 Mad 490 (1)). According to Lord denning :
'The word 'installation',.,.,... means the bringing of an entire piece of plant on to a site and putting it into position on the site.'
(See Engineering Industry Training Board v. Foster Wheeler John Brown Boilers Ltd., (1970) I W.L.R. 881. In Bangalore City Municipality v. N. Sirur & Co., AIR 1955 Mys 147, the court held :
'To 'instal' anything means establishing itand has reference to the stage or time when itcomes into existence, to the initial act andnot continuance of what is done previously.'
If the word 'instal' is so understood, it is doubtful whether the Company could claim any rebate at all. We need not, however, pursue this possible interpretation of the section, as counsel for the Board submitted that the anterior installation of the treatment plant by the company would earn it a rebate, if otherwise the company was entitled to it.
13. The word 'installation' has posed difficulties in interpretation in other contexts and in other jurisdictions too. Coyne, J. of the Court of Appeal in Manitoba in City of 'Winnipeq v. Brain Investments Ltd., (1952) 7 WWR (NS) 241, observed :
' 'installed' is not a word of art nor a word of precision. Indefiniteness gives it, as it gives any word, a chameleon-like character so that associate words show through arid give their colour and meaning to it.'
Lord Wilberforce approvingly referred to the above passage in Engineering I.T. Board v. Foster Wheeler, (1970) 1 WLR 881 at 887. According to him, 'installation' is a metaphorical word. It is not a word of any great precision. ........It conveys putting in place something already made so that it can be used.' These judicial pronouncements indicate that that word 'instal' carries with it a meaning, purpose and use. That aspect has got some bearing in the interpretation of the section and the Rule.
14. There is no controversy that the prescription of a date from which the entitlement of rebate is reckoned is within the rule making power. Objection is raised about the emphasis and specification contained in the rule that the rebate is claimable only when the plant is successfully commissioned, and the delineation of the duration of the period during which such rebate could be claimed, viz., 'so long as it functions successfully.'
15. As noted earlier, according to the learned Judge, the words in the Rule which insist on the successful commissioning of the plant and the successful functioning are beyond the rule making powers of the Government. We are unable to agree with the above conclusion.
16. Section 7 of the Act, as noted earlier, is contained in the enactment which is by and large skeletal in its form. The enactment itself envisages supplying of the flesh and blood to that skeletal system by the rules framed in that behalf and the form prescribed thereunder. That is the emphasis which we find throughout the entire scheme of the Act. (The rates of cess have to be prescribed, the date from which the cess is leviable is to be prescribed; the standards of the metre and the place of their location are again to be provided by the Rules. The form of returns for cess, the particulars such forms should contain, the authorities to whom such forms have to be submitted and the intervals within which they have to be so submitted, are all to be provided by the Rules. The officers through whom cess has to be collected have to 'be notified by the Government. The Officers or authorities referred to in Section 9 can exercise such additional powers as a may be prescribed under the Rules. The time within which the appeals have to be filed under Section 13, and the authorities to whom such appeals have to be preferred, and the fees to accompany such appeals are all to be provided by the Rules.)
17. This general feature of the enactment will indicate the proper approach to be placed on Section 7 of the Act and Rule 6 of the Rules.
18. Section 7 dealing with Rebate is general in its form. On a plain interpretation, it may even mean that rebate could be earned by merely installing any plant -- good, bad or indifferent, small, medium or big, effective and efficient or ineffective or inefficient. It may even mean that installation of a nominal plant would be sufficient to earn the rebate; or that a plant ineffective and malfunctioning throughout would also qualify for rebate, for the only reason that the plant has been installed. Or again, when the industrial establishment is a mighty giant, the plant installed can be a tiny tot. Literally interpreted, rebate is due even in such a situation. An honest entrepreneur installing a plant effective and efficient in neutralising the ill effects of the trade effluents would, in such a situation, be placed in the same position as a dishonest industrial speculator, who nominally instals a junk which would not in any way decelerate the deterioration of the trade effluent. In that sense, the section itself may treat dissimilar persons similarly; and result in a vicious discrimination. We are clear in our mind that Section 7, cannot be given such an absurd and anomalous interpretation. The section has to be given a meaningful interpretation, an interpretation which serves a purpose.
19. It is in that context that the object behind the levy of cess and the reason for a reward in the form of rebate to the deserving have to be understood. The Cess Act is not to be read in vacuum or in a manner dissociated with the Pollution Act.
20. The learned single Judge felt that the Cess Act could be viewed in isolation and interpreted in isolation. That is evident from the following observations contained in the judgment:
'The purpose of the Pollution Act is to control water pollution; but the purpose of the Cess Act is only to levy and collect a cess, i.e., a tax for a special administrative purpose. You cannot make rules under the Cess Act to achieve the purposes of another Act'
21. The above observations overlook the background of the legislations on environmental protection in general and water, pollution in particular. The Cess Act was enacted three years after the Pollution Act had been brought into force. By that time, the Parliament had before it the experience in the working of the Pollution Act. The financial constraints under which the State Boards had been functioning had received the attention of the Central Government. In the light of that experience, ways and means were devised to overcome the situation of the financial constraints of the State Boards. That is specifically referred to in the Statement of Objects and Reasons of the Cess Act, as is evident from the following passage occurring therein :
'However, due to pressure on the limited resources, the State Governments are not able to provide adequate funds to the State Boards for their effective functioning. It is, therefore, proposed to levy a cess................'
That is also indicated in the preamble to the Act reading;
'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 control of water pollution constituted under the Water (Prevention and Control of Pollution Act). 1974.'
Strong indications are available in the enactment itself about the intertwining and interlacing of the two enactments. The Cess Act is dovetailed into the Pollution Act. The charging section itself explicitly states that the levy of the cess is for the purposes of the Water (Prevention and Control of Pollution) Act, 1974 and utilisation thereunder. In the face of such specific and express words, it is impossible to understand or construe the Cess Act, dehors the provisions of the Pollution Act. There are other indications also. Under Section 2(d) the words and expressions of the Cess Act not specifically defined are to have the meanings assigned under the Pollution Act. Virtually this will mean that all words and expressions in the Cess Act would have their meanings as assigned under the Pollution Act, for, the Cess Act has chosen to define only three words or expressions -- 'local authority', 'prescribed' and 'specified industry'. Section 8 also gives an indication as to how the ' aggregate funds collected by way of cess have to be dealt with and utilised. The net proceeds of the case, it is clearly specified in Section 8 are to be 'utilised under the Water (Prevention and Control of Pollution) Act, 1974.' In view of the inter-connection of the two enactments, we are clearly of the view that Section 6 has to be understood only in the background of the provisions of the Pollution Act.
22. And what is the background of the Pollution Act. That enactment strives to prevent, check or control the prevention of water pollution. This is achieved substantially by insisting on adequate safeguards in the treatment of effluents, as a condition precedent for the commencement or continuance of an industry. The Pollution Act envisages active work by the State Boards and a co-ordinatory effort on the part of the Central Board. Controlling powers exist both for the Central and State enactments over the functioning of the respective Boards. Under the Pollution Act, the Board is enabled to take measures necessary for preventing the deterioration of water. Consent orders are necessary for the establishment of new factories. Even for the old factories, consent has to be given for their continuance. While giving consent,' matters necessary to prevent the degradation of water beyond permissible limits, could be provided for.
Punishments are provided for the offences detailed therein. Some of the provisions of the Pollution Act need particular mention. Sections 20 to 27 occurring in Chapter V relating to Prevention and Control of Water Pollution confer wide powers on the Board, in obtaining information, taking samples of effluents, having reports of the result of analysis on samples, and in the entry and inspection of premises, -- all being such steps necessary to collect, collate and co-ordinate the information and data regarding the quality of water and effluents, with a view to check or control pollution. Under Section 17(j) of the Pollution Act, one of the important functions of the State Board is :
'(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;'
Section 24 contains a prohibition on use of stream or well for disposal of polluting matter, otherwise than in accordance with the standards laid down by the Board. A new or altered outlet of trade effluent into a stream cannot be made without previous consent of the Board. These provisions obviously apply to new industries. In respect of industries already in existence at the commencement of the Act, the same procedure is made applicable. The only difference is that consent need be obtained only within three months of the commencement of the Act. These provisions therefore make it clear that the main function of the Board is to ensure that the trade effluent discharged into the river is so regulated as not to cause any health hazard to the public. The rules framed under the Pollution Act contain very many matters of minute detail to achieve this object. It is unnecessary to refer to all the provisions of the Pollution Rules in that regard. An application for consent as envisaged under Ss. 25 and 26, has to conform to the requirements of Rule 32 and has to be given in Form XIII.
The annexure to Form XIII, exhaustively refers to all matters which could, have any relevance in the ascertainment of the quality of the trade effluent, the impact which the trade effluent may have on the purity of the river or stream to which it is discharged and other relevant matter. The location of the factory, the period during which it is expected to function, the working force in the factory, the raw materials employed in the manufacturing process, the products and byproducts and intermediate products that are manufactured, the quantity of water used every day, with sub-classification into domestic, industrial, agriculture and other the hourly maximum and daily maximum quantity of effluents with sub-classifications, the details of taking measurements in relation thereto, are some among those particulars. In relation to effluents, again, minute particulars are called for under items 14 to 25. Whether storm water drains are kept separate from industrial/domestic effluents and whether domestic effluent is allowed to get mixed with industrial effluent are some of the queries raised in items 14 and 15. Item 16 poses the query whether any treatment is made. That entry reads :
'16(1). Describe if any treatment industrial or domesticeffluent or one for combinedeffluent is made. YES/NOIf Yes, state the process of treatment in brief (separately).(b) Is the quality of effluentemanating either without orafter treatment approved byany authority. YES/NO(c) if approved, furnish the (two certifiedauthority. copies to besent)'
It is sufficient to note that in any other particulars relating to the disposal of the effluent the quantities of the effluents so disposed, and the portions having toxicity therein, are all dealt with in the subsequent entries. In short, care has been taken to exhaustively collect facts and data for ensuring the safe tolerance limits of the effluents. (Technical details, though tedious, are also to be taken note of in that context. The Indian Standard Institute has done substantial work to prescribe different tolerance limits for surface effluents discharged into inland surface waters (1974) of industrial effluents (1982) and of inland surface water subject to Pollution (1982)). (Vide Water (Prevention and Control of Pollution) Act, 1974 : Basic legal issues by S.N. Jain, Cochin University, Law review. 1984. Vol VIII at page 139).
23. The above background of the working of the Pollution Act and the functioning of the Board has to be borne in mind while we construe Section 7 of the Cess Act. So understood Section 7 will enable an industry to earn a rebate if, and only if, it subserves the purposes of the Pollution Act, namely, controlling the deterioration in the quality of the trade effluent. If the plant installed is one which gives a satisfactory treatment of the trade effluent, rebate could be given to such an industrialist and so long as the treatment of the trade effluent is effective from the point of view of the Pollution Act. On a proper interpretation of the section, therefore, rebate cannot be earned by the mere installation of some plant. Rebate will be due only if, the plant is able to achieve the results. The period during which rebate could be claimed is only that period during which the trade effluent gets properly and satisfactorily treated by the plant. It is precisely this idea, which is implicit in the section itself, that has been elaborated while framing Rule 7. Rule 7 therefore does not add to or amplify the scope and content of Section 6. There is therefore no question of Rule 6 overshooting the boundaries sketched by Section 7. The rule does not rise above the source of the provision in the Act, as assumed by the learned Judge. Viewed in that perspective, it cannot be said that the Rule has roped in matters unprovided by the section or unintended by the Parliament. With respect, we are unable to share the view of the learned single Judge that the rule-making authority has cut down the sweep of the section or added further conditions of its own.
24. In the light of the conclusion we have reached above, it is unnecessary to consider other and subsidiary contentions. The generality of the power under Section 17(1) cannot be overlooked in that context. Instances are many, where statutory intent is couched in one section or two and the rest are all left to be regulated by the rule making power. (See for example the All India Services Act with three sections in all; The Central Excises and Salt Act, 1944 is a Lilliputian compared to the Gulliver like mass of Rules framed by the Government for carrying out the purposes of that Act. Notwithstanding the general character of Section 6, it would then be possible for the rule making authority to prescribe precisely and specifically as regards the conditions to be satisfied for earning the 'rebate' generally referred to in that section.
25. Yet another aspect to be adverted to in this connection is the fact that these rules have to be placed before the Parliament under Section 17(2). Thereunder, it is open to the Parliament either to approve or to modify or vary such rules. There is no case that these rules, including Rule 7, have been modified or varied by the Parliament. The Parliament which has made the enactment has thus chosen to approve all these rules. Not that circumstance has in any way weighed with or swayed our view in relation to the interpretation of Section 6 and Rule 7. We are not unaware that distinction which has been made between the rules which, when framed, are to be treated as part of the enactment itself and other rules which are only to be placed before the Parliament for its approval. Different considerations would arise if the rules partake of the former character. This aspect has been dealt with by the Court of Appeal in Institute of Patent Agents v. Joseph Lockwood, 1894 AC 347. The Law Lords were not unanimous in their view about the character and effect of such rules. The view of Lord Herschell appears to have appealed to the Supreme Court in the decision Associated Cement Co. Ltd. v. Commercial Tax Officer, Kota, AIR 1981 SC 1887 which considered a Rule framed under the Rajasthan Sales Tax Act. (Section 26(5) of that Act declared that the rules made would have effect as if enacted in the Act.) The effect of such a rule was discussed by Venkataramiah, J. in para 21, approvingly quoting the following observations of Lord Herschell :
'I own I feel very great difficulty in giving to this provision, that they 'shall be of the same effect as if they were contained in this Act', any other meaning than this, that you shall for all purposes of construction or obligation or otherwise treat them exactly as if they were in the Act. No doubt there might be some conflict between a rule and a provision of the Act. Well, there is a conflict sometimes between two sections to be found in the same Act. You have to try and reconcile them as best you may. If you cannot, you have to determine which is the leading provision and which the subordinate provision and which must give way to the other. That would be so with regard to the enactment and with regard to rules which are to be treated as if within the enactment.'
It is unnecessary to pursue the matter any further.
26. The learned Judge has in para 16 of the judgment observed that the Board has got necessary sanctions under the Pollution Act for achieving the object of control of water pollution arid that that object cannot be achieved by making use of the rule-making power under the Cess Act. The existence of necessary sanctions under the Pollution Act, does not in any way control the interpretation of the Cess Act. The fact that there are such sanctions does not inhibit the rule-making authority from framing a meaningful and purposive rule, visualised under the Cess Act and for the effective implementation of the objective underlying Section 7 of the Act. The learned Judge further observed :
'If the company's plant is defective, if its performance is below standard, and if its operations are contaminating the water of Chaliyar river, there are enough remedies under the Act which defines pollution and creates the machinery for its control. Those reluctant to take action under those provisions cannot try to ease their conscience by extracting a few more rupees from the Company under the Cess Act, if the Company is showing scant regard to public health.'
The justifiable anger or anguish of the courts in the unsatisfactory style of functioning of a statutory Board, again, according to us, have no bearing on the interpretation of the provisions of the Cess Act and the Rules framed thereunder.
27. In para 17 of his judgment, the learned Judge was substantially carried away by the wording of Section 7. Such an approach overlooks the generality of the rule-making power conferred under Section 17(1). According to the learned single Judge, the effect of Rule 6 is to give to the Board the power to decide the success and effectiveness of the plant and by such a process, 'the will of the Parliament as reflected in Section 7 of the Act is placed by the rule-making authority at the mercy of an outside agency.' This approach is also, according to us, unacceptable. The interconnection between the Cess Act and the Pollution Act has been already indicated above. The Board is not an outside agency, on a proper understanding of the Cess Act and its connection with the Pollution Act. The very' purpose of levy of cess is for the purpose of the Pollution Act and utilisation thereunder. It is essentially, if not entirely, for the Board to oversee activities of the industries and the local authorities with a view to check and control pollution. It is such a Board, that attends to every detail relating to the prevention of pollution of water. The Board cannot then be treated as an outside agency. Nor can its decisions be characterised as having the effect of replacing the will of the Parliament. The Board in truth and substance, only carries out, in effect and practice, all those functions and acts as detailed by the Parliament, and specifically directed to be within the province and competence of such a Board.
28. The learned Judge has taken the view that it is not permissible for the courts to add words to a statute. Reliance has been placed on some early decisions under the Income-tax Act in support of that proposition. It is doubtful whether this approach can any longer be enthusiastically adopted by the courts in India after the decisions of the Supreme Court in Me Dowell's case. (See Me Dowell and Co. Ltd. v. Commercial Tax Officer, (1985) 3 SCC 230 : (AIR 1986 SC 649). As regards the reliance placed by the learned single Judge on a recent decision of the Supreme Court in Prithi Pal Singh v. Union of India, AIR 1982 SC 1413, there could not be any doubt about the proposition. However, it is useful in that connection to refer to one of the latest decisions rendered by the Supreme Court in B. Prabakar Rao v. State of Andhra Pradesh, AIR 1986 SC 210, which is more apposite in the present context. The Supreme Court reminded that 'justice may be blind but it is not to be deaf. Judges are not to sit in soundproof rooms.' The court observed ;
'Committee reports, Parliamentary debates, policy statements and public utterances of official spokesmen are of relevance in statutory interpretation. But 'the comity, the courtesy and respect that ought to prevail between the two prime organs of the State, the legislature and the judiciary', require the courts to make skilled evaluation of the extra-textual material placed before it and exclude the essentially unreliable, 'Nevertheless the court, as master of its own procedure, retains a residuary right to admit them where, in rare cases, the need to carry out the legislator's intention appears to the court so to require.' No rule prevents the court from inspecting in private whatever materials it thinks fit to ensure that it is well informed, whether in relation to the case before it or generally. Where these materials constitute publicly available enacting history, the court takes judicial notice of them.' 'The court has an inherent power to inspect any material brought before it,' (Francis Bennign : Statutory Interpretation.) This is to enable the court to determine whether the material is relevant to the point of construction in question, and if so whether it should be admitted. This has to be done with a degree of inhibition and an amount of circumspection.'
The passage extracted above would justify a reference to legal and technical literature all over the world in relation to the prevention of pollution of water, even when we are evaluating a section under the Cess Act and a Rule framed thereunder.
29. We are also of the view that the question involved is not a mere interpretative exercise on a section and a rule of a plain and simple enactment. The question has larger overtones. Impacts and influences on activities with a direct nexus to the life and health of the people. That broader view, according to us, is essential while approaching the problem, understanding it, and answering it. Such a search for the larger horizons had been made when the enactments in question have bearings on expansive areas and wide ranging objects. A refernce to treaty international protocol or conventions is premissible while interpreting laws which have a link or background with such treaty, protocol or convention. (See the observations of the Supreme Court while interpreting the provisions of the Foreign Awards (Recognition and Enforcement) Act, 1961, in Tractoro export v. Tarapore & Co., AIR 1971 SC 1). The legislative measures with which we have to deal with in the present case, have far wider horizons. It would be desirable, and in a sense necessary, to bear in mind that background before we unfold the actual text of the enactments to be examined.
30. Our little planet has water as 70% of its content. Ninety five per cent of the nations in the world have watery coasts. Water influences the life and health of the people, prominently and pronouncedly. It constitutes an important and integral part of our environment.
31. Preservation of the purity of water . has engaged attention of the administrators all over the world even from ancient times. H.A. Hawkes states :
'The sanitary laws of Moses are well known, and the ancient Persians at least controlled river pollution; they were forbidden by law from discharging organic refuse and other filth into the rivers.'
(See 'The Ecology of Sewage Bacteria Beds' by H.A. Hawkes, from 'Ecology and the Industrial Society, Edited by Gordon T. Goodman etc. at page 119.)
32. Pollution of a natural stream under common law is an actionable wrong, actionable without proof of actual damage. (See Clerk & Lindsell on Torts (1982} Fifteenth Edition, Paragraphs 23-52 at 1174.) Similar views are expressed in authoritative treatises like Salmond on the Law of Torts and Kerr's Treatise on the Law of Practice of Injunctions. The case law starting with Wood v. Waud (1849) 3 Exch. 748 indicates the legal fight for potable water. As observed in Pride of Derby and Derbyshire Angling Association Ltd. v. British Celanese Ld., (1953). 1 Ch 149 at 191 :
'...............pouring a polluting effluent into the river makes them guilty of nuisance........they are liable for it at common law unless they can defend themselves by some statutory authority.'
In India also, the legal action had been pursued on the basis of common law to maintain acceptable limit of purity of water. See Pakkle y. V.P. Aiyasami, AIR 1969 Mad 351.
33. More than a century back, the framers of Indian Penal Code were alive to the necessity of protecting the rivers and streams. This is clearly evident from Section 277 of the I.P.C. reading :
'Fouling water of public spring or reservoir.' -- Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished, with imprisonment of either description for a term which may extend to five hundred rupees, or with both.'
(See also Ss. 268, 269, 277, 288, 290 & 426, I.P.C.) (The term 'public spring' has been given a limited interpretation in some of the early decisions, (vide Queen v. Vitti Chokkan (1876-77) I.L.R. 4 Mad 229; Empress v. Halodhur Poroe, (1876-77) I.L.R. 2 Cal 383 and Emperor v. Nama Ram (1904) 6 Bom LR 52. Fouling of the water of a river running in a continuous stream may well be a nuisance under Section 290, I.P.C. (vide (1904) 6 Bom LR 52 supra).
34. Realisation of the hazard of unpotable water was keenly felt during the last few decades. When it is said that five litres of water has only a teaspoon of sweet water in it, we get an idea of the seriousness of the situation. Late President Kennedy described water pollution as a national disgrace. As H.B.N. Hynes, (of the Department of Zoology, University of Liverpool) observed in 'A Survey of Water Pollution Problems' :
'Loss of amenity is bad enough, but much more serious, although less evident, is loss of water in usable form.'
(See Ecology and The Industrial Society', edited by Gordon T. Goodman, etc., at page 49.)
The seriousness attached to the problem is evident from the fact in all advanced countries, scientists and administrators, have given serious thought to such problems. The Department of Environment is vibrant with activities in many such advanced countries.
35. The 1972 United Nations' Conference on the Human Environment at Stockholm in June 1972, was as important landmark in such attempts. In England, attempts at prevention of river pollution started early enough, presumably in the wake of the industrialisation of that country. The Rivers Pollution Prevention Act 1876, and the Rivers Pollution Prevention Act, 1951 were some of the earlier enactments. The Control of Pollution Act, 1974, brought in a comprehensive legislation and with that many earlier enactments stood virtually repealed. Enactments on water protection had been made in America even from 1948. (See the Federal Water Pollution Control Act of 1948, the Water Quality Act of 1965, the Water Quality Improvement Act of 1970 and the Federal Water Pollution Control Act Amendments of 1972.) Such legislative exercises were made in Germany and Japan in 1970. As observed in the article 'Overlapping International and European Laws' :
'Environmental protection has become a fertile source of laws, international, European and national, since the U.N. sponsored the Stockholm Conference of 1972 and its Declaration on, and Action Programme for, the Human Environment. Numerous Conventions between States which turn out to be geographically interdependent have been hammered out, a few before, but most since that date, covering such matters as the prevention of the pollution of the seas in general, or of particular seas, or common rivers, the reduction of air pollution and latterly the safeguarding of flora and fauna.'
(See 'International Comparative Law Quarterly', 1982 Vol. 3, page 63.)
36. Protection and improvement of the environment is one of the Directive Principles of State Policy, (vide Article 48A). Under Article 51A(g), it shall be the duty of every citizen of India 'to protect and improve the natural environment including forests, lakes, rivers and wild life,........'
36A. Intensive efforts were made in relation to the protection of water in India even in the 1960's. An Expert Committee was appointed in October 1962 to study the question and submit a draft legislation. Opinions of State Governments were also elicited. The draft Bill was introduced in 1969. A Joint Committee of both Houses submitted its report after examining the provisions of the Bill thoroughly and making intensive in-depth studies. The Pollution Act which was ultimately enacted was the result of such massive efforts of brain and braun. When through the Cess Act, Parliament has declared direct connection with the comprehensive Pollution Act, it is not proper or permissible for the Court to neglect or forget such connection.
37. For the aforegoing reasons, we allow the writ appeals without costs and set aside the judgment of the learned single Judge to the extent that Rule 6 has been read down. We declare that Rule 6 is fully within the rule making powers of the Cess Act, and has a full force effect as such.
38. As regards the evaluation of the effectiveness of the plant installed, we feel that all aspects have not been properly considered by the assessing authority and the appellate authority. A reconsideration of the entire issue particularly in the light of our observation regarding the scope and ambit of the Pollution and the Cess Acts and the Rules framed there is necessary. We would therefore direct the appellate authority to deal with the case afresh in the light of the above observations.