- (1.) M. Katju, J. Heard learned counsel for the parties. This writ petition has been filed for a mandamus directing that the petitioner be not compelled to pay cess under the Water (Prevention and Control Pollution) Cess Act, 1977 and for a certiorari quashing the impugned orders dated 20-1-1989 and 13-1-1990 Annexure 2 and 5 to the writ petition.
(2.) THE petitioner company is a company engaged in the production of atta, maida, suji, etc. having a flourmill in Dadri, Meerut. THE petitioner uses wheat in producing the above products. THE petitioner has a large area of land appurtenant to its industry. THE total land of the petitioner is 11850. 50 sq. yards out of which only 1347 sq. yards are used for the factory purposes and rest of the land is used as trees, lawns etc. and for agricultural purposes. For watering this land the petitioner has installed a big tube well. In February 1989 the petitioner received a letter from Cess Officer, U. P. Pollution Control Board Lucknow dated 30-1-1989 asking the petitioner to deposit cess as per assessment order dated 20-1-1989 under Section 6 of the Act vide Annexures 1 and 2 to the writ petition. Against the assessment order the petitioner filed an appeal taking various grounds including a ground that no cess can be charged under Section 3 of the Act as the petitioner is not a specified industry as per Schedule I of the Act. THE petitioner also filed written argument. True copy of the grounds of appeal and written argument are Annexures 3 and 4 to the writ petition. It is alleged in paragraph 6 of the writ petition that no inspection of the industry was ever made by the officers of the respondents and no notice was given to the petitioner. The appeal was partly allowed vide order dated 13-1- 1990 Annexure 5 to the writ petition. It is alleged in paragraph 8 of the writ petition that the Cess Officer arbitrarily and illegally and on the basis of discharge capacity of tube-well fixed water consumption of the petitioner and again arbitrarily divided it into different categories for assessing the cess. It is alleged in paragraph 10 of the writ petition that no proceeding under Section 4 (2) of the Act was ever initiated against the petitioner and this fact has not been considered by the appellate committee. It is alleged in paragraph 11 of the writ petition that the petitioner is not covered under Schedule I of the Act and is not liable to pay any cess under Section 3 of the Act. Hence this petition.
(3.) A counter-affidavit has been filed by the respondents and we have perused the same. It is stated in paragraph 3 that the petitioner comes under the purview of Act No. 6 of 1974 as well as Act No. 36 of 1977 and is liable to pay cess to the U. P. Pollution Control Board. It is alleged that the petitioner comes under Schedule I of Cess Act. The petitioner failed to submit the return as required by the Act and the assessment was made in accordance with law. In paragraph 4 it is stated that the appellate authority considered the material on record and rightly rejected the appeal on the finding that the petitioner manufactures atta, maida, suji, etc. from wheat and industry comes under the purview of the Cess Act. The site of the petitioner was inspected on 18-8-1998 and it was revealed that the petitioner has been consuming sufficient water and has become liable to pay cess. The inspection was done in presence of the petitioner's representatives and the petitioner was directed to furnish its return but it did not do so. In our opinion the assessment order and the order of the appellate committee are illegal as flourmill is an industry which process wheat which is not vegetable or animals. The appellate committee in its order Annexure 5 to the writ petition has observed that the petitioner would be covered by clause 16 of Schedule I which states "processing of animal or vegetable products industry". In our opinion processing of wheat does not amount to processing of animal or vegetable products. The appellate authority has held that the petitioner processes atta, maida, suji etc. from wheat and wheat is produced through various vegetable activity and hence should be identified as vegetable products. In our opinion the view taken by the appellate authority is clearly arbitrary. In our opinion wheat is not a vegetable at all. In this connection we may refer to the decision of the Supreme Court in M/s. Saraswati Sugar Mills v. Haryana State Board, AIR 1992 SC 224, in which it has been held that the word `vegetable' has to be understood in common parlance. Botanical meaning cannot be given to the word. A common parlance meaning has to be adopted in such matters.;