Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. The respondents also submitted that there was some dialogue between the State and TISCO for the purpose of creating a contractual obligation on TISCO to make payments for water drawn by it. Therefore, TIS CO was obliged by a contract to pay monies due under the impugned demands.
13. The High Court did not examine the questions – Whether the impugned demand is a Tax or a Fee or a liability arising under a contract?, and, Whether the prohibition contained in Article 265 is confined only to levy and collection of tax or it would also extend to levy or collection of a fee? c
14. No clear finding is recorded by the High Court that there exists any law authorizing the levy and collection of the impugned demand. Though the High Court made references to the Bihar Irrigation Act, 1876, it did not record any conclusion whether the said Act provides the necessary statutory authority for the levy and collection of the impugned demands. However, by the judgment under appeal, High Court opined that: "Under Entry 17 of List II of the Seventh Schedule to the Constitution of India, the State has power to legislate on water, subject to Entry 56 of List I. **** **** •••• .. the State of Bihar must be found to be competent to enact laws in terms of Entry 17 of List II of the Seventh Schedule. **** **** **** Under Entry 66 of List II to the Seventh schedule, the State has power to collect a fee in respect of any of the matters in the list but excluding the fees taken in any Court. Once we consider that the State has the right to legislate on water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, there must necessarily be a right to impose a fee on the water supplied by the State to Tisco after the same is impounded at Chandil Dam built across the Subarnrekha River at State's expense or the water flowing down stream of Subarnrekha River from any water source. The expenditure incurred by the State for construction of the claim would be the quid pro quo for the fee to be imposed by the State. We are TATA IRON AND STEEL CO. LTD. & ANOTHER v. STATE OF BIHAR & OTHERS [CHELAMESWAR, J.] therefore of the view that the State is in a position to demand payment for the water used by Tisco from the Subarnrekha River during the relevant period." In substance, the High Court held that in view of the Entry 66 of the List II of the Seventh Schedule the State is legally justified in making the impugned demands! High Court appears to be of the view that the mere existence of an entry (Entry 66 of List-II) in the Seventh Schedule is sufficient to justify the impugned demand. However; High Court granted a limited relief to TIS CO directing the respondent-State to collect the fee for water consumed for domestic purposes at a rate lower than the rate applicable for the water consumed for the industrial purposes. "Para 9 …. Therefore, as far as the bill issued to Tisco prior to the coming into force of the Bihar Irrigation Act is concerned, the matter requires to be reconsidered by the State Government. The Government has to verify the figures and determine the quantum of water used by Tisco for its industrial purposes as distinct from other purposes and impose a liability on Tisco for water used for industrial purposes all the present rate, and impose a rate for water used for other purposes at a lesser rate consistent with the rate charged for other domestic consumers. We do not find anything irrational or arbitrary in the rate of Rs. 3/- per thousand gallons adopted by the State. But that rate can be justified only for the water used by Tisco for industrial purposes. Water used for purposes other than industrial purposes has to be charged at a lesser rate as indicated above."
15. Hence the instant appeal.
16. Before this Court also it is categorically pleaded6 and argued by Shri Dushyant Dave on behalf of TISCO that the impugned demand is without any authority oflaw and therefore violative of Article 265 of the Constitution oflndia. 6 That the High Court failed to appreciate that the impugned demand notice for a compulsory exaction from the petitioner without authority of law directly infringes the petitioner's fundamental rights under Article 14 and 19 (l)(g) and also violates Article 265 of the Constitution – ground No. XIV of SLP c c
17. On behalf of the respondent-State, it is submitted that the impugned demand is a 'fee' but not a 'tax', the expression 'tax' occurring in Article 265 cannot take within its sweep – "fee". Therefore, there is no need for a legislative sanction for the impugned demand.
18. The expressions "taxes" and "duties" are to be found in many provisions7 of the Constitution. The expression "fee" finds a place in Article 110(2)8 and 199(2), which are in pari materia. Both the Articles recognise the existence of two kinds of fees. Fees for licences and fees for services. Each one of the three lists contained in the Seventh Schedule have entries which employ the expression "fees" (Entry 96 of List I, 66 of List II and 47 of List III). Article 366 contains definitions of various expressions employed in the Constitution. Article 366(28) defines the expression "taxation"- "(28) taxation includes the imposition of any tax or impost, whether general or local or special, and tax shall be construed ·accordingly;''
19. The expressions "fee" and "duty" are not defined under the Constitution. A1ticle 366(28) employs another expression "impost". What are the legal contours of each one of these expressions i.e. "tax", "impost", "duty" and "fee" fell for the consideration of this Court from time to time.
20. This Court in Commissioner of Income Tax, Udaipur, Rajastha11 v. McDowell And Company Limited, (2009) 10 SCC 755 held: "21. "Tax", "duty", "cess" or "fee" constituting a class denotes to various kinds of imposts by State in its sovereign power of taxation to raise revenue for the State. Within the expression of each specie each expression denotes different kind of impost depending on the purpose for which they are levied. This power can be 7 See Articles 265, 266, 268, 269, 270, 271, Entries 82 to 91 of List I and Entries ~6 to 63 of List II of the Seventh Schedule to the Constitution •Article 110(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties. or for the demand or payment of fees· for licences or fees for serYices rendered. or by reason that it provides for the imposition, abolition. remission, alteration or regulation of any ta~ by any local authority or body for local purposes. TATA IRON AND STEEL CO. LTD. & ANOTHER v. STATE OF BIHAR & OTHERS [CHELAMESWAR, J.] exercised in any of its manifestation only under any law authorizing levy and collection of tax as envisaged under Article 265 which uses only the expression that no "tax" shall be levied and collected except authorised by law. It in its elementary meaning conveys that to support a tax legislative action is essential, it cannot be levied and collected in the absence of any legislative Sl!nction by exercise of executive powerof State under Article 73 by the Union or Article 162 by the State. 22. Under Article 366(28) ''Taxation" has been defined to include the imposition of any tax or impost whether general or local or special and tax shall be construed accordingly. "Impost" means c compulsory levy. The well-known and well-settled characteristic of "tax" in its wider sense includes all imposts. Imposts in the context have following characteristics: (i) The power to tax is an incident of sovereigntyc (ii) "Law" in the context of Article 265 means an Act of legislature and cannot comprise an executive order or rule without express statutory authority. (iii) The term ''tax" under Article 265 read with Article 366(28) includes imposts of every kind viz. tax, duty, cess or fees. (iv) As an incident of sovereignty and in the nature of compulsory exaction, a liability founded on principle of contract cannot be a "tax" in its technical sense as an impost, general, local or special." 21. A nine-judge Constitution Bench of this Court in Jindal Stainless Ltd. & Another v. State of Haryana & Others, 2016 (11) Scale 1, quoted the abovementioned statement of law with approval. Therefore, it is now well settled that the expression "fee" is also comprehended in the expression "tax" for the purpose of Article 265. and even for the collection of a "fee", authority of law (ie. legislativ\: support) is mandatorily required under the Constitution. 22. ln view of the abovementioned authoritative pronouncement, we need not examine the various ancillary submissions made on behalf H of the respondent State relying upon various judgments9 of this Court rendered prior to judgment in Jindal Stai11less case (supra) that the expression "tax" occurring in Article 265 does not take within its sweep the expression "fee". 23. The next question that is required to be examined is whether the impugned demand could be justified as a demand made.pursuant to the authority of law conferred either under the Bengal Irrigation Act 1876 or Bihar Public Irrigation and Drainage Works Act, 19.47. c 24. The High Court took note of the rival submission in this context. " ……… It is also submitted on behalf of the State that the Bengal Irrigation Act, 1876 had application to the districts ofHazaribagh and Ranchi, though it was not applicable to the Santhal Parganas and that it really applied to Jamshedpur in which the Works of the writ petitioner are located. Counsel for Tisco submitted that the Bengal Irrigation Act, 1876 did not cover the use of water for non-irrigation purposes and the said Act did not confer any power on the Government to recover any rate for the water used for non irrigation purposes, like the one involved in this case. This is yet another question that requires to be considered and decided." But there is neither any discussion by the High Court nor any conclusive finding on the submissions. 25. Insofar as the alternative submission made before this Court that the ·impugned demand could be justified under the Bihar Irrigation Act 1997 (Act 11 of 1998) there was neither any clear pleading before the High Court nor a submission. 26. In the circumstances, we would not like to examine the abovementioned two submissions as the court of first instance. We must place it on record that the learned counsel appearing for the respondent- State submitted that since they are pure questions of law, this Court is obliged to examine the same. 9 Kewal Krishan Puri Vs. State 9f Punjab and Ors., 1980 (I) SCC 416 Municipal Corporation of Delhi and Ors. Vs. Mohd. Yasin, 1983 (3) SCC 229 · Sreenivasa Gem~ral Traders and Ors. Vs. State of A.P. and Ors., 1983 (4) SCC ~53 – State of A.P. and Ors. Vs. Shi.valik Agra Poly Products and Ors .. 2004(8) SCC 556 TATA IRON AND STEEL CO. LTD. & ANOTHER v. STATE OF BIHAR & OTHERS [CHELAMESWAR, J.] We reject the submission. No doubt that it has been repeatedly held by this court that this court would not be averse to examine a pure question of law, (but not argued in the High Court) raised for the first time before this Court. This court only asserted its jurisdiction to resort to such an examination but did not declare that this Court is bound to examine in every case where a question of law is raised. We are sorry to place it on record that all sorts of questions of both fact as well as law arc sought to be raised for the first time in this Court though no effort was made to raise such arguments either i_n the High Court (or the subordinate court, as the case may be). There appears to be some magic in Bhagwan Das Road! Questions of law arising out of the application and interpretation of a local law, in our opinion, ought not to be normally entertained by this court unless such questions are intertwined with substantial questions of interpretation of the Constitution. At any rate, such questions, in our opinion, ought not to be examined by this court as a court of first instance when such questions were not either raised or argued properly before the High Court. Even in those cases where the parties raised such questions but the High Court failed to examine such questions, this Court cannot become a substitute for the High Court. 27. We are left with one more question in this matter. From the tenor of the counter affidavit filed before the High Court, it appears that the entire thrust of the case of the respondent -State appears to be that the State while making the impugned demands is only trying to recover some portions of the expenditure incurred in constructing the Chandil Dam of which TISCO is one of the direct beneficiaries. A reading of the counter affidavit filed on behalf of the State by Dwarka Nath Srivastava, Superintending Engineer gives a vague impression that the State was suggesting that the impugned demands arise out of an agrcement 10 between the State and TISCO. 28. First of all, as a matter of fact,. there appears to be some dispute regarding the existence of a concluded agreement by TISCO .. ___ whic.h oblig>ttc.s TISCO to make the payment of the impugned demand. 10 I say an<l submit that while on the issue of demanding payment it is submitted that in response to the <lraft agreement prepared by the Government requiring Tisco to pay water rate fixed.by the State from time to time. c . [2017] 12 S.C.R. It can be seen from the abovementioned counter affidavit that the respondent State itself admits 11 absence of a concluded agreement'. c 29. None of the abovementioned aspects have been examined by the High Court in the judgment under appeal. 30. In the circumstances, we are of the opinion that the judgment under appeal cannot be sustained and needs to be set aside. It is, accordingly, set aside. However, having regard to the fact that the State assert5 that the two enactments referred to earlier provide the necessary authority of law for sustaining the impugned demand, the matter is remitted to the High Court for an examination of the abovementioned questions after giving an appropriate opportunity to the parties to file proper further pleadings in the matter and argue the same. CIVIL APPEAL N0.5359 OF lQQS. 31. The State of Jharkhand has filed this cross appeal challenging the impugned judgment insofar as it directed the State Government to reconsider the levy regarding supply of water at a uniform rate both for the industrial use as well as the use of water for domestic purposes. 32 .. In view of the judgment in Civil Appeal No.5360 of2005, we leave it open to the parties to argue the issue involved in this appeal also before the High Court. 33. Both the appeals stand disposed of accordingly. During the pendency of the matter before the High Court, the impugned demand shall remain stayed. Kalpana K. Triapathy Appeals disposed of. 11 The State Government has been most eager to settle the matter amicably and draw up suitable agreement with the petitioner so that daily release and drawal of water as well as mode of payment at the given rate becomes operationally affective and any area of dispute is marginalized. With this end in view of State Govt. has .always taken recourse to negotiation for mutual agreement and has held series of meeting with high level Tisco management at ils behest. However, the petitioners has so far eluded the.arrival of any mutual agreement on payment of water used or water consumed and has now restored to litigation over these issues.