TMI Blog1998 (9) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... er so drawn from the said river is purified before use for manufacturing paper and for supply for domestic purposes. The water after it is used is discharged into the river after purification in the filter and water recovery plant and sedimentation lagoons. During the lean period which is about four months in a year from January to June, when the flow of water in the river is less, the appellant constructs sand bundhs across the river at different places for impounding the water. Without construction of such bundhs, it would not be possible to get water in sufficient depth from the pumps. Hirakud Dam was constructed in the year 1956. The maximum level of the reservoir of the said dam is stated to be 630 R.L. The Orissa Irrigation Act, 1959 (hereinafter referred to as the Act ) which came into force from 1st June, 1961 was enacted to consolidate and amend the laws relating to the irrigation, assessment and levy of water rate and cess in force in different parts of the State of Orissa. In March 1969, the Collector of Sambalpur addressed a letter to the Secretary of Revenue Divisional Commissioner, Northern Division, Orissa regarding the construction of the cross-bundhs by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant in reply to the communication sent by the Collector on the lines as stated above is that even when the level of water rises above the level of the pump, it uses the flowing water of the said river Ib. Therefore, it is not liable to pay any levy under the Act. Thereafter proceedings were initiated in Irrigation Case No. 1 (IRR) of 1972 by the Irrigaiton Officer. A show cause notice was issued as to why water tax should not be charged. The appellant replied that the Act and the Rules framed thereunder did not apply to the case as the appellant was drawing water from the flowing stream of the river Ib and not from any irrigation work as defined under the statute and since it has been drawing water from the natural flow of river Ib since 1939, it had acquired rights to enjoy free flow of water from the river and the said right cannot be abridged under the law. By an order made on 27th April, 1974, the Irrigaiton Officer imposed water rate for the year 1961-62 to 1973-74 ₹ 1,47,168/on the basis that the Act and the Rules were applicable to the appellant as it was drawing water from the Hirakund reservoir. Water tax was calculated on the basis of consumption at 6 lacs ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude the bed of river Ib is valid? v)Whether the drawal of water is from an irrigation work as defined under the Act? iv)Whether drawal of water can be treated as supply on which water rate is payable? vii)Whether drawal of water can be held as unauthorised? viii)Whether water discharged is polluted; and ix)Whether any levy is possible for unauthorised use under rule 47(2) within the frame work of the Orissa Irrigation Act? All the questions were answered in the affirmative and against the appellant. The matter was, therefore, carried in a writ petition before the High Court. Before the High Court the contentions put forth by the appellants pertain to -- 1)The appeliant does not use the water from the river Ib for the purpose of irrication or domestice purpose and, therefore, the Act and the Rules do not apply. 2)The water is drawn by the appellants at a point which is within the Hirakund reservoir area and as such the appellant do not draw arter for any irrigation work as defined under Section 4(9) of the Act. 3)Even assuming that the appellants are liable to pay water rate for the use of water for their mill or supply of water to the residential colon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of the matter, we may advert to the order made by the Appellate Authority dated 23rd December, 1975. The concluding portion of the order reads as follows:- The main point is whether lifting of water from river Ib is being done from a point which is within the reservoir. This is a question of fact and as admitted by the Government Pleader, proper enquiry to come to a finding that lifting is being done from a point within the reservoir has not been conducted. The case is therefore remanded to the learned Irrigation Officer-cum-Tahsildar, Jharsuguda for re-enquiry and disposal. Though the various points on which the order made by the Irrigation Officer were challenged in the Appeal on the basis of non consideration of the question whether the point at which the water was lifted by the appellant was within the reservoir, entire order made by the Irrigation Officer was set aside and there was an open remand. When the scope of enquiry after remand was not restricted by the appellate authority, it was certainly permissible by the irrigation Officer to examine all questions arising thereto. Therefore, we find absolutely no merit in the first contention urged on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a part of the reservoir. And it further concluded as follows :- Once it is concluded that the intake point is within 630 R.L., it will not cease to be a part of the reservoir only because the water level recedes beyond this point for a particular period of the year. The reservoir limits are fixed and have nothing to do with the water Spread area at different points of time. The reservoir extends up to the limits to which the water Spreads at the maximum water level and hence all areas in continuity within 630 R.L. are included in the reservoir. Ultimately he observed that the intake point is within 630 R.L. and hence it is a part of the reservoir and any water lifted from the point whether apparently stagnant, flowing or artificially stored would be water coming from an irrigation work under the definition of the a Act and would be liable to payment of water rate and other consequences prescribed under the Act. The Revisional Authority also took the view that as was done by the lower authorities. Therefore, the consistent view taken by all the authorities on a question of fact is that the point at which the water is drawn by the appellants lies within the reservoir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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