Bhusawal Thermal Power Station had filed the returns for the period from 1st April to June 84 & from July to Sept. 84 without considering the recirculation factor & subsequently submitted a corrigendum for water consumption figures after considering the recirculation. Their contentions was that the water consumption figures in the earlier returns were not commensurate with the Water management practice at their plant Their submission was that the water is withdrawn from the cooling pond constructed at their cost in the river bed & that bulk of it is released back into the pond. Therefore, the main dispute was whether there was recirculation, recycle & reuse of water by virtue of impoundment into the cooling pond and regarding grant of rebate as per the provisions of the Water (Prevention & Control of Pollution) Cess Act, 1977, as BTPS meets the consent condition for effluent standards i.e. requirements U/s 7 & the rules thereunder. However, the assessing authority had rejected their contentions. Therefore, BTPS had filed an Appeal as provided U/s 13 of the Water (P & CP) Cess Act, 1977. But the Appellate Authority had also not considered their submissions & rejected the appeal. The appellate authority did not agree to the points raised by MSEB, BTPS, that there is an “Impoundment” created in the river bed & this serves as a system for recycle of water

Aggrieved by the order of disallowing the appeal, BTPS had filed a Writ Petition No.2963/88 before Hon. High Court of Judicature at Mumbai. The said petition was pending from 1988 to Feb.2000. After hearing both the sides & taking into consideration the complicated technical & scientific nature of the matter, the Hon’ble High Court of Judicature at Mumbai sought the views of both BTPS & MPCB to refer the matter for arbitration with the permission of both the parties after giving choice for selection of names, appointment of Arbitrator & the presiding Arbitrator, the matter was referred to the Arbitration Tribunal. The main basis for appeal was that erroneous submissions of returns by BTPS on the basis of water pumped & the reservation of water by Irrigation Department. & permission granted for recirculation arrangement by Irrigation Department as well as the Central Water Commission & grant of rebate as per the provisions of the Cess Act. Their submission was that they should be charged on the basis of revised submission.

The Arbitration Tribunal has come to the conclusion that the dispute is essentially of complicated scientific technical nature as its solution lies in the rational approach for qualification of flows, their categorization and on quality assessment of discharges. Therefore, Arbitrators had decided to verify the site conditions & inspected water intake arrangement at river, inlet cannel flow, bypass arrangement from inlet cannel to outlet cannel, once through system of unit, pump house on inlet cannel, confluence of outlet cannel within concrete dam, river flow etc. as well as Hatnoor dam from where water is released to the pond upstream of impoundment. The Arbitrators observed specifically during their visit to the site that the river Tapi just downstream of Hatnoor Dam was practically dry in the moth of November & at the same time, the pond created due to the construction of concrete dam was full of water. After enquiry with the Maharashtra Engineering Research Institute, which had measured the incoming water & also the water coming out from the outlet cannel at the confluence with the river/Pond, it was found that out of the total water pumped from inlet, 70% of the same was returned to the river /pond. Therefore, the Arbitration has come to the conclusion that 30% of the water from inlet is used for various uses i.e. category I, II, & III & 70% of the same was returned to the river/pond.

The Arbitrators had studied in detail the judgment given by Hon’ble Supreme Court in Delhi Electric Supply Undertaking V/s Central Pollution Control Board, where, it was held that, the water pumped from Yamuna river should be considered for calculation of Cess amount. However, the Arbitrators have distinguished the present case and has come to the conclusion that an impoundment in the form of a pond by construction of concrete dam has been created. This pond acts as a recirculation pond & the quantity, (Lost) i.e. actually consumed for domestic use, industrial consumption (Category- 2 & 3) is only replenished by release of water from Hatnoor dam as stated above. Thus, as BTPS the water is released in the pond & is again lifted from the pump house at inlet. The existence of the pond in the river bed has to be considered as a pond created for the purpose of re-circulation. It is specifically observed that there is no ambiguity in the minds of the Arbitrators that this is a unique situation & a unique case which can not be compared with the situation existing at Delhi Electric supply undertaking. The Arbitrators have assumed a figure of 10% as losses in evaporation and absorption in storage tank. Therefore, out of the quantities of water pumped from inlet, 40% of the quantities are chargeable for water cess as per views expressed by the Arbitrators. Considering inconsistencies in the consent conditions, the arbitrators considered that rebate should be granted for industrial cooling (Category – I) but, since for Category -III BTPS has not claimed rebate, the Arbitrators considered that it should not be allowed. The Arbitrators have thus come to the practical solution on the basis by unique situation existed at BTPS.

Shri H.L.Bhure, Asstt.Law Officer, Shri D.T.Devale, Law Officer., Shri Shiwangi, Shri Kadale, Sub-Regional Officers of the Board, Shri Khurana & Shri Shinde have extended full co-operation to come to the above practical decision