PANAJI
The Bombay High Court at Goa on Thursday has upheld the constitutional validity of The Goa Cess on Products and Substances Causing Pollution (Green Cess) Act, 2013 also referred to as the Green Cess Act and dismissed a bunch of petitions filed by companies mainly dealing with the import of hazardous substances like coal and chemicals via Mormugao Port who had challenged the validity of the Act.
South West Port Ltd, M/s BMM Ispat Limited, Ms Vedanta Limited, M/s Goa Carbon Limited, Zuari Agro Chemicals Limited, among others had challenged the constitutional validity of the Act claiming that only the Union government had the powers under the constitution to enact such a legislation. The petitioners had argued before the court that the impugned Act, in pith and substance, falls within the residuary Entry in List I, and, therefore, the same is ultra vires the legislative competence of the State.
“Bearing in mind the principles that Entries in the legislative lists are not sources of the legislative power but are merely topics or fields of legislation and that they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense and further bearing in mind the width of the expression "with respect to" employed in Article 246 of the Constitution, we find it difficult to accept the argument that the impugned Act is not a legislation “with respect to” the entries relating to public health, sanitation, water, land, gas as referred to in entries 6, 17, 18 and 25 of List II of Seventh Schedule to the Constitution,” the High Court said.
The High Court however took a dim view of the petitioners’ contentions.
“The legislature has determined that handling, etc. of certain products and substances increases carbon footprint and the State revenues have to be augmented to prevent the increase of carbon footprint or, in any case, to combat the deleterious effects of such increase… The contention that such measures benefit only the members of the general public and not the petitioners upon whom such levy is imposed, cannot be accepted.
The responsibility for reducing the carbon footprint or, in any case, combating the deleterious effects of such increase, is primarily on the petitioners,” the High Court bench of Justices M S Sonak and Bharat Deshpande ruled.
“Therefore, if the State levies a cess or a fee upon the Petitioners for taking measures to reduce the carbon footprint or to deal with the deleterious effects of its increase, the Petitioners cannot say that they receive no benefits. Besides we cannot appreciate the petitioners' contention that though their activities contribute to the increase of the carbon footprint, the measures taken by the State to prevent the increase of the carbon footprint or to combat the deleterious effects of such increase in carbon footprint, confers no particular benefit to the petitioners,” the High Court also said.
“The benefits of measures taken by the State to reduce the carbon footprint on the petitioners’ activities of handling, etc the products and substances including hazardous substances which upon their handling etc cause pollution are quite obvious,” the High Court said.
The Advocate General who had defended the validity of the Act submitted that the Act and the levy thereunder was to promote steps to reduce carbon footprint, but the same did not relate to the regulation and control of pollution.
The AG submitted that the State had the legislative competence to levy a fee as a payment towards services rendered, benefits provided or a privilege conferred. He submitted that the impugned fee was inter alia to augment the State revenue for incurring expenditure and taking measures to reduce the carbon footprint caused by the petitioners.
In 2013, the Goa Government enacted the Goa Cess on Products and Substances causing pollution (Green Cess) Bill, 2013 in a bid to levy cess not exceeding 2% of the sale value on products and substances causing pollution.
