WP-15012-2023-J.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.15012 OF 2023

Shelke Beverages Pvt. Ltd.,

Having its o�ce at No.101,

Sr. No.348A-1/3-2, Suyog Fusion Apartment,

Dhole Patil Road, Pune 411 001

Through its Director,

Vishal Shelke

…Petitioner

Versus

1. Deleted (As per order dated 09/09/2024)

2. Primary Dispute Resolution O�cer &

Chief Engineer, Irrigation Department, Pune

Having o�ce at Sinchan Bhavan,

Mangalwar Peth, Barne Road,

Pune 411 001

3. Executive Engineer

Chaskaman Irrigation Department

Pune

4. Superintendent Engineer

Pune Irrigation Division,

Pune

5. Akshay Deepak Gaikwad

Age: Adult, Occ: Business

At Post Kondhapuri, Taluka Shirur,

District – Pune

...Respondents

——————

Mr. G. S. Godbole, Senior Advocate a/w Ms. Shruti Tulpule for the

Petitioner

Respondent No.1 - Deleted As per order dated 09/09/2024

Mr. Nitin Gaware Patil for the Respondent Nos. 2 to 4

——————

SQ Pathan 1/27

SHAGUFTA

QUTBUDDIN

PATHAN

Digitally

signed by

SHAGUFTA

QUTBUDDIN

PATHAN

Date:

2026.06.08

19:13:51

+0530

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CORAM : SHARMILA U. DESHMUKH, J.

RESERVED ON : MAY 6, 2026

PRONOUNCED ON : JUNE 8, 2026

JUDGMENT :

1. Rule. With consent, Rule made returnable forthwith and taken

up for �nal hearing. Mr. Nitin Gaware Patil waives notice on behalf of

the Respondent Nos. 2 to 4.

2.By this petition �led under Article 227 of the Constitution of

India, the challenge is to the order dated 25

th

March 2022 passed by

the Primary Dispute Resolution O�cer (for short, “PDRO”) assessing

the Petitioner’s liability for payment of Rs.1,41,56,191/- towards bulk

water tari� for industrial use comprising of Rs.24,40,722/- towards

penalty; and Rs.19,52,578/- towards water charges for utilizing raw

water from privately owned wells from the year 2011-2012 to 2018-

2019 in respect of the Petitioner Company’s bottling plant. The

Petition also challenges the order dated 29

th

December, 2022 of the

Appellate Authority directing the Petitioner to �le a�davit clarifying

certain issues and the �nal order of the Appellate Authority dated 30

th

June, 2023 upholding the order of the PDRO and issuing certain

additional directions.

3.In so far as the order dated 29

th

December, 2022 is concerned,

the impugned order dated 30

th

June, 2023 records that the Petitioner

SQ Pathan 2/27

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had challenged the order of 29

th

December, 2022 vide Writ Petition (st)

No 4521/2023 in this Court which was disposed of by this Court

permitting the Petitioner to �le the a�davit within period of three

weeks and accordingly A�davit was �led by the Petitioner. The order

of 29

th

December, 2022 having being complied with is beyond

consideration in these proceedings. That leaves the order of PDRO

dated 25

th

March, 2022 and the order of Appellate Authority dated 30

th

June, 2023 for consideration.

4.The facts of the case as borne out from the Petition are that the

Petitioner is running a bottling factory on land bearing Gat No. 86 and

draws water for its bottling plant from the wells situated on Gat No.

86, Gat No.116 in Village Kondhapuri and Gat No.361 in Village

Khandale. Pursuant to a complaint �led by Respondent No. 5 alleging

that the Petitioner is drawing water from Kondhapuri Minor Irrigation

Tank for production of mineral water, the PDRO conducted the hearing

resulting in the impugned order dated 25

th

March 2022, which was

carried in appeal under Section 22 of the Maharashtra Water Resources

Regulatory Authority Act, 2005 (for short, “MWRRA Act”), which

upheld the order of PDRO and issued additional directions. Hence, the

present petition came to be �led.

5.Mr. Godbole, learned Senior Advocate appearing for the

Petitioner, submits that the Petitioner is using water from privately

SQ Pathan 3/27

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owned wells in Kondhapuri for its bottling plant, which wells are

located near Kondhapuri Minor Irrigation Dam, in the command area of

Chaskaman (Major) Project. He submits that between 2012 to 2018, the

rates for levy of water charges are prescribed by Governme nt

Resolution (`G.R.’) dated 9

th

May 2003, which will not apply to the

borewell in Gat No. 86, which is not situated within 35 metres from a

noti�ed/unnoti�ed nala. He submits that for the �rst time in the bulk

water tari� order dated 11

th

January 2018, there is a reference to wells

in Condition No.4.2 of Annexure-3, and therefore the same will apply

from the year 2018 and will not have any retrospective application.

6. He submits that as there are only two wells which are situated

within 35 metres of either side of nearest edge of the canal, the

computation is required to be done only in respect of these two wells.

He would submit that on 9

th

May 2003, the G.R. regarding water tari�

for use of water from a well near an irrigation canal for non-agricultural

use was issued. He submits that as per the said G.R., where the wells

are situated within the bene�tted area and within a distance of 35

metres, that the water is to be charged at half the rate. He submits

that the G.R. dated 31

st

July 2006 is not applicable to wells and the bulk

water tari� order dated 30

th

May 2011 did not apply to sub-surface

water, and for the �rst time the reference to wells is found in the bulk

water tari� order of 2018. He submits that the PDRO has not

SQ Pathan 4/27

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considered that the well situated in Gat No. 86 is outside 35 metres. He

submits that the PDRO has imposed penalty of 25% when there is no

power in PDRO to impose penalty.

7.He submits that the Appellate Authority has gone beyond the

scope of Appeal and has issued various directions as regards obtaining

permission from Water Resources Department, entering into

agreement with Chaskaman Irrigation Division, compliance with NOC

of Central Ground Water Authority etc. He submits that Appellate

Authority has erred in holding that Petitioner did not have consent to

operate and CGWA permission to extract groundwater from July 2011

to June 2022, whereas the consent to operate was obtained from the

Maharashtra Pollution Control Board on 4

th

December 2010.

8.He submits that the Appellate Authority has held that the

Petitioner is a bulk water user entity without noticing that the bulk

water tari� order dated 30

th

May 2011 is completely silent about sub-

surface water, i.e. water in wells. He submits that the Authorities have

equated the water drawn from the wells with regulated water supply

with transmission losses, whereas there is no regulated water supply in

the present case.

9.Per contra, Mr. Gaware Patil, learned counsel appearing for the

Respondent Nos. 2 to 4, submits that the Petition is not maintainable

as MWRR Authority is a separate entity which has been deleted from

SQ Pathan 5/27

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the array of parties by the Respondents, though it is a necessary party.

He submits that the MWRR Authority is not simply an Adjudicating

Authority, but an Authority which is required to defend its own orders.

He has further drawn the attention of this Court to Section 11 of the

Act, which speaks of the powers, functions and duties of the Authority

to establish a water tari� system and to �x a criteria for water charges,

and would submit that the MWRR Authority is, therefore, a necessary

party.

10. He tenders a map of Chaskaman Project to contend that the

Nimgaon Mahalungi Minor Irrigation Scheme is situated at a distance of

about 25 kilometres from Shirur Taluka in Pune District, which

comprises an earthen dam having a length of about 313.94 metres with

a gross storage capacity of 3.37 MCM. He submits that the Irrigable

Command Area of the scheme is 5.2 km and the scheme is further

equipped with a left bank canal of 6 km and a right bank canal of 2 km.

He submits that the left canal of the Chaskaman Dam, also has an

escape at chainage No.92/715 which releases water into the Nimgaon

Mahalungi Minor Irrigation Tank. He submits that the Petitioner

company has dug borewells in the bene�tted zone of the Chaskaman

Dam, and as they fall within the command area, Section 56 of the

Maharashtra Irrigation Act applies.

SQ Pathan 6/27

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11. He submits that the Appellate Authority has noted the report of

the Joint Committee, which had visited the site in question and

submitted that all the wells/borewells fall under the command area of

Chaskaman Project, which is admitted in the appeal memo and the

report is not disputed. He points out that the appeal memo admits

that the privately owned wells are situated in the command area and

that the dispute is that the wells do not bene�t from the irrigation

project, and it is evidenced from the map that there is bene�t to the

privately owned wells from Kondhapuri Minor Irrigation Tank. He would

submit that under Section 56 of the Maharashtra Irrigation Act, they

have to be charged at 50% as they are bene�tted from percolation. He

submits that under the G.R. of 2003, the wells situated within the

command area of Chaskaman Project, as well as the wells which are

situated within 35 metres of the canal, which uses the water for the

non-agricultural purposes, are required to be charged at half the

industrial rate. He submits that the said Government Circular is in two

parts and the Petitioner falls within the �rst part of the wells situated

within the command area. He submits that in respect of such wells, the

G.R. dated 9

th

May 2003 provides for permission to be issued for the

purpose of use of water, which requires an agreement to be executed

with the Authority.

SQ Pathan 7/27

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12.He would submit that under the bulk water tari� order dated

30

th

May 2011, Serial No. 2 of Clause No. 4.1.1, as regards regulated

water supply with transmission losses, applies to the Petitioner. He

submits that as the source of supply is a minor irrigation tank, which

receives water from the canals and rivers and there is percolation, the

bulk water tari� order which speaks of regulated river reach below the

dam with back-up reservoir would apply. He would further point out

that under Section 2(3) of the Maharashtra Irrigation Act, the de�nition

of “canal” includes a reservoir.

13.He would submit that the object of the MWRRA Act is to

regulate water resources and to �x the rate for use of water for

agricultural, industrial and other purposes. He has taken this Court

through the de�nitions of “bulk water entitlement”, “entitlement” and

“individual water entitlement” and would submit that the bulk water

tari� order of 2011 applies to the Petitioner as it speaks of bulk water

entitlement. He submits that the authorities have rightly �xed the

liability of the Petitioner by taking into consideration the G.R. of 9

th

May, 2003 and the bulk water tari� order of the year 2011, 2018 and

2022 as the Petitioner had commenced production from July, 2012. In

support, he relies upon the following decisions:

SQ Pathan 8/27

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(i) Motilal s/o Khamdeo Rokde & Ors. vs. Balkrushna Baliram

Lokhande (Since deceased through L.Rs.)

1

(ii) Udit Narain Singh Malpaharia vs. Additional Member Board

of Revenue, Bihar & Anr.

2

(iii) Nandi Infrastructure Corridor Enterprises Ltd. & Anr. vs. B.

Gurappa Naidu & Ors.

3

14.Rival contentions now fall for determination.

15.The core issue arising for determination is the applicable

relevant government circular and the bulk water tari� order for levying

of non irrigation water usage from privately owned wells for

Petitioner’s bottling plant. The Petitioner draws water for its bottling

plant from the private wells situated on Gat No. 86, Gat No. 116 of

Village Kondhapuri and Gat No. 361 of Village Khandale.

16.The determination of the issue involved will require a

consideration of the relevant statutory enactments. The stated object

of Maharashtra Irrigation Act, 1976 (for short “Irrigation Act”) is to

unify the law relating to irrigation in State of Maharashtra and to

provide for charging water rates on lands under the irrigable command

of canals. Section 2(3) de�nes “canals” and includes reservoirs which

are constructed, maintained or controlled by the Appropriate Authority

for the supply or storage of water.

1 LPA Nos.177/2012 & 288/2011 dated 21/11/2019

2 1962 SCC OnLine SC 130 : 1963 Supp (1) SCR 676

3 2026 SCC OnLine SC 745

SQ Pathan 9/27

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17. Section 56(1) of Irrigation Act reads as under:

“56(1) Water used for purposes other than those of irrigation

from any natural stream or arti�cial drain receiving

percolation water from a canal shall be charged a water-rate

not exceeding that as would ordinarily have been charged if

the supply had been made from the canal for such purposes;

and water used for such purposes from a well situated on

either side of a canal, within a distance of 35 metres from the

nearest boundary canal shall be charged a water rate not

exceeding one-half of such rate, as may be determined by the

Appropriate Authority.”

18.The provisions of Section 56 imposes levy where percolation

water is used for non irrigation purpose from : (a) any natural stream

or arti�cial drain at the rate which would be charged if supply was

made from canal and (b) a well situated on either side of a canal, within

a distance of 35 meters from the nearest boundary of canal at the rate

not exceeding one half of such rate as may be determined by the

Appropriate Authority. Accordingly the Water Resource Department

vide Government Circular dated 9

th

May, 2003 prescribed yearly water

rates for industrial and domestic use, which rates came to be revised by

subsequent Government Circular dated 31

st

July, 2006.

19. MWRRA Act came into force with e�ect from 8

th

June, 2005 for

establishment of Maharashtra Water Resources Regularity Authority to

regulate the water resources within State of Maharastra, for allocation

and utilisation of water resources, �xing the rates for use of water for

agriculture, industrial, drinking and other purposes.

SQ Pathan 10/27

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20.Section 2(i) of MWRRA Act de�nes “Entitlement” to mean any

authorisation by any River Basin Agency to use the water for purposes

of the Act. Section 2(e) de�nes Bulk Water Entitlement to mean the

volumetric entitlement to a share of surface water resources produced

by a project, river system or storage facility for a speci�c category or

categorires of use and deliverable within the period precribed in the

order granting the Entitlement. Section 2(u) de�nes “River Basin

Agencies” to mean any of the River Basin Development Corporations

operating in the River Basin. Section 2(z) de�nes Sub Surface

entitlement as under:

“2(z): Sub-Surface entitlement” means an Individual or Bulk

Water Entitlement to a volumetric quantity of water to be

extracted in the command area of the irrigation project

from a tube well, bore well or other well or by any other

means of extraction of sub-surface water, or a group or

�eld or wells duly and legally permitted, registered and

constructed in accordance with the standards prescribed by

the Authority.”

21.Section 11 of MWRRA Act sets out the powers, functions and

duties of the Authority including the power to determine the criteria

for the distribution of Entitlements by the River Basin Agencies within

each category of use, establish water tari� system and to �x the

criteria for water charges at sub-basin, river basin and State level.

Section 14 provides that from the commencement of the Act, no

SQ Pathan 11/27

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person shall use any water from any water source without obtaining

the Entitlement from the respective River Basin Agencies.

22.The statutory scheme of MWRRA Act proscribes the use of water

from any water source without obtaining authorisation from the

concerned River Basin Agency, which in this case is stated to be the

Maharashtra Krishna Valley Development Corporation.

23.The conspectus of the above stated statutory provisions relevant

for our purpose is that there cannot be use of water from any water

source without obtaining necessary authorisation from the concerned

River Basin Agency and the use of percolation water for non irrigation

purpose is liable to payment of water rate in case of usage of water

from a well at a rate not exceeding one half of such rat e as

determined. The G.R of 9

th

May, 2003 determines the water rate for

use of water from wells as provided under Section 56 of Irrigation Act.

24.The impugned order records that the Petitioner’s A�davit states

that it had applied for no objection of central ground water authority

on 15

th

March, 2022 for extraction of ground water, which has been

granted for period 23

rd

June, 2022 to 22

nd

June, 2025. There is thus no

authorisation obtained from the concerned River Basin Agency i.e

Maharashtra Krishna Valley Corporation as mandated under Section 14

of MWRRA Act. In the Appeal Memo �led before the Appellate

Authority, the Petitioner has admitted that the privately owned wells

SQ Pathan 12/27

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are situated in the command area of Chaskaman Irrigation Project,

however has denied that any bene�t is received from the Kondapuri

Minor Irrigation Tank. Considering the admission of the location of the

wells, authorisation was required to be obtained for extraction of sub-

surface water in the command area of the irrigation project. Section 11

of MWRRA Act confers the power on the Authority to enforce the

decisions or orders issued under this Act and provides for penal

consequences for non compliance of orders passed under the Act.

25.The PDRO has considered the G.R. of 9

th

May, 2003 to hold that

the wells of the Petitioner falls within the bene�ted zone of

Chaskaman Project. It considered the recycled water at 20% and

assessed the liability and also imposed penalty of 25% on the assessed

liability.

26.The Appellate Authority took into consideration the provisions of

Irrigation Act, MWRRA Act and the Maharashtra Water Resources

Regulatory Authority (Fixing Criteria for and Issuance of Tari� Orders

for Bulk Water) Guidelines, 2019 and held:

(a) the Petitioner to be Bulk Water User Entity

(b) non compliance with the conditions of Consent to

Operate issued by Maharashtra Pollution Control

Board

(c) No permission for non agricultural user

SQ Pathan 13/27

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(d) applied 2.50% of applicable rate as penalty as per Bulk

Water Tari� Order dated 11

th

January, 2018 and 1

st

July, 2022.

(e) applied the yearly rates prescribed by G.R’s dated 9

th

May, 2003, revised on 31

st

July, 2006, Bulk Water Tari�

Orders dated 30

th

May, 2011, 11

th

January, 2018 and

29

th

March, 2022.

27.The Appellate Authority issued further directions to obtain

permission from the o�cers of Water Resources Department, to enter

into agreement with Chaskaman Irrigation Division, to comply with the

conditions of NOC granted by central ground water authority. It also

directed the Irrigation Department to revise the bills and levy water

charges as per the order from July, 2011.

APPLICABILITY OF BULK WATER TARIFF ORDER:

28.The MWRR Authority in exercise of powers under Section 11(d)

of MWRRA Act �xed the criteria, valid for three irrigation years, 2010-

2011, 2011-2012 and 2012-2013 for determination of bulk water tari�

in the State. It �xed the volumetric rates for bulk water tari� for

industrial use in Clause 4.1 as under:

Sl.

No.

Source of Supply Process

Industries

Industries using

water as raw

material

1.Assured Water Supply

Major/Medum reservoir/storage

tank without canal

32 160

2.Regulated Water Supply with

Transmission Loss

64 320

SQ Pathan 14/27

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Regulated river portion below

dam/canal lift / K.T. weir with back

up reservoir / tail race from

reservoir

3.Partly Assured Water Supply

Minor reservoir with canal / K.T.

weir without back up reservoir /

unregulated rivers without even

any K.T. weir or in unregualated

river portion �owing within a

command area where there is no

bandhara or K.T. weir

16 80

4.Reservoir Constructed by the

Water User Entity / User Entity

Shared Proportional cost

Water user agency (Gram

Panchayats, ULBs, Municipal

Corporations and other such

utilities) has shared proportional

cost of infrastructure or

constructed dam/bandhara/

katcha bandhara / K.T. weir at own

cost.

10.7 53.5

29.Mr. Gaware-Patil would contend that the Petitioner’s usage falls

in Serial No 2 of the table dealing with Regulated Water Supply with

Transmission Loss. The Maharashtra Water Resources Regulatory

Authority (Fixing Criteria for and issuance of Tari� orders for Bulk

Water) Regulation, 2013 de�nes “Bulk Water” as under:

“Bulk Water” means any water supplied by �ow or lift

to Agricultural/Domestic/Industrial Users from

reservoirs/canal systems in the State constructed and

operated by the Water Resources Department (WRD) or

Irrigation Development Corporation (IDC) or made

available to these users by WRD/IDC by �ow or lift from

regulated rivers and their tributarties �owing int he

State or from natural bodies or lakes. It also includes

SQ Pathan 15/27

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supplies drawn by water utilities/entitites/ for its/their

own use form dams/storages constructed and operated

by them or obtained for its/their own use by �ow or lift

from natural bodies or lakes through structures

constructed and operated by them.”

30.The above de�nition indicates a supply by �ow or lift from

reservoirs constructed by the authorities or made available by the

authorities by �ow or lift from regulated rivers and their tributaries./

natural bodies/lakes and also includes supplies drawn from

dams/storages or obtained by �ow or lift from natural bodies or lakes

through structures constructed and operated by water utilities and

entities. When the de�nition is read alongwith the source of supply of

Bulk Water Tari� Order, in my view, the said source of supply at Serial

No 2 would apply where there is water supply from a regulated river

stretch, tailrace, or K.T. weir with back-up storage and not from sub

surface water.

31.The interpretation would �nd support from the fact that in the

Bulk Water Tari� Order of 11

th

January, 2018, there is speci�c

imposition of levy on use of sub surface water at 50% of applicable

rates at Serial No 2 of Table 1 of Annexure 3 of Bulk Water Tari� Order

of 11

th

January, 2018, which also makes similar reference to Regulated

Water Supply with conveyance loss as that of 30

th

May, 2011. If the

Petitioner’s source of supply falls under Serial No.2 the table in Clause

SQ Pathan 16/27

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No.4.1.1. of Bulk Water Tari� Order dated 30

th

May, 2011, there was no

necessity for the subsequent Bulk Water Tari� Order of 11

th

January,

2018 to introduce a speci�c levy for sub surface water.

32.As the Bulk Water Tari� of 2011 did not impose any levy on

drawing of sub surface water, the applicable provision would be

Section 56 of Irrigation Act read with the G.R of 9

th

May, 2003 for the

period from 2011 to 2018 and for the period subsequent to the year

2018, the Bulk Water Tari� of 11

th

January, 2018 would apply. The G.R

of 31

st

July, 2006 increased the water use rates for industrial use as per

the Annexures therein which does not deal with sub surface water.

33.The Government Circular dated 9

th

May 2003 provides for levy of

water charges used for industrial purposes from the area of canals.

Clause 1 of the said GR dated 9

th

May 2003 provides that the standard

rate for industrial water use from wells within the command area of

the canal and wells within 35 metres of the boundary of the canal will

be 50% of the applicable rates for industrial use. This G.R. is sought to

be interpreted by Mr. Gaware-Patil by contending that the said clause

consists of two distinct parts and the former part speaks of wells which

are situated within the command area of the irrigation project and the

second part speaks about the location of wells which are within 35

metres of the canal and rate of 50% would apply to the latter part. The

preface to the G.R. makes a reference to Sections 55 and 56 of the

SQ Pathan 17/27

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Maharashtra Irrigation Act, 1976. The provisions of Section 56 of the

Maharashtra Irrigation Act, which speaks of percolation and leakage

rates, makes it clear that the water used from a well situated on either

side of canal within the distance of 35 metres from the nearest

boundary of the canal, shall be charged water rates not exceeding one-

half of such rate. The preface makes it clear that the use of such

percolated water was negligible, however, now the Government has

decided to charge the water rates in respect of such percolated water

and accordingly the G.R. was issued. The G.R., which is only in respect

of imposition of water charges, has to be read in consonance with

Section 56, which speaks of charging water rates only in respect of

such wells which are situated within the distance of 35 metres from the

nearest boundary of the canal. When the wells are situated within the

command area, there is no question of any percolation or leakage

charges being applied as the land itself is bene�tted, and the

provisions of Section 56 presume that such bene�t of percolation will

be available to wells which are situated on either side of a canal but

have capped the same at a distance of 35 metres from the nearest

boundary of the canal. The G.R. dated 9

th

May 2003 has to be read

accordingly and not in the manner as sought to be read by Mr. Gaware

Patil. Even if the wells are situated within the command area of the

Chaskaman Irrigation Project, unless there is a �nding that the wells

SQ Pathan 18/27

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are within the cap of 35 metres, the G.R. dated 9

th

May 2003 will not

apply. As recorded in the order of the Appellate Authority, the

Petitioner has admitted that two wells are situated within 35 metres

and one borewell is not situated within 35 metres, and therefore the

G.R. dated 9

th

May 2003 will not be applicable to one borewell which is

situated beyond 35 metres from the canal.

34.The levy of water charges by the PDRO for the period 2011-2012

to 2018-2019 is on the ground that the Petitioner is in the command

area of the Chaskaman Project and that the Government Circular dated

9

th

May 2003 applies. The PDRO has taken into consideration that all

the wells are situated within the command area of Chaskaman Project

and, since the use is from the year 2011, the G.R. dated 9

th

May 2003

applies. The PDRO has further imposed a penalty of 25% on the water

charges. Perusal of the order of the PDRO does not indicate any

submission being raised by the Petitioner that one of the borewells is

beyond the distance of 35 metres, which contention was taken before

the Appellate Authority. The Appellate Authority has noted the report

of the Joint Committee that all the wells fall under the command area

of Chaskaman Project. However, as discussed above, unless the

well/borewell also falls within the distance of 35 metres, the G.R. dated

9

th

May 2003 will not apply. Even if the report of the Joint Committee is

not disputed, there is nothing brought on record to dispute the

SQ Pathan 19/27

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Petitioner’s contention that one borewell situated in Gat No.86 is

beyond 35 metres.

35.The Appellate Authority has held that the Petitioner is a bulk

water user entity. The impugned order of the Appellate Authority

makes a reference to the Maharashtra Water Resources Regulatory

Authority (Fixing Criteria for an Issuance of Tari� Order for Bulk Water)

Guidelines, 2019, and sets out the de�nitions of “bulk water”, “bulk

water supply entity”, “bulk water tari� system” and “bulk water user

entity”. Perusal of the de�nition of “bulk water” indicates that the

same means any water supplied from surface water resources

produced by a project, river system or storage facility. However, the

PDRO has relied upon Section 56 of the Maharashtra Irrigation Act,

which speaks of levy of water charges in respect of percolation water

received from any canal and, therefore, the reference is to the sub-

surface water and not the surface water. The Appellate Authority could

not have construed the Petitioner as bulk water user entity considering

the de�nition of “bulk water” under the Guidelines of 2019.

36.The Appellate Authority has noted the G.R. dated 9

th

May 2003

and that the industrial rates are prescribed in the appendixes of the

G.R. It further takes into consideration the G.R. dated 1

st

July 2006

revising the water rates as well as the bulk water tari�s �xed by the

Authority under the MWRRA Act. It applies the bulk water tari� orders

SQ Pathan 20/27

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of 2011 and 2018, as the Petitioner company started its production

from July 2011, and has applied the bulk water tari� orders issued

from time to time. The bulk water tari� order dated 30

th

May 2011

does not make any reference to the sub-surface water, which was

introduced for the �rst time in the bulk water tari� order of 2018.

Annexure 3, Clause 4.2 thereof provides that the rates will be 50% of

the applicable rates at Serial No. 2 of Table No. 1 of Annexure 3, which

is a category of regulated water supply with conveyance loss and

de�nes the water supply type and source as water used from regulated

river reach below dam, canal/ K.T. weirs with back-up reservoir. The

said water supply type and source would not apply in the present case

where the water source is from sub surface and the reference to Serial

No. 2 is only for the purpose of computation of the rates which are

required to be applied. If the bulk water tari� order of 2011 did not

apply to the sub-surface water, then it is the G.R. dated 9

th

May 2003

which would apply for the period from 2003 to 2018. The Appellate

Authority has considered the provisions of Section 56 and the G.R.

dated 9

th

May 2003, however, has thereafter erred in applying the bulk

water tari� of the year 2011 for the purpose of levying the water

charges.

37.The Appellate Authority further considered paragraph 7 of the

G.R. dated 9

th

May 2003. Perusal of paragraph 7 would indicate that in

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respect of the categories of the wells which are noted in the said G.R.,

levy of water charges is after issuing permissions to such wells and an

agreement is required to be entered into. In view thereof, directions

have been issued by the Appellate Authority that the Petitioner should

obtain permission for extracting groundwater for industrial purpose

and enter into an agreement with Respondent No. 2, i.e. Chaskaman

Irrigation Division.

38.Under Section 22 of the MWRRA Act, a person aggrieved by an

order of the PDRO is entitled to prefer an appeal to the Authority. The

Authority is the Maharashtra Water Resources Regulatory Authority

established under Section 3, and the powers, functions and duties of

the Authority are set out in Section 11 of the Act, which include the

power to enforce the decision and orders issued under the Act,

amongst other things, including such other powers, functions and

duties as may be prescribed.The PDRO, whose order was under

challenge before the Appellate Authority, exercises powers of

adjudication and assessment under the statutory framework governing

levy and recovery of water charges. The scope of the appellate

jurisdiction exercised by the Authority under Section 22 of the MWRRA

Act was, therefore, con�ned to examining the legality and correctness

of the order passed by the PDRO, and did not extend to issuing

independent directions while exercising appellate powers. While

SQ Pathan 22/27

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acting as an Appellate Authority, the Authority was deciding the appeal

against the PDRO and was not discharging the functions under Section

11 of the Act. The directions which have been given by the Authority as

regards obtaining permission from and entering into an agreement

with Respondent No. 2, and abiding by the conditions as speci�ed in

the NOC of the Central Ground Water Authority, are beyond the scope

of powers of the Appellate Authority. It is however open for the

Authority to independently issue such directions to the Petitioner in

exercise of powers under Section 11 of MWRRA Act.

39.The Appellate Authority has held that the Petitioner’s water use

from wells in the command area of Chaskaman Project falls under the

category of regulated water supply with conveyance loss as set out in

the bulk water tari� order dated 11

th

January 2018, whereas the said

category was required to be applied only for the purpose of calculation

of the rates, which was 50% of the applicable rate.

40.In so far as imposition of penalty is concerned, in view of Section

14 of MWRRA Act, the Appellate Authority has rightly applied the

penal provisions of Bulk Water Tari� Order of 11

th

January, 2018 and

29

th

March, 2022.

41.Insofar the contention that the MWRRA Authority was a

necessary party and could not have been deleted is concerned, the

Authority was impleaded in the capacity of Appellate Authority which

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had passed the impugned order. One of the issues which was

considered by the Hon’ble Full Bench in the case of Motilal s/o

Khamdeo Rokde & Ors. (supra), was whether a petition under Article

227 of Constitution of India challenging the order passed b y

judicial/civil court subordinate to High Court needs to be dimissed as

not maintainable in absence of such Court/Presiding O�cer bieng

impleaded as party Respondent. The Hon’ble Full Bench noted various

judicial pronouncements on the subject which had held that there are

many Tribunals which only adjudicate and have nothing to do with the

lis, and that there are certain authorities which in law are entitled to

defend the orders passed by them and they are necessary parties, and

when the Tribunal or Authority is required to defend its own order, it is

to be made a party, failing which, the proceedings before the High

Court would be regarded as not maintainable.

42.The test to be applied is whether the Authority is required to

defend the order impugned in the present proceedings. The impugned

order dated 30

th

June, 2023 has been passed in exercise of appellate

powers under Section 22(3) of MWRRA Act. The Authority is consituted

under the MWRRA Act to exercise both original and appellate powers.

It operates as an original forum when it exercises powers under Section

11 of MWRRA Act and functions as an appellate forum under Section

22(3) and tests the validity of the order passed by the PDRO. The PDRO

SQ Pathan 24/27

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adjudicated the dispute under Section 22(1) of MWRRA Act in the

context of levying of water charges for the use of percolation water. As

the subject matter of lis under Section 22(3) of MWRRA is the order of

PDRO and not the original decision/order of the Authority, it is not a

decision or order of the Authority and it is not necessary for the

Authority to step in and defend its own order.

43. Before the PDRO, there was no issue raised as regards the

absence of authorisation for extraction of sub surface water before the

PDRO. While adjudicating the validity of the order of PDRO, the

Authority was exercising appellate powers and could not have issued

directions which would fall within the purview of Section 11 of MWRRA

Act. It is open for the Authority to independently pass directions to the

Petitioner to comply with the provisions of the enactment and obtain

necessary authorisation from the concerned River Basin Agency.

44.In light of the above discussion, the following are the �ndings:

(a) The government circular dated 9

th

May, 2003 applies only

to the wells which are situated within the command area

of the Chaskaman Irrigation Project within the capped

distance of 35 metres. The Petitioner has admitted that

two wells are situated within 35 metres and one borewell

is not situated within 35 metres, and therefore the G.R.

SQ Pathan 25/27

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dated 9

th

May 2003 will not be applicable to one borewell

which is situated beyond 35 metres from the canal.

(b) The bulk water tari� order of 2011 does not apply to the

sub-surface water and the charges for use of sub surface

water was introduced in the bulk water tari� order of

2018, which would apply from the year 2018 and not

retrospectively.

(c) For the period from July, 2011 till the year 2018, the

water charges is leviable as per the G.R. dated 9

th

May

2003 at half water rate for industrial use. For the period

subsequent to January, 2018, the water charges would be

leviable as per the Bulk Water Tari� Orders.

(d) The penalty is to be imposed for using water without

agreement as per the Bulk Water Tari� Orders of 11

th

January, 2018 and 29

th

March, 2022.

(e) The directions issued in paragraph 31.0(i), (ii),(vi) and (vii)

of the impugned order dated 30

th

June, 2023 could not

have been issued in exercise of appellate powers. It is

open for the Authority to issue necessary directions and

orders to the Petitioner independently in exercise of

powers conferred by MWRRA Act.

(f) The categorising of the Petitioner’s water source as

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“Regulated Water Supply with Conveyances Losses” in

paragraph 31.0(iv) of the impunged order dated 30

th

June,

2023 is set aside.

(g) The direction to issue revised bills and levy of water

charges from July, 2011 as per the Authority’s order as

directed in paragraph 31.0(v) of the impugned order

dated 30

th

June, 2023 stands modi�ed. The revised bills

and water charges to be levied from July, 2011 as per the

observations in this order.

45.In view of the �ndings recorded above, the impugned orders

dated 25

th

March, 2022 and 30

th

June, 2023 are hereby quashed and set

aside. For the purpose of computation of the water charges, the

matter is remanded to the PDRO to compute the same in accordance

with the observations and �ndings contained in the present order.

46. Rule is made absolute in the above terms. Petition stands

disposed of accordingly.

[SHARMILA U. DESHMUKH, J.]

SQ Pathan 27/27