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2015 Supreme(Bom) 2281
IN THE HIGH COURT OF BOMBAY
A. S. OKA & G.S. PATEL, JJ.
Suresh Ramchandra Palande & Ors. - Petitioners
Versus
Government of Maharashtra & Ors. - Respondents
Writ Petition No. 11426, 11152, 11165, 11555 & 11721 of 2015
Decided On : 03-12-2015
Advocate Appeared:
Mr. P.K. Dhakephalkar, Senior Advocate, with Mr. S.R. Nargolkar, i/b Deven Jagdeo, for the Petitioner in WP/11426/2015
Mrs. Shakuntala Santosh Wadekar, for the Petitioner in WP/11152/2015 & 11165/2015
Mr. Tejas D. Deshmukh, i/b Mr. Samrat K. Shinde, for the Petitioner in WP/11555/2015
Mr. R.S. Apte, Senior Advocate, i/b Mr. Sarang Satish Aradhye, for the Petitioner in WP/11721/2015
Mr. A.B. Vagyani, GP, with Mrs. M.P. Thakur, AGP, for Respondent No. 1 in all the Petitions
Mr. D.D. Shinde, for Respondent No. 2 (Krishna Valley) in all Petitions
Mr. Abhijit Purushottam Kulkarni, for Respondent No. 5 (Pune Municipal Corporation)
Mr. Mahadeo Anantrao Chaudhari, with Ms. Kanchan Tajani Pawar, for Respondent No. 11 in all the Petitions Ms. Swati Sawant, with Mr. Rajesh Wanzare, i/b S.K. Legal Associates for Respondent No. 12
Mr. P.K. Dhakephalkar, Senior Advocate with Mr. H.N. Vakil & Mr. Rushil Mathu, i/b M/s. Mulla & Mulla & CBC, for Respondent No. 13 in WP/11152/2015
Mr. N.V. Walawalkar, Senior Advocate, with Mr. Swapnil Mhatre, for Respondent No. 13 in WP/11426/2015
The presence of direct pecuniary interest operates as a complete disqualification to adjudicate a dispute, and the plea of waiver is not available.
Headnote:
Regulatory Authority - Maharashtra Water Resources Regulatory Authority Act,2005 - Section 3, 11, 12 - The court quashed and set aside the impugned order dated 26th October 2015 passed by the Regulatory Authority and remanded the cases for fresh adjudication. The court held that the presence of direct pecuniary interest operates as a complete disqualification to adjudicate a dispute, and the plea of waiver is not available. The court also rejected the invocation of the doctrine of necessity as the quorum of meetings of the Regulatory Authority could have been met by the Chairperson and the other member. The court directed the parties to remain present before the Regulatory Authority for fresh adjudication and ordered the Regulatory Authority to decide the cases within a period of eight to ten days from 14th December 2015.
Fact of the Case:
The proceedings before the Regulatory Authority were initiated based on applications made by Mr. Bharat Tukaram Bhalke and Mr. Siddheshwar Dadasaheb Varade seeking equitable distribution of water from dams upstream of the Ujjani Reservoir. Mr. S. V. Sodal, a member of the Regulatory Authority, had a direct and proximate pecuniary interest in the subject matter of the cases.
Finding of the Court:
The court quashed and set aside the impugned order dated 26th October 2015 passed by the Regulatory Authority and remanded the cases for fresh adjudication. The court held that the presence of direct pecuniary interest operates as a complete disqualification to adjudicate a dispute, and the plea of waiver is not available. The court also rejected the invocation of the doctrine of necessity as the quorum of meetings of the Regulatory Authority could have been met by the Chairperson and the other member. The court directed the parties to remain present before the Regulatory Authority for fresh adjudication and ordered the Regulatory Authority to decide the cases within a period of eight to ten days from 14th December 2015.
Issues: The main issue was the direct and proximate pecuniary interest of Mr. S. V. Sodal, a member of the Regulatory Authority, in the subject matter of the cases.
Ratio Decidendi: The court held that the presence of direct pecuniary interest operates as a complete disqualification to adjudicate a dispute, and the plea of waiver is not available. The court also rejected the invocation of the doctrine of necessity as the quorum of meetings of the Regulatory Authority could have been met by the Chairperson and the other member.
Final Decision: The impugned order dated 26th October 2015 passed by the Regulatory Authority was quashed and set aside, and the cases were remanded for fresh adjudication. The court directed the parties to remain present before the Regulatory Authority for fresh adjudication and ordered the Regulatory Authority to decide the cases within a period of eight to ten days from 14th December 2015.
A.S. Oka, J.
1. Considering the extreme urgency involved in these Petitions, the same are forthwith taken up for final disposal. Rule. The learned counsel representing the concerned Respondents waive service. In these Petitions, except Writ Petition No. 11721 of 2015, an exception has been taken to the order dated 26th October 2015 passed by the Maharashtra Water Resources Regulatory Authority (for short, “the Regulatory Authority”). The Regulatory Authority has been established under Section 3 of the Maharashtra Water Resources Regulatory Authority Act,2005 (for short, “the said Act of 2005”). In some of the Petitions, the challenge is also to the order passed by the Regulatory Authority on Petitions seeking review of the order dated 26th October 2015.
2. The proceedings before the Regulatory Authority were initiated on the basis of applications made by one Mr. Bharat Tukaram Bhalke (the 10th Respondent in Writ Petition No. 11426 of 2015) and one Mr. Siddheshwar Dadasaheb Varade (the 11th Respondent in the same Writ Petition). The application made by Mr. Bhalke was numbered as Case No. 5 of 2015 and the application made by Mr. Varade was numbered as Case No. 6 of 2015. In his application, Mr. Bhalke set out the situation in the Ujjani Reservoir Command in Solapur District.. He stated that the poor monsoon in the area had led to a drought and that there was (and is) no drinking water available for farmers and livestock. He sought directions from the Regulatory Authority for the equitable distribution of water from dams upstream of the Ujjani Reservoir. He also sought a direction for release of water from the Ujjani Reservoir into the Ujjani Left and Right Bank Canals.
3. Mr. Siddheshwar Varade filed Public Interest Litigation No. 144 of 2015. An order was made in the said Public Interest Litigation on 16th September 2015 by a Division Bench of this Court. The application made by Mr. Varade was on the basis of the said order. The prayer in the said application made by Mr. Varade was for release of water from the Ujjani Dam to the Ujjani Left Bank Canal and the Ujjani Right Bank Canal. Various directions were issued by the Regulatory Authority in the impugned order dated 26th October 2015.
4. The Chairperson of the Regulatory Authority is one Mr. Buddhiraja. In the present case, the impugned order was passed by two other members, namely, Ms. Chitkala Zutshi and Mr. S. V. Sodal. Ms. Chitkala Zutshi is a Member (Expert in the field of Water Resource Economy) and Mr. S. V. Sodal is a Member (Expert in the field of Water Resources Engineering). In paragraph 6 of the said order, directions were issued for achieving an equitable distribution of water as per Section 11(c) of the said Act. On the basis of observations made in the impugned order, a decision was taken to release the water from the upstream dams for the benefit of the Ujjani Reservoir. Considering the main ground of challenge which is canvassed before this Court, we are not today referring to the details of the directions issued by the Regulatory Authority under the impugned order.
5. The Petitioner in Writ Petition No. 11426 of 2014 remained present before the Regulatory Authority when the Case No. 5 of 2015 and Case No. 6 of 2015 were posted before the Regulatory Authority and prayed for intervention. The application for intervention made by him was not entertained by the Regulatory Authority. The said Petitioner applied for a review of the order dated 26th October 2015. The Review Petition was placed before the Regulatory Authority on 17th November 2015 when one Mr. Suresh Namdeo Gore (the 14th Respondent in Writ Petition No. 11426 of 2015) raised an objection that Mr. Sodal, a member of the Regulatory Authority, was himself a potential beneficiary of the water that might come to be released from the Ujjani Dam. Mr. Sodal was said to personally hold sizeable lands downstream of the Ujjani Dam, and, in addition, his family members were said to hold other lands simil
