S. M. Modak, J.

1. In all these petitions, the petitioners have challenged the enhancement of water rates made as per Notification dated 28th November, 2002. This Notification is issued by the Irrigation Department of the State of Maharashtra. They have prayed for setting aside this Notification on the ground that it is an example of exceeding the limits prescribed for delegated legislation. So also, the petitioners have asked for declaring Section 70 of Maharashtra Land Revenue Code as unconstitutional.

2. The facts of every petition are slightly different. There is an Agreement for supply of free water executed with Ballarpur Industries Ltd. [predecessor-in-title of BILT Graphic Ltd.]. It was executed with Government of Central Provinces & Berar on 31st July, 1947. So also, there was a new agreement executed post-independence on 21st May, 1997. Whereas in case of Associated Cement Companies Ltd., there was a supply of water for cement plant. It was started in or about 1968 at district – Chandrapur. Company has not executed any agreement with Government. Whereas M/s. Ultratech Cement Co. Ltd., has executed an Agreement dated 23rd May, 1997 with Government. Their Cement Plant is situated at Bhayegaon, Tq. Korpana, Distt. Chandrapur.

3. BILT Company has got a plant for manufacture of papers, whereas other two petitioners are having cement plants. Though from different periods, all of them were fetching water of river Wardha, 1947 Agreement provides for free supply of water and mentions about 9000 tons production capacity, whereas for other two petitioners, there is no reference of manufacturing capacity and the water was charged.

4. We have heard learned Advocate Shri A. A. Naik [Writ Petition No. 4313 of 2004], learned Adv. Shri Manoj Pillai [Writ Petition No. 4517 of 2004] and learned Adv. Ms. S. N. Thakur [Writ Petition No. 5869 of 2004] for petitioners and learned Asstt. Govt. Pleader Shri Kadukar and learned Adv. Shri V.G. Palshikar, for VIDC.

5. Ballarpur Co. Ltd., was fetching water since prior to independence. Learned Adv. Shri Naik has taken us through the provisions of the laws in existence during pre-independence and post-independence. Pre-independence law is Central Provinces Irrigation Act, 1931. Post-independence laws are Central Provinces & Berar Regulation of Waters Act, 1949, Maharashtra Land Revenue Code, 1966 and Maharashtra Irrigation Act, 1976. Other two petitioners- Companies started functioning after 1968 [which is pleaded]. There is no occasion for them to go through the provisions of 1931 and 1949 Acts. They have restricted their challenge to the provisions of Section 70 of Maharashtra Land Revenue Code and the Notification dated 28th November, 2002.

6. It is important to note that all these petitions were filed in the year 2004 particularly when the Collector, Chandrapur, has issued Demand Notices in the year 2004. Their main contention is Govt., cannot recover the water charges retrospectively. As per notice dated 16th July, 2004, Chandrapur Collector has demanded Rs. 04,46,05,261- 00 from Ballarpur Industries Ltd., towards arrears of water charges, apart from the other amount. As per notice dated 30th June, 2004, Chandrapur Collector has demanded Rs.33,19,076-00 towards arrears of water charges, apart from the other amount from M/s. Ultratech Cement Co. Ltd. As per notice dated 30th September, 2004, Chandrapur Collector has demanded Rs.17,90,301-10 towards arrears of water charges, apart from the other amount from M/s. Associated Cement Companies Ltd.

7. On going through the record and on hearing the respective parties, we think that the controversies are centered around following points –

[a] whether the Government has got right to increase water rates? and if yes, under which law?,

[b] constitutional validity of the provisions of section 70 of Maharashtra Land Revenue Code,

[c] validity of the notification dated 28/11/2002, and

[d] whether enhancement can be made applicable retrospectively.

8. We wil