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Abhay Shreeniwas Oka, J.—The common challenge in these Petitions/Public Interest Litigations is to the order dated 17th October 2015 passed by the Godawari Marathwada Patbandhare Vikas Mahamandal (for short "The said Irrigation Corporation") set up by the State Government. In some orders, it is described as GMIDC. By the said order, the Irrigation Corporation directed release of total quantity of 12.84 TMC of water from Mula, Pravara, Gangapur, Godawari Darna and Palkhed dam Complexes (upstream dams/reservoirs) for the benefit of Jayakwadi dam at Paithan (Paithan dam) in Marathwada Region. The said order records that the same has been passed on the basis of the directions contained in the order dated 19th September 2014 passed by the Maharashtra Water Resources Regulatory Authority (for short ""Water Regulatory Authority") constituted under the Maharashtra Water Resources Regulatory Authority Act, 2005 (for short "the said Act of 2005") in exercise of powers under Section 11(c) of the said Act of 2005. In some of the Petitions there is a challenge to the order dated 19th September 2014 and subsequent orders passed by the Water Regulatory Authority.
The relevant part of Section 11 of the said Act of 2005 reads thus:--
"The Authority shall exercise the following powers and perform the following functions, namely:--
(a) to determine the distribution of Entitlements for various Categories of Use and the equitable distribution of Entitlements of water within each Category of Use on such terms and conditions as may be prescribed;
(b) to enforce the decision or orders issued under this Act;
(c) to determine the priority of equitable distribution of water available at the water resource project, sub-basin and river basin levels during periods of scarcity;
.................... "
(emphasis added)
It will be necessary to make a reference to the directions issued by the Water Regulatory Authority under the order dated 19th September 2014 under the heading "Determinations". The issue before the Authority was of equitable distribution of water available in Godavari Basin so as to meet scarcity of water in Jayakwadi Dam/Reservoir.
"10. DETERMINATIONS:
In view of the above background, we are of the view that the following directions are required to be given to achieve an equitable distribution of water as contemplated under section 11(c) of the 2005 Act:
(a) The upper reservoirs need to be regulated as per the above guiding principles after taking a review of the storage position in upstream complexes and in the Paithan dam and also after taking into account the likely effect of the return rainfall. This needs to be done in the first fortnight of October so that an approximate equitable distribution of available water among upstream and downstream users is achieved by the end of October. We feel that the operating strategy should be chosen for regulating reservoirs by observing the storage position at Paithan dam in the first fortnight of October and also considering the storage position in the upstream complexes, duly accounting for planned Kharif Use.
(b) An approximate equitable distribution is to be resorted to when hydrological drought occurs. This is to be achieved through a step-by-step synchronization of the storages in the upper reservoirs upto Strategy-III as given in Table 6 (enclosed) provided that requirement of Strategy-I is first met fully for all the upper complexes of reservoirs. If sufficient storage is available in the upstream reservoirs, then Strategy-II will come into play and likewise Strategy-III. While doing so uniform cut (say, 5%/10%/15% as the case may be) in the utilizable water of all upstream storages shall be applied to meet the requirement of storage of the lower reservoir for the chosen strategy which is in consonance with the principle of "Sharing Distress by All". Water is to be made available in all the reservoirs for meeting the drinking water requirement, for the growing of bare minimum food crop for people in the command areas of all the projects and for minimum of industrial use (but limited to 80% of the industrial requirement) so as to prevent the migration of population. K.T. weir needles which obstruct the flow of water should not be placed in position until an equitable distribution is achieved by October end.
(c) If any reservoir on the upstream is short of water to meet its own minimum needs, no release of water from that reservoir is to be made.
(d) However, it must be ensured that there is no drawal of water from the dead storage for irrigation purposes from the Jayakwadi reservoir.
(e) If the natural storage at Paithan dam in the first fortnight of October is above or equal to 65% of the live storage (Strategy-III) then the question of releasing water from the upstream storages does not arise.
(f) The water requirement for the crop is to be worked out scientifically with giving due consideration to overall ground water conjunctive use taking into account the actual soil moisture condition.
(g) On the upstream projects in Nashik & Ahmednagar Districts, the diversion of monsoon flows through canals, flood canals, rivers and streams for Kharif use outside the project command, or for filling tanks and farm ponds is to be allowed only after the Paithan reservoir reaches its full design capacity.
(h) During the period of floods, the normal reservoir operation will switch over to flood regulation.
(i) These guiding principles will be reviewed each year and a report thereon made to MWRRA.
(j) The Executive Director of the GMIDC will be responsible for the operation of all upstream reservoirs as per the operating strategy stated above."
(emphasis added)
The order of the Water Regulatory Authority dated 19th September 2014 was clarified by the further order dated 18th November 2014. The relevant part of the said order reads thus:
"The ED, GMIDC, suggested that instead of giving the responsibility to him for the operation of upstream reservoirs, he would like to suggest the setting of a Committee for taking the decision. It was made clear that the implementation of MWRRA''s Order is binding on the Government and on the River Basin Authority. The ED, GMIDC would be responsible for implementation of the same.
Regarding the unauthorized lifting of water from the reservoir, the Govt. and its officers should follow the provisions in the existing laws and should initiate criminal and legal action against wrong doing.
The details of each point with the clarifications given by the Authority are annexed to this Order.
Finally, this Authority strongly feels that the ED, GMIDC should have implemented the Order dt. 19.9.2014 of the MWRRA in the month of October itself and should not have waited until the very end of the month to make a reference to the Authority.
A period of more than 5 weeks has elapsed between the date of the Order of the MWRRA and the date of ED, GMIDC''s reference to the MWRRA. The Order of the Authority should have been implemented well within the time prescribed by the Authority.
The delay in making the reference to the MWRRA has resulted in delaying the justice to the petitioners seeking relief in the case."
(emphasis added)
In Public Interest Litigation No. 173 of 2013 and other Writ Petitions, the aforesaid order dated 19th September 2014 was challenged before this Court. The Irrigation Corporation by an order dated 5th December 2014 directed release of water of quantity of 7.89 TMC from the aforesaid five upstream dam complexes for the benefit of Jayakwadi Dam at Paithan in Marathwada. By order dated 17th December 2014, this Court did not grant stay of the operation of the orders dated 19th September and 5th December 2014 passed by the Water Regulatory Authority and the Irrigation Corporation respectively for the reasons recorded therein. Paragraph Nos. 12 and 13 of the said order are material which read thus:
"12. Since the issues raised in these Petitions are essentially technical issues and the legislature has requested the authority to decide technical issues under the Maharashtra Water Resources Regulatory Authority the Act of 2005, we are of the view that the interest of justice would be served, if before releasing any further water from the upstream dam into the river basin for the purposes of taking such water to the Jayakwadi dam, the Corporation shall take instructions from the Water Resources Regulatory Authority who will decide the issue. It is further directed that any challenge to the decision of the authorities or the Corporation regarding distribution of water from the reservoirs of upstream of Jayakwai dam shall be only by filing Public Interest Litigations/Writ Petitions before this Court at its Principal seat and before this Bench.
In view of the above discussion, we are not inclined to grant any interim relief except to direct that before releasing any further water, the Corporation shall take suitable instructions from the Water Authority."
(emphasis added)
There was a further order passed by the Water Regulatory Authority on 10th March 2015 in terms of the order dated 2nd February 2015 in Public Interest Litigation No. 173 of 2010 and other connected matters. It will be necessary to consider what is observed by the Water Regulatory Authority in the said order. In the opening paragraph, the Water Regulatory Authority has observed thus:
"The Hon''ble Bombay High Court, by its order dated 2 February 2015 in PIL No. 173 of 2013 and a batch of other petitions, has asked us to examine whether the Godavari Marathwada Irrigation Development Corporation (GMIDC) has properly implemented the broad guidelines contained in our detailed order dated 19 September 2014 relating to the equitable distribution of water in the Godavari Basin. The Hon''ble High Court has also asked us to consider as to whether there could be any further release of water at this time of the year."
The finding was recorded by the Water Regulatory Authority as under:
"Considering the factual background in the matter, we have come to the conclusion that the directions contained in our Order dated 19 September 2014 were not implemented in their letter and spirit. The ED, GMIDC was specifically required under Para 10(a) to regulate the upstream reservoirs in the first fortnight of October 2014 so that an approximate equitable distribution of available water among upstream and downstream users could have been achieved by the end of October 2014. Instead of carrying out the directions as aforesaid the ED, GMIDC, who is the implementing agency, approached the State Government. In our order dated 19 September 2004 we have specifically directed as follows:
"10(j) The Executive Director of the GMIDC will be responsible for the operation of all upstream reservoirs as per the operating strategy stated above."
In our Order dated 19 September 2014, we did not indicate that the ED, GMIDC should seek the State Government''s approval on the quantum of water to be released as part of regulation of the upstream reservoirs. This decision was required to be taken by him and implemented forthwith.
I) As far as initiation of any action against the ED, GMIDC under Section 26 of the MWRRA Act is concerned, we do not find any reason to believe that the ED, GMIDC acted deliberately in defiance of the order or is guilty of contumacious or dishonest conduct or acted in conscious disregard of his obligations. Hence, we are not inclined to take any action under Section 26 of the Act.
However, we would like to give the following directions to the ED, GMIDC for implementation of our dated 19 September 2014 in future:
(A) The ED, GMIDC should undertake a review of the storage position of Jayakwadi reservoir and all upstream storages on the 15 October every year.
(B) Considering the storage position of Jayakwadi reservoir as on the 15 October, he should decide the appropriate strategy of equitable distribution from Table 6 vide Para 10(b) of MWRRA Order.
(C) In case of any difficulty in implementation, he should approach the Authority directly and not later than 4 days after the 15 October and seek our clarification.
(D) He should complete the exercise of equitable distribution by the end of October every year of hydrological drought.
Any act of omission on the part of the ED, GMIDC will attract the action under Section 26 of the MWRRA Act."
(emphasis added)
Order dated 19th September 2014 passed by the Water Regulatory Authority as well as subsequent order dated 10th March 2015 were operative when the impugned order dated 17th October 2015 was passed by the Irrigation Corporation. Therefore, the question is whether the impugned decision of the Irrigation Corporation is in terms of the directions issued by the Water Regulatory Authority under the aforesaid orders.
We have heard the learned counsel appearing for the parties on Friday the 23rd October 2015 and on Monday the 26th October 2015 for admission and in support of the prayer for grant of ad-interim relief.
Shri Deshmukh, the learned counsel appearing for the Intervener representing people from downstream raised an objection to this Bench hearing these Petitions wherein the challenge is to the decision to release the water from upstream dam for the benefits of Jayakwadi dam at Paithan. We have shown to Shri Deshmukh the administrative order dated 19th October 2015 passed by the Hon''ble the Acting Chief Justice assigning the Writ Petition No. 10402 of 2015 and other connected matters including all connected matters presently filed and those which would be filed to a Division Bench presided over by one of us (A.S. Oka, J). After reading the said order dated 19th October 2015 passed by the Hon''ble Acting Chief Justice, the learned counsel Shri Deshmukh has not pressed the said objection any further. We called upon the other learned counsel appearing for the various parties to read the said order dated 19th October 2015 passed by the Hon''ble Acting Chief Justice in case they have any doubt. However, none of them have raised any issue in this behalf.
The learned Counsel representing the Petitioners have a strong objection to the release of water from five dam complexes for the benefit of Jayakwadi dam at Paithan under the order dated 17th October 2015 passed by the Irrigation Corporation. In some of the Petitions, the learned counsel appearing for the Petitioners have assailed the orders dated 19th September 2014, 18th November 2014 and 10th March 2015 passed by the Regulatory Authority in exercise of powers under Clause (c) of Section 11 of the said Act of 2005. It is contended that in some of the Writ Petitions which are on board, there is a challenge to the validity of various provisions of the said Act of 2005. It is urged that the First Court by an order dated 17th December 2014 has not declined to stay the operation of the order dated 19th September 2014 on merits, but on the ground that the water was already released on 5th December 2014 from the upstream dam complexes. It is pointed out that the said order of the First Court was confined to the release of water in the year 2014-15. It is pointed out that this Court directed that before releasing any further water from the upstream dams into the river basin for the purposes of taking such water to Jayakwadi dam, the Irrigation Corporation shall take instructions from the Water Regulatory Authority. It is urged that the order of clarification dated 18th November 2014 is passed in breach of the principles of natural justice by the Water Regulatory Authority. The contention of the Petitioners is that even assuming that the order dated 19th September 2014 continues to be operative, the impugned order of the Irrigation Corporation dated 17th October 2015 is a non-speaking order. It is contended that it takes into consideration only the quantity of water in Jayakwadi dam at Paithan on 15th October 2015 without even taking into consideration the stock of water in the five upstream dam complexes. It is submitted that only on the basis of the water level in Jayakwadi dam in Paithan as on 15th October 2015, the Irrigation Corporation could not have come to the conclusion that the strategy-I in the order dated 19th September 2014 is applicable. The contention is that the order dated 19th September 2014 aims to make an equitable distribution of water available in Godavari basin and, therefore, for deciding the issue of equitable distribution, the deficient rain-fall in the catchment area of upstream dams and an alarming level of the upstream reservoirs ought to have been taken into consideration. It is submitted that the water requirement of the City like Nashik which requires extra water on account of Kumbhmela is not taken into consideration. It is pointed out that in many cities in Ahmednagar District, water is released after a gap of four to five days. It is urged by them that the Irrigation Corporation has given a complete go-by to the principles laid down in the order dated 19th September 2015 and to the basic principle of "Sharing Distress by All".
One of the main submissions canvassed for taking an exception to the order dated 17th October 2005 is that the said order does not record that the water released from the upstream dams will be used for any specific purpose. It is contended that thus the water released can be used for the various purposes which will be contrary to the Government Resolution dated 7th September 2015. It is submitted by some of the Petitioners that only the Water Regulatory Authority can decide whether the order of Irrigation Corporation which is impugned in these Petitions is in terms of the order dated 19th September 2015. Our attention is invited to the order dated 8th May 2015 passed in these Petitions by the First Court wherein a direction was given to the State Government to place all the relevant data before the Water Regulatory Authority to enable the said Authority to decide the issue of equitable distribution of water for the year 2015-2016.
During the course of hearing, the learned counsel representing the Water Regulatory Authority tendered across the bar the letters dated 18th September 2015 and 15th October 2015 (marked as A1 and A2 for identification in PIL No. 183 of 2015) issued by the said Authority. By the first letter addressed to all the concerned Authorities such as the Irrigation Corporation, the Chief Engineer and Chief Administrator of Labhkshetra Vikas Pradhikaran, etc., certain data was called for as set out in the said letter. The letter dated 15th October 2015 is addressed to the Irrigation Corporation. In this letter, in the first paragraph (numbered as 2) the reference is to its earlier orders of 19th September and 18th November 2014 as well as the order of 10th March 2015. The last paragraph (numbered as 3) merely informs the Irrigation Corporation to complete the equitable distribution till 31st October 2015. The learned counsel appearing for the Water Regulatory Authority on instructions of Shri S.V. Sodal, a Member of the Water Regulatory Authority states that the said data was called for the purposes of taking a decision as regards the release of the water from the upstream dams from the month of October 2015 to 15th July 2016. The data was called for the purposes of taking a decision of release of water for drinking purposes as well as for crops. The learned counsel appearing for the Water Regulatory Authority stated that though the data is collected by the said Water Regulatory Authority, no decision has been taken by the said Authority on the basis of the said data. He states that what is stated in the letter dated 15th October 2015 is not based on any decision arrived at by the Water Regulatory Authority.
The learned counsel appearing for the Water Regulatory Authority on instructions of Shri S.V. Sodal, a Member of the Water Regulatory Authority, again states that on 9th October 2015, a decision was taken in the meeting of the Authority and what is recorded in paragraph 3 (last paragraph) of the said letter dated 15th October 2015 is the decision. However, a copy of the order or minutes of the meeting were not shown to the Court. We must record that when the learned Counsel for the Water Regulatory Authority as well as the learned Government Pleader were trying their level best to seek instructions from Shri S.V. Sodal, we noticed that he was not responding to both the learned Counsel. He was taking his own time to respond. Instead of responding to his Counsel, Shri Sodal stated that he should be allowed to address the Court. We must record that Shri Sodal was not at all responding to the queries made by his own Advocate as well as the learned Government Pleader. Therefore, the learned Counsel representing the Authority was of no assistance to the Court. Such Conduct on the part of the Water Regulatory Authority and its responsible Member has to be deprecated. The said Authority discharges very sensitive duties. The approach of the Authority before the Court was far from being sensitive and fair. The Government must look into the conduct of the said Member.
The submission of the Intervenors and private Respondents is that as compared to the stock of water in the dam complexes which are upstream to Jayakwadi dam, the stock of water in Jayakwadi dam and other dams in Marathwada region is negligible. It was sought to be pointed out that in major city like Aurangabad, the water is being released after every four days and the situation in the city like Jalna is worst. The contention of the Intervenors and private Respondents is that as of today, the order dated 19th September 2014 of the Water Regulatory Authority and the subsequent orders have attained finality. It is contended that the impugned order of Irrigation Corporation is in terms of the directions of the Water Regulatory Authority. It is contended that based on the stock of water available, the Irrigation Corporation has adopted strategy-I in terms of the order dated 19th September 2014. Their contention is that none of the Petitioners who were objecting to the release of the water have not approached the Water Regulatory Authority for adjudication. Their contention is that when the order of Irrigation Corporation is based on the formula laid down by the Water Regulatory Authority, no fault can be found with the said order. It is urged that the issue of release of the water is to be decided by the Experts and the Writ Court should not interfere with the decision of the Experts.
The learned counsel representing the Irrigation Corporation invited our attention to the orders dated 19th September 2014, 18th November 2014 and 10th March 2015 of the Water Regulatory Authority. He pointed out that a direction issued under the order dated 19th September 2014 was to the Executive Director of the Irrigation Corporation described therein as GMIDC. Our attention is invited to Clause (j) of Paragraph 10 of the said order. He urged that in the order dated 18th September 2015, the submission of the Executive Director of the Irrigation Corporation is noted wherein he suggested that the responsibility of the operation of the upstream reservoirs should be left to a Committee specially set up to take a decision. He pointed out that the said contention was specifically rejected and a direction was given to implement the order dated 19th September 2014 in the month of October itself. He pointed out that even in the order dated 10th March 2015, the Water Regulatory Authority has specifically directed the Executive Director of the Irrigation Corporation to undertake review of storage position of Jayakwadi Reservoir and all the upstream storages on 15th October every year and that he should decide the appropriate strategy for equitable distribution of the water as set out in the Table 6 which is a part of the order dated 19th September 2014. A specific direction was given to complete the exercise of equitable distribution by the end of October every year of hydrological drought. He invited our attention to the minutes of the meeting of the irrigation Corporation which have been annexed to the affidavit dated 25th October 2015. He pointed out that in terms of the directions issued by the Water Regulatory Authority, in the meeting held on 17th October 2015, a review of water position in the relevant reservoirs was taken and thereafter, the impugned order was passed. He submitted that in terms of the directions of the Water Regulatory Authority, the work of equitable distribution has to be completed by the end of October 2015. He pointed out that in the last year, the work of equitable distribution was belatedly done on 5th December 2014.
The learned Government Pleader supported the order of Irrigation Corporation. He urged that all care will be taken to ensure that the water released from the upstream dam to Jayakwadi dam is not used in transit. He submitted that the Government is duty bound to take all the care while transmitting the water to Jayakwadi so that there will not be any lifting of water at the hands of unscrupulous persons in the transit. He urged that with the police help, the entry gates of the K.T. weirs will be closed. He stated that even an action of stopping the electricity supply will be taken so that the water will not be lifted by the use of electric motors. He urged that sufficient police protection will be provided. On instructions, he states that the water which will be released in terms of the impugned decision will be used only for the drinking purposes and for no other purpose. The learned counsel appearing for the Water Regulatory Authority as well as the learned Government Pleader on instructions stated that the water will be used only for the drinking purpose. The same is the statement made by the learned counsel appearing for the Irrigation Corporation.
The learned counsel representing some of the Petitioners urged that though the Water Regulatory Authority has used the term "hydraulic drought", the same has not been defined anywhere. It is pointed out that the member of the Water Regulatory Authority who is present in the Court dominates the meetings of the Irrigation Corporation. Their contention is that interference by this Court is necessary at this stage as once the water is released to the downstream dam, the same cannot be retrieved.
Considering the issues raised in these Petitions, the same require final hearing.
The question is whether a case is made out for grant of ad-interim relief of stay of order dated 17th October 2015. We have perused the orders of the First Court in Public Interest Litigation No. 173 of 2013 and other connected matters. We have perused the order dated 17th December 2014 passed by the First Court. From the tenor of the order, it appears to us that the First Court considered the matters for the purposes of grant of ad-interim relief in relation to the release of water from upstream dams on the basis of the order of the Irrigation Corporation passed on 5th December 2014. It is true that the ad-interim relief of stay of orders dated 19th September and 18th November 2014 was not granted by the First Court. In the order dated 2nd February 2015, the First Court dealt with the issue of demand made by the people in the downstream area for release of the additional quantity of 11 TMC of water over and above the water which was already released on 5th December 2014. A direction was given under the said order to the Water Regulatory Authority to hear the parties and pass appropriate order. It is on the basis of this order that the subsequent order dated 10th March 2015 was passed by the Water Regulatory Authority directing that there shall be no further release of water from any of the upstream reservoirs for the benefit of Jayakwadi dam till 31st May 2015. While passing the order dated 30th April 2015, the First Court did not disturb the order dated 30th March 2015. Then comes the last order dated 8th May 2015 of the First Court. Paragraph Nos. 2 and 3 of the said order read thus:
"2. Aurangabad Municipal Corporation and some other bodies have submitted their reports. In view of the fact that the need of citizens for reasonable water supply will have to be assessed after collecting, evaluating and considering all the relevant data, we direct the State Government to assist Maharashtra Water Supply Resources Authority for deciding the issue of equitable distribution of water by placing all relevant data before Maharashtra Water Supply Resources Authority well in time before the said authority takes any decision for the year 2015-16.
The reports received by the Government Pleader pursuant to the order dated 30 April 2015 of this Court, shall be uploaded on the website of Godavari Marathwada Irrigation Development Corporation on or before 20 May 2015."
Though elaborate orders were passed from time to time by this Court up to 8th May 2015, ad-interim stay or any ad-interim relief in respect of all the three aforesaid orders of the Water Regulatory Authority was not granted.
Therefore, at this stage, when we are considering the question of the grant of ad-interim relief, the prayer for ad-interim stay of the said orders of the Water Regulatory Authority cannot be considered. It will have to be considered when we hear the parties on interim relief. The orders dated 19th September 2014, 18th November 2014 and 10th March 2015 of the Water Regulatory Authority were in force on 17th October 2015 when the impugned order was passed by the Irrigation Corporation. Perusal of the first paragraph of the order dated 19th September 2015 shows that the issue of equitable distribution of water available in Godavari basin so as to meet scarcity of water in Jayakwadi dam was specifically dealt with and considered by the Water Regulatory Authority in terms of the order dated 5th May 2014 passed in the Public Interest Litigation. Large number of the parties were heard including the various Caveators. The detailed submissions made by the parties have been recorded and considered by the Water Regulatory Authority in the said order which runs into 58 pages. After considering all the factors, the Water Regulatory Authority decided the issue of equitable distribution of water in Godavari Basin in terms of clause (c) of Section 11 of the said Act of 2005. On Page 52 of the order, the Water Regulatory Authority has observed that there must be sufficient water available in upstream projects before the water can be released downstream. It is observed that to avoid transmission losses, equitable distribution of water has to be resorted to at the end of monsoon season so that the river carrier system is also in a saturated condition and less prone to losses. We have already quoted the directions issued in Paragraph 10 of the said order. The operating strategy to achieve equitable distribution of water available in Godavari Basin was laid down by the said order and in the light of the said order, the Executive Director of the Irrigation Corporation was made responsible for operation of all the upstream reservoirs in Godavari as per the operating strategy incorporated in the said order dated 19th September 2014. Under the second order dated 18th November 2014, the Water Regulatory Authority directed that the Executive Director of the Irrigation Corporation was responsible for the implementation of the order dated 19th September 2014. In the third order dated 10th March 2015, a specific direction was issued to the Executive Director of Irrigation Corporation to undertake a review of the storage position of Jayakwadi reservoir and all upstream storages on 15th October every year. A specific direction was to decide the appropriate strategy of equitable distribution from the Table 6 vide Paragraph 10(b) of the order dated 19th September 2014 after considering the storage position of Jayakwadi reservoir on 15th October 2015. In fact, a direction was issued to the Irrigation Corporation to complete the exercise of equitable distribution by the end of October every year.
Now it will be necessary to make a reference to the affidavits filed by Shri Manohar Kisan Pokale in Public Interest Litigation No. 183 of 2015 and Writ Petition No. 10402 of 2015 on behalf of the Irrigation Corporation. The stand taken is that the Irrigation Corporation has acted in terms of the aforesaid three orders of the Water Regulatory Authority. From the said three orders, it is obvious that the Executive Director of the Irrigation Corporation had no option but to take a decision in terms of the said three orders and complete the equitable distribution by the end of October 2015. In the affidavit filed in the Writ Petition No. 10402 of 2015, the minutes of the meeting held on 13th October in the office of the Managing Director of the Irrigation Corporation have been annexed. From the minutes of the meeting, it appears to us that the orders passed by the Water Regulatory Authority were taken into consideration and a direction was issued to get accurate data of the stock of water in the downstream and upstream reservoirs as on 15th October 2015. There was another meeting held in the office of the Managing Director of the Irrigation Corporation on 17th October 2015. Both the meetings were attended by the Engineers of various Irrigation divisions such as Aurangabad, Nashik, Parbhani, Ahemednagar etc. The meeting dated 17th October 2015 was also attended by the Resident Deputy Collector, Nashik, Additional Collector, Aurangabad, the Deputy Collector of Ahmednagar and other officers. We have perused the minutes of the meeting. The minutes of the meeting record the figures of the availability of the stock in the five upstream dam complexes as on 15th October 2015. The minutes also record the stock of water in the Jayakwadi reservoir on 15th October 2015. It is noted that as per the Chart No. 6 appended to the order dated 19th September 2014 in the light of the Strategy-I, the water will have to be released from the upstream dam complexes. The minutes of the meeting record the decision regarding the quantity of water to be released on the basis of the data available as on 15th October 2015. The said quantity as stated in the impugned order is of 12.84 TMC. The order dated 17th October 2015 does not record reasons. But it is based on the deliberations and the decision taken in the meeting dated 17th October 2015. The data of storage which was required to be taken into consideration in terms of the order dated 19th September 2014 of the Water Regulatory Authority was placed before the meeting of the Irrigation Corporation held on 17th October 2015. Prima facie, it appears to us from the perusal of the minutes of the meeting dated 17th October 2015 that the Irrigation Corporation has acted in terms of the directions contained in the orders dated 19th September 2014 and 10th March 2015 passed by the Water Regulatory Authority after considering the data which was ordered to be considered under the said orders. Though as per the orders of the Water Regulatory Authority, a decision was to be taken only by the Executive Director of the Irrigation Corporation, its Managing Director and the Executive Engineers of various Irrigation Divisions in both upstream and downstream areas as well as the revenue officers participated in the meeting held on 17th October 2015.
To the said affidavit filed in Writ Petition No. 10402 of 2015, a chart indicating the stock in upstream dams and downstream dams as of 15th October 2015 signed by the Executive Engineers of Nashik and Ahmednagar Divisions is appended which was considered by the Irrigation Corporation. At this stage, it is not possible to find fault with the decision making process adopted by the Irrigation Corporation. This is the one reason why we are not inclined to grant ad-interim relief of stay of operation of the order dated 17th October 2015.
Exhibit R-2 to the affidavit-in-reply of Shri Manohar Kisan Pokale in Public Interest Litigation No. 183 of 2015 is a chart showing water levels in the upstream and downstream dams as well as the figures of rainfall in the upstream and downstream areas. Average 61.47% quantity of water is available in the upstream dams as on 21st October 2015. As against this, the total stock available in Jayakwadi reservoir on 21st October 2015 is only 5.38%. The average percentage of stock available in downstream dams is 14.86%. The three downstream dams viz. Majalgaon, Manjra and Terna have zero percentage storage as of 21st October 2015. It is pointed out by the learned counsel representing the Irrigation Corporation that Majalgaon reservoir supplies water to Beed and Manjara reservoir supplies water to Latur. These figures prima facie support the decision dated 17th October 2015. As of today none of the parties are disputing the water scarcity in the State and existence of drought like situation in the State. These figures have relevance considering the principle of "Sharing Distress by All". This is the second reason why we are not inclined to grant ad-interim relief. Thirdly, there is a categorical assurance given by all the Authorities including the State that the water released will be used only for the drinking purpose. Therefore, there is no violation of the Government Resolution dated 7th September 2015. There is one more reason for not granting ad-interim relief. As observed earlier, in the order dated 19th September 2014, the Water Regulatory Authority has observed that there is always an issue of transmission losses in the river carrier system during the equitable distribution process. It is observed that the equitable distribution has to be resorted to at the end of monsoon season so that the river carrier system is also in a saturated condition and hence, less prone to losses. This is the opinion expressed by the Expert Body on the basis of which a direction was issued to complete the process of distribution by the end of October 2015.
Ideally in terms of the order dated 8th May 2015 passed by the First Court, the Water Regulatory Authority could have examined the entire matter. That was not done. However, that does not make the action of passing an order dated 17th October 2015 illegal as the said order is in conformity with the three aforesaid orders passed by the Water Regulatory Authority. The Irrigation Corporation was bound to act in terms of the binding directions of the Water Regulatory Authority. The binding directions have been issued by the statutory Regulatory Authority laying down the principles for equitable distribution of water from Godawari basin. The Irrigation Corporation has implemented the said directions by passing the impugned direction.
Needless to state that as this Court will examine the entire issue at the time of hearing as to interim relief, further release of water from the upstream dam complexes during this year (2015-2016) cannot be released without the leave of the Court. This direction will not preclude both the Water Regulatory Authority and the Irrigation Corporation from taking appropriate decision on this aspect. This order will not prevent the Water Regulatory Authority from re-considering its earlier directions.
Necessary directions will have to be issued to ensure that not only the transmission losses but lifting of water released from the upstream dams is prevented. The learned Government Pleader has assured that all measures will be taken. We accept the said assurance.
Hence, we pass the following order:
ORDER :
"(a) Rule. Rule on interim relief is made returnable on 17th December 2015. The Respondents who are represented today waive service.
(b) For the reasons recorded above, the prayer for grant of ad-interim stay of operation of the order dated 17th October 2015 is rejected. However, we accept the statement of the State Government that the water released from upstream reservoirs shall be used only for the drinking purposes;
(c) Prayer for grant of interim relief in all these Petitions will be considered on 17th December 2015 when the Petitions shall be listed under the caption of "hearing as to interim relief";
(d) We direct that no further release of water from the upstream dams shall be made for the benefit of Jayakwadi Reservoir in the downstream without leave of this Court. This direction will not preclude both the Water Regulatory Authority and the Irrigation Corporation from taking appropriate decision on this aspect. This order will not prevent the Water Regulatory Authority from re-considering its earlier directions;
(e) The State shall take all measures for ensuring the minimum possible loss of water during the transmission. The State shall take all possible steps as per the assurance given to this Court through the learned Government Pleader."