Full Judgment Text
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PETITIONER:
STATE OF MAHARASHTRA AND ORS.
Vs.
RESPONDENT:
ATMA RAM SADASHIV DONGARWAR AND ORS.
DATE OF JUDGMENT16/08/1978
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
DESAI, D.A.
SEN, A.P. (J)
CITATION:
1978 AIR 1635 1979 SCR (1) 163
1978 SCC (4) 170
ACT:
Central provinces Irrigation Act 1931 (C.P. Act III of
1931)-Competency of The State Government to levy water.
charges in respect of the usage of the water from Navegaon
Bandh Reservoir for irrigation fields when the right to free
water was customary right recognised and recorded in Wazib-
Ul-Arz-Whether the customary right destroyed by the Madhya
Pradesh Abolition of Proprietary Rights (Estates Mahals and
Alienated Lands Act, 1950 (Act I of 1950) or by the Madhya
Pradesh Land Revenue Code , 1954
HEADNOTE:
Respondents are the ex-proprietors, and occupants of
the agricultural lands within their Malguzari villages
situated in Sakoli Tahsil of District Bhandara in
Maharashtra State. Since the construction of the reservoir
called Navegaon Bandh by one Kawdu Patel three hundred years
earlier, the holders or the lands including the respondents
were enjoying the right of irrigation from generation to
generation free of charge with the only obligation which is
inherent in the right viz.. putting the tank in proper
repairs. In the Wazib-Ul-Arz an obligation was put on the
Malgluzars to allow the tenants to irrigate their fields for
rice (dhan) and sugar cane cultivation free of charge. The
respondents, therefore, were using the water of this
reservoir for irrigating their fields as of right without
any payments-a right acquired by them by custom, grant or
agreement or by prescription, duly recorded in the Wazib-ul-
Arz at the time of the various settlements and as recognised
as such by the State Government till 1964 i.e. even after
the said Tank came to vest in the State under Madhya Pradesh
Act 1 of 1951. Thereafter, the appellant purporting to act
under the Central Provinces Irrigation Act, 1931 (CP Act III
of 1931) declined to allow taking of water to the
respondents unless they executed an agreement in writing
agreeing to pay Rs. 7/- per acre for rice cultivation and
Rs. 45 per acre for sugar cane as charges for the use of
water from Navegaon Bandh. The respondents, therefore,
challenged the levy of the said charges and asked for the
appropriate writ against the appellants. The High Court of
Bombay allowed the writ petition and held that (a) the right
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to free water was a customary right recognised and recorded
in Wazib-ul-Arz. (b) the said right was preserved and was
not destroyed by M.P. Abolition of Proprietary Rights Act,
1980 or by the M.P. Land Revenue Code, 1954 and (c) the
State Government was not. competent under the Irrigation Act
to levy the water charges. However. the High court granted a
certificate under Art. 133(1)(c) of the Constitution
Dismissing the appeal, the Court
^
HELD: The provisions of Sections 45, 46 and 47 of the
Abolition of Proprietary Rights Act read with the entries
made in the Wazib-ul-Arz which was prepared at the time of
the settlement under the Land Revenue Act 1917, make it
crystal clear that the occupancy tenants and malik-makbuza
who were appropriating the water. Of Navegaon Bandh tank for
raising paddy and sugar cane crops before the date of
vesting under Abolition of Proprietary Rights Act were
164
to continue lo enjoy those rights without any let or
hindrance even after the date of vesting. ’The wounds "in
the same rights" occurring in sub-section 1 of s. 45. in
fact leave no room for doubt that the absolute occupancy
tenants and occupancy tenants were to continue to enjoy the
irrigation and other water rights which were enjoyed by them
before the date of vesting. [172G-173F-G]
(2) The right of free irrigation which accrued lo the
occupancy tenants and malguzars under sections 45 to 47 of
the Abolition of Proprietary Rights Act were not only
destroyed but were also saved by s. 239 of the Madhya
Pradesh Land Revenue Code. 1954 and, are therefore. to
continue to be enjoyed by the occupancy tenants and
malguzars without being affected. curtailed or whittled
lower in any manner despite the repeal of section 45 to 47
of the Abolition of Proprietary Rights Act by s. 238 of the
Code. [174G-H, 175A]
The words "all rights acquired" occurring in Section
239 of the Code are comprehensive enough to take in the
irrigation and other rights acquired by the tenants and
malik-makbuza under sections 45 to 47 of the Abolition of
Proprietary Rights Act which stood repealed by virtue OF s.
238 of the Code. thus fully protecting and preserving the
said right of free irrigation. [174E-G]
State of punjab V. Mohar Singh , [1955] 1 SCR 893
reiterated
(3) Section 26 of the Central Provinces Irrigation Act,
1931 vests in the Government all rights in the water of any
river natural stream or natural drainage channel natural
lake or other natural collection of water. [175B]
In the instant case, the tank being not a natural like,
the Government was not competent to recover water charges by
virtue of s. 26 of the Central Provinces lrrigation Act,
1931. the water rights which could be acquired by custom and
were, in fact, acquired by custom by the respondents and
were recognised and preserved both under the Abolition of
Proprietary Rights Act and the Code cannot in any manner be
interfered with by the appellants. [175C-D]
Harrop v Hirst [1968] LR 4 Exch 43 Allen V Petrick, 69
Mont. 373, 377, 379, 380 22 Pac 451 452, 453 (1924); quoted
with approval.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: CIVIL Appeal No 2475 of
1968.
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From the Judgment and order dt. 5-7-67 of the Bombay
High Court (Nagpur Bench) in S.C.A. No. 893 of 1965
T. S. Desai and M. N. Shroff for the Appellants
S. V. Deshpande and S. Balakrishnan for the Respondent
Nos. 1-6 and 8-20
A. G Ratnaparkhi for the Respondent 7(i) and 7(ii)
The Judgment of the Court was delivered by
JASWANT SINGH, J.- This appeal by certificate granted
under Article 133(1)(c) of the Constitution by the High
Court of Judicature at Bombay (Nagpur Bench) which is
directed against its judgment and order dated July 5, 1967
in Special Civil Application
165
No. 893 of 1965 raises an important question of law as to
the right A of the State to levy and collect water charges
from the respondents under the Central Provinces Irrigation
Act, 1931 (Act No. IlI of 1931) for appropriation for
irrigation purposes of water from Navegaon Bandh Tank in
Tehsil Sakoli, District Bhandara.
The facts giving rise to this appeal are:
As already. indicated, there is in village Navegaon,
Tehsil Sakoli, District Bhandara, which formed part of the
erstwhile State of Madhya Pradesh, a very large reservoir of
water called Navegaon Bandh Tank which is said to have been
constructed some 300 years ago by one Kawdu Patel. The tank
which is over an area of Land admeasuring nearly 3200 acres
has, since the time of its construction, been the main
source of supply of water to the rice and sugarcane growing
areas of five villages viz, Mouza Navegaon, Deolgaon,
Mungli, Yerandi and Kholi comprising about 2688 acres of
land which is held partly by the quondam Malguzars including
respondents 1 to 8 and partly by the tenants including
respondents 9 to 20. The said tank came to vest in the State
under the Madhya Pradesh Abolition of Proprietary Rights
(Estates, Mahals and Alienated Lands) Act, 195() (Act No. 1
of 1951). In May, 1965, the State Government called upon the
respondents who are ex-proprietors and occupancy tenants to
execute agreements in writing undertaking to pay Rs. 7/- per
acre for rice and Rs. 45/- per acre for sugarcane irrigation
as charges for the use of water from the Navegaon Bandh
Tank. The respondents thereupon brought the aforesaid writ
petition challenging the levy by the State of the said
charges as well as its demand for execution of the aforesaid
agreements and seeking the issue of twin writs viz (1) of
prohibition forbidding the appellants from‘ insisting on the
respondents to execute agreements in the State’s favour for
payment of water charges for irrigating their lands and (2)
of Mandamus directing the appellants to allow free
irrigation of their fields from Navegaon Bandh Tank. The
case of the respondents was that the right of taking water
for irrigation purposes free of charge from the said tank
had been enjoyed by the holders of land from generation to
generation for the last 300 years with the only obligation
of keeping the tank in proper repairs; that the tank was the
Property of the descendants of the said Kawdu Patel who were
recognised as Malguzars of all The aforesaid five villages;
that the right of the aforesaid holders of land or
appropriating water of the tank was recognised and recorded
in the Wajib-ul-Arz whereunder an obligation was cast on the
Malguzars to allow the tenants to irrigate free of charge
their lands for rice
166
(dhan) and sugarcane cultivation; that the Malguzars as well
as the tenants had thus been using the water of the tank for
irrigating their fields and raising crops as of right
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without any payment either to the State or to any one also;
that in the year, 1950, the Madhya Pradesh Legislature
passed an Act called "the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals and Alienated Lands)
Act, 1980 (Act No. I of 1981)" (hereinafter referred to as
’the Abolition of Proprietary Rights Act’ with a view to
eliminate the intermediaries (variously called as Malguzars,
Zamindars and Jagirdars) between the State and the tillers
of the soil and to acquire from a specified date for the
purpose of the State free of all encumbrances the rights of
properties in estates, mahals, alienated villages and
alienated lands comprised in a notified area in Madhya
Pradesh; that in the Notification issued under section 3 of
the Abolition of Proprietary Rights Act, the area vesting in
the State was shown as the whole area of the aforesaid
villages and the Mahals or Estates comprised therein; that
thus the State was substituted in place of Malguzars with
the same rights and liabilities; that the only consequence
of vesting according to section 4 of the Abolition of
Proprietary Rights Act was to do away with the encumbrances
of mortgages, if any, on proprietary lands and to fasten the
same on the amount of compensation payable by the State to
the proprietors; that the said vesting which took place as a
result of the abolition of Proprietary Rights Act and the
Notification issued thereunder did not affect, curtail or
extinguish the aforesaid rights of free irrigation of the
holders of land in the aforesaid five villages i.e., of the
Malguzars who were cultivating their home farm lands or of
other persons who were in occupation of lands as occupancy
tenants at the time of the coming into force or the
Abolition of Proprietary Rights Act and on the contrary,
sections 45 46 and 47 of the Abolition of Proprietary Rights
Act preserved those rights; that the right to free
irrigation was recognised and recorded at various
settlements and in the Wajib-ul-Arz of 1919; that
notwithstanding the enactment and enforcement of the
Abolition of Proprietary Rights Act, the State continued
upto 1964 to recognise The respondents’ right of taking
water free of charge for irrigation purposes from the
aforesaid tank which had been enjoyed by the respondents and
their ancestors for the last 300 years and never made any
demand on account of water charges; that the respondents
were entitled to take water from the aforesaid tank for such
lands as it had been irrigated as per entries in the Wajib-
ul-Arz which is an authentic record of rights of the
cultivators of the villages in question; that in November, l
965, the officials of the State Government in charge of the
Irrigation Department by reference to section 26 of
167
the Central Provinces Irrigation Act, 1931, which had no
relevance. A declined to allow the respondents to take water
from the aforesaid tank unless they executed the aforesaid
agreements and that the action of the State Government and
its officials was without any legal authority and encroached
upon their fundamental rights.
In the return filed by them in opposition to the writ
petition‘, the appellants while admitting that the tenants
as well as the proprietors could avail of the right of
irrigating their paddy lands on condition that they would
maintain the Navegaon Bandh Tank in proper repairs and keep
the irrigation channels clear from obstruction and sediment
inter alia maintained that on and from the 31st of March?
1951 the date specified in the Notification No. 627-XII
dated 27th January, 1951 issued under section 3 of the
Abolition of Proprietary Rights Act-all rights, title and
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interest vesting in the quondam proprietors in the notified
area including lands, tanks etc. which were not their
private property ceased and stood vested in the State free
of all encumbrances; that consequently, the right of the
outgoing proprietors and tenants of free use for the
aforesaid irrigation purposes of water of Navegaon Bandh
Tank (which was held by ex-Malguzars, not as their private
property but as proprietors) was extinguished and the State
became competent to impose the water charges on persons
taking water from Navegaon Bandh Tank more so when on
finding that though for many years, the proprietors as well
as the tenants had been taking advantage of the irrigation
facilities, they had all along been neglecting to keep the
said tank and irrigation channels in proper repairs (which
was an essential condition for enjoyment of the right of
irrigation), it had, for ensuring proper irrigation
facilities, to recondition the tank as well as the water
channels (which have a water spread of 2688 acres of land)
at an expense of about 22.76 lakhs of rupees; that sections
45, 46 and 47 of the Abolition of the Proprietary Rights Act
have no relevance as they had been repeal- ed by section 238
of the Madhya Pradesh Land Revenue Code read with Schedule
III thereto and that such of the respondents as were
proprietors had, after the coming into force of the
Abolition of Proprietary Rights Act, accepted and withdrawn
without any reservation the compensation determined by the
Compensation officer in respect of the proprietary rights
over lands and, tanks etc. including the Navegaon Bandh Tank
which is comprised in the notified area resulting in the
vesting of the said Tank in the State free of all
encumbrances including the obligation to supply water free
of charge to the respondents as well as of all restrictions
on Government’s right to renovate the tank.
On a consideration of material existing on the record,
the High Court allowed the writ petition holding that the
right to appropriate water free of charge was a customary
right which was preserved and was not destroyed either by
the Abolition of Proprietary Rights Act or by the
168
Madhya Pradesh Land Revenue Code and that the State was not
competent to levy any water charges under the Central
Provinces Irrigation Act, 1931.
At the hearing of the appeal the learned for counsel
for the appellants urged that the relevant provisions of the
Abolition of Proprietary Right Act have been wrongly
construed by the High Court; that under section 4 of the
Abolition of Proprietary Rights Act, all the rights title
and interest of the erstwhile proprietors in the lands and
tanks comprised in the notified area vested in the State on
and from the date specified in the Notification issued under
section 3 of the Act viz. from 31 st March 1951 with the
result that the respondents could not claim the right of
free irrigation after such vesting; that the original right
of free irrigation from the talk was not saved by any
provision of the Abolition of proprietary Rights Act; that
even assuming without admitting that the respondents’ right
of free irrigation continued after 1950, it was finally
destroyed by the Madhya Pradesh Land Revenue Code which came
into force in 1953 and neither section 7 of the Madhya
Pradesh General (clauses Act nor section 225 of the Madhya
Pradesh Land Revenue Code saved the same; that the State was
empowered under the provisions of the C.P. Irrigation Act,
1931 to recover charges for the supply of water for
irrigation from the Navegaon Bandh Tank which had come to
vest in it with effect from 31st March, 1951, and that in
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any event respondents 1 to 8 who were the original owners
(ex-proprietors) could not claim the right of free
irrigation. On the other hand, it is contended on behalf of
the respondents that the right of irrigation from the tank
in question evidenced by entries in the wajib-ul-arz is
preserved and protected by sections 45 to 47 of the
Abolition of Proprietary Rights Act; that tho protection far
from being taken away subsequently is alleged by the
appellants was preserved by the M.P. Land Revenue Code; that
repeal by Schedule III to the MP. Land Revenue Code of
sections 45 to 47 of the Abolition of Proprietary Rights Act
did not affect any vested right which accrued under the
repealed provisions of the Abolition of the Proprietary
Rights Act and accordingly the respondents’ right of
appropriating the water of Navegaon Bandh Tank free of
charge for irrigating their fields was not in any way
affected by the aforesaid provisions of the M.P. Land
Revenue Code; that the C.P. Irrigation Act, 1931 has no
application to the instant case and that the case of
respondents 1 to 8 as regards free irrigation stands on the
same footing as that of respondents 9 to 20.
For a proper appreciation and determination of the
points involved in the case, it is necessary to have a clear
idea of the scheme of the Abolition of Proprietary Rights
Act which as already stated was enacted to provide for the
acquisition of the rights- of proprietors in estates.
169
Mahals, alienated villages and alienated lands in Madhya
Pradesh and A to make provision for other matters connected
therewith. Sub-section (1) of section 3 of the Abolition of
Proprietary Rights Act lays down that on and from a date to
be specified by a notification by the State Government in
this behalf, all proprietary rights in an estate, mahal,
alienated village or alienated land, as the case may be, in
the area specified in the notification, vesting in a
proprietor of such estate, mahal, alienated village,
alienated land, or in a person having interest in such
proprietary right through the proprietor, shall pass from
such proprietor or such other person to and vest in the
State for the purposes of the State free of all
circumstances. This provision, as evident from its opening
words has been expressly made subject to savings as provided
in the Act. The consequences ensuing from the beginning of
the date specified in the notification which is made by the
State Government under section 3(1) are set out in section
4(1) of the Abolition of Proprietary Rights Act which again
is subject to exceptions provided in the Act. One of such
consequences is that all rights, title and interest vesting
in the proprietor or any person having interest in such
proprietary right through the proprietor in such area
including land (cultivable or barren), grass land, scrub
jungle, forest, trees, fisheries, wells, tanks, ponds,
water-channels, ferries, pathways, village sites, hats,
bazaars and meals; and in all subsoil, including rights, if
any, in mines and minerals, whether being worked or not
cease and vest in the State for purposes of the State free
of all encumbrances and the mortgage debt or charge on any
proprietary right becomes a charge on the amount on
compensation payable for such proprietary right to the
proprietor under the provisions of the Act. Now as observed
by this Court in Chhotabhai Jethabai Patel & Co. v. The
State of Madhya Pradesh(1) that last part of clause (a) of
section 4(1) of the Abolition of Proprietary F Rights Act
indicates that mortgage debts and charges on the proprietary
right are what are meant by the term encumbrances.
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Subsection (2) of section 4 of the Abolition of Proprietary
Rights Act which is in the nature of a non obstante
provision says that notwithstanding anything contained in
sub-section (1), the proprietor shall continue to retain the
possession of his home-stead, home-farm land,(2) and in the
Central Provinces also of land brought under cultivation by
him after the agricultural year 1948-49 but before the sate
of vesting.
(1) [1953] S.C.R. 476.
(2) For the purposes of the present case "home-farm land"
as defined in section 2(g) means-(i) land recorded as
sir and khudkasht in the name of a proprietor in the
annual papers for the year 1948-49, and(ii) land
acquired by a proprietor by surrender from tenants
after the year 1948-49 till the date of vesting.
12-520 SCI/78
170
Section 38(1) of the Abolition of Proprietary Rights
Act which confers the rights of malik-makbuza on proprietors
provides thus:-
"38. (1) Every proprietor who is divested of his
proprietary rights in an estate or mahal shall, with
effect from the date of vesting, be a malik-makbuza of
the home-farm land in his possession."
Section 39 (1) of the Abolition of Proprietary Rights
Act lays down that where the proprietary rights held by a
protected thekadar or other thekadar or a protected headman
or by any other under tenure vast in the State under section
3, the Deputy Commissioner may reserve to such proprietor
the rights of an occupancy tenant in the whole or part of
the home farm land and shall determine the rent thereon Sub-
section (2) of section 39 of the Abolition of Proprietary
Rights Act provides that any person becoming an occupancy
tenant under sub-section (1) shall be a tenant of the State.
Section 40 of the Abolition of Proprietary Rights Act
which confers rights of a lessee on the proprietor in
certain lands provides that any land not included in home-
farm but brought under cultivation by the proprietor after
the agricultural year 1948-49 shall continue in the
possession of such proprietor and shall be deemed to be
settled with him by the State Government on such terms and
conditions as may be prescribed.
Section 41 of the Abolition of Proprietary Rights Act
lays down that except in such areas as the State Government
may, by notification, exclude from the operation of this
section, every absolute occupancy tenant who, at any time
before the date of vesting or within six months the reform,
or such further period as the State Government may from time
to time notify pays to the State Government an amount equal
to three times the annual rent for the time being payable by
him for his holding and every occupancy tenant who likewise
pays to the State Government an amount equal to’ four times
such rent, shall, on and from the date of vesting or the
date of such payment, which ever is later, be declared in
the prescribed manner to be malik-makgbuza of the land
comprised in his holding.
Section 45, 46 and 47 of the Abolition of Proprietary
Rights Act which are material for the purpose of this case
may be conveniently reproduced at this stage. These sections
run thus:
"45. (1) Subject to the provisions of section 41, any
person who immediately before the date of vesting was
in possession of any holding as an absolute occupancy
tenant or an occupancy tenant shall, on and from the
date of vesting,
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171
be deemed to be a tenant of the State and shall hold
the land in the same rights and subject to the same
restrictions and liabilities as he was entitled or
subject to immediately before the date of vesting.
(2) Any person holding land as village service
land shall be deemed to be holding it from the State
and shall be governed by the provisions contained in
sections 42 to 48 of the Central Provinces Tenancy Act,
1920.
(3) Any person holding land other than sir land
from the proprietor on favourable terms for service
rendered by him shall from the date of vesting be
declared to be an occupancy tenant of the State and the
Deputy Commissioner shall fix the rent to be paid by
him.
(4) The rent payable to tho State by such a tenant
shall for the purpose of its recovery be rent within
the meaning of clause (a) of section 225 of the Central
Provinces Land Revenue Act, 1917. D
46. Every person deemed or declared to be a malik
makbuza under section 38 or section 41 and every other
malik-makbuza in a mahal shall be entitled to any right
which a tenant has under the village wajib-ul-arz and
any reference to a tenant in the wajib-ul-arz shall be
deemed to include a reference to every such malik-
makbuza.
47. (1) The Deputy Commissioner shall, in regard
to lands vesting in the State or remaining with the
proprietor under this Act, ascertain in the prescribed
manner the custom in respect of-
(a) the rights of persons resident in the estate or
village or holding lands comprised in the mahal;
(b) the rights to irrigation, right of way and other
easements;
(c) the rights to trees and to produce;
(d) any other rights and customs which the State
Government may direct to be recorded.
(2) The Deputy Commissioner shall record in the wajib-
ul-arz, the customs so ascertained and if
necessary modify any entries therein."
The rules which the Deputy Commissioner is required to
follow in ascertaining custom in relation to the rights
mentioned in the above
172
noted section 47 appear to have been made vide Notification
Np. 70 XXVIII dated 3rd March, 1951. The said rules may also
be re produced here for facility of reference:
" 1. (1) In the Central Provinces, excluding
merged territories, the Deputy Commissioner shall issue
a proclamation in Form A appended to these rules asking
the villagers to apply by a specified date if they
consider inadequate the existing customs recorded in
the Village Administration Paper in respect of any
heads specified in rule 2 or desire to have recorded
therein any new custom under any head specified in rule
2.
(2) In the merged territories, the Deputy
Commissioner shall issue a proclamation in Form
appended to these rules asking the villagers to state
by a specified date what customs in respect of the
heads specified in rule 2 should be recorded in the
Village Administration Paper.
2. Customs shall be ascertained under the
following heads and due regard shall be had to the
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conditions entered in the Village Administration Paper,
if any, and the objections urged by the residents of
the village:-
Heads under which customs can be recorded.
(VIlI) Irrigation
(IX) other water rights ... .. ..
"
A plain reading of section 45 reproduced above would
show that the Abolition of Proprietary Rights Act could not
affect the tenancy rights of absolute occupancy tenants and
occupancy tenants created by the outgoing landlords. On the
contrary, it guaranteed the continuity of absolute occupancy
tenants and occupancy tenants by clothing them with the
status of tenants under the State and confer ring on them
the same rights as were being enjoyed by them before the
date of vesting. The words "in the same rights" occurring in
sub-section (1) of section 45 are very significant. They
leave no room for doubt that the absolute occupancy tenants
and occupancy tenants were to continue to enjoy the
irrigation and other water rights which were enjoyed by them
before the date of vesting.
Section 46 puts the Malik-makbuza at par with the
tenants in regard to customary rights under the wajib-ul-
arz. It ordains that every person deemed or declared to be a
malik-makbuza under sec
173
tion 38 or section 41 and every other malik-makbuza in a
mahal is A entitled to the same customary right as a tenant
under the village wajib-ul-arz.
Section 47 emphasises the importance of custom in
relation to the right to irrigation by making it imperative
for the Deputy Commissioner to ascertain in accordance with
the aforementioned rules and record in the village wajib-ul-
arz the custom in respect of the right to irrigation and
certain other rights in regard to the lands vesting in the
State or remaining with the proprietor under the Abolition
of Proprietary Rights Act.
It may be stated here that wajib-ul-arz which was
prepared at the time of settlement under the C.P. Land
Revenue Act, 1917 contained the following entries:-
"Term No. 13(2) of the Wajib-ul-arz of the year 19-20
of mouza Navegaon Bandh P.H. No. 35.
13. Water of tank No. 883/1 is taken for irrigation to
Villages Muza Mungli, Deolgaon, Yerandi and Kholi for
Veblaf (?) of also and Sadshiv son of Istari of Mouza
is entitled for Sugar Cane free of charge.
Term No. 18(2) of the Wajib-ul-arz:
Water of tank No. 883/1 is taken free of rate for paddy
irrigation both by the Malguzars and tenants. Details
are given in the Walit Parcha. Water of this tank for
one day-and night is taken by Sitaram Patil for mahal
No. 1 and Kanhu son of Sambhu Patil also takes one day
and one night for Mahal No. . It is free to Malik
Mukhiya only for Sugar Cane Irrigation."
From the foregoing, it becomes crystal clear that the
occupancy tenants and malik-makbuza who were appropriating
the water of Navegaon Bandh Tank for raising paddy and
sugarcane crops before the date of vesting under the
Abolition of Proprietary Rights Act were to continue to
enjoy those rights without any let or hindrance even after
the date of vesting.
Let us now proceed to determine whether there was any
change in this position as a result of the enactment of the
Madhya Pradesh Land Revenue Code, 1954 (hereinafter referred
to as ’the Code’) which received the assent of the President
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on the 5th February, 1955 and was adapted and modified at
first by the Bombay (Vidarbha Region) Adaptation of Laws
(State and Concurrent Subjects) order,
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1956 and later on by the Maharashtra Adaptation of Laws
(State and Concurrent Subjects) order, 1960 because it has
been contended by learned counsel for the appellants during
the course of his submissions that with effect from 12th
February, 1955 when the aforesaid assent accorded by the
President to the Code was published in the Madhya Pradesh
Gazette Extraordinary there was an automatic extinction of
the aforesaid right of irrigation enjoyed by the occupancy
tenants and malik-makhuza in consequence of the repeal of
sections 45 to 47 of the Abolition of Proprietary Rights Act
by virtue of section 238 of the Code, read with Schedule III
thereto. The contention is, in our opinion, wholly untenable
as it proceeds on a misconception of the true legal position
and overlooks the provisions of section 239 of the Code
which runs thus:
239. ALL rules, assessments, appointments and
transfers made, notifications and proclamations issued,
authorities and powers conferred, farms and leases
granted, records of-rights and other records framed or
Confirmed, rights acquired, liabilities incurred, times
and places appointed, and other things done under any
of the enactments hereby re pealed shall, so far as may
be, be deemed to have been respectively made, issued,
conferred, granted, framed, revised, confirmed,
acquired, incurred, appointed and done under this
Code."
It is worthy of note that section 239 of the Code did
not destroy the right of free irrigation enjoyed by the
respondents. On the contrary, it fully protected and
preserved the same. The words ‘ all rights acquired"
occurring in the said section of the code are comprehensive
enough to take in the irrigation and other rights acquired
by the tenants and malik-makbuza under sections 45 to 47 of
the Abolition of Proprietary Rights Act which stood repealed
by virtue of section 238 of the Code. This view is in
consonance with the decision of this Court in State of
Punjab v. Mohar Singh(1) where it was held that the line of
enquiry would be, not whether the new Act expressly keeps
alive old rights and liabilities but whether it manifests an
intention to destroy them. Examining the matter in the light
of this principle, we have no doubt in our mind that the
right of free irrigation which accrued to the occupancy
tenants and malguzars under the aforesaid sections 45 to 47
of the Abolition of Proprietary Rigllts Act were not only
not destroyed but were also saved by section 239 of the Code
and are, therefore, to continue to be enjoyed by the
occupancy tenants and malguzars without being, affected,
curtailed
(1) [1955]1 S.C.R. 893.
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or whittled down in any manner despite the repeal of
sections 45 to A 47 of the Abolition of Proprietary Rights
Act by section 238 of the Code.
The last contention advanced by the learned counsel for
the appellants that the Government was competent to recover
water charges by virtue of the provisions contained in
section 26 of the Central Provinces Irrigation Act, 1931 is
also devoid of substance. The said section, it would be
noticed, vests in the Government all rights in the water or
any river, natural stream or natural drainage channel,
natural lake or other natural collection of water. As in the
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instant case, it is clear not only from the averments of the
respondents but also of the appellants themselves that the
tank in question is not a natural lake, section 26 of the
Central Provinces Irrigation Act, 1931 can be of no avail to
the appellants and the water rights which could be acquired
by custom as indicated in Harrop v. Hirst(1) and were in
fact acquired by custom by the respondents in the instant
case as shown above and were recognised and preserved both
under the Abolition of Proprietary Rights Act and the Code
cannot in any manner be interfered with by the appellants.
The importance attached to the need for recognition of
the right to irrigation may also be gleaned from tax
following observations made by Chief Justice Callaway in
Allen v. Petrick (69 Mont, 373, 377, 379, 380, 22 Pac 451,
452, 453-(1924) : E
"The appropriator does not own the water He has a
right of ownership in its use only. The use of water in
Mautana is vital to the prosperity of our people. Its
use, even by an individual, to irrigate a farm, is so
much a contributing factor to the welfare of the State
that the people, in adopting the Constitution, declared
it to be a public use.
For the foregoing reasons, we do not find any merit in
this appeal which is dismissed with costs.
S.R. Appeal dismissed .
(1) [19681 L.R. 4 Exch. 43.
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