Case: State Of Maharashtra And Ors Vs. Atma Ram Sadashiv Dongarwar And Ors

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 areand 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 o f 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 States 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 descend ants 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 thewhereunder an obligation was cast on the Malguzars to allow the tenants to irrigate free of charge their lands for rice (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 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 d id 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 theof 1919; that notwithstanding the enactment and enforcement of the Abolition of Proprietary Rights Act, the State continued upto 196 4 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 o f 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 thewhich 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 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.dated 27th January, 1951 issued under section 3 o f the Abolition of Proprietary Rightsrights, title and 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 al l 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 bynot 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 tak ing 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 Rig hts Act have no relevance as they had been repealed 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 Governments 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 Madhya Pradesh Land Revenue Code and that the State was not competent to levy any water charges under the Central Provinces Irrigation Act, 1931.

Reasoning: 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 rightsof proprietors inalienated villages and alienated lands in Madhya Pradesh and A to make provision for other matters connected therewith.(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,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 r ight 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([1953] S.C.R. 476.) that last part of clause (a) of section 4(1) of the Abolition of Proprietary F Rights Ac t indicates that mortgage debts and charges on the proprietary right are what are meant by the term encumbrances. 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(1), the proprietor shall continue to retain the possession of hism land, (For the purposes of the present caseland" as defined in section 2(g)land recorded as sir and khudkasht in the name of a proprietor in the annual papers for the yearand(ii) land acquired by a proprietor by surrender from tenants after the yeartill the date of vesting.) and in the Central Provinces also of land brought under cultivation by him after the agricultural yearbut before the sate of vesting.Section 38(1) of the Abolition of Proprietary Rights Act which confers the rights ofon proprietors providesplain 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(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 d ate of46 puts theat par with the tenants in regard to customary rights under theIt ordains that every person deemed or declared to be aunder section 38 or section 41 and every otherin a mahal is A entitled to the same customary right as a tenant under the village47 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 villagethe 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 Rightsthe foregoing, it becomes crystal clear that the occupancy tenants andwho 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 ofcontention 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 runsis 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 andunder 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([1955]1 S.C.R. 893.) 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 4 7 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 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 appellant s 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 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((1968) L.R. 4 Exch. 43.) 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 theimportance 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,e 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."