# STATE OF MAHARASHTRA AND ORS v. ATMA RAM SADASHIV DONGARWAR AND ORS

- **Citation:** [1979] 1 S.C.R. 163
- **Court:** Supreme Court of India
- **Decided:** 1978-08-16
- **Bench:** Jaswant Singh, D. A. Desai, A. P. Sen
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-maharashtra-and-ors-v-atma-ram-sadashiv-dongarwar-and-ors-7569
- **Pages:** 13

## Headnote

Central Provinces Irrigation Act 1931 (C.P. Act III of 1931 )-Con!petency
of the State Governn1ent to levy water charges in respect of the
usagf! of -the
water from NaveRao11 Bandh Reservoil" for irrigation fields, when the right to free
trater was a customary right recognised and recorded in Wazib-Ul-Arz_...Whether
the custornary tiglit destroyed by the Madhya Pradesh Abolition of Proprietary
Rights (Esrores. Malzals, and Alienated Lnnds) Act. 1950 (hr I of l950) or by
the Madhya Pradesh Land Revenue Code, 1954.
Respondents are the ex-proprietors, and occupants of the agricultur~ lanUs
within their Malguzairi villages situated in Sakoli Tahsil 'of District Bh3.D.dara tn
Maharashtra State.
Since the construction of the reservoir called NavegaonNavegaon Bandh by one Kawdu Patel, three hundred years earlier, the holders
of the lands including the respondents were enjoying the right of irrigation from
generation to generation free. of chairge with the only obligation which is iriherent in the right viz., putting the tank in pr.oper repairs. In the Wazib-Ul-Arz
an obligation \Vas put on the Malguzars to allo\V 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, gr:int
or agreement or by prescription, duly recorded in the Wazjb-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) declilled to allow
taking of water to the respondents unless they executed an agreement in vtrillng
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 respotidents, therefore, challenged the levy of the said charges and asked for the
appropriate writ against the appella>nts. The High Court Of Bombay allowei'l
the writ petition and held that (a) the right to free water was a customary right
recognised and recorded in Wazib-ul·Arz, (b) the said right was preserved and
wao not destroyed by M.P. Abolition Of Proprietary Rights Act, 1950 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. 13 3 ( 1 )( c) of the Constitution.
Disn1issing the appeal, the Court
HELD : The provisions of Sections 45, 46 and 47 of the Abolition of Pro--
prietary 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 clea·r that the occupancy tenants and malik-makbuza who Were appro·
priating 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
A
B
c
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E
F
G
H
A
B
. -~--~--
164
SUPREME COURT REPORTS
[1979] I S.C.R.
to continue to enjoy those riShts without any let or hindrance even .i.fter the
date of \'esting.
The words "in the same rights" occurring in sub·section 1 of
s. 45, in fact lea-ve no room for doubt that the absolute occupancy tenants and
occupancy tenants \Vere to continue to enjoy G1c irrigation a·nd other water
rights which were enjoyed by them before the date of vesting.
[172G-173F·UJ
(2) The right .of free irrigation which accrued to tho 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 erljoyed by the
occupancy tenants and maJguzars without being affected, curtailed or whittled
lower in any manner de

## Text

•
163
STATE OF MAHARASHTRA AND ORS.
v.
ATMA RAM SADASHIV DONGARWAR AND ORS.
August 16, 1978
[JASWANT SINGH, D. A. DESAI AND A. P. SEN, JJ.)
Central Provinces Irrigation Act 1931 (C.P. Act III of 1931 )-Con!petency
of the State Governn1ent to levy water charges in respect of the
usagf! of -the
water from NaveRao11 Bandh Reservoil" for irrigation fields, when the right to free
trater was a customary right recognised and recorded in Wazib-Ul-Arz_...Whether
the custornary tiglit destroyed by the Madhya Pradesh Abolition of Proprietary
Rights (Esrores. Malzals, and Alienated Lnnds) Act. 1950 (hr I of l950) or by
the Madhya Pradesh Land Revenue Code, 1954.
Respondents are the ex-proprietors, and occupants of the agricultur~ lanUs
within their Malguzairi villages situated in Sakoli Tahsil 'of District Bh3.D.dara tn
Maharashtra State.
Since the construction of the reservoir called NavegaonNavegaon Bandh by one Kawdu Patel, three hundred years earlier, the holders
of the lands including the respondents were enjoying the right of irrigation from
generation to generation free. of chairge with the only obligation which is iriherent in the right viz., putting the tank in pr.oper repairs. In the Wazib-Ul-Arz
an obligation \Vas put on the Malguzars to allo\V 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, gr:int
or agreement or by prescription, duly recorded in the Wazjb-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) declilled to allow
taking of water to the respondents unless they executed an agreement in vtrillng
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 respotidents, therefore, challenged the levy of the said charges and asked for the
appropriate writ against the appella>nts. The High Court Of Bombay allowei'l
the writ petition and held that (a) the right to free water was a customary right
recognised and recorded in Wazib-ul·Arz, (b) the said right was preserved and
wao not destroyed by M.P. Abolition Of Proprietary Rights Act, 1950 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. 13 3 ( 1 )( c) of the Constitution.
Disn1issing the appeal, the Court
HELD : The provisions of Sections 45, 46 and 47 of the Abolition of Pro--
prietary 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 clea·r that the occupancy tenants and malik-makbuza who Were appro·
priating 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
A
B
c
D
E
F
G
H
A
B
. -~--~--
164
SUPREME COURT REPORTS
[1979] I S.C.R.
to continue to enjoy those riShts without any let or hindrance even .i.fter the
date of \'esting.
The words "in the same rights" occurring in sub·section 1 of
s. 45, in fact lea-ve no room for doubt that the absolute occupancy tenants and
occupancy tenants \Vere to continue to enjoy G1c irrigation a·nd other water
rights which were enjoyed by them before the date of vesting.
[172G-173F·UJ
(2) The right .of free irrigation which accrued to tho 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 erljoyed by the
occupancy tenants and maJguzars 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, 175AJ
C
The words "all rights a<:quired" occurring in Section 239 of the Code aic
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 o~ 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.
[l 74E·G]
State of Punjab v. Mohar Singh, [1955] 1 SCR 893 reite1ated.
D
(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.
[175lll
In the instant case, the tMlk being not a natural lake, the Government was
not competent to recover water charges by virtue of s. 26 of the Central Pro~
vinces Irrigation Act, 1931. The water rights which could be acquired by cus·
E
tom 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-DJ
F
G
llarrop v. Hirst, [1968] LR 4 Exch. 43; Allen v. Petrick, 69 Morit. 373. 377.
379, 380, 22 Pac 451, 452, 453 (1924); quoted with approval.
CIVIL APPELLATE JURISDICTION ; Civil Appeal Ko.
2475
of
1968
From the Judgment and Order dt. 5-7-67 of the Bombay High
Court (Nagpur Bench) in S.C.A. No. 893 of 1965
V. S. Desai and M. N. Shroff for the Appellants
S. V. Deshpande and S. Balakrishnan for the Respondent Nos. 1-6
aud 8-~0
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
H
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
...
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MAHARASHTRA v. ATMA RAM (Jaswant Singh, !.)
165
No. 893 of 1965 raises an important c;uestion of law as to tl1e right
of the State to levy and collect water charges from the respondents
under the Central Provinces Irrigation Act, 1931 lAct No. Ill 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 :
~s already indicated, there is in village Navegaon, Tehsil Sakoli,
Di:;trict Bhandara, which formed part of the erstwhile State of Madhya
Pradesh, a very large reservoir of water called Navcgaon Bandh Tanl<
which is said to have been oonstructed 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,
Moum 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.
T!Je said
tank came to vest in the State under the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950
(Act No. I 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 ra;pondents 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 iriigation 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 J1olders of land
of 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
A
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166
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SUPREME COURT REPORTS
[f9!9J 1 S.C.R.
(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,
1950 (Act No. 1 of 1951)" (hereinafter referred to as 'the Abolition.
of Proprieiary Rights Act' with a view to eliminate the i11terrnediarfes
(variously called as Malguzars, Zamindars and Jagirdars)
between
the Stale 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 proprietors 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
jiforesaid 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 of
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 19\9; 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, 1965, the officials of the State Government incharge of the Irrigation Department by reference to section 26 of
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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 agrements, 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 l'roprietors
B
could avail of the right of irrigating their paddy lands on condition that
they would maintain the Navegaon Bandh Tanic in prope< 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
C
rights, 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 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
D
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 wate.r 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 E
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 section's 45, 46 and 47 of the Abolition
of the Proprietary Rights Act have no reTevance as they had been repealF
ed by section 238 of the Madhya Pradesh Land Revenue Code read
with Schedule Ill 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 Com~nsation Officer in respect of the
proprietary rights over lands and tanks etc. including the Navegaon
G
Bandb Tank which is comprised in the notified area resulting in the
vesting of the said Tank in the State free of all encumbrances includih~
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
H
of charge was a customary right which was preserved and was not destroyed either by the Abolition of Proprietary Rights Act or by the
A
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168
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SUPREME .COURT REPORTS
[1979] I S.C.R.
Madhya Pradesh Land Revenue Code and that the State was not competent to levy any water charges under the Central Provinces Irrigation
Act, ~931.
At the hearing of the appeal, the learned counsel for the appellants
has urged that the relevant provisions of the Abolition of Proprietary
Rights 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 unde.r section 3 of the Act viz. from 31st March,
1951 with the result that the respondents could not claim the right ot
free irrigation after such vesting; that the original right of free irrigation
from the tank was not saved by any provision of the Abolition of Pr<>-
prietary Rights Act; that even as·suming 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 fiito
force in 1953 \Ind neither section 7 of the Madhya Pradesh General
Clauses Act nor section 225 of the Madhya Pradesh Land Revenue Code
iiaved 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 com~ to vest
in it with eff~t from 31st March, 1951, and that in any event, respondents 1 to 8 who were the original owners (ex-proprietors) could not
E · 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
the protection far from being taken away subs~uently as alleged by the
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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 Aboliti_on of the
Proprietary Rights Act and accordingly the respondents' right of appropriating the water of Navegaon Bandit Tank free of charge for irrigating
their fields was not in any way affected by the aforesaid provisions ot
the M.P. Lan<} Revenue Code; that the C.P. Irrigation Act, 1931 has
no application to the instant case and that the case of respondenfs 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 enacreo
to provide for the acquisition of the rights of proprietors in estates.
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MAHARASHTRA V. ATMA RAM (laswant Singh, J.)
169
M".ahals, alienat.ed villages and alienated lands in Madhya Pradesh and
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 le> and vesl
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 ( l)
are set out in section 4 (I) of the Abolition of Proprietary Rights "Act
which again is subject to exceptions provided in the Act. One of such
con'sequences 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, bazars and melas; 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 of compensation payable for such proprietary right to the proprietor under
the provisions o~ the Act. Now as observed by this Court in Chhotabhai Jethabai Patel & Co. v . .The State of Madhya Pradeshe) that
last part of clause (a) of section 4(1) of the Abolition of Proprietary
Rights Act 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 Abo1ition of Proprietary Rights Act
which is in the nature of a non obstante provision says that notwithstanding anything contained in sub-section ( l), the proprietor shall
continue to retain the possession of
his
h1o"me-stead,
home-farm
land,(') and in the Central Provinces also of land brought under
<:ultivation by him after the agricultural year 1948-49 but before the
date of vestin~.
(I) [1953] S.C.R. 476.
(2) For the purposes of the present case "home~farm land'
1 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
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170
SUPREME COURT REPORTS
[1979] 1 S.C.R.
A
Section 38(1) of the Abolition of Proprietary Rights Act which
confers the rights Pf maHk-makbuza on proprietors provides thus :-
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"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 AboHtion 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 undertenure vest 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 i011 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 occu·
pancy tenant who, at any time before the date of vesting or within
six months therefrom, or such further period as the State Gpvernment
may from time to time notify pays to the State Government an amount
equal to three times the annual reut for the time being payable by
him for his holding and every occupancy tenant who likewise pays to
the State Government an amount equal td four times such rent, shall,
on and from the date of vesting or the date of such payment, whichever is later, be declared in the prescribed manner to be malik-makbuza of the land comprised in his holding.
Section 45, 46 and 47 of the Abolition of Proprietary Right.< Act
which are material for the purpose of this case may be conveniently
rvproduced 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 p,o'ssession of any holding as an absolute occupancy tenant or
an occupancy tenant sliall, on and from the date of vesting,
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MAHARASHTRA v. ATMA RAM (laswant Singh, !.)
be deemed to be a ttnant of the State and shall hold the
land in the same rights and subject to the same restrictions
and liabilities as he was entitled dr subject to immediately
before the date of vesting.
(2) Any person holding land a~ village service land
shall be deemed to be holding it from the State and shall be
governed by the provisions cont;tined in sections 42 to 48
of the Central Provinces Tenancy Act, 1920 .
171
( 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 the 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.
46. Every person deemed or declared to be a malikmakbuza 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-u!-arz and any
reference to a tenant in the wajib-ul-arz shall be deemed
to include a reference.to every such malik-makbuza.
4 7. (I) 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 maha!;
(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 wajibul-arz, the customs so ascertained and if necessary modify
any entries therein."
The rules which the Deputy Commissioner is req\Jired to follow
in ascertaining custom in relation to the rights mentioned in the above
A
B
c
D
E
F
G
H
A
B
c
D
E
.~;
. .:;;,;; __ ,
172
SUPREME COURT REPORTS
[1979] I S.C.R.
noted section 47 appear to have been made vide Notification Np. 70XXVIII dated 3rd March, 1951.
The said rules may also be reproduced here for facility of reference :
"l. (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 custioms recorded in the Village Administration
Paper in respect of 11ny Jieads specified in rule 2 or desire
to have recorded therein any new custom under any hea<i
specified in rule 2.
(2) In the merged territories, the Deputy Commissioner shall issue a proclamation in Form B 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
recortled in the Village Administration Paper.
2. Customs shall be ascertained under the
fo11owing
heads
and due regard shall be had to the 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.
(VUI) Irrigation
(IX) Other water rights
"
A plain reading of section 45 reproduced above would show that
F
the Abolition pf Proprietary Rights Act did not affect the tenancy
rights of absolute occupancy tenants and occupancy tenants created
by the outgoing J.ltndlords.
On the contrary, it guaranteed
the
continuity of absolute occupancy tenants and occupancy tenants by
olothing them with the status of tenants under the State and conferring on them the same rights as were being enjoyed by them before
G
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 occup_ancy
tenants were to continue to enjoy the irrigation and other water rights
which were enjoyed by them before the date of vesting.
H
Section 46 puts the Malik-makbuza at par with the tenants in
regqrq to cust.omary .rights under the wajib-ul-arz.
It ordains that
every person deemed or declared to be a malik-makbuza undef sec-
•
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•
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I
MAHARASHTRA v. ATMA RAM (laswant Singh, J.)
I 73
tion 38 or section 41 and every other ma!ik-makbuza in a mahal is
A
entitled to the s~me custpinary right as a tenant under the village
wajib-ul-arz.
Sec lion 4 7 emphasises the importance of custom in relation to
the right to irrigation by making it imperalive 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 Slate or remaining with the proprietor nnder 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 Np .. 88311 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 tauk No. 883/1 is takeu free of rate for
paddy irrigation J:io\h 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. I and Kanhu son of Sambhu Patil also
takes one day and one night for Mahal No. 2.
It
is free to Malik Mukhiya only for Sugar Cane Irrigation."
B
c
D
E
F
Frnm 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 witbp'ut any let or hindrance even G
after the date of vesting .
Let us now proceed to determine whether there was any change
in this position as a re~ult of the enactment of the Madhya Pradesh
Land Revenue Code, 1954 (hereinafter referred to as 'the Code')
which received the assent oi the President on the Sth February, 1955 H
and was a~apted and modified at first by the Bombay (Vidarbha
Region) Adaptation of Laws (State and Concurrent Subjects) Order,
174
SUPREME COURT REPORTS
[1979] 1 S.C.R.
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
B in the Madhya Pradesh Gaz~tte Extraordinary there was an automatic
extinction of the aforesaid right of irrigation enjoyed by the occupancy tenants and malik-makbuza in consequence of the repeal of
sections 45 to 4 7 of the Abolition of Proprietary Rights Act by virtue
of section 23 8 of the Code, read with Schedule III thereto.
The
contention is, in our opinion,· wholly untenable as it proceeds on a
c
D
E
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, recordsof-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 repealed 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
F
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(•) where it was
held that the line of enquiry would be, not whether. the ne\v Act exG
pressly 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 ~bolition of Proprietary
Rights Act were not only not destroyed but were also saved by secH
tion 239 of the Code and are, therefore, to cdntinue to be enjoyed by
the occupancy tenants and malguzars without being affecleyJ, curtailed
(1) [1955] I S.C.R. 893.
•
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•
•
•
I
MAHARASHTRA v. ATMA RAM (Jaswant Singh, J.)
175
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 !fie
Cdde.
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
B
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 of 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 c
natural lake, section 26 of the Central Provinces Irrigati,on 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(') 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 {\ct and the Gode cannot in any manner
D
be interfered with by the appellants.
The importance attached to the need for recognition of the right
to irrigation may also be gleaned from the following observations
made by Chief Justice Callaway in Allen v. Petrick (69 Mont, 373,
377, 379, 380, 22 Pac 451, 452, 45'.>(1924) :
"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 fa.ctor to the welfare o{ the State that the
peopl~, 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) [1968] L.R. 4 Exch. 43.
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