STATE OF MAHARASHTRA Vs. ATMA RAM SADASHIV DONGARWAR

JUDGEMENT

(1.) This appeal be certificate granted under Art. 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 No. 893 of 1965 raises an important question of law as to the right of the State to levy and collect water charges from the respondents under the central Provinces Irrigation Act, 1931 (Act No. III of 1931) for appropriation for irrigation purposes of water from Navegaon Bandh tank in Tehsil Sakoli, District Bhandara.

(2.) 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 said 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 thank came to vest in the State under the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals and Alienated Lands) Act, 1950 (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 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 (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 else; 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 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 purposes 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 S. 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 S. 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 of the Abolition of Proprietary Rights Act and on the contrary, Ss. 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 up to 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 demand on account of water charges; that the respondent's were entitled to take water from the aforesaid tank for such lands as it had been irrigating 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 in-charge of the Irrigation Department by reference to S. 26 of the Central Provinces Irrigation Act, 1931, which had no relevance, 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.

(3.) 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 conditions 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 Jan., 1951 issued under S. 3 of the Abolition of Proprietary Rights Act - all 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 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 Ss. 45, 46 and 47 of the Abolition of the Proprietary Rights Act have no relevance as they had been repealed by S. 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.