Atmaram Sadashiv Dongarwar And … vs The State Of Maharashtra And Ors. on 5 July, 1966

JUDGMENT

Patel, J.

(1)  This   petition is  filed   by   exproprietors  and occupants   of  the agricultural  lands  within   their     Malguzari  villages,  seeking  to  challenge  the  orders  issued   by  the    respondents, calling  upon  them  to execute  the  agreements  under  the  Irrigation Act  for  supply  of   water  to  them  out  of   a  tank  situate  in  Nawegaon.
 

 (2)  The  short   facts  leading  to  the   present  dispute   may  be  stated.  Petitioners   1 to  8  are  the  ex-proprietors  of  mouza   Nawegaon  and also  probably     other  villages.  Petitioners   9  to  20  are  residents   of  different   villages  under  malguzars.  They  were   cultivating   the lands, in what   capacity    it  is  not  necessary  for  us  to    state in this petition.  In  Nawegaon  ion Khasra   NO.  883/1 there is   a  huge   lake  or  reservoir  of  water  covering  about  3,200  acres of  land.    Out  of  this   lake  the  malguzars, it is   alleged,  were  entitled  to  take  water  for  their  crops   including   sugar-cane   crop  and  the present  cultivators   were  entitled  to take  water  for  paddy  crops.  One  Sadasheo  out  of    these w as entitled  to    take   water for sugarcane crop.  This    they   were entitled    to do  free  of  charge.  There was   a liability  on  all these persons  using   water of the  lake  to  maintain  it  in  repairs. The petitioners  malguzars  were  cultivating  certain   portions  of  their land   as their  own   farm  land   when  the  Madhya  Pradesh  Abolition  of  Proprietary    Rights  (Estates   Mahals   and Alienated Lands )  Act,  1950, was passed.  We  will  reger   to this  Act    as  the  Estates   Abolition  Act.  As  the  title  shows,  it  was   passed    in order  to abolish   intermediaries    and  bring  about  direct relationship  between the  cultivator   and     the  Government.  The  State  alleged   that  under  Section  3  of   the  Act    the  tank   vested  in the  State  and it  took  possession of  this tank. The   officer   designated   for   determining   he  compensation to  be paid   to  malguzars  assessed  the  value  of  compensation for  the   tank.  The  State  thereafter   spent  about    Rupees   twenty    lakhs   for  enlarging  and  changing   the  tank.  The  State   alleged that  all   rights   of  all  persons, if  any  were   extinguished     under  the  provisions  of  this  Act  and  that   if   any cultivator  wanted  water  for   his  field, it    could  only  be   supplied in  accordance  with  the   provisions  of the  Irrigation  Act  on payment  of  charges  for such  supply.   The  State   therefore  called upon   its   officers  to  supply  water  to  the cultivators  on their  executing  agreements  under   the  Irrigation   Act  as  shown   by  the  Annexures  to  this  petition.
 

 (3)  The petitioners   contend   that  they  have  still  the  right  to   the  water  of  the  tank  free of  any  charge,   subject to  the    liability  for   its   repairs    as before  and that  the  State is  not  entitled  to  impose   any  charges  for the  supply   of  water.  Accordingly   to  them,  they are entitled   to take water   from   this  tank  for    such lands   as   are being   entitled    to  be  irrigated under  the     Wajib-ul-urz.
 

 (4)  The  wazib-ul-urz  records  the rights  of  the  cultivators  in this    village   and  adjoining     villages.  In  the  present  case    with   regard  to    this  tank  the entries     show  that the   malguzars  had  the right   to  get  free water for   all crops,  certain cultivators  of  the  village were entitled    to free  water    for  paddy   crop  and some  for even  sugarcane   crop.   Similarly  the   cultivators  of  some  other   villages  were also  entitled  to get  water.  The State   in   its   return  says:  "It  is    admitted that  water of  this  tank   was  used for    purposes  of  irrigation     of  the  five  villages  as  mentioned.  The  right of irrigation is  recorded in the  first  and subsequent   settlements."
 

 (5)  In  order  to decide  the rival  contentions,   one  has  to consider  the  terms  of   the above Act,  as  also   the subsequent  legislation,   i.e.  the  Madhya  Pradesh  Land Revenue  Code,  1954. The Relevant  sections    which   fall  for  consideration are  Section 3,  4,  5,.  38,  41  and  42  of  the  first  Act.  The  scheme  of these  sections  appear  to  be  that  all  rights of  the  malguzars  and  all  encumbrances  in  the   property    are abolished  and  the  entire  proprietary  rights  are vested  in the  State Government,  subject  to    such   safeguards  as  are made  by the other provisions.  Consistently   with this  scheme,   Section  3   declares  that,  except  as provided   by  the  Act, on  the  specified   date  all proprietary   rights  in an  estate  shall   pass from  the  proprietor   and vest  in  the  State for  the purposes  of  the State,  free  of  all  encumbrances.  We  will  assume   without  deciding,  for  the purposes of  this   case that  the  customary  rights   which  are  claimed  by  the  malguzars  and  by    the   other petitioners  are encumbrances.   Sub-section (2)  of  Section 3 provides   that  no  right  shall  be acquired  over  the  land  to  which   the notification    under  the previous   sub-section   relates, except   by  succession  or under    a  grant or    contract  in writing   entered  into  by  or  on  behalf  of  the State.  Section  4  provides   for  the consequences  of  abolition   of the  proprietary  rights    and vesting  of the property  in the  State Government.  One  of  the  consequences   is  that    all right,  title  and  interest  vesting  in  the  proprietor  or  any  person   having  interest in such  proprietary    right   through  the proprietor   in the estate,  including   land  cultivable or  barren  grass land .  .  .  .tanks or water  channels,  etc. cease   and   vest   in the  State  free of  all  encumbrances. Under  clause   (b) all  grants  made prior   to  that   and  any  privilege in respect of  any  property  vesting  in the State  ends on   such vesting.  With   the rest  we  are  not  concerned.  One   exception  which    is carved out  of  this  vesting, is  to  be   found in  sub-section (2)  which  provides   that  the  ex-proprietor   would  continue   to retain   possession   of  his  home-farm land  and, in  the  Central  Provinces,    of land  brought   under  cultivation  by  him after  the  agricultural  year   1948-49   but  before  the date of vesting. Section  5   creates  exceptions   referred to  in  Sections   3 and  4.   Relying   on  clauses (e)  and (g)  of   Section  5,   a contention   was made on behalf  of  the  proprietors  in  a writ petition  filed  in this  Court  that  the  present   tank  continued  to   vest  in him.  However,   he  was directed  to have  his  right   settled  by  a suit  and  the  suit  for  declaration  of   his   right  to  provides   for  further consequences  of   vesting,  i.e.   that  any transfer  in respect of  any  property   liable  to vest  in the State,  made  by  the proprietor  at   any  time  after  March  16, 1950,  becomes  void    from the date   of  vesting.  Section  38  declares  that every  proprietor    who  is divested  of his proprietary  rights  in  estate   or  Mahal,  would   be    malik  makbuza  of  the  home-farm  land    in his possession.   Sub-section  (2)    thereof    enables  a sharer  in such  a land    to apply  for  partition  of this   share.  It  may   be mentioned  that  malik  makbuza  is under  the M. P.   Land Revenue  Code  an  owner  of  a  separately   assessed  plot  of land.  The effect  of    Section 38  is  to constitute   the  ex-proprietor    the owner  of his  home-farm   land  which is  in his  possession.   Section 39    gives  rights  of  occupancy  tenant   to a  protected  thekedar, other  thekedar   or  a protected  headman  or  any   other  under-tenure  holder  from  the date  of vesting,   By  Section  40   any land   which is not  part  of     the  home-farm  land  of  the proprietor   but  which   has  been   brought  under  cultivation  by    him  after  1948-49,  is  continued   with the  proprietor   as  land settled  with  him  by the State Government on terms   and  conditions   prescribed by it.  Section  41  enables  a person  who has  got  occupancy  land or  who  is  occupancy  tenant  to  obtain  the rights  of   malik  makbuza   in  respect  of  his  holding   Section  42  fixes  the  amount  of  land   revenue   payable   by  a  malik  makbuza.  Section   45   continues  the tenure  of    subordinate  holder,  i.e.  of  absolute   occupancy   tenants  or   occupancy   tenants  who  from  the   date of vesting  are deemed  to  be   tenants of  the State,  and says   that  they  "shall hold  the land  in the same  rights  and subject  to the same  restrictions  and  liabilities   as they    were  entitled  or  subject  to immediately  before  the  date of vesting."   Similarly,  sub-section (2)   transfers  the  holdings  and village  service land   as holding  under  State.  Section   46    gives   to all malik  makbuzas,  who  are deemed  to  be  malik  makbuzas  under  Section  38  or   Section  41,  and  every  other  malik  makbuza   in  a  mahal,  all   the rights  which a tenant  has  under the  village   wajib-ul-urz   and declares  that  any  reference  to a tenant in the same    shall  be  deemed  to  be  a   reference  to every such  malik  makbuza.  Section  47  requires  the  Deputy  Commissioner,  in respect  of  lands   vested in  the State or   remaining  with  the proprietor,  to    ascertain  the  custom   in respect  of  matters  prescribed  in the  four  clauses   thereof,   one  of    which is  the  right   of  irrigation,  right  of  way   and other  easements.
 

 (6)  Rules    have been  framed   under  this  section and they  lay   down   the principles  on which  the Deputy  Commissioner   has  to discharge  his duty under  Section  47. On  the  one  hand,   it is urged  on behalf  of  the petitioners  that Sections   45,  46  and  47  keep  intact   all   such  customary  rights  as the ex-proprietors  and  the subordinate   tenure-holders   had  in  the land,  and on the other  for  the  State it  is    urged  that Sections   3 and  4  abolish   all     these  rights.
 

 (7)  Section   3,  which  vests  the  entire   property    of  the proprietary  estate   in the State, itself  provides  for savings  to  that   section  or  savings  to  the  vesting.  It  is clear,  therefore,    that in order to find   out  what  are  the  rights  of  the petitioners    one  cannot   base his conclusion   only on  Sections   3 and  4. Along  with   these    all  other  provisions   in the  Act  must   be    considered. Section   45  assures  to  the under-tenure   holder  the  same  rights   and the same    restrictions  and liabilities  as he  had   or  subject  tovesting. The  rights  referred to  in  the   section  do not  mean    merely    the rights   of cultivating,  but  would  include   all  the  appertenant   rights  in connection with  such land  which  he was  then holding. Section   46  gives   the same     rights  to   a malik  makbuza,  i.e.   ex-proprietor  who is declared  to  be so  under  Sections   8  and   41,  and even  otherwise,  as  the  tenant   has.  It  is obvious   therefore,   that  if   attached  to their    land   there were  any  appertenant  rights,  those  rights  were also   saved in   respect  of the holding    of  a  malik  makbuza.   Section  46     does   postulate   in   clearest   terms  that  the  rights    which  a tenant  is  assured, include   customary     rights  appertenant  to land  under  his cultivation which  are  recorded  in the  wajib-ul-urz.  The same    effect  must  therefore   follow  from   the language  used in   respect of  the  rights  of ex-proprietors.  This  if  further   made clear  by   Section 47  which  calls upon   the Deputy  Commissioner  to record  the said  rights   after  ascertaining  in the prescribed  manner  the custom  in respect  of  them, and,   as we have said  some  of  the matters  to  be investigated  are the rights  of irrigation  rights  of   way  and   other   casements.   The   rules     framed   under  Section   47  also  show  that  a public  notice  had  to be  given   by  the Deputy commissioner  and    an application   was required    to  be  filed  by  any  person   if that  person   wanted  to  allege  that the  rights   recorded  in the  wajib-ul-urz  were  further   modifiled   by  custom.  If  no modifications   were alleged  by  any one,  then  the Deputy  Commissioner had  to  record  all such  customs as were  already   recorded  in the  wajib-ul-urz, in  the   record    made by   him  under  Section  47.   It   was faintly    argued  by Mr. Chandurkar   that  the opening  words  "Save   as otherwise  provided  in this  Act"  in  Section  3  of  the  Act  related  only  to    such  proprietary  rights   as were   saved  by  the   provisions   in  the  Act  and  did  not refer  to  any  other   rights  in   respect  of   the property.  In our    view,  there is no   reason to construe   the clause  in such a  narrow  manner.   The  words  are wide enough   to apply  to even subordinate   rights  in property   which  vests  in the State Government.  It  is   admitted  that  in  the  wazib-ul-urz preparted   under  Section  47  of the Act    the  rights  of  irrigation of  the  cultivators  are   recorded.
 

 (8)   It is,   however, contended  by Mr. Chandurkar   that  even  assuming  that these   customary   rights   were  recognized   by  the said   Act,    they are  taken away  by the Madhya  Pradesh  Land  Revenue   Code,  1954,  which   replaced  its  earlier  counterpart.   We  will refer   to it   hereafter  as    the  Code.  He relies   in   support  of  his  contention  on the repealing  Section  which is  Section  238,   It  repeals    amongst  others,  Section 38 to   70, except   Sections   48,  52  and  64  of the above  Act. His   argument  is  that  all  sections  including   Section  38,  i.e.   Sections  38,   41,  45,  46  and  47  which    recognized  the customary   rights  in the proprietors   and  the  occupancy    holders,  have  been  repealed  by  this  provision,  and therefore    any  rights  that  the   petitioners  had  disappeared   as  a consequence.   He   also  relies  upon  Section  225   of  the Code which  relates  to   preparation   of  wajib-ul;-urz.  Sub-section  (1)  of   that   section requires  the   Collector   to  ascertain and record  the custom  in each  village   in regard   to   (a)  the right  to irrigation, or  right  of  way  or   other   easements,  or  (b)  the  right  of   fishing,   in  any land  or    water  not   belonging  to or  controlled or managed  by the  State Government  or  a local   authority. It  further provides  that    such records  shall  be  known  to  be  the   wajib-ul-urz  of  the  village.  Mr.  Chandurkar    says  that  if  the  intention  of  the Legislature  was to  retain rights  of  the cultivators in  the  property  of  the State  Government, it would  not  have restricted  the  recording   in the   wajib-ul-urz  of  rights  in properties  not belonging  to Government.  As  to  this    latter contention  it is  sufficient   to say that  mere  recording  or not  recording    of the rights  of  a person  in  the  Revenue   papers   cannot   destroy  those  rights.  As  early     as in Fatma  Kom  Nubi  Saheb  v.  Darya  Saheb,  (1873)  10 Bom  HCR   187,  it  was held  that  the  Collector's    books    are not  for the purpose  of  title  and the fact    that  a  person's  name  is   so   entered   did  not  establish   his title    or defeat  that  of  any  other person. This  principle   has  been  affirmed later in  Nirman   Singh  v.  Rudra  Partab   Narain  Singh.   53  Ind  App  220 = (AIR  1926  PC  100)   Moreover,  we are  not  shown  any  statutory   provision  to the effect   that  entries  in  wajib-ul-urz  prepared  under    the  M.P.  Land   Revenue  Code   1954, are conclusive   for   all purposes   and that  no rights  noted in the   same    be  enforced.
 

 (9)  Section  7   of  the Madhya Pradesh   General  Clauses  Act provides  the   consequences    following  a  repeal  of  an  Act.  It  says   that  unless  a different  intention  appears, the repeal  shall not affect  any  right,  privilege, obligation  or liability acquired     accrued or incurred under  any  enactment  so  repealed.  In    connection  with such  repeals   and  their  effect  we  may refer  to  the  decision  of  the Supreme  Court in   State  of Punjab  v. Mohar Singh,  AIR  1955 Sc  84,  where it was   said:
   "Whenever  there is  a  repeal    of  an  enactment,  the consequences   laid  down   in Section  6   of  the  General  Clauses  Act will  follow  unless, as  the   section itself  says,  a different intention appears.  In the   case of  a  simple repeal  there is  scarcely   any room for  expression   of  a contrary  opinion.  But  when  the repeal  is  followed  by  fresh  legislation on  the same subject  we  would   undoubtedly   have to   look  to  the provisions  of  the  new   Act,  but   only  for  the purpose  of  determining whether  they  indicate  a different    intention.  The  line  of enquiry   would  be not   whether  the new  Act  expressly  keeps   alive  old   rights   and  liabilities  but  whether it amnifests  an intention   to destroy  them . . . . . Section  6   would  be applicable  in such  cases  also   unless  the new legislation  manifests  an intention   incompatible   with   or  contrary  to the provisions  of  the  section.  Such  incompatibility  would   have   to  be  ascertained from a  consideration   of  all the relevant provisions of the   new   law  and  the mere  absence of  a  saving   clause  is  by  itself   not   material."
 

It   may  truly,  therefore,  having  regard  to  the effect of repealing  Act,  be  said  that    a  repealing  provision   is "merely  a  scavanger  of  obsolete   and useless  provisions."   The  land  Revenue  code   replaced  the old  Acts  and  applied  to  all tenures  and hence  the  repeal.
 

 (10)  In the present  Act there is  indeed   a  saving  clause   in  Section  238. It  says  that   "All  rules . . .  record-of-rights  and other  records,  rights   acquired, liabilities   incurred . . . . . .shall,  so  far as  may  be,   be  deemed  to  have  been respectively  made  . . . . .  granted,  framed,   revised, confirmed, acquired   . . . . under  this  code."   Mr.  Chandurkar  laid  some  emphasis   on  the  words "so   far  as  may  be"  and   contended   that  inasmuch  as those  rights  are not  expressly    kept  alive  under the Code,  they  cannot  be  regarded   as   rights   conferred under  the  Code.  Here again,  it  is not  possible  by mere reference   to  Section  225   prescribing   the  contents  of   wajib-ul-urz  to hold  that  all  the rights   that the  cultivators  had  got were  intended  to    be wiped out.   Abolition  of   Proprietary   Rights   Act by  Sections    38  and 41(c)  conferred on  the proprietor   rights   of   ownership  and  by  Section 45  conferred occupancy   rights  to under-tenure  holders  with  all  appertenant  rights,   and  by Section  46   conferred  the same  rights  in respect  of   land held  by malik  makbuzas   as tenants.   In order   therefore,  to  see what  are   the rights   which are continued,  one  must  go  to  substantive   provisions  which  conferred rights   on  tenure-holders .  Rights  of  ownership    and  of  occupancy    are conferred  by Chapter  XII  of  the  Code. Sections   146  and  147   clearly indicate  that  the  rights  which were  conferred on  the  ex-proprietors  and  the tenants  have  been re-affirmed   by  these sections.  The  other  substantive  section   which relates  to the  rights  of  the public  in  Government  property   is  Section 50.  It  declares   what  is  Government property.  This  section is  worded in terms   similar to  those in its   counterpart,  Section   37  of   the Bombay   Land  Revenue Code,  and it  declares  the ownership  of  the  State  over  all lands,  public  roads,   bridges,  lands,  beds   of  rivers,  streams,  nalas,  lakes  and   tanks including  all  canals  and  water-courses,  and  all  rights  therein 'which  are not  properties  of  persons.' (Underlining   (here in '      ')  ours).  The  scheme  of  the  section  is simple.   All the   listed   things  and  all rights   in them  are declared   to  be  the property  of the  Government which   are not  the property   of persons.  The  underlined  qualification   applies  to  things  enumerated and  also  to  "all rights  therein"  It is  clear that  even   subordinate  rights  in  the enumerated    things  could  be  owned  by  persons and excluded  from the   ownership  of  the  State if they   are owned   by   others.
 

 (11)  It is  open,  therefore,  to an occupant  or  tenure-holder  under  the  Code to show  that  he  has  got  a right  in the property  which belongs  to   Government  on the date on which  this  section  came into  force. As  we have  held    above,  Sections  45,  46 and 47 did  affirm  the   customary  rights   which the  ex-proprietor  and  the  occupancy  holder enjoyed. Thus,  under  Section  50    rights   are preserved  to them. The  combined  effect, therefore,  of  the  saving    clauses,  Sections  145  and  146  in Chapter  XII  and  Section  50   of  the  Code,  clearly    indicates  that this right  was not  intended to   be taken  away  by  the Land  Revenue  Code  Indeed,  if any  such   attempt   had  been  made,  in  every  possibility   it  could   have  invited   the objection  that  the provision   was  ultra  vires    of the   Constitution  as no  provision  for  compensation  had  been  made.
 

 (12)  Mr.  Chandurkar   has also  argued  that no such   rights  as  are  claimed   can  be   recognised   under the C. P. Irrigation Act, 1931.  He   relies  on  Section  26  of the  Act. This   section  is  a vesting   section and it   vests  in the Government all rights   in   the water of      natural  lake  . . .        except   to  the   extent  to which  rights   may   have  been   acquired  in water  affected by  a notification under Section 27 prior   to its publication.  In the  first place,  there has  been  no  notification  published  under  Section 27  in respect  of the lake  and even  if it  were published  all prior    rights  are saved.  Section 27  has  no   application  as its only  prevents     future    acquisition  of   rights  in the water  covered    by  Section   26 after the notification.   This  contention  must  also  fail.
 

 (13)  It  was  then  contended   By  Mr. Chandurkar   that  at   least  in respect  of  petitioners  1  to  8 we  should   not give   any  declaration  of rights    because   a   substantive  suit    is   pending  where  they have   claimed    in the alternative    the   same    relief   as they  are    now  claiming.   A  copy of  the plaint  has  been   shown  to us.  It  shows  that  the main contention of  the plaintiffs  therein  is  that  the  tank  continues   to vest in them  and  the  State Government   has no right  to the  tank. In the alternative  the  contention  is that   they  are entitled  to free   water from the tank.  Though   this  prayer  is  made in the plaint,  the   matter is  not   elaborated  and there is no indication  as  to  how  they  claimed the  right  in   question.  Apart   from  this, however, the  suit  is  yet  at the stage of  the  objections  regarding   the amount    of  court fees  and   one does not  know   when  it   will   be decided.   Moreover,    the  other petitioners  are nor  parties   to that   suit,  As   there is  substantial   inter-connection  between    their   rights, we are not  prepared to  refuse   to   determine   the  question  simply  because   an  alternative  prayer   is made in the  plaint  which  is   still in  its   infancy.
 

 (14)   In  view  of  what  we have stated  above,   we hold  that the petitioners  have rights  which have  been recorded in the  wajib-ul-urz  prepared under  Section  47.
 

 (15)  It is  clear,  therefore,  that  the demands   made by  the  State  Government  for irrigation    charges in terms  of  the Irrigation    Act    are improper.  It  may  be mentioned  that  after taking  over possession of   the  tank  the State Government   has enlarged  the  tank   and  spent  a large  amount   approximately  Rupees    twenty  lakhs,  without  the  consent  of the  agriculturists.  It  is impossible  then  to hold  that  the cultivators  are liable   to repair  such  a tank.   As  the    State  Government   has  changed   considerably  the  size   and  the nature of  the  tank, it is not  entitled   to   collect  any charge from   any  of  the  petitioners  for  the use of the  water  according    to  wajib-ul-urz.  Writ    to  issue  in  terms   of  prayers  (a)  and  (b).
 

 (16)  The petition  is allowed   with costs.
 

 (17)  Petition allowed.