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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, 174 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. 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 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. 176