(1) This petition is filed by expropriators 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 rigger 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 wajib-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 appurtenant 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 appurtenant 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 appurtenant 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 modified 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 wajib-ul-urz prepared 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 BomCR 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 I A 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 manifests 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 scavenger 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 appurtenant 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.