STATE OF MAHARASHTRA AND ORS. versus ATMA RAM SADASHIV DONGARWAR AND ORS.

Citation: [1979] 1 S.C.R. 163 · Decided: 16-08-1978 · Supreme Court of India · Bench: JASWANT SINGH · Disposal: Dismissed
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Judgment (excerpt)

• 
163 
STATE OF MAHARASHTRA AND ORS. 
v. 
ATMA RAM SADASHIV DONGARWAR AND ORS. 
August 16, 1978 
[JASWANT SINGH, D. A. DESAI AND A. P. SEN, JJ.) 
Central Provinces Irrigation Act 1931 (C.P. Act III of 1931 )-Con!petency 
of the State Governn1ent to levy water charges in respect of the 
usagf! of -the 
water from NaveRao11 Bandh Reservoil" for irrigation fields, when the right to free 
trater was a customary right recognised and recorded in Wazib-Ul-Arz_...Whether 
the custornary tiglit destroyed by the Madhya Pradesh Abolition of Proprietary 
Rights (Esrores. Malzals, and Alienated Lnnds) Act. 1950 (hr I of l950) or by 
the Madhya Pradesh Land Revenue Code, 1954. 
Respondents are the ex-proprietors, and occupants of the agricultur~ lanUs 
within their Malguzairi villages situated in Sakoli Tahsil 'of District Bh3.D.dara tn 
Maharashtra State. 
Since the construction of the reservoir called Navegaon-
Navegaon Bandh by one Kawdu Patel, three hundred years earlier, the holders 
of the lands including the respondents were enjoying the right of irrigation from 
generation to generation free. of chairge with the only obligation which is irihe-
rent in the right viz., putting the tank in pr.oper repairs. In the Wazib-Ul-Arz 
an obligation \Vas put on the Malguzars to allo\V the tenants to irrigate their 
fields for rice (dhan) and sugar cane cultivation free of charge. 
The respon-
dents, therefore, were using the water of this reservoir for irrigating their fields 
as of right without any payments-a right acquired by them by custom, gr:int 
or agreement or by prescription, duly recorded in the Wazjb-ul-Arz at the time 
of the various settlements and as recognised as such by the State Government 
till 1964 i.e. even after the said Tank came to vest in the State under Madhya 
Pradesh Act 1 of 1951. Thereafter, the appellant purporting to act under the 
Central Provinces Irrigation Act, 1931 (CP Act III of 1931) declilled to allow 
taking of water to the respondents unless they executed an agreement in vtrillng 
agreeing to pay Rs. 7 /. per acre for rice cultivation and Rs. 45 per acre for 
sugar cane as charges for the use of water from Navegaon Bandh. 
The respoti-
dents, therefore, challenged the levy of the said charges and asked for the 
appropriate writ against the appella>nts. The High Court Of Bombay allowei'l 
the writ petition and held that (a) the right to free water was a customary right 
recognised and recorded in Wazib-ul·Arz, (b) the said right was preserved and 
wao not destroyed by M.P. Abolition Of Proprietary Rights Act, 1950 or by the 
M.P. Land Revenue Code, 1954 and (c) the State Government was not compe-
tent under the Irrigation Act to levy the water charges. However, the High 
Court granted a certificate under Art. 13 3 ( 1 )( c) of the Constitution. 
Disn1issing the appeal, the Court 
HELD : The provisions of Sections 45, 46 and 47 of the Abolition of Pro--
prietary Rights Act read with the entries made in the Wazib-ul-Arz which was 
prepared at the time of the settlement under the Land Revenue Act 1917, make 
it crystal clea·r that the occupancy tenants and malik-makbuza who Were appro· 
priating the water of Navegaon Bandh tank for raising paddy and sugar cane 
crops before the date of vesting under Abolition of Proprietary Rights Act were 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
. -~--~--
164 
SUPREME COURT REPORTS 
[1979] I S.C.R. 
to continue to enjoy those riShts without any let or hindrance even .i.fter the 
date of \'esting. 
The words "in the same rights" occurring in sub·section 1 of 
s. 45, in fact lea-ve no room for doubt that the absolute occupancy tenants and 
occupancy tenants \Vere to continue to enjoy G1c irrigation a·nd other water 
rights which were enjoyed by them before the date of vesting. 
[172G-173F·UJ 
(2) The right .of free irrigation which accrued to tho occupancy tenants and 
malguzars under :sections 45 to 47 of the Abolition of Proprietary Rights Act 
were not only destroyed but were also saved by s. 239 of the Madhya Pradesh 
Land Revenue Code, 1954 and, are, therefore, to continue to be erljoyed by the 
occupancy tenants and maJguzars without being affected, curtailed or whittled 
lower in any manner despite the repeal of section 45 to 47 of the Abolition of 
Proprietary Rights Act by s. 238 of the Code. [174G·H, 175AJ 
C 
The words "all rights a<:quired" occurring in Section 239 of the Code aic 
comprehensive enough to take in the irrigation and other rights acquired by the 
t
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