JUDGMENT

JASWANT SINGH, J.:— 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.

* Reported in AIR 1967 Bom 452.

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 States 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 i