JUDGMENT - (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 t

Click Here to Read the rest of this document