The central legal point established in the judgment is the vesting of the disputed tank in the State under Section 251 of the M.P. Land Revenue Code, and the distinction between proprietary and non-proprietary rights under the Abolition of Proprietary Rights Act.

C.K. Prasad, J.

1. In this writ petition filed under Articles 226 and 227 of the Constitution of India, prayer made by the petitioners is to issue a writ in the nature of certiorari or any other appropriate writ, order or direction for quashing the orders of the Revenue Courts (Annexures P-8, P-12, P-13, P-15, P-17 and P-18) whereby Revenue Courts have concurrently held that the tank recorded as Khasra Nos. 1483/1, 1482, 1554/2, 1555 and 1954/1 had vested in the State by virtue of Section 251 of the M.P. Land Revenue Code. Further prayer made by the petitioners is for quashing the notice dated 19-6-1989 (Annexure P-19) whereby the petitioners have been asked to be present at the time of inspection of the tank.

2. Bereft of unnecessary details, facts giving rise to the present writ petition are that the petitioners were the proprietors of village Dhaneli, tahsil Baloda Bazar, district Raipur. After coming into force of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 petitioners continued in possession of the tank in view of Section 5(f) of the Act with the villagers having the right to take water for drinking purposes, Nistar etc. After coming into force of Section 251 of the M.P. Land Revenue Code (hereinafter referred to as the Code). The Sub-Divisional Officer by the impugned order dated 2-12-1960 (Annexure P-8) held that tank in question had vested in the State. In spite of the order of the Sub-Divisional Officer, the revenue records were not corrected and it was only on 1-1-1983 (Annexure P-12) that the revenue record was corrected and the name of State of Madhya Pradesh was recorded. Aggrieved by the same, petitioners preferred appeal and the Appellate Authority by the impugned order dated 30-4-1984 (Annexure P-13) dismissed the appeal. Petitioners carried further appeals and by the impugned orders dated 6-5-1987 (Annexure P-15) and 20-3-1989 (Annexure P-17) Additional Commissioner and Member, Revenue Board respectively dismissed the appeals. All of them have concurrently held that tank in question has vested in the State by virtue of Section 251 of the Code.

3. It is relevant here to state that petitioners had earlier filed Civil Suit No. 22-A of 1981 before the Civil Judge, Class II, Baloda Bazar seeking perpetual injunction as also damages on the allegation that they are not being allowed to take out fishes from the tank. In the said suit State of M.P. or any of its officers were not impleaded as defendants. From Paragraph 15 of the Judgment of the Trial Court (Annexure P-10) it seems that the petitioners did not seek declaration of their title nor had questioned the order of vesting of the tank under Section 251 of the Code. Civil Judge Class II by judgment and decree dated 21-7-1983 restrained the defendants not to interfere with the plaintiffs' possession in any manner.

4. Mr. Awasthy appears on behalf of the petitioners. Respondent Nos. 1, 3 to 5 are represented by Shri K.C. Ghildiyal. In spite of service of notice on respondent No. 2, nobody has chosen to appear on its behalf. Mr. Awasthy appearing on behalf of the petitioners submits that as the tank in question has been settled with the petitioners in the light of Section 5 (f) of the Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act. 1950 (hereinafter referred to as the Act), provisions of Section 251 of the Code is wholly in-applicable and the Revenue Courts erred in law in holding that the disputed tank has vested in the State under Section 251 of the Code. A reading of Section 4 (1) (a) read with Section 3 of the Act and phraseology of Section 5 (f) of the Act clearly indicate that the proprietary rights in all tanks vest in the State, but what was saved by the legislature under Section 5 (f) of the Act in favour of the Ex-proprietor, non proprietary right or in other words usufructuary right in respect of such tank in which no other person except the proprietor had any right of irrigation. This has been