An enquiry is necessary before vesting a tank in the State Government under Section 251 of the Madhya Pradesh Land Revenue Code, 1959, and the Collector is the competent authority to hold such an enquiry.

P.V. DIXIT, C.J.

1. In this application under Article 226 of the Constitution of India, the petitioners state that they were the Malguzars of the village Parna and before the abolition of proprietary rights in the village under the Madhya Pradesh Act No. 1 of 1951, a field bearing Khasra No. 247 having an area of 130.40 acres was held on sir rights; that the bunded areas of the field were used for raising double crops and the non-bunded areas were utilized for one crop; that there was no tank in the field and no rights of Nistar or of irrigation of the village community; and that on 22nd October 1959 the Sub-Divisional Officer, Rajnandgaon, informed the petitioners that their tank in Khasra No. 247 having an area of 1.75 acres had vested in the State under Section 251 of the Madhya Pradesh Land Revenue Code, 1959, as from 6th April, 1959.

2. The petitioners contend that the decision of the opponents vesting the land in question; which was never a tank is altogether illegal and was taken without giving them an opportunity of hearing. They pray that an appropriate writ be issued for quashing the decision about the vesting of the "tank" communicated by the order dated the 22nd October 1959 of the Sub-Divisional Officer, Rajnandgaon.

3. The short question that arises for consideration in this petition is whether before any conclusion is reached about the vesting of a tank under Section 251 of the Code it is necessary to give an opportunity to a party who disputes the vesting to have his say in the matter. Section 251 (1) of the Code is as follows-

"All tanks, not already vested in the State Government wherever situate, over which members of the village community were, immediately before the coming into force of the Act providing for the abolition of the rights of intermediaries in the area concerned, exercising rights of irrigation or Nistar, shall from the 6th April, 1959, vest absolutely in the State Government".

Sub-section (2) of the Section lays down that any person claiming in any such tank any interest other than the right of irrigation or Nistar may, within the time specified therein, make an application in the prescribed form to the Collector for compensation in respect of his interest, sub-section (3) fixes the amount of compensation payable. The fourth sub-section provides that the compensation as determined under sub-section (3) shall be paid by the Collector to the person or persons proved to his satisfaction to be owning interest in the tank concerned. Sub-section (5) says that the payment of compensation under sub-section (4) shall be a full discharge of the State Government from all liability for compensation in respect of the tank concerned, but the payment shall not prejudice the rights in respect of the tank of any other person who may be entitled by due process of law to enforce against the person to whom compensation has been paid. The other sub-sections are not material.

4. It will be seen that under sub-section (1) there cannot be any vesting of a tank unless it is one which has not already vested in the State Government and is one over which the members of the village community were immediately before the coming into force of the Act providing for the abolition of the rights of intermediaries exercising rights of irrigation or Nistar. If these two conditions are satisfied, then the tank vests absolutely in the State Government as from 6th April 1959, that is to say from even before the coming into force of the Code. In the absence of any of these two conditions, there cannot be a legal vesting of a tank under Section 251 (1). The vesting takes place automatically when these conditions in respect of any tank are satisfied. No separate order to that effect is necessary. But that does not relieve the revenue authorities from satisfying themselves after an enquiry whether the conditions for vesting are satisfied in respect of any tank. It is true that Section 251 itself does not provide for any enquiry. But an e