Madhya Pradesh High Court
Chandrika Prasad Tiwari And Ors. vs State Of M.P. And Ors. on 24 March, 2000
Equivalent citations: 2001(5)MPHT298
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER 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 emphatically said in an authoritative pronouncement of this Court in the case Raghubir Singh v. State of M.P. and Ors., 1971 JLJ 387. Paragraph 9 of the said judgment which is relevant for the purpose reads as follow :--
"Sub-section (e) relates to tanks situate on occupied land. We are not concerned with the said sub-section in the present case, nor are we concerned with Sub-section (g). But the present case is solely governed by Sub-section (f). The phraseology of Sub-section (f) clearly indicates that by virtue of Section 4(1)(a) read with Section 3 of the Act, the proprietary rights in all tanks vests in the State. But what was saved by the legislature in favour of the ex-proprietors was the non-proprietary or, as we may call it, the usufructuary or possessory right in respect of such tanks in which no other persons except the proprietor had any right of irrigation. In that event only, the tank would belong to and be held by such proprietor or other persons. As such, the ex-proprietor having lost the proprietary rights over the tank would be allowed to exercise non-proprietary or usufructuary or possessory rights over such tanks, where they answered the requirements of Sub-section (f) of Section 5 of the Act."
5. Mr. Awasthy then submits that once the tank had already vested under the provisions of the Act the question of its re-vesting under Section 251 of the Code does not arise at all. In view of the authoritative pronouncement of this Court in the case of Raghubir Singh (supra) this submission need not detain me at all. This question pointedly came for consideration before the Full Bench and on consideration of all the authorities on the question the Full Bench negatived this contention. While doing so, it has held as follow :--
"We may observe that if a tank had already vested under the Abolition of Proprietary Rights Act, 1950, there would be no question of re-vesting of the same tank. But, if what vested on account of the Abolition of Proprietary Rights Act, 1950, was merely the proprietary right, then Section 251 (1) of the M.P. Land Revenue Code, 1959, will very much be attracted so as to abolish the non-proprietary or possessory or usufructuary right vested in the ex-proprietor.
In this view of the matter, we have no doubt that the tanks recorded as Khasra Nos. 561 and 542, in which the villagers had right of Nistar, namely, bathing and taking water for use, the tanks were rightly settled in favour of the petitioner under Section 5 (f) of the M.P. Abolition of Proprietary Rights Act, 1950. As such, these tanks were saved to him under the Abolition Act, but they were rightly held to have vested in the State under Section 251 of the M.P. Land Revenue Code, 1959."
In view of aforesaid, the submission of Mr. Awasthy has no merit.
6. Mr. Awasthy then contends that power under Section 251 of the M.P. Land Revenue Code has to be exercised by the Collector and not the Sub-Divisional Officer and in that view of the matter, order of the Sub-Divisional Officer dated 2-12-1960 that the tank in question has vested in the State by virtue of Section 251 of the Code is illegal. Mr. Ghildiyal appearing on behalf of the answering respondents however, submits that the petitioners have not raised this question before any of the Revenue Courts and have chosen to raise this point for the first time before this Court. Mr. Ghildiyal further points out that the State Government, as contemplated under Section 22 (2) of the code, had notified that power of the Collector under Section 251 of the Code within their respective jurisdiction shall be exercised by the Sub-Divisional Officer. It is relevant here to state that Section 22 of the Code inter-alia provides that the Sub-Divisional Officer shall exercise such powers of the Collector, as the State Government by notification direct. State Government had issued such notification and directed that all Sub-Divisional Officers shall exercise the powers of the Collector under Section 251 of the Code within their respective jurisdiction. Section 22 (2) of the Code contemplates conferring on the Sub-Divisional Officer the powers of Collector and that having been done by the State Government, the submission of Shri Awasthy has necessarily to fail. Accordingly I reject this submission of Shri Awasthy.
7. Mr. Awasthy lastly submits that the decision of the Revenue Courts that the tank in question has vested in the State under Section 251 of the Code is in the teeth of the decision of the Civil Court. In this connection, Mr. Awasthy has drawn my attention to the judgment and decree dated 21-7-1983 passed by the Civil Judge in C.S. No. 22-A/81. It is relevant here to state that in the said suit petitioners did not implied the State Government or any of its officers as party. Further petitioners did not seek declaration of their title or for that matter questioned the validity of the action of vesting under Section 251 of the Code. In such a situation the judgment and decree of the Civil Court is of no assistance to the petitioners.
8. All the submissions made on behalf of the petitioners having no substance, I do not find any merit in this writ petition and it is dismissed accordingly, but without cost.