THE STATE OF MADHYA PRADESH & ORS. versus PUJARI UTTHAN AVAM KALYAN SAMITI & ANR. on 6 September 2021

[2021] 7 S.C.R. 685

THE STATE OF MADHYA PRADESH & ORS.

v.

PUJARI UTTHAN AVAM KALYAN SAMITI & ANR.

(Civil Appeal No. 4850 of 2021)

SEPTEMBER 06, 2021

[HEMANT GUPTA AND A. S. BOPANNA JJ.]

M.P. Land Revenue Code, 1959 – Rights of Pujari – A writpetition filed by Association of Priests registered under the M.P.Society Registrikaran Adhiniyam 1973 to quash the circulars dated21.03.1994 and 07.06.2008 whereby the names of Pujari wereordered to be deleted from the revenue record – The Single Judgeof the High Court allowed the writ petition – However, in the intra-court appeal, it was held that if the temple was managed by thePujari, then keeping in view the law laid down from time to time, hisname was required to be mentioned as Pujari along with the nameof the deity – Before the Supreme Court, the respondents contendedthat the Pujaris have been conferred Bhumiswami (ownership)rights, a right which cannot be taken away by executive instructions– Held: The Pujari is only a grantee to manage the property of thedeity and such grant can be reassumed if the Pujari fails to do thetask assigned to him, i.e., to offer prayers and manage the land –He cannot be thus treated as a Bhumiswami – The Pujari does nothave any right in the land and his status is only that of a manager– Rights of pujari do not stand on the same footing as that ofKashtkar Mourushi in the ordinary sense who are entitled to allrights including the right to sell or mortgage – Since the priest cannotbe treated to be Bhumiswami, they have no right which could beprotected under any of the provisions of the Code – There is nomandate in any of the judgments or any rule has been brought tonotice to hold that the name of Pujari or manager is required to bementioned in the revenue record – In the absence of any prohibitioneither in the statute or in the rules, the executive instruction can beissued to supplement the statute and the rules framed thereunder –Such instructions do not contravene any of the provisions of theCode or the rules – Therefore, they cannot be said to be illegal orin excess of the authority vested in the State Government – The

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Aorder of the High Court cannot be sustained – The Circulars dated21.3.1994 and 7.6.2008 cannot be said to be illegal in any manner.

Dismissing the writ petition and allowing the appeal, theCourt HELD: 1. Whether a priest can be treated as BhumiswamiBunder the Madhya Bharat Land Revenue and Tenancy Act, Samvat2007 (Act No. 66 of 1950) and as a consequence under the Code.

1.2 This question has already been considered by the courtsin Pancham Singh v. Ramkishandas Guru Ramdas & Ors., whichhas further been affirmed by Mst Kanchaniya and Others v. ShivCRam and Others. The Law is clear on the distinction that thePujari is not a Kashtkar Mourushi, i.e., tenant in cultivation or agovernment lessee or an ordinary tenant of the maufi lands butholds such land on behalf of the Aukaf Department for the purposeof management. The Pujari is only a grantee to man- age theDproperty of the deity and such grant can be reassumed if the Pujarifails to do the task assigned to him, i.e., to offer prayers andmanage the land. He cannot be thus treated as a Bhumiswami.The Kanchaniya further clarifies that the Pujari does not haveany right in the land and his status is only that of a manager.Rights of pujari do not stand on the same footing as that ofEKashtkar Mourushi in the ordinary sense who are entitled to allrights including the right to sell or mortgage. [Para 20][704-H;705-A-C]

1.3 Taking into consideration the past precedents, and thefact that under the Gwalior Act, Pujari had been given right toFmanage the property of the temple, it is clear that that does notelevate him to the status of Kashtkar Mourushi (tenant incultivation). [Para 23][705-E-F]

2. Whether the priest is Inamdar or Maufidar within themeaning of Section 158 (1)(b) of the Code.G

2.1 Such provision contemplates that the rights of everyperson in respect of land held by him in the Madhya Bharatregion i.e. area of erstwhile Gwalior and Holkar as a Pakka tenantor as a Muafidar, Inamdar or Concessional holder shall beprotected as Bhumiswami. The priest does not fall in any of the H

clauses as mentioned in Section 158 (1)(b) of the Code. The maufiwas granted to the property of temples from payment of landrevenue. Such maufi was not granted to a manager. Even Inamgranted by the Jagirdar or the ruler to a priest is only to managethe property of the temple and not confer ownership right on thepriest. Therefore, in view of the judgment in Pancham Singh andalso of this Court in Kanchaniya, the priest cannot be treated tobe either a Muafidar or Inamdar in terms of Madhya Bharat LandRevenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) orin terms of Gwalior Act. Since the priest cannot be treated to beBhumiswami, they have no right which could be protected underany of the provisions of the Code. [Para 24][705-F-H; 706-A-B]

3. Whether the State Government by way of executiveinstructions can order the deletion of name of Pujari from therevenue record and/or to insert the name of a Collector asmanager of the temple.

3.1 In Ghanshyamdas II, it was held that even if templewas being managed by the Pujari, his name is required to bementioned as Pujari along with name of deity. This Court doesnot find any mandate in any of the judgments to hold that thename of Pujari or man- ager is required to be mentioned in therevenue record. [Para 25][706-C-D]

3.2 In terms of Section 108, 109 and 110 of the Code, Ruleshad been framed initially as Appendix X. Form A has beenprescribed as per Rule 2. Later such Rules were substituted byanother Rules published on 15.5.1964 and Form I was prescribedto maintain the records of the rights. Such Rules have been furthersubstituted on 20th December 1983, published in the MadhyaPradesh Gazette. The Column 3 of such Form is to contain nameand address of the occupier, whereas Column 4 is required tocontain name of the tenant or sub-lessee of an occupancy tenantof the Bhumiswami. Column 12 is meant for remarks. [Para26][706-D-E]

3.3 In the ownership column, the name of the deity alone isrequired to be mentioned, as the deity being a juristic person isthe owner of the land. The occupation of the land is also by thedeity which is carried out by the servant or the managers on behalf A

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Aof the deity. Therefore, the name of the manager or that of thepriest is not required to be mentioned in the column of occupieras well. In Ghanshyamdas II, it was held that if the name of thePujari is recorded in the column No. 12 i.e. column of remarks, itwill not affect the rights of the Pujari so long as he is performinghis functions properly and cultivating the land or getting the landBcultivated through servants. Therefore, the name of the Pujaricannot be mandated to be recorded either in the column ofownership or occupancy but may be recorded in the remark’scolumn. [Para 27][707-D-F]

C3.4 No rule has been brought to the notice that the name ofthe manager has to be recorded in the land records. In the absenceof any prohibition either in the statute or in the rules, theexecutive instruction can be issued to supplement the statuteand the rules framed thereunder. Such instructions do notcontravene any of the provisions of the Code or the rules.DTherefore, they cannot be said to be illegal or in excess of theauthority vested in the State Government. [Para 28][707-F-G]

4. Another argument was raised that such circulars of theState Government shall be applicable to the public temples andEnot to the private temples. A bare reading of the circulars doesnot make out such distinction. However, a temple in a house orwhich is not open to the public cannot be treated to be a publictemple. However, it will be a question in each case whether it isa public temple or a private temple which can be decided in theappropriate proceedings. For the purpose of the present appeal,Fwe find that the circular is applicable to all temples unless aparticular temple is able to satisfy the competent forum of it beinga private temple. [Para 30][709-B-D]

M. Siddiq (Dead) Through Legal Representatives v.Mahant Suresh Das and Others (2020) 1 SCC 1 –Gfollowed.

Mst Kanchaniya and Others v. Shiv Ram and OthersAIR 1992 SC 1239 : [1992] 2 SCR 670; Deoki Nandan H

THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHANAVAM KALYAN SAMITI & ANR.

v. Murlidhar and Ors. AIR 1957 SC 133 : [1956] SCR756 – relied on.

Ramchand (Dead) by Legal Representatives v. ThakurJanki Ballabhji Maharaj and Another AIR 1970 SC532 : [1970] 1 SCR 634 – referred to.

Ghanshyamdas v. State of M.P 1995 Revenue Nirnaya(RN) 235 (‘Ghanshyamdas I); Sadashiv Giri & Ors. v.Commissioner, Ujjain & Ors. 1985 RN 317; ShriKrishna v. State of M.P. 2012 (4) MPLJ 466 –disapprove.

Kashi Bhatti through LRs v. State of M.P. 2009 R.N.179; State of M.P. v. Ghanshyamdas 1999 R.N. 25(‘Ghanshyamdas II); Pancham Singh v. RamkishandasGuru Ramdas & Ors. AIR 1972 MP 147; State of M.P.and Others v. Mandir Shri Khande Rao 1999 RN 392– referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No.4850 of2021.

From the Judgment and Order dated 14.06.2016 of the High Courtof Madhya Pradesh, Bench at Indore in Writ Appeal No.617 of 2014.

Saurabh Mishra, AAG, Sunny Choudhary, Ms. Samridhi Jain, Advs.for the Appellants.

Divyakant Lahoti, Kartik Lahoti, Parikshit Ahuja, Ms. PraveenaBisht, Ms. Madhur Jhavar, Ms. Vindhya Mehra, Ms. Shivangi Malhotra,Advs. for the Respondents.

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AThe Judgment of the Court was delivered byHEMANT GUPTA, J.

1. The order dated 14.06.2016 passed in an intra-court appeal bythe Division Bench of the Madhya Pradesh High Court is the subjectmatter of challenge herein at the instance of State of Madhya Pradesh.BThe learned Single Bench allowed the writ petition filed by Associationof Priests registered under the M.P. Society Registrikaran Adhiniyam1973. Such society has 251 members in the Districts of Dhar, Indore,Ratlam, Shajapur, Ujjain, Jhabua etc.

2. The challenge in the writ petition was to quash the circularsCdated 21.03.1994 and 07.06.2008 whereby the names of Pujari wereordered to be deleted from the revenue record. The said writ petitionwas allowed on 20.11.2013 relying upon the judgments of the High Courtin Ghanshyamdas v. State of M.P[1] and Kashi Bhatti through LRsv. State of M.P[2]. The learned Single Bench held that the circulars datedD12.11.1992 and 21.03.1994 were already quashed by the High Court inthe year 1995 and 1999 respectively and therefore there was nojustification on the part of the State Government to issue circular dated07.06.2008 directing the Revenue Commissioner to follow the circulardated 21.03.1994. Learned Single Bench held as under:

E“The name of Collector is being mentioned as manager. It is truethat by mentioning the name of Collector as manager, propertiesowned by the Temple were saved but at the same time theproperties could not be managed properly as it is not expectedfrom the Collector to manage the properties of the Temple. Toprotect the interest of Pujari’s who are entitled to get the benefitsFof the scheme which are being introduced by the Government forthe benefit of the agriculturist. To protect the interest of makingthe law in that regard by suitable legislation as the problem is lyingin the Court in number of cases for last 30 years. In result theimpugned order dated 07/06/08 (Annexure P/21) is quashed.”

G3. In an intra-court appeal against the aforesaid findings, the HighCourt referred to a judgment of Division Bench in State of M.P. v.Ghanshyamdas[3], an order passed against the order in writ petition 1 1995 Revenue Nirnaya (RN) 235 (Hereinafter referred to as the ‘Ghanshyamdas I)

2 2009 R.N. 179H3 1999 R.N. 25 (Hereinafter referred to as the ‘Ghanshyamdas II)

3 1999 R.N. 25 (Hereinafter referred to as the ‘Ghanshyamdas II)

reported as Ghanshyamdas I. The Court inter alia held that Pujarishad no right to alienate the properties of the temple. They have rightsonly with respect to either cultivate the land or get it cultivated throughservants. The High Court further held that if the temple was managedby the Pujari, then keeping in view the law laid down from time to time,his name was required to be mentioned as Pujari along with the name ofthe deity. The Court held as under:

“The learned Writ Court relying on the decision of the cases ofState of M.P. & others v. Ghanshyamdas & Others v. (supra),Kanchaniya v. Sheoram (supra) and Pancham Singh v.Ramkishandas (supra) has held that right of Pujaris continuedfrom their forefather, cannot be taken away by executiveinstructions. There was no justification on the part of the StateGovernment to advice to Revenue Commissioner to follow circulardated 21.03.1994, when the same was quashed. It is not in disputethat as per Clause 5 of the Land Records Manual in Column No.3of Khasra Entries deals with the name of occupier; Column No.4deals with name of bhoomiswami or lessees or his representativeswhile Column No.12 deals with the remarks. Undisputedly, theland, which is owned by the temple or deity or the land owned bytemple or by the trust, name of the deity/temple or trust, as thecase may be, is required to be mentioned in Column No.3. If thetemple is managed by the Pujari, then keeping in view the lawlaid down by this Court from time to time, his name is required tobe mentioned as Pujari along with the name of the deity.”

(Emphasis supplied)

4. Before this Court, the argument of Mr. Saurabh Mishra, learnedcounsel appearing for the appellant, is that the preparation of revenuerecords including as to what entry should be incorporated in such recordhas been prescribed in the M.P. Land Revenue Code, 1959 (for short“the Code”). The State Government, in exercise of the powers conferredunder the Code, had issued executive instructions to delete the names ofPujari from the revenue record so as to protect the temple propertiesfrom unauthorized sale by the Pujaris. Learned counsel for the appellantreferred to the first circular issued by the State on 04.08.1969 in responseto the complaints received that Maufi land (land exempted from paymentof revenue) was being recorded in individual names and was being illegally A

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Atransferred. It was directed that Maufi was granted to a deity who wasthe owner of the temple and the land appended was to be that of thedeity alone. Thereafter, another circular dated 12.04.1974 was issuedhighlighting the issue that the land which belonged to the temple and notcovered under the Khasgi Trust was being misused by the Pujaris byway of sale or mortgage. The Khasgi Trust was formed for the purposeBof the properties of Holkar family. Therefore, to save land which belongsto the temple and not covered under the Khasgi Trust, in addition to thename of Pujari, name of the Collector was to be recorded as manager inthe revenue record. The reference was made to Sections 108, 114 and258 of the Code to support his arguments.C

5. Mr. Lahoti, counsel of the respondents, submitted that the Pujarishave been conferred Bhumiswami (ownership) rights, a right whichcannot be taken away by executive instructions. It was argued that interms of proviso to Section 57, the rights granted to the Pujaris havebeen protected and would remain unaffected by the Code. In terms ofDSection 158, every person, in respect of land held in the Madhya Bharatregion as a Pakka tenant or as a Muafidar, Inamdar or Concessionalholder, as defined in the Madhya Bharat Land Revenue and TenancyAct, Samvat 2007 (Act No. 66 of 1950), confers Bhumiswami rights onthe pujari, which has further been protected by a conjoint reading ofESection 57 and Section 158 of the Code. The Madhya Bharat LandRevenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) wasenacted after the merger of Gwalior and Holkar State in the year 1950,prior to reorganization of State of Madhya Pradesh in the year 1956.Mr. Lahoti also refers to ‘Gwalior Act’ to argue that such Act conferredproprietary rights to the priest which were initially protected by the MadhyaFBharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of1950) and later by virtue of Section 158 of the Code. The reliance wasplaced upon the judgment of the Division Bench of the High Court inShri Krishna v. State of M.P.[4]. Mr. Lahoti relied upon Sections 57,158 & 159 of the Code.G

6. The provisions of the Code as are relevant for the presentorder read as under:

“2. Definitions-

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(1) In this Code, unless there is anything repugnant to the subject or context, xxxxxx xxx (z-3) “unoccupied land” means the land in a village other thanthe abadi or service land, or the land held by a Bhumiswami,a tenant or a government lessee.

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57. State ownership in all lands-

(1) All lands belong to the State Government and it is herebydeclared that all such lands, including Standing and flowingCwater, mines, quarries, minerals and forests reserved or not,and all rights in the sub-soil of any land are the property ofthe State Government:

Provided that nothing in this section shall, save asotherwise provided in this Code, be deemed to affectDany rights of any person subsisting at the coming intoforce of this Code in any such property.

91A. Power to make rule-

The State Government may make rules for regulatingEgenerally the conduct of a revenue survey or Settlementunder this Chapter.

108. Record of rights.- [(1)] A record-of-rights shall inaccordance with rules made in this behalf be prepared andmaintained for every village and such record shall include thefollowing particulars:- F

(a) the names of all Bhumiswamis together with surveynumbers or plot numbers held by them and their area,irrigated or unirrigated; (b)the names of all occupancy tenants and Government lesseesGtogether with survey numbers or plot numbers held by themand their area irrigated or unirrigated;

(c) the nature and extent of the respective interests of suchpersons and the conditions or liabilities, if any, attachingthereto; H

A(d)the rent or land revenue, if any, payable by such persons;and (e)such other particulars as may be prescribed.

[(2) The record-of-rights mentioned in sub-section (1) shall beprepared during a [revenue survey] or whenever the StateBGovernment may, by notification, so direct.]

114. Land records.- In addition to the map and Bhoo AdhikarPustikas, there shall be prepared for each village a khasra or fieldbook and such other land records as may be prescribed.

C116. Disputes regarding entry in khasra or in any other landrecords –

(1) If any person is aggrieved by an entry made in the landrecords prepared under section 114 in respect of mattersother than those referred to in section 108, he shall apply tothe Tahsildar for its corrections within one year of the dateof such entry.

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(2) The Tahsildar shall, after making such enquiry as he maydeem fit, pass necessary orders in the matter.

121. Power to make rules for land records –

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The State Government may make rules for regulating thepreparation, maintenance and revision of land recordsrequired for the purposes of this Code.

158. Bhumiswami- [(1)] Every person who at the time of cominginto force of this Code, belongs to any of the following classesFshall be called a Bhumiswami and shall have all the rights and besubject to all the liabilities conferred or imposed upon a Bhumiswamiby or under this Code namely- (a)every person in respect of land held by him in theMahakoshal region in Bhumiswami or Bhumidhari rights inGaccordance with the provisions of the Madhya PradeshLand Revenue Code, 1954 (II of 1955); (b)every person in respect of land held by him in the MadhyaBharat region as a Pakka tenant or as a Muafidar, Inamdar H

or Concessional holder, as defined in the Madhya BharatLand Revenue and Tenancy Act, Samwat 2007 (66 of 1950);

(c) every person in respect of land held by him in the Bhopalregion as an occupant s defined in the Bhopal State LandRevenue Act, 1932 (IV of 1932); B

160. Revocation of exemption from liability for landrevenue-

(1) Every Muafi of Inam land, wherever situate, which washeretofore exempted from payment of the whole or part ofthe land revenue by a special grant from the GovernmentCor under the provisions of any law for the time being inforce or in pursuance of any other instrument shall,notwithstanding anything contained in any such grant, lawor instrument be liable from the commencement of therevenue year next following the coming into force of thisCode, to the payment of full land revenue assessable thereon.D

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(2) Where any such Muafi or Inam land is held for themaintenance or upkeep of any public religious or charitableinstitution, the State Government may, on the application ofsuch institution, in the prescribed form [and made withinsuch time as may be prescribed] grant to it such annuitynot exceeding the amount of the exemption from landrevenue enjoyed by it, as may be considered reasonablefor the proper maintenance or upkeep of such institution orfor the continuance of service rendered by it.

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258. General rule making power.-

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(1) The State Government may make rules generally for thepurpose of carrying into effect the provisions of this Code.

(2) In particular and without prejudice to the generality of theforegoing powers such rules may provide for- G

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(xii) the regulation of the conduct of revenue survey orsettlement under section 91-A;

(xxii) the prescription of the form of, and the additionalparticulars to be entered in the papers to be includedin the record of rights under section 108; A

(xxv) (a) prescription of other land records under section114(1), B

(b) prescription of fee on the payment of whichRasid Bahi shall be provided under section 114 (2)and the prescription of entries which it shall contain;

(xxvii) preparation and maintenance and revision of landrecords under section 121"

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7. We have heard the learned counsel for the parties and find thatthere is lack of clarity in the High Court in regard to the legaljurisprudence. Different judgments have been referred to in respect ofrights of the priests as to whether they can be treated as Bhumiswamior if they only hold the temple land for the purpose of management ofDthe property of the temple, which actually vests with the deity.

8. One of the earliest judgments on the right of a priest wasrendered by the Division Bench of Madhya Pradesh High Court reportedas Pancham Singh v. Ramkishandas Guru Ramdas & Ors.[5]. Section13 of the Qawaid Muafidaran Jujve Araji, Samwat 1991[6] was examinedEas to the remedy of ejectment of a pujari who claimed status of MourushiKashtakar as under Section 248 (1) of the Code or by way of a civil suit.It was held that a Pujari is not a Kashtkar Mourushi, i.e., tenant incultivation or a government lessee or an ordinary tenant of the Maufilands but holds such land on behalf of the Aukaf Department for theFpurpose of management. The High Court held as under:

“7. …… The Maufi lands all the while belonged to theGovernment. The former Pujari was, therefore, not a KashtakarMourusi or a Government lessee or an ordinary tenant of themaufi lands, but was merely holding them on behalf of the AukafDepartment for purposes of management.G

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12. On a plain reading, the definition excludes a Pujari. The formerPujari was, therefore, not a Kashtakar Mourushi of the maufi 5 AIR 1972 MP 14

H6 Hereinafter referred to as the ‘Gwalior Act’

land, but was merely holding them on behalf of Aukaf Departmentfor purposes of management. Under the 2[nd] Proviso to Section365 of the Qanoon Mai, Gwalior, he had no right of transfer.

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16. We are, therefore, of the view that the former Pujari had noother status than that of a manager of the lands on behalf of theAukaf Department. While it is accepted before us that the formerPujari had no right of transfer by mortgage or sale, it is urged thatthere was no restriction on sub-letting. It is also urged that theterms “Mourushi Kashtakar” and “Dakhilkar Kashtakar BilaLagani” were synonymous and that, as every Mourushi Kashtakarhad the right to sub-let, it necessarily follows that a DakhilkarKashtakar Bila Lagani had also a similar right. We are unable toagree with this line of reasoning. It would be repugnant to thenature of the grant itself to clothe such a person with a right oftransfer of any kind. The whole purpose of the grant, which wasfor the upkeep of the temple, would be frustrated if the maufilands were allowed to be sublet by the Pujari and new rights createdin favour of a stranger.

17. Where a grant of land is made in consideration for service tobe rendered by a grantee, in lieu of wages, it is an implied conditionof the grant that if the services are not performed or are notrequired, the grant can be resumed.The Parwana expressely statedthat the grant in favour of the former Pujari was resumable forbreach of any of the conditions set out therein, or upon his deathor removal. The death of the former Pujari was, in the instantcase, the terminal point. That being so, the grant lapsed with hisdeath. As the grant created no interest in favour of the formerPujari, whatever rights the petitioners father, ThakurMurlidnarsingh had, also lapsed and he became a rank trespasser.”

(Emphasis Supplied)

9. This Court in a judgment reported as Mst Kanchaniya andOthers v. Shiv Ram and Others[7] considered the Gwalior Act as wellas the Code. The decision of the High Court in Pancham Singh wasapproved, and it was held as under:

7 AIR 1992 SC 1239

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A“15. Shri Shiv Dayal has submitted that the learned Judges of theDivision Bench of the High Court were in error in holding that aPujari was not a Kashtakar Mourushi of the maufi land and thatthe said finding is contrary to the language of Section 13 of KawaidMaufidaran wherein it is clearly stated that the Pujari would havethe rights of a Kashtakar Mourushi. According to Shri Shiv DayalBthe only limitation on the rights of the Pujari as a KashtakarMourushi was that contained in Section 265 of the Qanoon Malwhereby he was precluded from selling or mortgaging the maufilands but there was no provision restricting his right to create alease for cultivation of the lands. We are unable to agree. AlthoughCunder Section 13 of Kawaid Maufidaran, the right of a KashtakarMourushi have been conferred on the Pujari and under 265 of theQanoon Mal, the restriction on his right was with regard to saleand mortgage only but it cannot be ignored that under Section 13of Kawaid Maufidaran the right of a Kashtakar Mourushi whichhave been conferred on the Pujari is subject to the overridingDcondition that in case he does not perform his duties properly, hecan be removed and another Pujari can be appointed and a pattacould be issued in his favour. This is also borne out by definition ofthe expression ‘Kashtakar Mourushi’ in Section 2(29) of theQanoon Mal which imposes the condition that the AukafEDepartment would be entitled to dispossess, without an order ofthe court, the Pujari who obtains the right of Kashtakar Mourushion the basis of Kawaid Maufidaran and who does not render hisservices properly. The matter is further made clear by theprescribed form of the Parwana which is issued to the Pujariwherein it is also clearly mentioned that Pujari does not have anyFright in the land and his status is that of a manager and that hecould get the land cultivated either himself or through others sothat the income derived therefrom could be applied towards worshipand upkeep of the temple and that the grant would be resumedfor breach of any of the conditions or upon the death of the formerGPujari. In other words, the rights of the Pujari do not stand on thesame footing as those of a Kashtakar Mourushi in the ordinarysense who was entitled to all rights including the right to sell ormortgage. We are, therefore, in agreement with the view of theDivision Bench of the Madhya Pradesh High Court inPanchamsingh case that a Pujari had no other status than that of H

the manager functioning under the control of the Aukaf Departmentand he had no right to transfer, either by way of sale or mortgageor by lease, the land entrusted to him. In that view of the matter,it must be held that the patta granted in favour of Malkhan byVasudev Rao, father of respondent 1, was not valid and did notconfers any right or interest on Malkhan in the land covered bythe said patta.” (Emphasis Supplied)

10. This Court further held that temple land does not fall in any ofthe excepted categories in Section 2(z-3), therefore, it was unoccupiedland and set apart for a public purpose, i.e., for the upkeep of the temple.It was thus held that Patta granted in favour of Malkhan to cultivate theland in dispute came to an end on the death of Malkhan and the possessionof the appellant over the land in dispute as legal heirs of Malkhan cannotbe said to be authorised by respondent No.1.

“19. The land in dispute does not fall in any of the exceptedcategories mentioned in Section 2(z-3). It must, therefore, be heldto be unoccupied land. Since it was set apart for a public purpose,viz., for the upkeep of temple, it can be said to be land set apartfor a special purpose under clause (j) of sub-section (1) of Section237 of the Code. What has to be seen is whether the possessionof Malkhan of the same was unauthorised. It has been urged onbehalf of the appellants that the possession of Malkhan could notbe said to be unauthorised on the date of the filing of the applicationby Respondent 1 in view of the fact that Vasudev Rao, father ofRespondent 1, had granted a patta permitting Malkhan to cultivatethe land during his (Malkhan’s) lifetime and after the death ofVasudev Rao, Respondent 1 had also granted a patta permittingMalkhan to continue in cultivation of the land in dispute and hadbeen receiving Rs 100 annually as rent from Malkhan. …….…Inview of the death of Malkhan during the pendency of the writpetition in the High Court, the question whether Respondent 1 hasgranted a patta permitting Malkhan to cultivate the land in disputeduring his lifetime, does not survive because even if it is held thatthe patta granted in favour of Malkhan by Respondent 1 permittedMalkhan to cultivate the land in dispute during his lifetime, thesaid authority under which Malkhan was in possession of thedisputed land came to an end on the death of Malkhan and thepossession of the appellants over the land in dispute after the A

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Adeath of Malkhan cannot be said to be authorised by Respondent1.”

11. A circular was issued on 28.5.1979 regarding the Devesthaniland in respect to control and management of the land attached to thetemples, in accordance with the manner mentioned in the circular. In theBsaid circular, there was a restriction that the agricultural land owned byreligious institutions should not be leased out for a period of more than 3years. The priests were allowed to lease up to first 10 acres of land forself-cultivation for maintenance and for management of temple withoutany auction and without any lease rent. Another 10 acres could be givento the Pujari for his self-agricultural purposes but on payment of leaseCrent. Such rent was to be deposited in the name of the deity and could beused for the maintenance of the temple. The remaining land could beleased by auction.

12. The policy of auction was challenged by way of a writ petition.The said writ petition was allowed. The order passed by learned SingleDJudge was challenged in appeal in a judgment reported as State of M.P.and others v. Mandir Shri Khande Rao[8]. The Bench relied upon theearlier Division Bench judgment reported as Ghanshyamdas II.However, while referring to the Gwalior Act, the Court held as under:

“13. We are of the considered opinion that the provisions containedEin Regulation 13 clearly envisaged the continuance of the Muafiand the rights vesting in the deity in respect of its propertiesincluding the agricultural holdings till the vesting of the ownershipthereof in the State under the Management of its department of“Aukaf” relating to ‘Devasthan’. It is obvious, therefore, that soFlong as the rights of Muafidar were not extinguished vesting theproperties including the agricultural holdings in the State and therevenue records were corrected showing the same as ‘MilkiatSarkar’ under the management of department of Aukaf relatingto Devasthan there could be no occasion for interfering in themanagement of the holding/land vesting in the Deity/DevasthanGin any manner including the grant of temporary leases for thepurpose of cultivation taking recourse to auction treating theholdings of the deity as ‘Milkiat Sarkar’ even though none of theconditions contemplated under Regulation 13 stood satisfied.”

13. The Court held that, with respect to the State’s right to auctionproperty of the temple, once the land is vested with the deity/temple, theState cannot have a right to auction the property of the temple.

14. In Ghanshyamdas I, the learned Single Bench was notapprised of the judgments of the Division Bench in Pancham Singh orof this Court in Kanchaniya, and the same are not referred in thejudgment. The Single Bench thus held that the proprietary rights conferredon a pujari could not be brought to an end by an executive instruction.The said judgment was partly overruled in Ghanshyamdas II.

15. The circular dated 12.11.1992 was issued wherein the nameof the Collector was directed to be recorded as a manager whereas thename of the Pujari of the concerned Devasthan was to be recorded inColumn No. 12. The said circular was under consideration before theDivision Bench in Ghanshyamdas II. It was held that the Pujaris haveno right to alienate the properties of the temple. They have to cultivatethe land or to get the land cultivated through their servants for themaintenance of temple and also perform the daily rituals. They do notacquire any right to alienate the property of the temple. The Court heldas under:- “13. The rights of Pujari have been considered in the case ofPancham Singh and Kanchaniya (supra) and a bare perusal ofRegulation 12 and 13 of the Regulations indicates that the Pujarishave no right to alienate the properties of the temple. They haveto cultivate the land or to get the land cultivated through theirservants for the maintenance of temple and its daily rituals. Theydo not acquire any right to alienate the property of the temple.14. In the case of Pancham Singh (supra), it is held that the Pujarishave no right to alienate the property of the temple in any manner.Thus the Regulations 12 and 13 of the Regulations are plain andsimple and must receive its legal meaning. The Pujari has no otherstatus than that of a manager. He could get the land cultivatedeither himself or through servants, but he had no right to alienatethem lands in any manner. It cast upon him a duty to keep the landunder cultivation so that the income derived therefrom could beapplied towards Pooja and upkeep of the temple. All the Muafilands belong to the Government. Pujaris not Kashtkar Mourushiof Government lossee or even the tenants of the Muafi lands butwere merely holding the land either on behalf of the Aukuf AB

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ADepartment or on behalf of the deity of the temple for themanagement of the temple. Under regulations 12 and 13 of theRegulations, Pujaris do not have the absolute right of inheritance.23. From a bare reading of Regulations 12 and 13 of the Regulations,it is apparent that the Pujari’s right of inheritance is subject to hisBqualification and is not automatic.

24. No Pujari or trustee or manager can claim the title of religiousproperty. The property always belongs to the temple i.e. deity.25. In the case of Rameshchandra v. Janki Ballabhji (AIR1970 SC 532) it is held that the Pujari claiming proprietary rightsCamounts to mismanagement and is not fit to remain in possessionor to continue as Pujari. Therefore, the persons claiming title overthe property of the deity are not liable to continue as Pujari.

26. The executive inststruction issued by the Government is in theinterest of the deity and to avoid wastage or misuse of the propertyof the temple. Even if the name of Pujari is recorded in columnDNo. 12 of the Khasra it will not affect the rights of Pujari so longas he is performing his functions properly and cultivating the landor getting the land cultivated through servants.

27. It is therefore, held that placing the name of Pujari in columnNo. 12 of the Khasra does not affect the rights of Pujari. AsEdiscussed above and held in the cases of Kanchaniya andPancham Singh (supra), the Pujaris do not have any right in theproperty of temple. Therefore, recording of their name is columnNo. 12 will not affect their rights since their rights are not affectedas measures have been taken by the Government for the safetyFof the temple’s property, which cannot be faulted with. TheGovernment have always the right to issue directions or preparingnorms for preserving the property of deity. The judgment of thelearned single Bench is contrary to the judgment of Kanchaniya’scase (supra).

28. However, the directions of the State Government that thename of Pujari be deleted from all the columns of Khasra andshould not be recorded anywhere is quashed, as the learnedAdvocate General frankly conceded that directions is bad in law.”

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16. A circular dated 21.03.1994 was issued wherein it was directedHthat the name of the Pujari should not be recorded in any of the column of the Panchnama (revenue record). The Collector was directed tomaintain a separate register for maintaining the records of the priest.The High Court in Shri Krishna held that all those persons who weregranted land or were recognised as Inamdar (in the erstwhile IndoreState) for religious services rendered by them as Pujari have beenrecognised as Bhumiswami under the Code. The Pujaris were holdingland for rendering religious services; therefore, a right had been createdin their favour which could not be withdrawn by an executive instruction.The Court held as under:

“5A. From the discussion above, it is evident that all those personswho were granted land or were recognised as Inamdar (in theerstwhile Indore State) for the religious services rendered by themas Pujari of the Temple have been recognised to be aBhhomiswami under the Code and their names appeared as suchin Revenue Records, since they were holding land for renderingreligious services as Pujari of the Temple and the land was grantedspecifically for that purpose, the name of the Collector as Manageralong with these pujaris was directed to be shown. This longpossession and recording of their names in revenue records asBhoomiswami or Managers has definitely created a right in theirfavour. It is an established principle of law that if any right hasbeen vested in a person by certain statutory provisions, the samecannot be withdrawn by an executive instruction. Even if a personis required to be deprived of his vested right in a property, a legalprocedure for the same will have to be adopted. If the StateGovernment of MP feels that the recording of name of suchpersons as Bhoomiswami is non-est, then too it will have to givea notice to the person and an opportunity of hearing and aftermaking due enquiry followed by a reasoned order (if it is found assuch), the order for modification, corrections and change in therecord can be done.”

17. On the other hand, there are some judgments taking differentview within the High Court including the one reported as Sadashiv Giri& Ors. v. Commissioner, Ujjain & Ors.[9] wherein an argument wasraised that the temple is in possession of land. However, the Court heldthat how could the temple have such possession, therefore, it was thePujari who had been conferred the right to upkeep and perform puja by 9 1985 RN 317

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Athe then Jagirdars. The Pujaris were the Inamdars of the land in questionand thus became Bhumiswami when the Code came into force on02.10.1959. The said judgment is clearly erroneous as the presiding deityof the temple is the owner of the land attached to the temple. The Pujariis only to perform puja and to maintain the properties of the deity. Infact, the Constitution Bench in a judgment reported as M. Siddiq (Dead)BThrough Legal Representatives v. Mahant Suresh Das andOthers[10] held as under:

“511. …….. A pujari is merely a servant or appointee of a shebaitand gains no independent right as a shebait despite having conductedceremonies over a period of time. All the evidence relied upon toCsupport the claim of late Baba Abhiram Das is restricted to hishaving performed puja at the disputed premises and does not conferany shebaiti rights.”

18. Hence, the Division Bench judgment in Shri Krishna hasconferred the status of Bhumiswami on the priest but without bringingDthe judgment in Pancham Singh before the notice of the Court. SuchJudgment has been rendered in ignorance of the binding Division Benchjudgment which is supported by the law laid by Supreme Court in Mst.Kanchaniya. The judgment in Sadashiv Giri is in respect of action ofauction without the authority of law. The judgment in Pancham SinghEwas cited but question was not examined as the petitioners were said totrespassers by the State. The High Court found that the petitioners beingin possession can be deprived of possession only in accordance withlaw.

19. In the present case, the question which is required to be decidedFis whether a priest can be treated as Bhumiswami under the MadhyaBharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of1950) and as a consequence under the Code. The reliance of therespondent is on Gwalior Act. In some of the judgments mentioned above,the provisions of Gwalior Act have been described as ‘Regulations’ andin some as ‘Sections’. Since it appears to be issued by the then ruler ofGGwalior, the same has to be treated as a statute, having a force of lawapplicable in the erstwhile State of Gwalior.

20. This question has already been considered by the courts inPancham Singh, which has further been affirmed by Kanchaniya. The H10 (2020) 1 SCC 1

Law is clear on the distinction that the Pujari is not a Kashtkar Mourushi,i.e., tenant in cultivation or a government lessee or an ordinary tenant ofthe maufi lands but holds such land on behalf of the Aukaf Departmentfor the purpose of management. The Pujari is only a grantee to managethe property of the deity and such grant can be reassumed if the Pujarifails to do the task assigned to him, i.e., to offer prayers and manage theland. He cannot be thus treated as a Bhumiswami. The Kanchaniyafurther clarifies that the Pujari does not have any right in the land and hisstatus is only that of a manager. Rights of pujari do not stand on thesame footing as that of Kashtkar Mourushi in the ordinary sense whoare entitled to all rights including the right to sell or mortgage.

21. In a judgment reported as Ramchand (Dead) by LegalRepresentatives v. Thakur Janki Ballabhji Maharaj and Another[11],it was held that if the Pujari claims proprietary rights over the propertyof the temple, it is an act of mismanagement and he is not fit to remain inpossession or to continue as a Pujari.

22. The contrary view expressed by the High Court inGhanshyamdas I, Sadashiv Giri and Shri Krishna does not lay downgood law in view of binding precedent of the Division Bench of the HighCourt in Pancham Singh as also of this Court in Kanchaniya. All thesejudgments presenting a contrasting view had not noticed the said bindingprecedents dealing with the rights of priest under the Gwalior Act.

23. Taking into consideration the past precedents, and the factthat under the Gwalior Act, Pujari had been given right to manage theproperty of the temple, it is clear that that does not elevate him to thestatus of Kashtkar Mourushi (tenant in cultivation).

24. The ancillary question which arises is whether the priest isInamdar or Maufidar within the meaning of Section 158 (1)(b) of theCode. Such provision contemplates that the rights of every person inrespect of land held by him in the Madhya Bharat region i.e. area oferstwhile Gwalior and Holkar as a Pakka tenant or as a Muafidar, Inamdaror Concessional holder shall be protected as Bhumiswami. The priestdoes not fall in any of the clauses as mentioned in Section 158(1)(b) ofthe Code. The maufi was granted to the property of temples from paymentof land revenue. Such maufi was not granted to a manager. Even Inamgranted by the Jagirdar or the ruler to a priest is only to manage the A

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Aproperty of the temple and not confer ownership right on the priest.Therefore, in view of the judgment in Pancham Singh and also of thisCourt in Kanchaniya, the priest cannot be treated to be either a Muafidaror Inamdar in terms of Madhya Bharat Land Revenue and TenancyAct, Samvat 2007 (Act No. 66 of 1950) or in terms of Gwalior Act.Since the priest cannot be treated to be Bhumiswami, they have no rightBwhich could be protected under any of the provisions of the Code.

25. Another question which arises is whether the StateGovernment by way of executive instructions can order the deletion ofname of Pujari from the revenue record and/or to insert the name of aCollector as manager of the temple. In Ghanshyamdas II, it was heldCthat even if temple was being managed by the Pujari, his name is requiredto be mentioned as Pujari along with name of deity. We do not find anymandate in any of the judgments to hold that the name of Pujari ormanager is required to be mentioned in the revenue record.

26. In terms of Section 108, 109 and 110 of the Code, Rules hadDbeen framed initially as Appendix X. Form A has been prescribed as perRule 2. Later such Rules were substituted by another Rules publishedon 15.5.1964 and Form I was prescribed to maintain the records of therights. Such Rules have been further substituted on 20[th] December 1983,published in the Madhya Pradesh Gazette. The Column 3 of such FormEis to contain name and address of the occupier, whereas Column 4 isrequired to contain name of the tenant or sub-lessee of an occupancytenant of the Bhumiswami. Column 12 is meant for remarks. The relevantRules read as under:- Part II – KHASRA.

F“6. The Patwari shall prepare each agricultural year a khasra foreach village that has been completely surveyed in his circle inForm I.

7. The khasra shall be written up in the field by the Patwari afterlocal enquiry and actual inspections. A separate entry shall beGmade for every plot, and every plot, whether cultivated or notshall be entered.

Provided that small baris situated within the village sideand included in the village abadi plot, shall not be shown separatelybut included in the abadi area.H

8. Entries shall be made by the Patwari according to facts foundby him during local inspection.

9. (a) A fresh volume of the khasra shall be prepared every fifthyear, in Form I. The Patwari shall enter each agricultural year thechanges that have occurred in the columns provided for thepurpose:

Provided that the Collector in his discretion may order afresh volume of the khasra in any village to be prepared at aninterval shorter than five years.

(b) The Collector shall prepare a roster and arrange thepreparation of the first Khasra after settlement, so that thepreparation of all the khasras in a circle shall not fall due in oneand the same year.”

27. In the ownership column, the name of the deity alone is requiredto be mentioned, as the deity being a juristic person is the owner of theland. The occupation of the land is also by the deity which is carried outby the servant or the managers on behalf of the deity. Therefore, thename of the manager or that of the priest is not required to be mentionedin the column of occupier as well. In Ghanshyamdas II, it was heldthat if the name of the Pujari is recorded in the column No. 12 i.e.column of remarks, it will not affect the rights of the Pujari so long as heis performing his functions properly and cultivating the land or gettingthe land cultivated through servants. Therefore, the name of the Pujaricannot be mandated to be recorded either in the column of ownership oroccupancy but may be recorded in the remark’s column.

28. No rule has been brought to the notice that the name of themanager has to be recorded in the land records. In the absence of anyprohibition either in the statute or in the rules, the executive instructioncan be issued to supplement the statute and the rules framed thereunder.Such instructions do not contravene any of the provisions of the Code orthe rules. Therefore, they cannot be said to be illegal or in excess of theauthority vested in the State Government.

29. However, we find that the name of the Collector as managercannot be recorded in respect of property vested in the deity as theCollector cannot be a manager of all temples unless it is a temple vestedwith the State. Still further, this Court in a judgment reported as Deoki A

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ANandan v. Murlidhar and Ors.[12] has drawn the distinction between apublic and a private temple. This Court held as under:

“4. The question that arises for decision in this appeal whetherthe Thakurdwara of Sri Radhakrishnaji at Bhadesia is a publicendowment or a private one is one of mixed law and fact.BIn Lakshmidhar Misra v. Ranga Lal [(1949) LR 76 IA 271] inwhich the question was whether certain lands had been dedicatedas cremation ground, it was observed by the Privy Council that itwas “essentially a mixed question of law and fact”, and that whilethe findings of fact of the lower appellate court must be acceptedas binding, its “actual conclusion that there has been a dedicationCor lost grant is more properly regarded as a proposition of lawderived from those facts than as a finding of fact itself”. In thepresent case, it was admitted that there was a formal dedication;and the controversy is only as to the scope of the dedication, andthat is also a mixed question of law and fact, the decision of whichDmust depend on the application of legal concepts of a public and aprivate endowment to the facts found, and that is open toconsideration in this appeal.

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7. When once it is understood that the true beneficiaries of religiousEendowments are not the idols but the worshippers, and that thepurpose of the endowment is the maintenance of that worship forthe benefit of the worshippers, the question whether an endowmentis private or public presents no difficulty. The cardinal point to bedecided is whether it was the intention of the founder that specifiedFindividuals are to have the right of worship at the shrine, or thegeneral public or any specified portion thereof. In accordancewith this theory, it has been held that when property is dedicatedfor the worship of a family idol, it is a private and not a publicendowment, as the persons who are entitled to worship at theshrine of the deity can only be the members of the family, and thatGis an ascertained group of individuals. But where the beneficiariesare not members of a family or a specified individual, then theendowment can only be regarded as public, intended to benefitthe general body of worshippers.

In the light of these principles, we must examine the factsof this case. The materials bearing on the question whether theThakurdwara is a public temple or a private one may be consideredunder four heads: (1) the will of Sheo-Ghulam, Exhibit A-1, (2)user of the temple by the public, (3) ceremonies relating to thededication of the Thakurdwara and the installation of the idol withspecial reference to Sankcalpa and Uthsarga and (4) other factsrelating to the character of the temple.”

30. Another argument was raised that such circulars of the StateGovernment shall be applicable to the public temples and not to the privatetemples. A bare reading of the circulars does not make out such distinction.However, a temple in a house or which is not open to the public cannotbe treated to be a public temple. However, it will be a questionin eachcase whether it is a public temple or a private temple which can bedecided in the appropriate proceedings. For the purpose of the presentappeal, we find that the circular is applicable to all temples unless aparticular temple is able to satisfy the competent forum of it being aprivate temple.

31. In view of the above observations and discussions, the orderof the High Court cannot be sustained. The Circulars dated 21.3.1994and 7.6.2008 cannot be said to be illegal in any manner. The Writ petitionis thus dismissed and the appeal is allowed.

Ankit Gyan

Writ Petition dismissed and appeal allowed.

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