REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4850 OF 2021

(ARISING OUT OF SLP (CIVIL) NO. 33675 OF 2017)

The STATE OF MADHYA PRADESH & ORS. .....APPELLANT(S)

VERSUS

PUJARI UTTHAN AVAM KALYAN SAMITI & ANR.

.....RESPONDENT(S)

JUDGMENT

HEMANT GUPTA, J.

1. The order dated 14.06.2016 passed in an intra-court appeal by the

Division Bench of the Madhya Pradesh High Court is the subject matter

of challenge herein at the instance of State of Madhya Pradesh. The

learned Single Bench allowed the writ petition filed by Association of

Priests registered under the M.P. Society Registrikaran Adhiniyam 1973.

Such society has 251 members in the Districts of Dhar, Indore, Ratlam,

Signature Not Verified

Shajapur, Ujjain, Jhabua etc.
Digitally signed by
RASHI GUPTA
Date: 2021.09.06

2.
16:23:53 IST
Reason: The challenge in the writ petition was to quash the circulars dated

21.03.1994 and 07.06.2008 whereby the names of Pujari were ordered

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 to be deleted from the revenue record. The said writ petition was

allowed on 20.11.2013 relying upon the judgments of the High Court in

Ghanshyamdas v. State of M.P1 and Kashi Bhatti through LRs v.

State of M.P2. The learned Single Bench held that the circulars dated

12.11.1992 and 21.03.1994 were already quashed by the High Court in

the year 1995 and 1999 respectively and therefore there was no

justification on the part of the State Government to issue circular dated

07.06.2008 directing the Revenue Commissioner to follow the circular

dated 21.03.1994. Learned Single Bench held as under:

“The name of Collector is being mentioned as manager. It is true

that by mentioning the name of Collector as manager, properties
owned by the Temple were saved but at the same time the
properties could not be managed properly as it is not expected
from the Collector to manage the properties of the Temple. To
protect the interest of Pujari’s who are entitled to get the
benefits of the scheme which are being introduced by the
Government for the benefit of the agriculturist. To protect the
interest of making the law in that regard by suitable legislation
as the problem is lying in the Court in number of cases for last
30 years. In result the impugned order dated 07/06/08
(Annexure P/21) is quashed.”

3. In an intra-court appeal against the aforesaid findings, the High

Court referred to a judgment of Division Bench in State of M.P.

v. Ghanshyamdas3, an order passed against the order in writ

petition reported as Ghanshyamdas I. The Court inter alia held

that Pujaris had no right to alienate the properties of the temple.

1 1995 Revenue Nirnaya (RN) 235 (Hereinafter referred to as the ‘Ghanshyamdas I)

2 2009 R.N. 179
3 1999 R.N. 25 (Hereinafter referred to as the ‘Ghanshyamdas II)

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 They have rights only with respect to either cultivate the land or

get it cultivated through servants. The High Court further held

that if the temple was managed by 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 of the deity. The

Court held as under:

“The learned Writ Court relying on the decision of the cases of

State 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 continued
from their forefather, cannot be taken away by executive
instructions. There was no justification on the part of the State
Government to advice to Revenue Commissioner to follow
circular dated 21.03.1994, when the same was quashed. It is not
in dispute that as per Clause 5 of the Land Records Manual in
Column No.3 of Khasra Entries deals with the name of occupier;
Column No.4 deals with name of bhoomiswami or lessees or his
representatives while Column No.12 deals with the remarks.
Undisputedly, the land, which is owned by the temple or deity or
the land owned by temple or by the trust, name of the
deity/temple or trust, as the case may be, is required to be
mentioned in Column No.3. If the temple is managed by the
Pujari, then keeping in view the law laid down by this Court from
time to time, his name is required to be mentioned as Pujari
along with the name of the deity.”
(Emphasis supplied)

4. Before this Court, the argument of Mr. Saurabh Mishra, learned counsel

appearing for the appellant, is that the preparation of revenue records

including as to what entry should be incorporated in such record has

been prescribed in the M.P. Land Revenue Code, 1959 (for short “the

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 Code”). The State Government, in exercise of the powers conferred

under the Code, had issued executive instructions to delete the names

of Pujari from the revenue record so as to protect the temple properties

from unauthorized sale by the Pujaris. Learned counsel for the

appellant referred to the first circular issued by the State on

04.08.1969 in response to the complaints received that Maufi land

(land exempted from payment of revenue) was being recorded in

individual names and was being illegally transferred. It was directed

that Maufi was granted to a deity who was the owner of the temple and

the land appended was to be that of the deity alone. Thereafter,

another circular dated 12.04.1974 was issued highlighting the issue

that the land which belonged to the temple and not covered under the

Khasgi Trust was being misused by the Pujaris by way of sale or

mortgage. The Khasgi Trust was formed for the purpose of the

properties of Holkar family. Therefore, to save land which belongs to

the temple and not covered under the Khasgi Trust, in addition to the

name of Pujari, name of the Collector was to be recorded as manager

in the revenue record. The reference was made to Sections 108, 114

and 258 of the Code to support his arguments.

5. Mr. Lahoti, counsel of the respondents, submitted that the Pujaris have

been conferred Bhumiswami (ownership) rights, a right which cannot

be taken away by executive instructions. It was argued that in terms of

proviso to Section 57, the rights granted to the Pujaris have been

4
 protected and would remain unaffected by the Code. In terms of

Section 158, every person, in respect of land held in the Madhya

Bharat region as a Pakka tenant or as a Muafidar, Inamdar or

Concessional holder, as defined in the Madhya Bharat Land Revenue

and Tenancy Act, Samvat 2007 (Act No. 66 of 1950), confers

Bhumiswami rights on the pujari, which has further been protected by

a conjoint reading of Section 57 and Section 158 of the Code. The

Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No.

66 of 1950) was enacted 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 conferred proprietary rights to the priest which were initially

protected by the Madhya Bharat Land Revenue and Tenancy Act,

Samvat 2007 (Act No. 66 of 1950) and later by virtue of Section 158 of

the Code. The reliance was placed upon the judgment of the Division

Bench of the High Court in Shri Krishna v. State of M.P.4. Mr. Lahoti

relied upon Sections 57, 158 & 159 of the Code.

6. The provisions of the Code as are relevant for the present order read as

under:

“2. Definitions-
(1) In this Code, unless there is anything repugnant to
the subject or context,

xxx xxx xxx

4 2012 (4) MPLJ 466

5
 (z-3) “unoccupied land” means the land in a village
other than the abadi or service land, or the land
held by a Bhumiswami, a tenant or a
government lessee.

57. State ownership in all lands-

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

Provided that nothing in this section shall, save as

otherwise provided in this Code, be deemed to
affect any rights of any person subsisting at the
coming into force of this Code in any such property.

91A. Power to make rule-

The State Government may make rules for regulating
generally the conduct of a revenue survey or Settlement
under this Chapter.

108. Record of rights.- [(1)] A record-of-rights shall in

accordance with rules made in this behalf be prepared and
maintained for every village and such record shall include the
following particulars:-
(a) the names of all Bhumiswamis together with survey
numbers or plot numbers held by them and their area,
irrigated or unirrigated;
(b) the names of all occupancy tenants and Government
lessees together with survey numbers or plot numbers
held by them and their area irrigated or unirrigated;
(c) the nature and extent of the respective interests of such
persons and the conditions or liabilities, if any, attaching
thereto;
(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 be

prepared during a [revenue survey] or whenever the State
Government may, by notification, so direct.]

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

116. Disputes regarding entry in khasra or in any other

land records –

(1) If any person is aggrieved by an entry made in the land

records prepared under section 114 in respect of matters
other than those referred to in section 108, he shall apply
to the Tahsildar for its corrections within one year of the
date of such entry.

(2) The Tahsildar shall, after making such enquiry as he may

deem fit, pass necessary orders in the matter.

121. Power to make rules for land records –

The State Government may make rules for regulating the
preparation, maintenance and revision of land records
required for the purposes of this Code.

158. Bhumiswami- [(1)] Every person who at the time of

coming into force of this Code, belongs to any of the following
classes shall be called a Bhumiswami and shall have all the
rights and be subject to all the liabilities conferred or imposed
upon a Bhumiswami by or under this Code namely-

(a) every person in respect of land held by him in the

Mahakoshal region in Bhumiswami or Bhumidhari rights in
accordance with the provisions of the Madhya Pradesh
Land Revenue Code, 1954 (II of 1955);

(b) every person in respect of land held by him in the Madhya

Bharat region as a Pakka tenant or as a Muafidar, Inamdar
or Concessional holder, as defined in the Madhya Bharat
Land Revenue and Tenancy Act, Samwat 2007 (66 of
1950);

(c) every person in respect of land held by him in the Bhopal

region as an occupant s defined in the Bhopal State Land
Revenue Act, 1932 (IV of 1932);

160. Revocation of exemption from liability for land

revenue-

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

(2) Where any such Muafi or Inam land is held for the
maintenance or upkeep of any public religious or
charitable institution, the State Government may, on the
application of such institution, in the prescribed form [and
made within such time as may be prescribed] grant to it
such annuity not exceeding the amount of the exemption
from land revenue enjoyed by it, as may be considered
reasonable for the proper maintenance or upkeep of such
institution or for the continuance of service rendered by it.

258. General rule making power.-

(1) The State Government may make rules generally for the
purpose of carrying into effect the provisions of this Code.
(2) In particular and without prejudice to the generality of the
foregoing powers such rules may provide for-
xxx xxx xxx
(xii) the regulation of the conduct of revenue survey or
settlement under section 91-A;
(xxii) the prescription of the form of, and the additional
particulars to be entered in the papers to be
included in the record of rights under section 108;
(xxv) (a) prescription of other land records under
section 114(1),
(b) prescription of fee on the payment of which
Rasid Bahi shall be provided under section 114 (2)
and the prescription of entries which it shall
contain;
(xxvii) preparation and maintenance and revision of land
records under section 121”

7. We have heard the learned counsel for the parties and find that there

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 is lack of clarity in the High Court in regard to the legal jurisprudence.

Different judgments have been referred to in respect of rights of the

priests as to whether they can be treated as Bhumiswami or if they

only hold the temple land for the purpose of management of the

property of the temple, which actually vests with the deity.

8. One of the earliest judgments on the right of a priest was rendered by

the Division Bench of Madhya Pradesh High Court reported as

Pancham Singh v. Ramkishandas Guru Ramdas & Ors.5. Section

13 of the Qawaid Muafidaran Jujve Araji, Samwat 1991 6 was examined

as to the remedy of ejectment of a pujari who claimed status of

Mourushi Kashtakar 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 in cultivation or a government lessee or an ordinary tenant of

the Maufi lands but holds such land on behalf of the Aukaf Department

for the purpose of management. The High Court held as under:

“7. …… The Maufi lands all the while belonged to the

Government. The former Pujari was, therefore, not a Kashtakar
Mourusi or a Government lessee or an ordinary tenant of the
maufi lands, but was merely holding them on behalf of the Aukaf
Department for purposes of management.

xx xx xx

12. On a plain reading, the definition excludes a Pujari. The

former Pujari was, therefore, not a Kashtakar Mourushi of the
maufi land, but was merely holding them on behalf of Aukaf
Department for purposes of management. Under the 2 nd Proviso
to Section 365 of the Qanoon Mai, Gwalior, he had no right of

5 AIR 1972 MP 14
6 Hereinafter referred to as the ‘Gwalior Act’

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 transfer.

xx xx xx

16. We are, therefore, of the view that the former Pujari had
no other status than that of a manager of the lands on behalf of
the Aukaf Department. While it is accepted before us that the
former Pujari had no right of transfer by mortgage or sale, it is
urged that there was no restriction on sub-letting. It is also urged
that the terms “Mourushi Kashtakar” and “Dakhilkar Kashtakar
Bila Lagani” were synonymous and that, as every Mourushi
Kashtakar had the right to sub-let, it necessarily follows that a
Dakhilkar Kashtakar Bila Lagani had also a similar right. We are
unable to agree with this line of reasoning. It would be repugnant
to the nature of the grant itself to clothe such a person with a
right of transfer of any kind. The whole purpose of the grant,
which was for the upkeep of the temple, would be frustrated if
the maufi lands were allowed to be sublet by the Pujari and new
rights created in favour of a stranger.

17. Where a grant of land is made in consideration for service

to be rendered by a grantee, in lieu of wages, it is an implied
condition of the grant that if the services are not performed or
are not required, the grant can be resumed. The Parwana
expressely stated that the grant in favour of the former Pujari
was resumable for breach of any of the conditions set out
therein, or upon his death or removal. The death of the former
Pujari was, in the instant case, the terminal point. That being so,
the grant lapsed with his death. As the grant created no interest
in favour of the former Pujari, whatever rights the petitioners
father, Thakur Murlidnarsingh had, also lapsed and he became a
rank trespasser.”
(Emphasis Supplied)

9. This Court in a judgment reported as Mst Kanchaniya and Others v.

Shiv Ram and Others7 considered the Gwalior Act as well as the

Code. The decision of the High Court in Pancham Singh was

approved, and it was held as under:

“15. Shri Shiv Dayal has submitted that the learned Judges of

7 AIR 1992 SC 1239

10
the Division Bench of the High Court were in error in holding that
a Pujari was not a Kashtakar Mourushi of the maufi land and that
the said finding is contrary to the language of Section 13 of
Kawaid Maufidaran wherein it is clearly stated that the Pujari
would have the rights of a Kashtakar Mourushi. According to Shri
Shiv Dayal the only limitation on the rights of the Pujari as a
Kashtakar Mourushi was that contained in Section 265 of the
Qanoon Mal whereby he was precluded from selling or
mortgaging the maufi lands but there was no provision
restricting his right to create a lease for cultivation of the lands.
We are unable to agree. Although under Section 13 of Kawaid
Maufidaran, the right of a Kashtakar Mourushi have been
conferred on the Pujari and under 265 of the Qanoon Mal, the
restriction on his right was with regard to sale and mortgage
only but it cannot be ignored that under Section 13 of Kawaid
Maufidaran the right of a Kashtakar Mourushi which have been
conferred on the Pujari is subject to the overriding condition that
in case he does not perform his duties properly, he can be
removed and another Pujari can be appointed and a patta could
be issued in his favour. This is also borne out by definition of the
expression ‘Kashtakar Mourushi’ in Section 2(29) of the Qanoon
Mal which imposes the condition that the Aukaf Department
would be entitled to dispossess, without an order of the court,
the Pujari who obtains the right of Kashtakar Mourushi on the
basis of Kawaid Maufidaran and who does not render his services
properly. The matter is further made clear by the prescribed form
of the Parwana which is issued to the Pujari wherein it is also
clearly mentioned that Pujari does not have any right in the land
and his status is that of a manager and that he could get the
land cultivated either himself or through others so that the
income derived therefrom could be applied towards worship and
upkeep of the temple and that the grant would be resumed for
breach of any of the conditions or upon the death of the former
Pujari. In other words, the rights of the Pujari do not stand on the
same footing as those of a Kashtakar Mourushi in the ordinary
sense who was entitled to all rights including the right to sell or
mortgage. We are, therefore, in agreement with the view of the
Division Bench of the Madhya Pradesh High Court in
Panchamsingh case that a Pujari had no other status than that of
the manager functioning under the control of the Aukaf
Department and he had no right to transfer, either by way of
sale or mortgage or 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 by Vasudev Rao, father of respondent 1, was

11
 not valid and did not confers any right or interest on Malkhan in
the land covered by the said patta.” (Emphasis Supplied)

10. This Court further held that temple land does not fall in any of the

excepted categories in Section 2(z-3), therefore, it was unoccupied

land 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 the land in dispute came to an end on the death of Malkhan

and the possession of the appellant over the land in dispute as legal

heirs of Malkhan cannot be said to be authorised by respondent No.1.

“19. The land in dispute does not fall in any of the excepted
categories mentioned in Section 2(z-3). It must, therefore, be
held to 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 apart for a special purpose under clause (j) of sub-section (1)
of Section 237 of the Code. What has to be seen is whether the
possession of Malkhan of the same was unauthorised. It has
been urged on behalf of the appellants that the possession of
Malkhan could not be said to be unauthorised on the date of the
filing of the application by Respondent 1 in view of the fact that
Vasudev Rao, father of Respondent 1, had granted a patta
permitting Malkhan to cultivate the land during his (Malkhan's)
lifetime and after the death of Vasudev Rao, Respondent 1 had
also granted a patta permitting Malkhan to continue in
cultivation of the land in dispute and had been receiving Rs 100
annually as rent from Malkhan. …….…In view of the death of
Malkhan during the pendency of the writ petition in the High
Court, the question whether Respondent 1 has granted a patta
permitting Malkhan to cultivate the land in dispute during his
lifetime, does not survive because even if it is held that the patta
granted in favour of Malkhan by Respondent 1 permitted
Malkhan to cultivate the land in dispute during his lifetime, the
said authority under which Malkhan was in possession of the
disputed land came to an end on the death of Malkhan and the
possession of the appellants over the land in dispute after the
death of Malkhan cannot be said to be authorised by Respondent
1.”

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11. A circular was issued on 28.5.1979 regarding the Devesthani land in

respect to control and management of the land attached to the

temples, in accordance with the manner mentioned in the circular. In

the said circular, there was a restriction that the agricultural land

owned by religious institutions should not be leased out for a period of

more than 3 years. The priests were allowed to lease up to first 10

acres of land for self-cultivation for maintenance and for management

of temple without any auction and without any lease rent. Another 10

acres could be given to the Pujari for his self-agricultural purposes but

on payment of lease rent. Such rent was to be deposited in the name

of the deity and could be used for the maintenance of the temple. The

remaining land could be leased 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 Single Judge

was challenged in appeal in a judgment reported as State of M.P. and

others v. Mandir Shri Khande Rao8. The Bench relied upon the

earlier 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

contained in Regulation 13 clearly envisaged the continuance of
the Muafi and the rights vesting in the deity in respect of its
properties including the agricultural holdings till the vesting of
the ownership thereof in the State under the Management of its

8 1999 RN 392

13
 department of “Aukaf” relating to ‘Devasthan’. It is obvious,
therefore, that so long as the rights of Muafidar were not
extinguished vesting the properties including the agricultural
holdings in the State and the revenue records were corrected
showing the same as ‘Milkiat Sarkar’ under the management of
department of Aukaf relating to Devasthan there could be no
occasion for interfering in the management of the holding/land
vesting in the Deity/Devasthan in any manner including the
grant of temporary leases for the purpose of cultivation taking
recourse to auction treating the holdings of the deity as ‘Milkiat
Sarkar’ even though none of the conditions contemplated under
Regulation 13 stood satisfied.”

13. The Court held that, with respect to the State’s right to auction

property of the temple, once the land is vested with the deity/temple,

the State cannot have a right to auction the property of the temple.

14. In Ghanshyamdas I, the learned Single Bench was not apprised of the

judgments of the Division Bench in Pancham Singh or of this Court in

Kanchaniya, and the same are not referred in the judgment. The

Single Bench thus held that the proprietary rights conferred on 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 name of the

Collector was directed to be recorded as a manager whereas the name

of the Pujari of the concerned Devasthan was to be recorded in Column

No. 12. The said circular was under consideration before the Division

Bench in Ghanshyamdas II. It was held that the Pujaris have no right

to alienate the properties of the temple. They have to cultivate the

land or to get the land cultivated through their servants for the

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maintenance of temple and also perform the daily rituals. They do not

acquire any right to alienate the property of the temple. The Court held

as under:-

“13. The rights of Pujari have been considered in the case of

Pancham Singh and Kanchaniya (supra) and a bare perusal of
Regulation 12 and 13 of the Regulations indicates that the
Pujaris have no right to alienate the properties of the temple.
They have to cultivate the land or to get the land cultivated
through their servants for the maintenance of temple and its
daily rituals. They do not acquire any right to alienate the
property of the temple.

14. In the case of Pancham Singh (supra), it is held that the

Pujaris have no right to alienate the property of the temple in
any manner. Thus the Regulations 12 and 13 of the Regulations
are plain and simple and must receive its legal meaning. The
Pujari has no other status than that of a manager. He could get
the land cultivated either himself or through servants, but he
had no right to alienate them lands in any manner. It cast upon
him a duty to keep the land under cultivation so that the income
derived therefrom could be applied towards Pooja and upkeep of
the temple. All the Muafi lands belong to the Government.
Pujaris not Kashtkar Mourushi of Government lossee or even the
tenants of the Muafi lands but were merely holding the land
either on behalf of the Aukuf Department or on behalf of the
deity of the temple for the management of the temple. Under
regulations 12 and 13 of the Regulations, 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 his qualification and is not automatic.

24. No Pujari or trustee or manager can claim the title of

religious property. The property always belongs to the temple i.e.
deity.

25. In the case of Rameshchandra v. Janki Ballabhji (AIR 1970

SC 532) it is held that the Pujari claiming proprietary rights
amounts to mismanagement and is not fit to remain in
possession or to continue as Pujari. Therefore, the persons

15
 claiming title over the property of the deity are not liable to
continue as Pujari.

26. The executive inststruction issued by the Government is in

the interest of the deity and to avoid wastage or misuse of the
property of the temple. Even if the name of Pujari is recorded in
column No. 12 of the Khasra it will not affect the rights of Pujari
so long as he is performing his functions properly and cultivating
the land or getting the land cultivated through servants.

27. It is therefore, held that placing the name of Pujari in

column No. 12 of the Khasra does not affect the rights of Pujari.
As discussed above and held in the cases of Kanchaniya and
Pancham Singh (supra), the Pujaris do not have any right in the
property of temple. Therefore, recording of their name is column
No. 12 will not affect their rights since their rights are not
affected as measures have been taken by the Government for
the safety of the temple’s property, which cannot be faulted
with. The Government have always the right to issue directions
or preparing norms for preserving the property of deity. The
judgment of the learned single Bench is contrary to the
judgment of Kanchaniya’s case (supra).

28. However, the directions of the State Government that the

name of Pujari be deleted from all the columns of Khasra and
should not be recorded anywhere is quashed, as the learned
Advocate General frankly conceded that directions is bad in law.”

16. A circular dated 21.03.1994 was issued wherein it was directed that the

name of the Pujari should not be recorded in any of the column of the

Panchnama (revenue record). The Collector was directed to maintain a

separate register for maintaining the records of the priest. The High

Court in Shri Krishna held that all those persons who were granted

land or were recognised as Inamdar (in the erstwhile Indore State) for

religious services rendered by them as Pujari have been recognised as

Bhumiswami under the Code. The Pujaris were holding land for

16
 rendering religious services; therefore, a right had been created in 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

persons who were granted land or were recognised as Inamdar
(in the erstwhile Indore State) for the religious services rendered
by them as Pujari of the Temple have been recognised to be a
Bhhomiswami under the Code and their names appeared as such
in Revenue Records, since they were holding land for rendering
religious services as Pujari of the Temple and the land was
granted specifically for that purpose, the name of the Collector
as Manager along with these pujaris was directed to be shown.
This long possession and recording of their names in revenue
records as Bhoomiswami or Managers has definitely created a
right in their favour. It is an established principle of law that if
any right has been vested in a person by certain statutory
provisions, the same cannot be withdrawn by an executive
instruction. Even if a person is required to be deprived of his
vested right in a property, a legal procedure for the same will
have to be adopted. If the State Government of MP feels that the
recording of name of such persons as Bhoomiswami is non-est,
then too it will have to give a notice to the person and an
opportunity of hearing and after making due enquiry followed by
a reasoned order (if it is found as such), the order for
modification, corrections and change in the record can be done.”

17. On the other hand, there are some judgments taking different view

within the High Court including the one reported as Sadashiv Giri &

Ors. v. Commissioner, Ujjain & Ors.9 wherein an argument was

raised that the temple is in possession of land. However, the Court held

that how could the temple have such possession, therefore, it was the

Pujari who had been conferred the right to upkeep and perform puja by

the then Jagirdars. The Pujaris were the Inamdars of the land in

9 1985 RN 317

17
 question and thus became Bhumiswami when the Code came into

force on 02.10.1959. The said judgment is clearly erroneous as the

presiding deity of the temple is the owner of the land attached to the

temple. The Pujari is only to perform puja and to maintain the

properties of the deity. In fact, the Constitution Bench in a judgment

reported as M. Siddiq (Dead) Through Legal Representatives v.

Mahant Suresh Das and Others10 held as under:

“511. …….. A pujari is merely a servant or appointee of a

shebait and gains no independent right as a shebait despite
having conducted ceremonies over a period of time. All the
evidence relied upon to support the claim of late Baba Abhiram
Das is restricted to his having performed puja at the disputed
premises and does not confer any shebaiti rights.”

18. Hence, the Division Bench judgment in Shri Krishna has conferred the

status of Bhumiswami on the priest but without bringing the judgment

in Pancham Singh before the notice of the Court. Such Judgment has

been rendered in ignorance of the binding Division Bench judgment

which is supported by the law laid by Supreme Court in Mst.

Kanchaniya. The judgment in Sadashiv Giri is in respect of action of

auction without the authority of law. The judgment in Pancham Singh

was cited but question was not examined as the petitioners were said

to trespassers by the State. The High Court found that the petitioners

being in possession can be deprived of possession only in accordance

with law.

10 (2020) 1 SCC 1

18
19. In the present case, the question which is required to be decided is

whether a priest can be treated as Bhumiswami under the Madhya

Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of

1950) and as a consequence under the Code. The reliance of the re-

spondent is on Gwalior Act. In some of the judgments mentioned

above, the provisions of Gwalior Act have been described as ‘Regula-

tions’ and in some as ‘Sections’. Since it appears to be issued by the

then ruler of Gwalior, the same has to be treated as a statute, having a

force of law applicable in the erstwhile State of Gwalior.

20. This question has already been considered by the courts in Pancham

Singh, which has further been affirmed by Kanchaniya. The 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 of

the maufi lands but holds such land on behalf of the Aukaf Department

for the purpose of management. The Pujari is only a grantee to man-

age the property of the deity and such grant can be reassumed if the

Pujari fails to do the task assigned to him, i.e., to offer prayers and

manage the land. He cannot be thus treated as a Bhumiswami. The

Kanchaniya further clarifies that the Pujari does not have 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 of Kashtkar Mourushi in the ordi-

19
 nary sense who are entitled to all rights including the right to sell or

mortgage.

21. In a judgment reported as Ramchand (Dead) by Legal Representa-

tives v. Thakur Janki Ballabhji Maharaj and Another 11, it was held

that if the Pujari claims proprietary rights over the property of the tem-

ple, it is an act of mismanagement and he is not fit to remain in pos-

session or to continue as a Pujari.

22. The contrary view expressed by the High Court in Ghanshyamdas I,

Sadashiv Giri and Shri Krishna does not lay down good law in view

of binding precedent of the Division Bench of the High Court in Pan-

cham Singh as also of this Court in Kanchaniya. All these judgments

presenting a contrasting view had not noticed the said binding prece-

dents dealing with the rights of priest under the Gwalior Act.

23. Taking into consideration the past precedents, and the fact that under

the Gwalior Act, Pujari had been given right to manage the property of

the temple, it is clear that that does not elevate him to the status of

Kashtkar Mourushi (tenant in cultivation).

24. The ancillary question which arises is whether the priest is Inamdar or

Maufidar within the meaning of Section 158 (1)(b) of the Code. Such

11 AIR 1970 SC 532

20
 provision contemplates that the rights of every person in respect of

land held by him in the Madhya Bharat region i.e. area of erstwhile

Gwalior and Holkar as a Pakka tenant or as a Muafidar, Inamdar or Con-

cessional holder shall be protected as Bhumiswami. The priest does

not fall in any of the clauses as mentioned in Section 158(1)(b) of the

Code. The maufi was granted to the property of temples from payment

of land revenue. Such maufi was not granted to a manager. Even Inam

granted by the Jagirdar or the ruler to a priest is only to manage the

property of the temple and not confer ownership right on the priest.

Therefore, in view of the judgment in Pancham Singh and also of this

Court in Kanchaniya, the priest cannot be treated to be either a

Muafidar or Inamdar in terms of Madhya Bharat Land Revenue and Ten-

ancy Act, 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

right which could be protected under any of the provisions of the Code.

25. Another question which arises is whether the State Government by

way of executive instructions can order the deletion of name of Pujari

from the revenue record and/or to insert the name of a Collector as

manager of the temple. In Ghanshyamdas II, it was held that even if

temple was being managed by the Pujari, his name is required to be

mentioned as Pujari along with name of deity. We do not find any man-

21
 date in any of the judgments to hold that the name of Pujari or man-

ager is required to be mentioned in the revenue record.

26. In terms of Section 108, 109 and 110 of the Code, Rules had been

framed initially as Appendix X. Form A has been prescribed as per Rule

2. Later such Rules were substituted by another Rules published on

15.5.1964 and Form I was prescribed to maintain the records of the

rights. Such Rules have been further substituted on 20 th December

1983, published in the Madhya Pradesh Gazette. The Column 3 of such

Form is to contain name and address of the occupier, whereas Column

4 is required to contain name of the tenant or sub-lessee of an occu-

pancy tenant of the Bhumiswami. Column 12 is meant for remarks.

The relevant Rules read as under:-

Part II – KHASRA.

“6. The Patwari shall prepare each agricultural year a khasra

for each village that has been completely surveyed in his circle
in Form I.

7. The khasra shall be written up in the field by the Patwari af-

ter local enquiry and actual inspections. A separate entry shall
be made for every plot, and every plot, whether cultivated or
not shall be entered.

Provided that small baris situated within the village

side and included in the village abadi plot, shall not be shown
separately but included in the abadi area.

8. Entries shall be made by the Patwari according to facts

found by him during local inspection.

22
 9. (a) A fresh volume of the khasra shall be prepared every
fifth year, in Form I. The Patwari shall enter each agricultural
year the changes that have occurred in the columns provided
for the purpose:

Provided that the Collector in his discretion may or-

der a fresh volume of the khasra in any village to be prepared
at an interval shorter than five years.

(b) The Collector shall prepare a roster and arrange the

preparation of the first Khasra after settlement, so that the
preparation of all the khasras in a circle shall not fall due in one
and the same year.”

27. In the ownership column, the name of the deity alone is required to be

mentioned, as the deity being a juristic person is the owner of the land.

The occupation of the land is also by the deity which is carried out by

the servant or the managers on behalf of the deity. Therefore, the

name of the manager or that of the priest is not required to be men-

tioned in the column of occupier as well. In Ghanshyamdas II, it was

held that 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

he is performing his functions properly and cultivating the land or get-

ting the land cultivated through servants. Therefore, the name of the

Pujari cannot be mandated to be recorded either in the column of own-

ership or occupancy but may be recorded in the remark’s column.

28. No rule has been brought to the notice that the name of the manager

has to be recorded in the land records. In the absence of any prohibi-

tion either in the statute or in the rules, the executive instruction can
23
 be issued to supplement the statute and the rules framed thereunder.

Such instructions do not contravene any of the provisions of the Code

or the rules. Therefore, they cannot be said to be illegal or in excess of

the authority vested in the State Government.

29. However, we find that the name of the Collector as manager cannot be

recorded in respect of property vested in the deity as the Collector can-

not be a manager of all temples unless it is a temple vested with the

State. Still further, this Court in a judgment reported as Deoki Nandan

v. Murlidhar and Ors.12 has drawn the distinction between a public

and a private temple. This Court held as under:

“4. The question that arises for decision in this appeal

whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a
public endowment or a private one is one of mixed law and fact.
In Lakshmidhar Misra v. Ranga Lal [(1949) LR 76 IA 271] in which
the question was whether certain lands had been dedicated as
cremation ground, it was observed by the Privy Council that it
was “essentially a mixed question of law and fact”, and that
while the findings of fact of the lower appellate court must be ac-
cepted as binding, its “actual conclusion that there has been a
dedication or lost grant is more properly regarded as a proposi-
tion of law derived from those facts than as a finding of fact it-
self”. In the present case, it was admitted that there was a for-
mal dedication; and the controversy is only as to the scope of
the dedication, and that is also a mixed question of law and fact,
the decision of which must depend on the application of legal
concepts of a public and a private endowment to the facts found,
and that is open to consideration in this appeal.

xx xx xx

12 AIR 1957 SC 133

24
 7. When once it is understood that the true beneficiaries of
religious endowments are not the idols but the worshippers, and
that the purpose of the endowment is the maintenance of that
worship for the benefit of the worshippers, the question whether
an endowment is private or public presents no difficulty. The
cardinal point to be decided is whether it was the intention of the
founder that specified individuals are to have the right of
worship at the shrine, or the general public or any specified
portion thereof. In accordance with this theory, it has been held
that when property is dedicated for the worship of a family idol,
it is a private and not a public endowment, as the persons who
are entitled to worship at the shrine of the deity can only be the
members of the family, and that is an ascertained group of
individuals. But where the beneficiaries are not members of a
family or a specified individual, then the endowment can only be
regarded as public, intended to benefit the general body of
worshippers.
In the light of these principles, we must examine the facts
of this case. The materials bearing on the question whether the
Thakurdwara is a public temple or a private one may be
considered under four heads: (1) the will of Sheo-Ghulam,
Exhibit A-1, (2) user of the temple by the public, (3) ceremonies
relating to the dedication of the Thakurdwara and the installation
of the idol with special reference to Sankcalpa and Uthsarga and
(4) other facts relating to the character of the temple.”

30. Another argument was raised that such circulars of the State Govern-

ment shall be applicable to the public temples and not to the private

temples. A bare reading of the circulars does not make out such dis-

tinction. However, a temple in a house or which is not open to the pub-

lic cannot be treated to be a public temple. However, it will be a ques-

tion in each case whether it is a public temple or a private temple

which can be decided in the appropriate proceedings. For the purpose

of the present appeal, we find that the circular is applicable to all tem-

25
 ples unless a particular temple is able to satisfy the competent forum

of it being a private temple.

31. In view of the above observations and discussions, the order of the

High Court cannot be sustained. The Circulars dated 21.3.1994 and

7.6.2008 cannot be said to be illegal in any manner. The Writ petition is

thus dismissed and the appeal is allowed.

.............................................J.
(HEMANT GUPTA)

.............................................J.
(A.S. BOPANNA)
NEW DELHI;
SEPTEMBER 6, 2021.

26