Chattisgarh High Court
Sukrit Das vs State Of Chhattisgarh on 23 July, 2026
Author: Ramesh Sinha
Bench: Ramesh Sinha
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CGHC010142202020 AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WPC No. 1571 of 2020
Gajendra Das S/o Late Santu Das Aged About 39 Years R/o Village
Gandaikala, P.H. No. 6, Rajasva Nirikshak Mandal, Bodla, Tahsil Kawardha,
District Kabirdham Chhattisgarh., District : Kawardha (Kabirdham),
Chhattisgarh
... Petitioner(s)
versus
1 - State Of Chhattisgarh Through The Secretary, Revenue Department,
Mantralaya, Mahanadi Bhawan, Atal Nagar, Nava Raipur, District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
2 - The Collector Kabirdham, District Kabirdham Chhattisgarh., District :
Kawardha (Kabirdham), Chhattisgarh
3 - Sub Divisional Officer Revenue, Kabirdham District Kabirdham
Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh
4 - Tahsildar Kawardha, District Kabirdham Chhattisgarh., District : Kawardha
(Kabirdham), Chhattisgarh
... Respondent(s)
WPC No. 1569 of 2020
Sukrit Das, S/o Late Anand Das, Aged About 47 Years R/o Village Jarahtola
Jamgaon, Tahsil And District Kabirdham Chhattisgarh., District : Kawardha
(Kabirdham), Chhattisgarh
— Petitioner(s)
versus
1 – State Of Chhattisgarh, Through – The Secretary, Revenue Department,
Mantralaya, Mahanadi Bhawan, Atal Nagar, Nava Raipur, District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
2 – The Collector, Kabirdham, District Kabirdham Chhattisgarh., District :
Kawardha (Kabirdham), Chhattisgarh
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3 – Sub Divisional Officer, Revenue, Kabirdham, District Kabirdham
Chhattisgarh., District : Kawardha (Kabirdham), Chhattisgarh
4 – Tahsildar, Tahsil Kawardha, District Kabirdham Chhattisgarh., District :
Kawardha (Kabirdham), Chhattisgarh
— Respondent(s)
{Cause Title Taken from Case Information System}
For Petitioner(s) :Mr. Ankit Pandey, Advocate.
For Respondent(s) :Mr. Vivek Sharma, Advocate General assisted by
Mr. Shobhit Mishra, Deputy Government Advocate.
Date of Hearing : 03/07/2026
Date of Order : 23 /07/2026
Hon’ble Mr. Ramesh Sinha, Chief Justice
Hon’ble Mr. Ravindra Kumar Agrawal, Judge
Hon’ble Mr. Bibhu Datta Guru, JudgeC.A.V. Order
Per Ramesh Sinha, Chief Justice
1. Heard Mr. Ankit Pandey, learned counsel for the petitioner. Also heard
Mr. Vivek Sharma, learned Advocate General assisted by Mr. Shobhit
Mishra, learned Deputy Government Advocate for the State/respondents.
2. By these petitions, filed under Article 226 of the Constitution of India,
before the learned Single Judge of this Court, the respective petitioners
seek for a relief to direct the respondents to confer Bhumiswami Rights
on the petitioner(s) as per the direction of the Hon’ble High Court passed
in WP. 537 of 1995, WP(C) No. 782/2014 and WP(C) No. 1515/2014.
3. These matters came up for hearing before a learned Single Judge on
23.11.2020 and thereafter, the matter got listed on various dates. On
09.04.2026, the learned Single Judge observed that the petitioners,
being successors of erstwhile Kotwars, have preferred the present writ
petitions seeking grant of Bhumiswami rights over the land in question,
which was originally granted to their forefathers as service land by the ex-
proprietors/Zamindars prior to the year 1950 for rendering services to the
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village community. It was contended by the petitioners that in view of the
provisions contained in Section 45(3) of the M.P. Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act, 1950 (for short, the
Abolition Act of 1950), such persons, who were holding land on
favourable terms for services rendered, stood declared as occupancy
tenants from the date of vesting, and by virtue of Section 190 of the
M.P./C.G. Land Revenue Code, 1959, the rights of Bhumiswami would
subsequently accrue to them.
4. Learned counsel for the petitioners placed reliance upon the judgment
rendered by a Division Bench of this Court in Vijay Das Manikpuri and
others v. State of M.P. (W.P. No. 537/1995, decided on 18.08.2005),
wherein, after considering the earlier decisions including Gaurishankar
Choubey v. Baktha {1985 RN 228}, and Jiwanlal v. Board of
Revenue, {1961 MPLJ (SN) 78}, it was held that persons in continuous
possession of such service land as Kotwars at the time of vesting would
be treated as occupancy tenants and would be entitled to claim
Bhumiswami rights, subject to verification of factual aspects by the
competent revenue authority. It was submitted that in light of the settled
legal position, the petitioners were entitled to be considered for grant of
Bhumiswami rights in accordance with law.
5. On the other hand, learned State counsel, placing strong reliance upon
the judgment rendered by a Division Bench of this Court in Gambhir
Das Panika v. Chairman, Board of Revenue, Chhattisgarh &
Others (along with connected matters decided on 30.11.2018) {AIR
2019 Chhattisgarh 1}, submitted that the issue was no longer res integra
and stands conclusively settled against the petitioners. It was contended
that the said Division Bench, after an elaborate consideration of the
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provisions of the Abolition Act of 1950, the M.P./C.G. Land Revenue
Code, 1959, and earlier precedents including Gaurishankar Choubey
(supra) and Kanak Chandra Dutta v. State of Assam, {AIR 1967 SC
884}, has categorically held that land granted to a Kotwar as service land
by the erstwhile Malguzar/Proprietor does not confer proprietary rights,
and upon vesting, such land stands vested in the State free from all
encumbrances. It was further held that a Kotwar holding such service
land cannot, by virtue of such possession, claim the status of Bhumidhari
or Bhumiswami, nor can his successors acquire such rights in absence of
any statutory conferment.
6. Learned State counsel further submitted that the Division Bench has also
declared earlier judgments taking a contrary view, namely Chhabil Das &
Others v. The State of Madhya Pradesh & another {WP No.
2632/2000, decided on 30.10.2001}, Tikaram & Others v. The State of
Madhya Pradesh & Another {WP No. 2064/2000, decided on
03.05.2021} and Lalla Singh Chouhan v. State of Chhattisgarh {WPC
No. 782/2014, decided on 01.02.2018} as per incuriam and not laying
down the correct law. Reliance was also placed on State of M.P. v.
Yakinuddin {AIR 1962 SC 1916}; Madhya Pradesh Rural Road
Development Authority v. L.G.Chaudhary Engineers & Contractors
{(2012) 3 SCC 495}; Bengal Immunity Co. Ltd. v. State of Bihar {AIR
1955 SC 661}; State of U.P. v. Synthetics and Chemicals Ltd. {(1991)
4 SCC 139}; and Municipal Corporation of Delhi v. Gurnam Kaur
{(1989) 1 SCC 101}, to buttress the submission regarding binding
precedent and the doctrine of per incuriam. It was thus urged that the
petitioners, being successors of ex-Kotwars, cannot claim Bhumiswami
rights over the land in question under the provisions of the C.G. Land
Revenue Code, 1959 or any other applicable law, and the writ petitions
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deserved to be dismissed.
7. In view of the apparent conflict between the judgments rendered by two
Division Benches of this Court on the issue involved in the present case,
the learned Single Judge opined that the matter requires authoritative
determination so as to ensure clarity and consistency in the legal
position. The petitioners claimed entitlement to Bhumiswami rights on the
strength of earlier Division Bench decisions, whereas the State placed
reliance upon a subsequent Division Bench judgment taking a contrary
view. As such, the existence of these divergent judicial pronouncements
on the same question of law necessitated reference to a Full Bench.
Accordingly, it the learned Single Judge has referred the following
question to be answered by this Bench:
“Whether, in light of the conflicting Division Bench
judgments, service land granted to a Kotwar for rendering
services prior to the abolition of proprietary rights can be
recognized and converted into Bhumiswami rights in favour
of such Kotwar or his successors under the provisions of
the M.P./C.G. Land Revenue Code, 1959 and the M.P.
Abolition of Proprietary Rights (Estates, Mahals, Alienated
Lands) Act, 1950?”
8. Mr. Ankit Pandey, learned counsel for the petitioners would submit that
the above legal question depends upon the statutory source from which
the petitioner/claimant derives title. Where the petitioner/claimant merely
asserts rights because he was serving as Kotwar, no proprietary rights
accrue merely by reason of office. However, where the petitioner/claimant
establishes that the land was held before abolition under favourable
terms attracting Section 45(3); the petitioner/claimant or his predecessor
became an occupancy tenant by operation of statute; the subsequent
provisions of the Revenue Codes became applicable; or the
petitioner/claimant derives title from an independent hereditary,
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occupancy or proprietary source, the matter cannot be concluded merely
by describing the land as “Kotwar service land.” The statute itself
requires a separate enquiry into the origin and nature of each holding.
According to Mr. Pandey, the following propositions emerge from the
statutory scheme – (i) Section 3 of the Abolition Act vests proprietary
rights in the State but does not extinguish every subordinate interest
because Section 45 expressly preserves specified categories of rights.
(ii) Section 45(3) creates a statutory occupancy tenancy by operation of
law and not by executive grant or administrative recognition. (iii) The
Abolition Act, the Madhya Pradesh Land Revenue Code, 1954 (for short,
the 1954 Code) and the 1959 Code constitute one continuous legislative
scheme and must be interpreted harmoniously; (iv) Service lands under
Section 183 constitute only one category of Kotwar holdings. Hereditary
holdings, occupancy holdings and independently acquired lands
constitute separate juridical classes requiring independent adjudication.
(v) Executive instructions cannot divest vested statutory proprietary
rights in the absence of authority of law satisfying Articles 300A and 166
of the Constitution; (vi) The judgment in Gambhir Das Panika (supra)
settles only the law relating to service lands governed by Section 183 of
the CGLRC, 1959 and does not determine claims founded upon Section
45(3) of the Abolition Act of 1950, hereditary occupancy rights or
independently accrued Bhumiswami rights.
9. Mr. Pandey would further submit that the State has proceeded on
assumption that every land held by a Kotwar is a service land which is
contrary to the statutory framework as a Kotwar may derive title through
hereditary succession; as an occupancy tenant recognised under
Section 45; by independent settlement; through statutory conferment
under the Revenue Codes; and through service tenure. Each source
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gives rise to distinct legal consequences. Unless the source of title is first
identified, the question whether Bhumiswami rights accrued cannot be
answered. The entire controversy therefore turns not upon the office held
by the petitioner/claimant but upon the source of title and its origin of the
land itself. The present reference has to be considered and answered by
examining the complete statutory evolution of tenure rights rather than by
treating Section 183 of the Land Revenue Code as the sole governing
provision in every case involving a Kotwar. Section 45 of the Abolition
Act of 1950 occupies a pivotal position in the statutory framework. While
Section 3 transfers proprietary rights to the State, Section 45 determines
the legal consequences affecting persons who were already in lawful
possession under the former proprietors. The Legislature consciously
recognised that numerous cultivators were in possession under varying
legal relationships and that their rights required statutory protection after
abolition. Section 45 therefore preserves existing occupancy tenancies
and, by virtue of sub-section (3), creates a statutory occupancy tenancy
in favour of persons who were holding lands on favourable terms
because of services rendered. The conferment under Section 45(3) is not
dependent upon any subsequent executive order. It flows directly from
the statute itself. Once the statutory conditions stand fulfilled, the
consequence follows by operation of law.
10. Mr. Pandey would next submit that there is a distinction between vesting
and saving. While Section 3 determines what rights pass from the
intermediary to the State, Section 45 determines what rights continue in
favour of persons who were already cultivating the land. The two
provisions therefore operate in different legal fields and cannot be treated
as mutually destructive. If Section 3 alone is considered while Section 45
is ignored, the statutory scheme becomes incomplete. It is further
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submitted that conversely, Section 45 cannot operate independently of
Section 3 because it presupposes vesting. The correct interpretative
approach is therefore one of harmonious construction, giving full effect to
both provisions simultaneously. He would submit that the Hon’ble
Division Bench in Gambhir Das Panika (supra), correctly recognized
the legal effect of Section 3 of the Abolition Act of 1950. However, the
present reference also invites consideration of the scope and effect of
Section 45, particularly sub-section (3) which constitutes the principal
statutory saving provision governing persons holding lands from
proprietors on favourable terms in consideration of services rendered. A
harmonious construction of Section 3 and 45 would give full effect to the
legislative scheme embodied in the Abolition Act. The judgment in
Gambhir Das Panika (supra) extensively dealt with the doctrine of
statutory vesting but provisions of Section 45(3) was not considered.
Once Section 45(3) is omitted from consideration, the subsequent
statutory evolution under the Revenue Codes appears disconnected and
such an interpretation does not reflect the integrated legislative design.
Gambhir Das Panika (supra) itself notices the earlier interpretation that
person holding lands on favourable service conditions become
occupancy tenants under Section 45(3) in paragraph 28 of the judgment
while referring to the judgment of Gauri Shankar Choubey (supra).
However, while answering the reference before it, in the case of
Gambhir Das Panika (supra), the judgment proceeds upon the premise
that a Kotwar holding service land never acquired occupancy tenancy.
These two propositions cannot stand together unless confined to different
factual situations. The judgment does not expressly undertake such
distinction. Consequently, the legal consequences flowing from Section
45(3) of the Abolition Act of 1950 remains unanswered in the case of
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Gambhir Das Panika (supra). The existing judicial decision in Gambhir
Das Panika (supra) have primarily considered upon the historical
character of Kotwar service. Comparatively, little or no attention has
been devoted to the statutory consequences flowing from Section 45(3)
of the Abolition Act of 1950. As a result, the transition from occupancy
tenancy to the statutory tenures recognized under the 1954 Code has
remained largely unexplored. This omission has resulted in an
incomplete interpretation of the legislative scheme.
11. Mr. Vivek Sharma, learned Advocate General appearing for the State/
respondents assisted by Mr. Shobhit Mishra, learned Deputy
Government Advocate would submit that the law laid down by a Division
Bench of this Court in Gambhir Das Panika (supra) is the correct law
which should be followed. Mr. Sharma would submit that the judgment of
Gambhir Das Panika (supra) takes into account the various decisions
rendered by other co-ordinate Single Benches viz. Smt. Reena Bai v.
State of Chhattisgarh & Others {WP227 No. 2921/2008, decided on
15.06.2015}, State of Chhattisgarh v. Gopal Agrawal & Others
{WPC 2082/2007, decided on 14.09.2017}, Lalla Singh Chouhan
(supra), Tikaram, Kotwar & Ors v. State of M.P. {WP/2064/2000,
decided on 03.05.2001}, a judgment of the Nagpur High Court in
Sheocharan v. Shah Mahomed {(1928) 11 NLJ 129}, judgment of the
Apex Court in State of Bombay v. Pandurang Vinayak & Others {AIR
1953 SC 244} and State of Karnataka v. State of Tamilnadu &
Others {(2017) 3 SCC 362}, Maharaja Pravir Chandra Bhanj Deo
Kakatiya v. State of Madhya Pradesh {AIR 1961 SC 775 : (1961) 2
SCR 501}, Pravir Chandra Bhanj Deo Kakatiya v. The State of
Madhya Pradesh {AIR 1953 Nagpur 86 : 1952 Online MP 156}, Kanak
Chandra Dutta (supra), Gaurishankar Choubey (supra). The Hon’ble
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Division Bench, in Gambhir Das Panika (supra), observed that at the
time of hearing of Chhabil Das (supra), Tikaram (supra) and Lalla
Singh Chouhan (supra), the decisions rendered by the learned Single
Judge in Smt. Rina Bai (supra), Gopal Agrawal (supra), the decision of
the Madhya Pradesh High Court in Gaurishankar Choubey (supra) and of
the Apex Court in Kanak Chandra Dutta (supra), Pravir Chandra
Bhanj Deo Kakatiya (supra) were not placed before the concerned
Benches and had thus escaped the attention of the Court and the law laid
down by this Court in Chhabil Das (supra), Tikaram (supra) and Lalla
Singh Chouhan (supra) were declared per incuriam. All these
judgments have a direct bearing on the nature of the office held by a
Kotwar and the legal incidents attached thereto.
12. Learned Advocate General next contended that the doctrine of per
incuriam constitutes a well-recognised exception to the principle of stare
decisis, and where a judgment has been rendered in ignorance of a
binding statutory provision or a binding precedent of a superior Court or a
larger Bench, such judgment loses its precedential value. According to
him, the Division Bench in Gambhir Das Panika (supra) has correctly
invoked the said doctrine after undertaking a detailed comparative
analysis of the earlier authorities and has authoritatively settled the legal
position. Learned Advocate General would further submit that the
judgment rendered by the Division Bench in Gambhir Das Panika (supra)
has attained finality and, therefore, binds this Court. Elaborating the
sequence of events, he submitted that the judgment dated 30.11.2018
was assailed before the Hon’ble Supreme Court by filing Special Leave
Petition (Civil) Diary No. 28169 of 2021. The Hon’ble Supreme Court,
after condoning the delay in preferring the Special Leave Petition,
considered the matter and, by order dated 25.02.2022, dismissed the
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Special Leave Petition. It was argued that although dismissal of a Special
Leave Petition by itself may not amount to a declaration of law under
Article 141 of the Constitution, the consequence of such dismissal is that
the judgment of the High Court continues to hold the field and remains
operative and binding inter partes as well as within the territorial
jurisdiction of this Court. Learned Advocate General further pointed out
that even thereafter an attempt was made by the Kotwar Association of
Chhattisgarh to reopen the controversy by filing proceedings before the
Hon’ble Supreme Court questioning the judgment dated 30.11.2018 as
well as the subsequent order passed in review proceedings dated
01.07.2025. However, the Hon’ble Supreme Court, by order dated
24.11.2025, declined to entertain the challenge and dismissed the
proceedings on the ground of an inordinate delay of 2409 days in
approaching the Court. According to the learned Advocate General,
despite repeated attempts made by the aggrieved parties to challenge
the correctness of the Division Bench judgment, the same has remained
undisturbed and continues to operate with full force. It was, therefore,
submitted that the controversy sought to be raised in the present
reference is no longer res integra. Once the Division Bench has
authoritatively interpreted the legal position after considering all the
relevant statutory provisions and binding precedents, and the said
judgment has continued to remain undisturbed, judicial discipline
requires that the same be followed. It was accordingly urged that the
reference deserves to be answered by affirming the view taken in
Gambhir Das Panika (supra), holding that the earlier decisions in Chhabil
Das (supra), Tikaram (supra) and Lalla Singh Chouhan (supra) do not
lay down the correct law and cannot be treated as binding precedents.
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13. We have heard learned counsel appearing for the parties, and perused
the judgments relied on by the parties.
14. At the outset, it may be observed that the learned counsel for the
petitioner has advanced several submissions touching upon different
facets of the matter. Many of the submissions advanced before this Court
by the learned counsel for the petitioner, according to learned State
counsel, were never argued before the learned Single Judge and as
such, they may not be taken into consideration while answering the
question referred. Since the present proceedings arise out of a reference
made by the learned Single Judge to this Full Bench, we consider it
appropriate to confine ourselves solely to the question referred for
determination. Before the learned Single Judge, the petitioners have
placed reliance on the judgment rendered by a Division Bench in Vijay
Das Manikpuri & Others (supra), which had considered the decision of
rendered by the Madhya Pradesh High Court in Gaurishankar
Choubey (supra) and Jivanlal (supra). Conversely, the State had
placed reliance on the decision rendered by another co-ordinate Division
Bench in Gambhir Das Panika (supra), which also takes note of the
decisions rendered in Gaurishankar Choubey (supra) and Jiwanlal
(supra). The other issues sought to be raised by the petitioner neither fall
within the scope of the present reference nor require adjudication at this
stage. Accordingly, we refrain from expressing any opinion on those
aspects, leaving them open to be considered, if necessary, in
appropriate proceedings.
15. The origin of office of ‘Kotwar’ or ‘village servant’ has been discussed in
para 8 of the judgment of Gambhir Das Panika (supra), which reads as
under:
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“8. Before dealing with the relevant provisions of law, it may
be necessary to notice the origin of the office of the Kotwar
or village servant vis-a-vis the provisions applicable to them
during the pre-independence era. The British governed India
in two ways. The first category fell the areas directly under
their administrative control such as the provinces and
presidencies and the second category was the areas under
control of the princes. This second category had a few sub
classes such as big Zamindars (Proprietors) and the
Landlords. They were named differently in different areas.
The princes and zamindars were given authority by the
Britishers through legislations to regulate their domestic
affairs, leaving to the Crown the responsibility of protecting
the territory and communications. The arrangement was
legalised under the Government of India Act, 1935 (for short
‘the GOI Act, 1935’). This Act also created 10 Schedules.
The Sixth Schedule of which related to provisions as to
franchise. It provided for who could be a voter for elections
to Provisional Assembly. The Sixth Schedule itself was then
divided into various parts province wise. Part VIII related to
the Central Provinces and Berar. Under para 3 of this part
(Qualifications dependent on property etc) para 3 (a) related
to a person living in the Central Provinces holding property
as a proprietor or thekedar of an estate or mahal the land
revenue or kamil jama of which is not less that two rupees.
In para 3 (b) the proprietor or thekedar was required to hold
proprietary right, sir land or khudkasht, or as malik
makbuza, raiyat or tenant agricultural land being sir land or
khudkasht or agricultural land.
9. The expression “Kotwar” is available in para 8 of this part
which relates to (Additional qualifications for members of the
scheduled caste). Para 8 is reproduced herein –
“8. Subject as aforesaid, a member of a scheduled
caste shall also be qualified to be included in the
electoral roll for any territorial constituency if he is a
kotwar, a jaglia, or a village mahar holding office.”
The expression “holding office” clearly implies that kotwar is
a form of employment and it can never be a class of land
holder. In fact the expression conveys an existence of a
“master servant relationship”.
10. In para 10 of part VIII, as mentioned above, dealt with
Interpretation of words and expressions used under this
part. A few expressions defined therein are reproduced
herein –
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xxx xxx xxx
“estate”, “mahal”, “malik makbuza”, kamil jama”, “sir land”
and “khudkasht” have the meanings respectively assigned
to them in section 2 of the Central Provinces Land Revenue
Act, 1917.
“estate or mahal” includes a part of an estate or a mahal.
xxx xxx xxx
“proprietor” includes an inferior proprietor and a plot
proprietor, but does not include a transferee of proprietary
rights in possession, or a mortgagee with possession.
xxx xxx xxx
“thekedar” includes a gaontia and a protected headman.
“hold” in relation to land or an estate or mahal, means to be
recorded in the records maintained under Chapter V of the
Central Provinces Land Revenue Act, 1917, or Chapter X of
the Berar Land Revenue Code, 1928, or, in the case of the
Melghat Taluq of the Amraoti District, in the land records
prescribed by the Provincial Government, as the person in
possession of the land, estate or mahal.
xxx xxx xxx
11. In addition to the above, the expression kotwar is also
found in the GOI Act, 1935 in Part XI of Sixth Schedule
which is with respect to Orissa. Under para 9 of Part XI
which is with respect to – Special provision as to the district
of Sambalpur. Para 9 (d) clearly records as under –
9. Subject as aforesaid, a person shall be qualified to
be included in the electoral roll for any constituency
situated wholly or partly in the district of Sambalpur
if, in that district, he either –
(a) xxxx
(b) xxxx
(c) xxxx
(d) is a village servant holding office as a jhankar,
ganda, kotwar, jagalia or mahar, and holds land
recorded in the record of rights as service land :
12. Para 9 (d) of Part XI read in context of para 8 of Part VIII
of Sixth Schedule leave no trace of doubt that kotwar is an
employment and the fact that the expression has been
15similarly used with respect to Central Provinces and Orissa
of which present day Chhattisgarh forms part it cannot be
doubted that a master servant relationship existed since the
very creation of office of kotwar.”
16. Section 215 of the M.P. Land Revenue Code, 1954 and Section 230 of
the Chhattisgarh Land Revenue Code, 1959 provides for appointment of
Kotwar and their remuneration whereas Section 216 of MPLRC (Section
231 of the CGLRC, 1959) provides for remuneration of Kotwar in
Mahakaushal region. The appointment of Kotwar and the mode of
payment of remuneration has been referred in Part VIII of Sixth Schedule
and Part XI of the Government of India Act, 1935, together the Section
196 of CPLR Act, 1917, leave no room of doubt of speculation that
Kotwar is a Village servant. In fact, he is a Government employee, a
revenue officer of the lowest cadre. Even if a Kotwar is employed by a
Malguzar or Gaontia during the pre-independence era, he can, by no
stretch of imagination, be given absolute ownership over his service land,
because the Abolition Act of 1950 effectively terminated their ownership
and therefore the Malguzar or the Gaontia even if had granted some land
to Kotwar by way of remuneration to earn livelihood in lieu of service of
Kotwar rendered to the area in control of Zamindar. The said grant would
be covered by Section 3 of the Abolition Act of 1950.
17. Under the Abolition Act of 1950 and the MPLRC, 1954, a Kotwar
appointed by Zamindar, Malguzar or the Gaontia has been substituted by
the State as its employer in place of proprietor Malguzar or the Gaontia.
The master-servant relation therefore continues by force of statute and
similarly grant made by the proprietor to his Kotwar cannot be free from
rigor of Section 3 of the Abolition Act of 1950 as it clearly says in sub-
section (1) that “person having interest in such proprietary right through
the proprietary, shall pass from such proprietor or such other person to
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and vest in the State for the purpose of State free from all encumbrances.
Sub-section (2) of Section 3 says that, “no right shall be acquired in or
over the land to which the said notification relates, except by succession
or under a grant or contract in writing made or entered into by or on
behalf of the State; and no fresh clearings for cultivation or for any other
purpose shall be made in such land except in accordance with such rules
as may be made by the State Government in this behalf.” Section 3 of the
Abolition Act of 1950 reads as under:
“3. Vesting of proprietary rights in the State – (1) Save as
otherwise provided in this Act, on and from a (date to be
specified) by a notification by the State Government in this behalf,
all proprietary rights in an estate, mahal, alienated village or
alienated land, as the case may be, in the [area specified in the
notification, vesting in a proprietor of such estate, mahal,
alienated village, alienated land, or in a person having interest in
such proprietary right through the proprietor, shall pass from such
proprietor or such other person to and vest in the State for the
purposes of the State free of all encumbrances.
(2) After the issue of a notification under sub-section (1), no right
shall be acquired in or over the land to which the said notification
relates, except by succession or under a grant or contract in
writing made or entered into by or on behalf of the State; and no
fresh clearings for cultivation or for any other purpose shall be
made in such land except in accordance with such rules as may
be made by the State Government in this behalf.
(3) Different (dates may be specified under sub-section (1) for
different areas).
(4) The State Government may vary the date specified under
Subsection (1) at any time before such date.”.
18. The effect of provisions contained in the Abolition Act of 1950, has been
discussed by the Division Bench of this Court and matter of Gambhir
Das Panika (supra). The Abolition Act of 1950, was enacted to give
effect to Article 31A of Constitution of India. In Gambhir Das Panika
(supra), a Division Bench of this Court observed as under:
“18. Article 31A provided for “saving of laws providing for
17acquisition of estates, etc.”. The expression “rights”, in relation to
an estate, shall include any rights vesting in a proprietor, sub-
proprietor, under proprietor, tenure holder, raiyat, under-raiyat or
other intermediary and any rights or privileges with respect of
land revenue. The Abolition Act, 1950 was enacted with the
object to provide for the acquisition of the rights of proprietors in
estates, mahals, alienated villages and alienated lands in
Madhya Pradesh (including Chhattisgarh) and to make provisions
for other matters connected therewith.
19. The expression ‘proprietor’ was defined under Section 2(m) of
the Abolition Act, 1950 in the following manner:
2. Definitions. In this Act, unless there is anything repugnant in
the subject or context, –
(m) “proprietor”, in relation to-
(i) the Central Provinces, includes an inferior proprietor, a
protected thekedar or other thekedar, or a protected
headman;
(ii) the merged territories, means a muafidar including an
ex Ruler of an Indian State merged with Madhya Pradesh,
a Zamindar, Ilaquedar, Khorposhdar or Jagirdar within the
meaning of the Wajib-ul-arz, or any sanad, deed or other
instrument, and a gaontia or a thekedar of a village in
respect of which by or under the provisions contained in
the wajib-ul arz applicable to such village the muafidar,
the gaontia or the thekedar, as the case may be, has a
right to recover rent or revenue from persons holding land
in such village.
20. The manner in which the word ‘proprietor’ has been
expressed and defined in Section 2 (m) of the Abolition Act,
1950, as produced supra, has to be understood in the context of
Section 7 of the Independence Act and Article 31A (2) of the
Constitution of India, therefore, a combined reading of the above
provisions manifests that a ruler, zamindar, gaontia, muafidar,
thekedar, etc. were all based upon a grant made by the
competent authority. The Crown exercised its control through its
agents namely; Viceroy, Governors in Provinces, etc. It is these
agents and officers by a duly authorized sanad, deed or other
instrument legalized the land holdings by a ruler, zamindar (with
similar expressions used in section 2(m) of the Abolition Act,
1950), gaontia, muafidar, thekedar.
21. Section 3 of the Abolition Act, 1950 ended the legal force of
all such sanad, deed or other instrument by implying legal fiction
which caused vesting of proprietary rights in the State”.
18
19. The Madhya Pradesh High Court, in Jiwan Lal (supra) has held that
there is a distinction between the village servant and malguzari servant.
The Court has further held that the person holding land as remuneration
for service of ex-proprietor, his right to land ends with the termination of
service and person is not entitle for protection under Section 45 (3) of the
Abolition Act of 1950. The Hon’ble Supreme Court in Yakinuddin
(supra) has discussed the provisions contained in Section 3 of Abolition
Act of 1950 and has held that all the proprietary rights in an estate
vesting in a proprietor of such an estate or in a person having interest in
such proprietary rights through the proprietor shall vest in the estate for
the purposes of the estate, free from all encumbrances. In the matter of
Gauri Shankar Choubey (supra)it has been held service land given to
the Kotwar by Malguzar, in that case Kotwar is not a personal servant of
proprietor but Kotwar is an occupancy tenant of the State. In the matter
of Kanak Chandra Dutta (supra), the Hon’ble Supreme Court has held
that “Civil Post” means post not connected with defence out side regular
civil services. Further, it was held that post is service or employment and
a person holding a post under a State and is under administrative control
of State Office. It was also held that there is a relationship of master and
servant between State and Person said to be holding post under it. In the
matter of Tikaram, Kotwar & Ors v. State of M.P. {WP/2064/2000,
decided on 03.05.2001}, it was held by the Single Bench of Hon’ble High
Court of Chhattisgarh, that the competent authority shall grant
Bhumiswami rights in respect of writ petitioners. In the matter of
Chhabil Das (supra), it was held by the Single Bench of Hon’ble High
Court of Chhattisgarh, that the competent authority shall grant
Bhumiswami rights in respect of lands recorded in Jamabandi in favour
of petitioner. In the matter of Vijay Das Manikpuri (supra), a Division
19
Bench of this High Court observed as under:
“4) On a reading of the provisions of Sub-section (3), of
Section 45 of the M.P. Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands) Act, 1950, we find that any person
holding land other than sir land from the proprietor on favourable
terms for service rendered by him has been declared to be an
occupancy tenant of the State from the date of vesting and the
Dy. Commissioner is required to fix the rent to be paid by such
occupancy tenant to the State. It further appears that from a
reading of Section 190 of M.P. Land Revenue Code 1959 which
after its adoption by the Government of Chhattisgarh is titled as
C.G. Land Revenue code, 1959 that the rights of a Bhumiswami
will accrue to the occupancy tenant in respect of the land held by
him with effect from the dates specified therein. It also appears
from the decision of the MP High Court in the case of
Gaurishankar Choubey Vs. Baktha (supra) that a Kotwar in
continuous possession of the land given to him for service
rendered to the village community by the proprietor of the land
has been held to be an occupancy tenant of the State from the
date of vesting. It also appears that the aforesaid decision of the
M.P. High Court in the case of Gaurishankar Choubey vs. Baktha
(supra) has been rendered on the basis of the law laid down in
the case of Jiwanlal vs. Board of Revenue (1961 MPLJ-SN-78).
But the petitioners can be recorded as Bhumiswami in respect of
the land in question only if their fathers were village Kotwars in
occupation of the lands given to them by the ex-proprietors for
service to the village community at the time of vesting. As to
whether or not a person is a Kotwar or is a son of a Kotwar and
was in occupation of land given to him by the ex-proprietor of
land for service rendered to the village community at the time of
vesting is a factual question to be decided by the competent
authority and cannot be decided by us in the present writ petition
under Article 226 of the Constitution.
5). For the aforesaid reasons, we dispose of the writ petition with
a direction that the petitioners may file appropriate applications
before the Tehsildar in whose jurisdiction the land claimed by the
petitioners falls and the Tehsildar on receipt of such application
will make an enquiry into the aforesaid factual aspect and pass
orders on the application of the petitioners in accordance with
law as discussed above.”
20. In the year 2003, the State Government passed an order dated
21.04.2003, whereby the State Government in compliance of the Court’s
order passed in WP/2632/2000, and WP/2064/2000, granted
Bhumiswami rights to all the Kotwars to whom the service land had been
20
granted prior to year 1950. In the matter of Charan Das Vs. State of
Chhattisgarh, {WP (227)/3640/2009, decided on 09.03.2010}, by
Single Bench of this Court, it was held :
“(6) On perusal of the impugned orders this Court finds that
the orders passed by the Collector and Board of Revenue
have been passed after appreciating the entire facts and
the law applicable thereon. The question regarding
conferral of Bhoomiswami rights to the Kotwar on a land
which was held by the Kotwar as Maufi land can be gone
into only when sufficient material is furnished by the person
claiming such right with regard to the nature of land held
and mentioned in the Jamabandi, as to whether such
property was spared from the being vested in the State at
the time of abolition of proprietor’s right under the relevant
provisions of the Chhattisgarh Abolition of Proprietary
Rights (Estates, Mahals, Alienated Lands) Act, 1950 and
as to whether such land was directed to be settled in the
name of Kotwar who was serving the proprietor/Malgujar at
that point of time, because if the land was recorded as
service land and was not saved to the Kotwar as his
personal property on account of personal services
rendered by the Ex Malgujar, the property cannot be
declared to be the Bhoomiswami land of the Ex Kotwar.
(7) In the opinion of this Court the Collector as well as the
Board of Revenue has not committed any illegality by
holding that neither the petitioner nor the respondent no. 5
can be declared Bhoomiswami with respect to the subject
land. The writ petition being devoid of substance is hereby
dismissed at the admission stage.”
21. A special leave petition was preferred against the judgment of Charan
Das (supra) before the Apex Court which was dismissed on 04.10.2010,
in Special Leave to Appeal Civil No. 29377/2010.
22. In the year 2014, the State Government passed the order dated
10.03.2014, whereby the previous order dated 21.04.2003, was quashed
and as such the sale of the service land by the Kotwars was declared
“untransferable” as the land were sold without the permission of the
Collector. After issuance of such direction, a bunch of petitions were filed
by the Kotwars challenging the aforesaid order dated 10.03.2014, before
21
this High Court {Lalla Singh Chouhan (supra)} which was decided on
01.02.2018, by a learned Single Judge of this High Court. It was held
that the State Government shall be free to make an enquiry with respect
to the nature of the holding of land by Kotwars to determine and carve
out the Bhumiswami holding lands and service land separately. It was
further directed that on such enquiry if the right of Bhumiswami is found
to be accrued in favour of the petitioners Kotwars in terms of the
provisions of Abolition Act,1950, the Bhumiswami right was to be
conferred on the petitioners and with respect to the service lands, the
rights would be governed by the provisions of Section 183 of
Chhattisgarh Land Revenue Code, 1959.
23. Section 183 of Chhattisgarh Land Revenue Code, 1959 is reproduced
herein below for ready reference:
“183. Service land – (1) Any person holding land on the
condition of rendering service as village servant shall
cease to be entitled to such a land if he diverts such
land to non-agricultural purposes.
(2) A transaction by which a village servant attempts to
transfer his interest in his services land by sale, gift,
mortgage, sub-lease or otherwise except by a sub-lease
for a period not exceeding one year, shall be void.
(3) If the holder of such land dies, resigns or is lawfully
dismissed the land shall pass to his successor in office.
(4) The right of the holder in such land shall not be
attached or sold in execution of a decree nor shall a
receiver be appointed to manage such land under
Section 51 of the Code of Civil Procedure, 1908 (V of
1908).”
24. In Gambhir Das Panika (supra), the learned Division Bench had
answered the reference made to the following question:
“Whether a Kotwar (village servant) holding service land
under Section 183 (1) of Chhattisgarh Land Revenue
Code, 1959 can be granted Bhumiswami Right over such
22service land in view of the provision contained in Section
183 (2) of the Code as held in Chhabil Das (Supra) and
Tikaram (supra)?”
25. While answering the above question, the learned Division Bench held
that Lalla Singh Chouhan (supra) did not lay down the correct law and
the finding that lands held by Ex-Kotwars as a grant from Malguzar would
be saved to them as Bhumiswami land, is erroneous particularly in view
of provisions of Section 3 of Abolition Act, 1950, read with Section 147,
148 and 150 of the MPLRC, 1954. The judgments in the matter of
Chhabil Das (supra), Tikaram (supra) and Lalla Singh Chouhan
(supra) stood overruled.
26. From the above, it is clear and evident that the Division Bench of this
Hon’ble Court in Vijay Das Manikpuri (supra) has not dealt with Section
3 of Abolition Act, 1950 and also with Section 183 of Land Revenue
Code. Further, on perusal of Division Bench judgment of this Hon’ble
Court in Gambhir Das Panika (supra), it transpires that it has dealt with
Section 3 of Abolition Act as well as all the relevant case laws. While
deciding the Gambhir Das Panika (supra) the learned Division Bench
has held order/judgments in the matters of Chhabil Das (supra)
Tikaram (supra) and Lalla Singh Chouhan (supra) as per incuriam.
27. On a careful perusal of the Gambhir Das Panika (supra) judgment, the
Division Bench has dealt with Section 3 of Abolition Act, 1950 and has
correctly held that Kotwar is a village servant and was prior to 1950
appointed by the Zamindar, Malguzar or the Gaontia. The Zamindar,
Malguzar or the Gaontia has been substituted by the State as its
employer and the master-servant relationship continue by force of
Abolition Act 1950. The master-servant relationship between the
malguzar, proprietor and the Kotwar passes onto the State by virtue of
23
Section 3 of Abolition Act, 1950. After going through all the judgments it
is evident that it has been held that the individuals claiming the
Bhoomiswami rights over the properties have to establish that how the
land in question is registered in their name. As per the Section 3 of
Abolition Act, 1950 there is no doubt that the ownership of the land has
been vested with the State Government after the Abolition Act, 1950
came into the force. From the date of the notification by the State under
Section 3 of the Act, all the proprietary rights in an estate vesting in a
proprietor of such an Estate or in a person having interest in such
proprietary rights through the proprietor shall vest in the State for the
purposes of the State, free from all encumbrances. The consequences of
the such vesting are laid down in Section 4 of Abolition Act, 1950 and on
bare reading of the provisions of Clause (a) of Section 4(1) that whatever
rights the proprietor or a person claiming interest had been ceased on
the vesting of estate in the State.
28. The challenge made to the judgment passed by the learned Division
Bench in Gambhir Das Panika (supra) in Special Leave Petition (Civil)
Diary Nos. 28169/2021 stood dismissed by the Hon’ble Apex Court vide
its order dated 25.02.2022. Another Special Leave Petition (Civil) Diary
No. 56990/2025 was filed by Kotwar Association of Chhattisgarh
challenging the order dated 30.11.2018 passed by the learned Division
Bench in Gambhir Das Panika (supra) as well as the order dated
01.07.2025 by which the review petition being REVP No. 158/2025, filed
seeking review of the order dated 30.11.2018 was dismissed. The said
SLP also stood dismissed on 24.11.2025 on the ground of inordinate
delay of 2409 days in filing the petition.
29. Reliance placed on the decision of a three-Judge Bench of the Supreme
24
Court in The State of Maharashtra & Others v. Atma Ram Sadashiv
Dongarwar {(1978) 4 SCC 170}, is misplaced as the said judgment
primarily dealt with the issue of water irrigation. It was observed by the
Bench that the right of free irrigation which accrued to the occupancy
tenants and malguzars under the aforesaid Sections 45 to 47 of the
Abolition of Proprietary Rights Act were not only not destroyed but were
also saved by Section 239 of the MPLRC, 1954 and were, therefore, to
continue to be enjoyed by the occupancy tenants and malguzars without
being affected, curtailed or whittled down in any manner despite the
repeal of Sections 45 to 47 of the Abolition Act by Section 238 of the
Code. The said judgment does not take note of the judgment rendered by
the Constitution Bench of the Apex Court in Yakinuddin (supra).
30. In Yakinuddin (supra), the issue before the Constitution Bench of the
Apex Court was whether the respective grants made by the outgoing
proprietors in favour of the respondents convey any right to them, which
could be enforced against the State after the coming into effect the
Abolition Act of 1950. In Gambhir Das Panika (supra), placing reliance
on the above judgment, a Division Bench of this Court observed that with
reference to the provisions contained in Section 3 of the Abolition Act,
1950 regarding vesting of proprietary rights in an estate the Supreme
Court in Yakinuddin (supra) has held that all proprietary rights in an
estate vesting in a proprietor of such an estate or in a person having
interest in such proprietary rights through the proprietor, shall vest in the
State for the purposes of the State, free from all encumbrances. It is held
that whatever may have been the nature of the grant by the outgoing
proprietors by contracts to convey proprietary rights to grantees, those
grants have no legal effect as against the State except in so far as the
State may have recognized them. The provisions of the Act have no
25
manner of doubt that the rights claimed by the grantees could not have
been enforced against the State, if the later was not prepared to respect
those rights and the rights created by the transactions between the
grantees and their grantors did not come within any of the saving clauses
of Section 5.
31. It would also be necessary to examine the effect of the order passed by
the Hon’ble Supreme Court in the Special Leave Petition arising out of
the judgment of the Division Bench in Gambhir Das Panika (supra).
The record would reveal that the delay in filing the Special Leave Petition
was condoned by the Hon’ble Supreme Court, whereafter the petition
came to be dismissed. The legal consequences of such dismissal are
governed by the doctrine of merger, the contours whereof have been
authoritatively explained by the Hon’ble Supreme Court in
Kunhayammed v. State of Kerala, {(2000) 6 SCC 359} and reiterated
in subsequent decisions. The doctrine postulates that merger is not a
doctrine of universal or unlimited application; its applicability depends
upon the nature of the jurisdiction exercised by the superior Court and
the character of the order passed. Merely because a Special Leave
Petition is dismissed does not, by itself, result in merger of the judgment
of the High Court with that of the Supreme Court. However, where the
Supreme Court has applied its mind to the matter after condoning the
delay and declined to interfere, the judgment of the High Court
undeniably attains finality between the parties and continues to operate
as a binding precedent within the territorial jurisdiction of the High Court,
unless displaced by a larger Bench or by a subsequent authoritative
pronouncement of the Hon’ble Supreme Court.
32. In the present case, the judgment rendered by the Division Bench in
26
Gambhir Das Panika (supra) has not only held the field for several
years but has also withstood scrutiny before the Hon’ble Supreme Court.
No contrary declaration of law has been made by the Apex Court, nor
has the ratio laid down therein been diluted or overruled. Consequently,
the legal principles enunciated in Gambhir Das Panika (supra) continue
to bind this Court in terms of the doctrine of precedent and judicial
discipline. A Bench of co-equal strength cannot disregard or take a view
inconsistent with the law declared therein, and any departure therefrom
would be permissible only by referring the matter to a larger Bench. The
finality attached to the judgment after the proceedings before the Hon’ble
Supreme Court reinforces the need for certainty, consistency and
stability in the administration of justice, which are foundational principles
underlying the doctrine of precedent.
33. The judgment rendered by a co-ordinate Division Bench in Vijay Das
Manikpuri (supra), relied on by the petitioners which had taken note of
the judgment rendered by the Madhya Pradesh High Court in
Gaurishanker Choubey (supra), which in turn was passed on the basis
of Jiwanlal (supra). The judgment of Vijay Das (supra) did not at all
considered the provisions of Section 3 of the Abolition Act of 1950 and
as such, it cannot lay down the correct law.
34. From the above it is clear that after coming into the force of the statute
Abolition Act, 1950 all the estate vested in the name of malguzar,
proprietors etc. has been transferred to State and in the same manner
the malguzars, proprietors who have prior to 1950 have transferred their
land to the person, who were called Kotwars, for rendering their services
towards village has also been transferred to the State. After coming into
the force of the Abolition Act, 1950 the master-servant relationship
27
continued between the State and the Kotwars. Further, on perusal of
Section 183 of Land Revenue Code, 1959 it is evident that the Kotwars
are vested with the land on the condition of rendering the service as
village Servant and he shall cease to be entitled to such a land once he
resigns or is lawfully dismissed from the post of Kotwar and the subject
land shall pass to successor in the office. In the matter of Charan Das
(supra), it has been held that enquiry must be held before conferring the
Bhoomiswami rights to the person as to how such land has been
transferred and whether such transfer has been recognised by the State.
Further, it is also held that if there is any service land which is directed to
be settled in the name of Kotwar as he was rendering his services
towards village in such cases the property cannot be declared to be the
Bhoomiswami land of such Kotwar.
35. In the light of the above discussion, the reference made by the learned
Single Judge to this Bench is answered in negative.
36. Registry is directed to list these petitions before the Bench having the
Roster to decide the same on merits.
Sd/- Sd/- Sd/-
(Bibhu Datta Guru) (Ravindra Kumar Agrawal) (Ramesh Sinha)
JUDGE JUDGE CHIEF JUSTICE
Amit
AMIT
KUMAR
DUBEY
Digitally signed by
AMIT KUMAR
DUBEY
Date: 2026.07.23
14:38:28 +0530
28
Head Note
Service land granted to a Kotwar for rendering services prior to the
abolition of proprietary rights cannot be recognized and converted into
Bhumiswami rights in favour of such Kotwar or his successors under
the provisions of the M.P./C.G. Land Revenue Code, 1959 and the
M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated
Lands) Act, 1950.
