1

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

2

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, Judge

C.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

3

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

4

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

5

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,

6

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

7

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

8

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

9

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

10

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

11

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.

12

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:

13

“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 –

14

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

15

similarly 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

16

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

17

acquisition 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

22

service 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

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.