THE STATE OF MADHYA PRADESH & ORS.versusPUJARI UTTHAN AVAM KALYAN SAMITI & ANR.

                         [2021] 7 S.C.R. 685                               685


          THE STATE OF MADHYA PRADESH & ORS.                               A
                                   v.
      PUJARI UTTHAN AVAM KALYAN SAMITI & ANR.
                   (Civil Appeal No. 4850 of 2021)
                       SEPTEMBER 06, 2021                                  B
         [HEMANT GUPTA AND A. S. BOPANNA JJ.]
       M.P. Land Revenue Code, 1959 – Rights of Pujari – A writ
petition filed by Association of Priests registered under the M.P.
Society Registrikaran Adhiniyam 1973 to quash the circulars dated
                                                                           C
21.03.1994 and 07.06.2008 whereby the names of Pujari were
ordered to be deleted from the revenue record – The Single Judge
of the High Court allowed the writ petition – However, in the intra-
court appeal, it was held that if the temple was managed by the
Pujari, then keeping in view the law laid down from time to time, his
name was required to be mentioned as Pujari along with the name            D
of the deity – Before the Supreme Court, the respondents contended
that the Pujaris have been conferred Bhumiswami (ownership)
rights, a right which cannot be taken away by executive instructions
– Held: The Pujari is only a grantee to manage the property of the
deity and such grant can be reassumed if the Pujari fails to do the
                                                                           E
task assigned to him, i.e., to offer prayers and manage the land –
He cannot be thus treated as a Bhumiswami – The Pujari does not
have any right in the land and his status is only that of a manager
– Rights of pujari do not stand on the same footing as that of
Kashtkar Mourushi in the ordinary sense who are entitled to all
rights including the right to sell or mortgage – Since the priest cannot   F
be treated to be Bhumiswami, they have no right which could be
protected under any of the provisions of the Code – There is no
mandate in any of the judgments or any rule has been brought to
notice to hold that the name of Pujari or manager is required to be
mentioned in the revenue record – In the absence of any prohibition
                                                                           G
either in the statute or in the rules, the executive instruction can be
issued to supplement the statute and the rules framed thereunder –
Such instructions do not contravene any of the provisions of the
Code or the rules – Therefore, they cannot be said to be illegal or
in excess of the authority vested in the State Government – The
                                                                           H
                                  685
686           SUPREME COURT REPORTS                      [2021] 7 S.C.R.


A     order of the High Court cannot be sustained – The Circulars dated
      21.3.1994 and 7.6.2008 cannot be said to be illegal in any manner.
           Dismissing the writ petition and allowing the appeal, the
      Court
            HELD: 1. Whether a priest can be treated as Bhumiswami
B     under the Madhya Bharat Land Revenue and Tenancy Act, Samvat
      2007 (Act No. 66 of 1950) and as a consequence under the Code.
             1.2 This question has already been considered by the courts
      in Pancham Singh v. Ramkishandas Guru Ramdas & Ors., which
      has further been affirmed by Mst Kanchaniya and Others v. Shiv
C     Ram and Others. The Law is clear on the distinction that the
      Pujari is not a Kashtkar Mourushi, i.e., tenant in cultivation or a
      government lessee or an ordinary tenant of the maufi lands but
      holds such land on behalf of the Aukaf Department for the purpose
      of management. The Pujari is only a grantee to man- age the
D     property of the deity and such grant can be reassumed if the Pujari
      fails to do the task assigned to him, i.e., to offer prayers and
      manage the land. He cannot be thus treated as a Bhumiswami.
      The Kanchaniya further clarifies that the Pujari does not have
      any right in the land and his status is only that of a manager.
      Rights of pujari do not stand on the same footing as that of
E     Kashtkar Mourushi in the ordinary sense who are entitled to all
      rights including the right to sell or mortgage. [Para 20][704-H;
      705-A-C]
            1.3 Taking into consideration the past precedents, and the
      fact that under the Gwalior Act, Pujari had been given right to
F     manage the property of the temple, it is clear that that does not
      elevate him to the status of Kashtkar Mourushi (tenant in
      cultivation). [Para 23][705-E-F]
           2. Whether the priest is Inamdar or Maufidar within the
      meaning of Section 158 (1)(b) of the Code.
G
            2.1 Such provision contemplates that the rights of every
      person in respect of land held by him in the Madhya Bharat
      region i.e. area of erstwhile Gwalior and Holkar as a Pakka tenant
      or as a Muafidar, Inamdar or Concessional holder shall be
      protected as Bhumiswami. The priest does not fall in any of the
H
 THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                  687
              AVAM KALYAN SAMITI & ANR.

clauses as mentioned in Section 158 (1)(b) of the Code. The maufi     A
was granted to the property of temples from payment of land
revenue. Such maufi was not granted to a manager. Even Inam
granted by the Jagirdar or the ruler to a priest is only to manage
the property of the temple and not confer ownership right on the
priest. Therefore, in view of the judgment in Pancham Singh and
                                                                      B
also of this Court in Kanchaniya, the priest cannot be treated to
be either a Muafidar or Inamdar in terms of Madhya Bharat Land
Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) or
in terms of Gwalior Act. Since the priest cannot be treated to be
Bhumiswami, they have no right which could be protected under
any of the provisions of the Code. [Para 24][705-F-H; 706-A-B]        C
      3. Whether the State Government by way of executive
instructions can order the deletion of name of Pujari from the
revenue record and/or to insert the name of a Collector as
manager of the temple.
      3.1 In Ghanshyamdas II, it was held that even if temple         D
was being managed by the Pujari, his name is required to be
mentioned as Pujari along with name of deity. This Court does
not find any mandate in any of the judgments to hold that the
name of Pujari or man- ager is required to be mentioned in the
revenue record. [Para 25][706-C-D]                                    E
      3.2 In terms of Section 108, 109 and 110 of the Code, Rules
had been framed initially as Appendix X. Form A has been
prescribed as per Rule 2. Later such Rules were substituted by
another Rules published on 15.5.1964 and Form I was prescribed
to maintain the records of the rights. Such Rules have been further   F
substituted on 20th December 1983, published in the Madhya
Pradesh Gazette. The Column 3 of such Form is to contain name
and address of the occupier, whereas Column 4 is required to
contain name of the tenant or sub-lessee of an occupancy tenant
of the Bhumiswami. Column 12 is meant for remarks. [Para
26][706-D-E]                                                          G

      3.3 In the ownership column, the name of the deity alone is
required to be mentioned, as the deity being a juristic person is
the owner of the land. The occupation of the land is also by the
deity which is carried out by the servant or the managers on behalf
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688            SUPREME COURT REPORTS                      [2021] 7 S.C.R.


A     of the deity. Therefore, the name of the manager or that of the
      priest is not required to be mentioned in the column of occupier
      as well. In Ghanshyamdas II, it was held that if the name of the
      Pujari is recorded in the column No. 12 i.e. column of remarks, it
      will not affect the rights of the Pujari so long as he is performing
      his functions properly and cultivating the land or getting the land
B
      cultivated through servants. Therefore, the name of the Pujari
      cannot be mandated to be recorded either in the column of
      ownership or occupancy but may be recorded in the remark’s
      column. [Para 27][707-D-F]

C          3.4 No rule has been brought to the notice that the name of
      the manager has to be recorded in the land records. In the absence
      of any prohibition either in the statute or in the rules, the
      executive instruction can be issued to supplement the statute
      and the rules framed thereunder. Such instructions do not
      contravene any of the provisions of the Code or the rules.
D     Therefore, they cannot be said to be illegal or in excess of the
      authority vested in the State Government. [Para 28][707-F-G]

            4. Another argument was raised that such circulars of the
      State Government shall be applicable to the public temples and
E     not to the private temples. A bare reading of the circulars does
      not make out such distinction. However, a temple in a house or
      which is not open to the public cannot be treated to be a public
      temple. However, it will be a question in each case whether it is
      a public temple or a private temple which can be decided in the
      appropriate proceedings. For the purpose of the present appeal,
F     we find that the circular is applicable to all temples unless a
      particular temple is able to satisfy the competent forum of it being
      a private temple. [Para 30][709-B-D]

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

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

H
 THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                    689
              AVAM KALYAN SAMITI & ANR.

        v. Murlidhar and Ors. AIR 1957 SC 133 : [1956] SCR              A
        756 – relied on.
        Ramchand (Dead) by Legal Representatives v. Thakur
        Janki Ballabhji Maharaj and Another AIR 1970 SC
        532 : [1970] 1 SCR 634 – referred to.
                                                                        B
        Ghanshyamdas v. State of M.P 1995 Revenue Nirnaya
        (RN) 235 (‘Ghanshyamdas I); Sadashiv Giri & Ors. v.
        Commissioner, Ujjain & Ors. 1985 RN 317; Shri
        Krishna v. State of M.P. 2012 (4) MPLJ 466 –
        disapprove.
                                                                        C
        Kashi Bhatti through LRs v. State of M.P. 2009 R.N.
        179; State of M.P. v. Ghanshyamdas 1999 R.N. 25
        (‘Ghanshyamdas II); Pancham Singh v. Ramkishandas
        Guru Ramdas & Ors. AIR 1972 MP 147; State of M.P.
        and Others v. Mandir Shri Khande Rao 1999 RN 392
        – referred to.                                                  D

                       Case Law Reference
[1992] 2 SCR 670                    relied on          Para 9
(2020) 1 SCC 1                      followed           Para 17          E
[1970] 1 SCR 634                    referred to        Para 21
[1956] SCR 756                      relied on          Para 29
        CIVIL APPELLATE JURISDICTION: Civil Appeal No.4850 of
2021.                                                                   F

     From the Judgment and Order dated 14.06.2016 of the High Court
of Madhya Pradesh, Bench at Indore in Writ Appeal No.617 of 2014.
       Saurabh Mishra, AAG, Sunny Choudhary, Ms. Samridhi Jain, Advs.
for the Appellants.                                                     G
       Divyakant Lahoti, Kartik Lahoti, Parikshit Ahuja, Ms. Praveena
Bisht, Ms. Madhur Jhavar, Ms. Vindhya Mehra, Ms. Shivangi Malhotra,
Advs. for the Respondents.

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690             SUPREME COURT REPORTS                               [2021] 7 S.C.R.


A            The Judgment of the Court was delivered by
             HEMANT GUPTA, J.
             1. The order dated 14.06.2016 passed in an intra-court appeal by
      the Division Bench of the Madhya Pradesh High Court is the subject
      matter of challenge herein at the instance of State of Madhya Pradesh.
B     The learned Single Bench allowed the writ petition filed by Association
      of Priests registered under the M.P. Society Registrikaran Adhiniyam
      1973. Such society has 251 members in the Districts of Dhar, Indore,
      Ratlam, Shajapur, Ujjain, Jhabua etc.
             2. The challenge in the writ petition was to quash the circulars
C     dated 21.03.1994 and 07.06.2008 whereby the names of Pujari were
      ordered to be deleted from the revenue record. The said writ petition
      was allowed on 20.11.2013 relying upon the judgments of the High Court
      in Ghanshyamdas v. State of M.P1 and Kashi Bhatti through LRs
      v. State of M.P2. The learned Single Bench held that the circulars dated
D     12.11.1992 and 21.03.1994 were already quashed by the High Court in
      the year 1995 and 1999 respectively and therefore there was no
      justification on the part of the State Government to issue circular dated
      07.06.2008 directing the Revenue Commissioner to follow the circular
      dated 21.03.1994. Learned Single Bench held as under:

E            “The name of Collector is being mentioned as manager. It is true
             that by mentioning the name of Collector as manager, properties
             owned by the Temple were saved but at the same time the
             properties could not be managed properly as it is not expected
             from the Collector to manage the properties of the Temple. To
             protect the interest of Pujari’s who are entitled to get the benefits
F            of the scheme which are being introduced by the Government for
             the benefit of the agriculturist. To protect the interest of making
             the law in that regard by suitable legislation as the problem is lying
             in the Court in number of cases for last 30 years. In result the
             impugned order dated 07/06/08 (Annexure P/21) is quashed.”
G           3. In an intra-court appeal against the aforesaid findings, the High
      Court referred to a judgment of Division Bench in State of M.P. v.
      Ghanshyamdas3, an order passed against the order in writ petition

      1
        1995 Revenue Nirnaya (RN) 235 (Hereinafter referred to as the ‘Ghanshyamdas I)
      2
        2009 R.N. 179
H     3
        1999 R.N. 25 (Hereinafter referred to as the ‘Ghanshyamdas II)
  THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                          691
      AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

reported as Ghanshyamdas I. The Court inter alia held that Pujaris             A
had no right to alienate the properties of the temple. They have rights
only with respect to either cultivate the land or get it cultivated through
servants. The High Court further held that if the temple was managed
by the Pujari, then keeping in view the law laid down from time to time,
his name was required to be mentioned as Pujari along with the name of
                                                                               B
the deity. The Court held as under:
      “The learned Writ Court relying on the decision of the cases of
      State of M.P. & others v. Ghanshyamdas & Others v. (supra),
      Kanchaniya v. Sheoram (supra) and Pancham Singh v.
      Ramkishandas (supra) has held that right of Pujaris continued
      from their forefather, cannot be taken away by executive                 C
      instructions. There was no justification on the part of the State
      Government to advice to Revenue Commissioner to follow circular
      dated 21.03.1994, when the same was quashed. It is not in dispute
      that as per Clause 5 of the Land Records Manual in Column No.3
      of Khasra Entries deals with the name of occupier; Column No.4           D
      deals with name of bhoomiswami or lessees or his representatives
      while Column No.12 deals with the remarks. Undisputedly, the
      land, which is owned by the temple or deity or the land owned by
      temple or by the trust, name of the deity/temple or trust, as the
      case may be, is required to be mentioned in Column No.3. If the
      temple is managed by the Pujari, then keeping in view the law            E
      laid down by this Court from time to time, his name is required to
      be mentioned as Pujari along with the name of the deity.”
                                                      (Emphasis supplied)
        4. Before this Court, the argument of Mr. Saurabh Mishra, learned      F
counsel appearing for the appellant, is that the preparation of revenue
records including as to what entry should be incorporated in such record
has been prescribed in the M.P. Land Revenue Code, 1959 (for short
“the Code”). The State Government, in exercise of the powers conferred
under the Code, had issued executive instructions to delete the names of
                                                                               G
Pujari from the revenue record so as to protect the temple properties
from unauthorized sale by the Pujaris. Learned counsel for the appellant
referred to the first circular issued by the State on 04.08.1969 in response
to the complaints received that Maufi land (land exempted from payment
of revenue) was being recorded in individual names and was being illegally
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692               SUPREME COURT REPORTS                          [2021] 7 S.C.R.


A     transferred. It was directed that Maufi was granted to a deity who was
      the owner of the temple and the land appended was to be that of the
      deity alone. Thereafter, another circular dated 12.04.1974 was issued
      highlighting the issue that the land which belonged to the temple and not
      covered under the Khasgi Trust was being misused by the Pujaris by
      way of sale or mortgage. The Khasgi Trust was formed for the purpose
B
      of the properties of Holkar family. Therefore, to save land which belongs
      to the temple and not covered under the Khasgi Trust, in addition to the
      name of Pujari, name of the Collector was to be recorded as manager in
      the revenue record. The reference was made to Sections 108, 114 and
      258 of the Code to support his arguments.
C
             5. Mr. Lahoti, counsel of the respondents, submitted that the Pujaris
      have been conferred Bhumiswami (ownership) rights, a right which
      cannot be taken away by executive instructions. It was argued that in
      terms of proviso to Section 57, the rights granted to the Pujaris have
      been protected and would remain unaffected by the Code. In terms of
D     Section 158, every person, in respect of land held in the Madhya Bharat
      region as a Pakka tenant or as a Muafidar, Inamdar or Concessional
      holder, as defined in the Madhya Bharat Land Revenue and Tenancy
      Act, Samvat 2007 (Act No. 66 of 1950), confers Bhumiswami rights on
      the pujari, which has further been protected by a conjoint reading of
E     Section 57 and Section 158 of the Code. The Madhya Bharat Land
      Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of 1950) was
      enacted after the merger of Gwalior and Holkar State in the year 1950,
      prior to reorganization of State of Madhya Pradesh in the year 1956.
      Mr. Lahoti also refers to ‘Gwalior Act’ to argue that such Act conferred
      proprietary rights to the priest which were initially protected by the Madhya
F     Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of
      1950) and later by virtue of Section 158 of the Code. The reliance was
      placed upon the judgment of the Division Bench of the High Court in
      Shri Krishna v. State of M.P.4. Mr. Lahoti relied upon Sections 57,
      158 & 159 of the Code.
G
             6. The provisions of the Code as are relevant for the present
      order read as under:



H     4
          2012 (4) MPLJ 466
THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                        693
    AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

   “2. Definitions-                                                        A
   (1)   In this Code, unless there is anything repugnant to the subject
         or context,
             xxx              xxx               xxx
   (z-3) “unoccupied land” means the land in a village other than          B
         the abadi or service land, or the land held by a Bhumiswami,
         a tenant or a government lessee.
   57.   State ownership in all lands-
   (1)   All lands belong to the State Government and it is hereby
         declared that all such lands, including Standing and flowing      C
         water, mines, quarries, minerals and forests reserved or not,
         and all rights in the sub-soil of any land are the property of
         the State Government:
            Provided that nothing in this section shall, save as
            otherwise provided in this Code, be deemed to affect           D
            any rights of any person subsisting at the coming into
            force of this Code in any such property.
   91A. Power to make rule-
         The State Government may make rules for regulating
         generally the conduct of a revenue survey or Settlement           E
         under this Chapter.
   108. Record of rights.- [(1)] A record-of-rights shall in
   accordance with rules made in this behalf be prepared and
   maintained for every village and such record shall include the
   following particulars:-                                                 F

   (a)   the names of all Bhumiswamis together with survey
         numbers or plot numbers held by them and their area,
         irrigated or unirrigated;
   (b)   the names of all occupancy tenants and Government lessees         G
         together with survey numbers or plot numbers held by them
         and their area irrigated or unirrigated;
   (c)   the nature and extent of the respective interests of such
         persons and the conditions or liabilities, if any, attaching
         thereto;
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694         SUPREME COURT REPORTS                         [2021] 7 S.C.R.


A     (d)     the rent or land revenue, if any, payable by such persons;
              and
      (e)     such other particulars as may be prescribed.
      [(2) The record-of-rights mentioned in sub-section (1) shall be
      prepared during a [revenue survey] or whenever the State
B     Government may, by notification, so direct.]
      114. Land records.- In addition to the map and Bhoo Adhikar
      Pustikas, there shall be prepared for each village a khasra or field
      book and such other land records as may be prescribed.

C     116. Disputes regarding entry in khasra or in any other land
      records –
      (1)     If any person is aggrieved by an entry made in the land
              records prepared under section 114 in respect of matters
              other than those referred to in section 108, he shall apply to
D             the Tahsildar for its corrections within one year of the date
              of such entry.
      (2)     The Tahsildar shall, after making such enquiry as he may
              deem fit, pass necessary orders in the matter.
      121. Power to make rules for land records –
E             The State Government may make rules for regulating the
              preparation, maintenance and revision of land records
              required for the purposes of this Code.
      158. Bhumiswami- [(1)] Every person who at the time of coming
      into force of this Code, belongs to any of the following classes
F     shall be called a Bhumiswami and shall have all the rights and be
      subject to all the liabilities conferred or imposed upon a Bhumiswami
      by or under this Code namely-
      (a)     every person in respect of land held by him in the
              Mahakoshal region in Bhumiswami or Bhumidhari rights in
G             accordance with the provisions of the Madhya Pradesh
              Land Revenue Code, 1954 (II of 1955);
      (b)     every person in respect of land held by him in the Madhya
              Bharat region as a Pakka tenant or as a Muafidar, Inamdar

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THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                      695
    AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

         or Concessional holder, as defined in the Madhya Bharat         A
         Land Revenue and Tenancy Act, Samwat 2007 (66 of 1950);
   (c)   every person in respect of land held by him in the Bhopal
         region as an occupant s defined in the Bhopal State Land
         Revenue Act, 1932 (IV of 1932);
   160. Revocation of exemption from liability for land                  B
        revenue-
   (1)   Every Muafi of Inam land, wherever situate, which was
         heretofore exempted from payment of the whole or part of
         the land revenue by a special grant from the Government
         or under the provisions of any law for the time being in        C
         force or in pursuance of any other instrument shall,
         notwithstanding anything contained in any such grant, law
         or instrument be liable from the commencement of the
         revenue year next following the coming into force of this
         Code, to the payment of full land revenue assessable thereon.   D
   (2)   Where any such Muafi or Inam land is held for the
         maintenance or upkeep of any public religious or charitable
         institution, the State Government may, on the application of
         such institution, in the prescribed form [and made within
         such time as may be prescribed] grant to it such annuity        E
         not exceeding the amount of the exemption from land
         revenue enjoyed by it, as may be considered reasonable
         for the proper maintenance or upkeep of such institution or
         for the continuance of service rendered by it.
   258. General rule making power.-                                      F
   (1)   The State Government may make rules generally for the
         purpose of carrying into effect the provisions of this Code.
   (2)   In particular and without prejudice to the generality of the
         foregoing powers such rules may provide for-
                     xxx              xxx              xxx               G

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


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696                 SUPREME COURT REPORTS                             [2021] 7 S.C.R.


A                       (xxii) the prescription of the form of, and the additional
                               particulars to be entered in the papers to be included
                               in the record of rights under section 108;
                        (xxv) (a) prescription of other land records under section
                              114(1),
B                                (b) prescription of fee on the payment of which
                                 Rasid Bahi shall be provided under section 114 (2)
                                 and the prescription of entries which it shall contain;
                        (xxvii) preparation and maintenance and revision of land
                                records under section 121"
C
              7. We have heard the learned counsel for the parties and find that
      there is lack of clarity in the High Court in regard to the legal
      jurisprudence. Different judgments have been referred to in respect of
      rights of the priests as to whether they can be treated as Bhumiswami
      or if they only hold the temple land for the purpose of management of
D     the property of the temple, which actually vests with the deity.
              8. One of the earliest judgments on the right of a priest was
      rendered by the Division Bench of Madhya Pradesh High Court reported
      as Pancham Singh v. Ramkishandas Guru Ramdas & Ors.5. Section
      13 of the Qawaid Muafidaran Jujve Araji, Samwat 19916 was examined
E     as to the remedy of ejectment of a pujari who claimed status of Mourushi
      Kashtakar as under Section 248 (1) of the Code or by way of a civil suit.
      It was held that a Pujari is not a Kashtkar Mourushi, i.e., tenant in
      cultivation or a government lessee or an ordinary tenant of the Maufi
      lands but holds such land on behalf of the Aukaf Department for the
F     purpose of management. The High Court held as under:
                “7. …… The Maufi lands all the while belonged to the
                Government. The former Pujari was, therefore, not a Kashtakar
                Mourusi or a Government lessee or an ordinary tenant of the
                maufi lands, but was merely holding them on behalf of the Aukaf
                Department for purposes of management.
G
                            xx                  xx              xx
                12. On a plain reading, the definition excludes a Pujari. The former
                Pujari was, therefore, not a Kashtakar Mourushi of the maufi
      5
          AIR 1972 MP 14
H     6
          Hereinafter referred to as the ‘Gwalior Act’
     THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                          697
         AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

         land, but was merely holding them on behalf of Aukaf Department          A
         for purposes of management. Under the 2nd Proviso to Section
         365 of the Qanoon Mai, Gwalior, he had no right of transfer.
                   xx                xx                xx
         16. We are, therefore, of the view that the former Pujari had no
         other status than that of a manager of the lands on behalf of the        B
         Aukaf Department. While it is accepted before us that the former
         Pujari had no right of transfer by mortgage or sale, it is urged that
         there was no restriction on sub-letting. It is also urged that the
         terms “Mourushi Kashtakar” and “Dakhilkar Kashtakar Bila
         Lagani” were synonymous and that, as every Mourushi Kashtakar            C
         had the right to sub-let, it necessarily follows that a Dakhilkar
         Kashtakar Bila Lagani had also a similar right. We are unable to
         agree with this line of reasoning. It would be repugnant to the
         nature of the grant itself to clothe such a person with a right of
         transfer of any kind. The whole purpose of the grant, which was
         for the upkeep of the temple, would be frustrated if the maufi           D
         lands were allowed to be sublet by the Pujari and new rights created
         in favour of a stranger.
         17. Where a grant of land is made in consideration for service to
         be rendered by a grantee, in lieu of wages, it is an implied condition
         of the grant that if the services are not performed or are not           E
         required, the grant can be resumed. The Parwana expressely stated
         that the grant in favour of the former Pujari was resumable for
         breach of any of the conditions set out therein, or upon his death
         or removal. The death of the former Pujari was, in the instant
         case, the terminal point. That being so, the grant lapsed with his       F
         death. As the grant created no interest in favour of the former
         Pujari, whatever rights the petitioners father, Thakur
         Murlidnarsingh had, also lapsed and he became a rank trespasser.”
                                                        (Emphasis Supplied)
       9. This Court in a judgment reported as Mst Kanchaniya and                 G
Others v. Shiv Ram and Others7 considered the Gwalior Act as well
as the Code. The decision of the High Court in Pancham Singh was
approved, and it was held as under:

7
    AIR 1992 SC 1239                                                              H
698      SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A     “15. Shri Shiv Dayal has submitted that the learned Judges of the
      Division Bench of the High Court were in error in holding that a
      Pujari was not a Kashtakar Mourushi of the maufi land and that
      the said finding is contrary to the language of Section 13 of Kawaid
      Maufidaran wherein it is clearly stated that the Pujari would have
      the rights of a Kashtakar Mourushi. According to Shri Shiv Dayal
B
      the only limitation on the rights of the Pujari as a Kashtakar
      Mourushi was that contained in Section 265 of the Qanoon Mal
      whereby he was precluded from selling or mortgaging the maufi
      lands but there was no provision restricting his right to create a
      lease for cultivation of the lands. We are unable to agree. Although
C     under Section 13 of Kawaid Maufidaran, the right of a Kashtakar
      Mourushi have been conferred on the Pujari and under 265 of the
      Qanoon Mal, the restriction on his right was with regard to sale
      and mortgage only but it cannot be ignored that under Section 13
      of Kawaid Maufidaran the right of a Kashtakar Mourushi which
      have been conferred on the Pujari is subject to the overriding
D
      condition that in case he does not perform his duties properly, he
      can be removed and another Pujari can be appointed and a patta
      could be issued in his favour. This is also borne out by definition of
      the expression ‘Kashtakar Mourushi’ in Section 2(29) of the
      Qanoon Mal which imposes the condition that the Aukaf
E     Department would be entitled to dispossess, without an order of
      the court, the Pujari who obtains the right of Kashtakar Mourushi
      on the basis of Kawaid Maufidaran and who does not render his
      services properly. The matter is further made clear by the
      prescribed form of the Parwana which is issued to the Pujari
      wherein it is also clearly mentioned that Pujari does not have any
F
      right in the land and his status is that of a manager and that he
      could get the land cultivated either himself or through others so
      that the income derived therefrom could be applied towards worship
      and upkeep of the temple and that the grant would be resumed
      for breach of any of the conditions or upon the death of the former
G     Pujari. In other words, the rights of the Pujari do not stand on the
      same footing as those of a Kashtakar Mourushi in the ordinary
      sense who was entitled to all rights including the right to sell or
      mortgage. We are, therefore, in agreement with the view of the
      Division Bench of the Madhya Pradesh High Court in
      Panchamsingh case that a Pujari had no other status than that of
H
  THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                           699
      AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

      the manager functioning under the control of the Aukaf Department         A
      and he had no right to transfer, either by way of sale or mortgage
      or by lease, the land entrusted to him. In that view of the matter,
      it must be held that the patta granted in favour of Malkhan by
      Vasudev Rao, father of respondent 1, was not valid and did not
      confers any right or interest on Malkhan in the land covered by
                                                                                B
      the said patta.” (Emphasis Supplied)
       10. This Court further held that temple land does not fall in any of
the excepted categories in Section 2(z-3), therefore, it was unoccupied
land and set apart for a public purpose, i.e., for the upkeep of the temple.
It was thus held that Patta granted in favour of Malkhan to cultivate the
land in dispute came to an end on the death of Malkhan and the possession       C
of the appellant over the land in dispute as legal heirs of Malkhan cannot
be said to be authorised by respondent No.1.
      “19. The land in dispute does not fall in any of the excepted
      categories mentioned in Section 2(z-3). It must, therefore, be held
      to be unoccupied land. Since it was set apart for a public purpose,       D
      viz., for the upkeep of temple, it can be said to be land set apart
      for a special purpose under clause (j) of sub-section (1) of Section
      237 of the Code. What has to be seen is whether the possession
      of Malkhan of the same was unauthorised. It has been urged on
      behalf of the appellants that the possession of Malkhan could not         E
      be said to be unauthorised on the date of the filing of the application
      by Respondent 1 in view of the fact that Vasudev Rao, father of
      Respondent 1, had granted a patta permitting Malkhan to cultivate
      the land during his (Malkhan’s) lifetime and after the death of
      Vasudev Rao, Respondent 1 had also granted a patta permitting
      Malkhan to continue in cultivation of the land in dispute and had         F
      been receiving Rs 100 annually as rent from Malkhan. …….…In
      view of the death of Malkhan during the pendency of the writ
      petition in the High Court, the question whether Respondent 1 has
      granted a patta permitting Malkhan to cultivate the land in dispute
      during his lifetime, does not survive because even if it is held that     G
      the patta granted in favour of Malkhan by Respondent 1 permitted
      Malkhan to cultivate the land in dispute during his lifetime, the
      said authority under which Malkhan was in possession of the
      disputed land came to an end on the death of Malkhan and the
      possession of the appellants over the land in dispute after the
                                                                                H
700               SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A              death of Malkhan cannot be said to be authorised by Respondent
               1.”
             11. A circular was issued on 28.5.1979 regarding the Devesthani
      land in respect to control and management of the land attached to the
      temples, in accordance with the manner mentioned in the circular. In the
B     said circular, there was a restriction that the agricultural land owned by
      religious institutions should not be leased out for a period of more than 3
      years. The priests were allowed to lease up to first 10 acres of land for
      self-cultivation for maintenance and for management of temple without
      any auction and without any lease rent. Another 10 acres could be given
      to the Pujari for his self-agricultural purposes but on payment of lease
C     rent. Such rent was to be deposited in the name of the deity and could be
      used for the maintenance of the temple. The remaining land could be
      leased by auction.
             12. The policy of auction was challenged by way of a writ petition.
      The said writ petition was allowed. The order passed by learned Single
D     Judge was challenged in appeal in a judgment reported as State of M.P.
      and others v. Mandir Shri Khande Rao8. The Bench relied upon the
      earlier Division Bench judgment reported as Ghanshyamdas II.
      However, while referring to the Gwalior Act, the Court held as under:
               “13. We are of the considered opinion that the provisions contained
E              in Regulation 13 clearly envisaged the continuance of the Muafi
               and the rights vesting in the deity in respect of its properties
               including the agricultural holdings till the vesting of the ownership
               thereof in the State under the Management of its department of
               “Aukaf” relating to ‘Devasthan’. It is obvious, therefore, that so
F              long as the rights of Muafidar were not extinguished vesting the
               properties including the agricultural holdings in the State and the
               revenue records were corrected showing the same as ‘Milkiat
               Sarkar’ under the management of department of Aukaf relating
               to Devasthan there could be no occasion for interfering in the
               management of the holding/land vesting in the Deity/Devasthan
G              in any manner including the grant of temporary leases for the
               purpose of cultivation taking recourse to auction treating the
               holdings of the deity as ‘Milkiat Sarkar’ even though none of the
               conditions contemplated under Regulation 13 stood satisfied.”

      8
H         1999 RN 392
  THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                          701
      AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

       13. The Court held that, with respect to the State’s right to auction   A
property of the temple, once the land is vested with the deity/temple, the
State cannot have a right to auction the property of the temple.
       14. In Ghanshyamdas I, the learned Single Bench was not
apprised of the judgments of the Division Bench in Pancham Singh or
of this Court in Kanchaniya, and the same are not referred in the              B
judgment. The Single Bench thus held that the proprietary rights conferred
on a pujari could not be brought to an end by an executive instruction.
The said judgment was partly overruled in Ghanshyamdas II.
       15. The circular dated 12.11.1992 was issued wherein the name
of the Collector was directed to be recorded as a manager whereas the          C
name of the Pujari of the concerned Devasthan was to be recorded in
Column No. 12. The said circular was under consideration before the
Division Bench in Ghanshyamdas II. It was held that the Pujaris have
no right to alienate the properties of the temple. They have to cultivate
the land or to get the land cultivated through their servants for the
maintenance of temple and also perform the daily rituals. They do not          D
acquire any right to alienate the property of the temple. The Court held
as under:-
       “13. The rights of Pujari have been considered in the case of
       Pancham Singh and Kanchaniya (supra) and a bare perusal of
       Regulation 12 and 13 of the Regulations indicates that the Pujaris      E
       have no right to alienate the properties of the temple. They have
       to cultivate the land or to get the land cultivated through their
       servants for the maintenance of temple and its daily rituals. They
       do not acquire any right to alienate the property of the temple.
       14. In the case of Pancham Singh (supra), it is held that the Pujaris   F
       have no right to alienate the property of the temple in any manner.
       Thus the Regulations 12 and 13 of the Regulations are plain and
       simple and must receive its legal meaning. The Pujari has no other
       status than that of a manager. He could get the land cultivated
       either himself or through servants, but he had no right to alienate
       them lands in any manner. It cast upon him a duty to keep the land      G
       under cultivation so that the income derived therefrom could be
       applied towards Pooja and upkeep of the temple. All the Muafi
       lands belong to the Government. Pujaris not Kashtkar Mourushi
       of Government lossee or even the tenants of the Muafi lands but
       were merely holding the land either on behalf of the Aukuf
                                                                               H
702            SUPREME COURT REPORTS                            [2021] 7 S.C.R.


A           Department or on behalf of the deity of the temple for the
            management of the temple. Under regulations 12 and 13 of the
            Regulations, Pujaris do not have the absolute right of inheritance.
            23. From a bare reading of Regulations 12 and 13 of the Regulations,
            it is apparent that the Pujari’s right of inheritance is subject to his
B           qualification and is not automatic.
            24. No Pujari or trustee or manager can claim the title of religious
            property. The property always belongs to the temple i.e. deity.
            25. In the case of Rameshchandra v. Janki Ballabhji (AIR
            1970 SC 532) it is held that the Pujari claiming proprietary rights
C           amounts to mismanagement and is not fit to remain in possession
            or to continue as Pujari. Therefore, the persons claiming title over
            the property of the deity are not liable to continue as Pujari.
            26. The executive inststruction issued by the Government is in the
            interest of the deity and to avoid wastage or misuse of the property
            of the temple. Even if the name of Pujari is recorded in column
D           No. 12 of the Khasra it will not affect the rights of Pujari so long
            as he is performing his functions properly and cultivating the land
            or getting the land cultivated through servants.
            27. It is therefore, held that placing the name of Pujari in column
            No. 12 of the Khasra does not affect the rights of Pujari. As
E           discussed above and held in the cases of Kanchaniya and
            Pancham Singh (supra), the Pujaris do not have any right in the
            property of temple. Therefore, recording of their name is column
            No. 12 will not affect their rights since their rights are not affected
            as measures have been taken by the Government for the safety
F           of the temple’s property, which cannot be faulted with. The
            Government have always the right to issue directions or preparing
            norms for preserving the property of deity. The judgment of the
            learned single Bench is contrary to the judgment of Kanchaniya’s
            case (supra).
G           28. However, the directions of the State Government that the
            name of Pujari be deleted from all the columns of Khasra and
            should not be recorded anywhere is quashed, as the learned
            Advocate General frankly conceded that directions is bad in law.”
             16. A circular dated 21.03.1994 was issued wherein it was directed
H     that the name of the Pujari should not be recorded in any of the column
     THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                         703
         AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

of the Panchnama (revenue record). The Collector was directed to                 A
maintain a separate register for maintaining the records of the priest.
The High Court in Shri Krishna held that all those persons who were
granted land or were recognised as Inamdar (in the erstwhile Indore
State) for religious services rendered by them as Pujari have been
recognised as Bhumiswami under the Code. The Pujaris were holding
                                                                                 B
land for rendering religious services; therefore, a right had been created
in their favour which could not be withdrawn by an executive instruction.
The Court held as under:
         “5A. From the discussion above, it is evident that all those persons
         who were granted land or were recognised as Inamdar (in the
         erstwhile Indore State) for the religious services rendered by them     C
         as Pujari of the Temple have been recognised to be a
         Bhhomiswami under the Code and their names appeared as such
         in Revenue Records, since they were holding land for rendering
         religious services as Pujari of the Temple and the land was granted
         specifically for that purpose, the name of the Collector as Manager     D
         along with these pujaris was directed to be shown. This long
         possession and recording of their names in revenue records as
         Bhoomiswami or Managers has definitely created a right in their
         favour. It is an established principle of law that if any right has
         been vested in a person by certain statutory provisions, the same
         cannot be withdrawn by an executive instruction. Even if a person       E
         is required to be deprived of his vested right in a property, a legal
         procedure for the same will have to be adopted. If the State
         Government of MP feels that the recording of name of such
         persons as Bhoomiswami is non-est, then too it will have to give
         a notice to the person and an opportunity of hearing and after          F
         making due enquiry followed by a reasoned order (if it is found as
         such), the order for modification, corrections and change in the
         record can be done.”
       17. On the other hand, there are some judgments taking different
view within the High Court including the one reported as Sadashiv Giri           G
& Ors. v. Commissioner, Ujjain & Ors.9 wherein an argument was
raised that the temple is in possession of land. However, the Court held
that how could the temple have such possession, therefore, it was the
Pujari who had been conferred the right to upkeep and perform puja by
9
    1985 RN 317                                                                  H
704                SUPREME COURT REPORTS                          [2021] 7 S.C.R.


A     the then Jagirdars. The Pujaris were the Inamdars of the land in question
      and thus became Bhumiswami when the Code came into force on
      02.10.1959. The said judgment is clearly erroneous as the presiding deity
      of the temple is the owner of the land attached to the temple. The Pujari
      is only to perform puja and to maintain the properties of the deity. In
      fact, the Constitution Bench in a judgment reported as M. Siddiq (Dead)
B
      Through Legal Representatives v. Mahant Suresh Das and
      Others10 held as under:
                “511. …….. A pujari is merely a servant or appointee of a shebait
                and gains no independent right as a shebait despite having conducted
                ceremonies over a period of time. All the evidence relied upon to
C               support the claim of late Baba Abhiram Das is restricted to his
                having performed puja at the disputed premises and does not confer
                any shebaiti rights.”
             18. Hence, the Division Bench judgment in Shri Krishna has
      conferred the status of Bhumiswami on the priest but without bringing
D     the judgment in Pancham Singh before the notice of the Court. Such
      Judgment has been rendered in ignorance of the binding Division Bench
      judgment which is supported by the law laid by Supreme Court in Mst.
      Kanchaniya. The judgment in Sadashiv Giri is in respect of action of
      auction without the authority of law. The judgment in Pancham Singh
E     was cited but question was not examined as the petitioners were said to
      trespassers by the State. The High Court found that the petitioners being
      in possession can be deprived of possession only in accordance with
      law.
             19. In the present case, the question which is required to be decided
F     is whether a priest can be treated as Bhumiswami under the Madhya
      Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act No. 66 of
      1950) and as a consequence under the Code. The reliance of the
      respondent is on Gwalior Act. In some of the judgments mentioned above,
      the provisions of Gwalior Act have been described as ‘Regulations’ and
      in some as ‘Sections’. Since it appears to be issued by the then ruler of
G     Gwalior, the same has to be treated as a statute, having a force of law
      applicable in the erstwhile State of Gwalior.
           20. This question has already been considered by the courts in
      Pancham Singh, which has further been affirmed by Kanchaniya. The
      10
H          (2020) 1 SCC 1
     THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                        705
         AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

Law is clear on the distinction that the Pujari is not a Kashtkar Mourushi,     A
i.e., tenant in cultivation or a government lessee or an ordinary tenant of
the maufi lands but holds such land on behalf of the Aukaf Department
for the purpose of management. The Pujari is only a grantee to manage
the property of the deity and such grant can be reassumed if the Pujari
fails to do the task assigned to him, i.e., to offer prayers and manage the
                                                                                B
land. He cannot be thus treated as a Bhumiswami. The Kanchaniya
further clarifies that the Pujari does not have any right in the land and his
status is only that of a manager. Rights of pujari do not stand on the
same footing as that of Kashtkar Mourushi in the ordinary sense who
are entitled to all rights including the right to sell or mortgage.
        21. In a judgment reported as Ramchand (Dead) by Legal                  C
Representatives v. Thakur Janki Ballabhji Maharaj and Another11,
it was held that if the Pujari claims proprietary rights over the property
of the temple, it is an act of mismanagement and he is not fit to remain in
possession or to continue as a Pujari.
      22. The contrary view expressed by the High Court in                      D
Ghanshyamdas I, Sadashiv Giri and Shri Krishna does not lay down
good law in view of binding precedent of the Division Bench of the High
Court in Pancham Singh as also of this Court in Kanchaniya. All these
judgments presenting a contrasting view had not noticed the said binding
precedents dealing with the rights of priest under the Gwalior Act.             E
       23. Taking into consideration the past precedents, and the fact
that under the Gwalior Act, Pujari had been given right to manage the
property of the temple, it is clear that that does not elevate him to the
status of Kashtkar Mourushi (tenant in cultivation).
      24. The ancillary question which arises is whether the priest is          F
Inamdar or Maufidar within the meaning of Section 158 (1)(b) of the
Code. Such provision contemplates that the rights of every person in
respect of land held by him in the Madhya Bharat region i.e. area of
erstwhile Gwalior and Holkar as a Pakka tenant or as a Muafidar, Inamdar
or Concessional holder shall be protected as Bhumiswami. The priest             G
does not fall in any of the clauses as mentioned in Section 158(1)(b) of
the Code. The maufi was granted to the property of temples from payment
of land revenue. Such maufi was not granted to a manager. Even Inam
granted by the Jagirdar or the ruler to a priest is only to manage the
11
     AIR 1970 SC 532                                                            H
706            SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A     property of the temple and not confer ownership right on the priest.
      Therefore, in view of the judgment in Pancham Singh and also of this
      Court in Kanchaniya, the priest cannot be treated to be either a Muafidar
      or Inamdar in terms of Madhya Bharat Land Revenue and Tenancy
      Act, Samvat 2007 (Act No. 66 of 1950) or in terms of Gwalior Act.
      Since the priest cannot be treated to be Bhumiswami, they have no right
B
      which could be protected under any of the provisions of the Code.
             25. Another question which arises is whether the State
      Government by way of executive instructions can order the deletion of
      name of Pujari from the revenue record and/or to insert the name of a
      Collector as manager of the temple. In Ghanshyamdas II, it was held
C     that even if temple was being managed by the Pujari, his name is required
      to be mentioned as Pujari along with name of deity. We do not find any
      mandate in any of the judgments to hold that the name of Pujari or
      manager is required to be mentioned in the revenue record.
             26. In terms of Section 108, 109 and 110 of the Code, Rules had
D     been framed initially as Appendix X. Form A has been prescribed as per
      Rule 2. Later such Rules were substituted by another Rules published
      on 15.5.1964 and Form I was prescribed to maintain the records of the
      rights. Such Rules have been further substituted on 20th December 1983,
      published in the Madhya Pradesh Gazette. The Column 3 of such Form
E     is to contain name and address of the occupier, whereas Column 4 is
      required to contain name of the tenant or sub-lessee of an occupancy
      tenant of the Bhumiswami. Column 12 is meant for remarks. The relevant
      Rules read as under:-
                               Part II – KHASRA.
F           “6. The Patwari shall prepare each agricultural year a khasra for
            each village that has been completely surveyed in his circle in
            Form I.
            7. The khasra shall be written up in the field by the Patwari after
            local enquiry and actual inspections. A separate entry shall be
G           made for every plot, and every plot, whether cultivated or not
            shall be entered.
                   Provided that small baris situated within the village side
            and included in the village abadi plot, shall not be shown separately
            but included in the abadi area.
H
  THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                          707
      AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

      8. Entries shall be made by the Patwari according to facts found         A
      by him during local inspection.
      9. (a) A fresh volume of the khasra shall be prepared every fifth
      year, in Form I. The Patwari shall enter each agricultural year the
      changes that have occurred in the columns provided for the
      purpose:                                                                 B
            Provided that the Collector in his discretion may order a
      fresh volume of the khasra in any village to be prepared at an
      interval shorter than five years.
            (b) The Collector shall prepare a roster and arrange the
      preparation of the first Khasra after settlement, so that the            C
      preparation of all the khasras in a circle shall not fall due in one
      and the same year.”
       27. In the ownership column, the name of the deity alone is required
to be mentioned, as the deity being a juristic person is the owner of the
land. The occupation of the land is also by the deity which is carried out     D
by the servant or the managers on behalf of the deity. Therefore, the
name of the manager or that of the priest is not required to be mentioned
in the column of occupier as well. In Ghanshyamdas II, it was held
that if the name of the Pujari is recorded in the column No. 12 i.e.
column of remarks, it will not affect the rights of the Pujari so long as he   E
is performing his functions properly and cultivating the land or getting
the land cultivated through servants. Therefore, the name of the Pujari
cannot be mandated to be recorded either in the column of ownership or
occupancy but may be recorded in the remark’s column.
       28. No rule has been brought to the notice that the name of the         F
manager has to be recorded in the land records. In the absence of any
prohibition either in the statute or in the rules, the executive instruction
can be issued to supplement the statute and the rules framed thereunder.
Such instructions do not contravene any of the provisions of the Code or
the rules. Therefore, they cannot be said to be illegal or in excess of the
authority vested in the State Government.                                      G
       29. However, we find that the name of the Collector as manager
cannot be recorded in respect of property vested in the deity as the
Collector cannot be a manager of all temples unless it is a temple vested
with the State. Still further, this Court in a judgment reported as Deoki
                                                                               H
708                SUPREME COURT REPORTS                           [2021] 7 S.C.R.


A     Nandan v. Murlidhar and Ors.12 has drawn the distinction between a
      public and a private temple. This Court held as under:
               “4. The question that arises for decision in this appeal whether
               the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public
               endowment or a private one is one of mixed law and fact.
B              In Lakshmidhar Misra v. Ranga Lal [(1949) LR 76 IA 271] in
               which the question was whether certain lands had been dedicated
               as cremation ground, it was observed by the Privy Council that it
               was “essentially a mixed question of law and fact”, and that while
               the findings of fact of the lower appellate court must be accepted
               as binding, its “actual conclusion that there has been a dedication
C              or lost grant is more properly regarded as a proposition of law
               derived from those facts than as a finding of fact itself”. In the
               present case, it was admitted that there was a formal dedication;
               and the controversy is only as to the scope of the dedication, and
               that is also a mixed question of law and fact, the decision of which
D              must depend on the application of legal concepts of a public and a
               private endowment to the facts found, and that is open to
               consideration in this appeal.
                             xx                     xx                         xx
               7. When once it is understood that the true beneficiaries of religious
E              endowments are not the idols but the worshippers, and that the
               purpose of the endowment is the maintenance of that worship for
               the benefit of the worshippers, the question whether an endowment
               is private or public presents no difficulty. The cardinal point to be
               decided is whether it was the intention of the founder that specified
F              individuals are to have the right of worship at the shrine, or the
               general public or any specified portion thereof. In accordance
               with this theory, it has been held that when property is dedicated
               for the worship of a family idol, it is a private and not a public
               endowment, as the persons who are entitled to worship at the
               shrine of the deity can only be the members of the family, and that
G              is an ascertained group of individuals. But where the beneficiaries
               are not members of a family or a specified individual, then the
               endowment can only be regarded as public, intended to benefit
               the general body of worshippers.

      12
H          AIR 1957 SC 133
  THE STATE OF MADHYA PRADESH & ORS. v. PUJARI UTTHAN                               709
      AVAM KALYAN SAMITI & ANR. [HEMANT GUPTA, J.]

             In the light of these principles, we must examine the facts            A
      of this case. The materials bearing on the question whether the
      Thakurdwara is a public temple or a private one may be considered
      under four heads: (1) the will of Sheo-Ghulam, Exhibit A-1, (2)
      user of the temple by the public, (3) ceremonies relating to the
      dedication of the Thakurdwara and the installation of the idol with
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      special reference to Sankcalpa and Uthsarga and (4) other facts
      relating to the character of the temple.”
       30. Another argument was raised that such circulars of the State
Government shall be applicable to the public temples and not to the private
temples. A bare reading of the circulars does not make out such distinction.
However, a temple in a house or which is not open to the public cannot              C
be treated to be a public temple. However, it will be a questionin each
case whether it is a public temple or a private temple which can be
decided in the appropriate proceedings. For the purpose of the present
appeal, we find that the circular is applicable to all temples unless a
particular temple is able to satisfy the competent forum of it being a              D
private temple.
       31. In view of the above observations and discussions, the order
of the High Court cannot be sustained. The Circulars dated 21.3.1994
and 7.6.2008 cannot be said to be illegal in any manner. The Writ petition
is thus dismissed and the appeal is allowed.                                        E

Ankit Gyan                            Writ Petition dismissed and appeal allowed.



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