R.D. Shukla, J.

1. This Judgment shall govern the disposal of all these appeals which are directed against the judgment and order dated 2-8-1994 of learned Single Judge passed in W.P. No. 1311/94 whereby W.P. Nos. 1310/94, 1309/94, 1307/94, 1308/94, 1306/94, 1327/94, 1326/94 have been disposed off. The brief history of the case is that the petitioners in all those petitions filed different petitions with the averments that they are Pujaris of Temple and the land attached to the Temple were given to them in Inam, consequently they acquired right of Bhoomiswami under the provisions of section 158 of M.P. Land Revenue Code (for short the Code). They are continuously in possession of the land, their names were recorded as Bhoomiswami along with the Collector of the District. However, Government of M.P. by an executive order Annex.P/5 directed for removal of the names of the petitioners from the revenue records with a further direction that the Collector of the District be incorporated as Manager. It was further contended that this is contrary to law and is a violation of fundamental rights guaranteed under Articles 25, 26, 31-A and 300-A of the Constitution of India.

The petitioners were neither given notice nor opportunity of hearing. Their rights are protected under section 195 of the Code and thereafter under section 158 of the Code. It was further asserted that the petitioners have acquired right and the same cannot be taken away by an executive order. Petitioners are entitled to be recognised and recorded as Bhoomiswami. It was, therefore, prayed that the executive order P/5 be quashed and their names should be allowed to continue as Bhoomiswami of the land.

The respondent-State vehemently opposed the relief sought by the petitioners and submitted that the petition involves a question of title to the immovable property and that cannot be adjudicated in the writ petition. It has also been submitted that order is of 1992 and, therefore, petition is not maintainable due to delay and laches. It has also been submitted that as alternative remedy of declaration of title by Civil Court is available to the petitioners.

After hearing the rival contentions of the parties, the learned Single Judge has accepted the right to possession of petitioners but as the question of title is involved, declined to interfere and dismissed the petition with following directions:

a) The petitioner may resort to common civil law through proper civil suit.

b) The respondents shall not dispossess the petitioner from the lands in question without notice of reasonable duration and hearing and in case of risk of dispossession, the petitioner may take appropriate steps to protect the same, if justifiable on facts and in law. The proper forum will decide that question, as and when occasion arises, in accordance with law.

Hence these appeals by the petitioners/appellants.

2. Contention of learned counsel for appellant is that the petitioners were Inamdars and have been recognised as Bhoomiswami under the Code, since right has been conferred on them by operation of law, their names were recorded as Bhoomiswami. Therefore, State Government by an executive order cannot direct removal of names of the petitioners which shall adversely affect their rights. It has also been submitted that the names of the petitioners could not be removed by executive instructions without notice and without giving them an opportunity of hearing.

As against it, learned counsel for respondent State has submitted that the right of the petitioners have been protected to the extent that they shall not be dispossessed excepting in due process of law and, therefore, deletion of names from Revenue Records would be a matter which can be adjudicated on filing of the suits by the petitioners in Civil Courts.

3. We have perused the records, documents and legal provisions, as submitted by learned counsel for parties.

4. Admittedly all the petitioners belong to area which form part of erstwhile Holkar State of Indore. The Indore Land Revenue and Tenancy Act, 1931 was in force in that area. Section 64 of the Act provides for Special Tenures. "Assignee of proprietary rights" means a person who enjoys, free of revenue or on a favoured assessment, certain proprietary rights, by assignment from the Maharaja, over a specified area of land; and includes a Jahagirdar, an Istmurardar, an Inamdar, a Khotidar Patel and any other person hereafter declared by Government to be an assignee of proprietary rights.

Inamdar has been defined in following terms :

"Inamdar" means a person whose assignment consists of a holding, granted by the Maharaja, free of revenue, for the holders maintenance; or as a reward for some past service, secular or religious or as remuneration for some continuing service, secular or religious, the performance of which is a condition of the grant.

A circular Annexure 4/B was issued by Holkar State and it was clarified that temples receiving Nemnuk or some aid for repairs will not gain the character of becoming State Temple and only those temples would be deemed to be State Temple or State Institutions which has been constructed at the expenses of the State and which is being managed by or under the instructions at the State. After the merger of Gwalior and Holkar State, Madhya Bharat Tenancy Act No. 66 of 1950 was enacted and that came into force w.e.f. 1-5-1950. Thereafter, M.P. Land Revenue Code was enacted and it came into force w.e.f. 2-10-1959. Section 158 of the Code which is still in force, makes a provision for Inamdar of an area, which is as follows:--

158. Bhumiswami--(1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhoomiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhoomiswami by or under this Code, namely--

(a)...

(b) every person in respect of land held by him in the Madhya Bharat region as a Pakka Tenant or as Muafidar, Inamdar, or concessional holder, as defined in the M.B. Land Revenue and Tenancy Act, Samvat 2007 (66 of 1950);

(c)...

(d)...

Thus the Inamdars have been recognized as Bhoomiswami under the present Code. It appears, in pursuance of this provision, all these persons who had acquired Inamdar Rights as shown in documents Ex.P/1, 2 and 3 were recorded as Bhoomiswami. Thereafter a circular was issued by State Government of M.P. on 19-4-1974 and it was directed that the name of Collector as Manager should be shown along with the names of the Pujaris of the Temple concerned and, thereafter the name of Collector and Pujari both were shown and they were designated as Managers. Thereafter this circular P/5 was issued and it was directed that names of Pujaris should be totally deleted.

5A. From the discussion above, it is evident that all those persons who were granted land or were recognised as Inamdar (in the erstwhile Indore State) for the religious services rendered by them as Pujari of the Temple have been recognised to be a Bhoomiswami under the Code and their names appeared as such in Revenue Records. Since they were holding land for rendering religious services as Pujari of the Temple and the land was granted specifically for that purpose, the name of the Collector as Manager along with these pujaris was directed to be shown. This long possession and recording of their names in Revenue Records as Bhoomiswami or Managers has definitely created a right in their favour. It is an established principle of law that if any right has been vested in a person by certain statutory provisions, the same cannot be withdrawn by an executive instruction. Even if a person is required to be deprived of his vested right in a property, a legal procedure for the same will have to be adopted. If the State Government of M.P. feels that the recording of name of such persons as Bhoomiswami is non-est, then too it will have to give a notice to the person and an opportunity of hearing and after making due enquiry followed by a reasoned order (if it is found as such), the order for modification, corrections and change in the record can be done.

In this case nothing of the sort has been done and, therefore, the orders of the State Government appears to be arbitrary. What is arbitrary, is unfair, unjust, illegal and against the Constitution.

Though, learned Single Judge has in a elaborate discussion protected right of such persons by issuing a direction that they shall not be dispossessed without having a recourse to law or against the due process of law, but no opinion has been expressed as to the legality and validity of the circular Ex.P/5. Since, executive order Annex.P/5 of the State Government of M.P. infringes the legal right vested in these petitioners, the same cannot be allowed to exist. Moreso as neither a notice nor an opportunity of hearing has been afforded to the petitioners, the removal of the names of petitioners from the revenue records would be against the principles of natural justice.

5. There is fallacy in the submissions of the counsel for the respondent that relief sought for in the writ petition tentamounts to declaration of title in relation to immovable property, and the same can be effectively adjudicated by the civil Court. The case of the petitioner is that the impugned decision is arbitrary and in violation of the principles of natural justice and our holding that the impugned order is arbitrary and in violation of principles of natural justice does not lead to declaration of title. Thus we do not find any merit in the submission of counsel for respondent.

By way of abundant caution, we would like to observe that we are not declaring the right and title of the petitioners of the immovable properties, as the same can effectively be done by ordinary Civil Court. We also do not hold that the State Government or the Competent Authority cannot take action in appropriate cases after giving due notice and opportunity of hearing and after making an individual inquiry in each of the cases; but direction of removal of names of petitioners from Revenue Records by an executive order and, thereby depriving the petitioners of their rights which has been created because of statutory force of various laws and their long possession cannot be sustained and, therefore, the same cannot be upheld. Learned Single Judge was right in protecting the possession of these petitioners. We, therefore, uphold that direction of learned Single Judge i.e. as found in para 12(a) and (b) of the impugned order. We further hold that the Executive Order Annexure P/5 deserves to be quashed.

6. As a result, all these appeals succeed. The Executive order Annex.P/5 dated 18-11-1992 whereby a direction for removal of names of Pujaris from Revenue Records has been issued, is quashed. In the facts and circumstances of the case, parties shall bear their own costs. This Judgment shall be retained in L.P.A. No. 33/94 and its copy shall be placed in the records of other connected Appeals as particularised above.