Bombay High Court
Smt. Suvarna Appasaheb Kshirsagar And … vs The State Of Maharashtra Through … on 15 April, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:16971
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1811 OF 2019
ATUL Suvarna Appasaheb Kshirsagar
GANESH
KULKARNI Aged 35 years, Occu.: Household,
Digitally signed by
ATUL GANESH
KULKARNI
R/at Kopargaon, Taluka Kopargaon
Date: 2025.04.15
17:02:47 +0530
District Ahmednagar,
Now r/at Vita, Taluka Khanapur,
District Sangli & Others ... Petitioners
V/s.
The State of Maharashtra,
through Principal Secretary,
Department of Revenue, having
office at Mantralaya, Mumbai 400 032
& Others ... Respondents
Mr. Sunil G. Karandikar Amicus Curie
Mr. Vijay Killedar for the petitioners.
Mrs. M.S. Srivastava, AGP for respondent Nos.1 & 2-
State.
Mr. Nikhil N. Wadikar with Mr. Kastur Patil, Mr.
Rushikesh Desai and Ms. Samata More i/by Mr. Nandu
Pawar for respondent Nos.12 to 15, 24, 53, 55 to 58,
61, 63, 65 to 69.
CORAM : AMIT BORKAR, J.
RESERVED ON : FEBRUARY 28, 2025
PRONOUNCED ON : APRIL 15, 2025
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JUDGMENT:
1. By the present Writ Petition instituted under Article 226 of
the Constitution of India, the petitioners have invoked the
extraordinary writ jurisdiction of this Court, seeking to impugn the
judgment and order dated 7th March 2013, passed by respondent
No.1 in Application No.DEV-1012/P.K.130/L4, whereby respondent
No.1 has withdrawn the exemption earlier granted from payment
of land revenue in respect of the land in question, and has
withheld the privilege of exemption from payment of land revenue
as contemplated under Clause 66 of the Joglekar Law Manual.
2. The facts and circumstances giving rise to the filing of the
present Writ Petition, briefly stated, are as under:
The land bearing Revision Survey No.1052/2, situated at
Village Vita, Taluka Khanapur, District Sangli, admeasuring 14
Acres and 28 Gunthas (hereinafter referred to as “the said land”)
belonged to a religious institution, namely, Mhaswad Sidha
Devasthan. The said land was classified as Devasthan Inam Class
III land in the Land Alienation Register prepared by the Inam
Commission, and the corresponding Sanad number of such Inam
grant is recorded as 8673. The petitioners have placed on record a
copy of the Inam Patrak obtained from the Pune Archives Office,
which describes the said land as Devasthan Inam land.
Furthermore, the Dumala Land Register (Gaon Namuna No.3),
maintained in the village Chawdi by the Talathi under the
supervision of the Tahsildar, reflects that the said land is recorded
as Devasthan Inam land. The said register further evidences the2
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religious rites and rituals associated therewith, and the utilization
of profits and income generated from the land for the benefit of
the Deity.
3. According to the petitioners, their predecessor-in-title, one
Ganapati Vithu Gurav, was a priest (Gurav) who was performing
the religious rituals and managing the affairs of the said temple. It
is the case of the petitioners that the land bearing Revision Survey
No.1052 was part and parcel of the Inam land pertaining to the
said Deity and temple. In or about the year 1930, the name of
Dadu Rama Gurav came to be recorded in the revenue records in
respect of the said land, and subsequently, the name of Govind
Dadu Gurav was recorded. The Land Alienation Register, the
Dumala Register, Mutation Entry No.4669, and the Record of
Rights pertaining to the said land, as well as the Inam Patrak,
consistently describe the said land as Class III Devasthan Inam
land.
4. On or about 11th September 2012, respondent No.3
preferred an application before respondent No.1, inter alia,
contending that the entry in the record of rights, describing the
said land as Class III Devasthan Inam land, was erroneous, and
consequently sought deletion of the said description from the
revenue records. The petitioners submit that the said application
filed by respondent No.3 contained no averment whatsoever to the
effect that the Deity of Mhaswadsiddh (Devasthan) is not in
existence, or that the religious rites and rituals associated with the
Deity are not being performed, or that the profits and income
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derived from the said land are not being utilized for the benefit of
the Deity.
5. On 31st October 2012, respondent No.2, through the Sub-
Divisional Officer, Khanapur, Taluka Vita, District Sangli, submitted
a report, inter alia, pointing out that the said land has been shown
as Devasthan Inam land since the year 1930, and that the entries
in the Mutation Register, particularly Mutation Entry Nos.4669 and
5694, as well as the 7/12 extracts from 1953-1954 onwards, and
the Inam Patrak, support and corroborate the said position. The
Sub-Divisional Officer, therefore, recommended rejection of the
application filed by respondent No.3.
6. Respondent No.1, after granting opportunity of hearing to
both sides, proceeded to allow the application filed by respondent
No.3 and passed an order canceling the exemption earlier granted
to the said land from payment of land revenue. Respondent No.1
held that the said land was not Devasthan Inam land, and that the
income derived from the said land, as also the sale proceeds
thereof, were not required to be appropriated for the benefit of the
Deity. Aggrieved by the said judgment and order, the petitioners
have instituted the present Writ Petition challenging the same.
7. At the request of this Court, Mr. S.G. Karandikar, learned
Advocate, graciously consented to assist the Court on the issues
arising for consideration in the present matter and made his
valuable submissions.
8. Inviting the attention of this Court to the alleged source of
power referred to in the impugned order, the learned Advocate
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submitted that Clause 66 of the Joglekar Law Manual cannot be
regarded as a source of power for the action taken. He submitted
that Clause 66 merely provides for the resumption of Inam lands
by the levy of full assessment from the existing holder in cases
where the profits of the Inam land have been diverted by the
concerned institution, or where the institution itself has ceased to
exist. He further submitted that the Joglekar Law Manual cannot
be construed as a law in the eye of law, as it neither partakes the
character of a statute enacted by the competent Legislature, nor
does it constitute executive instructions issued by the Government
of India in exercise of power under Article 162 of the Constitution
of India, nor has it been authenticated by the Governor under
Article 166 of the Constitution of India. The learned Advocate
further submitted that Section 8(3) of the Exemptions from Land
Revenue (No.1) Act, 1863 (hereinafter referred to as “the 1863
Act”) is only a declaratory and clarificatory provision which states
that lands held by religious or charitable institutions, which are
wholly or partially exempted from payment of land revenue, shall
not be transferable from such institutions either by assignment,
sale (whether such sale is judicial, public, or private), gift, or
otherwise, and that no nazrana shall be leviable on account of
such lands.
9. Adverting to the prayer made by respondent No.3 in the
application dated 11th September 2012 filed before respondent
No.1, the learned Advocate submitted that the prayer was to delete
the entry recording the land as Devasthan Inam Class III land. He
submitted that no such power is vested either with the State
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Government, the Collector, or any other authority under the
Maharashtra Land Revenue Code, 1966. The recitals in the said
application proceed on the premise that there was an exemption
from payment of land revenue, and consequently, the restriction
against alienation contained in Section 8(3) of the 1863 Act was
applicable. He submitted that the records indicate that the land
continued to stand in the name of the Devasthan. The learned
Advocate further pointed out that the report submitted by the Sub-
Divisional Officer on 31st October 2012 confirmed that the entry
of Devasthan Inam land had been consistently reflected in the
revenue record since 1963, and the said report was also supported
by other documents such as the Inam Patrak and the relevant
Mutation Entries.
10. The learned Advocate further invited the attention of this
Court to the scrutiny sheet prepared by the Tahsildar, Khanapur,
and the Circle Officer, which categorically states that the land
enjoyed full exemption from payment of land revenue. He placed
reliance on the Government Resolution dated 31st May 1996
issued by the Revenue Department for the purpose of governance,
maintenance, and regulation of Devasthan Inam lands. The said
Government Resolution records that in several cases, Devasthan
lands are not in possession of the Devasthans or the Inamdars; that
Devasthans are not being properly managed; that religious
functions are not being appropriately held; and that such lands are
being alienated after obtaining permission from the Charity
Commissioner. In view of the aforesaid concerns, the Government
directed that the Revenue Officers shall visit the Devasthans and
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take necessary steps to ensure proper maintenance and
management of Devasthan lands and to prevent unauthorized
transfers without requisite permission.
11. The learned Advocate also drew attention to the Government
Resolution dated 30th July 2010, whereby the Revenue Officers
were directed to undertake a comprehensive survey of Devasthan
Inam lands situated within their respective districts and to submit
detailed reports regarding the present status of such lands,
including instances of transfer or encroachment. Further, the
learned Advocate referred to the Government Resolution dated 6th
November 2019, wherein the Revenue Authorities were directed to
initiate appropriate action against illegal transfers of Devasthan
Inam lands and to take possession of such lands wherever
alienation has been effected in contravention of the provisions of
law.
12. The learned Advocate submitted that the filing of
applications such as the one filed by respondent No.3 before the
State Government is a modus operandi adopted by persons who
have no title over Devasthan lands, with the ulterior objective of
seeking deletion of the Devasthan entry and exemption from
payment of land revenue. The ultimate aim behind such
maneuvers, according to the learned Advocate, is to lift the
embargo on transferability imposed by Section 8(3) and (4) of the
1863 Act. He further submitted that the repeal and saving clauses
under the Maharashtra Land Revenue Code, 1966 clearly indicate
that the provisions of the 1863 Act have not been repealed and
continue to remain in force. He submitted that the Joglekar Law
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Manual is not saved by any statute, and being a mere commentary,
it does not possess the force of law. The learned Advocate
emphasized that the object of the 1862 Act was to confirm the title
of the deity and render Devasthan Inam lands inalienable. This
salutary object cannot be permitted to be defeated by resorting to
impermissible methods which are not sanctioned by any statutory
provision. He therefore submitted that such modus operandi
adopted by persons for unauthorized sale of Devasthan Inam lands
to third parties, despite having no ownership rights, needs to be
strongly deprecated.
13. Per contra, Mr. Wadikar learned Advocate appearing for the
contesting respondents vehemently opposed the submissions
advanced on behalf of the petitioners and supported the impugned
order. The learned Advocate submitted that the impugned order
has been passed after considering the legal opinion tendered by
the Law and Judiciary Department. Adverting to paragraph 2 of
the said legal opinion, the learned Advocate submitted that where
the land is not yielding adequate income for the upkeep of the
institution, it would be permissible for an interested person to
apply for resumption of the land by levying full land revenue
assessment, and therefore, it would be legally permissible to delete
the entry recording the land as Devasthan Inam Class III land.
14. The learned Advocate further submitted that the effect and
consequence of the impugned order is limited only to the deletion
of the entry recording the land as Devasthan Inam Class III land,
and that the impugned order does not, by itself, confer any
permission or sanction for the sale or alienation of the said land.
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He submitted that the apprehension expressed by the petitioners
that the land would be alienated or sold pursuant to the impugned
order is therefore misplaced and unwarranted. Drawing the
attention of this Court to the provisions of the Maharashtra Land
Revenue Code, 1966, the learned Advocate submitted that the
power to transfer necessarily includes the ancillary power to recall
or modify entries in the revenue record. He submitted that the
revenue entries are not documents of title but are maintained for
fiscal purposes, and the authorities competent to record such
entries are equally empowered to correct or recall such entries
where warranted by the facts and circumstances of the case.
15. The learned Advocate further submitted that the Alienation
Register pertaining to the said land records the name of one
Subhana Gurav as Manager, and therefore, it cannot be contended
that the land was exclusively dedicated to the Devasthan without
any managerial control. He submitted that the entries in the
revenue record do not conclusively establish title and, therefore,
deletion of an incorrect or outdated entry cannot by itself be
regarded as illegal. He emphasized that since the impugned order
does not authorize the sale or alienation of the property and
merely corrects the revenue record to reflect the current factual
position, no case for interference with the impugned order is made
out. He therefore prayed that the Writ Petition deserves to be
dismissed.
16. Rival contentions, as advanced by the respective parties, now
fall for the determination of this Court.
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17. To properly decide the issue raised in this case, it is
important to first understand what Inam lands are. During British
rule, especially in the old Bombay Province, the British
Government examined different types of land grants through what
was called the Inam Commission. This Commission grouped such
lands mainly into two types: First, lands that were directly granted
to temple deities or religious institutions like temples and mathas.
These were called Devasthan Inams. In such cases, the land
belonged to the temple or the deity, and it was managed by a
manager, but the manager did not own the land personally.
Second, lands that were given to individuals like priests, pujaris, or
temple servants on the condition that they perform certain
religious or charitable duties. These were called personal inams
with service conditions. In many such grants, it was clearly written
that the land was given to a person and his family, even though he
had to perform some religious service. In such cases, the law
treated these grants as personal inams, and not as temple property.
That means the individual had ownership rights, although his
holding was subject to a religious duty. Therefore, the law clearly
recognises the difference between Devasthan Inams and personal
service inams. Devasthan Inams are treated as temple or deity-
owned property, while personal inams, even if related to religious
services, give personal rights to the person holding them.
18. After India became independent, the Government introduced
major land reforms to remove old feudal systems and ensure fair
distribution of land. As part of these reforms, the State of Bombay
(now Maharashtra) passed several laws to cancel different types of
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inam (grant) tenures. One such law was the Maharashtra Personal
Inams Abolition Act, 1953 (Bombay Act No. XLII of 1953). This
law was brought in specifically to abolish personal inams, which
were lands given to individuals. However, the 1953 Act very
clearly excluded religious and charitable inams, like Devasthan
Inams, from its operation. Under Section 4 of this Act, all personal
inam lands became liable to pay full land revenue like any other
private land. But Devasthan Inam lands, which were meant for
religious or charitable use, were not covered by this provision.
That means temple lands were not treated like personal inams and
continued to enjoy special protection. As per this 1953 Act, people
who were holding personal inams became official occupants of
those lands and got full ownership rights. But since Devasthan
Inams were not abolished under this law, such lands remained as
property of the temple or religious institution. They continued to
be exempt from paying land revenue and could not be sold or
transferred unless allowed under specific law. It is important to
note that even after 1953, no law was passed to abolish Devasthan
Inams in the State of Bombay or Maharashtra. Because of this, the
earlier law known as the Exemptions from Land Revenue (No.1)
Act, 1863 continues to apply to such temple lands. This legal
continuity shows that the Government always intended to protect
religious lands and endowments. The law treats Devasthan Inam
lands not as personal or private property, but as property held for
religious or charitable purposes. Such lands, therefore, are given
the highest legal protection so that they remain dedicated to the
cause for which they were originally gifted that is, for worship,
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religious service, and the welfare of the community.
19. Inams, that is, land grants in the State of Maharashtra, can
generally be divided into the following broad categories:
(i) Personal or “Jaat” Inams (Class I): These were lands
granted personally to individuals. Some of these grants were
given as a form of compensation. The person who got the
land could pass it on to his children, and he could also sell or
transfer it, provided he paid land revenue to the
Government. However, after the Maharashtra Personal Inams
Abolition Act, 1953 (Bombay Act No. XLII of 1953) was
passed, these personal inams were abolished. The people
who were holding such lands were treated as regular
occupants under the Maharashtra Land Revenue Code, 1966,
just like any other landholder.
(ii) Political Inams (Class I): This category includes land
grants given by the State to nobles, Sardars, and officers for
performing civil or military duties, or for maintaining their
personal dignity. These grants included Saranjams and
Jahagirs. Some of these grants were protected under treaties
made between Mughal emperors and the British
Government, while others were settled by the Inam
Commission. Normally, political inams could not be divided
or sold. They passed on to the eldest son in the family, while
the younger members were only entitled to maintenance.
However, by the Bombay Saranjams, Jahagirs, and Other
Inams of Political Nature Resumption Rules, 1952, political
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inams were abolished.
(iii) Service Inams (Classes IV, V, and VI): These were land
grants or rights to collect cash or fees, given in return for
performing certain services for the Government or the village
community. Class IV included grants given to district officers
like Desais, Deshmukhs, and Deshpandes, who helped the
Peshwa Government in collecting revenue. Class V included
grants to important village officers like Patils and Kulkarnis,
who worked closely with the Government at the village level
and were paid in land or cash. Class VI included grants to
village service providers like Hajams (barbers), Kumbhars
(potters), Lohars (blacksmiths), Sutars (carpenters), and
Mochis (cobblers), who served the village community.
(iv) Devasthan Inams (Class III): This category covers lands
given to religious institutions like temples, mosques, and
other similar places of worship. Such grants were made
forever (in perpetuity), and the land revenue on these lands
was fixed and could not be changed. Normally, these lands
could not be sold or divided. The rules about who would
succeed to manage these lands were decided by the original
grant and the customs and traditions of the temple or
religious institution. The person managing a Devasthan Inam
often called a Vahiwatdar looks after the land as a trustee
for the religious institution. He is not the personal owner of
the land. Devasthan Inams enjoy special protection under
Section 8(3) of the Exemptions from Land Revenue (No.1)
Act, 1863. This law clearly says that lands given to religious
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or charitable institutions, and exempted from paying full
land revenue, cannot be transferred by sale, gift, or any
other means. It is important to note that this 1863 law has
not been repealed or cancelled. It continues to be fully in
force even today. Thus, Devasthan Inam lands remain
protected under the law and must continue to be used for
religious and charitable purposes only.
20. The term Devasthan Inam simply means “temple grants.” It
refers to lands which, long ago, were specially given for religious
or charitable work for example, for taking care of temple gods,
running temples, or carrying out religious ceremonies. Normally,
no land revenue (tax) had to be paid, or only a small amount had
to be paid on these lands. According to Hindu law, a temple deity
(god or goddess) is treated like a legal person who can own
property. When land is given for a deity, it is not owned by any
individual person. It is held on behalf of the deity by a Manager,
who is usually called a Vahivatdar or Shebait. However, this
Manager is only there to look after the land; he does not become
the owner personally. His duty is only to manage the property
properly for the deity and for the religious purposes for which the
land was given. Unless there is a very clear and special grant that
gives personal rights to any individual, the ownership of Devasthan
lands always stays with the deity or the temple. In short, temple
lands belong to the religious institution and not to the person
managing them.
21. In Maharashtra, Devasthan Inam lands which are classified
as Class III lands are governed by a legal principle called res extra
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commercium. This Latin term simply means “things which are
outside the market.” Under this principle, properties given for
religious, charitable, or public purposes are not treated like normal
property. They cannot be freely bought, sold, gifted, mortgaged, or
transferred like private property. They can only be transferred if
there is a special law allowing it. The main reason for treating
Devasthan Inam lands like this is to make sure that temple lands
and religious properties remain protected and continue to be used
for religious worship and charitable work. It stops people from
misusing or selling these lands for private profit. The special
protection given to Devasthan lands ensures that they are
preserved for the public good and for the purposes for which they
were originally gifted. It helps maintain the holiness of these lands
and ensures that religious worship and service to the community
continue without any disturbance. Thus, by placing restrictions on
selling or transferring Devasthan lands, the law protects religious
institutions from losing their properties due to unauthorized deals
or misuse.
22. As explained above, Devasthan Inam lands were formally
recorded under the Survey Settlement Act, 1863 during the British
rule. The word “Inam” itself means “gift” or “grant.” Lands under
the Inam system were technically called “alienated lands,” meaning
that the Government had given up its right to collect rent or land
revenue from these lands, either fully or partly. In the case of
Devasthan Inams (Class III), the lands were given to temples,
mosques, and other religious bodies. These grants were meant to
last forever. Once the land revenue (tax) was fixed, it was not
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supposed to change. Normally, these lands could not be sold or
divided among heirs. The rules of inheritance or management of
these lands were based on the customs and traditions of the
particular temple or religious body. Whoever was managing the
land at any time was expected to act only as a manager that is, to
manage the land honestly and properly for the benefit of the
religious institution. Because of this special nature of Devasthan
Inams, they were given strong legal protection. This protection
prevents anyone from illegally transferring, selling, or misusing
such lands. It ensures that religious worship, charitable activities,
and the original purpose for which the land was granted, continue
without any interruption.
Ownership rights of Deity v. Vahivatdar in Devasthan Inam lands:
23. A Constitution Bench of the Hon’ble Supreme Court had a
occasion to explain the rights of a Shebait (temple manager) and
the nature of temple property (debutter property) in the case of
Angurbala Mullick vs. Debabrata Mullick, reported in AIR 1951 SC
293. In that case, the main issue was a simple but important one
whether after the death of a temple founder his widow could
become the Shebait of the temple deity either alone or along with
someone else. While deciding this question, the Supreme Court
gave important explanations about how ownership of temple
property is treated under Hindu law. The Court made it clear that
the relationship between a Shebait and temple property is not like
the relationship between a trustee and trust property under
English law. In English law, the trustee becomes the legal owner of
the property and holds it for the benefit of someone else. But
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under Hindu law, when land or property is dedicated to a deity, the
full ownership directly goes to the deity itself because a deity is
treated as a legal person (juristic entity). The Shebait or Mahant
(manager) is not the owner. He is only a manager who looks after
the property on behalf of the deity. However, the Supreme Court
also said that being a Shebait is not just holding a religious office.
A Shebait not only performs religious duties but also sometimes
enjoys a small share of the benefits (usufruct) from the temple
property. This benefit can come either because the original grant
allowed it or because of old customs and traditions. Thus, a
Shebait has certain rights of enjoyment but does not become the
owner of the property. The ownership always stays with the deity.
24. Based on the above legal principles, the position of a
Vahiwatdar (manager) or Pujari (priest) in respect of temple lands
can be summarized as follows:
(i) A Vahiwatdar acts only as a manager who performs
religious duties and looks after the temple land and property
on behalf of the deity.
(ii) The Vahiwatdar or Pujari does not get any personal
ownership rights over the Devasthan (temple) property.
(iii) In the Government land records (like 7/12 extract),
only the name of the deity should be shown as the owner of
the land. The name of the Vahiwatdar or Pujari may be
written only in the remarks column, to show that they are
managing the property.
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(iv) Although the Vahiwatdar has the right to manage the
property, this right is only for the benefit of the deity.
(v) A Vahiwatdar or manager of Devasthan Inam land can
never claim personal ownership over temple lands. Nor can
they ask for the removal of the status of the land as temple
property.
State Government Powers for Exemption under Section 8(3) of the
Exemptions from Land Revenue Act, 1863
25. The Exemptions from Land Revenue (No.1) Act, 1863
(Bombay Act No. II of 1863) was brought into force mainly to
settle disputes about whether some lands had to pay land revenue
to the Government or were exempt. It also laid down clear rules
about how lands that were either fully or partly exempt from land
revenue should be transferred or inherited in certain parts of the
old Bombay Presidency where an earlier law, the Act XI of 1852,
used to apply. The 1863 Act was mainly passed to confirm and
formally settle the rights over such religious and charitable lands.
Section 8, Clause 1 said that lands already recognised as
permanently exempt would continue to be exempt. Section 8,
Clause 2 said that even lands whose status had not been formally
decided could be given exemption by charging a small amount
(one-fourth of the normal land tax). Thus, the Government’s role
was mostly to confirm and recognize the status of inam lands and
guarantee their protection.
26. Section 1, Clause 1 of this 1863 Act clearly gave powers to
the State Government. It said that when people who were holding
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lands without paying land revenue (or paying less) agreed to
certain terms and conditions without insisting on proving their old
rights formally, then, the Government could allow them to
continue holding such lands forever (that is, in perpetuity) on the
terms and conditions mentioned in the Act. In short, the State
Government was allowed to formally approve and guarantee the
exemption from land revenue for such lands once the landholders
agreed. From a plain reading, it becomes clear that the State
Government had three main powers: To officially approve
exemption from land revenue, To promise that this exemption
would continue forever (perpetuity), To set certain terms and
conditions under which the exemption would apply. Further,
Section 9 of the Act allowed the State Government to pass on its
powers to lower officers, who could act on its behalf in deciding
exemption-related matters. Section 13 made the State Government
itself the final authority to hear appeals against decisions made by
such officers.Thus, it is clear that even though some work was
done by lower officers, the State Government always kept the final
supervisory control under the scheme of this law.
27. Once the Government officially recognized a land as exempt,
then Section 8(3) automatically came into play — and the ban on
sale or transfer became absolute. If the manager of a religious
institution disagreed with the terms of exemption, the Act gave
him a right under Section 8, Clause 4 to reject the terms and go for
a formal trial. In that trial, the manager had to prove that the land
was genuinely exempt. If he lost, then the land would become fully
taxable. However, unless and until the religious institution failed in
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such a formal trial, the protection under Section 8(3) would
remain fully in force. Very importantly, nowhere in the Act was the
State Government given the power to lift this protection or allow
sale of Devasthan lands at its own wish. The only way the land
could lose protection was if a Court formally declared that the land
was not eligible for exemption. Thus, the law very clearly shows
that temple and charitable lands must stay permanently tied to the
religious or charitable purpose for which they were originally
given. The State Government cannot, by any executive order or
office decision, permit these lands to be sold or transferred into
private hands. The intention of the legislature is clear that
Devasthan Inam lands must always be preserved for religious and
charitable use and must not be allowed to slip into private
ownership by any means.
28. Section 8 of the 1863 Act has several parts, but the part
important for the present case is Section 8, Clause 3 (commonly
called Section 8(3)), which states lands that are held for religious
or charitable institutions, and which are exempt from paying land
revenue, cannot be transferred or sold in any manner. No transfer
by sale (whether private or through court auction), gift, or any
other method is allowed. Even the Government cannot collect any
premium (nazrana) on account of such lands. In simple words,
Section 8(3) totally restricts the sale, gift, or transfer of temple or
religious lands that enjoy exemption from paying land revenue. It
does not matter if the transfer is private or ordered by a court;
such lands cannot be sold or transferred for any reason. Even the
Government cannot charge any special fee (nazrana) for such
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lands. The reason behind this strict rule is to make sure that lands
given for religious or charitable purposes stay protected and are
not taken over by private people for personal gain. Importantly, the
restriction on transfer applies to lands held “on behalf of” religious
institutions. This means that even if a manager (like a vahivatdar
or pujari) tries to sell or transfer the land for his personal benefit,
such a transaction would be void. Even if a court orders auction of
the land to recover money against the manager personally, Section
8(3) would still protect the land and restricts the sale.
29. In the case of other types of land grants, it was allowed in
history that when land was sold or transferred, a premium called
nazrana could be charged by the Government. But for Devasthan
Inam lands, Section 8(3) of the 1863 Act clearly says that even
nazrana cannot be charged. This shows that the lawmakers were
very clear, Devasthan Inam lands are not to be sold or transferred
at all, not even with the Government’s permission or by paying a
premium. In practice, sometimes revenue officers have wrongly
treated Devasthan lands like other restricted lands and have
demanded nazrana or given permission for sale. But under the
1863 Act, the State Government has no legal power to allow any
sale or transfer of Devasthan lands. Any such permission given by
an officer or by the Government, allowing sale of Devasthan land
by taking nazrana, is illegal and has no value in the eyes of law.
Even though the State Government has wide powers to manage
land revenue matters generally, when it comes to Devasthan lands,
it cannot break or override Section 8(3) of the 1863 Act. Very
importantly, the Act does not give any power to the Government to
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remove the entry in the land records which shows the land as
“Devasthan Inam (Class III).” Even if, by some mistake or order, the
Government deletes the Devasthan entry from the record, it does
not change the fact that the land belongs to a deity or religious
trust. The restriction under Section 8(3) continues to apply so
long as the land is actually held for a religious institution. Thus,
even if the Devasthan entry is deleted, the Government cannot
permit the land to be sold unless it is formally decided by a Court
that the land was never Devasthan land in the first place.
30. Using the above principles, the next question is, can a
Vahiwatdar (manager) of Devasthan Inam Class III land claim
personal ownership just by getting the “Devasthan” entry deleted
from the records? In my respectful view, the clear answer is no. A
Vahiwatdar cannot convert temple land into his personal property
just by changing the revenue record. Revenue entries are only
made for government record-keeping and tax purposes they are
not proof of ownership. If the land was originally given as a temple
grant, its real character remains the same even if the word
“Devasthan Inam” is deleted from the revenue record. Thus, the
land remains the property of the deity. Section 8(3) acts like a
strong legal wall. As long as Section 8(3) applies, no sale or
transfer of the land is allowed, even if some change is made in the
revenue records. If a Vahiwatdar changes the record and then tries
to sell the land, he acts without legal authority. Such a sale would
be illegal, and the property can be reclaimed as temple property.
The law does not allow a Vahiwatdar to argue that he became the
owner simply because the revenue record changed. The property
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remains religious trust property, and even any money received
from illegal sale would belong to the deity.
31. In Maharashtra, public religious trusts including temples are
controlled by the Bombay Public Trusts Act, 1950. According to
this Act, all temple lands must be registered as part of the temple’s
trust property. If any sale, transfer, or permanent change in temple
property is needed, it cannot be done without taking prior
permission from the Charity Commissioner under Section 36 of the
Act. Thus, even if someone manages to change the revenue record,
they cannot sell temple land freely. They must apply to the Charity
Commissioner, explain why the sale is necessary for the temple,
and get permission. If this process is not followed, any such sale
would be invalid and can be cancelled. Unfortunately, there are
cases where some Vahiwatdars or managers have tried to keep
valuable Devasthan land out of temple control by deleting entries
or making private deals.
32. But if such deletion of Devasthan status is done by
misrepresentation or fraud, it can be reopened later. Devotees of
the temple or the Government can step in and demand that the
land be returned to the deity. Courts have a duty to protect temple
property. So even if some entries are deleted or some consent is
taken wrongly, the true nature of the land can always be checked,
and the property can be restored to the temple. The only situation
where a Vahiwatdar or an inam holder can legally become the
personal owner of land is if it is proved that the land was never a
Devasthan grant but was a personal or service inam (personal
grant). If it is proven, under the Personal Inams Abolition Act, the
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person would become the lawful occupant. But to prove this, the
person must bring very strong and clear evidence. The original
grant must show that the land was given to an individual and not
to a deity. Just managing the land for a long time is not enough to
claim ownership. Unless there is a competent Court judgment
clearly saying so, the land remains temple property.
33. To summarize: A Vahiwatdar cannot become owner of
Devasthan Inam Class III land just by changing the revenue record.
Deleting the “Devasthan Inam” entry without a proper legal
process does not change the real nature of the land. Section 8(3)
of the 1863 Act puts an absolute bar on selling or transferring such
land. Any sale made by manager of Vahiwatdar claiming himself to
be owner is void.
34. Practically, it is often seen that some individuals use a fixed
method to wrongfully take control of Devasthan land: First, they
apply to revenue officers to delete the “Devasthan Inam Class III”
entry from the land records. Then, they get an order from the
Government removing the land’s exemption from land revenue.
After that, they act as if the land is ordinary private land and start
selling it. They make sale deeds and transfer the land to private
parties. Such actions are against the law, and courts are duty-
bound to protect Devasthan lands from being taken away in this
illegal manner. However, this process is not legally valid for several
reasons.
(i) Firstly, the Exemptions from Land Revenue Act, 1863
does not provide any express power for deleting Devasthan24
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4-wp1811-2019-F.docentries in order to circumvent the clear prohibition contained
in Section 8(3). Section 8(3) of the Act creates a statutory
prohibition on the transfer of such lands, which serves a
public purpose namely, preserving temple and charitable
lands for religious and community use.
(ii) Administrative actions by revenue authorities cannot
override this prohibition. Attempting to bypass Section 8(3)
by deleting entries in the record of rights is not permissible
under law.
(iii) The prohibition under Section 8(3) applies to “lands
held on behalf of religious or charitable institutions wholly
or partially exempt from the payment of land-revenue.”
Thus, even if the revenue entry is deleted, the historical fact
that the land was granted to a religious institution remains
unchanged. The legal character of the land is determined by
its history, grant, and dedication not by the mere existence or
deletion of a revenue record.
(iv) The deity is the true owner of temple property, not the
manager (vahiwatdar). Thus, even if a revenue officer
deletes the Devasthan entry, it does not change the
substantive legal position that the land belongs to the deity
and continues to be protected by Section 8(3).
(v) Further administrative orders cannot override or nullify
statutory prohibitions. The deletion of a revenue entry is
merely an administrative act and does not confer title or
change the ownership of the property under the law. Thus,
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deletion of a revenue entry does not and cannot defeat the
statutory protection accorded to Devasthan lands.
(vi) Under the Exemptions from Land Revenue Act, 1863,
Devasthan Inam lands are permanently exempt from
payment of land revenue and are statutorily inalienable.
The ownership of such lands vests absolutely with the deity
or religious institution. The inamdar or vahiwatdar is, at
best, a manager, not the owner.
(vii) Post-independence land reform laws, such as the
Maharashtra Personal Inams Abolition Act, 1953, did not
disturb this arrangement in relation to Devasthan Inams.
Devasthan lands were excluded from abolition statutes
because of their religious nature. Thus, such lands were
never converted into private property of managers by any
law.
(viii) Further, the State Government has no authority under
the 1863 Act or any other law to remove the revenue-free
status or permit the sale of Devasthan lands on an ad-hoc or
administrative basis.
(ix) A vahiwatdar cannot acquire ownership simply by
getting the revenue records altered. Revenue records are
only evidence of title, not title itself. Especially when revenue
entries are modified contrary to law, they lose their
evidentiary value.
(x) Deleting the “Devasthan Inam” entry in violation of
Section 8(3) does not confer any ownership rights upon the
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manager or any private party. At most, what such deletion
does is make the land liable to payment of land revenue. It
does not dissolve or alter the dedication of the property to
the deity.
(xi) Section 8(3) of the Act acts as a shield protecting
religious property, not a sword for the manager to claim
personal ownership. As long as Section 8(3) is in force and
applicable, any transfer of Devasthan land without proper
legal sanction would be null and void in the eyes of law.
(xii) The vahiwatdar’s rights are limited only to managing
the property and enjoying its usufruct (use and income) for
the benefit of the deity. He has no right to alienate or sell the
property for his own benefit. Thus, a vahiwatdar cannot
claim personal title or sell Devasthan land for personal gain.
Any such attempt is void ab initio.
35. In the light of the legal position clarified earlier, I have
carefully scrutinized the impugned order passed by respondent
No.1. The impugned order interprets Section 8(3) of the
Exemptions from Land Revenue Act, 1863 in a manner which,
according to respondent No.1, empowers him to resume the land
by levying full land revenue assessment from the existing holder.
However, as discussed earlier, this interpretation cannot be
accepted in law. It is well settled that the interpretation of a
statutory provision must be in accordance with the plain meaning
of the language used by the legislature. Section 8(3) does not
grant any power to extinguish the rights of the holder or to resume
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the land itself, it merely permits the imposition of full land revenue
assessment where exemption is withdrawn. Therefore, the reading
of Section 8(3) as conferring powers of resumption is legally
erroneous.
36. Further, the reliance placed by respondent No.1 on the
Joglekar Law Manual is wholly misplaced and cannot be accepted.
The Joglekar Manual is not a statutory law made by the
Legislature. It is merely an administrative compilation, intended
for the internal guidance of revenue officers. It does not have the
force of law. It is a well-settled principle that administrative
instructions, however authoritative they may appear, cannot
override or alter the express provisions of a statute. When there is
a conflict between a legislative enactment and administrative
directions, it is the statute which must prevail. In the present case,
Section 8(3) of the Exemptions from Land Revenue (No.1) Act,
1863 is a clear and binding statutory provision. It imposes an
absolute bar on the transfer of Devasthan Inam lands. No
administrative manual, including the Joglekar Manual, can dilute
or bypass this statutory command. The impugned order proceeds
on a wholly incorrect assumption that once the land is resumed
under Clause 66 of the Joglekar Manual, the existence of the
Devasthan institution itself comes to an end. Such an assumption
betrays a basic misunderstanding of the law relating to religious
and charitable endowments. A Devasthan institution is a juristic
entity recognized by law. Its existence does not depend merely on
possession of land. Even if the land is resumed, the deity or
religious institution continues to exist in the eyes of law. The
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property dedicated to a deity is impressed with the character of
trust property, and its protection does not cease merely because of
administrative action. Thus, the view taken in the impugned order,
based on the Joglekar Manual, is legally unsustainable and cannot
be upheld.
37. It must be kept firmly in mind that mere withdrawal of land
revenue exemption, or even the imposition of full land assessment,
does not and cannot, by itself, extinguish the religious character of
the land or bring an end to the existence of the Devasthan. The
law is well-settled that once a religious endowment is validly
created, it continues to exist as a juristic entity recognized by law.
Its continuity does not depend upon the grant of fiscal concessions
by the State. The existence of the deity or the temple is rooted in
the act of dedication and in the purpose of the endowment, and
not in the enjoyment of revenue exemption. The resumption of
revenue exemption affects only the financial or fiscal status of the
land, it merely results in the obligation to pay land revenue to the
State. It does not and cannot affect the underlying religious rights
of the deity or the institution, nor can it convert the nature of the
property from trust property into private property. The impugned
order, however, proceeds on a mistaken understanding of law. It
incorrectly assumes that the withdrawal of revenue exemption
brings the existence of the Devasthan itself to an end. Such an
approach is legally flawed and unsustainable. An administrative
manual or an executive order cannot override the fundamental
principles of law governing religious and charitable endowments.
The impugned order, based as it is on a clear misapplication of law
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and on reliance upon an administrative manual having no
statutory force, results in unjustified interference with the rights of
the Devasthan institution. It cannot be sustained and must
necessarily be set aside.
38. The impugned order also rests upon another legally incorrect
presumption namely, that if the land is not specifically allotted by
the Government, there is no prohibition against its transfer. This
assumption cannot be accepted. As already discussed earlier,
Section 8(3) of the Exemptions from Land Revenue (No.1) Act,
1863 imposes a clear statutory prohibition against the transfer of
Devasthan Inam lands. The prohibition under Section 8(3) is
absolute. It does not depend upon whether the land is formally
allotted by the Government or not. The inalienability flows from
the very fact that the land is held on behalf of a religious or
charitable institution and is revenue-free or partly revenue-free. In
practice, it is true that administrative steps like deletion of revenue
entries have sometimes been misused to attempt alienation of
Devasthan lands. However, mere alteration of entries in revenue
records does not, and cannot, affect the true legal position. The
basic legal prohibition remains fully in force. The land continues to
be held as a manager for the deity or religious institution, and its
transfer is barred by law. Thus, any transfer made by a Vahiwatdar
or Pujari claimimg himself to be owner without a clear and specific
conferment of ownership rights under law is void and does not
create any valid title in favour of the transferee. Accordingly, the
reasoning adopted in the impugned order, being contrary to the
statutory framework and settled principles of law, cannot be
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sustained and must necessarily be set aside.
39. As rightly contended by the petitioners, and upon careful
perusal of the material placed on record, it is evident that various
revenue documents consistently confirm the religious character of
the land in question. The following entries, in particular, support
the case of the petitioners: The Land Alienation Register clearly
describes the land as Devasthan Inam land; Mutation Entry No.
4667 specifically records the same status; The Record of Rights
and the Dumana Land Register maintained at Vita Chawdi further
reinforce the position that the land is classified as Class III
Devasthan Inam land. These historical entries are
contemporaneous records maintained in the ordinary course of
official duty and carry a high degree of evidentiary value.
Significantly, respondent No.3 has not produced any credible or
contrary material to rebut these documentary evidences. In the
absence of any such contrary evidence, the long-standing
classification of the land as Devasthan Inam must be accepted as
correct. Thus, the consistent revenue records corroborate the
petitioners’ case and affirm the religious and trust character of the
land beyond doubt.
40. On the issue of locus standi that is, the right of the
petitioners to file the present petition the contention raised by the
petitioners deserves acceptance. The petitioners have explained,
and the record supports, that the so-called consent affidavit dated
31st January 2013, which was allegedly produced before
respondent No.1, does not bear the genuine signature of petitioner
No.1. Petitioner No.1 has categorically disputed her signature on
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the said affidavit. There is no convincing material on record to
disprove her assertion or to establish that the consent affidavit was
genuinely executed. Even otherwise, it is well-settled that if an
action is void in law as in the case of deletion of a Devasthan
Inam entry contrary to statutory provisions any person concerned
or affected has the right to challenge such an action. The
petitioner, being the legal heir and representative of the original
Vahiwatdar, is clearly an interested and affected party. She is
entitled to assert and protect the rights of the Devasthan
institution. Accordingly, the petitioner is fully competent to
maintain the present writ petition. The objection to her locus
standi is, therefore, without merit and must be rejected.
41. As regards the opinion of the Law and Judiciary Department
dated 17 January 2003, which has been relied upon by respondent
No.1, I find that the facts of that case are clearly distinguishable. In
the facts of that case the land was granted to the forefathers of the
applicant by the then Ruler specifically for cultivation purposes;
The Sanad (grant) conferred personal ownership on the applicant’s
forefathers, and it was not a religious grant in favour of any deity;
Moreover, the applicant therein had secured permission from the
Ruler for alienating the land. Thus, in that situation, it was rightly
advised that the entry of Devasthan Inam Class III land could be
deleted. However, the present case stands on an entirely different
footing. In the present case, respondent No.3 has failed to place on
record any material showing that the land was granted to his
predecessor personally by way of a Sanad or grant. There is no
evidence produced to show that the title was ever conferred upon
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the vahivatdar personally. On the contrary, the historical revenue
records clearly show that the land is Devasthan Inam land, and
continues to be so. Thus, in the absence of any supporting
material, and in view of the overwhelming documentary evidence
showing that the land is Devasthan property, the impugned order
cannot be sustained in law.
42. After a careful and comprehensive analysis of the statutory
provisions and the settled principles of law, the following
conclusions clearly emerge:
(i) A person cannot claim ownership over Devasthan Inam
Class III land merely by seeking deletion of the Devasthan
entry from the revenue records. Revenue records are
maintained only for fiscal purposes. Deletion of a revenue
entry does not and cannot create ownership rights. Thus,
even if a Vahiwatdar gets the Devasthan Inam entry deleted,
he does not acquire any right to sell or transfer the land. The
land remains trust property, dedicated to the deity.
(ii) A Vahiwatdar (manager) cannot claim personal
ownership of Devasthan Inam land unless it is proved, by
clear and convincing evidence, that the land was never
Devasthan Inam in the first place. Such a claim cannot be
based on mere assertions or long management of the
property. It requires formal adjudication in accordance with
law, based on strong documentary proof.
(iii) Devasthan Inams confer ownership upon the deity or
the religious institution. The Vahiwatdar is only a manager.
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He acts as an agent who manages the property, collects
income, and ensures that the religious worship and
associated activities continue uninterrupted. He does not
own the property. He cannot alienate it or treat it as his
personal property for private gain. His powers are strictly
limited to management for the benefit of the deity or
religious institution.
(iv) The State Government does not have any power to
grant exemption from the prohibition on transfer imposed by
Section 8(3) of the Exemptions from Land Revenue (No.1)
Act, 1863. Section 8(3) imposes a statutory and absolute bar
against the transfer or alienation of Devasthan Inam lands.
The 1863 Act does not empower the State Government to
waive, relax, or dilute this prohibition at its discretion. The
only lawful method to defeat the protection afforded by
Section 8(3) is by formal adjudication in appropriate legal
proceedings, where it is proved by clear and cogent evidence
that the land was never a Devasthan grant. Unless such a
finding is recorded by a competent authority or court, the
protection under Section 8(3) remains absolute. Any sale or
transfer of Devasthan Inam land covered by Section 8(3) of
Act 1863 by the manager or Vahiwatdar without such
adjudication is void ab initio and has no legal effect.
43. In view of the foregoing discussion and upon a careful
consideration of the factual matrix and the applicable legal
principles, I pass following order :
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(i) The Writ Petition is allowed.
(ii) The impugned order dated 7th March 2013 passed by
respondent No.1 in Application No. DEV-1012/P.K.130/L4 is
quashed and set aside.
(iii) It is declared that the land bearing Revision Survey No.
1052/2, situated at Village Vita, Taluka Khanapur, District
Sangli, continues to be classified as Class III Devasthan Inam
land.
(v) Rule is made absolute in terms of prayer clause (b) of
the petition.
(vi) There shall be no order as to costs.
(AMIT BORKAR, J.)
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