ORDER : 1. In this batch of petitions, the core question involved is one and the same and the issue arises over a direction issued by the Joint Secretary, State of Chhattisgarh, Revenue and Disaster Management. By such notification dated 10.03.2014 it takes away the earlier effect of instruction dated 21.04.2003 issued by the Government. The earlier notification dated 21.04.2003 was directed to be withdrawn by the impugned notification whereby Bhoomiswami rights of the Kotwars were conferred pursuant to the order passed in W.P. No.2064/2000 dated 31.10.2001 when the history and background of the issue is traced, it unearths that certain Kotwars i.e. Chhabilal Das & others in the year 2000 had preferred writ petitions before the High Court which were numbered as W.P. No. 2632/2000 & 2064/2000. The High Court in such writ petitions on 31.10.2001 had passed an order to confer Bhumiswami rights to Kotwars who were holding the land on the date of Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 as the lands were said to be 'mafi' lands. 2. The earlier writ petitions were preferred by the Kotwars on the ground that prior to 1950, the predecessors of the petitioners therein were in possession of agricultural lands and were in possession was uninterrupted and continuous. It was stated that the said lands were recorded in Jamabandi i.e. settlement revenue records in the name of the predecessors of the petitioners. It was stated that they were working as Kotwars in the village but the lands were granted prior to 1950 to the petitioners by the said Mal Gujars for their enjoyment. So after abolition of Jamindary they being in possession of the land became the Bhumiswamis of the said lands. In the return filed on behalf of the State, the possession of the petitioners were not disputed and it was stated that the revenue authorities were contemplating to grant Bhoomiswami right to the said persons. The Court while adjudicating the said writ petition recorded the submission of the petitioners that the lands in question were mafi lands and not service lands. The Court observed that since the lands were granted prior to 1950 to the predecessors of the petitioners, as a result, direction was given to the competent authority to grant Bhoomiswarmi right in respect of the lands recorded in Jamabandi in favour of the writ petitioners therein. 3. The Court observed that since the lands were granted prior to 1950 to the predecessors of the petitioners, as a result, direction was given to the competent authority to grant Bhoomiswarmi right in respect of the lands recorded in Jamabandi in favour of the writ petitioners therein. 3. Based on such direction, the State Government on 21.04.2003 passed the following order, which is filed as Annexure P-8. The order reads as under- NRrhlx<+ 'kklu] jktLo foHkkx] ea=ky; Øekad ,Q&10&11@2000@lkr@leUo;] jk;iqj] fnukad vizsy] 2003 izfr] leLr dysDVj ftyk--------------------- ¼NRrhlx<+½ fo"k;%& dksVokjksa dks o"kZ 1950 ds iwoZ nh xbZ lsokHkwfe ds lEcU/k easA lanHkZ%& foHkkx dk v/kZ'kkldh; i= Øekad ,Q&10&11@2000@lkr@leUo; fnukad 28&2&2003- & & & d`i;k lUnfHkZr i= dk voyksdu djsaA 2- fofo/k ;kfpdk Øekad 2632 ,oa 2064@2000 esa ekuuh; mPp U;k;ky; fcykliqj }kjk fn;s x;s vkns'k fnukad 03&05&2001 dh izfr layXu gSA ekuuh; U;k;ky; }kjk fn;s x;s vkns'k ds vuq:i dksVokjksa dks o"kZ 1950 ds iwoZ ekyxqtkj@izksizkbVlZ }kjk nh xbZ Hkwfe dk HkwfeLokeh gd fn;k tkdj vfHkys[k esa ntZ dh tkuk gSA ;g fu.kZ; blh izdkj ds vU; dksVokjksa ij Hkh ykxw gksxk tks U;k;ky; esa ugha x;s gSaA 3- ekuuh; mPp U;k;ky; ds mDr vkns'k ds vuq:i ikyu rRdky lqfuf'pr dj bl foHkkx dks voxr djkus dk d"V djsaA ¼lfpo }kjk vuqeksfnr½ gLrk@& ¼ih-,l- frokjh½ voj lfpo] NRrhlx<+ 'kklu] jktLo foHkkx] Øekad ,Q&10&11@2000@lkr@leUo; jk;iqj fnukad 21 vizsy] 2003 izfrfyfi%& 1- eq[; ea=h lfpoky; ¼NRrhlx<+½ 2- vk;qDr] Hkw&vfHkys[k ¼NRrhlx<+½ 3- jftLVªkj] ekuuh; mPp U;k;ky;] fcykliqj ¼NRrhlx<+½ dh vksj lwpukFkZ 4- LVkQ vkfQlj] eq[; lfpo] ¼NRrhlx<+½ 5- izkUrk/;{k] NRrhlx<+ dksVokj ,lksfl,'ku] deZpkjh Hkou] cq<+kikjk jk;iqj ¼NRrhlx<+½ dh vksj lwpukFkZA lgh@& voj lfpo] NRrhlx<+ 'kklu] jktLo foHkkx 4. Thereafter, the numbers of Kotwars who were working in the State applied to get their name mutated in respect of the land held by them as Bhoomiswami right. Some of the Kotwars were benefited by the order and some remained. The said process continued and the time rolled by. Thereafter, an advise was given to the Collector by the Dy. Secretary, State of Chhattisgarh, Revenue & Disaster Management basing upon an opinion given by the Advocate General, which is filed as Annexure P-1. Some of the Kotwars were benefited by the order and some remained. The said process continued and the time rolled by. Thereafter, an advise was given to the Collector by the Dy. Secretary, State of Chhattisgarh, Revenue & Disaster Management basing upon an opinion given by the Advocate General, which is filed as Annexure P-1. The Joint Secretary by a communication dated 10.03.2014 passed the following directions, the letter is reproduced herein below : NRrhlx<+ 'kklu jktLo ,oa vkink izca/ku foHkkx ea=ky; egkunh Hkou] u;k jk;iqj Øekad ,Q 10&11@2000@vk-iz-@ikVZ&2 u;k jk;iqj] fnukad 10 ekpZ 2014 izfr] leLr laHkkxk;qDr] leLr dysDVlZ] NRrhlx<+ fo"k;%& dksVokjksa dks o"kZ 1950 ds iwoZ ekyxqtkjksa@ izksijkbZVj }kjk nh xbZ Hkwfe ds laca/k esa fy;s x;s ifji= fnukad 21-12-2011 dks okil fy;s tkus ckcr~A lanHkZ%& bl foHkkx dk ifji= fnukad 10&11@2000@U;k-iz-@ikVZ&2] fnukad 21-12-2011A & & & d`i;k lanfHkZr i= dk voyksdu djus dk d"V djsaA ekuuh; mPp U;k;ky; }kjk fjV ;kfpdk Øekad 2632 ,oa 2064@2000 esa ikfjr vkns'k fnukad 03-05-2001 }kjk funsZf'kr fd;k x;k gS fd ;kfpdkdrkZ dksVokjka dks ekyxqtkjksa }kjk o"kZ 1950 ds iwoZ iznku dh xbZ Hkwfe gsrq Lokeh vf/kdkj fn;s tk;sA 2@ foHkkxh; i= Øekad ,Q 10&11@2000@lkr@leUo;] fnukad 21-04-2003 }kjk funsZf'kr fd;k x;k gS fd ,sls dksVokj ftUgksusa U;k;ky; esa ;kfpd nk;j ugh dh gS rFkk ftUgsa ekyxqtkjksa }kjk dksVokjh ds ,ot esa Hkwfe iznku dh xbZ Fkh rFkk tks ih<+h nj ih<+h dksVokj dk dk;Z djrs vk jgs gSa] mUgsa Hkh Hkwfe Lokeh vf/kdkj iznku fd;s tk,aA rRi'pkr~ foHkkxh; i= Øekad ,Q 10&11@2000@U;k-iz-@ikVZ&2] fnukad 21-12-2011 }kjk i= fnukad 21-04-2003 dks fujLr fd;k x;k gSA 3@ 'kklu ds /;ku esa ;g ckr yk;h xbZ gS fd Hkwfe Lokeh vf/kdkj izkIr gksus ds i'pkr dfri; dksVokjksa }kjk dksVokjh Hkwfe dk foØ; fcuk dysDVj dh vuqefr dj fn;k x;k gSA dksVokjh Hkwfe dk Hkwfe Lokeh gd 'kklu }kjk fn;k x;k gSA lafgrk dh /kkjk 158 ds izko/kkuksa ds vuqlkj ,slh Hkwfe ftldk Lokeh gd 'kklu }kjk fn;k x;k gS] dk gLrkarj.k 10 o"kZ dh vof/k rd ugh fd;k tk ldrkA /kkjk 165 ¼7&[k½ ds izko/kkuksa ds vuqlkj 'kklu }kjk Hkwfe Lokeh gd ij iznRr Hkwfe dk foØ; fcuk dysDVj dh vuqefr ds ugha fd;k tk ldrkA /kkjk 109 ds izko/kkuksa ds vuqlkj LoRo ds fof/k iwoZd gLrkarj.k gksus ij gh ukekarj.k fd;k tk ldrk gSA 4@ mijksDr izko/kkuksa ds ifjizs{; esa dksVokjksa }kjk foØ; dh xbZ Hkwfe laca/kh izdj.kksa dk ijh{k.k fd;k tkdj vko';d dk;Zokgh dh tk, rFkk dksVokjka dks iznku dh xbZ Hkwfe ds vfHkys[kksa esa ^^vgLrkarj.kh;** 'kCn fy[kk tkuk lqfuf'pr fd;k tk,A 5@ dksVokjksa }kjk voS/kkfud :i ls foØ; dh xbZ Hkwfe ds foØ; foys[k dks Hkh O;ogkj U;k;ky; esa okn nk;j dj fujLr djk;k tkuk gksxkA blds fy, foØ; foys[kksa dh Nk;k izfr Hkh lacaf/kr mi iath;dksa ls izkIr dh tk;sA leLr dk;Zokgh dks ,d le;&lhek esa iw.kZ dh tk;sA 6@ foØ; dh xbZ Hkwfe ds laca/k esa egkf/koDrk N-x-] fcykliqj ds i= fnukad 30-04-2012 ds ekxZn'kZu vuqlkj fuEukuqlkj dk;Zokgh 06 ekg ds Hkhrj fd;k tkuk lqfuf'pr djsa%& (i). foHkkxh; i= fnukad 21-04-2003 ds ifjizs{; esa fdrus dksVokjksa dks fdruh tehu dk Hkwfe Lokeh gd fn;k x;k gS] dh tkudkjh ,df=r dh tk;s \ (ii). dafMdk (i) esa of.kZr fdrus dksVokjksa }kjk fdruh Hkwfe dk foØ; dj fn;k gS] dh tkudkjh ,df=r dh tk,\ (iii). csph xbZ tehu ds nLrkost lacaf/kr mi iath;d ls izkIr fd;k tk,A (iv). foHkkxh; i= fnukad 21-04-2003 ds ifjizs{; esa ftu dksVokjksa dks Hkwfe Lokeh ntZ fd;k x;k gS] mUgsa iqu% lsok Hkwfe ds :i esa ntZ fd;k tk,A (v). Øsrkvksa dks voS/k varj.k rFkk voS/k ukekarj.k ds fo:) uksfVl tkjh dj dCtk izkIr djus dh dk;Zokgh dh tk,A (vi). ;fn Øsrk mijksDr uksfVl dk ikyu ugha djrs gSa rks jkT; 'kklu flfoy okn lafLFkr djasA layXu%& egkf/koDrk dk i= fnukad 30-04-2012 gLrk{kj ¼ih- fugkykuh½ la;qDr lfpo NRrhlx<+ 'kklu jktLo ,oa vkink izca/ku foHkkx i`-Øekad ,Q 10&11@2000@vk-iz-@ikVZ&2 u;k jk;iqj fnukad 10 ekpZ 2014 izfrfyfi & 1- vk;qDr] Hkw&vfHkys[k] jk;iqj 2- jftLVªkj] ekuuh; mPp U;k;ky;] fcykliqj] N-x- 3- egkf/koDrk] fcykliqj] N-x- 4- izkark/;{k] N-x- dksVokj ,lksfl,'ku] deZpkjh Hkou] cq<+kikjk] jk;iqj] N-x- dh vksj lwpukFkZA gLrk{kj la;qDr lfpo NRrhlx<+ 'kklu jktLo ,oa vkink izca/ku foHkkx 5. After issuance of such directions, the batch of Kotwars had filed these petitions to quash the direction on different grounds including the fact that the land held by them through their predecessor-in-title on the date of Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 (hereinafter referred to Actg of 1950) they became the Bhumiswamis of such lands and the present Kotwars being their heirs have Bhumiswami rights over such agricultural lands which were held by the predecessors of them on the date of Abolition Right of Zamindars by Act of 1950. 6. Learned counsel for the petitioners would submit that the nature of the petition as on today qua the petitioners the conferral of the right to hold the lands have sourced through two different routes. It is contended that the predecessors of Kotwars who were holding the land prior to 1950 of the Act of Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 became the owner by virtue of their possession of the land given to them by the ex-proprietors. It is contended that after abolition of the Jamindaris, the land held by the predecessor of the Kotwars, they became the owners by virtue of holding of such land and were in possession. It is contended that after abolition of the Jamindaris, the land held by the predecessor of the Kotwars, they became the owners by virtue of holding of such land and were in possession. It is further submitted that their names were recorded in the revenue record by the competent authorities and after settlement, the same continued. Further it is submitted that another route of conferral of right is by virtue of rendering their services as Kotwars in recent years. It is stated that the said land which have been held as per the provisions of Section 183 of the C.G. Land Revenue Code, 1959, the same would remain a service land. It is stated that by direction given by the Joint Secretary in the year 2014 which has no legal source, the lands which are held earlier by the Kotwars through the predecessor of the Kotwars as Bhoomiswami right after abolition of the Jamindari of 1950 and the land presently held by the petitioners/ Kotwars by virtue of service rendered by them are amalgamated and are thrown into the common pool. It is contended that by such amalgamation, the right of Kotwars over service land and the land held as Bhoomiswami land are recorded as one land as Kotwari land/service land where by the Bhumiswami rights are converted into service land thereby ownership over those part lands are extinguished. It is contended that the direction so issued would have an affect of de-proprietary legislation for which the issuing authority was not entitled as the same was not issued by order and in the name of the Governor, as such, such directions are illegal and nonest in the eyes of law. It was further contended that under the circumstances, the direction so issued by the State Government needs to be quashed summarily. 7. The State counsel opposes the argument. It is submitted that all the lands after the abolition of the Jamindari in the year 1950 by the Act of 1950 all lands vested in the State. It is further submitted that even after coming into force of M.P. Land Revenue Code, 1954 any person holding service lands was not entitled to sell the land without the permission of the State Government as the land vested in the State. It is further submitted that even after coming into force of M.P. Land Revenue Code, 1954 any person holding service lands was not entitled to sell the land without the permission of the State Government as the land vested in the State. It is further submitted that the Government under the Land Revenue Code has all the power to review its earlier order and therefore by virtue of Section 32 of the Land Revenue Code, 1959 has exercised the power to prevent the abuse of process of the law. It is further submitted that the status of the petitioners are Kotwars and the land held by them are the Kotwari lands, therefore, by virtue of Section 183 of the C.G. Land Revenue Code, 1959 the petitioners cannot be declared the owner and could not exercise their right over the land. He therefore submits under the circumstances, the direction issued by the Joint Secretary dated 10.03.2014 is well merited. 8. I have heard learned counsel for the parties at length. Perused the documents. 9. All the counsels have adopted the arguments advanced by the petitioners' counsel in W.P. No.782/2014 & W.P.(C) No.1515/2014. I have perused the documents. The direction given by the letter dated 10.03.2014 contains six directions. (i) First direction contains that the information be gathered in terms of the departmental letter dated 21.04.2003 that how many Kotwars have been given the Bhoomiswami rights. This direction appears to be within the domain of the power of the person issuing the same and cannot be said to have affected the rights of the petitioners and calls for no interference as only certain information’s are sought to be called for. (ii) The second direction contains that how many Kotwars have sold the land, the information be gathered for the same. This direction also cannot be stated to be illegal or needs to be quashed as it only calls for the information in respect of the sale made by the Kotwars. (iii) Third is with respect to the direction that the land if any sold by Kotwars, the documents in respect of those may be obtained from the Sub-Registrar. The aforesaid direction also is only to obtain the information, therefore, the same do not require any interference by this Court. (iii) Third is with respect to the direction that the land if any sold by Kotwars, the documents in respect of those may be obtained from the Sub-Registrar. The aforesaid direction also is only to obtain the information, therefore, the same do not require any interference by this Court. (iv) The direction contained in this clause is to the effect that pursuant to the earlier direction issued by the State on 21.02.2003 wherein Kotwars have been recorded as Bhoomiswami, the names be reverted from that of Bhumi Swami and it should be recorded as a service land in entirety. This direction appears to be an issue of concern. (v) This direction contains that illegal transfer and mutation which has been made, the same be canceled and the possession may be taken over in respect of the land. (vi) The last direction is with respect to the fact that if the purchasers do not adhere to the notice then the State Government should file a suit to recover the possession. Therefore, the directions except (iv) appear to be within the domain of the State and for rest of them only certain directions have been given which will not have a direct implication of any deproprietary legislation or to cause dispossession otherwise than in due course of law. The concerned issue pertains to only direction (iv). 10. The documents filed along-with the petition contains the Missal-bandobast of 1920-21 and few of the petition contains the Missal-bandobast of 1929-30. The said Missal-bandobast i.e. settlement would show that the lands were settled in favour of the predecessors of the petitioners. The land records also show that the possession of persons in respect of different lands and their names were mutated in the revenue records. Few of the records also show that the lands were initially held by Malguzars and part of them was given to the predecessor of the petitioners for the service rendered by them. The another set of paper enclosed would show that after coming into force of the Act of 1959, by the order of the revenue authority further lands were given to the petitioners which made the addition of the land i.e. prior to 1959 i.e. before the C.G. Land Revenue Code, 1959 came into force. Therefore, two sources of devolution of property and holding came to fore. Therefore, two sources of devolution of property and holding came to fore. One source of devolution of right is precipitated prior to 1959 Land Revenue Code and after abolition of Jamindari by the Abolition Act, 1950. Another part of land come to the possession of petitioners while they were granted lands in lieu of service rendered by them as Kotwars as per Section 183 of the Land Revenue Code of 1959. 11. Now if we look into the Act of 1950, section 3 speaks about vesting of proprietary rights in the State. It says that for the area specified in the notification, all proprietary rights in estate, mahal, alienated village or alienated land, shall pass from other proprietor or other person and shall vest in the State free from all encumbrances. There is no dispute on the fact that the notification in this area of the Chhattisgarh region have been issued in the year 1951. Consequently, by Act of 1950 the aforesaid all lands and properties which find place at section 3 of the Act of 1950 vested in the State with certain exception. 12. In the Act of 1950, the relevant sections for the purpose would be Sections 41 & 45 before it was omitted by M.P. Act II of 1955, it was as under : 41. Except in such areas as the State Government may, by notification, exclude from the operation of this section, every absolute occupancy tenant who, at any time before the date of vesting or within six months therefrom, or such further period as the State Government may from time to time notify pays to the State Government an amount equal to three times the annual rent for the time being payable by him for his holding and every occupancy tenant who like ise pays to the State Government an amount equal to four times such rent, shall, on and from the date of vesting or the date of such payment, whichever is later, be declared in the prescribed manner to be a malik-makbuza of the land compromised in his holding. 42. xxxxx 43. xxxxx 44. xxxxx 45. 42. xxxxx 43. xxxxx 44. xxxxx 45. (1) Subject to the provisions of section 41 any person who immediately before the date of vesting was in possession of any holding as an absolute occupancy tenant or an occupancy tenant shall, on and from the date of vesting, be deemed to be a tenant of the State and shall hold the land in the same rights and subject to the same restrictions and liabilities as he was entitled or subject to immediately before the date of vesting. (2) Any person holding land as village service land shall be deemed to be holding it from the State and shall be governed by the provisions contained in sections 42 to 48 of the Central Provinces Tenancy Act, 1920. (3) Any person holding land other than sir land from the proprietor on favourable terms for service rendered by him shall from the date of vesting be declared to be an occupancy tenant of the State and the Deputy Commissioner shall fix the rent to be paid by him. (4) xxxxxx 13. The records of Missal-bandobast i.e. settlement records show the name of the predecessors of the petitioners, therefore, primary presumption of the fact lies in favour of the petitioners that lands were settled in the name of the predecessors of the petitioners. The nature of holding cannot be governed by the foreign presumption that all the predecessors-in-title of the petitioners were holding the land as service land from 'State' against the revenue entries. If the provisions of sub-section (3) of section 45 is looked into, it shows that any person holding land other than sir land from the proprietary on a favourable term for the service rendered by him shall from the date of vesting be declared to be an occupancy tenant of the State and the Deputy Commissioner shall fix the rent to be paid by him. The sir lands are synonymous with the 'Kamat' and 'Zirat' and means of private land of the proprietor. The definition can be gathered from AIR 1959 SC 305 which clarifies as under- The word 'Khudhasht means personal cultivation and that is neutral expression, which might include both private lands and 'bahkast land', that is to say raiyati lands which has come into possession of proprietor by surrender, abandonment or otherwise. The 'Kamat' land is, however, definite connotation and means private lands. The 'Kamat' land is, however, definite connotation and means private lands. The word 'Sir' is synonymous with Kamat & Zirat and means private lands of proprietor. 14. Therefore, if the land records of settlement of Missal bandobast of 1920-21 & 1929-30 are seen they suggest that the lands were held by the predecessors of the petitioners from the Jamindars and if the lands were not sir lands and were not given by the State as service land then in such case after the Act of 1950 came into force the possession of the predecessors would be rendered as occupancy of tenant of the State as per provision of section 45(3) of the Act of 1950. At this time, when the names of predecessors of petitioners were mutated and were held from Jamindars and the lands were settled in their favour the presumption of fact that it was legally done and presumption of correctness can be drawn. 15. After the abolition of Zamindaries by the Act of 1950, the M.P. Land Revenue Code of 1954 would be relevant. The Act of 1954 with respect to land holding Chapter XII described two types of tenure holders, which reads as under : (A) Sec. 145. There shall be the following classes of tenure-holders of lands held from the State, that is to say :- (i) Bhumiswami. (ii) Bhumidhari. 16. The clause of 'Bhoomiswami' is defined under Sections 145, 146 & 147 of the Code of 1954, which reads as under : (B) Sec. 146. There shall be the following classes of tenure-holders of lands held from the State, that is to say :- (i) Bhumiswami. (ii) Bhumidhari. 16. The clause of 'Bhoomiswami' is defined under Sections 145, 146 & 147 of the Code of 1954, which reads as under : (B) Sec. 146. Every person, who at the coming into force of this Code belongs to any of the following classes, 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 as a malikmakbuza or a plot proprietor in the Central Provinces or the merged territories ; (b) every person in respect of land lawfully held by him as house site in abadi in the Central Provinces or the merged territories; (c) every person in respect of land held by him as a raiyat malik in the Central Provinces; (d) every person in respect of land held by him as an absolute occupancy tenant in the Central Provinces; (e) every person in respect of land held by him as an occupant in Berar; (f) every person in respect of land held by him as an ante-alienation tenant or a tenant-antiquity in Berar in respect of which he has become lessee of the State under sub-section (2) of section 68 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950. (C) Sec. 147. (C) Sec. 147. Every person who at the coming into force of this Code belongs to any of the following classes shall be called a Bhumidhari and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumidhari by or under this Code, namely :- (a) every person in respect of land held by him as an occupancy tenant in the Central Provinces; (b) every person in respect of land held by him as a raiyat or raiyat sarkar in the Central Provinces; (c) every person in respect of land held by him as a raiyat or tenant in the merged territories; (d) every person in respect of land held by him as a lessee of the State Government under sub-section (2) of section 68 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950 not falling under clause (f) of section 146. 17. In the instant case, the revenue records show that name of the predecessors of the petitioners were recorded by virtue of settlement and the nucleus is from Malgujars. If the effect of the Abolition Act 1950 is taken into account then in such case when the predecessors-in-title of the petitioners were holding the land from the Malguzars on favourable terms of service rendered by him, then after the Act of 1950 came into force the position of them would be that of occupancy tenant. A general presumption cannot be drawn that the predecessors-in-title of the petitioners were holding the land as village service land from State against the mutation entires of the land record settlement that too without giving any opportunity of hearing to them. 18. After coming into force of the M.P. Land Revenue Code of 1959, perusal of Section 158 shows that it defines the Bhoomiswami. The definition envelops the Bhoomidhari to be within the demarcation of Bhoomiswami in Mahakoshal region. Section 158 of the Code of 1959 for the sake of brevity is reproduced herein below : 158. 18. After coming into force of the M.P. Land Revenue Code of 1959, perusal of Section 158 shows that it defines the Bhoomiswami. The definition envelops the Bhoomidhari to be within the demarcation of Bhoomiswami in Mahakoshal region. Section 158 of the Code of 1959 for the sake of brevity is reproduced herein below : 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 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 accordance with the provisions of the Madhya Pradesh Land Revenue Code, 1954 (II of 1955); 19. The Mahakoshal region is defined under Section 2(49) of M.P. General Clause Act, 1957 (49) the expressions :- (a) “Mahakoshal region” means the territories comprised immediately before the appointed day within the districts of Jabalpur, Sagar, Damoh, Mandla, Hoshangabad, Narsimhapur, Chhindwara, Seoni, Betul, Nimar, Raipur, Bilaspur, Durg, Bastar, Sarguja, Raigarh and Balaghat; (b) xxxxx (c) xxxxx (d) xxxxx (e) xxxxx 20. The “Central Provinces” is defined in Section 2(a) of the Abolition Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, which reads as under- 2. In this Act unless there is anything repugnant in the subject or context - (a) “Central Provinces” means all the area in the State excluding the area comprised in the merged territories and in Berar ; 21. Reading of sub-section (1) of Section 3 of the Abolition of Proprietary Rights Act lays down that on and from a date to be specified by a notification by the State Government in this behalf, all proprietary rights which are enumerated therein shall pass from such proprietor or such person to and vest in State for the purposes of the State free of all encumbrances. This provision, as evident from its opening words has been expressly made subject to savings provided in the Act. A plain reading of section 45 of the Abolition of Proprietary Act 1950 would show that the rights did not affect the tenancy rights of absolute occupancy tenants and occupancy tenants created by the outgoing landlords. This provision, as evident from its opening words has been expressly made subject to savings provided in the Act. A plain reading of section 45 of the Abolition of Proprietary Act 1950 would show that the rights did not affect the tenancy rights of absolute occupancy tenants and occupancy tenants created by the outgoing landlords. On the contrary, it guaranteed the continuity of absolute occupancy tenant and occupancy tenant by clothing them with the status of tenant under the State and conferring on them the same rights as were being enjoyed by them before the date of vesting. The words “in the same rights“ occurring in sub-section (1) of section 45 are very significant. They leave no room for doubt that the absolute occupancy tenants and occupancy tenants were to continue to enjoy the rights which were enjoyed by them before the date of vesting. It is noteworthy that section 239 of the Land Revenue Code 1954 did not destroy the rights enjoyed by the occupants. On the contrary it has fully protected and preserved the same. The words “all rights acquired” occurring in the said section of the Code are compressive enough to take in the rights acquired by the tenants under sections 45 to 47 of the Abolition of the Proprietary Rights Act. 22. Therefore, by joint reading of the same, it can be said that the predecessors of petitioners were holding the land in Mahakoshal region wherein the Act of 1950 and the Code of 1954 and the Code of 1959 were applicable. Consequently, if the lands were held by a person from a Malgujar or Jamindar i.e. proprietor on a favourable terms for service rendered by him shall become a occupancy tenant and thereafter, after coming of the Code of 1954, he would be Bhumidhari and after the Code of 1959 came into force then by virtue of Section 158 of the Code of 1959 they would become Bhoomiswamies in respect of the land held by them on the date when the Land Revenue Code of 1959 came into force. 23. Now the another source of devolution i.e. the service land which has been given to the petitioners as Kotwars of village by virtue of service rendered by them after the Code of 1959 came into being. Such rights shall be controlled and governed by section 183 of the Code of 1959. 24. 23. Now the another source of devolution i.e. the service land which has been given to the petitioners as Kotwars of village by virtue of service rendered by them after the Code of 1959 came into being. Such rights shall be controlled and governed by section 183 of the Code of 1959. 24. The service land in the Code of 1959 is defined under Section 183, which reads as under : 183. Service land. - (1) Any person holding land on the condition of rendering service as village servant shall cease to be entitled to such land if he diverts such land to non-agricultural purposes. (2) A transaction by which a village servant attempts to transfer his interest in his service land by sale, gift, mortgage, sub- lease or otherwise except by a sub-lease for a period not exceeding one year, shall be void. (3) If the holder of such land lies, resigns or is lawfully dismissed the land shall pass to his successor in office. (4) The right of the holder in such land shall not be attached or sold in execution of a decree nor shall a receiver be appointed to manage such land under section 51 of the Code of Civil Procedure, 1908 (V of 1908). 25. Reading of the aforesaid section would show that after the enactment of the Code of 1959, certain lands were given to the petitioners for the service being rendered by them as Kotwars. The said conferment of right u/s 183 of the Code of 1959 was different and distinct and was independent of the fact with respect to the lands held by the petitioners through their predecessors in title prior to 1950. Therefore, the source of conferment of right as on today on Kotwars – one is from their ancestors who were given the land through Malgujars, Jamindars proprietors for the service rendered by them prior to 1950 on favourable terms which matured into absolute right after the enactment of Code of 1959 and second source of conferment of right to hold the land in view of the service rendered by the Kotwars is under section 183 of the Code of 1959. The notification which has been issued by the State takes away the right in respect of the land owner over which the right of Bhumiswami had already accrued. The notification which has been issued by the State takes away the right in respect of the land owner over which the right of Bhumiswami had already accrued. Consequently, the land given to a Kotwar for the service rendered by him u/s 183 of the Code of 1959 cannot be amalgamated and cannot be thrown into common pool as it may have an affect of deprivation of their right, over which the Bhumiswami right had already accrued. 26. Article 300-A creates a right in favour of a person that he should not be deprived of his property save by the authority of law. When the citizen is deprived of his belongings otherwise than in accordance with provisions prescribed under the law, it cannot be said that the said deprivation was brought about by officers of the State while acting and discharging sovereign function of the State as Article 300-A prohibits depriving any person of his property without authority of law. Even if the deprivation is temporary then also it cannot be supported unless it is according to law. 27. A perusal of the circular especially the direction (IV) wherein the direction has been made to the effect that the land mutated in the name of Kotwars whether it is Bhumiswami or has been given to them for the service rendered as a Kotwar should all be recorded as Kotwari land i.e. service land. Such directions appear to be omnibus in nature which do not demarcate or differentiate the private land held by a Kotwar as Bhumiswami in his individual capacity and the land held in the capacity of Kotwar for rendering the service in the village. Therefore, the respondent State has decisively broke its own past of circular rendering it Porus with respect to the rights of the petitioner. At the heart of the conflict, the issue remains that of land held by the petitioner as owner thereof through their predecessors-in-title and the land conferred on them by virtue of service rendered by them as Kotwars. The omnibus direction therefore to record all the lands held by the Kotwars as Kotwari land i.e. service land would amount to assuming the executive authority to make a departure from Article 300-A of the Constitution of India. 28. The omnibus direction therefore to record all the lands held by the Kotwars as Kotwari land i.e. service land would amount to assuming the executive authority to make a departure from Article 300-A of the Constitution of India. 28. Now with respect to the authority to issue such circular by a Joint Secretary, the power to issue such directions in the nature has to be considered. The functioning of the government in a State is governed by Article 166 of the Constitution which lays down that there shall be Council of Ministers with the Chief Minister as the head to aid and advise the Governor in exercise of his functions except where he is required to function. Referring to Article 166 of the Constitution, the Supreme Court in State of Bihar v. Kripalu Shankar (1987) 3 SCC 34 held thus : “14. Now, the functioning of government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a council of ministers with the Chief Minister at the head, to aid and advise the Governor in the exercise of his function except where he is required to exercise his functions under the constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote this article : 166 (1) All executive actions of the government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” 29. Article 166 (1) requires that all the executive action of the State Government shall be expressed to be taken in the name of Governor. Article 166 (1) requires that all the executive action of the State Government shall be expressed to be taken in the name of Governor. It prescribes the mode in which an executive action has to be executed. When a letter issued by the Joint Secretary of the State has an effect of deproprietory legislation, then certainly it has to stand the test under Article 300-A and Article 166(1) of the Constitution. Article 300-A ensures that a person cannot be deprived of his property by an executive fiat and it can be done only in accordance with law. Further an executive order depriving a person of his property, without backed by law is not constitutionally valid. The Supreme Court in State of Bihar v. Kripalu Shankar (supra) has laid down the mode in which the executive action has to be expressed. It has been laid down that noting by an official will not come within this Article and has laid down when it takes the form of an order it has to comply with the order of Article 161. Article 166(2) states that the orders and other instruments made and executed under Article 166(1) shall be authenticated in the manner prescribed. While clause (1) relates to mode of expression, clause (2) lays down the manner in which the order is authenticated and Clause (3) relates to making of the rules by Governor for more convenient transaction of the business of the Government. 30. Applying the aforesaid principles in the case in hand, it makes it clear that the direction which has a de-proprietary legislation has to be in conformity with the Article 166 of the Constitution of India. 31. In the instant case, initially the directions were issued by the State in the year 2003 in view of the judgment passed in W.P. No.2632 & 2064 of 2000 on 03.05.2001 which is filed as Ex.P-7. The said judgment was not subject of any challenge. In the said judgment, this Court has directed on the basis of fact that the lands held by the Kotwars were not the service lands as such Bhumiswami rights be granted to them in accordance with law. The State did not challenge the same instead in compliance thereof, the direction was issued. In the said judgment, this Court has directed on the basis of fact that the lands held by the Kotwars were not the service lands as such Bhumiswami rights be granted to them in accordance with law. The State did not challenge the same instead in compliance thereof, the direction was issued. The facts would suggest that the State Government has initially complied the same but subsequently has withdrawn the notification which has an affect of depriving the Kotwars in respect of the those lands on which their Bhumiswami rights were fortified. Therefore, if such deprivation of the right is made by such direction, it has to be with the legislative support qua the source of power. 32. The Supreme Court in (2011) 12 SCC 94 has explained the parameters of the Executive Powers as to how it is exercised which reads as under: “49. It is trite to say that all executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be (Articles 77(1) and 166(1)). Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required o be authenticated in such manner as may be specified in the rules to be made by the President or the Governor, as the case may be (Articles 77(2) and 166(2)). 50. Article 77(3) lays down that : “77. (3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.” 51. Likewise, Article 166(3) lays down that : “166. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.” 52. Article 166 was interpreted in State of Bihar v. Kripalu Shankar and it was observed : (SCC pp. 43-44, paras 14-15) “14. Article 166 was interpreted in State of Bihar v. Kripalu Shankar and it was observed : (SCC pp. 43-44, paras 14-15) “14. Now, the functioning of Government in a State is governed by Article 166 of the Constitution, which lays down that there shall be a Council of Ministers with the Chief Minister at the head, to aid and advise the Governor ion the exercise of his functions except where he is required to exercise his functions under the Constitution, in his discretion. Article 166 provides for the conduct of government business. It is useful to quote his article: '166. Conduct of business of the Government of a State. - (1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor. (2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made of executed by the Governor. (3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it not business with respect to which the Governor is by or under this Constitution required to act in his discretion.' 15. Article 166(1) requires that all executive action of the State Government shall be expressed to be taken in the name of the Governor. This clause relates to cases where the executive action has to be expressed in the shape of a formal order or notification. It prescribes the mode in which an executive action has to be expressed. Noting by an official in the departmental file will not, therefore, come within this article nor even noting by a Minister. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. Every executive decision need not be as laid down under Article 166(1) but when it takes the form of an order it has to comply with Article 166(1). Article 166(2) states that orders and other instruments made and executed under Article 166(1), shall be authenticated in the manner prescribed. While clause (1) relates to the mode of expression, clause (2) lays down the manner in which the order is to be authenticated and clause (3) relates to the making of the rules by the Governor for the more convenient transaction of the business of the Government. A study of this article, therefore, makes it clear that the notings in a file get culminated into an order affecting right of parties only when it reaches the head of the department and is expressed in the name of the Governor, authenticated in the manner provided in Article 166(2).” 53. It is thus clear that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of the Letter dated 6-12-2001 shows that it was neither expressed in the name of the Governor nor was it authenticated in the manner prescribed by the rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.” 33. Applying the aforesaid principles in the instant case, the omnibus direction to mutate all the lands held by Kotwars as a service land/ Kotwari land cannot therefore be sustained. The State Government, however, has right to restrict the use of land in terms of section 183 of the Code of 1959 to the Kotwars which were granted to them for rendering service but for the fact that a Kotwar holds a land as a Bhumiswami will not change the status of that land for the reason that he is a 'Kotwar'. Therefore, there cannot be a general direction to revert back the revenue records and register the entire lands held by Kotwars as Kotwari lands. Therefore, there cannot be a general direction to revert back the revenue records and register the entire lands held by Kotwars as Kotwari lands. Consequently the direction (iv) contained in letter dated 10th March 2014 which takes away the right of Kotwars amounts to deproprietary in nature and without any authority of law. Further more, the direction that the possession of the lands be taken back cannot be sustained as no person can be dispossessed from his possession except only in accordance with law. 34. As a result of the aforesaid discussion, it is held that the direction given in circular issued by Joint Secretary dated 10.03.2014 i.e. the clause (iv) being without authority of law is quashed and cannot be given effect to. It is further directed that the State Government shall not dispossess any Kotwar from his possession of the land otherwise than in due course of law. 35. It is further observed that the State Government, if so advised, shall be free to make an enquiry with respect to the nature of holding of land by Kotwars to determine and carve out the Bhumiswami holding lands and service land separately. 36. It is further directed that on such enquiry if the right of Bhumiswami is found to be accrued in favour of the petitioners Kotwars in terms of provisions of Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, the Bhumiswami right is to be conferred on the petitioners and with respect to the service lands, the rights would be governed by the provisions of Section 183 of C.G. Land Revenue Code, 1959. With such observations/direction, these petitions stand allowed.