PRASHANT KUMAR MISHRA, J.

1. These writ petitions have been placed before the Division Bench to answer the following question :

“Whether a Kotwar (village servant) holding service land under Section 183(1) of the Chhattisgarh Land Revenue Code, 1959 can be granted bhumiswami right over such service land in view of the provision contained in Section 183(2) of the Code as held in Chhabil Das (supra) and Tikaram (supra)?”

2. The learned Single Judge has referred the aforesaid question for decision upon noticing that the decision rendered by the High Court of Madhya Pradesh in Pahup Singh v Haridas, 1977 RN 467 followed by this Court in Kamini Kumar v Bhaudas and Another, AIR 2017 (NOC) 206 (Chh) has not been considered in two subsequent cases in the matters of Tikaram and Others v The State of M.P. and another, WP No.2064 of 2000 (decided on 3-5-2001) and Chhabil Das and Others v The State of Madhya Pradesh and Another, WP No.2632 of 2000 (decided on 30-10-2001) while granting bhumiswami rights to the Kotwar on the land possessed by them.

3. In Pahup Singh (supra) the Single Bench of the High Court of Madhya Pradesh speaking through Hon’ble Shri G.P. Singh, J. (as His Lordship then was) held that transfer of service land by Kotwar is void, therefore, transferee cannot claim any right on land on the basis of such transfer. The ratio laid down in Pahup Singh (supra) was followed by this Court in Kamini Kumar (supra).

4. It is, therefore, required to first have a reading of what has been ordered by this Court in Chhabil Das (supra) & Tikaram (supra).

5. The first order passed by Hon’ble Shri W.A. Shishak, CJ in Tikaram (supra), which reads as under :

These 36 petitioners are Kotwars of District Durg. They were granted plots of land sometimes in the year 1950 and they are in possession of their respective plots of lands given to them. Thereafter, representations have been made to the competent authority to grant Bhoomiswami rights. Certain assurances were given to them. In fact, it is contended that even the Minister had given the assurance to them that Bhoomiswami rights would be granted. However, till date no such right has been granted. Hence this petition.

In para 4 of the return filed on behalf of the State, it is contended that in-spite of the clear cut instructions of the State Government in regard to grant of Bhoomiswami rights in some of the sub divisions such rights have been granted in favour of the Kotwars. It is further stated in the said return which is as follows;-

“Such declaration of rights was evidently violative of the provisions of section 45 (2) of the Abolition of Proprietary Rights Act, 1950 and also contrary to the instructions issued by the State Government. At the same time the representations from the Kotwars and their unions kept on flowing with the State Government. The State Government has initiated appropriate action against the concerned revenue authorities which was instrumental in getting the Bhoomiswami rights declared in favour of the Kotwars”.

Mr. Das learned counsel for the petitioner states in fact that as late as in December, 97, Bhoomiswami rights were granted in favour of Kotwars of the district Bilaspur vide Annexure P-3. The Commissioner ordered that names of these kotwars be recorded in relevant revenue records. This order was passed sometime in January, 1988. It is further contended that some rights have been granted in respect of Kotwars of district Sarguja and Raigarh. It is therefore submitted that no discrimination can be meted-out to the present petitioners inasmuch as they are similarly situated with other kotwars of districts of Bilaspur, Sarguja and Raigarh. It is further submitted by Mr. Das that in fact no action has been initiated against any person for grant of Bhoomiswami rights in respect of other Kotwars though such averment has been made in the return filed by the State.

It appears to me that since the petitioners were given plots of lands in 1950 and since then they have been