BHOLA MIAN Vs. S M ISLAM

JUDGEMENT

(1.) In this case the petitioner, Bhola Mian, has taken by a registered lease, dated the 10th November, 1951, the right of holding bazar on plots Nos. 689 and 690, which were orchard or bakasht land of the proprietors of the zamindari. The lease was for a period of seven years ending with December, 1957, but by virtue of a notification under Section 3-A of the Bihar Land Reforms Act the zamindari vested in the State Government in January, 1956. The petitioner alleges that on the 2nd of April, 1956, the Sub-divisional Officer, opposite party No. 1, ordered that the settlement made with the petitioner by the ex-landlords free of rent could not be recognized and that the right of holding the hat on the disputed plots had vested in the State Government by virtue of the notification made under Section 3-A of the Bihar Land Reforms Act. By a subsequent order dated the 2nd of April, 1956, the Collector of Bhagalpur directed that steps should be taken for settlement of the hat and the orchard. Against these orders, the petitioner has sought a writ in the High Court under Article 226 of the Constitution for calling up and quashing these orders.

(2.) The argument addressed on behalf of the petitioner is that the settlement made with the petitioner On the 10th November, 1951, fell within the purview of Section 4 (h) of the Bihar Land Reforms Act, and unless suitable proceeding was taken by the Collector for annulling the settlement the State Government is not entitled to take possession of the property or to hold bazar thereon. The opposite view point was presented by the learned Government Advocate on behalf of the respondents. It was submitted that the settlement made with the petitioner was for a period of seven years for non-agricultural purpose, that is, for holding a hat, and there is no raiyati right or tenure right created in favour of the petitioner and, therefore, the transaction was an "incumbrance" within the meaning of Section 4 (a) of the Bihar Land Reforms Act, and as soon as a notification was issued by the State Government under Section 3-A the zamindari interest vested in the State Government and the settlement was automatically cancelled and the right of the petitioner to hold the hat in the dispute plots was abrogated. It is necessary at this stage to reproduce the relevant portions of the registered lease dated the 10th November, 1951. The amount of consideration was Rs. 4000/- and the lease was executed for, a period of seven years. The specification of property is as follows :--

(3.) The argument of the Government Advocate is based upon Section 4 (a) of Bihar Act 30 of 1950, which reads as follows :--