- (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 :-- "Specification of property :-- Ten annas zamindari proprietary interest in the Kalambag land, constituting khas kamat, within Jagir Hulas Rai Subedar, bearing tauji No. 3460, situate in mauza Joalapur, as per specification given below, thana Pirpainty. Paragana and Sub-Registry office Colgong, district Bhagalpur, khewat No. 23, khata No. 352, khesra No. 692, measuring 1 acre -- 56 decimals, having 8 annas share in the said fruits, thana No. 144. North South East West Gopalisahu, Darbari Sahu Ritan Raghu and others. Dhanuk. Sahu. 2. Ten annas zamindari proprietary interest in the Kalambag land, constituting khas kamat, within Jagir Mir Salamat, situate in mauza Joala pur, as per specification given below, thana Pir painty, paragana and Sub-registry office Coigcng, district Bhagalpur, bearing khata No. 366, khesra Nos. 690 and 689, khewat No. 14, thana No. 144, tauzi No. 4606, having eight annas share in the said fruits. Khesra A.D. North. South. East West No. 689 0.60. Darbari Sahu and others. Suraj Narain Shukul. Raghu Sahu. Lachhmi Prasad Potdar and others. 690. 2.66.3.26. Gopali Sahu. Raghu Sahu. Gopali Sahu & others. Kali Prasad Sahu Potdar." There is also a clause in this document that the petitioner would not pay any rent to the landlords for any portion of the said period of settlement. There is a further clause stating that the petitioner would construct sheds and walls etc. and hold a hat en the disputed plots without payment of rent for the period of seven years.
(3.) The argument of the Government Advocate is based upon Section 4 (a) of Bihar Act 30 of 1950, which reads as follows :-- "'4. Notwithstanding anything contained in any other law for the time being in force or in. any contract, on the publication of the notification under Sub-section (1) of Section 3, or Sub-section (1) or (2) of Section 3-A, the following consequences shall ensue, namely, (a) Subject to the subsequent provisions of this Chapter, such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, hats, bazars and ferries and all other sa-irati interests as also his interest in all sub-soil including any rights in mines and minerals, whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mine and minerals, comprised in such estate or tenure (other than the interests of raiyats or under-raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act." As regards the meaning of the word "incumb-rance" the Government Advocate made reference to Section 2 (t) of the Act which enacts that all words and expressions used in the Act would have the same meaning as in the Bihar Tenancy Act in their application to the area to which the Bihar Tenancy Act applied. Turning to the Bihar Tenancy Act we find that Section 161 states what is the meaning of the term "incumbrance" with reference to a tenancy. The section states that the term "incumbrance" used with reference to a tenancy, means any Hen, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein. The meaning of the term "incumbrance" has also been the subject-matter of consideration in a Full Bench decision of the Calcutta High Court in Kartick Chandra Mallik v. Harsha Mukhi Dasi, AIR 1943 Cal 345 (A). At page 355 of the report the Full Bench has observed that in a general sense the word "incumbrance" would include any burden on property, any right or interest created by the owner in limitation of his own, and that was the sense in which the term was used, for example, in Section 161 of the Bengal Tenancy Act. The Pull Bench proceeds to say :-- "As another example, we may refer to Section 3 of the Putni Taluks Regulation where Clause (2), after declaring that patni talukdars may let out the lands of their taluks in any manner they may deem most conducive to their interest, goes on to provide that no such engagements shall operate to the prejudice of the right of the zamindar to hold the superior tenure answerable for any arrear of his rent, in the estate in which he granted it and free of all incumbrance resulting from the act of his tenant. In ether words, the act of sub-letting is regarded as creating an incumbrance. Yet another example may be found in Section 11 of the same Regulation. This is the general meaning of the term. But, as implied in Turner Morrison and Co. Ltd. v. Manmohan Chowdhury 58 Ind App 440 : (AIR 1931 PC 3141 (B) the term as used in Section 37 is exclusive of whatever is an under-tenure within the meaning of the section. The taluk in question in that case was such an under-teuure. If, however, the patni interest in question in the present case is not an 'under-tenure' within the meaning of the section (as the appellants in the first branch of their argument contend that it is not), there is no ground left for excluding it from the scope of the term encumbrance. 58 Ind App 440 : (AIR 1931 PC 314) (B) affords no authority for the proposition that even where a subordinate interest is not an under-tenure within the meaning of Section 37 but is merely in the nature of an under-tenure, it can not be classed as an encumbrance,";