Untwalia, J. - (1.) This appeal by special leave from the judgment of the Patna High Court given in a writ petition is filed by the appellants. The short question which fell to be decided in the High Court and deserves our consideration is whether the reserve Jama fixed at Rs. 5,000/- per year by the Collector under the Bihar Land Reform Rules, 1951 (hereinafter referred to as "the Rules"), was valid and legal. The Jama had to be fixed in accordance with R. 7 (u) of the Rules.The question is whether it was under clause (i) or under clause (ii) that it was to be so fixed. The High Court has not clearly kept in view the distinction between the two clauses, Rule 7 (u) reads as follows:-"R. 7 (u). Fixation of reserve Jama - (i) In respect of such Hat, Bazar or Mela a reserve Jama, shall be fixed by the Collector or the prescribed authority on the basis of the average of the Jama, at which such Hat, Bazar or Mela was settled during the preceding three years. In case of improvements and developments in respect of the premises of such Hat, Bazar or Mela or in the neighbourhood thereof, for which the outgoing intermediaries and/or their heirs are not responsible and which are likely to increase the potentialities for fielding a higher Jama, such potentialities may also be taken into consideration and the reserve Jama can be suitably increased with the permission of the Commissioner. (ii) In case of difficulty in fixing the reserve Jama on the basis of the average of the Jamas of the preceding three years, due to non-availability of figures or otherwise, the Collector or the prescribed authority shall fix the reserve Jama in his best judgment with the approval of the Commissioner of the division."
(2.) Under the first part of clause (i) the reserve Jama has to be fixed by the Collector or the prescribed authority on the basis of the average of the Jama at which any hat, Bazar or Mela was settled during the preceding three years. The second part takes into account the improvement if any, brought about therein for which the intermediary is not responsible.
(3.) Under clause (ii) however, in case of difficulty in fixing the reserve Jama on the basis of the average of the Jamas of the preceding three years the Collector can fix the reserve Jama in his best judgment. The fixation under clause (ii) is subject to the approval of the Commissioner of the Division.;