Sinha, J.

(1) The petitioner, Chaudhry Mohammad Afaque, has filed this application under Articles 226 and 227 of the Constitution of India, and has prayed for issue of appropriate orders, directions or writs against the opposite party.

(2) The petitioner is the holder of intermediary interest and also 700 bighas of raiyat kasht lands under different proprietors, including Islampur Waqf Estate, and he has been cultivating the raiyati lands and also some bakasht lands, A short genealogy of the petitioners family will not be out of place to understand the case:

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| | | Chaudhry Mohd. Chaudhry Mohd. Chaudhry Mohd. Yusuf Yunus Ayub

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Chaudhry Mohd. Afaque Chaudhry Mohd.

(Petitioner) Yaqub.

This genealogy does not purport to be exhaustive. It appears that Chaudhry Abdul Aziz was possessed of some properties, and, in 1908, he made settlement of about 20 bighas of land in villages Islampur Chopra Jhar. There is ho dispute in this proceeding in regard to this land. On 14-4-1909, Abdul Aziz, had created a waqf-al-aulad in respect of all his properties. Abdul Aziz died in 1916, and he was succeeded by his son, Mohammad Yusuf, father of the petitioner, as Mutwalli, and the other two brothers of Moham-mad Yusuf became Naib Mutwallis, according to the terms of the Waofnama. On 8-2-1923, the Mutwalli, namely, Mohammad Yusuf, settled lands comprised in khata No. 2, parts of plot No. 5 and plot No. 10, with one Dolo for nine years under a registered deed of settlement, along with other lands, including khata No. 64, plot No. 7 (part) and plot No. 9 (part), and khata No. 63, plot No. 8 (part), totalling an-area of 40 bighas 1 katha 11 dhurs, at a rental of Rs. 40/-. On 14-9-1925, more than two years alter, the said Dolo sold the said 40 bighas 1 katha 11 dhurs to the petitioner, who was then minor, under a registered document for a consideration of Rs. 1,500/-. On 19-3-1938, the Mutwalli settled an area of 113 bighas 14 kathas 6 dhurs with the petitioner, including khata No. 2, plot No. 5 (part) and plot No. 10 (part), and other lands for a rental or Rs. 35/6/-. There was another settlement with the petitioner in the same year by the Mutwalli in respect of 107 acres and odd which included khata No. 2, plot No. 5 (part) and plot-No. 10 (part). There was a third settlement of 10 acres and odd with the petitioner and the rental of these two pieces of land (107 acres and odd and 10 acres and odd) was fixed at Rs. 75/8/-. It is stated that the petitioner has been in possession all along since the dates of purchase and settlements and that he has built on portions of plots Nos. 5, 7, 8, 9 and 10 his residential houses, cut-houses, private mosque, cattle-shed etc.

(3) Abdul Aziz, the founder of the Waqf, re-mained Mutwalli from 1909, the date of the creation of the Waqf, till sometime in 191

6. Mohammad Yusuf was the Mutwalli after the death of Abdul Aziz in 1916 up to 26-4-1955. During his tenure as Mutwalli, one Mohammad Sahib was appointed a Receiver by the Subordinate Judge, Pur-nea, in 1939 in execution case No. 196 of 1933. The receivership terminated sometime in March, 1940, when he was discharged, and Mohammad Yusuf was appointed Receiver for a short-while. Thereafter, for about a year, one Fazlur Rahman was appointed Manager, with the consent of the parties, on 26-7-1940. Mohammad Ayub succeeded to the Mutwalliship on 26-4-1955, on the death of Mohammad Yusuf. According to the petitioners case, there was ill-feeling between Mohammad Yusuf and Mohammad Ayub, and there were several criminal and civil litigations between them. It is also stated that he has always been in possession of the lands purchased by him and settled with him, as mentioned above, on payment of rent to the Waqf Estate all along, including the time when the Receiver was appointed and a Manager had been put in charge of the Waqf Estate.

(4) The case of the petitioner is that, since 1925, on portions of plots Nos. 5 and 10 of khata No. 2, khewat No. 1, and a portion of plot No. 7 of khata No. 64, a mela, known as Yusufganj Mela Islampur. is held by him, and that, during the period of his minority, his father. Moharamad Yusuf, and his brother. Mohammad Yaqub, used to look after his properties, including the mela. The petitioner, in support of his actual physical possession of the lands in question, as also the proprietorship of the mela, has relied upon a number of documents, including an order in a claim case (Miscellaneous Case No. 51 of 1948, under Order 21, Rule 58, Civil P. C.), in which a decree-holder against his father, Mohammad Yusuf, had attached certain properties, including plots Nos. 5 and 10 of khata No. 2 in village Islampur. The petitioner filed a claim case, under Order 21, Rule 58, Civil P. C., and, on 28-2-1947, it was decided that the petitioner had been in possession of the lands since his purchase from one Dolo, and, accordingly, they were not liable to be proceeded against in execution of the decree against his father, and that the judgment-debtor, namely, the father of the petitioner, was not in possession. He has also attached with his affidavit and supplementary affidavit a number of correspondence showing that he himself had always made arrangements for the mela, and that is apparent from a number of letters received by him from the Chairman, District Board, Purnea, and other officers of Government. Special mention has been made of a letter from Mr. R. C. Prasad, Subdivisional Officer, Kishanganj, to the petitioner wherein the latter has been described as the proprietor, Islampur Mela. The letter is dated 21-10-1954, in which the petitioner has been told that, under the auspices of National Extension and Block Development Exhibition, stalls will be erected in the Islampur Mela ground commencing from 25-10-1954, for a month. In the view which I am inclined to take, it is not necessary to mention the letters and other correspondence referred to by the petitioner in any greater detail.

(5) Now coming to the present dispute, it has to be mentioned that the Islampur Waqf Estate vested in the State of Bihar on 26-1-1955, under the Bihar Land Reforms Act, and the officers on behalf of the State Government wanted to interfere with the petitioners right to hold the mela on the plots aforesaid. On 12-4-1955, the petitioner filed a petition before the Collector of Purnea mentioning therein that he had been in cultivating possession of the lands in question, and was holding the mela since a long time, and that his (Collectors) subordinate officers were interfering with his possession, so far as the holding of the mela for the year 1955 was concerned. There was an enquiry made by the Circle Officer, who, by his report dated 4-10-1955, held that the transactions in favour of the petitioner, commencing from the settlement with Dolo and Dolos sale to the petitioner and the settlements by the Waqf Estate with the petitioner, were all farzi transactions, and that the mela in question was held on behalf of the Waqf Estate. On 27-10-1955, just a few days before the mela was to commence, Mr. M. Singh, Deputy Collector in charge Z. A. Works, Kishanganj, in his letter No. 3590 R. S. to the Additional Collector, Purnea, referred to the dispute in the Civil Court with reference to the claim case of the petitioner, and he said:

"The fact that plots Nos. 5 and 10 are recorded as raiyati land of Ch. Md. Afaque cannot be challenged. The only point which remains to be examined is if the transaction through which these plots were acquired was a farzi one ..... In view of this clear finding (referring to the order in the claim case) I do not see there are materials enough to hold those transactions as Benami."

This was followed by the order of the Additional Collector, Mr. B. Singh, dated 8-11-1955, observing that Dolo had no right to sell the lands to the petitioner, that according to the report of the Circle Officer, the transaction was absolutely farzi, that the purchase was actually made not by the petitioner but his father, the Mutwalli, Chaudhry Mohammad Yusuf, that certain receipts indicated in the report of the Circle Officer showed that the mela was being held on behalf of the Waqf Estate, and that the Islampur Mela Yusufganj has prima facie vested in the State of Bihar under the provisions of the Land Reforms Act. After these observations, the learned Additional Collector made the following remarks:

"It was also argued on behalf of the applicant in course of the argument that the applicant has been cultivating some portion of the lands on which the mela is held. If the applicant has been cultivating lands on which mela is held, the question does not arise. He should cultivate the lands as usual but if he has been cultivating lands on a portion of which mela is held the mela will be held on such portion also and the State of Bihar having stepped into the shoes of the ex-tenure-holder of the Waqf Estate has also the same right to hold the mela even on such lands which are cultivated during the period when the mela is held, but after the mela is over, the person or persons concerned may cultivate such lands as usual as is dona in some other melas of the District."

Finally, the learned Additional Collector held as follows:

"As the mela has vested in the State of Bihar under the provisions of the L. R. Act, it is necessary now to take charge of this Mela. Accordingly, issue notice under Section 4 (g) of the L. R. Act requiring the ex-tenure-holder the Mutwalli (Present Mutwalli) of the Waqf Estate and the applicant objector to give up possession by 13-11-1955 and also issue notice under Section 40 of the Act asking them to make over charge of the said Mela by 14-11-1955."

Notices under Section 4 (g), were, thereupon, issued to both Mohammad Ayub, the ex-tenure-holder Mutwalli of the Waqf Estate, and also to the petitioner, Mohammad Afaque; and the State of Bihar took possession of the mela on 14-11-1955; the mela started on the 15th November. It is on these facts that the present application is founded.

(6) The opposite party has filed a counter-affidavit sworn by Narendra Narain Sinha, Circle Officer, Islampur. Then there was a supplementary affidavit in reply to the counter-affidavit. This counter-affidavit on behalf of the State is nothing more than denial of the rights acquired by the petitioner in the land in question. There is no allegation that on the relevant date these lands were in direct possession or control of the Waqf Estate. It is true, allegations have been made that the mela in question, used to be held on behalf of the Waqf Estate. For the purpose of the present application, it should be stated that the opposite party claim possession of the mela and the right to hold the mela on the lands in question irrespective of the fact whether the lands were in actual physical possession of the petitioner as raiyat, or these lands were in khas possession of the Waqf Estate as such. In this view of the matter, I am not called upon to decide in this case as to whether the petitioner acquired raiyati interest in the lands in question by the several transactions mentioned above; and it has been taken for granted by the Additional Collector that the lands are in possession of the petitioner. The only question that has to be decided is whether the provisions of Section 4 (a) and 4 (g) are attracted so far as the right to hold the mela and to collect tolls therefrom is concerned. This brings me to the question as to the interpretation that has to be put upon these provisions. It is not disputed that the Waqf Estate has vested in the State of Bihar on 26-1-1955. Section 4 reads as follows: "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 sairati 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 mines 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 interest in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act.

"(g) Where, by operation of this Act, the right to the possession of any estate or tenure or any part thereof vests in the State, the Collector may, by written order served in the prescribed manner, require any person in possession of any lands end buildings (other than the lands and buildings referred "to in Sections 5, 6 and 7) comprised in such estate or tenure to give up possession of the same by a date specified in the order and it shall be competent for the Collector to take, or cause to be used, such force as, in the opinion of the Collector, may be necessary for securing compliance with the said order or preventing any breach of the peace."

The important words have been underlined by me. The word "estate" has been defined as meaning "any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands.....". There is no doubt, therefore that "estate" refers to "lands", as mentioned in the definition.

"Tenure" means "the interest of a tenure-holder or an under-tenure-holder .....". and "tenure-holder" is defined to mean "a person who has acquired from a proprietor or from any other tenure-holder a right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it.....". The words "estate", "tenure" or "tenure-holder", therefore, refer to lands, The words "intermediary interest" have also been defined as meaning "the interest of an intermediary in an estate or tenure".

Construing these words, therefore, in my judgment, they must have reference to lands. In the light, therefore, of the definitions of these words given in the Act itself, in my opinion, the words "trees, forests, fisheries, jalkars, hats, bazars and ferries and all other sairati interests", occurring in Section 4 (a) must also have reference to lands which, toy virtue of the Act, vested in the State. Mr. Advocate-General, being alive to the position that the word "mela" does not find place in Section 4(a), contended that it would be included within the expression "all other sairati interests". Even if it be conceded that the word "mela" could be covered within the expression "all other sairati interests", but without deciding it, it should be held that such sairati interests must have been derived from the lands in direct possession or control of the proprietor or tenure-holder, as the case may be, whose estate has vested in the State. In other words, if trees, forests, fisheries, jalkars, hats and bazars have no reference to lands which have vested in the State, under the Act, the State is not entitled to the possession of any of these. Sub-section (f) of Section 4, referred to by the learned Advocate-General, does not throw any light upon the controversy in question : it merely says that the Collector shall be deemed to have taken charge of such estate or tenure and of all interests vested in the State under this section. Now, Sub-section (g) says in quite clear words that where, by virtue of the operation of this Act, the right to the possession of any estate or tenure of any part thereof vests in the State, the Collector may, by written order served in the prescribed manner, require any person in possession of any lands and buildings (underlined by me here into ) comprised in such estate or tenure to give up possession of the same, and so the Collector is not entitled to take possession of any other kind of property. In my opinion, the provisions of Sub-section (g) also supply the key to the interpretation of Sub-section (a) of Section 4. In other words, if trees, forests, fisheries, jalkars, hats, bazars and ferries and all other sairati interests are not referable to lands, of which possession is deemed to have vested in the State under Section 4 of the Act, they cannot be taken possession of by the Collector under Section 4 (g); that is to say, the right given to the Collector under Sub-section (g) to take possession is confined to lands and buildings and to nothing more.

(7) Viewed in the light of the construction put by me on the different provisions of the Act, referred to above, I am definitely of the opinion that the Collector or the Additional Collector had absolutely no jurisdiction to order issue of notice under Section 4(g) of the Act, nor the opposite party No. 3 was entitled, under that notice, to take possession of the mela in question, held on portions of plots Nos. 5 and 10 of khata No. 2 khewat No. 1, and portion of plot No. 7 of khata No. 64, khewat No. 1, as mentioned in para 10 of the petition. I have no hesitation, therefore, in allowing the application, and I direct that a writ in the nature of certiorari should issue quashing the order of the Additional Collector dated 8/11/1955, and all other acts in pursuance of the said order must also be held as having been done without jurisdiction. In the result, the application is allowed with costs; hearing fee Rs. 100.00.