Ramaswami, C.J.

1. In this case the petitioners have obtained a rule from the High Court calling upon the respondents to show cause why the order of the Additional Sub-divisional Officer of Motihari respondent No. 3, dated the 18th December, 1955, as also the order of approval given by the Collector and Additional Collector of the district of Champaran, respondents Nos. 1 and 2, should not be called up and quashed by a writ in the nature of certio-rari. The petitioners allege that the properties mentioned in Schedule I were their kasht land and that the properties mentioned in Schedule IE were their bakasht land bill the tauzis vested in the State of Bihar by a notification issued under the Bihar Land Reforms Act.

The petitioners further claim that a mela known as Kesaria Mela, is held annually between the 15th and the 30th of the month of Poos on the lands specified in Schedules I and II. It appears that on the 18th of December, 1955, the Additional Sub-divisional Officer of Motihari settled the tolls of the mela for Rs. 14,500/- with respondent No. 5, and this order was subsequently approved by the Additional Collector and the Collector.

The petitioners objected that the right to collect the tolls, of the mela did not vest in the State of Bihar by virtue of the notification under Section 3 of the Bihar Land Reforms Act, but this objection was overruled by respondent No. 3. The contention of the petitioners is that the order Of the Additional Sub-divisional Officer of Motihari, dated the 18th December, 1955, is illegal, without jurisdiction and ultra vires, and that a writ under Article 226 of the1 Constitution should be granted to quash that order.

2. At the time of hearing the learned Government Advocate on behalf of respondents 1 to 4 said that the State Government did not claim the right to hold mela on the kasht lands of the petitioners comprised in Schedule I. The Government Advocate said that he did not admit that the petitioners have the right to hold mela and submitted that the question be left open. But as the State Government does not claim the right to hold mela over the lands comprised in Schedule I, it is manifest that the order of the Additional Sub-divisional Officer of Motihari, dated the I8th of December, 1955, must be quashed so far as Schedule I lands are concerned,

3. The dispute in this case, therefore, relates to the bakasht land mentioned in Schedule II of the application. The argument on behalf of the respondents is that the right to collect tolls of the mela Is a "sairati interest" within the meaning of Section 4 (a) of the Bihar Land Reforms Act, and the effect of the notification under Section 3 of that Act is that such sairati interest vests In the State Government absolutely from the date of the notification. It is conceded on behalf of the respondents that Section 6 provided for a statutory lease back to the petitioners of bakasht lands, subject to the conditions mentioned in that section.

But it was submitted by the learned Government Advocate that the right to collect tolls from the mela did not fall within the terms of the statutory grant to the ex-proprietors under Section 6. On behalf of the petitioners it was argued, on the contrary that Section 6 expressly granted occupancy right to the ex-proprietors with regard to the bakasht land, and the statutory grant under Section 6, therefore, included the right to collect tolls from the mela and such right was conferred upon the petitioners by virtue of the statutory grant.

Alternatively, it was submitted that even if the petitioners had no right to collect tolls from the mela, the respondents had no right to trespass upon the lands which are the subject-matter of the statutory lease under Section 6 and to hold mela thereon.

4. The first question arising in this case is whether the petitioners have the right to collect tolls from the mela by virtue of the statutory grant made under Section 6 of the Bihar Land Reforms Act. In other words, the Question is, what is the amplitude of the statutory grant made under Section 6 It is necessary at this stage to quote Section 4 (a) and Section 6 of the Bihar Land Reforms Act, as much of the argument in this case turns upon the provisions of these two sections :--

"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 terries 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 ot 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 interests in such estate or tenure, other than the interests expressly saved by or under the provisions of this Act."

"6. (1) On and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including--

(a) (i) proprietors private lands let out under a lease for a term of years or under a lease from year to year, referred to in Section 116 of the Bihar Tenancy Act, 1885.

(ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under a lease, written or oral, for a period of one year or less, referred to in Section 43 of the Chota Nagpur Tenancy Act, 1908,

(b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with hig own stock or by his own servants or by hired labour Or with hired stock, and

(c) lands used for agricultural or horticultural purposes and in possession of a mortgagee which immediately before the execution of the mortgage bond were in khas possession of such proprietor or tenure-holder, shall, notwithstanding anything contained in this Act, be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the pay- ment of such fair and equitable rent as may be determined by the Collector in the prescribed manner :

x x x x x"

5. On behalf of the respondents the Government Advocate submitted that the power of the tenant to make use of the land must be limited by the nature of the grant. It was argued that the lease was an agricultural lease and reference was made to Section 5 of the Bihar Tenancy Act which defines a "raiyat" to mean primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants. It was submitted by the Government Advocate that the lease was agricultural and hence no non-agricultural purpose was permitted, to the tenant under the grant. It was contended that permissible user must be connected directly with the purpose of the tenancy and that the user by the tenant must be consistent with the agricultural purpose.

It was, therefore, submitted that the tenant had no right to collect tolls from the mela under the terms of the statutory settlement under Section 6. In support of his argument the learned Government Advocate relied upon the decisions in Raj-Kishore Mondal v. Rajani Kant 24 Cal LJ 85 : AIR 1917 Cal 280 (A), Srish Chandra Ganguly v. Esein Mussalli, : AIR 1934 Cal 280 (B) and Lal Sahoo v. Deo Narain Singh ILR 3 Cal 781 (C), The opposite view point was, however, put forward by learned Counsel on behalf of the petitioners.

It was argued that under Section 23 of the Bihar Tenancy Act the occupancy tenant was entitled to use the land in any manner he liked, subject to the conditions mentioned in that section. It was argued that the holding of the mela would not materially affect the value of the land or render it unfit for cultivation, and, therefore, the petitioners were entitled to hold the mela and collect tolls. Section 23 of the Bihar Tenancy Act is in the following terms :--

"23. (1) When a raiyat has a right of occupancy in respect of any land, he may use the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy.

(2) The following shall not be, deemed to impair the value of the land materially or to render it unfit for the purposes of the tenancy, namely :--

(a) the manufacture of bricks and tiles for the domestic or agricultural purposes of the raiyat and his family or for any educational or charitable purpose;

(b) the excavation of tanks or the digging of wells intended to provide a supply of water for drinking or other domestic purposes of the raiyat nnd his family or to any religious or charitable institution; and

(c) the erection of buildings for the domestic or agricultural purposes of the raiyat and his family or for any educational or charitable purposes.

x x x x x"

It was submitted by the learned Counsel that the proper test to apply was whether the user of the tenant materially impaired the value of the land or rendered it unfit for the purpose of the tenancy within the meaning of Section 23 of the Bihar Tenancy Act. The learned Counsel conceded that it was a question of fact in each case whether the holding of the mela materially affected the value of the land or rendered it unfit for the puroose Of cultivation. The learned Counsel also distinguished the three cases cited upon by the learned Government Advocate. aS regards the case 24 Cal LJ 85 : (AIR 1917 Cal 280) (A) it was pointed out that the finding of fact in that case was that the holding of the mela rendered the land unfit for cultivation. Similarly, in the case : AIR 1934 Cal 280 (B) the finding of fact of the court was that the act of the tenant rendered the land unfit for cultivation. The learned Counsel also distinguished the case ILR 3 Cal 781 (C) on the ground that that was a decision under Act VIII of 1869. In my opinion, the argument of the petitioners has great force and the proper test to be applied is the one mentioned in Section 23 of the Bihar Tenancy Act, namely, whether the act of the tenant rendered the land unfit for cultivation or materially impaired its value.

It is, of course, a question of fact in each case whether the act of holding a mela rendered a particular land unfit for cultivation or impaired its value. But it is not strictly necessary for me to decide this question in this case or to express any concluded opinion thereon. I shall assume in favour of the respondents that the petitioners have no right to hold the mela on the disputed land. Even so, the crucial question arises whether the State of Bihar has the right to hold mela on the land of the petitioners.

6. On this question it was contended on be. half of the petitioners that the provisions of Section 6 of the Bihar Land Reforms Act conferred the status of an occupancy tenant on the ex-proprietor in unqualified language and that there was no reservation in that section as to the right of holding mela in favour of the State Government. It was submitted that proper effect must be given to the language of Section 6 and if the State Government entered upon the land to hold mela, that would constitute an act of trespass. In my opinion the argument addressed on behalf of the petitioners is well founded and must prevail.

It is manifest that the language of Section 6 of the Bihar Land Reforms Act confers the status of occupancy tenant upon the ex-proprietors by a statutory grant. The language of G. 6 is unqualified and there is no reservation of any mela interest or any other interest in favour of the State Government. It follows, therefore, that the State Government has no right to enter upon the land and hold mela thereon for such an act would constitute trespass. This view is borne out by a passage from the judgment of Mookerjee, J. in Secretary of State for India v. Karuna Kanta Chow. dhry. ILR 35 Cal 82 at p. 100 (D) which reads as follows . .

"If we apply these principles to the facts of the case before us, what is the position of the parties The lands on which the fair was held during 20 days in the year, were all comprised in the holdings of agricultural tenants. The legal possession was in them. The Fakirs could not acquire by any grant from the landlord an interest in the lands in supersession or limitation of, or derogatory to, the interest of the cultivators. The zamindar granted them a right to hold the fair.

Thig right they could not exercise, if the agri-cultural tenants objected. Substantially, they did not and could not acquire any right to the possession of the land. They could hold the fair only by consent or acquiescence of the cultivators. It is, therefore, impossible to say that they acquired any interest in the lands. Much less can it be said that the persons who attended the fair and sold animals, goods or articles of merchandise, were in any sense tenants of the Ijaradars. They had obviously no interest in the land.

They occupied or erected stall or booths to store their goods and to sell them, and paid what was nothing more or less than a toll to the Ijaradars of the Fakirs, and the amounts paid in respect of the shops could not fall within the description of annual value of land.".

A similar view has been expressed by a Division Bench of this High Court in Henry Hill & Co. v. Sheoraj Rai, 3 Pat LT 53 : :(: AIR 1922 Pat 9 ) (E) where it was pointed out that the Bengal Tenancy Act secured to the raiyat a limited ownership in the soil, and unless the landlord expressly reserved his right to appreciate the water and the fisn which came upon his land during the period of inundation, the raiyats right to appropriate the same cannot be restricted. It was further observed in the case that the landlord might reserve the right of fishery in letting out the land, but such reservation was, strictly speaking, a re-grant of the right by the tenant to the. landlord. It is manifest in the present case that there is f no reservation of mela right in favour of the State Government under the terms of the statu-tory giant contained in Section 6 of the Bihar Land Reforms Act. On the other hand the language of Section 6 is unqualified and the status cf an occupancy tenant is conferred upon the ex-proprietors without any qualification or restriction. It follows, therefore, that the State Govern- ment has no right to hold the mela on the disputed lands of which statutory settlement has been granted to the petitioners under Section 6.

7. In the course of his argument the learned Government Advocate referred to Section 22 I (2) (vi) of the Bihar Land Reforms Act and agrued that gross income of the previous agricultural year from hats, hazars and sairati interests was an element to be taken into consideration in calculating the net income of the ex-pro-prietor for the purpose of compensation. It was, therefore, contended that the State Government must be deemed to have acquired the mela interest since compensation was paid to the ex-proprietors. There is a fallacy lurking in this argument. The assumption underlying the argument is that the State Government gains what the proprietor loses. There is no justification for making this assumption because compensation is paid for what the proprietor loses and not necessarily for what the Plate Government gains. I therefore, hold that the argument of the learned Government Advocate is weak and does not support him in the matter of construction cf Section 6.

8. In the course of argument the question was debated whether the holding of a mela was an inaumbrance within the meaning of Section 4(a) of the Bihar Land Reforms Act or whether it was a sairati interest within the language of that section. Take a casg where the villagers have acquired a customary right to hold mela on the disputed land of a proprietor on certain days of the year. Such a customary right may be looked at from two points of view. It may be said on the one hand that it is a limitation on the right of the proprietor and therefore an "in-cumbrance" within the meaning of Section 4(a).

If this view is correct, then the mela right would be abrogated or destroyed under Section 4(a) when the vesting takes place oy a notification under Section 3 and. therefore, the State Government would not acquire the right of holding the mela after the date of the vesting. The Government Advocate however, argued that the mela would not be an incumbrance within the language of Section 4 (a) but it would be a sairati interest and, therefore, the right of holding the mela would vest in the State Government upon the issue of a notification under Section 3. I shall assume in favour of the respondents that this contention is right and that the right of holding a mela is not an incumbrance but is a sairati interest. Even upon chat assumption I am satisfied that the right of holding a mela would not vest in tne State Government under the provisions of Section 4 (a).

The reason is that Section 4 (a) expressly states that it is "subject to the subsequent provisions of this Chapter". In other words, the provisions of Section 4(a) are subject to the provisions of Section 6; and if there is a conflict between the provisions of Section 4(a) and Section 6, the provisions of Section 6 must prevail and Section 4 (a) must yield and give way to the provisions of Section 6 which confers by a statutory grant on the ex-proprietor the status of an occupancy tenant in unqualified language and which contains no reservation with regard to the mela in favour of State Government. To put it differently, you have got to construe Section 4(a) subjectae materies in the context of Section 6.

You cannot construe Section 4 (a) in isolation from the rest of the, but you have got to construe all parts of the statute together and the interpretation given should be consistent and harmonious. That is the right principle to be applied in the present case.

9. It follows, therefore, that in the present case the State Government has no right to hold the meia and collect tolls on the bakasht lands of the petitioners mentioned in Schedule II of the application. As regards the lands of Schedule I, Counsel for the respondents conceded that no mela right is claimed. The petitioners are, therefore, entitled to a writ in the nature of certiorari for quashing the order of the Additional Subdivi-sional officer of Motihari, dated the 18th December, 1955, and the order of approval given by the Collector and Additional Collector. The petitioners are further entitled to a writ in the nature of mandamus, restraining the respondents from interfering with the possession of the petitioners over the lands specified in schedules I and II of the application. I would accordingly allow this application with costs. Hearing fee Rs. 100/- to be paid by respondents 1 to 4.

Raj Kisiiore Prasad, J.

10. I agree.