1. This writ petition is directed against an order dt/- 7-12-1981, passed by the respondent 2 and as contained in Annexure 2 to the writ petition, whereby and whereunder, the respondent 2 rejected an application filed on behalf of the petitioners purported to be under S. 48E of the Bihar Tenancy Act.

2. The facts of the case lie in a very narrow compass.

3. On 3-9-1981 the petitioners filed an application under S. 48E of the Bihar Tenancy Act before the respondent 2 claiming themselves to be the bataidars in respect of the lands described in para 4 of the writ petition inter alia on the ground that they are cultivating the said lands on batai for the last 30-40 years, but they have been threatened by the landlord with unlawful ejectments from the said lands.

4. Upon the aforementioned application the respondent 3 was issued notice and he filed an application on 7-9-1981 challenging the maintainability of the said application inter alia on the ground that he has got 28 acres, 72 decimals of land and the said lands had been partitioned by a compromise decree passed in Title Suit No. 121 of 1970 between him and three sons in equal share resulting in allotment of 1/4th share in his favour out of 28 acres, 72 decimals of lands.

5. As the hearing of the case had been concluded, the respondent 2 fixed 28-9-1981 for orders. On 26-9-1981 a joint compromise petition was filed by the petitioners and the respondent 3. The parties prayed before the respondent 2 that the said case be disposed of in terms of the compromise, but no order was passed thereon. However, on 1-10-1981, the respondent 3 filed another petition before the respondent 2, whereby and whereunder, he stated that the question as to whether he being a protected tenant should be decided first and pursuant thereto the respondent 2 by his order dt/- 22-10-1981 called for a report from the Anchal Adhikari of Shahkund Block. On 19-11-1981, a report was submitted and as contained in Annexure 1 to the writ petition, wherein the Anchal Adhikari reported that the respondent 3 had less than 10 acres of lands.

6. By the impugned order, the learned court below declared the respondent 3 to be a protected tenant as contemplated under S. 48C of the Act and thus, rejected the application filed by the petitioners under S. 48E thereof.

7. The petitioners, thereafter, filed an application for review before the respondent 2, who by an order dt/- 31-3-1982 rejected the said application.

8. The learned counsel appearing on behalf of the petitioners submitted that the impugned order passed by the respondent 2 is wholly illegal and without jurisdiction inasmuch as S. 48C does not bar an application filed under S. 48E of the Act. Section 48C and S. 48E read as follows:—

“48C. Acquisition of right of occupancy by under-raiyats:—

Every person who, for a period of twelve years, whether wholly or partly before or after the commencement of the Bihar Tenancy (Amendment) Act, 1938 (Bihar Act 11 of 1938), has continuously held land as an under-raiyat in any village whether under a lease or otherwise, shall be deemed to have acquired, on the expiration of that period, a right of occupancy in the land which he has so held for the said period;

Provided that an under-raiyat shall not, irrespective of the duration of his holding any land as an under-raiyat, acquire any right of occupancy—

(i) in such area of the land to be selected and declared by his landlord in the prescribed manner as together with the area of land already held by the landlord under his cultivation does not exceed the following limits, namely:—

(a) five acres of land irrigated by flow irrigation work, lift irrigation work or tube well owned, constructed maintained improved or controlled by the Central or the State Government or by a body corporate constituted under any law or by tube well owned or maintained by the landlord or;

(b) ten acres of other land; or

(ii) in the land within the ceiling area fixed by law of a landlord who is a widow or a person suffering from blindness, leprosy or paralysis or is a person of unsound mind or a person in the service of the Army, Navy or Air Force of the Union of India during the period the landlord remains a widow or suffers from blindness, leprosy or paralysis or remains of unsound mind or remains in the service of the Army, Navy or Air Force of the Union of India.

Explanation 1:— A land shall be deemed to be irrigated by such flow irrigation work, lift irrigation work or tube well if it is ordinarily capable of being irrigated from such source notwithstanding that such irrigation is not enjoyed owing to any action or inaction on the part of the landlord of such land.

Explanation 2:— For the purpose of this section one acre of land mentioned in cl. (i)(a) shall be deemed to be equivalent to two acres of land mentioned in Cl. (i)(b).

Explanation 3: If there are more than one under-raiyat under a landlord, the area of land to be selected and declared by the landlord in the prescribed manner shall be in proportion to the area of land held by different under-raiyat.

Explanation 4:— A member of an undivided Hindu family having or being entitled to a share in land shall be deemed to be a landlord for the purposes of this section as if there has been partition in the family.

x x x x x x x x x x x x x x x x x x x x x

48E. Prevention of the threatened ejectment of under-raiyat and restoration to possession under-raiyat unlawfully ejected— (1) If an under-raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord or if there is a dispute between them over the possession of land, crop or produce thereof either on the ground of non-existence of relationship of landlord and tenant between them or otherwise or if an under-raiyat is or has been ejected from his tenancy or any portion thereof within twelve years before the commencement of proceedings under this section in controvention of the provisions of S. 89 the Collector may, of his own motion or on application made in this behalf by the under-raiyat, initiate a proceeding for preventing the landlord from ejecting the under-raiyat or for settlement of the said dispute or for restoration to possession under-raiyat unlawfully ejected from his tenancy or portion thereof.”

9. From a perusal of the aforementioned provision under S. 48C of the Act, it is evident that the same provides for acquisition or right of occupancy by under-raiyat.

10. In terms of the provision appended to the said Act only an embargo has been put to the acquisition of such right of occupancy so far as an under-raiyat is concerned, if the land already held by the landlord under his cultivation does not exceed five acres of irrigated land or ten acres of other land or under other circumstances, as mentioned in cl. (a) of the proviso appended to S. 48C of the Act.

11. Section 89 of the Bihar Tenancy Act provides that no tenant shall be ejected from his tenancy or any portion thereof except in execution of a decree.

12. Section 48E of the Act does not contemplate an application, only by an under-raiyat having an occupancy right.

13. Chapter V of the Act deals with the matters relating to the incidence of occupancy right. Such rights have been created for conferring certain benefits as mentioned in the various provisions as contained in Ss. 23 to 26B thereof upon the raiyats.

14. In terms of S. 25 of the Act, an occupancy raiyat shall not be ejected by his landlord from his holding except in execution of a decree for ejectment passed on the grounds mentioned therein. Chapter VI of the said Act deals with the rights of non-occupancy raiyat.

15. In terms of S. 44 of the said Act, a non-occupancy raiyat shall be liable to ejectment on the grounds mentioned therein.

16. From a comparison of Ss. 25 and 44 of the Bihar Tenancy Act, it is evident that a non-occupancy raiyat can be ejected only on the ground that he has used the land in a manner which renders it unfit for the purposes of the tenancy, or that he has broken a condition consistent with this Act and on breach of which he is under the terms of a contract between himself and his landlord, liable to ejectment, whereas in terms of S. 44, a raiyat who has not acquired an occupancy right also be ejected on the ground that he has failed to pay an arrear of rent or where he has been admitted to occupation of the land under a registrered lease, on the ground that the term of the lease has expired as also on the ground that he has refused to agree to pay a fair and equitable rent determined under S. 46, or that the term for which he is entitled to hold at such a rent has expired.

17. In terms of S. 48D of the Act, an under-raiyat, who has acquired a right of occupancy in any land under S. 48A, shall be subject to the same provisions with respect to rights in trees and bamboos and the use of succession to, and eviction from such land as an occupancy-raiyat.

It is, therefore, clear that if an under-raiyat acquired right of occupancy in the land in question, he can be evicted from the tenancy by the landlord only on the ground as mentioned in S. 25 of the Act.

18. In terms of S. 48E of the Act, inter alia an application is maintainable if under-raiyat is threatened with unlawful ejectment from his tenancy or any portion thereof by his landlord. As it appears from the facts, as mentioned hereinbefore, the petitioner filed the application under S. 48E of the Act on the ground that he is threatened with unlawful ejectment from his tenancy by his landlord.

19. Plainly enough an application in terms of S. 48E is also maintainable by an under-raiyat irrespective of the fact as to whether he has acquired a right of occupancy or not.

20. From the definition of ‘tenant’ as contained in S. 3 of the Act, there is no doubt that an under-raiyat is also a tenant within the meaning of S. 3(3) of the Bihar Tenancy Act.

21. From the aforementioned provisions of the Act, as mentioned hereinbefore, it is clear that an under-raiyat irrespective of the fact as to whether he has acquired right of occupancy or not, can be evicted by the landlord only in terms of S. 25 or S. 44 of the Act as the case may be.

In that view of the matter, whenever an under-raiyat is threatened with unlawful ejectment i.e ejectment by the landlord forcibly or otherwise and not in execution of a decree passed in a suit as contemplated under S. 89 of the Act, the under-raiyat would have a right to file an application under S. 48E of the Act.

22. In my opinion, therefore, S. 48C has absolutely nothing to do with the protection of a landlord as purported to have been held in the impugned order.

23. In other words, the question as to whether an under-raiyat can acquire a right of occupancy in terms of S. 48C of the Act or not, on the ground that he is not capable of acquiring such a right in view of the fact that the landlord has in his possession only 5 acres of irrigated land or ten acres of unirrigated land or answers the description of the ‘raiyat’ mentioned in Schedule II of the proviso to S. 48E of the Act, is wholly immaterial for the purpose of maintaining an application under S. 48E of the Act.

24. In this view of the matter, in my opinion, the impugned order cannot be sustained.

25. Further from the impugned order, it is evident that the respondent 2, in his order-sheet, has not at all taken into consideration the fact as to whether the land of the landlord is irrigated or unirrigated one.

26. The fact that the respondent 3, on his own showing, has been allotted land having an area more than seven acres goes to show that if the said lands were not unirrigated, there was no bar in the petitioner acquiring any right of occupancy in the said land on that ground.

27. Learned counsel for the State has placed reliance upon a Division Bench of this Court in Jute and Gunny Brokers (Pvt.) Ltd. v. State of Bihar reported in 1976 BBCJ (HC) 48.

28. However, in my opinion, the said decision has no application in the facts and circumstances of the case.

29. In the result, this writ petition is allowed and the respondent 2 is, hereby, directed to dispose of the application filed by the petitioner on merits, or pass an order on the basis of compromise petition filed by the parties. There will, however, be no order as to costs.

Petition allowed.