1. The petitioner in this writ application has questioned the validity of a certificate proceeding initiated under the provisions of the Bihar and Orissa Public Demands Recovery Act, 1914 (hereinafter referred to as 'the Act'). During the pendency of aforesaid certificate case, the petitioner was taken into custody, perhaps, in purported exercise of the power, conferred on the Certificate Officer by Section 38 read with Section 40 of the said Act. According to the petitioner, his detention is without any authority in law.

2. It appears that in the district of Nawadah there is a Bhadauni Hat which is being settled from time to time by the State Government in accordance with the provisions of the Bihar Land Reforms Act and the Rules framed thereunder. For the year 1975-76 a public auction was held on 17-3-1975 in which the petitioner was the highest bidder, and as such, his bid for Rs. 50100/- was accepted by the Anchal Adhikari, who was holding the bid. The petitioner deposited the security money and came in possession of the said Hat. By 2-8-1975 the petitioner had deposited Rs. 36,900/- and during this period he was collecting the tolls. It is an admitted position that no deed of lease, as contemplated by the Bihar Land Reforms Rules, 1951 was executed by the petitioner. The petitioner, however, did not deposit the balance of the bid amount, and, as such, a requisition was filed by the Anchal Adhikari before the respondent Certificate Officer for realisation of the balance amount of Rs. 13,200/- along with the interest.

3. On the basis of the aforesaid requisition, the aforesaid case was registered and notice thereof was issued to the petitioner. On 14-2-1979, on a prayer being made on behalf of the Certificate Holder, a notice was issued to the petitioner to show cause as to why he should not be detained in civil prison. On 17-3-1979, the Certificate Officer passed an order for issuance of warrant of arrest against the petitioner, in execution whereof the petitioner was taken in custody on 24-6-1979. Thereafter, the present writ application was filed. At the time of admission itself, a Bench of this Court directed release of the petitioner on bail on the condition that he deposits fifty percent of the amount due within ten days from the date of his release. It is said that pursuant to that order the petitioner has already deposited Rs. 9455/-.

4. Mr. Krishna Ballabh Sinha, learned Counsel appearing on behalf of the petitioner, has challenged the jurisdiction of the Certificate Officer to initiate a proceeding under the provisions of the Act for realisation of the dues aforesaid on the ground that the said amount cannot be held to be a 'public demand' within the meaning of Section 3(6) read with Schedule I of the Act. Section 3(6) defines 'public demand' to mean any arrear of money mentioned or referred to in Schedule I and includes any interest which may be chargeable thereon. Schedule I enumerates under different heads what shall be deemed to be 'public demand' within the meaning of the said Act. Clause 7 and Clause 9 of the said Schedule I, which are relevant for the present case, are as follows:

1. Any demand payable to the Collector by a person holding any interest in land, pasturage, forest-rights, fisheries or the like, whether such interest is or is not transferable, when such demand is a condition of the use and enjoyment of such land, pasturage, forest rights, fisheries or other things.

9. Any money payable to a servant of the Government or any local authority, in respect of which the person liable to pay the same has agreed, by a written instrument, that it shall be recoverable as a public demand.

If the amount which was payable by the petitioner in connection with the settlement of the aforesaid Hat is not covered by Clauses 7 and 9 aforesaid, then it is not disputed that it is not covered under any other clauses of the said Schedule. As such, I propose to examine whether the amount in question can be held to be a 'public demand' within the meaning of Clause 7 or Clause 9 of Schedule I.

5. So far as Clause 7 of Schedule I is concerned, it says in clear and unambiguous terms that any demand which is payable to the Collector by a person "holding any interest in land." In other words, the amount which is payable to the Collector must be a condition of the use and enjoyment of such land in which by grant an interest is created. This leads to the question as to whether by settlement of a Hat any interest in the land is created. This Hat has vested in the State of Bihar under the provisions of the Bihar Land Reforms Act, and settlement thereof is governed by the provisions of the Act read with the Bihar Land Reforms Rules. Rule 7-T is the specific provision for settlement of Hat, Bazar or Mela with Co-operative Society or Gram Panchayat for the reserve Jama. In the event of the failure to make settlement with the Cooperative Society or Gram Panchayat it has to be settled by public auction. The second part of that rule is relevant for the present case, and is as follows;

In the event of failure to make settlement with the Co-operative Society or the Gram Panchayat, the Collector or the prescribed authority shall settle such hat, bazar or Mela by public auction which shall be held on the appointed date and time and place, and for which a fresh general notice in Form P (5) shall, be published in the manner provided in Rule 3-A. In such case the successful bidder(s) shall fortwith deposit security in the Treasury with the Nazir at the rate of two percent of the reserve Jama fixed under Rule 7-U and shall also execute lease in Form P (4) which should be registered.

On a plain reading of this rule, the highest successful bidder is to execute a lease in Form P(4) which has to be registered. Form P(4) is a statutory Form and it contains the terms and conditions of the lease. The first condition is that the lessee shall pay to the Collector the amount payable in equal quarterly instalments. I have already pointed out that in the instant case, although the statutory rule required settlement only through a lease in Form P(4), no such Lease was executed by the petitioner. Learned Counsel for the petitioner submitted that the settlement of Hat does not create any interest in land so as to attract Clause 7 of Schedule I making the amount payable as public demand. Alternatively, he has urged that even if it is assumed that the settlement of a Hat amounts to creation of the interest in land, no such interest was created in absence of registered lease.

6. From time to time controversies have arisen in respect of settlement of forest, fishery and similar other rights as to whether by virtue of settlement, any interest in land is created or not. In the case of Firm Chotabhai Jathabhai Patel and CO. and Ors. v. The State of Madhya Pradesh a question had arisen as to whether the petitioner, who had acquired the right to pluck, collect and carry away Tendu leaves, had acquired any interest in land or not. It was held that the contracts and agreements were in essence and effect licences granted to the persons to cut, gather and carry away produce in the shape of Tendu leaves. Again, in the case of Ananda Behera and Anr. v. State of Orissa and Anr. , a question had arisen that whenever a right to catch and carry away fish in specific portions of a lake over a specified future period is granted, whether it amounts to creation of an interest in land. It was held that it amounts to profit-a-prendre a benefit arising out of land, as such an immovable property within the meaning of the Transfer of Property Act. In the case of Smt. Shantabai v. State of Bombay and Ors. . the petitioner had been granted right to cut trees from forest by an unregistered document. It was held that the grant was in respect of profit-a-prendre which was an interest in land, as such the document will not affect the immovable property and will not operate to transmit to the petitioner any such right because the document had not been registered under the Indian Registration Act. It was observed that it was purely a personal right and will have no higher efficacy than a right acquired under a contract. The grant of right to collect tolls from a Hat, in my view, stands on a different footing than grant of a right to catch fish or to cut standing timber trees which were held in the aforesaid cases to amount to an interest in land. But even if it is assumed that such right is a benefit arising out of the land and, therefore, will be deemed to be an immovable property as given in Section 2(5) of the General Clauses Act, still such interest can be created only by a registered document. This aspect has been considered by a Bench of this Court in the case of S.A. Mannan v. State of Bihar. (1958) I.L.R. 37 Patna 302. In this connection reference was also made to the case of Surendra Narain Singh v, Bhaila Thakur (1895) I.L.R. 22 Calcutta 752. where a similar view had been expressed. In the case of S.A. Mannan (supra) the offer of the petitioner had not been accepted by the revenue authority because he had failed to deposit the required amount of the security money during the prescribed period. It was pointed out that neither there was a completed contract in favour of the petitioner nor any registered document for the lease of the Hats had been executed by the petitioner so as to create an interest in the land. It was further pointed out that such a registered document was required for creation of an interest in such Hats. On that finding it was held that the cartificate case, which had been filed against the petitioner for realisation of the amount, was ultra vires and without jurisdiction. Apart from the general law, which was referred to in the aforesaid Bench decision in the case of S.A. Mannan (supra), the statutory Rule 7-T also requires the settlement of such Hats only through registered documents, in absence whereof the irresistible conclusion will be that the so-called settlee or lessee has acquired no interest in the land so as to bring the case within Clause 9 of Schedule I. In my view, once there has been a breach thereof, no interest in land has been created.

7. So far as the amount being a public demand within the meaning of Clause 9 of Schedule I is concerned, that will be applicable only in cases where the person liable to pay has agreed by written instrument that it shall be recoverable as a public demand. Perhaps, that is the reason why Clause 18 of Form P(4) provides as a term of lessee agreeing that in case of demand, the amount due should be recoverable as a public demand under the provisions of the Act without prejudice to any other remedy of the lessor. As the lease in Form P(4) was never executed, there is no question of petitioner agreeing by any written instrument that the amount recoverable should be realised as public demand. My considered view is that the amount in question is neither covered by Clause 7 nor by Clause 9 of Schedule I so as to be a public demand, the result whereof will be that the institution of the certificate case by the respondent Certificate Officer is without jurisdiction. Accordingly, the certificate case, which has been initiated against the petitioner is quashed and the order directing the petitioner to be taken in custody automatically stands cancelled. The writ application is, accordingly, allowed.

Shivanugrah Narain, J.

8. It is conceded by the learned Advocate for the State that this case is covered by the ratio of the decision of this Court in the case of S.A. Manan v. State of Bihar,(supra) I agree to the order proposed.