IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12406 of 2009 1. RAJAT KUMAR, Son of Late Anand Bihari Prasad, 2. Ripusudan Prasad Singh, Son of Late Krishna Prasad Singh. 3. Bipin Bihari Prasad @ Bipin Bihari Pd. Singh, Son of Late Ban Bihari Prasad Singh. 4. Amar Prasad, Son of Late Bishnu Prasad Singh. All are resident of Bela Garden, Darbhanga, District- Darbhanga :--- Petitioners. Versus 1. THE STATE OF BIHAR 2. The Secretary, Revenue Department, Bihar, Patna. 3. The Commissioner, Darbhanga Division, Darbhanga. 4. The Collector, Darbhanga. 5. The Additional Collector, Darbhanga. 6. The Deputy Collector Land Reforms, Sadar, Darbhanga. 7. The Sub-Divisional Officer, Sadar, Darbhanga. 8. The Anchal Adhikari, Darbhanga Circle, Darbhanga :--- Respondents. ----------- 03. 27.10.2009. Heard learned counsel for the petitioners and the State. 2. Petitioners are aggrieved by the order of the Deputy Collector Land Reforms, Darbhanga dated 31.12.2008 passed in Case No. 1/03-04, whereunder he has held that the tank situate over plot no. 1133 appertaining to Khata No. 118, Tauzi No. 3331 measuring an area of 11.6 acres vested in the State should be recorded in the Sairat Register and settled with the public at large for fishing and harvesting Makhana. Said order has also been affirmed by the Collector, Darbhanga under orders dated 23.07.2009 passed in Sairat Case No. 1/03-04 and the Jamabandi which created for the said tank in favour of the petitioners has also been cancelled. Both the impugned orders are contained in Annexure-7 to this application. 3. It is submitted on behalf of the petitioners that the two orders of the Deputy Collector Land Reforms and the Collector have been passed ignoring the provisions contained in Section 5 of the Bihar Land Reforms Act as the lands over which the tank is situate was the - 2 - homestead of the ex-landlord and the ex-landlord claimed possession over the same at the time of vesting and since the date of vesting of Jamindari the landlord has been holding on possession over the lands and in support of such fact reliance is being placed on the gift deed executed by the ex-landlord for the part of the lands in favour of His Excellency, the Governor of Bihar which is dated 28.11.1978 and is contained in Annexure-2 to this application. It is further submitted that all along with effect from the date of vesting till the passing of the two impugned orders the petitioners-ex-landlords have maintained their possession over the lands-in-question, the present order, however, has been passed with reference to the report of the Amin dated 18.02.2007, as contained in Annexure-6 to this application. According to learned counsel for the petitioners from perusal of the Amin’s report, Annexure-6 itself it would appear that the tank is part of the homestead and the two orders should be set aside on such ground. 4. Having heard counsel for the petitioners and the State, I deem it expedient to direct the petitioners to challenge the aforesaid two orders dated 31.12.2008 and 23.07.2009 before the Divisional Commissioner who should consider the submission of the petitioners in the light of the submissions noted above that the two orders are in teeth of the provisions contained in Section 5 of the Bihar Land Reforms Act as also the definition of the term “homestead”. 5. It is submitted on behalf of the petitioners that on the basis of the aforesaid two orders the State authorities are even proposing to settle the tank-in-question with members of the public at large which - 3 - may lead to breaking of heads. In the circumstances, the Commissioner of the Division may be called upon to adjudicate the issues raised by the petitioners in this application at the earliest. While considering the petition filed on behalf of the petitioners the Divisional Commissioner should also consider the desirability of granting interim relief in favour of the petitioners as they have been holding on to the lank-in-question with effect from the date of vesting. 6. Having heard counsel for the petitioners and the State I direct the petitioners to assail the aforesaid two orders dated 31.12.2008 and 23.07.2009, Annexure-7 before the Divisional Commissioner by filing Miscellaneous Revision Petition with request for grant of interim relief and the learned Commissioner should consider the same in accordance with law as early as possible in any case before the State proceeds to settle the tank-in-question to the public at large. The interim orders dated 15.09.2009 passed by this Court earlier in favour of the petitioners is recalled. The recall of the interim order dated 15.09.2009 passed earlier by this Court may not be taken as a direction not to grant interim relief in favour of the petitioners. 7. This writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha, J.)