IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14385 of 2003 1. SRIKANT DAS, 2. Chandrakant Das, 3. Ramakant Das, All sons of late Bishnu Ram Das, R/o Village – Dholbazza, P.S. – Forbesganj, Distt. – Araria ………… Petitioners Versus 1. THE STATE OF BIHAR, 2. The Sub-Divisional Officer, Forbesganj, Distt.- Araria, 3. The Circle Officer, Forbesganj Anchal, Distt. – Araria, and 4. Shri Ram Narayan Mehta, S/o Shri Shoukhi Lal Mehta, R/o Village – Mushahari, P.S. Forbesganj, Distt. – Araria ……….. Respondents. ----------- For the Petitioners:- Mr. A.K. Mallick, Advocate. For the State:- Mr. Binod Kumar, AC to SC V and Mr. Anwar Karim, AC to SC V. For the Respondent No. 4:- Mr. Kali Prasanna Dubey, Advocate. ------------ 4. 16.09.2009. Heard learned counsel for the petitioners, learned counsel for the respondent no. 4 and learned counsel appearing for the State. The petitioners seek quashing of order dated 26.11.1999, passed by the Circle Officer, Forbesganj Anchal, Distt. – Araria, Respondent no. 3 in Case No. 562 of 1978-79, as contained in Annexure-4, as well as the order dated 15.12.2002, passed by the Sub-Divisional Officer, Forbesganj Anchal, District – Araria, Respondent No. 2 in Appeal No. 10/1999-2000, as contained in Annexure-5 to this writ application. Learned counsel for the petitioners submitted that a petition under Section 48D of the Bihar Tenancy 2 Act, 1885, (hereinafter referred to as `the Act’) was filed by the Respondent No. 4, which had been allowed by the Anchal Adhikari, Forbesganj by the order as contained in Annexure-4. The appeal preferred thereof had also been dismissed by the Sub Divisional Officer, Forbesganj, Araria in Appeal No. 10 of 1999-2000 by the order dated 15.12.2000, as contained in Annexure-5. It is contended on behalf of the petitioners that there are 12 members in their family and without considering the aforesaid fact the authorities have passed the aforesaid order. The petitioner have filed objection to the aforesaid application filed on behalf of the respondent no. 4, which has been brought on record as Annexure-3. It is submitted on behalf of the petitioners that before deciding the acquisition of the raiyati right of the occupancy under-raiyat, the authorities have to look into the proviso of Section 48C of the Act whereby the tenant is protected from declaration of occupancy right of under-raiyat concerned, if he does not have either more than 5 acres of irrigated land or 10 acres of other lands. It has been further contended that form the objection itself it would appear that the petitioners claimed that 3 they were having less than 5 acres of irrigated land or less than 10 acres of unirrigated land. The Respondent No. 3 after the report of the Anchal Nirikshak, as contained in Annexure-4 itself, had come to the conclusion that the branch of the father of the petitioners was having more than 55 acres of land and since there were three sons of Bishnu Ram Das (father of the petitioners), the property would be divided equally into three branches only, thus, the petitioner was having more than 5 acres of irrigated and 10 acres of unirrigated land. It is submitted on behalf of the petitioners that the aforesaid finding is erroneous as there are 12 members in the family of the Hindu Undivided Family of the petitioners. Learned counsel appearing for the Respondent no. 4 submitted that along with the objection of the petitioners, requisite Form-A has been appended, which has been brought on record as Annexure-3 to the writ application. A bare perusal thereof indicates that it had been declared by the petitioners themselves that branch of their father Bishnu Ram Das (since deceased) was having 31.74 acres of irrigated land and 26.31 acres 4 of unirrigated land. If both types of lands are divided in equal shares amongst the three sons of late Bishnu Ram Das, (the three petitioners herein) then the irrigated land would definitely be more than 5 acres and, thus, the petitioners could not be considered as protected tenants under the proviso of Section 48C of the Act. Mr. Binod Kumar, A.C. to S.C. V appears on behalf of the State and submitted that in view of the report of the Anchal Nirikshak and in view of the declaration by the petitioners themselves it would be manifest that the petitioners were not the protected tenants as per clause (1) of proviso to Section 48C. I find substance in the submissions raised on behalf of the respondent no. 4 and the State. The petitioners have declared their irrigated and non-irrigated land as 31.74 acres and 23.61 acres respectively in Form -A attached to their objection (Annexure-3). The petitioners may be having many minor and other members of the Hindu Undivided Family but in the presence of these petitioners, who are sons of Bishnu Ram Das, the authorities have correctly taken a view that if notional partition is considered on the date of decision 5 as per the Explanation No. IV of Section 48C, each of them would get one third (1/3) share and, thus, the authorities concerned have rightly stated in their order that the petitioners are having more than 5 acres of irrigated land. Aforesaid fact is also manifest from the report of the Anchal Nirikshak, which is attached along with the order of the Anchal Adhikari concerned appended with Annexure-4. In view of the above, in my opinion, the petitioners could not make out a case that they were protected tenants and, thus, their lands were required to be excluded and no order could have been passed against them under Section 48D of the Act. As a result, this writ application is dismissed. dk ( Dr. Ravi Ranjan, J. )