Judgment B.S. Sinha, J. The petitioners prayer in this application is to quash Annexures 4 and 5 annexure 4 is an order, dated the 5th June 1975 passed by the Additional Collector, Monghyr in Miscellaneous Case No. 137/74-75 by which he has cancelled the jamabandi opened in the name of the petitioners in Miscellaneous case No. 131/62-63. Annexure 5 is the order dated 24.7.1975 by which the Commissioner, Bhagalpur Division in Miscellaneous appeal no. 26/75-76, has upheld the aforesaid order of the Additional Collector. 2. The petitioners case is that by a sada Hukumnama dated 15.6.1940 they obtained settlement of 61 acres of Gairmazarua malik land bearing plot no. 95 appertaining to khata no. 204 of village Jinhara from Raj Banaili Although the Banaili Raj vested in the State of Bihar in 1952 yet because of certain dispute, the Raj which was being managed by a Receiver, handed over charge of this area in 1959. As the holding had fallen into arrears, in the return filed by the Raj, this plot was not shown to have been settled with the petitioners. Accordingly on 20.12.1962 the petitioners applied for the correction of the Lagit on which the Anchal Adhikari of Lakshmipur started Lagit case no. 131/62-63. Subsequently after obtaining a report from the Halka Karamchari, the Anchal Adhikari, on 12.3.1963, corrected the Lagit and opened a Jamabandi in the name of both the petitioners with regard to the above mentioned plot. Thereupon the petitioners on 31.3.1963 paid up all the due rents from the date of vesting of the Banaili Raj and obtained rent receipts accordingly. Since' then the petitioners have been paying rent to the State every year and rents have been paid up to 31.3. 1975. It Is also their case that after 1940, the petitioners have been in cultivating possession of the above mentioned plot and from time to time obtained receipts even from Banaili Raj. They have further constructed houses on the land and for irrigational facilities have also made an Ahar and dug well having 10ft. diameter. On 7.12.1974, petitioner No. 1 alone was served with a notice where by he was asked to appear before the Additional Collector and produce the relevant documents including receipts showing settlement of plot no. 95 with him. In obedience to such notice, petitioner no. 1 showed cause on 5.6.1975 and produced nine documents in support of the settlement. diameter. On 7.12.1974, petitioner No. 1 alone was served with a notice where by he was asked to appear before the Additional Collector and produce the relevant documents including receipts showing settlement of plot no. 95 with him. In obedience to such notice, petitioner no. 1 showed cause on 5.6.1975 and produced nine documents in support of the settlement. By an order of the same date, the Additional Collector, as stated above, cancelled the Jamabndi, which had been opened in favour of the petitioners. The appeal tiled by petitioner no. 1 before the Commissioner of Bhagalpur Division was also rejected summary on 24.7.1975. 3. On behalf of petitioner no. 2, it has been further stated that his half interest in plot no. 95 is looked after by one Chundra Kishore Singh, who resides in a house built upon that land itself and petitioner no. 2 off and on goes there to supervise the cultivation. Regarding the order passed by the Additional Collector and the Commissioner, he for the first time, learnt about it when he visted the land in the first week of February, 1976. 4. The petitioners have further stated that subsequent to the passing of the above mentioned orders, the Additional Collector is illegally taking steps to distribute the whole area amongst Harijans and Adivasis. Accordingly, a further prayer was made in the application that during the pendency of it, the respondents be restrained from doing anything which would disturb the possession of the petitioners. On 26.12.1976, when this writ application was admitted, it was ordered by a Bench of this Court that during the pendency of this application, status quo would be maintained. 5. A counter affidavit has been filed on behalf of the respondents in which it is stated that although petitioner no. 1 is settled Raiyat of village Jinhara, it was not correct to say that the petitioners had taken the settlement of the land form Raj Banaili. It has been asserted therein that the land in question being gairmazarua malik land, names of the petitioners were not mentioned as settles in the return filed by the Raj and the petitioners, are not in cultivating possession of the land. It was further stated that the Additional Collector on a consideration of the documents filed by the petitioner no.1 cancelled Jamabandi created by the Anchal Adhikiari. It was further stated that the Additional Collector on a consideration of the documents filed by the petitioner no.1 cancelled Jamabandi created by the Anchal Adhikiari. The receipts granted by the State is of no avail to the petitioners as they bear the endorsement "without prejudice." Regarding the assertion of investment for improvements made on the land, by construction of house, Ahar and well, it was stated that the deponent had no knowledge of such investment. It has further been stated that petitioner no. 2 is an outsider who has no concern with the land whatsoever and the State Government have already settled these lands with one Bachu Manjhi and 60 others and they are in peaceful possession of the land. It has accordingly been urged that there is no merit in this writ application which is fit to be dismissed. This counter affidavit on behalf of the respondents has been sworn by Shri Jagannath Sharma, who is the B.D.O. cum Anchal Adhlkari of Lakshmipur Block. 6. The first submission canvassed in support of this application is that the order passed by the Anchal Adhikarl in case no. 131/62-63 was a perfectly valid order. On the other hand, Mr. Standing counsel no. 2 on behalf of the respondents has submitted that the order passed by the Anchal Adhikari in the case was without jurisdiction. 7. Mr. Ugra Singh has urged that In accordance with paragraph 14 of the supplementary Bujharat instructions issued by the Land Reforms Commissioner, Bihar by his letter, dated the 25th April, 1959 bearing no. 3354IR/F.B. 744 of 59 to all Divisional Commissioner all cases of settlement of Bakast, Zeerat or Gairmazarua Malik land have to be dealt with as disputes and decided on the basis of actual possession and paragraph 15 of that very letter provides that Anchal Adhikari have been authorised to dispose of all disputes. He has also referred to a letter no. 5 L.R./R.C., 1073/693 L.R., dated the 8th October, 1969, from the Secretary to Government in the Department of Revenue, to all Collectors, copy of which is Annexure 15 and is appended to a supplementary affidavit filed by the petitioners. This letter along with this supplementary affidavit was filed in court in course of arguments on 18.10.1976. 5 L.R./R.C., 1073/693 L.R., dated the 8th October, 1969, from the Secretary to Government in the Department of Revenue, to all Collectors, copy of which is Annexure 15 and is appended to a supplementary affidavit filed by the petitioners. This letter along with this supplementary affidavit was filed in court in course of arguments on 18.10.1976. However the learned Standing Counsel No. 2 did not challenge the genuinness of this letter and as I shall show a little later, he also for his submissions, has relied upon it. The first part of this letter states that it had come to the knowledge of the Government, that even till the new Jamabandis are being opened by Karmacharis on the basis of Sada Hukumnamas and rent receipts purported to have been granted by the ex-intermediaries with or without the approval of the Circle officers or Anchal Adhikaris. It was further stated that after a lapse of 15/16 years since the abolition of Zamindari, no reliance should be placed on such documents and accordingly such practice must be stopped: However, in cases, it was provided that the Karmachari should report the matter through the Circle Inspector to the Circle Officer or the B.D.O. concerned, who would submit the record with their recommendations to the Sub-divisional Officers for order. By reference to this letter, it is abundantly clear that the 1969, new Jamabandis on the basis of Sada Hukumnamas and rent receipts granted by ex-intermediaries were not only being opened with the approval of the Anchal Adhikari but were being opened by the Karmacharis themselves. Accordingly I am inclined to hold that it was within the competence of the Anchal Adhikari of Lakshmipur to open a new Jamabandi in favour of the petitioners in Lagit case No. 131 of 1962/63. 8. Mr. Standing counsel no. 2, in support of his contention that the Anchal Adhikari had no jurisdiction to open a new Jamabandi on the basis of the Sada Hukumnama of the ex-intermediaries referred to us to the compendium of Government orders and circulars on settlement of lands and allied matters upto December, 1967. At page 2 of this compendium is a letter bearing no. E/L-4-2060/52-940 L.R. dated the 25th February, 1953, in which It is stated in paragraph 2 (111) that such Gairmazarua Malik land but to settle the land with him, the occupant will have to pay a salami. At page 2 of this compendium is a letter bearing no. E/L-4-2060/52-940 L.R. dated the 25th February, 1953, in which It is stated in paragraph 2 (111) that such Gairmazarua Malik land but to settle the land with him, the occupant will have to pay a salami. On the basis of this, it was urged that the settlement of a Gairmazarua Malik land could only be made by the Collector. There is no substance in this submission. This instruction is with regard to the Gairmazarua Malik or Aam lands which bad not been settled by ex-landlords prior to the date of vesting, but had been occupied by trespassers. In the instance case, the petitioners however, rely upon a settlement made by the ex-intermediary 12 years before the vesting and in such circumstances, this letter is of no avail to show that the Anchal Adhikari had no jurisdiction to open a Jamabandi in favour of the petitioners. Submission of the learned standing counsel that Annexure 15 itself showed that even before the issuance of that letter i.e. the 18th of October, 1969 a practice had cropped up that only the Sub-divisional Officers could open Jamabandis has also no substance, because he could not draw our attention to a single sentence which would indicate that from a date earlier to 18.10.1969 the Sub-divisional Officers alone were empowered to open new Jamabandis. I might also state that even in the impugned Annexure 4 the learned Additional Collector has not said that the Anchal Adhikari had no jurisdiction to direct a new Jamabandi being made in favour of the petitioners. His objection to the creation of the Jamabandi by the Anchal Adhikari is based upon the fact that as in the return filed by the ex-intermediaries settlement in favour of the petitioners had not been shown the Anchal Adhikari should have himself investigated the matter. 9. The next submission of Mr. Ugra Singh is that the Anchal Adhikari, after proper verification and enquiry, passed the order in favour of the petitioners while the learned Standing counsel submits that the order passed was collusive and is fit to be set aside. In order to appreciate the rival contention of the parties, it would be relevant to refer to certain facts in detail. The learned Standing counsel produced before us the file of case no. 131 of 1962-63. In order to appreciate the rival contention of the parties, it would be relevant to refer to certain facts in detail. The learned Standing counsel produced before us the file of case no. 131 of 1962-63. The heading of the order sheet shows that it is for correction of Lagit. It started on an application filed by petitioner no. 1 alone in which it has been stated that while handing over charge the ex-inter mediary, by mistake had omitted to mention the petitioners name in the return filed by him. He accordingly, prayed that as large sums had fallen due which were recoverable by the State Government a Lagit should be created in his favour, to enable him to clear off his dues, for which be had even applied earlier. On this application, the Anchal Adhikari on 20.12.1962, called for a report from the Halka Karmachari by 20.1.1963, he also directed a general notice to be issued with regard to the plot. Order sheet dated 12.3.1963 shows that the service report was duly published and received and no objection had been filed by anyone. The Halka Karmachari had also by then submitted his report in which he stated that the petitioners had receipts from landlord in their favour; numbers and date of three or four such receipts were given in his report. He accordingly recommended that the Lagit be opened in the name of the petitioners which were allowed by Anchal Adhikari. From what I have stated above, it is clear that after a petition had been filed by petitioner No. 1 an enquiry was conducted by the Halka Karmchari, who, on being satisfied that settlement had been made by the ex-intermediary in favour of the petitioners, recommended the necessary correction of the Lagit, which recommendation was accepted by Anchal Adhikari. The Anchal Adhikari had further taken the precaution of issuing a general notice which had been duly published, but even then no objection had been filed by anyone. In such circumstances, I am of the view that the opening of the new Lagit or the correction of the Lagit by the Anchal Adhikari in March 1963 was done after careful enquiry. The submission of the learned Standing counsel that it was done in a collusive or in a haphazard manner is devoid of any substance. In such circumstances, I am of the view that the opening of the new Lagit or the correction of the Lagit by the Anchal Adhikari in March 1963 was done after careful enquiry. The submission of the learned Standing counsel that it was done in a collusive or in a haphazard manner is devoid of any substance. Learned Counsel has not been able to point out any standing order in regard to any fact which would show that the action of the Anchal Adhikari was not above board. He merely says that as the area was 61 acres, therefore, relying upon observation of the learned Additional Collector, the enquiry should have been made by the Anchal Adhikari himself. This submission cannot be accepted. 10. Subsequent to the opening of the Lagit under the orders of the Anchal Adhikari, names of both the petitioners were entered with regard to this plot and it is not disputed that each has half share in it. A number of receipts have been filed by the petitioners to show that the State has accepted rent from both the petitioners and even a receipt has been filed which was issued by the ex-intermediary. 11. To show that petitioners have been in possession of the land for a long time, reliance is placed on Annexure 14. This annexure is the Form for obtaining loan for agricultural purpose and was filed by petitioner no. 1 in which he prayed for advance of Rs.12,000/- The security that he gave as plot no. 95 of Khata no. 204. The last portion of this form provides for a verification report from the Revenue Authorities where in it is stated that the petitioner no. 1 has interest in half the area of plot no. 95 which is 30.50 acres. It is further stated there in that the petitioner no. 1 is in possession of his share and that the rent had been paid till 1969-70. The petition has been signed by the Karmchari as also by the Circle Inspector and B.D.O. 12. Further as I have stated above, the petitioners have filed rent receipts which show that rents have been paid till 31.3.75 and Annexure 10 is a rent receipt issued by Raj Banaili and is dated 24.1.1944. 13. The petition has been signed by the Karmchari as also by the Circle Inspector and B.D.O. 12. Further as I have stated above, the petitioners have filed rent receipts which show that rents have been paid till 31.3.75 and Annexure 10 is a rent receipt issued by Raj Banaili and is dated 24.1.1944. 13. Assertion has also been made by the petitioners that they have spent large sums of money in developing the land particularly by constructing houses and Ahar and a Pucca well with 10ft. diameter. This statement of the petitioners is challenged by the learned Standing Counsel on the ground that no such statement has been made by the petitioners either in the application before Anchal Adhikiari or in the show cause filed before the Additional Collector. It is further urged that in fact previous to the filing of this writ application the petitioners have never In so many words asserted that they are in cultivating possession of the land. I am not impressed with these submissions. While it is true that earlier to filing of this application, specific statement claiming cultivating possession and construction of houses, Ahar and a pucca well have not been made. but in view of the fact that the petitioners from 1962 have been paying rent to the State Government not only from the date when the order was passed in their favour but from the time when the Zamindari vested in the State of Bihar as also in view of the Sada Hukumnama in their favour executed, prima facie, on behalf of Raj Bamdli in 1940, the genuineness of which has not been challenged by anyone so far, as also the receipt obtained from the Raj Banaili bearing the date 24.1.44, I am satisfied that the petitioners are in cultivating possession of the land. 14. As the receipts granted by the State have been issued after the Lagit was opened in favour of the petitioners by the revenue authority, the respondents cannot be permitted to take advantage of the fact that such receipts bear the endorsement "without prejudice". 15. The position having been admitted In the counter affidavit filed on behalf of the State that petitioner no. 15. The position having been admitted In the counter affidavit filed on behalf of the State that petitioner no. 1 is a settled raiyat of that village, shall, In view of section 21 of the Bihar Tenancy Act, clothe him with the right of occupancy right in all land held by him as a raiyat in that village. It would accordingly follow that the petitioner no. 1 has occupancy right with regard to plot no. 95. Section 24 (4) of the Bihar Tenancy Act, further provides where the land is held by two or more co-sharers as a ralyati holding, shall, for the purpose of this section, be held as a raiyat by each such co-sharer. In that view of the matter, the petitioner no. 2 has also the same right as the petitioner no. 1. In this context, a passing reference might also be made to section 178 (1) (c) which provides that even a contract does not entitle a landlord to eject a tenant otherwise than in accordance with the provisions of this Act. The petitioners, on the face of it having occupancy right under the rule can only be ejected on the ground mentioned in section 25 of the Bihar Tenancy Act. 16. The question that remains to be considered is whether the learned Additional Collector's order dated 5.6.1975 cancelling the Jamabandi is in accordance with law. The notice issued to the petitioner no. I merely directed him to produce rent receipts and other papers issued by the ex-intermediary with regard to plot no. 95. The learned Standing Counsel submitted that this notice was under the provisions of section 40 (1) of the Bihar Land Reforms Act, without going into the question whether the notice can be deemed to be one under section 40 of the Bihar Land Reforms Act, I will assume that the notice was issued under this provision. However, merely by issuing such a notice the learned Additional Collector was not entitled, after hearing petitioner no. 1 to cancel the Jamabandi created in favour of the petitioners. Under this provision, the authority has the right to call for the records and if the person concerned does not submit requisite papers, he can be fined. There is no provision in the Land Reforms Act, which would indicate that after issuance of such a notice, learned Additional Collector could cancel the Jamabandi. Under this provision, the authority has the right to call for the records and if the person concerned does not submit requisite papers, he can be fined. There is no provision in the Land Reforms Act, which would indicate that after issuance of such a notice, learned Additional Collector could cancel the Jamabandi. Settlement can only be cancelled under section 4 (h) of the Bihar Land Reforms Act, and the impugned order of the learned Collector does not show that he had proceeded in the matter as contemplated by that provision. In fact, apart from referring to section 40 (1) of the Bihar Land Reforms Act, Mr. Standing Counsel No.2 was unable to refer to any provision of law or any instruction issued by the Revenue Department authorising the Additional Collector to cancel a Jamabandi opened in accordance with law under the direction of the Anchal Adhikari. The reason given by the Additional Collector for cancelling the Jamabandi is that the petitioner No.1 has not claimed that he was in possession of the land, therefore, the Anchal Adhikari should have himself enquired into the matter. The second reason given if; that as the land was Gairmazarua Malik; and was a big plot the Anchal Adhikari should have personally enquired into the matter particularly because in the return filed by the ex-intermediary, no entry had been made in favour of the petitioners. In the absence of any authority given to the Additional Collector either by law or by executive instructions, I am constrained to hold that he had no jurisdiction to annul the Jamabandi made in favour of the petitioners by the Anchal Adhikari. 17. The order suffers from two other infirmities. The first is as I have stated earlier that in pursuance of the notice by the Additional Collector, the petitioner no. 1 in support of his statement filed 9 documents. It included the sada Hukumnama by which the settlement was made in favour of the petitioner on 15.6.1940. Not one of these documents has been considered by him. The statement in the Counter affidavit that these documents had been considered by the Additional Collector cannot be accepted. 18. That second infirmity is that although under the orders of the Anchal Adhikari, Jamabandi had been created in the names of both the petitioners. No. 1 and 2 the learned Additional Collector issued notice only to the petitioner no. The statement in the Counter affidavit that these documents had been considered by the Additional Collector cannot be accepted. 18. That second infirmity is that although under the orders of the Anchal Adhikari, Jamabandi had been created in the names of both the petitioners. No. 1 and 2 the learned Additional Collector issued notice only to the petitioner no. 1 and even after the Sada Hukumnama. Hukumnama and the rent receipts had been produced before him by the petitioner no. 1 he never took steps to serve the notice on the petitioner No.2. In that view of the matter also, the order cannot be upheld. The learned Commissioner in summarily rejecting the appeal of the petitioners have also not given any valid reason to uphold the order of the learned Additional Collector, beyond saying that the learned Additional Collector rightly held that the Anchal Adhikari, was not competent to open a new Jamabandi in the name of the appellant in respect of the land in question. As I have held earlier, the finding that the Anchal Adhikari was not competent to open a new Jamabandi is not justified in law and has not been substantiated before us. I accordingly, for the reason given above quash Annexure 4 and 5. 19. It has been contended on behalf of respondents that the lands have already been settled with one Baehu Manjhi and 60 others and they are in possession thereof. This statement his been specifically made in paragraph 7 of the counter affidavit filed on behalf of the respondents. In their application, the petitioners have stated that the Additional Collector has issued general notice copy of which is Annexure 6 stating there in that the lands would be distributed to Harijans and Adivasis. On 26.2.1976 the present application was admitted when this court directed status quo to be maintained. In such circumstances it was incumbent upon the respondents to have stated in their counter affidavit the exact dates on which Bachu Manjhi and 60 others have been put in possession of the lands. The counter affidavit is silent on the point. On 26.2.1976 the present application was admitted when this court directed status quo to be maintained. In such circumstances it was incumbent upon the respondents to have stated in their counter affidavit the exact dates on which Bachu Manjhi and 60 others have been put in possession of the lands. The counter affidavit is silent on the point. Further, in view of the fact that it has been alleged by the respondents that the land had been distributed amongst 61 persons who had been put in possession, it would have been reasonable to expect that the respondents on affidavit not only stated the date on which these 61 persons were put in possession, but also the specified areas with boundaries relating to each. In such circumstances, I am not inclined to hold that the lands have been distributed to Bachu Manjhi and 60 others and that they have been put in possession. 20. In the result, the application is allowed, but in the circumstances of the case, there will be no order as to costs. Application allowed.