Judgment S. B. Sinha, J. 1. Both these applications involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment. 2. The petitioners in this application inter alia have prayed for issuance of a writ of certiorari for quashing the order dated 19.8.1992 passed by the respondent no.3 whereby and whereunder he had refused to settle the lands in their favour. 3. The fact of the matter lies in a very narrow compass. One Kalanand Singh was the landlord of Garh Banaili Estate. After his death bis wife Rani Ralawati created a trust in favour of Shri 108 Jalijee. One Smt. Jagatmaya Devi was recorded as Nagdi Sikimidar. Allegedly she acquired an occupancy right in respect of the lands in question and thereafter sold the same to the petitioner no.1 his brother Bishwanath Mishra and his father Bhavdeo Mishra. The brother of petitioner no.1 had transferred some lands out of the above lands which has been purchased by the petitioner no.2. 4. The petitioners have contended that Chakbandi Khatians had been prepared in their names and they had been paying rent to the State government. 5. According to the petitioners there predecessor-in-interest acquired raiyati interest in respect of the lands in question and thereafter they transferred the same by reason of various deeds of sale and thus the petitioner have acquired valid right title and interest in relation to the lands in question. 6. A ceiling proceeding was initiated against the aforementioned deity. By Gazette notification dated 29 4 91 lands measuring 91.151/2 acres situate in village Mouza Sarachie and Sarro were acquired by the Government and out of the said land 72.75 acres were found fit for distribution. 7. The petitioners contended that the lands belonging to them have also been included in the said notification. 8. According to the petitioners they and/or their predecessors-in-interest had never any knowledge about the ceiling proceeding. The petitioners therefore filed an application for settlement. An enquiry was made by the different authorities and ultimately the respondent no.4 recommended that the lands should be settled with them. 9. The D. C. L. R. by his order dated 25.2.1992 directed the Circle Officer kasha, to issue green cards in their favour. 10. However, it was found that the petitioners are not Khatiyani sikmidars but they are purchaser from Sikimidars. 9. The D. C. L. R. by his order dated 25.2.1992 directed the Circle Officer kasha, to issue green cards in their favour. 10. However, it was found that the petitioners are not Khatiyani sikmidars but they are purchaser from Sikimidars. He, therefore, refused to recommend the case of the petitioners Thereafter a case for distribution of the lands measuring about 40.52 acres had been initiated by issuance of red cards and by an order dated 19 8 1992 approval for settlement in favour of the private respondents was granted by the Collector. 11. Mr. Tara Kant Jha, the learned counsel appearing on behalf of the petitioners has raised a short question in support of these applications. The learned counsel submitted that the petitioners have all along been treated by the State of Bihar as their tenants and thus the State is estopped and precluded from contending the petitioners have acquired no right title and interest in respect of the land in question. 12. The learned counsel further submitted that the petitioners and/or predecessor-in-interest have acquired occupancy rights in respect of the lands in question and in that view of the matter, the lands became heritable and transferable. 13. The learned counsel in Support of his contention has relied upon section 29 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter reformed as the said Act) and sections 4, 23, 23a, 25, 26, 26a as also Sections 48c and 48o of the Bihar tenancy Act and submitted that in terms of the aforementioned provisions a sikimidar may also acquire an occupancy right which would render sub right to both transferable and heritable. 14. The learned counsel in support of his contention has relied upon a decision of this court in the case of Munilal Mandal V/s. Babuji Mandal reported in 1963 BLJR 90. 15. Mr. B P. Verma, the learned standing counsel appearing on behalf of the State, however, submitted that the petitioners predecessor-in-interest were Nagdi Sikimidar and the said interest was, therefore, not transferable. According to the learned counsel it has been found as of fact by the collector under the Ceiling Act that the lands in question are agricultural lands. 16. 15. Mr. B P. Verma, the learned standing counsel appearing on behalf of the State, however, submitted that the petitioners predecessor-in-interest were Nagdi Sikimidar and the said interest was, therefore, not transferable. According to the learned counsel it has been found as of fact by the collector under the Ceiling Act that the lands in question are agricultural lands. 16. The learned counsel submitted that in this situation, the petitioners could claim settlement of the lands in question only in terms of Section 22 of the said Act and infact after rejecting the application for settlement, proceedings have been initiated for distribution of the said lands and approval was given for distribution of the said lands in favour of the private respondents. 17. The relevant provisions of the said Act as also the Bihar Tenancy act may be noticed before proceeding further in the matter. 18. Sections 21 and 22 of the said Act and Sec.26a, Sec.48c and 48d of the Bihar Tenancy Act reads thus : "21. Under-raiyat within the celling area of raiyat to acquire status of raiyat.- (1) Subject to other provisions of this Act, every under raiyat of a raiyat holding land in excess of the ceiling area on the date of commencement of this Act, shall, in respect of land not resumed under Sec.13, be deemed to have acquired the status of an occupancy raiyat, if no application for resumption is made within the period specified in sub-section (2) of Sec.13, on the expiry of the said period, and where such an application is finally rejected and the right, title and interest of the raiyat in such land shall be deemed to have been extinguished with effect from the date of such expiry or rejection, as the case may be : provided that notwithstanding the acquisition of such status, he shall not have right to transfer the land until the entire amount of compensation payable under clause (ii) of sub-section (2) has been paid. (2) (i) The land in respect of which the under raiyat is deemed to have acquired the status of an occupancy raiyat under subsection (1) shall, for the purpose of payment of compensation to the raiyat under whom he held it, be deemed to have been acquired by the State Government under this Act. (2) (i) The land in respect of which the under raiyat is deemed to have acquired the status of an occupancy raiyat under subsection (1) shall, for the purpose of payment of compensation to the raiyat under whom he held it, be deemed to have been acquired by the State Government under this Act. (ii) The under raiyat shall pay to the State Government on account of the acquisition of the status of an occupancy raiyat in the land under sub-section (1) such amount as is specified in this behalf in the schedule. (iii) The amount payable by the under-raiyat to the State government under Clause (ii) shall be a charge on the land and shall take priority over all other claims on the land.22. Under-raiyat on surplus land to acquire status of raiyats- (1) If there is an under-raiyat on the surplus land on the date it vests in the State under the provisions of this Act, such under-raiyat shall, if he makes an application in this behalf in the prescribed manner, be allowed to retaln as occupancy raiyat subject to payment ir the prescribed manner and within the prescribed period to the State Government the amount specified in this behalf in the schedule, so much of the land as together with all the other lands held by him any where in the State does not exceed the area he may hold under Sec.5. (2) If the under-raiyat refuses or fails to make the application within the said period, he shall be liable to be ejectded by the collector and where he is allowed to retain the land under sub-section (1), he shall not have any right to transfer the land until the entire amount he is liable to pay to the State Government under sub-section (1) has been paid. (3) The amount payable by the under-raiyat as to the State government under sub-section (1) shall be a charge on the land and shall take priority over all other claims on the lands.26a. (3) The amount payable by the under-raiyat as to the State government under sub-section (1) shall be a charge on the land and shall take priority over all other claims on the lands.26a. Transfer bequest of occupancy-holding or portions thereof.- (1) Every occupancy-holding or a portion thereof together with the tight of occupancy therein shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property, and all transfers made by sale, exchange or gift and all bequests shall, subject to the provisions of sub-section (2), be binding on the landlord. (2) Every transfer of an occupancy holding or a portion thereof together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right occupancy therein, shall be made in the same manner and subject to the same conditions as a permanent tenure in respect of registration and the payment of landlord, registration, fee.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 No.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 as 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 cultivations does not exceed the following limits, namely : - (a) five acres of land irrigated by follow 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 lands, or (ii) in the land within the ceiling area fixed by law of a landlord who is widow or a person suffering from blindness, leprosy or paralysis or is person of unsound mind or a person on the service of the Army. Navy 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. " 48d. Navy 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. " 48d. Acquisition of raiyat fight by occupancy under-raiyat.- (1) An occupancy under-raiyat shall if he makes an application in this behalf in the prescribed manner, be entitled to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State Government and the right of the land holder in such land shall extinguish : provided that the land on which he acquired such right alongwith other land held by him anywhere in the State does not exceed the area he may hold under the Bihar Land reforms (Fixation of Ceilng Area and Acquisition of Surplus land) Act, 1961 (Bihar Act XII of 1962 ). (2) The reamining area, if any, in which the under-raiyat does not acquire the right of raiyat shall continue to be held by the raiyat under whom the under-raiyat held the land. (3) The land owner in respect of which land the under-raiyat acquires the right of a raiyat under sub-section (1) shall be paid as compensation on amount equivalent to twenty-four times the rent of holding in the manner prescribed in this behalf. " 19 Section 48c of the Bihar Tenancy Act thus enables an under raiyat acquire a right of occupancy provided his case does not fall within the purview of proviso appended thereto. 20. Section 48d of the Bihar Tenancy Act which was inserted by act No.8 of 1987 entitles an under-raiyat to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State government and thereby the right of the land holder in such land shall be extinguished. 20. Section 48d of the Bihar Tenancy Act which was inserted by act No.8 of 1987 entitles an under-raiyat to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State government and thereby the right of the land holder in such land shall be extinguished. Sec.21 of the Ceiling Act provides that the under-raiyat of a raiyat holding land in excess of the ceiling area shall be deemed to have acquired the status of an occupancy raiyat, if no application for resumption i$ made within the period specified in sub-section (2) of Sec.13 on the expiry thereof and where such an application has been made, on the date the application is finally rejected and the right title and interest of the raiyat in such land shall be deemed to have been extinguished with effect from the date of such expiry or rejection. 21. In this case, it appears that no statement has been made that any application was filed by the raiyat for resumption of the lands in question in terms of sub-section 2 of Sec.13 of the said Act. 22. In Munilal Mandol V/s. Babuji Mandal reported in 1963 BLJR 90 it has been held that if the under-raiyat acquires on occupancy right interms of Sec.48c of the Bihar Tenancy Act, the lands become transferable. Further the question which should have also taken into consideration by the Collector under the said Act was as to whether the raiyat after the purchase of the lands in question had accepted rent from the under-raiyat or not. In the event such rent had been accepted by the raiyat from the under-raiyat, a fresh under-raiyati interest may be held to have been created in favour of the petitioners. 23. It may also be mentioned that the general rule that the under-raiyati interest are not transferable or heritable is subject to the exception of existence of the custom of the contrary. If there exists a custom in terms whereof and under-raiyati interest also becomes transferable or heritable, the petitioners must be deemed to have acquired availed interest. 24. 23. It may also be mentioned that the general rule that the under-raiyati interest are not transferable or heritable is subject to the exception of existence of the custom of the contrary. If there exists a custom in terms whereof and under-raiyati interest also becomes transferable or heritable, the petitioners must be deemed to have acquired availed interest. 24. From a perusal of the order-sheet as contained in Annexure-12 to the writ application, it appears that the green cards had been issued to the petitioners have been refused be allotted to them only on the ground that the Sub-divisional Officer had issued a direction purported to be in terms of a decision taken in the meeting that the purchasers from Sikimidars cannot be issued by green cards. 25. A decision taken fa meeting of the District Officers is not and cannot be substituted for the law as contained in Sec.21 of said Act and section 48c of the Bihar Tenancy Act. 26. The question as to whether the petitioners and/or their predecessor in-interest have acquired a right of occupancy or will have to be decided upon determination of the said question on the basis of the materials which may be brought on records. If the petitioners have acquired such a right of occupancy, evidently, they had also acquired right to file an application in terms of Sec.22 of the said Act, as also under Sec.48d of the Bihar tenancy Act. 27. For the reasons aforementioned, we are of the view that the matter requires reconsideration at the hands of the Collector under the said act wherein all the parties should be given an opportunity to produce evidence in support of their respective claims. 28. We are passing this order without giving any notice to the respondents, in view of the fact that red cards have not yet been issued, nor possession of the lands in question has been given to them. 29. Further we are of the view that as the matter requires reconsideration at the hands of the Collector can issue notices to the private respondents also so as to enable him to determine the matter in their presence. 30. We may however point out that this order may not be considered as meaning that we have arrived at a final conclusion in respect of any of the contentions raised in this application whether in law or on fact. 30. We may however point out that this order may not be considered as meaning that we have arrived at a final conclusion in respect of any of the contentions raised in this application whether in law or on fact. The Collector under the said Act therefore, would be entitled to arrive at bis own decisions after considering the entire materials on record without in any way being prejudiced by this order. 31. Till determination of the petitioners claim by the Collector, the lands in question shall not be distributed, if not already distributed. , 32. This application is, therefore, disposed of with the aforementioned observations and directions. Application Disposed