Judgment R.N.Sahay, J. 1. This is an application for grant of writ of certiorari quashing the entire proceeding which has been initiated under section 23 of the B.T.Act against the petitioner bearing Commercial Rent Case No.8 of 1993-94 by the Collector, Bhabhua, who by the impugned order has fixed commercial rent at Rs. 1,20,000/- as Salami and 10% rent of the total Salami amount yearly relating to the year 1970- 71 to 1993-94 on Municipal Khata No.66, Khesra No. 252, Ward No.3 Area 0165 Hectare which is in possession of the petitioner and his two brothers. 2. The proceeding was initiated on the report of the Halka Karamchari against the petitioner that without obtaining permission of the Collector the petitioner has changed the nature of the land from agricultural to commercial. This was in contravention of section 23 of the Bihar Tenancy Act, 1885 . Subsequently, a notice was issued to the petitioner to show cause as to why commercial rent should not be fixed in accordance with law. The petitioner filed show cause which was not found satisfactory by the Anchal Adhikari. The Anchal Adhikari decided to hold local inspection and local inspection of the land was done and it was found that it was converted for commercial purposes from agricultural land and meagre amount was being paid for use of land for commercial purposes. Final order was passed by the Collector on 19.10.1996. 3. Sub-section (1) of section 23 of the Bihar Tenancy Act provides that when a raiyat has a right of occupancy in respect of any land, he may use the land in any manner which does not materially impair the value of the land or render it unfit for the purposes of the tenancy. 4. Sub-section (2) of section 23 further enumerated the Act which shall not be deemed to have impaired the value of the land materially or to render it unfit for the purposes of the tenancy. 5. After amendment, Sub-section (4) of section 23 provides that a Raiyat cannot change the nature of the land without obtaining permission from the Collector and the Collector before giving such premission should redetermine the rent in the prescribed manner. Where the raiyat has not obtained permission from the Collector before changing the nature of the land, the Collector may fix commercial rate of rent on such land. 6. Where the raiyat has not obtained permission from the Collector before changing the nature of the land, the Collector may fix commercial rate of rent on such land. 6. The petitioners contention is that the proceeding is ab initio void since the land in question is situated under Bhabhua Municipal Area in the district of Kaimur. The land comes under Khata No.66, Khesra No.252. This plot has been recorded as Makan Pucca Chhat and area 0165 hectare. This fact can be verified from the photocopy of the Khatian (Annexures-1, 2 and 3). The land in question had been assessed by the Municipal Authority in the year 1926-27. 7. It was submitted by the learned counsel for the petitioner that only with respect to such type of land which is agricultural land, record of right has been maintained under Bihar Tenancy Act. The land in question is situated under the Bhabhua Municipal Area and record of right is prepared under the Municipal Act and rent and tax has been fixed by the Bhabhua Municipality since 1926-27. 8. Learned Collector in his impugned order has not considered the crucial question whether section 23 of the Bihar Tenancy Act was at all applicable with respect to the land of the petitioner which is situated within the Municipal Area. 9. The brother of the petitioner had half share in the land but no notice was issued to him. 10. Learned counsel for the petitioner has referred to the decision of this Court in Gopal Singh vs. State of Bihar (C.W.J.C.No. 8802/97). The writ petition was disposed of on 25.8.1998 by S.J. Mukhopadhaya, J. following the decision in M/s Bajrang Talkies vs. State of Bihar reported in 1997 BRLJ 65. In that case, similar argument was advanced that section 23 of the Bihar Tenancy Act was not applicable with respect to the land and structure thereon, being not an agricultural land. Learned Judge referred to the decision in Bajrang Talkies (supra) and observed, "The Division Bench also took into consideration the fact that a new Sub-section (4) was inserted in section 23 of the B.T. Act making it mandatory to obtain permission from the Collector for using the land for non-agricultural purposes other than those mentioned in Sub-section (2). Learned Judge referred to the decision in Bajrang Talkies (supra) and observed, "The Division Bench also took into consideration the fact that a new Sub-section (4) was inserted in section 23 of the B.T. Act making it mandatory to obtain permission from the Collector for using the land for non-agricultural purposes other than those mentioned in Sub-section (2). It came into effect when amendment was notified on 26th August, 1993 and in absence of any express provision to that effect, the same cannot be made retrospectively." 11. I find that the decision of the Division Bench in Bajrang Talkies case (supra) is something else. In Bajrang Talkies case demand of commercial rent was made on the basis of certain executive circular which was prior to the amendment. The Division Bench held that no fiscal liability can be created by executive circulars or executive instructions. The Court no doubt considered the fact of amendment of section 23 of the Bihar Tenancy Act. This Court observed that the amendment was notified on 26.8.1995 and in absence of any express provision to that effect, it cannot be made applicable retrospectively. 12. It has been submitted that the impugned order of the Collector is full of illegalities, firstly, because no notice was issued to the brother of the petitioner Anjani Kumar, who has half share in the property, secondly, the land which was subject matter of dispute was raiyati land even if the house was constructed on the same, and thirdly, the applicability of section 23 of the B.T.Act in respect of the land in the facts and circumstances of the case has not been considered. 13. In Bajrang Talkies Case (supra) this question was not decided. The matter was left open as the vires of the amendment is under challenge. 14. This application is accordingly allowed and the impugned order of the Callector is quashed. The Collector is given liberty to initiate fresh proceeding in accordance with law. Since the vires of the amendment is under challenge, it is better that it should be initiated after the validity is decided.