ORDER : The present writ petition has been filed for setting aside the order dated 29.07.2004 passed by the Respondent No. 2–Additional Collector, Dhanbad in Rent Fixation Case No.7/III/2003-04, whereby the proposal on the application of the petitioner for fixation of rent of the land being R.S. Plot No. 952 under Khata No. 35 of Budha Mouza, has been rejected. 2. The factual background of the case as stated in the writ petition is that the land under Khata No. 35, Plot No. 952, area 1.02 acres, situated at MouzaBudha, DistrictDhanbad (hereinafter referred to as “the land”) was the part of the share of Raja Durga Prasad Singh, who granted Mokari Right to his wife Rani Smt. Hem Kumari Devi on 06.12.1912. Thereafter, the name of Rani Smt. Hem Kumari Devi was recorded in the Survey Khatian of the year 192223. The said land was settled by Rani Smt. Hem Kumari Devi in favour of the father of the petitioner namely, late Rasik Chandra Das by registered deed of settlement dated 19.05.1948 and since the date of settlement, the father of the petitioner enjoyed possession over the property. It is further submitted that when the father of the petitioner died, the petitioner came in peaceful possession of the said land. In the year 2003, the petitioner applied for mutation of his name and for issuance of rent receipt of the said land, wherein the Halka Karamchari submitted its report that the application for mutation cannot be considered without fixation of rent. Thereafter, an application for rent fixation was filed by the petitioner which was registered vide Rent Fixation Case No. 7(III)/2003-04 and the Land Reforms Deputy Collector vide order dated 21.02.2004 recommended for fixation of rent of the said land @ Rs. 50/per acre and sent the record to the Additional Collector, Dhanbad (respondent no. 2). The respondent no. 2 vide impugned order dated 29.07.2004 rejected the proposal for fixation of rent of the said land by holding that since the land was transferred after 01.01.1946, the same will have no effect in view of the provisions of section 4 of the Bihar Land Reforms Act, 1950. 3. Mr. V. Shivnath, the learned Senior Counsel for the petitioner submits that the respondent no. 3. Mr. V. Shivnath, the learned Senior Counsel for the petitioner submits that the respondent no. 2 has neither initiated any proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as “the Act”) nor has given any opportunity by giving a show-cause notice to the petitioner before passing the impugned order. It is further submitted that out of the same khata and plot, an area of about 2.00 acres of land was settled in favour of other person and the rent receipts were also being issued in his favour, however, the respondent no. 2 arbitrarily rejected the proposal of the respondent no. 3 for fixation of rent of the said land. It is further submitted that the effect of vesting under Section 3 of the Act is that only the Zamindari interest of intermediaries with effect from 1953 vested in the Government and not the raiyati settlement made by registered deed on 19.05.1948. It is further submitted that after vesting of Zamindari, return was filed by Rani Smt. Hem Kumari Devi vide Compensation Case No. 5448 (BLA) 1955-56 in the office of Circle Officer, Dhanbad, wherein, in Column No. 7, the total Gair Abad Malik Land has been shown as 60.22 acres and the plot of the petitioner is also included in the said Gair Abad Malik Land. It is further submitted that since the document in question was registered at Dhanbad Sub-Registry Office and the same has been confirmed by the SubRegistrar, Dhanbad, it cannot be construed that the action of Rani Smt. Hem Kumari Devi was to defeat the provisions of Section 4 of the Act for her own personal benefit. It is further submitted that Smt. Rani Hem Kumari Devi had also settled the land to other persons even in the year 1951 and their names were also mutated and rent were collected from them. The learned Senior Counsel for the petitioner relies on a judgment rendered by the Division Bench of Patna High Court (the period of unified Bihar) in the case of “D.N. Jatia Vs. The State of Bihar & Ors.” reported in 1990 (2) PLJR 819 and submits that the right to hold the property cannot be denied, unless the same is determined by the competent authority in accordance with law. 4. The State of Bihar & Ors.” reported in 1990 (2) PLJR 819 and submits that the right to hold the property cannot be denied, unless the same is determined by the competent authority in accordance with law. 4. The learned counsel for the respondent-State submits that the said land is a Gair Abad Land and as such, the same has vested in the Government after vesting of Zamindari. The transfer of the said land was made by the intermediary after 01.01.1946 and in view of Section 4 of the Act, the transfer was in nullity and as such, the Collector has power to annul such transfer and dispossess such persons claiming the said land. It is further submitted that the landlord did not furnish return and as such, the entire act of transfer after 01.01.1946 has been illegal. It is further submitted that the respondents have not discriminated the petitioner in any manner as the transfer of 2 acres of land out of same khata and plot in favour of Sri Lal Mahto and Sattu Mahto was made on 10.07.1939 i.e., much prior to 01.01.1946, however, the fact situation of the petitioner's case is entirely different. 5. Having heard the learned counsel for the parties and on going through the relevant documents placed on record, it appears that said land was settled by Smt. Hem Kumari Devi, wife of the then landlord of Jharia Late Raja Durga Prasad Singh in favour of the father of the petitioner namely, Late Rasik Chandra by registered deed of settlement dated 19.05.1948. The petitioner filed an application for fixation of rent vide Rent Fixation Case No. 7/III/2003-04 and the respondent no. 3 vide order dated 21.02.2004 recommended for fixation of rent of the said land @ Rs. 50/per acre and sent the record to the respondent no. 2. However, the respondent no. 2 refused to fix the rent of the said land solely on the ground that the land was transferred after 01.01.1946 and as such, the same was deemed to be made in order to defeat the provisions of the Act. 6. 50/per acre and sent the record to the respondent no. 2. However, the respondent no. 2 refused to fix the rent of the said land solely on the ground that the land was transferred after 01.01.1946 and as such, the same was deemed to be made in order to defeat the provisions of the Act. 6. Section 4(h) of the Act empowers the Collector to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or Kutchery for the collection of rent of such estate or tenure or part thereof. On arriving at a satisfaction that such transfer was made at any time after 01.01.1946 with the object of defeating any provision of Act or causing loss to the State, the Collector may, after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer, dispossess the person claiming under it and take possession of such property on any such terms as may appear to the Collector to be fair and equitable. On close analysis of the aforesaid provision, it would appear that merely because the transfer was made after 01.01.1946, it does not ipso facto render the transaction illegal unless the Collector, after making an inquiry arrives at a satisfaction that the transfer was made in order to defeat the provisions of the Act or for causing loss to the State. The respondent no. 2 misconstrued the said provision and merely after taking into consideration the fact that the transfer was made after 01.01.1946, the proposal for rent fixation was rejected. It is an established principle of law that a settlement made by the landlord can only be annulled after taking recourse of section 4(h) of the Act and not otherwise and till the cancellation is done in accordance with law, the same shall have all legal effect. 7. In the case of “D.N. Jatia” (supra), a Division Bench of Patna High Court in para 23 held as under: “23. The above statement of law by this Court is enough to declare that the Additional Collector who finally disposed of the proceeding had no jurisdiction to cancel the Jamabandi. Jamabandi could not be cancelled in the manner it was done by the Additional Collector. The above statement of law by this Court is enough to declare that the Additional Collector who finally disposed of the proceeding had no jurisdiction to cancel the Jamabandi. Jamabandi could not be cancelled in the manner it was done by the Additional Collector. The order of the learned Additional Collector therefore, is bad in law and without jurisdiction for more than one reason namely ; (i) The petitioner was given no hearing whatsoever, no opportunity was afforded to him to bring on the record evidence to show that he had a valid and perpetual settlement of the land and the building in question from the ex-intermediary and that he had been validly recognised as a tenant by the State of Bihar. (ii) The Additional Collector, Deoghar had no jurisdiction to cancel the Jamabandi. (iii) The Additional Collector committed a serious perversion of the procedure of law by converting a proceeding for requisitioning the building in question on rent into a proceeding to determine whether the petitioner was a lessee/raiyat or not. In other words whether the petitioner was the owner of the building or not.” 8. In the aforesaid judgment, the Division Bench held that the Additional Collector committed a serious procedural error by converting a proceeding for requisitioning the building on rent into the proceeding to determine whether the petitioner was the owner of the building or not. 9. In the present case also, the proceeding before the respondent no. 2 was for fixation of rent but the respondent no. 2 exceeded the jurisdiction and held that the settlement in favour of the petitioner was made after 01.01.1946 to defeat the provisions of section 4(h) of the Act. The respondent-State has not chosen to initiate any proceeding against the petitioner or his father i.e., predecessor-in-interest to annul the settlement of the land made in favour of his father. Thus, the order of the respondent no. 2 rejecting the application of the petitioner for fixation of rent of the said land by holding that the transfer was made after 01.01.1946 in order to defeat the provision of Section 4 of the Act, is not legally sustainable. Otherwise also, the proposal of the respondent no. 3 reveals that on spot verification, the land was found in possession of the petitioner and as such, he is entitled to pay the rent of the said land. 10. Otherwise also, the proposal of the respondent no. 3 reveals that on spot verification, the land was found in possession of the petitioner and as such, he is entitled to pay the rent of the said land. 10. Considering the aforesaid facts and circumstances, the writ petition is allowed. The impugned order dated 29.07.2004 passed by the Additional Collector, Dhanbad in Rent Fixation Case No. 7/III/2003-04 is hereby quashed and set-aside. The matter is remanded to the Additional Collector, Dhanbad to pass order for fixation of rent afresh. However, the State authorities are at liberty to take appropriate recourse against the petitioner, as provided under the law. 11. The writ petition is disposed of with the aforesaid observation/direction.