The right to hold a mela is not an incumbrance but a sairati interest. However, the provisions of Section 4(a) of the Bihar Land Reforms Act, which vests certain interests in the State Government upon notification, are subject to the subsequent provisions of the Act, including Section 6, which grants occupancy rights to ex-proprietors without any reservation with regard to the mela in favor of the State Government.

Ramaswami, J.

1. In this case the petitioners have obtained a rule from the High Court calling upon the respondents to show cause why the order of the Additional Sub-divisional Officer of Motihari respondent No. 3, dated the 18th December, 1955, as also the order of approval given by the Collector and Additional Collector of the district of Champaran, respondents Nos. 1 and 2, should not be called up and quashed by a writ in the nature of certio-rari. The petitioners allege that the properties mentioned in Schedule I were their kasht land and that the properties mentioned in Schedule IE were their bakasht land bill the tauzis vested in the State of Bihar by a notification issued under the Bihar Land Reforms Act.

The petitioners further claim that a mela known as Kesaria Mela, is held annually between the 15th and the 30th of the month of Poos on the lands specified in Schedules I and II. It appears that on the 18th of December, 1955, the Additional Sub-divisional Officer of Motihari settled the tolls of the mela for Rs. 14,500.00 with respondent No. 5, and this order was subsequently approved by the Additional Collector and the Collector.

The petitioners objected that the right to collect the tolls, of the mela did not vest in the State of Bihar by virtue of the notification under Sec.3 of the Bihar Land Reforms Act, but this objection was overruled by respondent No. 3. The contention of the petitioners is that the order Of the Additional Sub-divisional Officer of Motihari, dated the 18th December, 1955, is illegal, without jurisdiction and ultra vires, and that a writ under Article 226 of the1 Constitution should be granted to quash that order.

2. At the time of hearing the learned Government Advocate on behalf of respondents 1 to 4 said that the State Government did not claim the right to hold mela on the kasht lands of the petitioners comprised in Schedule I. The Government Advocate said that he did not admit that the petitioners have the right to hold mela and submitted that the question be left open. But as the State Government does not claim the right to hold mela over the lands comprised in Schedule I, it is manifest that the order of the Additional Sub-divisional Officer of Motihari, dated the I8th of December, 1955, must be quashed so far as Schedule I lands are concerned.

3. The dispute in this case, therefore, relates to the bakasht land mentioned in Schedule II of the application. The argument on behalf of the respondents is that the right to collect tolls of the mela Is a "sairati interest" within the meaning of Sec. 4 (a) of the Bihar Land Reforms Act, and the effect of the notification under Sec.3 of that Act is that such sairati interest vests In the State Government absolutely from the date of the notification. It is conceded on behalf of the respondents that Sec. 6 provided for a statutory lease back to the petitioners of bakasht lands, subject to the conditions mentioned in that section.

But it was submitted by the learned Government Advocate that the right to collect tolls from the mela did not fall within the terms of the statutory grant to the ex-proprietors under Sec. 6. On behalf of the petitioners it was argued, on the contrary that Sec. 6 expressly granted occupancy right to the ex-proprietors with regard to the bakasht land, and the statutory grant under Section 6, therefore, included the right to collect tolls from the mela and such right was conferred upon the petitioners by virtue of the statutory grant. Alternatively, it was submitted that even if the petitioners had no right to collect tolls from the mela, the respondents had no right to trespass upon the lands which are the subject-matter of the statutory lease under Sec. 6 and to hold mela thereon.

4. The first question arising in this case is whether the petitioners have the right to collect tolls from the mela by virtue of the statutory grant made under Section 6 of the Bihar Land Reforms Act. In other words, the Question is, what is