NAGENDRA PRASAD SINGH, J.

1. The petitioner, in this writ application, questioned the legality of an order dtd. 24-1-1978 passed by the respondent Sub divisional Officer, Sasaram, in purported exercise of power under S.48E of the Bihar Tenancy Act (hereinafter referred to as the Act). A copy of that order is Annexure-1 to the writ application.

2. The petitioner filed an application before the respondent Sub-divisional Officer, on 25-1-1977, alleging therein that he was the under raiyat of respondent No. 3 (hereinafter referred to as the respondent) and the respondent along with her supporters were disturbing the possession of the petitioner over the lands in question, as such, the respondent should be restrained from interfering with his possession. A copy of that petition is Annexure-2 to the writ application. The Sub-divisional Officer on that very day asked the Anchal Adhikari, Nasriganj to make enquiry and to submit report. Later, he recalled the said order and directed the project Executive Officer, Karakat to hold local enquiry and report.

The case was adjourned from time to time as the report was not received. Having learnt about the apprehension of breach of peace over the cutting of the crops, on 8-11-1977, he directed the Officer in charge of Nasriganj police station not to allow either party to harvest the paddy crop grown on the said lands till further orders. On 5-12-1977, an application was filed on behalf of the respondent making a prayer for an order allowing her to harvest the crop, which was directed to be put up an 6-12-1977. On 6-12-1977, the Sub-divisional Officer directed the Officer in charge of the police station to get the crops harvested. In the meantime a report of the Officer in charge of the police station as well as of the Project Executive Officer were received.

3. On 2-1-1978. learned Sub-divisional Officer heard both the parties on the merit of the case. On behalf of the petitioner it was urged that he was under tenant of the respondent and, as such, he cannot be dispossessed from the lands in question. On behalf of the respondent, however, it was disputed. According to the respondent, the report of the Officer in charge of the police station as well as the report of the Project Executive Officer did not support the claim of the petitioner. Both parties urged other questions of law as well as fact, and having noted their arguments in the order dated 2-1-1978, learned Sub-divisional Officer fixed 10-1-1978 for orders. Ultimately, on 24-1-1978, the impugned order was passed saying that he had heard the learned counsel appearing for both the parties and had perused the documents filed on their behalf, as well as the reports aforesaid from which he was satisfied that the land was in possession of the respondent and the petitioner was not cultivating the said lands as under-tenant. On that finding, he dropped the proceeding and directed the police to hand over the crops, which had been harvested, to the respondent.

4. The legality of the aforesaid order has been challenged primarily on the ground that it was not open to the learned Sub-divisional Officer to record findings on the merit of the case and after initiating the proceeding he should have constituted a Board as contemplated by S.48E of the Act. According to the petitioner, the Sub-divisional Officer has adopted a procedure which is not sanctioned by law.

5. This case was referred to a Special Bench by Hon ble the Chief Justice, perhaps, to determine the scope of Sub Section (1) of S.48E of the Act which empowers the Collector to initiate a proceeding under that Section for the purpose of deciding a dispute between the raiyat and under raiyat in respect of possession and dispossession of the lands.

6. Sub-Sec. (1) to Sub-Sec. (3) of S.48E of the Act, as substituted by Bihar Act VIII of 1970, which are relevant for the purpose of this case, are as follows :-

"(1) If an under raiyat is threatened with unlawful ejectment from his tenanc