The Sub-divisional Officer did not have the jurisdiction to fix the annual rent of the land under the Bihar Buildings (Lease, Rent and Eviction) Control Act, as he could only fix fair rent for a house and not vacant land.

B.K.Roy and R.N.Prasad JJ.

1. The petitioner through this writ application filed on 20-10-1992, prays to command the respondents, particularly respondent No. 8, the Sub-divisional Officer, Flood Protection Sub-division, Bihta at Maner, district Patna to immediately vacate his lands measuring 2.82 acres of plot Nos. 156. 263 and 264 appertaining to khata no. 184 in Village Bihta in the district of Patna.

2. From the bulky records of this writ application it transpires that during emergency the land aforementioned as occupied by the Advance Planning and Investigation Division for the temporary use of Sone Embankment Division which was sought to be acquired temporarily under Sec. 35 of the Land Aqcuisition Act, which is clear from a letter of the Special Land Acquisition Officer, Rajbanshi Nagar, Patna bearing No. 802 dated 26-8-76 (as contained in Annexure-B to the counter affidavit), that the acquisition proceedings, however, could not be initiated ; that annual rent of the land was also fixed by the Sub-divisional Officer, Danapur at the rate of Rs. 400 per month ; that subsequently a regular land acquision proceeding was initiated under the provisions of the Land Acquisition Act, which was objected to ; that the petitioner filed an application under Sec. 5-A of the Land Acquaint Act as amended by the State of Bihar which was allowed by order dated 6-4-1993 during the pendency of this writ application vide Annexure-12-A ; that an action for calling for the records and setting aside the aforementioned order was also rejected by the State ; that the Government in its Water Resources Department took a decision to vacate the lands and shift the office of the Sone Embankment Division to a government premises at Maner and to take steps for removal of temporary structures constructed in the lands in question immediately ; that the Government in its Water Resources Department subsequently took decision to acquire the lands in question which is apparent from the letter of the Joint Secretary of the Water Resources Department dated 20-10 1992 ; and that it is admitted position that the petitioner is being paid rent of the land in question till today.

3. Mr. Tarakant Jha, learned Counsel appearing on behalf of the petitioner, submitted as follows :

There being no acquisition proceeding pending for acquisition of the lands in question in view of the decision taken by the Government vide Annexure-8 and communicated to the Chief Engineer (Irrigation), Water Resources Department, the respondents should be called upon to vacate the lands of the petitioner after removal of the temporary structures made thereon. It is only Respondent No. 8, the Sub-divisional Officer, Flood Protection Sub-division who is acting mala fide in not complying with the order aforesaid.

4. Learned Government Pleader No. 1 appearing on behalf of the respondents 1 to 8, on the other hand, submitted that from the materials on the record it is clear that the dispute raised by the petitioner is a dispute between the landlord and a tenant and, accordingly, no writ of mandamus should be issued and that the decision taken by the Government as mentioned in Annexure-8 was nullified by the Government itself by another decision as referred to in another letter of the Joint Secretary addressed to the Chief Engineer, as contained in Annexure-N, though it is true that no proceeding in land acquisition is pending for acquiring the lands in question : that from Annexure-B it would appear that the land in question was acquired temporarily with mutual consent of the petitioner and rent was also fixed by the Sub-divisional Officer, Danapur and in this view of the matter the only remedy available for the petitioner is to take recourse to eviction of the Respondents under the general law and not even under the Bihar Buildings (Lease, Rent and Eviction) Control Act as what was leased is the land and not the house.

5. Had it been a dispute simpliciter qua landlord and tenant, the pet