Uday Sinha, J.

This is an application under Articles 226 and 227 of the Constitution of India for quashing the order of the Additional Collector, Santhal Parganas at Dumka dated 19.11. 1970, which is Annexure 5 to this application and, the notice dated 24. 8. 1971 issued by Anchal Adhikari, Karon (Annexure 6), in the district of Santhal Parganas on the following averments. The petitioners are the ex-proprietors of Karon State bearing tauzi No. 888 in the Durnka Collector ate. The intermediary interest of the petitioners vested in the State of Bihar and, consequent upon the vesting of zamindari in the State of Bihar, the said tauzi containing plot No. 1638 which is a tank having an area of 8 acres and odd stands recorded as 'Raja Pokhar' in the record of rights also vested in the State of Bihar. It is also recorded in the record of rights, in regard to this tank, that no one except the proprietor gets water for irrigation. The tank is described as 'Khas' tank of the proprietor. South of this tank are to be found plot Nos, 1645, 1646, 1653, 1654 and 1657 which arc courtyard, orchard and residential portion of the house of the petitioners, all in one compound. The northern boundary wall of the compound of the petitioners stands on the 'Bhinda' of the tank of plot No. 1638. The tank is claimed by the petitioners as their 'Khas' property appurtenant to the dwelling house of the petitioners and, thus homestead of the petitioners. It appears that with the vesting of the proprietary Estate in the State of Bihar, Government took this tank also as having vested in the State of Bihar and consequent]y took steps for settlement of the tank by public auction. An objection was raised by the petitioners which seems to have been rejected by the Additional Collector, Santhal Parganas. The petitioners then moved the Commissioner, Bhaga1pur, which was numbered as Santhal Parganas Miscellaneous Appeal No. 12 of 1962/63 In that appeal the Commissioner by his order dated 19.6.1962 stayed the order for settlement of the tank passed by the relevant authorities. Upon an interpretation of the entry in the of record of rights that "no one gets water for irrigation", the Commissioner set aside the order for settlement and directed an inquiry to be made to find out if a fresh custom contrary to the entry in the record of rights had come into effect. The Commissioner held that if a fresh custom had come into effect, then the case would be governed by Government's instructions in their letter No. 681/LR dated 24.1.1959 of the Deputy Secretary, Revenue Department. The Additional Commissioner of Santhal Parganas was accordingly directed to look into and dispose off the matter in the light of the Commissioner's directions. A copy of the Commissioner's order dated 19.6.1962 has been annexed and marked as Annexure 2 to this application. After the order of the Commissioner, the revenue authorities held an enquiry into the validity of the entry in the record of rights in regard to plot No. 1638. The Deputy Collector, In-charge of Land Reforms held an enquiry on 15. 12. 1962 and submitted his report dated 18. 12. 1962. A copy of the report has been annexed and marked as Annexure 1 to this application. At this stage it will be relevant to mention that the petitioner's stand was that the tank in question was the homestead as defined under section 2 (J) of the Bihar Land Reforms Act, and that in terms of section 5 of the said Act, the petitioners were entitled to retain the tank along with the building as tenant of the State free of rent. The controversy seemed to have lingered for several years and the contention of the petitioners was ultimately rejected in 1961. The B. D. O. had been directed by the S. D. O. by letter No. l859 dated 25. 10. 1961 to take steps for settlement of this tank. This very order was the subject matter of appeal before the Commissioner which was remanded for fresh consideration by the Additional Collector. The enquiry report of the Lan