The Deputy Collector Land Reforms could not have cancelled the Jamabandi in the petitioner's name on the ground that the petitioner was in possession of excess land. The question of excess land could only be determined in a proper proceeding initiated under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.

S.B. Sinha, J. – This writ petition is directed against the orders as contained in Annexures 5, 6 and 7 to this writ application, i.e. the order dated 24.8.1977 passed by respondent no. 4, order dated 5.2.1980 passed by the respondent no-3 and order dated 17.2.1981 passed by the respondent no. 2 respectively.

2. The facts of the case lie in a very narrow compass. The petitioner allegedly took settlement of the lands in revisional survey plot no. 3401, Khata No. 1246 of village Udwant Nagar, Police Station Udwant Nagar, District Bhojpur by virtue of a “Mokarri Patta” executed in his favour by the Ex-landlord on payment of Salami and fixation of rent stipulated there-under. It hag been asserted in the writ petition that the Anchal Adhikari who is a competent officer to pass orders for entering somebody's name in the Jamabandi, passed an order on 7.4.1969 in favour of the petitioner directing therein that the petitioner's name be entered in the Jamabandi. The petitioner has further asserted that before the aforesaid order was passed there had been a due publication of Am-ishtahar by the Anchal Officer and further a report was called for from the then Karamchari, and pursuant whereto a report was submitted on 25.10.1967. The aforesaid report is contained in Annexure-2 to the writ application.

3. It is further alleged that the aforementioned order which was passed in Case No. 40,6768 was sought to be re-opened at the instance of the respondent no. 5 who prayed for an order of settlement of the land in question in his favour; in which proceeding an enquiry was made by holding a local inspection by the Anchal Nirikshak wherein also the petitioner's possession was found. Although in that proceeding the petitioner's possession was found as per the report of the Anchal Nirikshak dated 20th of September, 1972. The said report is contained in Annexure-3 of the Writ application.

4. It is alleged that despite the said orders and reports the respondent no. 5 filed an application before the higher authority, namely, the Deputy Collector Land Reforms without preferring an appeal against the orders passed by the Circle Officer.

5. The learned counsel appearing on behalf of the petitioner has raised various contentions. However, this petition, in my opinion, can be disposed of on a short ground. From a perusal of the order as contained in Annexure-7 to the writ application which was passed by the respondent no. 2, it would appear that one of the grounds upon which the said order is based is that the petitioner was in possession of the excess land. i.e. evidently more than permissible under the provision of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act. 1961. In the said order it has further been found that the local enquiry was made and the land was found Parti even on the date of inspection. In my opinion, both the grounds could not have (sic) taken into consideration by the said authority while passing the impugned orders. In my opinion the question as to whether a person is in possession of a particular land or not does not depend upon the nature of the land i.e. to say whether the same was lying fallow on the date of inspection or not. In my opinion, for the purpose of entering the name of some person in the Jamabandi, what is necessary, is to find out the actual physical possession and not the manner of possession. Further, the Commissioner in the impugned order could not have based his decision on the ground that the petitioner is in possession of excess land. The question as to whether the petitioner is in possession of the land which is said to be in excess than prescribed under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 or not, the same could only be determined in a proper proceeding initiated under the said Act. Such a question which falls for determination by a competent authority under the provision of the said Act cannot be taken recourse to by