ORDER
P.K. Deb, J.
1. This writ petition has been preferred for issuance writ or certiorari & mandamus in respect of the orders passed by the Respondent-authorities as contained in Annexures -3,4 and 5 to the writ petition.
2. The dispute relates to ten acres of land appertaining to Khasra No. 6464 of Khata No. 479 and Touji No. 9403. The Jalkar is in the name and style of Bornai Jalkar created river source of Baghmati was situated near the disputed land although the same has been denied from the side of the petitioners to the effect that the area of Bornia Jalkar is situated about 3 to 4 kilometres away from the disputed land. Admittedly, Bornai Jalkar, which is also spread over huge area, was settled to the private-respondent No. 5 long back and they were fishing over that Jalkar. A petition was filed by Respondent No. 5 before the Revenue Authority that in their fishing the petitioners are creating obstructions regarding ten acres situated within plot No. 6464. An inquiry was made, as is revealed from Annexures – 1 and 2, and it could be found that lands of plot No. 6464 were settled with the petitioners or others and Jamabandi was issued in their names and that after vesting of the Jamabandi rent receipts were granted in favour of the petitioner and others on the basis of Register II. But on physical features, it could be found that the land was not a culturable one rather it was having knee-deep water during the summer also and as such it should be construed as a Jalkar and it was recommended by the lower revenue officials on physical, inquiry that even if there is any Jamabandi in favour of any person including that of the petitioners then the same should be cancelled. Without accepting the recommendation with regard to cancellation of Jamabandi in favour of the persons including that of the petitioners, order was passed giving right to the respondent No. 5 for fishing construing the area disputed to be a part of Bornai Jalkar and also police help was given to the Respondent No. 5 to eradicate obstruction in their fishing business in their settled Jalkar at Bornai. This has created a traversing of raiyati right of the petitioners and as such this writ petition has been filed.
3. In the counter-affidavit filed by the respondents, it was asserted that even if there was any Jamabandi in favour of any raiyat the physical feature of the land in Plot No. 6464 had already been changed long back and it was always being used as a Jalkar being Mohana Jalkar and was being settled to the fisherman community for the purpose of fishing. It was also stated in para-7 of the counter-affidavit of the respondents that land in plot No. 6464 are apart of Bornai Jalkar and the same had already been vested to the State and compensation has been paid to the land-lord. But, no papers have been submitted for and on behalf of the respondents to show that on vesting of plot No. 6464 compensations have been paid to the ex-landlord and lands of plot No. 6464 have been vested in the State. This statement in para-7 is directly in contradiction to what have been stated in Annexures-1 and 2 and also in Annexures-3 and 4 by the Revenue Authority. If there was vesting then the question of maintaining Jamabandi as a raiyati land of the petitioners and others does not arise at all nor the question arises regarding grant of rent receipts in favour of the petitioners or others who are claiming to be raiyats of plot No. 6464. Thus, the statement made in para-7 of the counter-affidavit cannot be taken into consideration in the facts and circumstances of the case as mentioned above.
4. The position remains that there is a Bornai Jalkar might be adjacent to the land of plot No. 6464 and the said Jalkar has been settled with the Respondent No. 5 but the Respondent No. 5 claims that part of plot No. 6464 measuring an area often acres had also been included in this settlement of Bornai Jalkar. On perusal of revenue records as per Annexures-1 and 2, it could be found that land of plot No. 6464 were not a part of Bornai Jalkar but Jamabandi was issued in the name of Raiyats including the petitioners and they were granted rent receipts by the State after vesting the Zamindari as per Register-II.
5. From the side of the petitioners also, no papers have been submitted to show their settlement over the disputed land nor there is any specification as to exactly whose ten acres disputed land is situated in plot No. 6464 which has got a vast area. The Annexures i.e. inquiry report and orders passed by the Revenue Authority do not also reveal proper position and circumstances.
6. The legal position remains that if a Jamabandi has been issued and the same has been continued even after vesting of Zamindari in favour of the raiyats and rent receipts were beings granted on the basis of Register-II then until and unless such Jamabandi is being cancelled by proper procedure of law, then the Revenue Authority cannot jump up to the conclusion that the physical features being changed the same should be construed as Jalkar and fisherman community should be settled with that land. It is true that by go of the day physical features of land might be changed and the Revenue Authority is at liberty to consider that change in the physical features and then proceed in accordance with law. But without proceeding in accordance with law jumping up into a conclusion that the raiyati lands have already been vested and unwarranted.
7. In that view of the matter, Annexures 3, 4, and 5 are definitely without jurisdiction. But, as disputed points of facts are there as already been elaborated in the foregoing paragraphs, it is necessary that Collector, Khagaria, should made a proper inquiry in the matter and find out the actual area of Bornai Jalkar and Mohana Jalkar as to whether any part of plot No. 6464 have been changed to a fishery and ceased of culturable lands and if so, then proceed according to law for cancellation of Jamabandi if maintained in favour of the so, called raiyats including that of the petitioners. But, before doing such inquiry and following the procedure for cancellation of Jamabandi Respondent No. 5 should not be allowed to fish in any part of plot No. 6464.
8. The writ petition is thus disposed of with above-mentioned direction to the Collector, Khagaria, and till the inquiry is made following proper procedure by the Collector, ten acres of land which is disputed in respected of plot No. 6464 should not be allowed to be fished by the respondent No. 5. But, it is made clear that being settlee of Bornai Jalkar respondent No. 5 he should be allowed to fish in the Bornai Jalkar save and except the disputed area in plot No. 6464. The inquiry should be completed by the Collector, Khagaria, within a period of six months from the date of receipt/submission of this order by either of the parties.