S. K. Homchandhuri, J.— This petition is directed against the proceedings of Encroachment Case No. 5 of 1983 and Encroachment Case No 57 of 1986, initiated for eviction of the petitioners from the land in their occupation and the common judgment dated 15.7.87 passed by the learned Assam Board of Revenue in Case No. 115 RA (Dibrugarh) of 1986 and No. 383 RA (Dibmgarh) of 1986. 2. Petitioners' case is that their predecessor-in-interest Naresh Kanoo originally took settlement of 1 bigha of fellow land from Rupai Tea Company in the year 1939 on condition of payment of annual rent @ Rs. 25/- and after getting settlement the predecessor-in-interest of the petitioners reclaimed it for cultivation and habitation. He grew vegetables and built a dwelling house thereon. Thereafter between the period from 1962 to 1966 the predecessor-in-interest of the petitioners purchased possessory right of the adjoining plots of land belonging to the Rupai Tea Company from the occupiers thereof and continued to possess the same. The predecessor-in-interest of the petitioners thereby came to occupy a total area of land measuring 8 bighas 4 kathas 15 lechas owned by the Rupai Tea Company Ltd and continued to possess the same and after his death the petitioners are possessing the said land. 3. Petitioners' further case is that in the year 1967, local Revenue Authority after survey of the plot of land in occupation of the predecessor-in-interest of the petitioners, being satisfied that he had been possessing the said land as cultivating tenant under the owner, Rupai Tea Company Ltd,, prepared a draft reeord-of-right and issued Kacha Rayati Khatian in his favour in respect of the land. In the year 1968, the Rupai Tea Company having offered to sell the said land the predecessor-in-interest of the petitioners paid Rs. 1,500/- towards agreed price of the land. In the meantime, a proceeding under provision of the Assam Fixation of Ceiling on Land Holding Act, 1956, hereinafter referred to as the Act, having been initiated to acquire the surplus land held by Rupai Tea Company, final Rayati Khatian in favour of the predecessor-in-interest of the petitioners in respect of the land measuring 8B 4K 15L as tenant, under the Rupai Tea Company was not issued. Besides, the registered sale deed of transferring ownership right of the land was also not executed by the Rupai Tea Company. Besides, the registered sale deed of transferring ownership right of the land was also not executed by the Rupai Tea Company. After conclusion of the proceeding under the provision of the Ceiling Act, the land in possession of the predecessor-in-interest of the petitioners along with other land of Rupai Tea Company vested in the Govt. The predecessor-in-inter st of the petitioners being a cultivating tenant under the original owner, Rupai Tea Company, in respect of the land made an application for settlement thereof. In the year 1981, some persons of the locality applied to the Revenue Authority for allotment of a portion of the land in occupation of the predecessor-in-interest of the petitioners for Rupai Siding High School. The Sub-Deputy Collector, Doom Dooma submitted a report in connection with the said application. In the said report the SDC amongst other -stated that the predeeessor-in-interest of the petitioners, had been in occupation of the land under the Rupai Tea Company on rent. The predecessor-in-interest of the petitioners filed objection against the prayer for allotment of the land to others. In spite of all these materials in favour of the predecessor-in-interest of the petitioners, the Sub-Divisional Officer, Tinsukia arbitrarily initiated a proceeding for ejectment of the predecessor-in-interest fo the petitioners from the land in his occupation in the exercise of powers under Rule 18 of the Settlement Rules and Encroachment Case No. 5 of 1983 was registered. Accordingly a notice under Rule 18 (3) of the Settlement Rules was served on the predecessor-in-interest of the petitioners asking him to vacate the land within 15 days. The predecessor-in-interest of the petitioners filed an application before the Sub-Divisional Officer, Tinsukia on 16.5.83 against the proceedings, asserting that he had been in occupation of the land as cultivating tanant under the original owner, the Rupai Tea Company Ltd. On enquiry the predecessor-in interest of the petitioners found that he had been assessed to pay Touzi Bahira Revenue in respect of the land in his occupation for the year 1981. The predecessor-in-interest of the petitioners cleared the Touzi Bahira Revenue on 29.8.84 due on and from 1981. The predecessor-in-interest of the petitioners cleared the Touzi Bahira Revenue on 29.8.84 due on and from 1981. On 6.3.85 the SDO Tinsukia however directed the SDC, Doom Dooma to carry out order as per the notice dated 10.5.83 in Encroachment Case No. 5 of ;983, Late Naresh Kanoo the predecessor-in-interest of the petitioners preferred an appeal before the Deputy Commissioner, Dibrugarh against the order dated 6.3,85 passed by the SDO Tinsukia. The appeal was admitted and ad interim order staying eviction was passed by the Deputy Commissioner. By order dated 5.5.86 the Deputy Commissioner dismissed the appeal and vacated the ad-interim order of stay. Against the order of dismissal of the appeal, late Naresh Kanoo preferred an appeal in the Assam Board of Revenue which was registered as Appeal No. 155 RA (Dibrugarh) of 1986 and inierim order was passed to maintain status quo pending disposal of the appeal by the learned Assam Board of Revenue. During pendency of the said apoeal Naresh Kanoo died and the petitioners who are heirs/legal representatives of Naresh Kanoo were substituted as appellants. 4. On 1.10.86, the petitioners were served with another notice under Rule 18 (3) of the Settlement Rules, asking them to vacate 3B 3K 12L of land which falls within the total area of land measuring 8B 4K 15L in their occupation. The said notice was issued in respect of Encroachment Case No. 57 of »986. The petitioners preferred an appeal against the said notice dated 1.10.86 issued in respect of the Encroachment Case No. 57 of 1986 and the learned Assam Board of Revenue admitted the appeal and the appeal was registered as Appeal No. 353 RA (Dibrugarh) of 1986. The learned Assam Board of Revenue also passed ad interim order directing to maintain status quo till disposal of the appeal. Both the appeals were heard together and after conclusion of hearing, the learned Assam Board of Revenue by the impugned common judgment dated 15.7.87 dismissed the appeals. The petitioners have, thereafter, approached this Court in this writ petition. 5. The respondents have not fiied any counter disputing the averments made in the writ petition. Both the appeals were heard together and after conclusion of hearing, the learned Assam Board of Revenue by the impugned common judgment dated 15.7.87 dismissed the appeals. The petitioners have, thereafter, approached this Court in this writ petition. 5. The respondents have not fiied any counter disputing the averments made in the writ petition. On perusal of the records, we find that in the appeals similar averments that Ram Kanoo originally took lease of a part of fellow land measuring 1 bigha from the Rupai Tea Company Ltd. in 1939 cultivated the land, built his dwelling house on the part thereof and during the period of 1962 to 1966 by purchasing the possessory right of the adjoining plots of land from the occupires thereof belonging to Rupai Tea Company, he came to possess a total area of land measuring 8 high as 4 kathas 15 lechas and that in 1967 after making survey the Settlement Authority issued Kacha Rayati Khatian in respect of the Jand in /avour of late Ram Kanoo who also ultimately purchased ownership right from the Rupai Tea Company in the year 1968 on payment of Rs. 1,500/-. All these facts were not disputed in the parawise comments filed by the Deputy Commissioner in the appeals pending before the learned A ssam Board of Revenue. However, the Deputy Commissioner took the legal plea that issuance of Kacha Khatian did not confer any tenancy right on the occupants of the land belonging to Rupai Tea Company. 6. We have heard Mr. BC Das, learned counsel for the petitioners and Mr. BB Narzary, learned Govt. Advocate. The learned Assam Board of Revenue dismissed the appeal holding :- "On perusal of the records, it is found that neither in the appeal petition, nor in the rent receipt and in agreement of same, particulars of the land have been furnished. A typed paper alleging receipt of rent of Rs. 100/-and another typed paper showing to have received Rs. 1,500/- by the acting Manager have been filed. These papers do not bear anybody's signature except the typed words. No description of land whatsoever and the originals have not been produced or shown to the Board. So the alleged rent receipt and the agreement of sale are not acceptable. Encroached Dags are 317,318,319 and 324 of Village Oughri, Mouza Hapjan. On Dag No. 319 a Kacha Khatian was issued. No description of land whatsoever and the originals have not been produced or shown to the Board. So the alleged rent receipt and the agreement of sale are not acceptable. Encroached Dags are 317,318,319 and 324 of Village Oughri, Mouza Hapjan. On Dag No. 319 a Kacha Khatian was issued. This Hag is trade site where Tenancy Act is not applicable. Moreover Katcha Khatian unless followed by Final and Pucca Khatian is not a valid document. So his claim of right of tenancy is also not acceptable. Moreover rent stated to have been paid for 4 years @ Rs. 25/- should have been Rs. 100/ . From the typed sheet it appears that Rs. 125/- was paid for 4 years which is at variance with the claim of the appellant. Mere payment of Tauzi Bahi Revenue does not confer either the right of a settlement holder or land holder. Tauzi Bahi Revenue is realised from the encroachers as a measure of penalty. Dag No 3?4 ha* been reserved for an ME School. From the Sub-Deputy Collector's report on Encroachment Case No. 57/86 it appears that the appellant is not landless. He has got 18 bighas ofpatta land at village Bishakupi and has encroached sarkari land in violation of Rule 16 of the Rules framed under the Assam Land and Revenue Regulation, 1886 and liable to be evicted...." 7. The petitioners have assailed the impugned proceedings of Encroachment Case Nos. 5 of 1983 and 57 of 1986 a"s well as the impugned judgment passed by the learned Assam Board of Revenue mainly on the following grounds : Undisputedly the predecessor-in-interest of the petitioners had been inoccupation of 1 bigha of land out of 8 bigba 4 katha and 15 lechas since 1939 on payment of rent to the priprietor/landholder namely, Rupai Tea Company. It is also not disputed that the predecessor-in-interest of the petitioners came to possess the adjacent land measuring 7 bighas 4 kathas 15 lechas after purchasing possessory right thereof during the year 1962-66 which belonged to Rupai Tea Company. It is also not disputed that the predecessor-in-interest of the petitioners came to possess the adjacent land measuring 7 bighas 4 kathas 15 lechas after purchasing possessory right thereof during the year 1962-66 which belonged to Rupai Tea Company. la the year 1967 the Settlement and Revenue Authority after survey found the predecessor-m-interest of the petitioners had been in occupation of land measuring 8B 4K 15 L and that being prima facie satisfied that he was in occupation of the said area of land as cultivating tenant under the Rupai Tea Company prepared draft record of right under the provision of the Assam (Temporary Settled Districts) Tenancy Act, 1935? herehafttr mentioned as the Tenancy Act, and issued Kacba Tenancy Khatian in favour of the predecessor-in-interest of the petitioners in respect of the land. After the Govt has acquired land along with other land under the provision of the Ceiling Act, no doubt the land vested in the Govt., but under section 16 of the Ceiling Act the predecessor-in-interest of the petitioners and after his death the petitioners are entitled to get settlement of the land under the terms and conditions prescribed by law : (ii) Neither the predecessor-in-interest of the petitioners nor the petitioners have been in unauthorised occupation of the land in question (measuring 8 B 4K 15L) hitherto belonged to the Rupai Tea Company and as such the proceedings of Encroachment Case No. 5 of 1983 and No. 57 of 1986 under Rule 18 of the Settlement Rules are misconceived, arbitrary and without jurisdiction : (iii) The finding of the learned Assam Board of Revenue that the petitioners were encroachers within the meaning of Rule 16 of the Settlement Rules is wholly perverse inasmuch as materials on records clearly establish that since long the predecessor-in-interest of the petitioner* had been in occupation of the land as cultivating tenant and/or at any rate possessing the land with due permission of proprietor/land holder, namely Rupai Tea Company, on payment of rent for long time and the subsequent acquisition of the land under the Land Ceiling Act cannot convert the authorised occupant as an encroacher thereof. (iv) Finding of the learned Assam Board of Revenue that Touji Bahira Revenue paid by the predecessor-in-interest of the petitioners as well as by the petitioners since 1981 have been realised by way of penalty for unauthorised occupation of the land is wholly arbitrary and erroneous and misconceived. (v) Section 12 of the Land and Revenue Regulations having conferred the power to the State Govt to frame Rules for ejectment of any person who has been entered into unauthorised occupation of Govt land, the predecessor-in-interest of the petitioner and after his death, the petitioners having never been in unauthorised occupation of the land, initiation of proceedings for ejectment of the petitioner in the exercise of power under Rule 18 of Settlement Rules for ejectment of the petitioners, is misconceived, illegal and without jurisdiction. The petitioner has also challenged the validity of the Rule 18 of the Settlement Rules on the ground of arbitrariness and beyond rule making power conferred under section 12 of the Assam Land and Revenue Regulations. 8. On behalf of the respondents it has been submitted that the petitioner not having got Pucca Tenancy Khatian the learned Assam Board of Revenue has rightly held that the petitioners were not cultivating tenants of the land under the Rupai Tea Company and as such, they were not entitled to get settlement under section 16 of the Ceiling Act. It has also been submitted that the learned Board of Revenue committed no error apparent on the face of the records in passing the impugned judgment. 9. We have considered the submissions made on behalf of the petitioners as well as on behalf of the respondents and have perused the materials on record. On the question of validity of the Rule 18 of the Settlement Rules we do not propose to go mto the" question, since no notice was issued to" the learned Advocate General. So, we leave this point open 'to be decided in future in an appropriate case. On the question of validity of the Rule 18 of the Settlement Rules we do not propose to go mto the" question, since no notice was issued to" the learned Advocate General. So, we leave this point open 'to be decided in future in an appropriate case. Admittedly, the predecessor-in-interest of the petitioners had been in occupation ' of the land fora long time and in the year 1967 the Settlement and Revenue Authority after enquiry was prima facie satisfied that the predecessor-in-interest of the petitioners had been in occupation of the land measuring 8B 4K 15L as cultivating tenant under the proprietor/ land holder namely, Rupai Tea Company Ltd, prepared a draft record of right under provision of the-Tenancy Act and issued Kacha Khatian in favour of the predecessor-in-interest of the petitioners in respect of the land. It is not the case of the respondents that the original owner Rupai Tea Company submitted objection before the Settlement Officer against issuance of Kacha Rayati Khatian showing predecessor-in-interest of the petitioners as tenant of the land in his occupation. Besides, under section 12 of the Ceiling Act, the amount of compensation to be awarded for the acquired surplus land is to be apportioned between the owner and the tenant of the land. It can therefore, be safely presumed that in the course of acquisition of the surplus land of the Rupai Tea Company under the provision of the Ceiling Act the Collector must have recorded the nature of right of th« occupants of the surplus land, particularly in respect of the land in occupation of the petitioners. Withholding of the records of the Land Ceiling proceedings of the surplus land of Rupai Tea Company by the Deputy Commissioner gives rise to the presumption that had the relevant records been produced, it would have disclosed that at the time of acquisition of the land under the Ceiling Act, the predecessor-in-interest of the petitioners had been in occupation of the land as a cultivating tenant. Under the aforesaid facts and circumstances, the petitioners' contention that their predecessor-in interest had been in occupation of the land as a cultivating tenant at the time of acquisition thereof under the Ceiling Act and the petitioners are entitled to g4t settlement of the land under section 16 of the Ceiling Act subject to maximum of 50 bighas, ha? force. 10. force. 10. Materials on records disclose that the predecessor-in interest of the petitioners had not been in unauthorised occupation of the land of Rupai Tea Company at the time of acquisition thereof under the Ceiling Act. A person in authorised occupation of a plot of land, belonging to other at the time of acquisition thereof under the Ceiling Act, cannot become an unauthorised occupant or encroacher thereon just because of the acquisition, the plot of land vests in the Govt. Rule 16 of the Settlement Rules forbids persons from entering into Govt khas land until issue of lease. In the instant case undisputedly the pre iecessor-in-interest of the petitioners had been in authorised occupation of the plot of land in question at the time of acquisition thereof under the provision of the Ceiling Act. As such, the finding of the learned Assam Board of Revenue that the petitioners are encroachers in the plot of land measuring 8 bighas and odd, is arbitrary and perverse. 11. Section 12 of the Assam Land and Revenue Regulations, 1886, empowers the Govt to make Rules for ejectment of any person who hat entered into unauthorised occupation of Govt khas land. The rule framed for ejectment, must be confined within the powers conferred under section 12 of the Regulation. Section 12 of the Regulation having authorised Oovt to make rule for ejectment, of any person who has entered into unauthorised occupation of Govt land, the provision of Rule 18 of Settlement Rules framed for that purpose, in our opinion, can be applied'for ejectment only of persons who are in unauthorised occupation of Govt land. It naturally follows that a person in occupation of a plot of land although may not be a proprietor, land holder or settlement holder thereof under the Regulation, cannot be ejected by resorting to the summary proceeding under Rule 18 of the Settlement Rules, unless his occupation is found unauthorised. 12. Admittedly, the predecessor-in-interest of the petitioners and after his death the petitioners had been paying the Touji Bahira Revenue. We find it difficult to persuade ourselves to accept the view expressed in the impugned judgment that Touji Bahira Revenue are realised from the encroachers as a measure of penalty for unauthorised occupation of Govt land. 12. Admittedly, the predecessor-in-interest of the petitioners and after his death the petitioners had been paying the Touji Bahira Revenue. We find it difficult to persuade ourselves to accept the view expressed in the impugned judgment that Touji Bahira Revenue are realised from the encroachers as a measure of penalty for unauthorised occupation of Govt land. It passes our comprehension as to how revenue realised for use and occupation of land at a fixed rate from time to time can be termed as penalty. The learned Govt Advocate has not been able to show any Rules or even administrative instructions authorising realisation of Touji Bahira Reuenue as penalty for unauthorised occupation of Govt land. We are of the view that when a Govt realises revenue from occupier of Govt land even if it is termed as Touji Bahira Revenue, the person in occupation of the land should be deemed to be in occupation thereof with implied permission of the Revenue Authority and cannot be condemned as encroacher and/or unauthorised occupier. 13. For the reasons stated above, we hold that the impugned proceeding of Encroachment Case No. 5 of 1983 and No. 57 of 1986 for ejectment of the petitioners from the land in their occupation measuring 8 bighas 4 kathas 15 lechas are misconceived and without jurisdiction and liable to be quashed. In the year 1967 the Revenue Authority having been prime facie satisfied that predecessor-in-interest of the petitioners had been in occupation of the plot of land in question as cultivating tenant under owner Rupai Tea Company and in fact issued Kacha Rayati Khatian as contemplated under the provisions of the Tenancy Act, the predecessor-in-interest of the petitioners deemed to be in occupation of the land as cultivating tenant at the time of acquisition thereof under the Ceiling Act and as such the petitioners are entitled to get settlement of the land in their occupation. 14. The petition is, therefore, allowed. The impugned proceedings of Encroachment Case No. 5 of 1983 and No. 57 of 1986 are quashed. The inpugned appellate judgment dated 15.7.87 passed by the learned Assam Board of Revenue in Case Nos. 155 RA (Dibrugarh) of 1986 and 383 RA (Dibrugdrh) of 1986 are set aside. We make no order as to costs.