This is an application under Article 226 of the Constitution of India,1950 assailing the validity of the proposal of settlement of land in question in favour of respondent No.6. 2. The petitioner No. 1 claims himself to be a labourer of erstwhile Chunshali Tea Estate and holding a parcel of land measuring 1 bigha 2 katha 12 lecha under the Beltola Mouza, covered by Dag No.6. To that extent a Khatian was issued in favour of the petitioner No. 1 in terms of the provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971. The petitioner No.2 claimed his right over the property of the said land on the basis of purchase through his father and paid Municipal taxes and land revenue in respect of the above land. In the year 1988 an eviction proceeding was initiated against the petitioner under Rule 18 of the Settlement Rules which was registered as Encroachment Case No.25/88. An order under Rule 18 (3) of the Settlement Rules was passed by the Addl. Deputy Commissioner, Kamrup on 17.12.88 which was assailed by way of an appeal before the Assam Board of Revenue, Guwahati which was numbered and registered as Case No.237 RA (K) 88. The learned Revenue Board came to a positive finding on the basis of materials on record that the petitioner was a Khatiander and accordingly he cannot be treated as encroacher under Rule 18 of the Rules. The relevant observations and finding of the learned Revenue Board reads as follows : "3.1 have considered carefully the points made in the appeal the report of the respondent Addl. Deputy Commissioner and the arguments for both parties. The main point in this case is whether the appellants hold a Khatian for the land. If they have a Khatian then there could not be a case under Rule 18. The Addl. Deputy Commissioner's case is that as according to records there is no Khatian. On the other hand the appellants have submitted a copy of the Khatian which has been' duly certified on 1.1.88 by the Sheristadar of the Deputy Commissioner's Revenue Office. I have no reason to disbelieve the certified copy. In these circumstances the obvious conclusion is, proceedings under Rule 18 of the Settlement Rules under the Assam Land and Revenue Regulation do not apply. The impugned order dated 17.12.88 in encroachment Case No.25 of 1988 is set aside. 4. I have no reason to disbelieve the certified copy. In these circumstances the obvious conclusion is, proceedings under Rule 18 of the Settlement Rules under the Assam Land and Revenue Regulation do not apply. The impugned order dated 17.12.88 in encroachment Case No.25 of 1988 is set aside. 4. I am keeping the question of costs open to be decided after hearing the respondent. I have observed that the records of the case and the report from the Deputy Commissioner were called by the Board vide its order of 23.12.88. The records and the report were received on 4.1.90, which is more than 1 year after from the date of calling for the records. The second point of interest is the respondent Addl Deputy Commissioner's reply in paragraph 2 of his report in which, he says that according to records, there is no Khatian. It has been observed that the certified copy of the Khatian was given by the Revenue Sheristadar on 4.1.88, from the records in his custody. The matter is serious enough to require explanation from the Addl Deputy Commissioner. Let notice issue to the Addl Deputy Commissioner to explain the matter. The explanation should be submitted to this Court by the 25th September of 1990. A copy of this order should be sent to the DC, Kamrup." 3. Thereafter an application was made by the petitioner on 19.7.89 for settlement of the above land. In that application the petitioner also stated that for the same land the authority received an application from the predecessor of respondent Nos.6 (a), (b) and (c). From the record it appears that the Special Land Advisory Committee by resolution recommended the settlement of 1 bigha 2 katha 12 lecha of land in Dag No.6 of Village No.l Madgharia in favour of 'Madhabi Furniture' industry owned by the predecessor of respondent Nos.6 (a) (b) and (c) and fixed premium over the land. The petitioner made one more objection before the Deputy Commissioner, Kamrup. However, getting no relief the petitioner has moved this Court by way of this writ petition under Article 226 of the Constitution.. 4. The predecessor of respondent No.6 (a), (b) and (c) since deceased filed its affidavit. According to the respondent the land was Sarkari land which was lying vacant and which was occupied by him. The petitioners were trying to encroach up the land. 4. The predecessor of respondent No.6 (a), (b) and (c) since deceased filed its affidavit. According to the respondent the land was Sarkari land which was lying vacant and which was occupied by him. The petitioners were trying to encroach up the land. Hence the Addl Deputy Commissioner, Kamrup registered the Encroachment Case No.25/88 against the petitioners on the basis of a report submitted by the Lat Mandal. The respondent No.6 was already a party before the Revenue Board who contested the case there. According to the respondent No.6 he was the owner of a furniture house and applied for the above land since the same was a Sarkari land. 5. The State Govt. though did not file any affidavit appeared through the learned counsel Mr. H. Rahman and supported the order of settlement in favour of respondent No.6. 6. Admittedly the land is a ceiling surplus land which is to be disposed in accordance with law. One of the criteria for disposal of excess land is on the basis of possession and occupation of such land. The petitioner No. 1 was a holder of Khatian prepared under the Tenancy Act and he is entitled for consideration of settlement of the land. No doubt respondent Nos. 1, 2 and 3 has had the competence to entertain and consider application of settlement of the predecessor of respondent No.6 (a), (b)and (c). But normally such consideration could not have been in respect of the land which was occupied by the petitioner as of a tenancy right and declared and accepted as a tenant. The order of the Revenue Board clearly accepted that position and treated the petitioners as lawful occupant. In that view of the matter the impugned move to settle the land in question with the predecessor of respondent No.6 (a), (b) and (c) overlooking the claim of the petitioners cannot be said to be lawful, and therefore same is liable to be set aside and accordingly it is set aside. 7. Considering the facts and circumstances of the case, I therefore direct the respondents not to proceed any further with the proposal for settlement of the land in question by letter dated 8.6.90 and direct the respondent Nos .1, 2 and 3 to consider the case of the petitioners for settlement of the land in accordance with law within 3 months. It will however, be open for the respondent Nos. It will however, be open for the respondent Nos. 1, 2 and 3 to consider any application for settlement, in the event of such application and allot the land to the heirs of respondent No.6 Ramesh Chandra Kalita in accordance with law. 8. Subject to the observations made above the writ petition is allowed. There shall however be no order as to costs.