ORDER : Heard Mr. D.K. Sharma, the learned counsel appearing for the petitioner. The respondent Nos.1 to 5 are represented by the learned Govt. advocate Mr. P.S. Deka. The contesting litigants are arrayed as the respondent Nos.6 to 9 and they are represented by Mr. S. Nath, the learned counsel. 2. The matter relates to 8 bighas 4 kathas land at village Kajipara Part-I covered by Dag No.170/171(old), 972(new) under Chapar Revenue Circle in Dhubri district. The predecessor of the respondents, Sania Sheikh was the khatian holder of the said land. But as he defaulted in paying the revenue, the Khatian No.100 was cancelled and the land was declared to be the Govt. khas land by the Dhubri Deputy Commissioner on 24.07.1972 and the order passed by the Asstt. Settlement Officer on 31.07.1972. The concerned land by the bank of the Champabati river was submerged in 1972 and this may have been the reason for the revenue default, by the khatian holder. 3. The river submerged land re-remerged in the year 1987 and since then the successors of the original khatian holder claim to be in possession of the land by paying the Touzi Bahira Revenue. 4. On the other hand, the writ petitioner Hazera Bewa also claims to be in possession of the land, which allegedly was purchased by her father Jyoti Mamud Sheikh from other successors of the khatian holder, during 1983-87. But the private respondents contend that the govt. land could not have been legally sold by the occupier. Moreover the private respondents are not involved with the concerned transactions. 5. When the khatian was cancelled in 1972 and the successors of the khatian holders were found to be in unlawful possession, eviction proceeding was initiated through the Eviction Case No.2(C)/2008-09 and notice(s) were issued on 25.03.2008 (Annexure-B series) by the SDO(Civil), Bilasipara against the private respondents, for their eviction under Rule 18(3) of the Assam Land and Revenue Regulation, 1886. Those eviction notices were challenged and the Case No.80 RA(DBR)/2008 was registered in the Assam Revenue Board. 6. In their appeal, the respondents contended that the Khatian No.100 under the erstwhile Zamindar was issued to Sania Sheikh, the predecessor of the appellants but only because of the submersion of the land by river Champabati, the khatian holder neglected to deposit the revenue and that is how the land was converted to khas. 6. In their appeal, the respondents contended that the Khatian No.100 under the erstwhile Zamindar was issued to Sania Sheikh, the predecessor of the appellants but only because of the submersion of the land by river Champabati, the khatian holder neglected to deposit the revenue and that is how the land was converted to khas. But when the land re-emerged, the successors of the khatian holders again took possession of the land and therefore they should not be treated as encroachers. Being landless people, the appellants also applied for settlement, since they were paying Touzi Bahira Revenue for possessing the govt. land. The writ petitioner was not arrayed in the proceeding before the Revenue Board. But the SDO(Civil), Bilasipara in his report projected that the appellants have failed to pay the land revenue after submerging of the land and that is why the land was converted into Govt. khas category, for default of revenue. 7. After noting the above facts, the Revenue Board quashed the eviction notice(s) issued to the respondents and directed the Deputy Commissioner, Dhubri to examine the claim of the appellants to restore their patta, through the judgment dated 14.12.2009 (Annexure-C). 8. Following the above order passed by the Revenue Board, the respondents led by Kachimuddin Sheikh (respondent No.7) filed a petition before the Deputy Commissioner on 03.04.2010 in pursuant to which, the Settlement Officer, Dhubri passed the order on 09.08.2010 (Annexure-E), whereby restoration of patta in the name of Kachimuddin Sheikh and other legal heirs of the deceased khatian holder, Sania Sheikh, was allowed subject to payment of arrear land revenue. 9. The Settlement Officer’s decision was challenged by the writ petitioner, but the Case No.91 RA(DBR)/2011 was dismissed by the Revenue Board on 26.12.2011 (Annexure-F) by observing that the Settlement Officer decided on the basis of the direction earlier issued by the Revenue Board on 14.12.2009 and therefore the appeal of the writ petitioner was not entertained by the impugned order dated 26.12.2011 (Annexure-F). 10.1 Assailing the legality of the decision of the Settlement Officer, Mr. D.K. Sharma, the learned counsel submits that the consideration for issuance of patta could not have been legitimately made by the Settlement Officer, as the exercise was to be carried out by the Deputy Commissioner and accordingly the decision of the Settlement Officer is contended to be without jurisdiction. D.K. Sharma, the learned counsel submits that the consideration for issuance of patta could not have been legitimately made by the Settlement Officer, as the exercise was to be carried out by the Deputy Commissioner and accordingly the decision of the Settlement Officer is contended to be without jurisdiction. 10.2 The learned counsel refers to the report given by the SDO(Civil), Bilasipara on 04.06.2010 (Annexure-D) to project that with the eviction of the encroachers (the private respondents), the purchaser Hazera Bewa (writ petitioner) is in possession of the land. On this basis, Mr. Sharma submits that when the claim of the appellants (respondents herein) was ordered to be considered, the competent authority should not only take into account the possession situation but should also consider the report furnished by the SDO(Civil), Bilasipara. 11.1 Representing the private respondents, Mr. S. Nath, the learned counsel fairly concedes that since direction was issued to the Deputy Commissioner by the Revenue Board, the consideration made by the Settlement Officer would be contrary to the direction issued by the higher authority. Therefore, the counsel submits that re-consideration of the matter should now be made by the Deputy Commissioner. 11.2 As regards possession, Mr. Nath asserts that the private respondents are in possession of the land after it re-emerged from the riverbed, but it is admitted that the writ petitioner too is in possession of a small portion of the disputed land. 12. The learned Govt. advocate Mr. P.S. Deka refers to the counter affidavit filed by the Addl. D.C., Dhubri on 17.05.2012 and contends that collection of Touzi Bahira fine does not confer any legal right upon the occupier of Govt. land. He also points out that the Addl. Deputy Commissioner was incidentally holding the charge of the office of the Settlement Officer, Dhubri, but of course the impugned order of 09.08.2010 (Annexure-E) was passed in the capacity of Settlement Officer and not as Addl. D.C. 13. The ownership right over the concerned land originally vested upon the erstwhile Zamindar and accordingly Lt. Sania Sheikh, the predecessor of the private respondents was issued the final Khatian No.100, under the Goalpara Tenancy Act, 1929. D.C. 13. The ownership right over the concerned land originally vested upon the erstwhile Zamindar and accordingly Lt. Sania Sheikh, the predecessor of the private respondents was issued the final Khatian No.100, under the Goalpara Tenancy Act, 1929. But when the khatian holder failed to deposit the revenue and his khatian got cancelled, the record of rights of the concerned land is to be corrected and Section 97 onwards of the Goalpara Tenancy Act provides for the manner of correction of the record of rights. But before any corrections are made, the Revenue Officer after preliminary publication of the entries, must receive and also consider the objections and the final record of rights can only be published, after due consideration and disposal of the objections. The cancellation of the khatian existing in the name of the rayat Sania Sheikh was ordered by the Revenue Officers in the land sale Case No.273/1971-72 and it is not discernible with the available material whether any opportunity was afforded to the affected party, to file their objection to correction of the revenue records. 14. On the other hand, after cancellation of khatian and declaration as Govt. khas land, the status of any occupier can be no better than that of an encroacher and in this context it must be observed that deposit of Touzi Bahira Revenue, which is nothing but a fine realized from an encroacher, will not confer any legal right on the occupier. But through a wrong interpretation, this Court in Radha Kanoo Vs. Assam Board of Revenue reported in (1994)1 GLR 122 declared that person in occupation of Govt. land by depositing Touzi Bahira fine should be categorized as occupants with implied permission of the revenue authority and they should not be condemned as encroachers. But this decision was reversed and corrected by the Supreme Court in State of Assam Vs. Radha Kanoo reported in (1996)8 SCC 692 , where the Court observed as follows:- “5. land by depositing Touzi Bahira fine should be categorized as occupants with implied permission of the revenue authority and they should not be condemned as encroachers. But this decision was reversed and corrected by the Supreme Court in State of Assam Vs. Radha Kanoo reported in (1996)8 SCC 692 , where the Court observed as follows:- “5. ………..The High Court, therefore, was clearly in error in holding that Touzi Bahira Revenue collected by mauzadar would amount to collection of revenue and that the possession of such person would not become unlawful and no action under Rule 18 is called for unless action is taken to terminate a non-existent lease or to pass any proper order and then to recover possession of lands from the encroacher in accordance with the provisions of the Assam Public Premises (Eviction of Unauthorised Occupants) Act, 1976.” 15. Thus what follows from above that collection of Touzi Bahira fine from the occupier of govt. land does not confer any legal right on the occupier and eviction of such encroachers can be ordered under Rule 18 of the Land Revenue Regulation. 16. The petitioner’s claim over the land is based upon the purchase made by her father from few successors of the khatian holder, whereas the private respondents stake their claim as the direct successors of Sania Sheikh. But the right of the khatian holder stood extinguished since 1972 when the khatian was cancelled and the land was categorized as Govt. khas land. Therefore the occupation thereafter by anyone would not be legitimate. The cause of the revenue default may have been on account of submerging of the land by the Champabati river, but when the khatian was cancelled, the re-emerged area cannot straightway be claimed by the khatian holder or his successors. If this be the status of the erstwhile khatian holder over the re-emerged land, a question also arises as to what right can be claimed by the transferee, from the diminished legal status of the khatiandar or their successors. 17. But all the above issues including the claim to settlement by virtue of possession, were required to be considered by the Deputy Commissioner as per the Revenue Board’s direction given in the Case No.80 RA(DBR)/08, but the necessary exercise was never performed by the Deputy Commissioner. 17. But all the above issues including the claim to settlement by virtue of possession, were required to be considered by the Deputy Commissioner as per the Revenue Board’s direction given in the Case No.80 RA(DBR)/08, but the necessary exercise was never performed by the Deputy Commissioner. Instead the restoration of patta to the successors of the holder of Khatian No.100 of village Kajipara Part-I of Chapar Circle, was ordered by the Settlement Officer and this according to me, was an exercise without jurisdiction. 18. Therefore the Settlement Officer’s order dated 09.08.2010 (Annexure-E) in the DKSR. 2/2009/52 is quashed. Consequently the Deputy Commissioner, Dhubri is directed to re-examine the claim of the private respondents, in pursuant to the direction given by the Revenue Board on 14.12.2009 in the Case No.80 RA(DBR)/08. But while considering the claim of the successors of the khatian holder, all relevant materials should be considered and hearing should also be afforded to both the writ petitioner and the private respondents as both claim to be in possession of the disputed govt. land. The final decision of the Deputy Commissioner will determine the respective claims of the two litigating groups, but until the matter is decided on merit, status quo be maintained by both sides without creating any 3rd party interest over the land. To facilitate the ordered exercise, the copy of this order be produced by the petitioner/private respondents and they may also put forward their respective claims within 4(four) weeks from today. The matter should then be decided expeditiously and preferably within 4(four) months thereafter. It is ordered accordingly. 19. With the above order, the case stands disposed of. No cost.