ORDER

1. Leave granted.

2. We have heard the learned counsel for the appellant. Though the respondents have been served they are not appearing either in person or through counsel. However, we have taken the assistance of Shri P.K. Goswami, learned Senior Counsel who has rich experience in this branch of law in the State of Assam. The only question is : whether the respondents have acquired any right in the land in encroachment Cases Nos. 5 of 1983 and 57 of 1986 ? Proceedings in the said case were quashed by the Guwahati High Court in Civil Rule No. 1243 of 1987 by judgment dated 26-3-1993 which is being followed in all other cases. The High Court has held that the respondents are not encroachers. Touzi Bahira Revenue is not a panel rental but the respondents having been found in possession of the land they cannot be ejected under Rule 18 of the Settlement Rules except after due ejectment in accordance with the law. The question, therefore, is : whether the view of the High Court is correct in law?

3. Shri Goswami contends that when mauzadar collects the rent from the occupants it is a collection within the meaning of Rule 39 of the executive instructions. The mauzadar, as contemplated under Rule 122 of the instructions, is enjoined to keep an account of collections and to deposit the same in the treasury once in four months. On the collections so made, the persons are entitled to remain in occupation until they are either confirmed with the lease or duly ejected in accordance with the law. The question, therefore, is : what is the status the respondents acquired under the regulation, the rules or the instructions read together ? It is seen that Section 3(b) of Assam Land and Revenue Regulation, 1886 (1 of 1886) (for short, the regulation) defines an Estate to include :

"(1) any land subject, either immediately or prospectively, to the payment of land revenue for the discharge of which a separate engagement has been entered into.

Section 12 of the Regulations gives power to the State to make regulations :

(i) for disposal by way of grant, lease or otherwise of such land,

(ii) the ejectment of any person who has entered into unauthorised occupation of such land, and

(iii) the disposal of any crop raised, or any building or other construction erected without authority on such land."

4. Rule 16 of the Rules framed under the Regulation prescribes that lease shall be issued on written application only, and no person shall enter into possession of wasteland in any area until a lease has been issued to him or otherwise a written permission by Deputy Commissioner has been granted to him, pending issue of such lease, to enter into possession. Rule 17 imposes liability to pay revenue on such settlement. Rule 17-A gives power to the Deputy Commissioner to increase or reduce at any time, either on an application or of his own, the revenue in proportion to the change in area of the lease as a result of gain by alluvion or by dereliction of a river, or loss by diluvion, during the currency of the settlement. In other words, right of entry into possession of government land is hedged with a written lease or permission by Deputy Commissioner. They are entitled to pay revenue in terms of lease or permission. Any person who enters into possession otherwise than pursuant to Rule 16 is an encroacher into government vacant land. Rule 18(1) provides thus :

"Subject as hereinafter provided, the Deputy Commissioner may eject any person from land over which no person has acquired the rights of a proprietor, landholder, or settlement-holder."

Rest of the rules are not material since they deal only with procedural aspects.

5. It is true, as pointed out by Shri Goswami that mauzadars have been given right to collect touzi of miscellaneous land revenue in the appropriate cash form prescribed in the instructions and that on collection the mauzadar is enjoined to deposit the collection so made in the manner prescribed. The question is : whether the persons