STATE OF ASSAM AND ORS.versusSMT. RADHA KANOO AND ORS. ETC.

A                       STATE OF ASSAM AND ORS.
                                         v.
                   SMT. RADHA KANOO AND ORS. ETC.

                                 MARCH 1, 1996

B               [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

          Assam Land and Revenue Regulation & Regulation 3(b ).

          Settlement Rules: Rules 16,17,17(A),18,39 and 122.

c         Assam Public Premises(Eviction of unauthorised occupants) Act,1976:      l

           State of Assam-Government waste /and-Right of entry into posses-
    sion-Necessary conditions under Rule 16-Rule 16 held mandat01y-Any
    person who enters into possession otherwise than pursuant to Rule 16 is
D   encroacher and tress passer-Such a person is liable to ejectment under rule
    !~Right of Mauzdars to collect Touzi of miscellaneous land revenue-Held
    Mauzdar is a local revenue collection agent of Government for collecting
    Revenue from a person who has lawfully entered into possession-He has no
    power to collect revenue from a tresspasser nor does it bind the Govem-
    menl'-Administrative instructions issued to the Mauzdars for revenue col/ec-
E   tion do not override the statutory regulations and rules.

          Administrative Law-Executive instructions cannot override statutory
    provisions.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4484 Of
F   19% Etc.

          From Judgment and Order dated 26.3.93 of the Assam High Court
                                                                                       r
    in C.R. No.1243 of 1987.

          S.N. Chowdhary, S.A. Syed for the Appellants.
G
         P.K.Goswami, Rajiv Mehta, Kailash Vasdev and Sanjay Parikh for
    the Respondents.

          The following order of the Court was delivered :

H         Leave granted.
                                        178
                      STATEv. RADHAKANOO                               179

      We have heard the learned counsel for the appellant. Though the A
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 wno 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 Case No.5/83 and B
57/86? Proceedings in the said case were quashed by the Guwahati High
Court in Civil Rule No.1243/87 by judgment dated March 26, 1993 which
is being followed in all other cases. The High Court has held that the
respondents are not encroachers. Touzi Hahira 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 C
ejectment in accordance with the law. The question, therefore, is: whether
the view of the High Court is correct in law?

       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 D
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 E
under the regulation, the rules or the instructions read together? It is seen
that Regulation 3(b) of Assam Land and Revenue Regulation (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         F
        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,                                                                 G
            (ii) the ejectment of any person who has entered into un-
        authorised occupation of such land, and

            (iii) the disposal of any crop raised, or any building or other
        construction erected without authority on such land."               H
    180                   SUPREME COURT REPORTS                   (1996] 3 S.C.R.

A         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 waste land 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 lo pay revenue on such settlement. Rule 17(A) gives
B
    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 Govt. land is hedged with a
C   written lease or permission by Dy. 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 Govt.
    vacant land. Rule 18(1) provides thus:

D            "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.
E
          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
F   prescribed. The question is: whether the persons who enter into possession
    otherwise than in accordance with Rule 16 would be recognised to be a
    person to have duly entered into possession of the Govt. waste land and         r
    thus entitled to be recognised in touzi possession of the land, even though
    they may have paid revenue to mauzadars? The mauzadar as an agent of
    the Govt. cannot clothe himself with any higher right than. is given as an
G   agent to collect revenue on behalf of the Government and has no power
    to create any right under Rule 16. His collection of land revenue from
    persons other than those covered by Rules 16, 17 and 17A would not confer
    any right on such persons in unauthorised occupation. At best such collec-
    tion must be only illegal collection and it does not bind the Government.
H   A reading of Rule 16 clearly indicates its mandatory character. The person
                          STATEv. RADHAKANOO                            181

is entitled to enter into possession in two characters, namely, settlement of A
a written lease granted by the Dy. Commissioner pursuant to a written
application; or by a written. permission given by the Dy. Commissioner
pending settlement. lri either of the events, a person is entitled to enter
into possession of Government waste land and from such person the
mauzadar is entitled to collect the revenue, as contemplated in terms of B
lease. Since rule 17 or 17A gives express power to the Dy. commissioner
either to increase the revenue as specified in the lease or to reduce the
revenue, as circumstances warrant under rule 17A this would indicate that
the mauzadar is a local revenue collection agent of the Government to
collect revenue only in respect of the persons who rightly and lawfully
entered into possession of the lands pursuant to orders in Rule 16. No C
other person has got any legitimacy to make any payment to the mauzadars.
Nor Mauzadar has any power to collect such land revenue from the
trespasser; nor shall it bind the Government which is contrary to the
provisions of Rule 16. Any other interpretation would be clearly repugnant
to the scheme of the relevant provisions of the Regulation and the Rules. D
The administrative instructions issued to the mauzadars for revenue collec-
tion do not override the statutory operation of the Regulation and the
Rules nor do they give legitimacy to illegal acts of mauzadar for which he
would be liable to disciplinary action. 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 E
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 encroacher in
accordance with the provisions of the Assam Public Premises (Eviction of
Unauthorised Occupants) Act, 1976.                                             F

         The appeal is accordingly allowed but in the circumstances without
costs.

         C.A. Nos. (@ SLP (C) Nos. 548/95 and 14121/94/96)
                                                                              G
      With regard to other cases, we think that since it is only an interim
order passed by the High Court and no reasons have been recorded on the
nature of the possession of the respondents, the matter is remitted to the
Dy. Commissioner concerned. He would issue notice to the respondents
and after considering their objections, decide whether they have any right H
    182                  SUPREME COURT REPORTS                 [1996] 3 S.C.R.

A acquired under Rule 16, as held in this order and then to take action
    accordingly. The order of the High Court is set aside. Similarly in Civil
    Appeal @ S.L.P. (C) 14121/94, the matter is remitted to the Deputy
    Commissioner conerned who would give notice to the respondents, decide
    whether their possession is in accordance with Rule 16 and would then take
    action thereon.
B
          The appeals are accordingly allowed. No costs.

    T.N.A.                                                   Appeals allowed.
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