K. Lahiri, J.:— The expressions “Rule of law” connote the undisputed supremacy of law, envisages a state of thing in which everyone respects the law and where law has to be followed by everyone collectively and individually. This supremacy of law over all is designed to give security to the rights of the individuals or the citizens of a democratic State. One of the facets of the “Rule of law” is the subjection of the Govt. and the executive Officers of the State to the law.

2. Indeed, the petitioner is a poor person, who started a tea stall in the verandah of the office of the Superintendent of Police, Kamrup, to cater the needs of the Policemen, members of the Public add others. This he did openly, in broad day light and with permission from the authorities. Who dares to be in the police office, trespass upon a verandah and open a canteen where police force was standing by? All enjoyed the services rendered by the petitioner so much so that in 1974 the thin Superintendent of Police permitted the petitioner to use the verandah not as a permissive occupier but as “a tenant” on payment of rent of Rs. 30/- per month, which the petitioner paid and the receipts are before us. When improvements were necessary, the petitioner asked for the permission from the Superintendent of Police, to improve the structures, put up corrugated iron sheets over the shed at his own cost, he was permitted to make the construction but had to pay an enhanced rent of Rs. 50/- per month. It turned out to be a case of landlord and tenant, the receipts and necessary documents of the arrangements are before us. Nay, not only that, the petitioner desired to ensure the stability of the stall by constructing 3 Reinforced Cement Concrete Pillars to protect the building from the revages of the Brahmaputra, which runs close by. He was permitted to construct the pillars for which he invested a sum of Rs. 12,000/-. To make it self-contained the petitioner desired to have water connections from the Municipality Main, paid alt costs and constructed a reservoir for storage of water. All those officials in and around the police office were wide awake, saw the constructions, received rents, allowed the petitioner to run the stall. Several institutions, apart from the Office of the Superintendent of Police, Kamrup, were catered by the tea stall including the Gauhati Municipal Corporation, the Gauhati Treasury, Office of the P.I connected with the Courts affairs, Mahkuma Parishad and others. The parcel of land in occupation of the petitioner is precisely 1152 sq. ft. That the petitioner is in occupation of the area measuring 8 lechas is clearly found from the Govt. records produced before us. It also appears therefrom that the petitioner was in possession of the land for about 10 to 12 years. We also find that the petitioner was possessing the same by running a tea-stall. All these are there in the revenue records of the Government, produced before us.

3. One fine morning the petitioner was served with a notice that he was to quit the place, lock, stock and barrel, as it was desired by the S.D.O Sadar, Gauhati that he should vacate the land. The notice was purported to be under Rule 18(2) of the Settlement Rules framed under the Assam Land and Revenue Regulation, 1886. The contents of the notice read as follows:—

“It has been learnt from the report of the Sub-Deputy Collector that you have occupied Govt. land described in the Scheduled below without any permission. Therefore, it is hereby ordered that you are to vacate the land forthwith on receipt of this notice. Otherwise you will be forcibly evicted.

Schedule:

8 lessas of land of Gauhati town under Ulubari Mouza of Block No. 4 in Dag No. 2538.”

[Emphasis added]

The petitioner alleges that it was served in the afternoon of 29.5.82 (Saturday), and, the demolition squad of the authorities took a quick silver action of destroying bis structures on the next date (Sunday), and, forcibly ousted him from his tea stall. However, some utensils and materials are still there at the site of bis demolished stall.

4. The petitioner has come up before this court under Article 226 of the Constitution for appropriate reliefs. In this application, the petitioner has claimed the actions of the Respondents as illegal, void, without jurisdiction, violative of “rule of law” and the provisions contained in Rule 18(2) of “the Settlement Rules”, framed under the Assam Land and Revenue Regulation, 1886.

5. A drastic action has been taken by an Executive Officer of the Govt. by way of demolition of the property belonging to the petitioner in which he was in occupation for the last 10 to 12 years. When any citizen complains that his civil right has been affected by an illegal act of an Executive Officer, it is the obligation for the State to point out the specific rule of law which authorises the act.

6. In the instant case the crucial question is whether the executive action taken in this case by the respondents was destructive of the basic principles of the rule of law or not. No return has been submitted by the Respondents, although all of hem received notice of the Rule issued by the Court. However Mr. P.K Roy, learned counsel has appeared on behalf of the Respondents. As there is “no return” “no contest”, we can declare the impugned acts to be illegal, void and without jurisdiction because none of the contentions of the petitioner has been refuted by the Respondents. However, we propose not to dispose of the matter in a summary manner for the simple ‘reason that we have noticed that the Executive Officers are using Rule 18 as a weapon of attack to destroy the Civil rights of the citizens by taking eviction proceedings even against persons who have established right, title and interest in the properties.

7. Let us proceed to consider the nature and quality of the right of the petitioner over the land. Was he a tres-passer? Did he enter upon the property surreptitiously, without any leave or permission from anybody? The facts revealed from the petition clearly establish that the pstitioner entered upon the property with clear permission from the Supdt. of Police, Kamrup, started his tea stall, made constructions and improved the same by making permanent constructions. The occupation was noticed by the Revenue Officers who recorded it in their official records. Rents were accepted by the Supdt. of Police and the petitioner paid the same as demanded. It was nothing but rent. Was he an unauthorised occupant? He was authorised and permitted by the person-in-charge of the police office to possess the parcel of land, make constructions thereon, including the constructions of the pillars to protect the building. Whatever the petitioner did were all done openly and nobody raised objection to the constructions made. Nobody objected to his use and occupation of the shop in the manner used by him for about 10 to 12 years. It is impossible to hold that he was an “unauthorised occupier” of the land. He entered upon the land with clear permission from the authority, continued to remain as such with the permission, paid rent for the same, constructed structures. He has had right, title and interest in the property and anybody disputing the same could do it in an appropriate court of law. However, it appears that the actions were sought to be taken U/s. 18(2) of the Settlement Rules. Rule 18(2) of “the Rules” reads as follows:

“18. EJECTMENT—(1) Subject as herein after 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.

(2) When such person has entered into possession of land that has previously been reserved for roads or roadside lands or for the grazing of village cattle or for other public purposes, or has entered into possession of land from which he has been excluded by general or special orders and when, further, there is no bonafide claims of right involved, he may be ejected or ordered to vacate the land forthwith, and the Deputy Commissioner may sell, confiscate or destroy any crop raised, or any building or other construction erected, without authority on the land”

8. To exercise powers under Rule 18(2), the conditions precedent of the said sub-rule must be present to enable the authority to take up ejectment proceedings. We have repeatedly asked Mr. Roy, learned Govt. Advocate as to whether the parcel of land was ever reserved for road, road-side land, grazing of village cattle or other public purposes. The positive answer to the question is that the plot of land was never so reserved for any of the purposes. We have asked whether the petitioner entered into the land from which he had been evicted by general or special order. The answer of the learned Govt. Advocate is in the negative. Therefore, apparently this is not a case where the authorities could eject the petitioner in execise of the powers unders Rule 18(2) of “the Rules”. Rule 18(2) is not a weapon of assault on the poor and weak, to destroy their property without affording them any reasonable opportunity.

9. We make it very clear what Rule 18(2) is a lethal weapon or a summary remedy which can be resorted to by the authority when a person has entered into possession of land that has been previously reserved for roads, roadside lands or grazing of village cattle or for other public purposes or has entered into possession of land from which he has been excluded by gereral or special orders. However, the remedy cannot be resorted to when there is a bonafide claim of right involved. If the authority finds that these conditions have been fulfilled it may take resort to Rule 18(2). If we carefully note, it appears that Rule 18(2) refers to public properties or property used or to be used by the public at large and in the public interest the lands specified rn the Rule have been made the subject matters of eviction. While construing the provisions of Andhra Pradesh Land Encroachment Act, 1905, their Lordships have expressed similar view of Govt, of Andhra Pradesh v. Bandi Venkatarama, (1982) 2 SCC 134 : AIR 1982 SC 1081. We, therefore, declare that the recourse to summary remedy of eviction can be resorted to under Rule 18(2) only in respect the lands specified in Sub-rule (2) of Rule 18. In the instant case the respondents have failed to show that the land from which the petitioner has been evicted is one of such lands as described in Rule 18(2). As such, we have no hesitation in declaring the eviction proceedings void abinitio.

10. There is a mistaken belief that the authority is competent to eject any person from any Govt. land under Rule 18(2). A person can be evicted under Rule 18(2) from the specific lands enumerated therein and not from any and every land belonging to the Govt. and/or any other authority. The intention of the Rule making authority in specifying the lands used for public purposes or reserved for public purposes have been mentioned and they do not include khas lands or lands belonging to the Govt. or other local authorities. The nature and character of the lands clearly indicate that “forthwith eviction” is called for, if a person enters into possession of lands described in Rule 18(2).

11. In our opinion, before an authority takes a summary eviction proceeding it must consider whether there exists any bonafide claim of right of the possessor or the occupant. The rule-making authority itself considered that even in such lands there might be bonafide claim of right of the possessor, and, accordingly made it a condition that only where there exists on bonafide claim of right the authority can exercise power under Rule 18(2). While serving notice, it is desirable for the authority to consider the nature of the claim of the occupier or possessor, before taking summary action under Rule 18(2). In the instant case, it appears from the revenue records that the petitioner was in continuous possession of the land for the last 10 to 12 years and he had a tea stall. A summary enquiry would have revealed that the petitioner was authorised to construct the stall, that the petitioner was permitted to run it by the Superintendent of Police, that the petitioner had constructed structures and other constructions openly. Therefore, the petitioner bad a strong claim to continue in possession and it was surely a bonafide claim of right. These apart, continuous occupation or possession by the petitioner and openly running a tea stall in the Verandah of the office without any let or hindrance by the authority for 10/12 years, rather with their permission which clearly show that the petitioner was a permissive occupier and has had possessory right. By virtue of his long possession he acquired some right, be paid rent, made with the permission of the authorities. All these facts show the existence of bonafide claim of right of the petitioner. Under these circumstances, no action could be taken by the authorities. In the instant case, the authorities could have taken resort to some other provisions of the law, or, should have taken resort to some other law or could have gone to the civil court and could have obtained the relief asked for. We are positive and hold that on the facts and circumstances of the case the petitioner has had bonafide claim of right in the property and the authority had no jurisdiction to evict him under Rule 18(2) of “the Rules”.

12. If we turn to the notice served on the petitioner extracted in paragraph 2 of the Judgment, we find that it was described as “a Govt. land” and nothing more. Therefore, admittedly it was only a Govt. land but not the specific lands described in Rule 18(2). As such, the notice is invalid. Secondly, we find in the notice that the petitioner had entered into possession of the land without permission. The undisputed documents produced before us clearly show that the petitioner had entered into possession of the land with due permission from the authority and continued to remain there with their permission. We do not find anything in the notice to show that the authority ever considered the bonafide claim of right of the petitioner, which admittedly the petitioner had, and, accordingly, we declare the notice as invalid and quash it.

13. In a summary proceeding under Rule 18, the authority is not to adjudicate any complicated question of possessory right or title of the occupant. If it finds that there exists a semblance of claim of bonafide right, it should not proceed under Rule 18(2). While considering the bonafide claim of right, the authority should consider the duration of the occupation of the land by the occupant, the nature of the property on which the encroachment is alleged to have been committed and whether the claim of the occupation or possession is malafide or bonafide. When a property is occupied or possessed by a person, the authority competent to take action under Rule 18(2) should not shut its eyes to the existing facts revealed from the records. If an occupant openly makes construction, his acts might create a bonafide right, title or interest in the property. The duration of occupation is undoubtedly a relevant factor when the occupation is open and for an appreciable length of time. When some right to occupy in favour of the occupant is detected, it requires an impartible adjudication according to the established procedure of law. The length of possession, the nature of the open acts of possession, construction of the structures and dealing the property as his own certainly created a bonafide right in his favour. Such cases should go to the civil court for adjudication or the authorities may take resort to the other provisions of law or take resort to some other law.

14. Before parting, we would observe that when there are permanent constructions, as in the present case, it is highly undesirable to grant the occupier only few hours time to remove the structure. It is unbelievable but true that the petitioner was asked to remove his structures and constructions (R.C.C Constructions) within a matter of 24 hours. It was done knowing fully well that it would be impossible for the petitioner to remove them. The duration of the notice to remove the properties, on the facts and circumstances of the case, was unjust, improper, illegal and violative of all canons of justice, equity and fair play.

15. For the foregoing reasons we hold that the act of eviction is void, illegal, without jurisdiction and without any authority of law. The acts and actions arising out of the eviction proceedings are declared to be void and illegal.

16. Now comes the question of relief. The petitioner claims that at the site there are some properties of the petitioner. Mr. Roy, learned Govt. Advocate orally submits that the petitioner was evicted lock, stock and barrel and there is no property of the petitioner. When the court declares an act of the Executive Officer to be arbitrary, illegal, void and without jurisdiction, is it powerless to grant appropriate relief to the party? In our opinion, a party evicted by an illegal order is entitled to all relief and assistance from the court system that we have in a democratic country like India. We are of the firm opinion that we can direct restoration of possession of the property/from which the petitioner was evicted without any authority of law. Under similar circumstances, in Civil Rule 634 of 1975, S.R Narman v. State of Tripura decided on 15.6.1976, this court restored possession of the land and house to the petitioner after declaring the acts and actions of the authorities void and illegal. In Wire-Netting Stores v. The Delhi Development Authority, (1969) 3 SCC 415, their Lordships have held that when the procedure laid down in the law is not complied, the acts ultra-vires and invalid having declared similar acts as invalid their Lordships restored possession of the premises, the subject matter of the action, to the petitioner with a positive and affirmative direction that the machinery and other goods and parts of the factory seized should be returned to the petitioner. We extract the precise observations of their Lordships:

“This is contrary not only to the law laid down but also to the principles of natural justice. In these circumstances, we have no option but to allow the petition. The action of the Authority appears to have been most highhanded on the facts of the case as brought out before us. If the Authority wished to evict the petitioners from the occupation of these premises it behaved them to follow strictly the procedure laid down for their action. It is a matter of great regret that authorities constituted to take such drastic steps without recourse to civil court should be so oblivious to their own duties as laid down in the Act. We accordingly allow the petition add order the restoration of the premises to the petitioners and return of all the machinery and other goods and parts of their factory which have been seized from them.”

17. Accordingly, we restore possession of the property to the petitioner and direct the respondents to hand over possession of the land to the petitioner as well as the property seized or taken during the eviction proceedings. Mr. Roy, learned Govt. Advocate submits that it is a proper case where the respondent should be directed by this court to take action under the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. We are not inclined to express any opinion but state this much and no further that it is entirely for the respondents to take any such action, if they are so advised.

18. In the result, the petition is accepted. The eviction proceeding including the impugned notice are declared ultra-vires, invalid and void. We direct restoration of possession of the land and the tea-stall to the petitioner. We award just a token cost of Rs. 1000/- against the respondents.