Orissa High Court
Dibakar Rout vs State Of Odisha & Ors. .... Opposite ... on 25 April, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-May-2025 19:35:07
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28067 of 2019
and
W.P.(C) No. 28066 2019
(In the matters of petitions under Articles 226 and 227 of the
Constitution of India, 1950).
(In W.P.(C) No.28067 of 2019)
Dibakar Rout .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner (s) : Mr. H.M. Dhal, Sr. Adv.
Along with Associates
-versus-
For Opp. Party(s) : Mr. Sonak Mishra, ASC
Mr. H.N. Mohapatra, Adv.
(In W.P.(C) No.28066 of 2019)
Pabitra Mohan Sahoo .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner (s) : Mr. H.M. Dhal, Sr. Adv.
Along with Associates
-versus-
For Opp. Party(s) : Mr. Sonak Mishra, ASC
Mr. H.N. Mohapatra, Adv.
Page 1 of 13
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 05-May-2025 19:35:07
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATES OF HEARING:-12.02.2025
DATE OF JUDGMENT:-25.04.2025
Dr. S.K. Panigrahi, J.
1. Since common questions of fact and law are involved in the above- mentioned Writ Petitions, the same were heard together and are being disposed of by this common judgment. However, this Court finds it appropriate to treat W.P.(C) No.28067 of 2019 as the leading case for proper adjudication of these matters.
2. The Petitioner in W.P.(C) No.28067 of 2019 challenges the orders passed by the Opposite Party Nos.2 to 4 directing his eviction, alleging that they are illegal, arbitrary, and contrary to the provisions of the Orissa Prevention of Land Encroachment Act.
I. FACTUAL MATRIX OF THE CASE:
3. Succinctly put, the facts of the case are as follows:
(i) An encroachment proceeding was initiated against the petitioner by the Tahasildar, Opposite Party No. 4, in exercise of powers under Sections 4 and 6 of the Orissa Prevention of Land Encroachment Act (hereinafter referred to as "the OPLE Act"), which was registered as Encroachment Case No. 2 of 2019-20.
(ii) Pursuant thereto, a show-cause notice was issued to the petitioner, calling upon him to explain why he should not be evicted from the land situated in Mouza-Godijharia, Khata No. 227, Plot No. 196, Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 measuring 0.09 acres. It was alleged that the said plot was government land and that the petitioner was in unauthorized occupation thereof.
In response, the petitioner submitted his reply.
(iii) In the said reply, the petitioner contended that his ancestors had been in possession of the plot for over 50 years, during which period the land was barren and uncultivated. Upon their demise, the petitioner continued in possession. It was further averred that the petitioner is a landless person as defined under Section 3(a-1) of the OPLE Act, earns his livelihood through daily wage labour, and has been issued a Labour Card by the competent authority. The land was classified as Abada Jogya Anabadi land. In view of his long-standing possession and status as a landless person, the petitioner sought settlement of the plot under Section 8-A of the OPLE Act. A separate application under the said provision was also filed in that regard.
(iv) The petitioner further submitted that an earlier Lease Case No. 188 of 1987 was initiated at the instance of one Pravati Dei, wife of Late Bauribandhu Sahoo of Village Godijharia, who had sought settlement of land in her favour on the ground of being landless and a green card holder. Pursuant to an enquiry, a report was submitted by the local Revenue Inspector and Amin, though it related to Hal Khata No. 227, Hal Plot No. 143. Nonetheless, lease was granted to Smt. Pravati Dei in respect of a portion of Plot No. 196 under Khata No. 227. The present proceeding concerns the remaining portion of the same plot. The lease order in favour of Smt. Pravati Dei was passed on 17.10.2017, nearly three decades after the original application.
Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07
(v) The petitioner asserted that he would establish continuous possession for over 30 years during the course of the proceedings, and reiterated his eligibility for settlement of the land.
(vi) The Tahasildar, by order dated 26.07.2019, directed eviction of the petitioner. A notice under Section 7(1) of the OPLE Act was thereafter issued, requiring the petitioner to vacate the land within 30 days.
(vii) Aggrieved, the petitioner preferred an appeal before the Sub-Collector, Athagarh, which was registered as Encroachment Appeal No. 1 of 2019. The Sub-Collector dismissed the appeal and confirmed the eviction order by order dated 09.10.2019.
(viii) Challenging the said order, the petitioner filed a revision under Section 12(2) of the OPLE Act before the Collector, Opposite Party No. 2, which was registered as OPLE Revision No. 64 of 2019. However, the revision was initially neither admitted nor listed for admission or stay, prompting the petitioner to approach this Court by filing W.P.(C) No. 22540 of 2019. By order dated 21.11.2019, this Court stayed the eviction, and the said interim order was extended on 12.12.2019.
(ix) Subsequently, the revision petition was formally registered and listed for hearing on 22.01.2020. However, in light of the interim order dated 12.12.2019, the Collector issued a notice to the petitioner on 13.12.2019, advancing the date of hearing to 18.12.2019.
(x) On 18.12.2019, the petitioner's counsel appeared and the revision was heard on the questions of admission and stay. By order of the same date, the Collector dismissed the revision without recording detailed reasons. While doing so, the Collector directed the Tahasildar to Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 dispose of the petitioner's pending application under Section 8-A of the OPLE Act within seven days.
(xi) Prior to dismissal, the Collector had called for para-wise comments from the Tahasildar. Although such comments were submitted, no copy was furnished to the petitioner. The revision was dismissed without admission, albeit reiterating the direction to dispose of the petitioner's application under Section 8-A within a week. II. PETITIONER'S SUBMISSIONS:
4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions.
(i) The petitioner submitted that an application under Section 8-A of the OPLE Act could have been considered only during the course of proceedings initiated under Sections 4, 6, 7, or 8 against a person found to be in unauthorized occupation. However, the Collector had failed to consider this procedural framework in its entirety. Although the Collector directed the Tahasildar to consider the petitioner's application under Section 8-A, he did not set aside the orders passed by the Tahasildar or the Sub-Collector, thereby rendering proper consideration of the application ineffective. This procedural lapse rendered the revisional order liable to be set aside.
(ii) It is undisputed that the Tahasildar did not advert to or examine the petitioner's Section 8-A application, as evident from the order dated 26.07.2019. Since the application had not been considered, relevant factors such as eligibility, duration of occupation, and statutory criteria remained unexamined. Consequently, the Revisional Authority's Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 conclusion that the petitioner's claim of 30 years' possession was unfounded was arbitrary and unsupported by the record.
(iii) The suit land stood recorded as Abada Jogya Anabadi (Patita), and thus was leasable. A portion of the same land was leased to Smt. Pravati Dei, although she had not specifically applied for that portion. This fact was brought to the notice of the Revisional Authority, but was not taken into account. There was no cogent reason to deny similar treatment to the petitioner, especially since another part of the same plot had already been regularized in favour of a third party.
(iv) The petitioner was issued a show-cause notice dated 08.07.2019, requiring him to submit a reply by 16.07.2019. He duly appeared through counsel and filed his reply on that date. A notice for personal appearance was thereafter issued for 26.07.2019. On the very same day, the eviction order came to be passed.
(v) In his show-cause reply, the petitioner had admitted possession of the suit land. While the authorities relied upon this admission, it was submitted that such possession was a precondition for invoking Section 8-A, and could not be held against the petitioner. Nevertheless, the eviction order was passed on the same day the petitioner appeared, i.e., 26.07.2019, depriving him of adequate opportunity to produce supporting evidence. This undue haste rendered the proceedings arbitrary and contrary to the ratio laid down in Mrutunjaya Nayak v. State of Orissa1.
1 2016 (I) OLR 794.
Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07
(vi) It was further submitted that the Revisional Authority had erroneously proceeded on the assumption that this Court in W.P.(C) No. 7887 of 2019, had directed the Tahasildar to evict the petitioner. In fact, the said writ petition had been filed by Smt. Pravati Dei, and the order therein merely directed initiation of OPLE proceedings after affording an opportunity of hearing to all concerned. The petitioner had not been a party to that case, and the said order could not form the basis for directing his eviction.
(vii) The Collector dismissed the revision petition at the admission stage, without issuing notice to the Tahasildar or calling for the lower court records, and despite the pendency of W.P.(C) No. 22540 of 2019 filed by the petitioner challenging the non-registration of the revision. Although this Court had directed the State counsel to obtain instructions, the Revisional Authority declined to admit the revision, contrary to settled procedural norms. This deviation vitiated the revisional order.
(viii) It was submitted that the eviction order dated 26.07.2019 was passed in undue haste, without affording the petitioner reasonable opportunity of hearing, and without consideration of the application under Section 8-A. The said order, therefore, was unsustainable in law and contrary to the principles laid down in Mrutunjaya Nayak (supra).
III. SUBMISSIONS OF THE OPPOSITE PARTIES:
5. Per contra, the learned counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: Page 7 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07
(i) The Tahasildar, being a public authority under the Orissa Prevention of Land Encroachment Act, 1972, is entrusted with the duty of safeguarding Government land. In compliance with the order dated 24.04.2019 passed in W.P.(C) No. 7887 of 2019, Encroachment Case No. 2 of 2019 was initiated against the petitioner for unauthorized occupation and eviction.
(ii) Encroachment Case No. 2 of 2019, relating to Plot No. 196 under Khata No. 227 of Mouza-Godijharia, was initiated on the basis of a report by the Revenue Inspector dated 05.07.2019 in Form 'G', which indicated that the petitioner had been in unauthorized occupation of the Government land for the preceding 12 years. Though the petitioner claimed that his family had been in possession for over 50 years, the Tahasildar found no supporting evidence. On the contrary, the petitioner had previously acknowledged encroachment by payment of rent and penalty. The claim of 30 years' continuous possession was not accepted. His invocation of Section 8-A of the OPLE Act, based on alleged long possession, was considered to be a misrepresentation and was accordingly rejected.
(iii) It was further submitted that the petitioner is not a landless person, as he is in possession of several properties, including homestead and agricultural lands recorded in the name of his deceased father, Gurubari Rout. The landholding details are as follows:
a. Mouza Bhiruda, Khata No. 270:
Plot No. 3389 (Ac. 0.08 dec., Sarad-II) Plot No. 2846 (Ac. 0.02 dec., Gharabari) Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 b. Khata No. 324 (Jointly with Ghana Rana):
Plot No. 3363 (Ac. 0.15 dec., Sarad-I) c. Khata No. 410 (Jointly with Joginath Rout): Plot Nos. 3361 and 3362 (Ac. 0.19 dec. and Ac. 0.17 dec., Sarad-I) d. Khata No. 411 (Jointly with Joginath and Baishnab Rout): Plot Nos. 3342 and 5508 (Ac. 0.47 dec., Sarad) e. Khata No. 412 (Jointly with Joginath and Baishnab Rout): Total Ac. 2.67 dec., with exclusive possession over: Plot No. 3876 (Ac. 0.03 dec., Biali) Plot No. 2848 (Ac. 0.04 dec., Gharabari) Plot No. 2850 (Ac. 0.01 dec., Gharabari) Plot No. 260 (Ac. 0.16 dec., Sarad Do Fasal-II) Plot No. 338 (Ac. 0.07 dec., Sarad Do Fasal-II)
(iv) The petitioner claimed to be using the disputed land (Ac. 0.09.6 Kadi, classified as Patita) as part of his Bari (homestead extension).
However, since he owns land exceeding Ac. 0.04 dec., he is not eligible for settlement under applicable Government norms. His claim of adverse possession is also untenable in light of his prior payments of rent and penalty, which negate the plea of hostility.
(v) It was further submitted that Smt. Pravati Dei, a landless widow, had applied for settlement of Government land under Khata No. 227, Plot No. 143. Pursuant to a report submitted by the Amin, she was granted a lease in respect of Plot No. 196 under the same Khata. The lease was Page 9 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 duly confirmed by the Sub-Collector, Athagarh, and the allegation of fraud or irregularity in its issuance was therefore unfounded.
(vi) The petitioner's appeal before the Sub-Collector, Athagarh in Appeal No. 1/2019 was duly considered and dismissed on 09.10.2019. The order passed by the Tahasildar was found to be in accordance with law and based on the materials on record.
(vii) Encroachment Case No. 2/2019-20, along with other similar proceedings, had been initiated pursuant to the directions of this Court in W.P.(C) No. 7887 of 2019. Upon detection of unauthorized encroachments, eviction proceedings were undertaken to clear the land for settlement in favour of Pravati Dei. The petitioner was found ineligible for settlement, and eviction orders were accordingly passed.
(viii) During the proceedings, the petitioner admitted to unauthorized occupation of Government land for 12 years and acknowledged the payment of rent and penalty. However, he failed to substantiate his claim of 30 years' continuous possession. The orders passed by the Tahasildar and the Sub-Collector were, therefore, in conformity with law and deserved to be upheld.
IV. EXAMINATION OF THE LEGAL MATRIX:
6. Heard learned counsel for the Parties and perused the materials placed on record.
7. The principal contention advanced by the petitioner relates to his alleged entitlement to settlement of the disputed land under Section 8-
A of the Orissa Prevention of Land Encroachment Act, 1972. Page 10 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07
8. Section 8-A of the Orissa Prevention of Land Encroachment Act, 1972 provides for settlement of land in cases of encroachment for more than thirty years. For clarity, the provision is reproduced below:
"8A. Settlement of land in cases of encroachment for more than thirty years.
(1)Where in the course of any proceeding instituted under Sections 4, 6, 7 or 8 against any person unauthorisedly occupying any land it is proved by such person that he has been in actual, continuous and undisputed occupation of the land for more than thirty years by the date of institution of the proceeding, the Tahasildar shall refer the case to the Sub-divisional Officer.
(2) On receipt of a reference under Sub-section (1) the Sub-
divisional Officer shall give the Department of the State Government (other than the Revenue Department) to which the land belongs, an opportunity to show cause against the settlement of the land and may make such further enquiry as he deems necessary.
(3) If after making such enquiry the Sub-divisional Officer is satisfied that such person has been in such occupation of the land as aforesaid, he may by order, settle the land with him and every such settlement shall be subject to such conditions, regarding assessment and payment of rent (including arrears of rent) as may be prescribed by rules made under this Act."
9. A plain reading of the provision makes it evident that the burden lies on the encroacher to establish actual, continuous and undisputed possession of the land for more than thirty years. The Tahasildar is not obligated to refer the matter unless this condition is first satisfied by credible evidence.
10.It is equally imperative to consider the definition of a "landless person"
under Section 3(a-1) of the OPLE Act, which reads as follows: Page 11 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 "3. (a-1) "Landless person" means a person, the total extent of whose land excluding homestead together with lands of all the members of his family who are living with him in common mess, is less than one standard acre and whose total annual income of all the members of his family who are living with him in common mess, does not exceed rupees six thousand and four hundred or an amount which the State Government may, by notification from time to time, specify in that behalf."
In the instant case, the petitioner has neither proved his continuous possession for thirty years nor does he fall within the statutory definition of a landless person.
11.A perusal of the material on record reveals that the petitioner or his family members hold substantial agricultural and homestead land across several plots. Thus, the statutory precondition for seeking settlement under Section 8-A is clearly not satisfied.
12.Further, the materials on record indicate that Encroachment Case No. 2 of 2019-20 was initiated based on a survey report and pursuant to the directions of this Court in W.P.(C) No. 7887 of 2019. The petitioner was issued due notice, participated in the proceedings, and an order of eviction was passed after consideration of his reply.
13.It is relevant to note that the petitioner had previously acknowledged his encroachment by way of payment of rent and penalty, thereby undermining any claim of adverse possession. Additionally, the argument that a lease was granted to one Smt. Pravati Dei in respect of a portion of the same plot does not assist the petitioner's case, as the circumstances and eligibility of the said beneficiary were Page 12 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 05-May-2025 19:35:07 independently examined and found to be in accordance with the applicable policy for landless persons.
14.Upon a holistic appraisal of the matter, this Court finds no illegality or procedural infirmity in the initiation of eviction proceedings or in the orders passed by the authorities concerned. The Tahasildar, Sub- Collector, and Collector have acted well within their jurisdiction and in due compliance with the provisions of the OPLE Act. The petitioner's claim for settlement under Section 8-A stands unsubstantiated and is unsustainable both on facts and in law. V. CONCLUSION:
15.In view of the foregoing analysis, this Court finds that the petitioner has not been able to establish either uninterrupted possession of the disputed land for the requisite period or his qualification as a landless person under the OPLE Act.
16.The proceedings undertaken by the authorities are found to be legally sound, procedurally fair, and based on a proper appreciation of the materials on record. There is, therefore, no justification to disturb the orders impugned in the present Writ Petitions.
17.Accordingly, both the Writ Petitions stand dismissed.
18.Interim order, if any, passed earlier in any of the above-mentioned Writ Petitions stands vacated.
(Dr. S.K. Panigrahi Judge Orissa High Court, Cuttack, Dated the 25th April, 2025/ Page 13 of 13