Orissa High Court
Md. Hasam Khan vs State Of Odisha & Ors. .... Opposite ... on 31 October, 2025
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2025 16:03:14
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14868 of 2022
along with batch of cases
(In the matters of petitions under Articles 226 and 227 of the
Constitution of India, 1950).
(In W.P.(C) No.14868 of 2022)
Md. Hasam Khan .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner (s) : Mr. Goutam Mukharjee, Sr. Adv.
Along with Associates
-versus-
For Opp. Party(s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATES OF HEARING:- 19.09.2025
DATE OF JUDGMENT:- 31.10.2025
(W.P.(C) No.14868 of 2022 along with W.P.(C) Nos.14867 of 2022
and 14870 of 2022)
Dr. Sanjeeb K Panigrahi, J.
1. Since common questions of fact and law are involved in the above- mentioned writ petitions, those were heard together and are being disposed of by this common judgment. However, this Court deems it appropriate to treat W.P.(C) No. 14868 of 2022 as the lead case for the purpose of adjudication.
Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14
2. The petitioners in the present Writ Petition have challenged the order/notice dated 06.06.2019 issued by the Sub-Collector, Malkangiri, purportedly under Rule 12(a)(3) and Rule 10 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, as well as the notice issued under Section 6(1) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
I. FACTUAL MATRIX OF THE CASE:
3. Succinctly put, the facts of the case are as follows:
(i) In 1920, Maharaja Vikram Dev granted a parcel of land measuring Ac.
360 situated in Mouza Baribancha by issuing a ROR in favour of the petitioners' father, late Md. Ismail, who was earning his livelihood by foraging in the adjoining forest.
(ii) In 1973, the Government of Odisha issued an ROR in respect of Ac. 75 out of the said Ac. 360 in favour of the petitioner's father.
(iii) On learning that forest lands under occupation were being settled under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, the petitioner, in January 2019, submitted an application before the Sub-Collector, Malkangiri, seeking verification and issuance of an ROR in his favour.
(iv) On 06.06.2019, the Sub-Collector, Malkangiri, acting under Rule 12(a)(3) read with Rule 10 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, rejected the petitioner's application and directed him to appear with all supporting documents on 21.06.2019 before the Executive Magistrate- Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 cum-Tahasildar, Motu, Malkangiri. The petitioner submitted all available documents on the said date. However, no further intimation was issued to him for hearing, adducing evidence, or recording his statement.
(v) Subsequently, the Executive Magistrate-cum-Tahasildar, Motu, Malkangiri, issued a notice dated 25.05.2022 under Section 6(1) of the 2006 Act directing the petitioner to vacate the land within 30 days and imposing a penalty of ₹5,000/-.
(vi) Aggrieved thereby, and having no other efficacious remedy, the petitioner has approached this Court seeking appropriate relief. II. PETITIONERS' SUBMISSIONS:
4. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions:
(i) The petitioners submitted that in 1973, the Government of Odisha issued a ROR in respect of Ac. 75 out of a total Ac. 360 in favour of their father, late Md. Ismail. The remaining Ac. 285 continued in his possession and, after his demise, has remained under their continuous cultivation and possession. The said land has been cultivated by the petitioners and their family members for over a century and constitutes their sole means of livelihood.
(ii) The petitioners further submitted that upon learning that forest lands under occupation were being settled under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, they submitted an application in January 2019 before the Sub-Collector, Malkangiri seeking verification and issuance of an ROR in their favour.Page 3 of 14
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14
(iii) The petitioners submitted that on 06.06.2019, without conducting any proper verification, the Sub-Collector, Malkangiri, purporting to act under Rule 12(a)(3) read with Rule 10 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, rejected their application and directed them to appear before the Executive Magistrate-cum-Tahasildar, Motu, Malkangiri, on 21.06.2019 with all supporting documents. The petitioners stated that they duly appeared and submitted all relevant documents.
(iv) The petitioners submitted that Rule 12-A of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, prescribes the procedure for recognition of rights and mandates the presence of officials from the Forest and Revenue Departments during verification of claims and evidence on-site, requiring them to sign the verification proceedings with their designation, date, and remarks, if any. They submitted that a plain reading of Rule 12-A makes it evident that the procedure contemplated therein was not followed by the authorities while rejecting their claim. They further submitted that despite compliance with all directions and submission of relevant documents, no opportunity was afforded to them for hearing, adducing evidence, or recording statements.
(v) The petitioners submitted that sub-rule (3) of Rule 12-A mandates that any decision modifying or rejecting a claim must be communicated personally to the claimant to enable him to prefer an appeal before the Sub-Divisional Level Committee or the District Level Committee within sixty days, extendable by thirty days at the discretion of the committee. They submitted that despite submitting all documents on Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 21.06.2019 before the Executive Magistrate-cum-Tahasildar, Motu, Malkangiri, they were neither called for hearing within thirty days nor granted any extension for representation within sixty days, thereby violating the mandatory procedure prescribed under the Rules.
(vi) The petitioners submitted that although they repeatedly approached the concerned authorities, no further action was taken. During the COVID-19 pandemic, proceedings were suspended, however, even after normalcy resumed, no notice was issued nor any field enquiry conducted. They alleged that their application was kept pending without any justification.
(vii) The petitioners submitted that on 25.05.2022, without adhering to due procedure or complying with the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007, the Executive Magistrate-cum-Tahasildar, Motu, Malkangiri, issued the impugned notice under Section 6(1) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, directing them to vacate the land within thirty days and imposing a fine of ₹5,000/-, which was allegedly recovered through coercive means.
(viii) The petitioners finally submitted that having no other efficacious or alternative remedy, they have approached this Court under Article 226 of the Constitution of India seeking appropriate relief. 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 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14
(i) Upon receipt of 'G' Form issued by the Revenue Inspector, Motu, an Encroachment Case bearing No. 01 of 2022-23 was instituted against the petitioner under Rule 3 of the Odisha Prevention of Land Encroachment Rules, 1985. Notice in Form-A was duly served on the petitioner on 25.05.2022. The petitioner appeared before the Tahasildar, Motu. Upon verification, it was found that he is not a landless person and possesses landed property measuring Ac. 3.537 hectares recorded in Khata No. 208/35 of Mouza-Motu and also cultivates Ac. 4.377 hectares of agricultural land recorded in the name of his father, late Md. Ismail Khan, in Khata No. 4 of Mouza-Baribancha.
(ii) The encroached land is classified as Gramya Jungle, which is not leasable under law.
(iii) Section 2(o) of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 defines "other traditional forest dweller" as a member or community residing in and depending on forest land for at least three generations prior to 13.12.2005, with "generation" defined as twenty-five years. On this basis, the petitioner does not qualify as a traditional forest dweller and is not entitled to settlement of any forest land under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
(iv) The petitioner failed to adduce any documentary or oral evidence supporting his claim. Consequently, assessment and penalty were imposed, and eviction notices in Form-B and subsequently Form-J were issued under the provisions of the Odisha Prevention of Land Encroachment Act, 1972.
Page 6 of 14Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14
(v) The petitioner neither preferred an appeal before the Sub-Collector, Malkangiri, nor vacated the encroached land as directed. His claim was not recommended by the Grama Sabha or the Forest Rights Committee of village Baribancha, nor was it approved by the Sub-Divisional or District Level Committees constituted under the the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. Hence, the present writ petition is stated to be not maintainable either in fact or in law.
(vi) The petitioner does not belong to a Scheduled Tribe community and is not a traditional forest dweller. Accordingly, he has no locus standi to claim rights over forest land under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or the Rules framed thereunder. Upon verification, the Sub-Collector, Malkangiri, found him ineligible for settlement of forest land but nevertheless afforded an opportunity to produce supporting documents or certificates on 21.06.2019 at 10:00 A.M. before the Executive Magistrate-cum-Tahasildar, Motu, Malkangiri. The petitioner, however, failed to produce any such evidence.
(vii) The eviction order was passed lawfully, as the petitioner was found to have encroached upon Ac. 3.000 hectares of forest land in Mouza- Baribancha under Motu Tahasil. He neither appeared for further enquiry nor submitted any document substantiating his entitlement for recognition as a traditional forest dweller.
(viii) The application for settlement of forest land had already been rejected by the Sub-Collector, Malkangiri, and no subsequent application is Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 pending before the Executive Magistrate-cum-Tahasildar, Motu, Malkangiri, in respect of the same subject matter.
(ix) Pursuant to the report of the Revenue Inspector, Motu, regarding encroachment of Government land by the petitioner in Mouza- Baribancha, Encroachment Case No. 01 of 2022 was registered. A show-cause notice under Section 9 of the Odisha Prevention of Land Encroachment Act, 1972 was issued, fixing 25.05.2022 for hearing. During the hearing, the petitioner is stated to have admitted the encroachment. Consequently, penalty was imposed, and the Revenue Inspector was directed to carry out eviction of the encroached land. IV. COURT'S REASONING AND ANALYSIS:
6. Heard learned counsel for the Parties and perused the materials placed on record.
7. The primary question that arises for consideration before this Court is whether the petitioners have established any enforceable right or entitlement under the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and the Rules framed thereunder, so as to warrant interference with the impugned notices issued by the Sub-Collector and the Tahasildar, Malkangiri.
8. Ancillary to this question is whether the procedure prescribed under Rule 12-A of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 was duly followed, and whether the proceedings initiated under the Odisha Prevention of Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 Land Encroachment Act, 1972 suffer from any jurisdictional or procedural infirmity.
9. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 was enacted to recognize and vest the forest rights of forest-dwelling Scheduled Tribes and other traditional forest dwellers who have been residing in forest lands for generations, but whose rights were not previously recorded.
10. Section 2(c) defines "forest dwelling Scheduled Tribe" and Section 2(o) defines "other traditional forest dweller," requiring proof of residence in and dependence upon forest land for at least three generations, each generation being twenty-five years, prior to 13.12.2005.
11. Section 6 of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 prescribes a detailed three-tier procedure for recognition of rights, commencing with the Gram Sabha, whose recommendation is scrutinized successively by the Sub-Divisional Level Committee and the District Level Committee.
12. Rule 12-A of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 operationalizes this process and requires joint verification by the Revenue, Forest, and Tribal Welfare Department officials, who must sign the verification report with their designations, date, and remarks. Sub-rule (3) of Rule 12-A further mandates that any decision modifying or rejecting a claim must be communicated personally to the claimant, enabling an appeal within the prescribed period.
13. The admitted position in the present factual matrix is that the land in question, measuring Ac. 3.000 hectares situated in Mouza-Baribancha, Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 is classified as Gramya Jungle, a category of forest land which is neither transferable nor leasable. It is further undisputed that the petitioner is not a member of a Scheduled Tribe, and that the land in question stands recorded in Government khata.
14. The petitioners' claim of long possession extending for over a century, though asserted, remains unsupported by any contemporaneous evidence. Apart from a ROR allegedly issued in 1973 for Ac. 75 of land in the same mouza, no document evidencing occupation, cultivation, or dependence on the disputed Gramya Jungle land for three generations prior to 13.12.2005 has been produced. Mere assertion of ancestral possession or cultivation, in absence of supporting documentary or oral evidence, cannot establish entitlement under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The burden of proving eligibility under Section 2(o) squarely rests upon the petitioners.
15. The materials on record further indicate that the petitioners were issued notices and were given an opportunity to appear before the Tahasildar, Motu, on 21.06.2019. They admittedly appeared and submitted certain documents but did not produce any cogent proof of eligibility or of continuous occupation for the required period. The authorities, upon verification, found that the petitioner owns and cultivates substantial land in Mouza-Motu and Baribancha and hence does not qualify as a landless person or as a traditional forest dweller dependent solely on forest land for livelihood.
Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14
16. The Sub-Collector, Malkangiri, thereafter rejected the petitioner's claim and directed initiation of proceedings under the Odisha Prevention of Land Encroachment Rules, 1985.
17. The encroachment case, instituted under Rule 3 of the Odisha Prevention of Land Encroachment Rules, 1985, culminated in assessment of penalty and issuance of eviction notice in Form-B followed by Form-J. The petitioner, despite service of notice, did not file any appeal under Section 12 of the Odisha Prevention of Land Encroachment Act, 1972, which provides an efficacious statutory remedy.
18. The petitioners' contention that the procedure under Rule 12-A of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007 was not followed cannot be accepted in view of the materials on record. The records disclose that notice was issued, opportunity was afforded, and the claim was considered in accordance with the prescribed process. There is no material to indicate that the authorities acted beyond their jurisdiction or in violation of the principles of natural justice.
19. Even assuming some procedural lapse, it is settled law that where statutory authorities have considered the matter on merits and afforded adequate opportunity of hearing, a mere technical irregularity would not vitiate the proceedings, unless prejudice is shown. The petitioners have not demonstrated any prejudice caused by the alleged non-compliance.
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Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14
20. Further, it is trite that where an alternative and efficacious statutory remedy is available, this Court ordinarily refrains from exercising its jurisdiction under Article 226 of the Constitution.
21. In Radha Krishan Industries v. State of H.P.1, the Supreme Court clearly elucidated the principles related to the scope of Article 226 in light of the doctrine of exhaustion of alternative remedy, as replicated hereinunder:
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. 27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where :
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
1 (2021) 6 SCC 771.
Page 12 of 14Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."
22. The petitioners could have preferred appeals before the higher committees under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or before the competent authority under the Odisha Prevention of Land Encroachment Rules, 1985. In the absence of any exceptional circumstance such as violation of natural justice, lack of jurisdiction, or manifest illegality, a writ petition is not maintainable.
23. This Court also notes that the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 confers recognition of pre-existing rights rather than creation of new entitlements. It is a beneficial legislation but not one intended to regularize post-2005 encroachments or confer rights on non-tribal cultivators without demonstrable historical dependence on forest land.
24. The classification of the land as Gramya Jungle is undisputed. Such land forms an integral part of forest land vested in the State and held under Government ownership. No right, title, or interest can accrue in such land by mere possession, irrespective of the duration of occupation. It is well settled that possession over Government or forest land, however longstanding, cannot mature into ownership or confer any legally enforceable right. Recognition of such possession would defeat Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 the public trust doctrine and run contrary to settled principles governing the protection of common and forest lands. V. CONCLUSION:
25. In light of the above discussion, this Court is of the considered view that the petitioners have failed to substantiate any right under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007. The authorities appear to have acted within the bounds of their statutory powers and have afforded reasonable opportunity to the petitioners. The impugned orders and notices do not suffer from any illegality, perversity, or procedural impropriety warranting interference under Article 226 of the Constitution.
26. Accordingly, the W.P.(C) No.14868 of 2022 stands dismissed as being devoid of merit.
27. The connected Writ Petitions are also dismissed, accordingly.
28. Interim order, if any, passed earlier in any of the above-mentioned Writ Petitions stands vacated.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 31st Oct., 2025.
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