Orissa High Court
Bairagi Charan Jena vs State Of Odisha & Ors. .... Opposite ... on 25 September, 2025
Author: S.K. Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Oct-2025 15:03:58
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.20200 of 2019
(In the matter of an application under Articles 226 and 227of the
Constitution of India, 1950).
Bairagi Charan Jena .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. B.S. Panigrahi, Adv.
Mr. D.K. Rout, Adv.
For Opposite Party (s) : Mr. Rajdeep Pradhan, ASC
Mr. Janmejaya Katkia Adv.
for O.P.2
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-08.08.2025
DATE OF JUDGMENT:-25.09.2025
Dr. S.K. Panigrahi, J.
1. In filing this Writ Petition, the Petitioner alleged to be an encroacher has sought for a direction from this Court to the Opposite Parties for not evicting him from the disputed property in question without following due process of law.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The Petitioner claiming himself to be a farmer, has been in possession of a piece of land measuring Ac.0.55 decimals. Kissam of the said land is Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58 Sarada-III which comes within the territorial jurisdiction of Mouza:-
Jaringi, Tahasil:-Nayagarh. Though the Petitioner claims himself to be the owner of the said land, the said land stands recorded in the name of his grandfather named Dinabandhu Jena. Record-of-Rights published on 13.06.1983 also shows the said fact and in the said Record-of-Rights status of the land is recorded as Rayati.
(ii) As per the Record-of-Rights published on 13.06.1983, the case land which appertains to Plot No.582 measuring an area Ac.0.160 decimals, Kissam-Gochar, Hal-Kisam-Sarada-III, Mouza-Jaringi, Tahasil-Odagaon stands recorded in the name of the State Government under the status-
Rakhita. It is pertinent to mention here that the case land is adjacent to the Petitioner's above noted recorded land. Since the case land was vacant for a long time, the grandfather of the Petitioner had amalgamated the said land into his above noted own land for doing cultivation.
(iii) The Petitioner has been doing cultivation over the said land since his grandfather. In recent past, in order to construct a dumping yard in the said area the Executive Officer, NAC, Odagaon/Opposite Party No.3attempted to construct a boundary wall over the encroached land/case land which is recorded in the name of the State Government as per the above noted Record-of-Rights published in the year 1983. Since the Opposite Party No.3 attempted to construct a boundary wall over the case land in question which is encroached by the Petitioner unauthorizedly, the Petitioner has preferred this Writ Petition. Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58
(iv) Being aggrieved by the above action of the Opposite Parties, the Petitioner has preferred this Writ Petition.
II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions:
4. Learned counsel for the Petitioner submits that the Petitioner has been in possession of the case land in question since his forefather without any disturbance by any authority. He further contends that the Petitioner has been doing cultivation over the said land without any disturbance.
5. Learned counsel for the Petitioner further contends that the Opposite Party No.3 is attempting to evict the Petitioner from the case land in question without following due process of law. He further submits that since the Petitioner has been in possession over the disputed property in question since more than fifteen years, the said land may be recorded in his name as per the provision under Section 8-A of the OPLE Act.
6. He, accordingly, prays for allowing the prayer made in this Writ Petition.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
7. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
8. The Learned Counsel for the Opposite Parties submits that the Petitioner is an unauthorized occupant of Government land recorded as Rakhita in the name of the State, and hence has no lawful right, title, or interest over the disputed property. It is further contended that no right Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58 can accrue to an encroacher, and therefore, the Petitioner's plea to restrain the authorities from evicting him is wholly misconceived and liable to be rejected.
IV. COURT'S REASONING AND ANALYSIS:
9. Heard the learned counsel for the Parties and perused the materials placed on record.
10. The petitioner seeks protection against eviction from a piece of land appertaining to Plot No. 582 under Mouza Jaringi, Tahasil Odagaon. The record‑of‑rights published in 1983 clearly shows that the plot, though adjacent to land recorded in the petitioner's grandfather's name, stands in the name of the State Government with the status "Rakhita", meaning reserved/government land. In the absence of any lease, pattadar right or allotment, the petitioner is only an unauthorised occupant. Under Article 226 of the Constitution, a writ of mandamus or prohibition issues only when the petitioner establishes a legal right and a corresponding duty. A trespasser has neither.
11. The Orissa Prevention of Land Encroachment Act, 1972 (OPLE Act) contemplates eviction of unauthorised occupants after notice (Sections 4-8). There is also a provision (Section 8-A, inserted in 1988) under which an encroacher who has been in continuous, undisputed occupation for more than thirty years may seek regularisation through a reference to the Sub-Divisional Officer. However, the statute treats this Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58 as an exception. In this regard, this Court has observed in the case of Simanchal Palei v. Collector, Ganjam1as follows:
"Importantly, the OPLE Act itself reflects the State's policy that encroachments on public land are not to be lightly condoned. The normal rule under the Act is eviction of unauthorised occupants after due notice (Section 6), and imposition of penalties for the period of illegal occupation (Section 5). The Act does contain a benevolent exception in Section 8-A for long-term encroachments, but that too is a qualified and conditional exception. Save for the benefit of Section 8-A, an encroacher has no legal right to remain, and the State has every authority, indeed a public duty, to remove encroachments in the public interest." (Emphasis Supplied)
12. Therefore, the petition is maintainable only if the petitioner establishes statutory entitlement under Section 8-A or shows that the eviction in sought without following the procedure prescribed under the Act.
13. To invoke Section 8‑A, the occupier must show continuous, undisputed possession for more than thirty years. The petitioner claims that his grandfather amalgamated the land and that he has cultivated it for over fifteen years. Even if the court were to accept this assertion, it falls far short of the statutory requirement. In Simanchal Palei(Supra), this Court held that when an occupant fails to prove thirty years' continuous possession, the Tahasildar cannot be faulted for not forwarding the case for settlement, and the petitioner remains an unauthorised occupant. The present petitioner has not produced any cogent evidence, such as rent receipts, revenue records or other documents, showing 1 W.P.(C) No.3313 of 2015.
Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58 uninterrupted possession for the requisite period. Consequently, Section 8-A does not confer any right on him.
14. The land in dispute is recorded as "Sarada‑III" (a gochar/kisam reserved for grazing). It belongs to the State, and the Executive Officer of the Notified Area Council proposes to erect a boundary wall for a dumping yard, a public purpose. The petition therefore pits private possession against public interest. The Supreme Court in Jagpal Singh v. State of Punjab2 underscored the importance of protecting public/common lands. The Court categorically held that encroachments on government or community land are blatant illegalities which must not be condoned and directed all States to prepare schemes for speedy eviction of illegal occupants. It emphasised that long occupation or expenditure on construction is not a justification for legalising illegal possession, and regularisation should be permitted only in exceptional cases such as old leases to landless persons or where a public utility (school, dispensary etc.) exists. The relevant excerpts are produced below:
"Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the 2 AIR 2011 SUPREME COURT 1123.Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58 speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land."
15. Applying this principle, the petitioner's claim to be a farmer cannot override the State's duty to protect public land for community use. The planned construction of a waste-management facility is undeniably for public benefit, and the petitioner's private interest in unauthorised cultivation cannot defeat it.
16. Under the OPLE Act, the competent authority must issue notice (Section 6) and give an opportunity to show cause. The petitioner has not shown that the authorities have bypassed this requirement. In fact, the petition itself appears anticipatory, filed because the Executive Officer intends to construct a boundary wall. The law presumes that public authorities will act in accordance with statute. If the petitioner receives an eviction notice under Section 6 and believes that Section 8-A applies, he can place his evidence before the Tahasildar and, if necessary, seek appellate remedy. A writ preventing the authorities from proceeding under the Act is not maintainable.
17. The plea that the petitioner has perfected title by adverse possession is equally untenable. Adverse possession must be hostile, open and Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Oct-2025 15:03:58 continuous for the statutory period, and the claimant must plead and prove the necessary ingredients.
V. CONCLUSION:
18. The petitioner has failed to establish any legal right to remain on the disputed land. The record-of-rights shows that the land belongs to the State, and his possession is unauthorised. Section 8-A of the OPLE Act, which provides a narrow exception for long-term encroachments, is not attracted in the absence of proof of thirty years' continuous, undisputed occupation.
19. Accordingly, the Writ Petition seeking to restrain the authorities from evicting the petitioner without following due process of law is dismissed.
20. Interim order, if any, passed earlier stands vacated.
(Dr.Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 25th September, 2025 Page 8 of 8