Orissa High Court
Jagannath Biswal And Another vs State Of Odisha And Ors. .... Opposite ... on 10 September, 2025
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK
Date: 15-Sep-2025 21:15:27
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 22239 of 2016
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Jagannath Biswal and Another .... Petitioner(s)
-versus-
State of Odisha and Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Anjan Kumar Biswal, Adv.
For Opposite Party (s) : Ms. Gayatri Patra, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-20.08.2025
DATE OF JUDGMENT:-10.09.2025
Dr. Sanjeeb K Panigrahi, J.
1. The petitioners, functioning as President and Secretary of the Baghamara Gramya Unnayana Samiti (a registered body under MBJ 2631-37 of 1990-91), have challenged three orders: the Tahasildar, Kaptipada's eviction order dated 30.09.2015 in Encroachment Case No.91/2015, the Sub-Collector, Kaptipada's appellate order dated 26.04.2016 in Encroachment Appeal No.18/2015, and the Collector, Mayurbhanj's revisional order dated 24.11.2016 in Encroachment Revision No.04/2016.
Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the caseare asfollows:
(i) The land in dispute is Plot No. 1565 under Khata No. 546, recorded as "Unnata Jojana Jogya" under Rakhit Khata, situated in Mouza Jadida, and described by authorities as Government land reserved for development purpose. Petitioners state it has been used for decades by villagers for communal activities such as a Bhagabata Gadi/Gosti, temple, and ashram, supported by government aid and local contributions.
(ii) On 09.09.2015, the Tahasildar issued a Form-'A' notice under Section 9 of the OPLE Act, calling on the petitioners to show cause by 22.09.2015, and on the same day issued a Form-'B' notice directing them to vacate within three days. The High Court in W.P.(C) No. 17083/2015 quashed the Form-'B' notice on 21.09.2015, holding it premature.
(iii) Petitioners filed their reply to the show cause on 30.09.2015, supported by representations from villagers and the local Sarpanch. The same day, the Tahasildar found the explanation unsatisfactory, assessed encroachment dues of ₹38 and penalty of ₹40,000 (total ₹40,038), and directed vacation of the land within 30 days.
(iv) Petitioners sought settlement of the land under Section 7(1)(a)/(b) and Section 8(A) of the OPLE Act, offering exchange of equal land from Petitioner No. 1. The High Court in W.P.(C) No. 18674/2015 on 28.10.2015 directed consideration of their Section 8(A) application within three months.
Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27
(v) The Sub-Collector dismissed their appeal on 26.04.2016, holding that Section 8(A) requirements were not met due to lack of valid evidence, and the Collector dismissed their revision on 24.11.2016 for the same reason. Authorities relied on a Revenue Inspector's report (Form "G"), which recorded petitioners' unauthorized possession for the past 15 years.
(vi) Petitioners claim of uninterrupted community possession for more than 30-40 years, citing government electrification in 1989-90, construction in 1986 with government aid, and presence of a resident saint since 1976. Authorities counter that no conclusive documentary proof of continuous possession exceeding 30 years was produced, and documents submitted (village petitions, letters, and registration certificates) were photo copies which were not exhibited.
(vii) The official respondents, through affidavit, assert that "Unnat Jojana Jogya" land is not settleable under the OPLE Act, that settlement by way of exchange is not contemplated under law, and that the Writ Petition lacks merit, warranting dismissal.
II. SUBMISSIONS ON BEHALF OF THE PETITIONERS:
3. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions:
(i) Issuance of Form-'B' on 09.09.2015 before expiry of the 22.09.2015 show-cause date violated the OPLE scheme (as already recognized and quashed by the High Court), and the Tahasildar's same-day (30.09.2015) eviction order-immediately upon receipt of show cause, without enquiry or reasoned consideration of representations is arbitrary, hurried, and non-est. Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27
(ii) Authorities ignored the mandatory/enabling provisions for settlement of long-standing benign community use under Section 7(1)(a)/(b), Section 7(2-a), and Section 8(A) OPLE Act, despite petitioners' readiness to pay consideration and even exchange equal land, thereby defeating the rehabilitative/regularization intent of the Act for non-
objectionable communal occupations.
(iii) The communal nature of possession (Bhagabata Gadi/Gosti, temple, ashram, electrification, government aid, villagers' and Sarpanch's affidavits) shows the land is used for public/communal purposes, not for private gain; the RI's unsubstantiated "15 years" note, without supporting documents or local enquiry, cannot override decades of consistent community use narrated with dates and corroborations.
(iv) A bare assertion that the plot is reserved for development, without any disclosed scheme, utilization plan, or competing public need, cannot justify eviction when an existing community institution is serving public utility; authorities should have balanced interests and considered regularization/settlement rather than precipitous eviction.
(v) Eviction orders that extinguish long, open, peaceful communal possession and improvements funded with public aid offend Article 300-A unless effected by authority of law applied fairly and proportionately; here, mechanical rejection of settlement and perfunctory orders by appellate/revisional forums warrant writ interference under Articles 226/227.
(vi) It is prayed that the orders dated 30.09.2015, 26.04.2016, and 24.11.2016 are quashed as they are illegal and arbitrary; direct consideration and settlement of Plot No. 1565 in favour of Baghamara Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 Gramya Unnayana Samiti/villagers under OPLE with liberty to effect exchange of equal area if required, after a proper local enquiry and reasoned order.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions:
(i) There is no provision in the OPLE Act permitting settlement by "exchange" of an equal area offered by Petitioner No. 1; petitioners' reliance on such a mechanism is misconceived and dehors the spirit of the statute.
(ii) The initiation and processing complied with OPLE: notice under Section 9 was issued at institution, proposing proceedings under Sections 4, 6, and 7; the subsequent Form-B quashment does not vitiate the merits considered on 30.09.2015 when show cause was adjudicated and eviction ordered with assessment and penalty made.
(iii) Plot No.1565 is a Government land recorded as "Unnat JajanaJagya"
under a Rakhitkhata and earmarked for development; by definition and scheme of the OPLE Act, such kisam is "not at all settleable,"
hence any prayer for settlement in favour of petitioners/villagers is legally untenable.
(iv) Petitioners failed to produce irrefutable, admissible proof of continuous, open, and uninterrupted possession for over 30 years;
xerox copies and general letters do not satisfy the legal criteria for long possession or adverse possession, while the RI's Form "G" attests only 15 years of unauthorized possession.
Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27
(v) Tahasildar's conclusion that the show cause was unsatisfactory, the consequential imposition of assessment and penalty, the eviction direction, and the appellate and revisional affirmations are reasoned and based on records; with no statutory right to settlement and no proof of the claimed tenure, the writ is devoid of merit and liable to dismissal.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard Learned Counsel for the parties and meticulously analysed the documents placed before this Court.
6. At the outset, the Court notes the petitioners' grievance regarding procedural irregularity in the initial stages. The Tahasildar's issuance of a Form-'B' eviction notice on 09.09.2015, before the expiry of the show-cause period (22.09.2015), was indeed premature and violated the scheme of the Orissa Prevention of Land Encroachment Act, 1972 ("OPLE Act"). This prompted the High Court in W.P.(C) No. 17083 of 2015 to quash that premature eviction notice on 21.09.2015. Thereafter, the petitioners were allowed to file their reply to show-cause on 30.09.2015, which the Tahasildar considered (albeit on the same day) before passing the eviction order along with assessment of dues and penalty.
7. While the Tahasildar's haste in deciding the matter on the very day of receiving the show-cause notice is not an ideal or elaborate inquiry, the petitioners were not left without remedy, they pursued a statutory appeal and revision where their contentions and evidence were examined. In these circumstances, any initial defect in procedure has Page 6 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 been effectively addressed through the appellate and revisional scrutiny. The Court is satisfied that the minimum requirement of notice and opportunity to be heard under the OPLE Act and principles of natural justice was ultimately met. No tangible prejudice is shown to have been caused by the Tahasildar's swift disposal on 30.09.2015, especially since the higher authorities re-appraised the matter on merits. Thus, the challenge on the grounds of procedural illegality or denial of natural justice cannot be a sole basis to invalidate the final outcome, when the petitioners have had full opportunity to present their case in appeal and revision.
8. The core issue is whether the petitioners have any legal right to remain on the Government land (Plot No.1565 recorded as "Unnata Jojana Jogya" under Rakhit Khata) by seeking settlement or regularization of their occupation. The OPLE Act is a special law enacted to prevent unauthorized encroachment on Government lands and to provide for eviction of encroachers. At the same time, the Act contains certain provisions (e.g. Sections 7 and 8-A) enabling settlement, regular lease/assignment, of encroached land in favor of an encroacher only if some specific conditions are fulfilled. The petitioners have invoked Section 7(1)(a)/(b), Section 7(2-a) and Section 8-A of the Act, claiming entitlement to settlement on the strength of long-standing community possession and even offering an exchange of alternative land. However, on a careful examination of the statute and the facts, the Court finds that the petitioners do not satisfy the necessary statutory conditions for any such settlement. Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27
9. First, the land in question is recorded as "Unnata Jojana Jogya" (land reserved for development purposes) in the revenue records and stands in a Rakhit Khata. Such classification signifies that the land is earmarked for a public developmental purpose or project. By the very scheme of the OPLE Act and Government land settlement rules, certain categories of land are treated as inherently non-settleable in favor of encroachers. Public purpose reservations, like Gochar or development-project land, cannot be nullified by converting the land to private or institutional ownership through encroachment. In this context, it is telling that the second proviso to Section 7 of the OPLE Act expressly bars settlement of encroached land if the land is recorded for common purposes such as Gochar, even if the encroachment is of long duration. This reflects the legislative policy that land meant for community use or future development must be preserved for that purpose and not diverted to encroachers. The petitioners' land, being reserved for an unspecified development scheme (Unnata Jojana Jogya), falls within the class of lands where no settlement is contemplated under law, as asserted by the official respondents. The Court concurs that on this ground alone, the petitioners' prayer for settlement is untenable, one cannot seek regularization of occupation on a parcel that the law intends to keep unassigned for larger public interest.
10. Second, even assuming arguendo that the land was not per se excluded from settlement, the petitioners have failed to demonstrate compliance with the rigorous conditions under Sections 7 and 8-A of the OPLE Act. Section 8-A, in particular, provides a limited window Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 for regularization of very old encroachments: if an encroacher has been in actual, continuous and undisputed possession of Government land for over 30 years by the time the encroachment proceeding is initiated, the authorities may settle the land with such person (upon payment of requisite dues), instead of evicting him. This provision is in the nature of a one-time amnesty for extraordinarily long possession, subject to strict proof of the duration of encroachment and other conditions. In the present case, the petitioners assert communal possession of 30-40 years over the plot, citing activities like establishment of a Bhagabata Tungi/Ashrama since 1976, electrification in 1989-90, and a structure built around 1986 with governmental/local aid.
11. However, when called upon in the encroachment proceeding and the subsequent appeal/revision, the petitioners could not furnish any conclusive documentary evidence to substantiate an uninterrupted occupation since the 1970s. The record reveals that the materials produced by them, such as villagers' representations, letters from local officials, and an old registration certificate of their Samiti, were mostly unauthenticated photocopies or anecdotal statements, none proven as per law. By contrast, the official record included a Revenue Inspector's report in Form "G" which noted the petitioners' unauthorized possession for about 15 years. Although the petitioners dispute the correctness of the 15 years finding, the fact remains that no primary evidence such as an old lease, record-of-rights entry, or tax receipt of possession prior to the year 2000 was presented to the revenue authorities or this Court. The Sub-Collector (appellate Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 authority) and Collector (revisional authority) specifically held that the petitioners did not meet the requirements of Section 8-A due to lack of valid evidence of more than 30 years of possession.
12. This Court finds no illegality in that conclusion. The onus lay on the encroacher to satisfy the authorities of prolonged possession qualifying for regularization, and here the petitioners' evidence fell short. Therefore, the statutory pre-condition for invoking the benign provisions of Section 7(1)(a)/(b) or Section 8-A stands unfulfilled.
13. Third, the petitioners' proposal to "exchange" the disputed plot with an equivalent area of private land (offered by Petitioner No.1) is outside the contemplation of the OPLE Act. The scheme of the Act does not contain any mechanism for swapping encroached Government land with other land. Settlement, if allowable, has to be of the very land under encroachment and strictly as per the terms of the statute, not by bartering land parcels. The Court agrees with the respondents that the plea for exchange is dehors the law and cannot be entertained by the Court, since to do so would be to rewrite the statute. In sum, the petitioners have no statutory right to demand settlement or regularization of the encroached Government land in question. Their case does not fall within any provision that confers a legal entitlement to convert their unauthorized occupation into a lawful grant.
14. Learned counsel for the petitioners strenuously urged that the character of the petitioners' possession, being open, long-term, and for a community or charitable purpose as a village religious and social gathering place, ought to tilt the balance in favor of regularization Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 instead of eviction. The Court is not unsympathetic to the notion that the land has been serving as a village shrine and social institution for years; however, sentiments or communal usage cannot override clear mandates of law. It is well settled that no equity arises in favor of an illegal occupant of public land. The Supreme Court has repeatedly affirmed that unauthorized occupation of Government land, even if prolonged, does not create any right in favor of the encroacher.
15. In fact, in the case of Jagpal Singh and Ors. v. State of Punjab and Ors.1 which dealt with encroachment of village common land, the Supreme Court came down heavily on such encroachments and directed all State Governments to prepare schemes for eviction of illegal occupants of Gram Sabha/Gram Panchayat lands and restoration of such lands to the community. 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 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 1 (2011) 11 SCC 396.
Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 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."
16. The clear message from Jagpal Singh (Supra) and its progeny is that encroachments on public land must be removed in the interest of the public and cannot be regularized as a matter of course. It is only in exceptional circumstances, and if permitted by some policy or rule, that an unauthorized occupant may get regularization, for example, where the encroached land is indeed being used for an essential public purpose, like a school, dispensary, etc. for the benefit of villagers, or where the encroachers are landless poor persons who have no alternate shelter.
17. Even such exceptions are not automatic grounds for relief, but rather matters of government policy and discretion to be exercised in rare cases. In the case at hand, the petitioners' use of the land for a Bhagabata Gadi/Ashram, religious congregation hall and ashram, while a communal use, does not fall within any codified policy of regularization. The State of Odisha has not formulated any rule or scheme to settle encroachments simply because they house a temple or religious structure, and indeed doing so could encourage misuse of public lands under the garb of religion. In fact, the general trend of judicial decisions has been to discourage any unauthorized religious structures on public land.
18. Just because land remained unused for a long time does not vest any right in squatters; the Government is free to decide when and how to Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27 use its land, and no one can encroach upon it on the excuse that the State did not yet need the land. Merely because Plot No.1565 was not immediately put to a development project and the villagers put it to their own communal use, the petitioners do not gain a legal right to occupy or retain it against the State's title.
19. The State's stance is that the land is simply not available for settlement at all, and moreover, the petitioners fell short of proving the qualifying criteria. In such circumstances, the long duration of the occupation or the pious nature of its use cannot by themselves legalize what is an unlawful encroachment. Equity cannot be invoked to contravene statutory requirements or to condone an ongoing illegality.
20. The petitioners' reliance on Article 300-A of the Constitution, the right to property, is also unfounded because Article 300-A is satisfied as long as the State acts under authority of law. Here, the OPLE Act is the governing law which authorizes eviction of encroachers after due notice. The petitioners have been dealt with under that law with opportunities of hearing, so no question of unconstitutional deprivation of property arises. In truth, the petitioners never had any lawful title to or recognized interest in the land. Animus possidendi, the intention to possess as owner, does not ripen into a right against the true owner, the Government, without meeting the stringent tests of law. They cannot approbate the benefits of a welfare state, such as grants for community projects, on the one hand and, on the other, claim of adverse possession or a vested right to expropriate the land from the State.
Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication
Location: ORISSA HIGH COURT, CUTACK Date: 15-Sep-2025 21:15:27
21. Considering the foregoing discussions, this Court concludes that the impugned orders of the Tahasildar, Sub-Collector, and Collector do not suffer from any legal infirmity warranting interference. The petitioners have been in unauthorized occupation of a piece of Government land that is reserved for public purposes, and they have not been able to establish any legal entitlement to retain that land. The authorities under the OPLE Act acted within their jurisdiction in directing eviction and refusing settlement, especially given the bar on settling reserved lands and the petitioners' failure to prove qualifying long-term possession with credible evidence.
22. The contentions raised, on procedural lapses, on alleged arbitrary refusal of settlement, and on the plea of long communal use, do not override the clear mandate of law against regularizing encroachments in the present scenario. On the contrary, binding judicial precedents underscore that no person in illegal occupation of public land can claim regularization as of right, and that encroachments (even for religious or community purposes) cannot be legitimized contrary to law.
23. In the result, the Writ Petition is dismissed.
24. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi) Judge Orissa High Court, Cuttack, Dated the 10th Sept., 2025/ Page 14 of 14