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,
Location: ORISSA HIGH COURT, CUTTACK
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.
Location: ORISSA HIGH COURT, CUTTACK
(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
Location: ORISSA HIGH COURT, CUTTACK
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
Location: ORISSA HIGH COURT, CUTTACK
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.
2016 (I) OLR 794.
Location: ORISSA HIGH COURT, CUTTACK
(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:
Location: ORISSA HIGH COURT, CUTTACK
(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)
Location: ORISSA HIGH COURT, CUTTACK
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
Location: ORISSA HIGH COURT, CUTTACK
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.
Location: ORISSA HIGH COURT, CUTTACK
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:
Location: ORISSA HIGH COURT, CUTTACK
"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
Location: ORISSA HIGH COURT, CUTTACK
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/
