Orissa High Court
Sanatan Nayak vs State Of Odisha & Ors. .... Opposite ... on 28 March, 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: 04-Apr-2025 18:13:17
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 24528 of 2019
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Sanatan Nayak .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Bikash Jena, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-13.03.2025
DATE OF JUDGMENT:-28.03.2025
Dr. S.K. Panigrahi, J.
1. In this Writ Petition, the Petitioner challenges the order dated
13.12.2018, passed by the Tahasildar, Dasarathpur, in Encroachment
Case No.73 of 2018-19; the order dated 29.06.2019, passed by the
Appellate Authority in Encroachment Appeal No.11/2019; and the order
dated 26.09.2019, passed by the Revisional Authority in Encroachment
Revision Case No.03/2019.
Location: ORISSA HIGH COURT, CUTTACK
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The Petitioner has constructed an asbestos house by encroaching upon
government land classified as Rakhit Anabadi (Kissam), specifically
Plot No. 2159 under Khata No. 699, measuring 0.07 acres in Mouza-
Kelanga, Jajpur District, Odisha. A portion of the house is used as a
grocery shop, while another part is occupied by the Petitioner's
handicapped son. The Petitioner claims to have been in continuous and
uninterrupted possession of the land for over 30 years.
(ii) Based on a report by the Revenue Inspector dated 30.09.2018 in Form-G,
Encroachment Case No. 73 of 2018-19 was instituted against the
Petitioner. A show-cause notice was issued in Form-Ka, followed by the
issuance of Form-Kha for the removal of the encroachment, pursuant to
an order dated 13.12.2018 passed by the Tahasildar, Dasarathpur.
(iii) Aggrieved by this, the Petitioner preferred an appeal under
Encroachment Appeal No. 11/2019. However, the appeal was dismissed
by the Sub-Collector, Jajpur, vide order dated 29.06.2019.
(iv) The Petitioner then filed a revision petition under Encroachment
Revision Case No. 03/2019 before the Collector, Jajpur. However, by
order dated 26.09.2019, the revision was dismissed, thereby affirming
the orders of the subordinate forums. The Petitioner was directed to
vacate the encroached land within 30 days from the date of receipt of
the order.
Location: ORISSA HIGH COURT, CUTTACK
(v) Having exhausted all statutory remedies, the Petitioner has now
approached this Court, seeking its intervention.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The Petitioner submitted that there could not be two parallel
proceedings arising out of the same cause of action. While a previous
encroachment proceeding had been instituted vide Encroachment Case
No. 265/2017-18, in respect of which Encroachment Appeal No. 13/2019
was pending before the Sub-Collector, Jajpur, the subsequent
proceeding instituted vide Encroachment Case No. 73/2018-19 and the
impugned orders arising from this subsequent proceeding were a
nullity in the eyes of the law and, therefore, could not be sustained.
(ii) The Petitioner further submitted that the order dated 13.12.2018, passed
by the Tahasildar, Dasarathpur, suffered from a gross violation of the
principles of natural justice. The Petitioner had been issued Form 'Ka',
fixing 13.12.2018 as the date for filing the show cause; however, the final
order was passed on the same day without a hearing date being fixed.
The Petitioner relied on the case of Mita Das vs. State of Odisha &
Ors.1, wherein this Court had held that the Tahasildar ought to have
fixed a hearing date and granted an additional opportunity to file the
show cause, as no such opportunity was provided in the initial notice.
(iii) The Petitioner submitted that the Appellate Authority not only failed to
consider the grounds raised in the appeal but also passed the final order
W.P.(C)12118 of 2022.
Location: ORISSA HIGH COURT, CUTTACK
dated 29.06.2019, in Encroachment Appeal No. 11/2019, in gross
violation of the principles of natural justice. The Petitioner had
categorically stated in the appeal that the Tahasildar's observation,
which declared the Petitioner ineligible and the suit land not leasable,
was not based on facts, as land from the same Khata No. 699 of Mouza-
Kelanga had been settled in favor of other encroachers in OPLE Cases
No. 1621/07-08, 1623/07-08, 1624/07-08, and 1625/07-08. On 23.03.2019,
the Petitioner had filed an application before the Appellate Authority
seeking time to submit relevant documents, but the application was
rejected by order dated 30.03.2019. The final order in the appeal was
reserved without fixing a further date for hearing, and the appeal was
dismissed three months later on 29.06.2019. The rejection of the
Petitioner's application was hasty, and the Appellate Authority failed to
address the issue of land settlement granted to other encroachers from
the same Khata No. 699.
(iv) The Petitioner also submitted that the revision petition filed before the
Collector, Jajpur, was disposed of without affording an opportunity for
a proper hearing. Despite the Petitioner submitting a time petition on
21.09.2019, when the revision case was posted for hearing, the Collector,
Jajpur, passed the final order on 26.09.2019, citing the Petitioner's
absence. The Collector further observed that the Petitioner's counsel
had already been heard at the time of admission, concluding that no
further hearing was necessary. Consequently, the revision was
dismissed by the final order dated 26.09.2019 without granting the
Petitioner an adequate opportunity to present their case.
Location: ORISSA HIGH COURT, CUTTACK
(v) The Petitioner submitted that it would be a travesty of justice if this
Court did not interfere with the impugned orders, particularly
considering the manner in which the proceedings before Opposite Party
Nos. 2 to 4 were conducted. The Petitioner pointed out that in the
counter affidavit filed on behalf of the Opposite Parties, there was no
satisfactory response to the grounds raised in the writ petition. The
Petitioner further emphasized that the lack of a proper hearing and
opportunity to present their case, as outlined in the submissions,
warranted the intervention of this Court to rectify the legal errors and
ensure justice was served.
(vi) The Petitioner submitted that the law was well settled that even a
trespasser could not be evicted without following due process of law.
This due process included providing a reasonable opportunity to show
cause, granting a hearing, and passing a reasoned order after
considering all the grounds raised by the affected party. However, in
the present case, the due process of law, as well as the statutory
remedies of appeal and revision, had been rendered an empty formality
and a futile exercise. The Petitioner contended that the failure to follow
these fundamental principles had resulted in a denial of justice and had
left no effective remedy available.
III. SUBMISSIONS OF THE OPPOSITE PARTIES:
4. 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 Petitioner's claim to set aside the impugned orders of Opposite
Party Nos. 2, 3, and 4 is legally untenable and devoid of merit. The
Petitioner admitted to encroaching upon the suit land without any title
document in Encroachment Case No. 73/2018-19 before the Tahasildar,
Dasarathpur, and accordingly paid a penalty of Rs. 205/- as assessed.
(ii) Under Section 7 of the Orissa Prevention of Land Encroachment Act,
1972, lands classified as Gochar, Rakhit, or Sarbasadharan, or those set
apart for common village use, cannot be settled. The land in question,
classified as Rakhit land, is reserved for public use and cannot be settled
or alienated for private purposes without de-reservation under the
Odisha Government Land Settlement Act, 1962. The encroached land
belongs to the Government and is utilized for public purposes,
including the operation of an electronic transformer that benefits the
villagers of Kelanga, Jajpur. The Petitioner was lawfully evicted to
alleviate the hardships faced by the villagers. The Opposite Parties,
therefore, rightfully evicted the Petitioner in the interest of public
welfare.
(iii) The Petitioner is not a landless person as defined under Section 3(a-1) of
the Orissa Prevention of Land Encroachment Act, 1972. Documentary
evidence establishes that the Petitioner owns land, including a home on
Plot No. 2157/2959, Khata No. 674/106, Tehsil - Dasarathpur, and that
his son possesses land with Sarad-2 status. As such, the Petitioner does
not meet the criteria for classification as a landless person, which under
the Orissa Prevention of Land Encroachment Act, 1972refers to an
individual who owns less than one standard acre of land (excluding
Location: ORISSA HIGH COURT, CUTTACK
homestead) and whose total annual family income does not exceed
rupees six thousand and four hundred or such other amount as may be
notified by the State Government from time to time. Therefore, the
Petitioner is not entitled to rehabilitation or land settlement and has
been rightfully evicted from the encroached land.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard Learned Counsels for the parties and perused the documents
placed before this Court.
6. The primary issue for determination is whether the Petitioner's eviction
was legally sustainable and whether the impugned orders suffer from
legal infirmities warranting judicial interference.
7. It is well-settled that government land classified as Gochar, Rakhit, or
Sarbasadharan cannot be settled if it has been earmarked for common
village use. The proviso to Section 7(2) of the Orissa Prevention of Land
Encroachment Act, 1972 expressly prohibits such settlement unless de-
reservation is carried out under the Odisha Government Land
Settlement Act, 1962.
8. Courts have consistently upheld this principle, reiterating that public
lands serve a larger community interest and cannot be allowed to be
usurped for private purposes.
9. In Friends Colony Development Committee v. State of Orissa2 the
Supreme Court addressed the issue of unauthorized constructions and
held that while certain laws may allow for the regularization of such
(2004) 8 SCC 733.
Location: ORISSA HIGH COURT, CUTTACK
constructions, it should only be permitted in exceptional cases rather
than as a general rule. Ordinarily, compounding in such cases should
only be allowed where the land has been leased to landless labourers or
members of the Scheduled Castes/Scheduled Tribes, or the land is
actually being used for a public purpose of the village e.g. running a
school for the villagers, or a dispensary for them.
10. Applying this principle to cases involving encroachment of village
common land, the Supreme Court in Jagpal Singh v. State of
Punjab3emphasized that compounding should be even more restricted
in such cases as village common lands serve essential public purposes,
such as grazing grounds, water bodies, and community spaces, and
their encroachment deprives the entire village of these benefits.
11. In the present case, the records indicate that the Petitioner had
encroached upon Rakhit land without any legal title. The Revenue
Inspector's report categorically states that the land is classified as Rakhit
and is not available for settlement. It further records that the Petitioner
does not possess any document of title over the suit land. The
encroachment has also obstructed maintenance and repair work of an
electric transformer located on the land, thereby affecting public
welfare.
12. The Tahasildar, Dasarathpur, issued due notice directing the Petitioner
to vacate the suit land. The Appellate and Revisional Authorities, upon
due consideration of the matter, upheld the eviction order.
(2011) 11 SCC 396.
Location: ORISSA HIGH COURT, CUTTACK
13. The records confirm that the Petitioner possesses owns alternative land
but cited the monsoon season as a reason for not relocating. By statutory
definition under Section 3(a-1) of the Orissa Prevention of Land
Encroachment Act, 1972, a landless person is one whose total
landholding, excluding homestead land, is less than one standard acre
and whose total annual income does not exceed rupees six thousand
and four hundred or such other amount as may be notified by the State
Government from time to time. The Petitioner, having land both in his
own name and in the name of his son, does not qualify as a landless
person under the Orissa Prevention of Land Encroachment Act, 1972.
14. It is further observed that the eviction proceedings were conducted in
strict compliance with due process of law. The Tahasildar conducted a
spot visit, issued notices, and passed a reasoned order. The Petitioner
was afforded the opportunity to challenge the order before the
Appellate and Revisional Authorities. At each stage, the matter was
decided on merits, following due process, with no discernible
arbitrariness or legal infirmity.
V. CONCLUSION:
15. In view of the foregoing discussions, this Court finds no merit in the
present Writ Petition. The Petitioner has not demonstrated any
enforceable legal right over the suit land. Further, the land being Rakhit
land, reserved for public purposes, is not eligible for settlement under
the Orissa Prevention of Land Encroachment Act, 1972.
Location: ORISSA HIGH COURT, CUTTACK
16. No illegality, perversity, or arbitrariness is found in the impugned orders
to justify interference by this Court.
17. Accordingly, this Writ Petition is dismissed.
18. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 28th March, 2025
