Orissa High Court
Dinabandhu Behera vs State Of Odisha & Ors. .... Opposite ... on 30 May, 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: 31-May-2025 13:46:45
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.5239 of 2018
and
W.P.(C) No.5240 of 2018
(In the matters of applications under Articles 226 and 227of the
Constitution of India, 1950).
(In W.P. (C) No.5239 of 2018)
Dinabandhu Behera .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case throughHybrid Mode:
For Petitioner(s) : Mr. Sukanta Kumar Nayak-2, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
(In W.P. (C) No.5240 of 2018)
Jagabandhu Behera .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Sukanta Kumar Nayak-2, Adv.
For Opposite Party (s) : Mr. Sonak Mishra, ASC
Page 1 of 10
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 31-May-2025 13:46:45
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-06.05.2025
DATE OF JUDGMENT:-30.05.2025
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. 5239 of 2018as the leadcase
for the proper adjudication of these matters.
2. The Petitioner, in W.P. (C) No. 5239 of 2018 challenges the eviction
order passed by the Tahasildar, Dhamnagar in O.P.L.E. Case No.
9/16, the appellate order passed by the Sub-Collector, Bhadrak in
O.P.L.E. Appeal No.154/16, and the revisional order passed by the
Collector, Bhadrak in O.P.L.E. Revision No.9/17.
3. Similarly, the petitioner in W.P.(C) No.5240 of 2018 challenges the
eviction order passed by the Tahasildar, Dhamnagar in O.P.L.E.
Case No.10/16, the appellate order passed by the Sub-Collector,
Bhadrak in O.P.L.E. Appeal No.155/16, and the revisional order
passed by the Collector, Bhadrak in O.P.L.E. Revision No.10/17.
I. FACTUAL MATRIX OF THE CASE:
4. The brief facts of the case are as follows:
(i) The suit land, M.S. Plot No. 847 measuring Ac. 0.23 dec under Khata
No. 815, corresponding to C.S. Plot No. 625 measuring Ac. 0.23 dec
under Khata No. 242 of Mouza Dakshinbad, District Bhadrak, was
Location: ORISSA HIGH COURT, CUTTACK
originally recorded in the name of the ex-intermediary, Md.
Moulabi Jafar Hossain.
(ii) The ex-intermediary had issued a Hatapatta in favour of the
Petitioner's father, who was paying rent to him.
(iii) After the abolition of the estate, the ex-intermediary submitted an
Ekpadia in favour of the Petitioner's father, in whose name the T.L.
was opened. The Petitioner's father thereafter paid rent to the
Government. Upon his death, the Petitioner came into possession of
the suit land.
(iv) During the Hal Settlement operation, the suit plot was recorded in
the name of the Government under the 'Abadajogya Anabadi'
Khata.
(v) Subsequently, the Tahasildar initiated encroachment proceedings
against the Petitioner in O.P.L.E. Case No. 9/16.
(vi) Upon becoming aware of the encroachment case, the Petitioner filed
a suit for declaration of right, title, interest, and possession before
the learned Civil Judge, Jr. Division, Dhamnagar, vide C.S. No.
16/17. Simultaneously, the Petitioner contested the encroachment
proceedings on the ground that the same were not maintainable in
view of the pending civil suit.
(vii) On 17.11.2016, the Tahasildar issued an eviction notice to the
Petitioner, directing him to vacate the suit plot within 30 days from
the date of receipt of the notice.
Location: ORISSA HIGH COURT, CUTTACK
(viii) The Petitioner preferred an appeal bearing O.P.L.E. Appeal
No.154/16 before the Sub-Collector, Bhadrak, which was dismissed
on 13.06.2017.
(ix) Against the appellate order, the Petitioner preferred a revision
petition bearing O.P.L.E. Revision Case No. 9/17 before the
Collector, Bhadrak, which was dismissed by order dated 09.02.2018.
(x) Aggrieved by the aforementioned orders, the Petitioner has
approached this Court seeking appropriate relief.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
5. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The Petitioner contended that it is a settled principle of law that
questions relating to the title of either party can only be adjudicated
by the Civil Court and not in summary proceedings under theOrissa
Prevention of Land Encroachment Act, 1972.
(ii) The Petitioner submitted that the R.O.R. does not confer any right,
title, or interest. He claimed title over the suit land on the basis of a
Hatapatta and T.L., and therefore, the authorities under the Orissa
Prevention of Land Encroachment Act, 1972erred in law by treating
the disputed land as Government land solely on the basis of the Hal
R.O.R., which is incorrect and illegal.
(iii) The Petitioner further submitted that it is immaterial whether the
encroachment case was initiated prior to or after the filing of the
civil suit. It is a settled principle of law that where there is a dispute
Location: ORISSA HIGH COURT, CUTTACK
regarding right, title, and interest in the suit land, only the Civil
Court has jurisdiction to decide such issues.
(iv) The Petitioner submitted that, since a civil suit for declaration of
right, title, interest, and possession in respect of the suit plot is
pending before the learned Civil Judge, Jr. Division, Dhamnagar, the
authorities under the Orissa Prevention of Land Encroachment Act,
1972, lack jurisdiction to proceed with eviction while the title of the
Government over the suit land remains disputed.
(v) The Petitioner contended that the orders passed by the authorities
under the Orissa Prevention of Land Encroachment Act, 1972, are
illegal and arbitrary, particularly as the Tahasildar seeks to evict the
Petitioner from the suit plot despite the pending suit and the
dispute over title.
(vi) The Petitioner submitted that, according to the encroachment
proceedings, he is alleged to have encroached upon an area
measuring Ac. 0.01 decimal, where he has constructed a thatched
house and resides with his family members. Eviction from the said
area would render the Petitioner and his entire family homeless, as
they have no other residential accommodation.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
6. The Learned Counsel for the Opposite Parties earnestly made the
following submissions in support of his contentions:
(i) The Petitioner has encroached upon Government land by
constructing a kuchha house. Consequently, the Revenue Inspector
Location: ORISSA HIGH COURT, CUTTACK
of Dhamnagar submitted a requisition in Form 'G'for initiation of
encroachment proceedings under the provisions of the Orissa
Prevention of Land Encroachment Act, 1972, recorded as L.E. Case
No. 9/16. Following due process, an eviction notice under Section
7(1) of the Orissa Prevention of Land Encroachment Act, 1972was
issued on 17.11.2016 to the Petitioner, directing him to vacate the
encroached Government land within 30 days of receipt of the notice.
(ii) The suit land is recorded under the 'Abadayogya Anabadi Khata'
and is ,therefore, protected in the public interest. Accordingly, the
land cannot be settled in favour of the Petitioner, who is liable for
eviction in accordance with the procedures prescribed under the
Orissa Prevention of Land Encroachment Act, 1972.
(iii) A Civil Suit bearing No. 16/2017was pending before the Civil Judge,
Jr. Division, Dhamnagar, for declaration of right, title, and interest.
However, the Tahasildar, exercising powers under the Orissa
Prevention of Land Encroachment Act, 1972, is not subordinate to
the Civil Court. Therefore, the Civil Judge, Jr. Division, has no
jurisdiction under law to restrain the statutory authority, the
Tahasildar, Dhamnagar, from evicting the encroacher from
Government land under Section 41(b) of the Specific Relief Act.
IV. COURT'S REASONING AND ANALYSIS:
7. Heard learned counsel for the parties and perused the materials on
record.
Location: ORISSA HIGH COURT, CUTTACK
8. It is a well-settled position of law that, in terms of Section 9 of the
Code of Civil Procedure, 1908, civil courts shall have jurisdiction to
try all suits of a civil nature,excluding those in respect of which such
jurisdiction is either expressly barred or is excluded by necessary
implication.
9. The exclusion of the jurisdiction of civil courts is not to be readily
inferred. There exists a presumption in favour of the subsistence of
such jurisdiction. Where the question arises as to whether civil court
jurisdiction is excluded, the legislative intent must be carefully
examined. Further, where statutory provisions have not been
complied with, or where basic standards of judicial procedure have
been disregarded, the civil courts will continue to have jurisdiction
notwithstanding any exclusion.
10. The Supreme Court in State of A.P. v. Manjeti Laxmi Kantha Rao1
observed as replicated hereinunder:
"5. The normal rule of law is that civil courts have
jurisdiction to try all suits of civil nature except those of
which cognisance by them is either expressly or impliedly
excluded as provided under Section 9 of the Code of Civil
Procedure but such exclusion is not readily inferred and
the presumption to be drawn must be in favour of the
existence rather than exclusion of jurisdiction of the civil
courts to try a civil suit. The test adopted in examining
such a question is (i) whether the legislative intent to
exclude arises explicitly or by necessary implication, and
(ii) whether the statute in question provides for adequate
(2000) 3 SCC 689.
Location: ORISSA HIGH COURT, CUTTACK
and satisfactory alternative remedy to a party aggrieved
by an order made under it..."
11. It is further settled that revenue authorities do not have jurisdiction
to decide questions of title. Where a bona fide dispute exists
regarding the right, title, and interest in a property, the Government
or revenue authorities cannot assume ownership through summary
proceedings. Such disputes inherently involve complex issues of law
and fact, which cannot be appropriately resolved by summary
processes.
12. This principle was reaffirmed by the Supreme Court in Govt. of A.P.
v. Thummala Krishna Rao2, while considering a case under the
Andhra Pradesh Land Encroachment Act, 1905. The Supreme Court
observed that summary proceeding under the act can only be
initiated where unauthorised occupation of government property is
not disputed. It was observed:
"8. ...If there is a bona fide dispute regarding the title of
the Government to any property, the Government cannot
take a unilateral decision in its own favour that the
property belongs to it, and on the basis of such decision
take recourse to the summary remedy provided by Section
6 for evicting the person who is in possession of the
property under a bona fide claim or title..."
13. Therefore, where a bona fide dispute exists over the title to property,
summary proceedingsby revenue authorities cannot constitute the
proper forum for adjudication. Such disputes fall within the domain
(1982) 2 SCC 134.
Location: ORISSA HIGH COURT, CUTTACK
of civil courts, which have the jurisdiction to determine rights, titles,
and other consequential reliefs.
14. In the instant factual matrix, the Petitioner has asserted that his
father held a Hatapatta in his favour and was duly paying rent to the
erstwhile intermediary. Following the abolition of the estate, the
intermediary issued an Ekpadia in favour of the Petitioner's father, in
whose name the T.L. was opened. Subsequently, the Petitioner's
father continued to pay rent to the Government. Upon his death, the
Petitioner succeeded to possession of the suit land. Contrary to these
facts, the land was erroneously recorded in the name of the State
during the Hal Settlement, a factual inaccuracy which led to the
initiation of encroachment proceedings against the Petitioner.
15. Consequently, the Petitioner approached the civil court seeking a
declaration of his right, title, and interest in the suit property. He
also sought a declaration that the encroachment proceedings
initiated by the revenue authorities were not maintainable, as a suit
for declaration of right, title, interest, and possession in respect of
the suit land was already pending before the Civil Judge, Junior
Division, Dhamnagar.
16. Upon careful analysis of the facts and circumstances, this Court
finds that the core issues raised involve a bona fide dispute
concerning the right and title to the suit property, a matter beyond
the jurisdiction of the encroachment proceedings initiated under the
Orissa Prevention of Land Encroachment Act, 1972. The revenue
Location: ORISSA HIGH COURT, CUTTACK
authorities, who conduct summary procedures, are not competent to
adjudicate such complex disputes of title.
17. Furthermore, faced with a bona fide dispute, the State was not
entitled to determine ownership in its own favour and proceed with
eviction through summary proceeding.
V. CONCLUSION:
18. In light of the foregoing, the proper and competent forum to
adjudicate the issues raised by the parties, including declaration of
right, title, interest, and possession, is the civil court. Therefore, the
eviction order passed by the Tahasildar, Dhamnagar in O.P.L.E.
Case No. 9/16, the order passed by the Sub-Collector, Bhadrak in
O.P.L.E. Appeal No. 154/16, and the order of the Collector, Bhadrak
in O.P.L.E. Revision No. 9/17 are hereby set aside.
19. Similarly, in W.P.(C) No. 5240 of 2018, the eviction order passed by
the Tahasildar, Dhamnagar in O.P.L.E. Case No. 10/16, the appellate
order passed by the Sub-Collector, Bhadrak in O.P.L.E. Appeal No.
155/16, and the revisional order passed by the Collector, Bhadrak in
O.P.L.E. Revision No. 10/17 are hereby set aside.
20. Accordingly, both the Writ Petitions are allowed.
21. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi)
Vacation Judge
Orissa High Court, Cuttack,
Dated the 30th May, 2025
