Orissa High Court
Md. Hasam Khan vs State Of Odisha & Ors. .... Opposite ... on 31 October, 2025
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2025 16:03:14
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14868 of 2022
along with batch of cases
(In the matters of petitions under Articles 226 and 227 of the
Constitution of India, 1950).
(In W.P.(C) No.14868 of 2022)
Md. Hasam Khan .... Petitioner(s)
-versus-
State of Odisha & Ors. .... Opposite Party(s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner (s) : Mr. Goutam Mukharjee, Sr. Adv.
Along with Associates
-versus-
For Opp. Party(s) : Mr. Sonak Mishra, ASC
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATES OF HEARING:- 19.09.2025
DATE OF JUDGMENT:- 31.10.2025
(W.P.(C) No.14868 of 2022 along with W.P.(C) Nos.14867 of 2022
and 14870 of 2022)
Dr. Sanjeeb K Panigrahi, J.
1. Since common questions of fact and law are involved in the above-
mentioned writ petitions, those were heard together and are being
disposed of by this common judgment. However, this Court deems it
appropriate to treat W.P.(C) No. 14868 of 2022 as the lead case for the
purpose of adjudication.
Location: ORISSA HIGH COURT, CUTTACK
2. The petitioners in the present Writ Petition have challenged the
order/notice dated 06.06.2019 issued by the Sub-Collector, Malkangiri,
purportedly under Rule 12(a)(3) and Rule 10 of the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Rules, 2007, as well as the notice issued under Section 6(1) of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006.
I. FACTUAL MATRIX OF THE CASE:
3. Succinctly put, the facts of the case are as follows:
(i) In 1920, Maharaja Vikram Dev granted a parcel of land measuring Ac.
360 situated in Mouza Baribancha by issuing a ROR in favour of the
petitioners' father, late Md. Ismail, who was earning his livelihood by
foraging in the adjoining forest.
(ii) In 1973, the Government of Odisha issued an ROR in respect of Ac. 75
out of the said Ac. 360 in favour of the petitioner's father.
(iii) On learning that forest lands under occupation were being settled
under the Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006, the petitioner, in January 2019,
submitted an application before the Sub-Collector, Malkangiri, seeking
verification and issuance of an ROR in his favour.
(iv) On 06.06.2019, the Sub-Collector, Malkangiri, acting under Rule
12(a)(3) read with Rule 10 of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007,
rejected the petitioner's application and directed him to appear with all
supporting documents on 21.06.2019 before the Executive Magistrate-
Location: ORISSA HIGH COURT, CUTTACK
cum-Tahasildar, Motu, Malkangiri. The petitioner submitted all
available documents on the said date. However, no further intimation
was issued to him for hearing, adducing evidence, or recording his
statement.
(v) Subsequently, the Executive Magistrate-cum-Tahasildar, Motu,
Malkangiri, issued a notice dated 25.05.2022 under Section 6(1) of the
2006 Act directing the petitioner to vacate the land within 30 days and
imposing a penalty of ₹5,000/-.
(vi) Aggrieved thereby, and having no other efficacious remedy, the
petitioner has approached this Court seeking appropriate relief.
II. PETITIONERS' SUBMISSIONS:
4. Learned counsel for the Petitioners earnestly made the following
submissions in support of his contentions:
(i) The petitioners submitted that in 1973, the Government of Odisha
issued a ROR in respect of Ac. 75 out of a total Ac. 360 in favour of
their father, late Md. Ismail. The remaining Ac. 285 continued in his
possession and, after his demise, has remained under their continuous
cultivation and possession. The said land has been cultivated by the
petitioners and their family members for over a century and constitutes
their sole means of livelihood.
(ii) The petitioners further submitted that upon learning that forest lands
under occupation were being settled under the provisions of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006, they submitted an application in January
2019 before the Sub-Collector, Malkangiri seeking verification and
issuance of an ROR in their favour.
Location: ORISSA HIGH COURT, CUTTACK
(iii) The petitioners submitted that on 06.06.2019, without conducting any
proper verification, the Sub-Collector, Malkangiri, purporting to act
under Rule 12(a)(3) read with Rule 10 of the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules,
2007, rejected their application and directed them to appear before the
Executive Magistrate-cum-Tahasildar, Motu, Malkangiri, on 21.06.2019
with all supporting documents. The petitioners stated that they duly
appeared and submitted all relevant documents.
(iv) The petitioners submitted that Rule 12-A of the Scheduled Tribes and
Other Traditional Forest Dwellers (Recognition of Forest Rights) Rules,
2007, prescribes the procedure for recognition of rights and mandates
the presence of officials from the Forest and Revenue Departments
during verification of claims and evidence on-site, requiring them to
sign the verification proceedings with their designation, date, and
remarks, if any. They submitted that a plain reading of Rule 12-A
makes it evident that the procedure contemplated therein was not
followed by the authorities while rejecting their claim. They further
submitted that despite compliance with all directions and submission
of relevant documents, no opportunity was afforded to them for
hearing, adducing evidence, or recording statements.
(v) The petitioners submitted that sub-rule (3) of Rule 12-A mandates that
any decision modifying or rejecting a claim must be communicated
personally to the claimant to enable him to prefer an appeal before the
Sub-Divisional Level Committee or the District Level Committee
within sixty days, extendable by thirty days at the discretion of the
committee. They submitted that despite submitting all documents on
Location: ORISSA HIGH COURT, CUTTACK
21.06.2019 before the Executive Magistrate-cum-Tahasildar, Motu,
Malkangiri, they were neither called for hearing within thirty days nor
granted any extension for representation within sixty days, thereby
violating the mandatory procedure prescribed under the Rules.
(vi) The petitioners submitted that although they repeatedly approached
the concerned authorities, no further action was taken. During the
COVID-19 pandemic, proceedings were suspended, however, even
after normalcy resumed, no notice was issued nor any field enquiry
conducted. They alleged that their application was kept pending
without any justification.
(vii) The petitioners submitted that on 25.05.2022, without adhering to due
procedure or complying with the provisions of the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Rules, 2007, the Executive Magistrate-cum-Tahasildar, Motu,
Malkangiri, issued the impugned notice under Section 6(1) of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006, directing them to vacate the land within
thirty days and imposing a fine of ₹5,000/-, which was allegedly
recovered through coercive means.
(viii) The petitioners finally submitted that having no other efficacious or
alternative remedy, they have approached this Court under Article 226
of the Constitution of India seeking appropriate relief.
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) Upon receipt of 'G' Form issued by the Revenue Inspector, Motu, an
Encroachment Case bearing No. 01 of 2022-23 was instituted against
the petitioner under Rule 3 of the Odisha Prevention of Land
Encroachment Rules, 1985. Notice in Form-A was duly served on the
petitioner on 25.05.2022. The petitioner appeared before the Tahasildar,
Motu. Upon verification, it was found that he is not a landless person
and possesses landed property measuring Ac. 3.537 hectares recorded
in Khata No. 208/35 of Mouza-Motu and also cultivates Ac. 4.377
hectares of agricultural land recorded in the name of his father, late
Md. Ismail Khan, in Khata No. 4 of Mouza-Baribancha.
(ii) The encroached land is classified as Gramya Jungle, which is not
leasable under law.
(iii) Section 2(o) of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 defines "other
traditional forest dweller" as a member or community residing in and
depending on forest land for at least three generations prior to
13.12.2005, with "generation" defined as twenty-five years. On this
basis, the petitioner does not qualify as a traditional forest dweller and
is not entitled to settlement of any forest land under the Scheduled
Tribes and Other Traditional Forest Dwellers (Recognition of Forest
Rights) Act, 2006.
(iv) The petitioner failed to adduce any documentary or oral evidence
supporting his claim. Consequently, assessment and penalty were
imposed, and eviction notices in Form-B and subsequently Form-J
were issued under the provisions of the Odisha Prevention of Land
Encroachment Act, 1972.
Location: ORISSA HIGH COURT, CUTTACK
(v) The petitioner neither preferred an appeal before the Sub-Collector,
Malkangiri, nor vacated the encroached land as directed. His claim was
not recommended by the Grama Sabha or the Forest Rights Committee
of village Baribancha, nor was it approved by the Sub-Divisional or
District Level Committees constituted under the the Scheduled Tribes
and Other Traditional Forest Dwellers (Recognition of Forest Rights)
Act, 2006. Hence, the present writ petition is stated to be not
maintainable either in fact or in law.
(vi) The petitioner does not belong to a Scheduled Tribe community and is
not a traditional forest dweller. Accordingly, he has no locus standi to
claim rights over forest land under the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 or
the Rules framed thereunder. Upon verification, the Sub-Collector,
Malkangiri, found him ineligible for settlement of forest land but
nevertheless afforded an opportunity to produce supporting
documents or certificates on 21.06.2019 at 10:00 A.M. before the
Executive Magistrate-cum-Tahasildar, Motu, Malkangiri. The
petitioner, however, failed to produce any such evidence.
(vii) The eviction order was passed lawfully, as the petitioner was found to
have encroached upon Ac. 3.000 hectares of forest land in Mouza-
Baribancha under Motu Tahasil. He neither appeared for further
enquiry nor submitted any document substantiating his entitlement for
recognition as a traditional forest dweller.
(viii) The application for settlement of forest land had already been rejected
by the Sub-Collector, Malkangiri, and no subsequent application is
Location: ORISSA HIGH COURT, CUTTACK
pending before the Executive Magistrate-cum-Tahasildar, Motu,
Malkangiri, in respect of the same subject matter.
(ix) Pursuant to the report of the Revenue Inspector, Motu, regarding
encroachment of Government land by the petitioner in Mouza-
Baribancha, Encroachment Case No. 01 of 2022 was registered. A
show-cause notice under Section 9 of the Odisha Prevention of Land
Encroachment Act, 1972 was issued, fixing 25.05.2022 for hearing.
During the hearing, the petitioner is stated to have admitted the
encroachment. Consequently, penalty was imposed, and the Revenue
Inspector was directed to carry out eviction of the encroached land.
IV. COURT'S REASONING AND ANALYSIS:
6. Heard learned counsel for the Parties and perused the materials placed
on record.
7. The primary question that arises for consideration before this Court is
whether the petitioners have established any enforceable right or
entitlement under the provisions of the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006
and the Rules framed thereunder, so as to warrant interference with
the impugned notices issued by the Sub-Collector and the Tahasildar,
Malkangiri.
8. Ancillary to this question is whether the procedure prescribed under
Rule 12-A of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Rules, 2007 was duly followed,
and whether the proceedings initiated under the Odisha Prevention of
Location: ORISSA HIGH COURT, CUTTACK
Land Encroachment Act, 1972 suffer from any jurisdictional or
procedural infirmity.
9. The Scheduled Tribes and Other Traditional Forest Dwellers
(Recognition of Forest Rights) Act, 2006 was enacted to recognize and
vest the forest rights of forest-dwelling Scheduled Tribes and other
traditional forest dwellers who have been residing in forest lands for
generations, but whose rights were not previously recorded.
10. Section 2(c) defines "forest dwelling Scheduled Tribe" and Section 2(o)
defines "other traditional forest dweller," requiring proof of residence
in and dependence upon forest land for at least three generations, each
generation being twenty-five years, prior to 13.12.2005.
11. Section 6 of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 prescribes a detailed
three-tier procedure for recognition of rights, commencing with the
Gram Sabha, whose recommendation is scrutinized successively by the
Sub-Divisional Level Committee and the District Level Committee.
12. Rule 12-A of the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Rules, 2007 operationalizes this
process and requires joint verification by the Revenue, Forest, and
Tribal Welfare Department officials, who must sign the verification
report with their designations, date, and remarks. Sub-rule (3) of Rule
12-A further mandates that any decision modifying or rejecting a claim
must be communicated personally to the claimant, enabling an appeal
within the prescribed period.
13. The admitted position in the present factual matrix is that the land in
question, measuring Ac. 3.000 hectares situated in Mouza-Baribancha,
Location: ORISSA HIGH COURT, CUTTACK
is classified as Gramya Jungle, a category of forest land which is neither
transferable nor leasable. It is further undisputed that the petitioner is
not a member of a Scheduled Tribe, and that the land in question
stands recorded in Government khata.
14. The petitioners' claim of long possession extending for over a century,
though asserted, remains unsupported by any contemporaneous
evidence. Apart from a ROR allegedly issued in 1973 for Ac. 75 of land
in the same mouza, no document evidencing occupation, cultivation,
or dependence on the disputed Gramya Jungle land for three
generations prior to 13.12.2005 has been produced. Mere assertion of
ancestral possession or cultivation, in absence of supporting
documentary or oral evidence, cannot establish entitlement under the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006. The burden of proving eligibility under
Section 2(o) squarely rests upon the petitioners.
15. The materials on record further indicate that the petitioners were
issued notices and were given an opportunity to appear before the
Tahasildar, Motu, on 21.06.2019. They admittedly appeared and
submitted certain documents but did not produce any cogent proof of
eligibility or of continuous occupation for the required period. The
authorities, upon verification, found that the petitioner owns and
cultivates substantial land in Mouza-Motu and Baribancha and hence
does not qualify as a landless person or as a traditional forest dweller
dependent solely on forest land for livelihood.
Location: ORISSA HIGH COURT, CUTTACK
16. The Sub-Collector, Malkangiri, thereafter rejected the petitioner's claim
and directed initiation of proceedings under the Odisha Prevention of
Land Encroachment Rules, 1985.
17. The encroachment case, instituted under Rule 3 of the Odisha
Prevention of Land Encroachment Rules, 1985, culminated in
assessment of penalty and issuance of eviction notice in Form-B
followed by Form-J. The petitioner, despite service of notice, did not
file any appeal under Section 12 of the Odisha Prevention of Land
Encroachment Act, 1972, which provides an efficacious statutory
remedy.
18. The petitioners' contention that the procedure under Rule 12-A of the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Rules, 2007 was not followed cannot be accepted in
view of the materials on record. The records disclose that notice was
issued, opportunity was afforded, and the claim was considered in
accordance with the prescribed process. There is no material to indicate
that the authorities acted beyond their jurisdiction or in violation of the
principles of natural justice.
19. Even assuming some procedural lapse, it is settled law that where
statutory authorities have considered the matter on merits and
afforded adequate opportunity of hearing, a mere technical irregularity
would not vitiate the proceedings, unless prejudice is shown. The
petitioners have not demonstrated any prejudice caused by the alleged
non-compliance.
Location: ORISSA HIGH COURT, CUTTACK
20. Further, it is trite that where an alternative and efficacious statutory
remedy is available, this Court ordinarily refrains from exercising its
jurisdiction under Article 226 of the Constitution.
21. In Radha Krishan Industries v. State of H.P.1, the Supreme Court
clearly elucidated the principles related to the scope of Article 226 in
light of the doctrine of exhaustion of alternative remedy, as replicated
hereinunder:
"27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to
issue writs can be exercised not only for the enforcement of
fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a
writ petition. One of the restrictions placed on the power of
the High Court is where an effective alternate remedy is
available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise where :
(a) the writ petition has been filed for the enforcement of a
fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural
justice; (c) the order or proceedings are wholly without
jurisdiction; or (d) the vires of a legislation is challenged.
27.4. An alternate remedy by itself does not divest the High
Court of its powers under Article 226 of the Constitution in
an appropriate case though ordinarily, a writ petition
should not be entertained when an efficacious alternate
remedy is provided by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right or
liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and
discretion.
(2021) 6 SCC 771.
Location: ORISSA HIGH COURT, CUTTACK
27.6. In cases where there are disputed questions of fact, the
High Court may decide to decline jurisdiction in a writ
petition. However, if the High Court is objectively of the
view that the nature of the controversy requires the exercise
of its writ jurisdiction, such a view would not readily be
interfered with."
22. The petitioners could have preferred appeals before the higher
committees under the Scheduled Tribes and Other Traditional Forest
Dwellers (Recognition of Forest Rights) Act, 2006 or before the
competent authority under the Odisha Prevention of Land
Encroachment Rules, 1985. In the absence of any exceptional
circumstance such as violation of natural justice, lack of jurisdiction, or
manifest illegality, a writ petition is not maintainable.
23. This Court also notes that the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act, 2006 confers
recognition of pre-existing rights rather than creation of new
entitlements. It is a beneficial legislation but not one intended to
regularize post-2005 encroachments or confer rights on non-tribal
cultivators without demonstrable historical dependence on forest land.
24. The classification of the land as Gramya Jungle is undisputed. Such land
forms an integral part of forest land vested in the State and held under
Government ownership. No right, title, or interest can accrue in such
land by mere possession, irrespective of the duration of occupation. It
is well settled that possession over Government or forest land,
however longstanding, cannot mature into ownership or confer any
legally enforceable right. Recognition of such possession would defeat
Location: ORISSA HIGH COURT, CUTTACK
the public trust doctrine and run contrary to settled principles
governing the protection of common and forest lands.
V. CONCLUSION:
25. In light of the above discussion, this Court is of the considered view
that the petitioners have failed to substantiate any right under the
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition
of Forest Rights) Act, 2006 or the Scheduled Tribes and Other
Traditional Forest Dwellers (Recognition of Forest Rights) Rules, 2007.
The authorities appear to have acted within the bounds of their
statutory powers and have afforded reasonable opportunity to the
petitioners. The impugned orders and notices do not suffer from any
illegality, perversity, or procedural impropriety warranting
interference under Article 226 of the Constitution.
26. Accordingly, the W.P.(C) No.14868 of 2022 stands dismissed as being
devoid of merit.
27. The connected Writ Petitions are also dismissed, accordingly.
28. Interim order, if any, passed earlier in any of the above-mentioned
Writ Petitions stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 31st Oct., 2025.
