Jagannath Biswal And Another vs State Of Odisha And Ors. .... Opposite ...
2025 Latest Caselaw 8057 Ori

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.

Location: ORISSA HIGH COURT, CUTACK

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.

Location: ORISSA HIGH COURT, CUTACK

(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.

Location: ORISSA HIGH COURT, CUTACK

(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

Location: ORISSA HIGH COURT, CUTACK

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.

Location: ORISSA HIGH COURT, CUTACK

(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

Location: ORISSA HIGH COURT, CUTACK

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.

Location: ORISSA HIGH COURT, CUTACK

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

Location: ORISSA HIGH COURT, CUTACK

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

Location: ORISSA HIGH COURT, CUTACK

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

Location: ORISSA HIGH COURT, CUTACK

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

(2011) 11 SCC 396.

Location: ORISSA HIGH COURT, CUTACK

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

Location: ORISSA HIGH COURT, CUTACK

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.

Location: ORISSA HIGH COURT, CUTACK

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/