For the Petitioners : M/s. Subash Mansingh,
(in W.P.(C) No. Surendra Behera and
6497 of 2024) Susanta Kumar Singh, Advocates
For the Petitioner : M/s. Gyaneswar Satpathy,
(in W.P.(C) No. B.P.B. Satpathy and
15819 of 2025) Rati Ranjan Jethi, Advocates.
And for this act of kindness, the petitioners as in duty
bound shall remain ever pray."
B. W.P.(C) No.15819 of 2025:
2.2. It is alleged that having no requisite authority, the
Road Engineering Division Authority sought to alter the
alignment of road by encroaching upon the subject land
within the Gram Panchayat area. The said road is
proposed to be realigned vide letter of approval dated
03.11.2023 issued by the Chief Engineer, (D.P.I. &
Roads) Odisha-opposite party No.8. To ventilate the
grievance, the petitioners, villagers of Village: Chunukoli,
under Mouza: Jagannathprasad, Tahasil: Bhubaneswar
in the district of Khordha, with an object to protect the
interest of Adivasi community of the Andharua Gram
Panchayat area, approached the Collector, Khordha, the
Tahasildar, Bhubaneswar and the Road Engineering
Division Authorities by submitting representation(s),
which being not attended to, the present writ petition
has been filed.
3. In order to protect the interest of public, the petitioner
came up before this Court to direct the authorities
concerned to continue with the construction of four-lane
road work from Institute of Mathematics to
Ekamrakanan via Infocity from 5/700 to 7/640
kilometres in the district of Khordha under the modified
Comprehensive Development Plan 02/2017 vide
Bhubaneswar Development Authority Notification
No.10470/BDA, dated 17.04.2018, published in the
Extraordinary issue of the Odisha Gazette bearing
No.743, dated 14.05.2018.
3.1. As responsible citizen, the petitioner preferred to draw
attention of this Court by way of instant writ petition
that in the tentative master plan of Bhubaneswar
Development Authority, the earmarked road alignment
was encountering a sharp curve which is considered by
the Engineers vulnerable and risky for movement of
vehicles and commuters. If the modified plan is not
enforced/executed the road as originally proposed would
be prone to accidents. Therefore, in the Gramasabha a
resolution of the villagers was also passed in favour of
the revised CDP. From the engineering point of view and
keeping in mind road safety parameters it was felt
expedient to modify the alignment basing on geographic
design parameter such as minimum radius of curve, i.e.,
200 metres and better design speed, i.e. 50 kilometres
per hour in conformity with the Indian Road Congress
norms. It is submitted on information gathered from
different sources that in the modified plan of alignment
of the road, care is taken to utilise most of the
Government land; nonetheless, minimal use of forest
land and private land would be ensured. Taking into
account the road safety measures in tune with the
Indian Road Congress Norms the road alignment has
been modified for public convenience to provide better
connectivity to the fast expanding city. Accordingly, the
Chief Engineer issued correspondence to the Chief
Construction Engineer on 03.11.2023 and as per the
modified plan and road alignment, construction work
was entrusted to contractor by inviting public tender.
The contractor has already commenced execution of
major portion of the road work.
3.2. The petitioner has shown anxious concern about
escalation of prices with the delay in completion of the
expansion of the road work, which would involve not
only burden on the State exchequer but also cause
inconvenience to the public.
4. On 10.07.2025 when the matter in W.P.(C) No.15819 of
2025 was taken up, on the request of the learned
counsel for the petitioner, Sri Gyaneswar Satpathy,
Advocate this writ petition was directed to be tagged to
W.P.(C) No.6497 of 2024 and for posting the matter on
24.07.2025.
4.1. On 24.07.2025 the following Order was passed:
4.2. The matter in W.P.(C) No.15819 of 2025 has been
listed along with W.P.(C) No.6497 of 2024 for couple of
occasions and Sri Subash Mansingh, learned Advocate
made his appearance in the matters, despite opportunity
being granted to file affidavit in W.P.(C) No.15819 of
2025, no affidavit has come to be filed.
5. Both the matters tagged together came up for hearing on
28.07.2025 and subsequently on 10.02.2026,
18.02.2026 and 20.02.2026. Since the matters were
taken up and substantial hearing was progressed on
28.07.2025, during preparation for dictating the
Order/Judgment this court wished to have certain
clarifications from counsel appearing for both the sides
to remove ambiguity in mind. Hence, the matter was
placed for further hearing on subsequent dates. It is
stated at the Bar that due to pendency of this case, the
widening of the road could not proceed. On the consent
of counsel appearing for respective parties, these matters
were taken up together for final hearing and disposal.
6. Sri Subash Mansingh, learned counsel appearing for the
petitioners submitted that the provisions of Section 14 of
the ODA Act read with Rule 17 of the ODA Rules, require
mandatory consultative process ensuring participation of
affected parties and stakeholders for the purpose of
modification of Comprehensive Development Plan, which
has not been undertaken; thereby, the authorities of the
Road Engineering Department has transgressed
statutory mandate. It is further stated that since the
Grama Panchayat area does not fall within the dominion
of the Bhubaneswar Development Authority and forest
clearance being not obtained, such modified plan for
laying road by encroaching upon the forest land without
protecting the original inhabitants cannot be sanctified.
6.1. He further alleged that the proposed deviation in the
CDP and realignment by virtue of approval of the Road
Engineering Division in the year 2023 smacks
arbitrariness and collusion of the authorities-opposite
parties inasmuch as to protect vested interest of the
Odisha Industrial Infrastructure Development
Corporation (IDCO).
7. The learned Additional Government Advocate appearing
for the State in response to the contents of the writ
petition and the submissions so advanced by the
learned counsel for the petitioners, referring to the reply
contained in the counter affidavit filed on behalf of the
Superintending Engineer (Roads and Building) Division
No-III, Bhubaneswar, submitted that the revised
alignment of road as reflected in Letter No.46267, dated
03.11.2023 is required to cater to the needs of the
general public keeping in view growing population in
and around Bhubaneswar City for easy ingress and
egress. The proposed deviation/realignment of road is
within the domain of the Engineering Department
concerned and such proposal for construction of road
was on the Government land. On the contrary the
petitioners are opposing developmental activity sought
to be undertaken by realigning the road to minimise
accident risks. It is vehemently contested that the
petitioners are supporting the encroachers for their
vested interest in the garb of public interest.
7.1. It is clarified that construction of 200 feet road from
"Institute of Mathematics to Ekamra Kanan via Infocity"
7.4. Having taken this Court to Annexure-C/10 enclosed
with the said counter affidavit emphasis is laid that the
Notification dated 17.04.2018, (vide Odisha Gazette
Extraordinary No.743, dated 14.05.2018) in its caption
heading very clearly stated as follows:
7.5. In the affidavit dated 16.08.2024 sworn to by the
Collector & District Magistrate, Khordha it has been
affirmed that the petitioners stated to be belonging to the
Scheduled Tribes Community/Adivasi people reside over
the Government land in Chunukoli Basti coming under
Mouza: Jagannathprasad under Bhubaneswar Tahasil is
authorised. However, with regard to modified/revised
CDP it is clarified that for construction of proposed road
project, total area required is Ac.1.536 decimal of forest
land comprising of following description:
8.1. In Jagannathprasad Mouza (Chunukoli village) out of
238 numbers of claimants received from the members of
the Scheduled Tribes Community for Individual Forest
Rights all these claims have been rejected by the District
Level Committee, Khordha constituted under the Forest
Dwellers Act, 2006 since the land in question are
occupied by them after 13.12.2005. The recognition and
vesting of the Forest Rights under the said Act to the
forest dwellers belonging to Scheduled Tribes (STs)
community and Other Traditional Forest Dwellers
(OTFDs) would be subject to the condition that such STs
or OTFDs must occupy the forest land before 13.12.2005
in view of explicit provision stipulated in Section 4(3) of
the Forest Dwellers Act, 2006. It is asserted that no
claim for Community Forest Rights or Community Forest
Resource Rights has been received in terms of the Forest
Dwellers Act, 2006 with respect to Chunukoli Village
under Jaganathprasad Mouza.
8.2. In the said counter affidavit, it has also been affirmed
that the diversion of the forest land is solely for use of
construction of proposed road as per realignment under
the duly revised CDP and the same is in consonance
with requirement under Section 4(3) of the Forest
Dwellers Act, 2006.
9. Interveners-opposite parties have filed affidavit dated
08.12.2024 represented through Sri Patitapaban Panda,
learned Advocate who submitted that the deviation/
realignment of road in the original CDP is necessitated
for safety point of view in conformity with the Indian
Road Congress norms. It is submitted that taking aid of
the Forest Dwellers Act, the petitioners seek to secure
their own encroachments over the land in question and,
therefore, the construction of road over the encroached
land being forcibly occupied is required to be removed.
9.1. He brought to the notice of this Court that these
opposite parties have approached the learned 1st
Additional Senior Civil Judge, Bhubaneswar by way of
filing Civil Suit No.1884 of 2011 which came to be
concluded vide judgment and decree dated 19.05.2018.
Some of the petitioners herein (judgment debtors) have
been directed to evict the encroached land since 2018.
He further submitted that Execution Case No.48 of 2018
in the Court of the learned 1st Additional Senior Civil
Judge, Bhubaneswar is sub judice for deployment of
police force to execute the decree. This apart, prohibitory
orders under Section 144 of the Code of Criminal
Procedure, 1973 was also clamped against them since
these petitioners have been creating disturbance and
nuisance in the locality. He submitted that the
petitioners are required to be permanently restrained to
possess the suit scheduled property and are liable to be
evicted as no appeal has been preferred against the said
judgment and decree.
9.2. He submitted that in the Civil Suit No.1884 of 2011
Sukul Hansda (petitioner No.2 in the writ application)
was arrayed as Defendant No.12. Ram Chandra Purti,
Udaynath Soren and Thakur Murmu, who were the
signatories of the alleged representation(s) annexed
under Annexure-4 series to the writ petition and their
signatures do find place at Page Nos.29 & 33
respectively, were also arrayed as Defendant Nos.15, 34
and 2 respectively. Therefore, this frivolous litigation has
been pursued notwithstanding that they are fully aware
about the judgment and decree of the Civil Court. Such
glaring factual position being intentionally suppressed
9.3. It is also urged that they have also filed their written
statement in the C.S. No.1884 of 2011 admitting that
they are the trespassers and residing over Plot No.1350,
1352, 1353, 1347, 1355, 1360 and 1522 out of which
plot No.1350, 1353 and 1355 under Khata No.156 are
recorded as private plots and the rest of the plots belong
to the State Government.
9.4. It is arduously contended to dismiss the writ petition
as the same is pursued with ill-motive to avoid execution
proceeding to be continued by the decree holders.
10. As a prelude, this Court feels it apposite to quote the
following observations made in S. Rajaseekaran Vrs.
Union of India, (2014) 5 SCR 444:
10.1. In Government of Kerala Vrs. Joseph, (2023) 11 SCR
264 it is observed that:
10.2. In M.I. Builders Pvt. Ltd. Vrs. Radhey Shyam Sahu,
(1999) 3 SCR 1066 it has been stated thus:
10.3. There can be no gainsaying that encroachers are
trespassers and, as such they have no right to obstruct
the duties of the Government in maintaining the
roadway for free flow of traffic. By causing obstruction to
lay roads with the guidance of technical experts and
based on norms specified by the Indian Road Congress,
the encroachers who besides encroaching the
Government lands sought to be used for construction of
road, create hindrance to flow of traffic. Time has now
come to discourage such encroachers though structures
are raised over the Government lands and not to allow
continuance of unlawful possession and activities by the
unscrupulous persons encroaching upon such lands
without any legitimate right. Therefore, all such cases of
illegal encroachments and unauthorised constructions
have to be dealt with sternly and swiftly. They cannot be
allowed to continue to perpetrate with impunity.
10.4. It is highlighted by this Court in Akash Singh Vrs.
State of Odisha, W.P.(C) No.26630 of 2025 (PIL), vide
Order dated 30.10.2025 qua encroachers of Government
land:
"2. As it appears from letters addressed to the
Tahasildar, Niali and the Collector, Cuttack vide
Annexure-2 series, the villagers have placed their
grievance, which has not yet been redressed. It is
brought to the notice of this Court that Government
of Odisha in Revenue and Disaster Management
Department issued a Letter No.RDM-LRGEB-POLICY-
0001-2024-21855/R&DM, dated 6th July, 2024,
addressed to all the Collectors indicating "optimum
management of land resources and removal of
encroachment". The text of said letter runs as
follows:
„With reference to the subject cited above, I am to
say that concerns have been raised by Government
on large scale encroachments at a high level
meeting. It is pertinent to mention that one of our
primary works is optimum management of land
resources and allocation of adequate land to
developmental purpose & different sectors of
economy. However, due to encroachment of
Government land in both urban & rural areas, at
times, smooth allocation of land for developmental
purpose is impaired. Moreover, the opportunity cost
of encroached Government land is unrealized in
such cases. Also, the concomitant litigation arising
out of illegal encroachment remains a challenge to all
of us.
Hence, you are requested to make a realistic survey
of rural and urban encroachments and remove
encroachments as per extant rules. Consequent
upon removal of such encroachments, you are
further requested to protect such Government land
by suitable hence and conspicuously displayed
board by utilizing the funds received in your district
for the same purpose. In case of inadequacy of fund
for the same purpose, the same may be
communicated to this Department immediately.
An action taken report on the above shall be sent to
this Department on each fortnight in the enclosed pro
forma. This may be treated as "most urgent".‟
3. Without delving into locus standi issue, we find that
the primary grievance raised in the instant writ
petition is alleged inaction on the part of the
Government authorities in not taking any
appropriate steps for removal of the encroachers
over the Government land/the other part of the land
meant for the use of the common inhabitants of the
said village.
4. Learned Additional Government Advocate appearing
for the opposite parties furnished a copy of Letter
No.RDM-LRGEB-POLICY-0001-2024-31716/R&DM.,
dated 22nd August, 2025 issued by the Government
of Odisha in Revenue and Disaster Management
Department, which is addressed to all the Collectors
for taking steps to evict encroachers from and
prevent encroachment on the Government land in the
State of Odisha. A detailed action plan with
timeline for eviction of encroachers from
Government land has been specified in the said
letter.
4.1. For clarity, the action plan is reproduced hereunder:
"Action Plan on Eviction of Encroachment and Its
Prevention:
1. Disposal of pending encroachment cases:
i. The Tahasildar shall examine all the year old
pending encroachment cases by 31.08.2025
and complete all formalities under OPLE Act,
1972 and OPLE Rule, 1985.
ii. The Tahasildar shall chalk out weekly eviction
programme in consultation with Sub-Collector.
iii. In the event of multiple encroachments at a
single location which requires an eviction
dr4ive, the Tahasildar shall place the matter
before the Sub-Collector to give appropriate
direction for coordinating among different
Departments/Agencies like Police organization
(for security and law and order situation),
Public Works Department (for demolition),
Electricity Organization (for fire protection &
emergency service) etc.
iv. The eviction shall be executed under the
supervision of Tahasildar/Additional
Tahasildar and with police protection. A
detailed proceeding of eviction including
photography and videography shall be
prepared documenting the entire eviction
process and the removal of any structures or
belongings.
v. The Tahasildar shall ensure that the land after
eviction is protected to prevent re-
encroachment. Proper boundaries/fencing
should be made soon after eviction to prevent
further encroachment.
vi. All pending encroachment cases shall be
disposed of after removing encroachment by
31.03.2026.
Disposal of Appeal Cases:
The appellate authority shall strive to dispose
of the case in a time bound manner. All appeal
cases pending before appellate authority shall
be disposed of by 30.11.2025.
2. Detection and removal of new encroachment
cases:
A. Detection of Encroachment:
As per Rule 3(1) of the Odisha Prevention of
Land Encroachment (OPLE) Rules, 1985, the
Revenue Inspector shall report the cases of
unauthorized occupation of government land to
the Tahasildar in Form-„G‟. Within fifteen days
of the case of each financial year the Revenue
Inspector shall send a certificate to the
Tahasildar that except the encroachment
already reported there is no further
encroachment in his area.
i. Revenue Inspectors and his staff conduct
routine inspections of government lands
and report about any such encroachment
to the Tahasildar in Form-„G‟ of the said
Rules by 10th of each month. Revenue
Inspector shall submit in advance the
monthly programme to Tahasildar on
demarcation and inspection of
government land.
ii. The demarcation of government land,
Inspection and identification of
encroachments on Government land
submission of report to Tahasildar by
Revenue Inspection shall be completed by
31.03.2026.
iii. The Revenue Inspectors concerned shall
submit the certificate to the Tahasildar
that except in the encroachment already
reported there is no further encroachment
in his area by 15.04.2026.
B. Initiation of new encroachment cases:
i. On receipt of report on authorized
occupation of government land from
Revenue Inspector in Form-„G‟, Tahasildar
shall forthwith enter the details in
prescribed register and initiate proceeding
under the OPLE Act, 1972 and Rules
made thereunder.
ii. The initiation of all encroachment cases
shall be completed by 30.04.2026.
C. Completion of all formalities:
The process of show cause notice, the hearing
of the person reported to be in unauthorized
occupation of the government land and passing
of eviction order shall be completed by
30.08.2026 on time bound manner in camp
courts. A detailed date wise programme shall
be communicated to be Sub-Collector in this
regard. All encroachment cases shall be
disposed of after removing encroachment by
31.03.2027.
3. Protection of valuable Government land:
Special attention should be given to protect
valuable Government land.
i. The Tahasildars shall identify and
prioritize valuable Government lands
based on their strategic importance,
economic potential or vulnerability to
encroachment.
ii. The Tahasildars shall coordinate with
executing agencies of the Government to
construct robust fencing or boundary
walls around valuable Government lands
by utilizing the funds available under the
scheme "Protection of Government Land".
iii. The Tahsildar shall utilize the unutilised
fund lying with them under the scheme
"Protection of Government land" by
31.12.2025.
4. Role of Supervisory Officers:
Supervisory officers at the Sub-Divisional and
District level are critical for oversight and
accountability:
I. Regular Review of Encroachment Cases:
The Sub-Collector at the Sub-Divisional level
shall conduct regular reviews of the progress of
disposal of encroachment cases and removal of
encroachment from Government land. The
progress will be monitored by Collector
fortnightly and be reviewed in District Revenue
Meetings. The review shall include the progress
on institutions of encroachment cases, eviction
drives and preventive measures taken, area
made free from encroachment, protection of
government land by utilizing funds placed
under the scheme "Protection of Government
land".
II. Monitoring of Eviction Drives:
They shall oversee the planning and execution
of eviction drives.
III. Coordination Meetings:
They shall conduct regular coordination
meetings with Tahasildars, Revenue
Inspectors, and other concerned Departments
to discuss encroachment issues and strategize
actions.
IV. Reporting to Higher Authorities:
They shall regularly report the status of
encroachment cases and prevention measures
to the Revenue & DM Department on monthly
basis.
SYNOPSIS OF TIMELINE
A. Disposal of pending encroachment cases and
removal of encroachments:
Timeline
i. To examine/verify all pending 31.08.2025
encroachment cases by Tahasildars
ii. To complete all formalities as per 15.09.2025
OPLE Act, 1972 and OPLE Rule, 1985
iii. Formulation of Monthly Eviction 30.09.2025
Programme
iv. Disposal of encroachment cases and 31.03.2026
removal of encroachment from
Government land
B. Detection and removal of new encroachment cases:
Timeline
i. To chalk out monthly inspection 31.08.2025
programme by Revenue Inspector
ii. Inspection and detection of 01.09.2025
encroachment and submission of to
report in Form-G to Tahasildar 31.03.2026
iii. Submission of certificate by R.I. to 15.04.2026
the Tahasildar that except the
encroachment already reported there
is no further encroachment in his
area
iv. Institution of all encroachment cases 30.04.2026
v. To complete all formalities as per 31.08.2026
Odisha Prevention of Land
Encroachment Act, 1972 and Odisha
Prevention of Land Encroachment
Rules, 1985
vi. Formulation of Monthly Eviction 30.09.2026
Programme
vii. Disposal and removal of 31.03.2027
encroachment from Government land
C. Protection of Government land:
Timeline
i. Demarcation and identification 01.09.2025 to
of valuable Government land 31.12.2025
and vulnerable to encroachment
ii. Utilisation of unutilized fund 31.12.2025
pending at Tahasil level
5. Since our attention is drawn to aforesaid
decision of Government demonstrating "no
tolerance" to any encroachment over the
Government land and the timeline has been
specified activating the process of law to
remove encroachments and evict encroachers
from the Government land by following the
procedure laid down in the relevant statute,
this Court does not feel it prudent to keep the
matter pending. The grievance of the petitioners
having been redressed in view of the aforesaid
decision taken by the Government and the law
is put in motion, we, therefore, direct the
authorities to complete the process as
expeditiously as possible in accordance with
law keeping in view the action plan and
timeline enclosed thereto as referred to above."
11. This Court appreciates the step sought to be taken by
the opposite parties against the squatters. Since the
construction of road is to be undertaken on the
Government land as per realignment/revised alignment
as reflected in Letter No.46267, dated 3.11.2023
(Annexure-2), which would cater to the exigency of the
public in view of growing population in and around
Bhubaneswar City, the appropriate authority is deemed
to have taken into consideration very many factors to
suggest for revision/realignment. Such realignment of
road is required as per Modified CDP keeping in view
safety standards which would not affect the interest of
the petitioners or the general public in any manner
whatsoever inasmuch as the land over which the
proposed road is to be constructed belongs to the
Government of Odisha.
11.1. This Court is reminded of the following observation
made in State of Odisha Vrs. Brundaban Sharma, 1995
Supp (3) SCC 249:
"5. In view of the diverse contentions, the first question
that arises for consideration is whether the
appellants are bound to acquire the land in question.
In the Collector of Bombay Vrs. Nusserwanji Rattanji
Mistri, (1955) 1 SCR 1311, 1323 = AIR 1955 SC 298
this Court while approving the ratio of Madras High
Court in Dy. Collector, Calicut Division Vrs. Aiyeru
Pillay, (1911) 9 IC 341 = (1911) 2 MWN 367 that the
Act does not contemplate or provide for the
acquisition of any interest belonging to the
Government in the land on acquisition, but only
it acquires such interest in the land as does
not already belong to the Government held that:
„When Government possesses an interest in land
which is the subject of acquisition under the Act, that
interest is itself outside such acquisition, because
there can be no question of Government acquiring
what is its own. An investigation into the nature and
value of that interest will no doubt be necessary for
determining the compensation payable for the
interest outstanding in the claimants, but that would
not make it the subject of acquisition.‟
This principle was followed in catena of decisions,
viz. Special Land Acquisition & Rehabilitation Officer
Vrs. M.S. Seshagiri Rao, (1968) 2 SCR 892 : AIR
1968 SC 1045; Ram Narain Singh Vrs. State of
Bihar, (1972) 2 SCC 532 = AIR 1972 SC 2225; Union
of India Vrs. Prafulla Kumar Samal, (1979) 3 SCC 4
= (1979) 2 SCR 229 etc. Therefore, it is settled
law that the Government, being an owner of the
land, need not acquire its own land merely
because on an earlier occasion proceedings
were mistakenly resorted to acquire the land
and later on while realising its mistake
obviously withdrew the same and published a
fresh notification in which admittedly the land
was omitted for acquisition and thereafter
proceeded to lay the road on its land. However,
the High Court found that the respondent as a
tenant under the Act and Government
unauthorisedly took possession from him and
directed the Government to pay compensation."
11.2. As per the CDP, road is realigned and the deviation
would be not on any private land, but on the
Government land. This Court takes cognizance of the
following object/plan as reflected in the counter
affidavit:
"That it is humbly submitted that construction of 200 ft
road from Institute of Mathematics to Ekamra Kanan via
Infocity from RD 5/700 to 7/640 Km 200 feet master plan
road (left parallel road) is being taken up in larger public
interest to ease traffic congestion in the existing roads.
The geographical area of Bhubaneswar city is expanding
in leaps and bounds with the coming tip of more
residential, commercial complexes, health and education
hubs etc. Expansion of communication facility is the
urgent need of the time for smooth navigation of vehicles
and safe communication of commuters. In the tentative
master plan of BDA, the earmarked road alignment
was encountering a sharp curve that would have
been risky for navigation of vehicles and commuters
and prone to accidents. Besides that a number of
important structures would have to be demolished if
the road is constructed as per the tentative
earmarked alignment. From Engineering point of view
and road safety parameters, it was felt expedient to
modify the alignment basing on geometric design
parameters, such as minimum radius of curve, i.e., 200
mtr and better design speed, i.e., 50 KMPH in conformity
with the Indian Road Congress (IRC) norms. In the
modified plan of the alignment of the road there would be
demolition of bare minimum important number of
structures land would not be affected. Keeping in view
these parameters and the road safety angles the road
alignment was modified for public convenience to provide
better connectivity to the expanding city space.
It is pertinent to state here that construction of the road in
question comes under the administrative jurisdiction of
Bhubaneswar (R&B) Division No.III. For the road
construction encumbrance free land is to be provided by
B.D.A and the District Administration following statutory
procedures. As of today, construction of the road has been
taken up where encumbrance free land is available. No
one has been threatened by the P.W.D for demolition of
houses of people coming within the purview of revised
road alignment. The road will be constructed only on the
encumbrance free land provided by the B.D.A and the
District Administration and particularly on the land
owned by the Government."
11.3. The meaning of the term "ENCUMBRANCE" was being
considered in Saraswati Devi Vrs. Delhi Development
Authority, (2013) 4 SCR 922, wherein it has been
observed thus:
"35. Concise Oxford English Dictionary [Tenth Edition,
Revised] defines „encumbrance‟--
1. a burden or impediment.
2. Law a mortgage or other charge on property or
assets.
36. Webster Comprehensive Dictionary [International D
Edition; Volume I] defines „encumbrance‟ as follows:
„1. That which encumbers.
2. Law Any lien or liability attached to real
property.
3. One‟s wife, child or dependent. Also spelled
incumbrance.
See synonyms under impediment, load [<of
encumbrance <encombrer. see encumber.]
37. In P. Ramanatha Aiyar‟s The Law Lexicon [Second
Edition Reprint 2000] with reference to a decision of
the Patna High Court in Mahadeo Prasad Sahu Vrs.
Gajadhar Prasad Sahu, AIR 1924 Patna 362, the
term „encumbrance‟ is explained as follows:
„Encumbrance. Burden or property; impediment;
mortgage or other claim on property. Grant of lands
rent free or the grant of the landlords zarait land to a
tenant for the purposes of cultivation does amount to
an encumbrance of the estate. Apart from mere
dealings such as mortgages which create a charge
upon the land, there are other dealings which
amount to an encumbrance. Anything which
interferes with the unrestricted rights of the
proprietors as they then existed would be an
encumbrance upon the land, even the granting of a
lease of zarait lands, that is to say the lands which
the landlord is entitled to hold in direct possession
and to cultivate for his own purposes. A lease of
such lands granted to an occupier in circumstances
which would give him a right of occupancy over the
land, would amount to an encumbrance.‟
38. In Collector of Bombay Vrs. Nusserwanji Rattanji
Mistri and Others, AIR 1955 SC 298, the term
„encumbrance‟ as occurring in Section 16 of the LA
Act has been explained by this Court to mean
interests in respect of which a compensation was
made under Section 11 or could have been claimed
thereunder.
39. In M. Ratanchand Chordia & Ors. Vrs. Kasim
Khaleeli, AIR 1964 Madras 209, a Division Bench of
the Madras High Court had an occasion to consider
the meaning of the word „encumbrances‟ with
reference to the 1954 Act and the LA Act in the
context of the easementary right of way. The
Division Bench considered the word „encumbrances‟
thus:
„18. The word „Encumbrances‟ in regard to a person
or an estate denotes a burden which ordinarily
consists of debts, obligations and
responsibilities. In the sphere of law it connotes
a liability attached to the property arising out
of a claim or lien subsisting in favour of a
person who is not the owner of the property.
Thus a mortgage, a charge and vendor‟s lien
are all instances of encumbrances. The essence
of an encumbrance is that it must bear upon
the property directly and indirectly and not
remotely or circuitously. It is a right in realiena
circumscribing and subtracting from the
general proprietary right of another person. An
encumbered right, that is a right subject to a
limitation, is called servient while the
encumbrance itself is designated as dominant.
...‟
40. The word „encumbrance‟, according to its ordinary
significance, means any right existing in another to
use the land or whereby the use by the owner is
restricted. The word „encumbrance‟ imports within
itself every right or interest in the land, which may
subsist in a person other than the owner; it is
anything which places the burden of a legal liability
upon property. The word „encumbrance‟ in law has
to be understood in the context of the provision
under consideration but ordinarily its ambit and
scope is wide. Seen thus, it is difficult to see why a
binding contract entered into between an auction-
purchaser and the Government on approval of the
highest bid relating to sale of property, which is part
of compensation pool under Section 14 of the 1954
Act followed by provisional possession to the
auction-purchaser, should not come within the
purview of the word „encumbrance‟."
11.4. It is affirmatively submitted by the opposite parties that
the Works Department would take up the road
construction work on encumbrance-free land handed
over by the Bhubaneswar Development Authority and
the District Administration. The modified CDP was
notified as modified CDP-02/2017 and published in the
Extraordinary issue of the Odisha Gazette on 14th May
2018. It is asserted by the opposite parties that in the
modified CDP the road alignment in question has been
modified following due process of law. It is stated that
the easy connectivity with smooth vehicular movement
and convenience of the public having regard to the road
safety parameters the alignment basing on geometric
design, such as minimum radius of curve, i.e. 200
metres and better speed, i.e., 50 KMPH in conformity
with the Indian Road Congress norms have been taken
into consideration by the technical experts. It is assured
by way of counter affidavit that in the modified
alignment of the road demolition of structures would be
at the minimal/negligible and there will be no
encroachment of reserved forest area. Keeping in view
these parameters and the road safety angles the road
alignment is modified for public convenience to provide
better connectivity to the expanding city space.
11.5. It is fairly well-established that the Court should not
venture to act as substitute for the technical experts and
decide the matters of technical nature by substituting its
view/opinion discarding the expert opinion. It can be
underscored that procedural delays and technicalities of
law should not be permitted to defeat the object sought
to be achieved by the statute and the overall public
interest and the social object is to be borne in mind
while dealing with public interest litigation particularly
when it involves public safety on roads.
11.6. Article 19(1)(e) of the Constitution of India envisages that
all citizens shall have the right to reside and settle in
any part of the territory of India. Nevertheless, it would
not mean to reside and settle in any part of the territory
of India without due acknowledgement under law, i.e.,
unauthorisedly. The law does never come to the aid of
the person who, without authority of law and illegally
squats on the property of the Government. A person who
unauthorisedly possesses the property cannot be heard
to say that he has a constitutional or statutory right to
occupy such Government property.
11.7. It is not out of place to have regard to the Judgment
dated 19.05.2018 rendered by the learned 1st Senior
Civil Judge, Bhubaneswar in CS No.1884 of 2011,
wherein the following order has been passed:
"The suit of the plaintiffs is decreed on contest against
defendants. The defendants are permanently restrained
from entering upon the suit scheduled properties given in
„A‟ to „S‟, they are liable for eviction from the above
schedule properties and are directed to hand over
possession of the plots they are in possession to the
respective recorded owners. In case the defendants failed
to evict the suit land within three months hence, the
plaintiffs are entitled to evict them and recover possession
from them by due process of law. No costs."
11.8. The intervenors by way of an affidavit dated 08.12.2024,
as has already been noticed in the foregoing paragraphs,
asserted that certain defendants in the above civil suit
are the petitioner(s) and signatories to the representation
dated 15.02.2024 filed before the Chief Secretary,
Government of Odisha with copies to many authorities of
different departments without even disclosing the order
of the learned 1st Senior Civil Judge, Bhubaneswar as
reproduced hereinabove. The present writ petition has
been filed only to delay and protract the process of
execution proceeding before the competent Court vide
Execution Case No.48 of 2018. Order dated 21.11.2022
passed in said execution case is to the following effect:
"The execution case record is put up today on the strength
of advance petition filed by the learned counsel for decree
holder No.7. Advocate Sri P.K. Samantaray and his
associates files vakalatnama on behalf of decree holder
No.7 namely Biswajit Nayak with the consent of previous
lawyer. Hence the vakalatnama is accepted. Put up on the
date fixed.
Sd/- A.K. Ota
1st Additional Civil Judge
(Senior Division), Bhubaneswar.
Later:
A Letter No.11762/DIB dated 19.11.2022 is received from
DCP, BBSR regarding deployment of police for during
execution of writ in this execution case. In this letter it is
submitted that the writ has not been executed because
the details of lands are silent and there is also not the
details of the parties are available. He has also intimated
that as per direction of Hon‟ble Court, two platoons of
male force and one platoon of female force may be
deployed for the purpose. Hence, it is requested that the
cost of deployment of police force in present scale of pay
including revised GST as per recalculation sheet attached
with the letter and return the original demand draft
bearing No.524032 dated 12.07.2022 Rs.41,090/-. The
same are kept in this record. Decree holder is directed to
deposit the cost of deployment of police force in present
scheme of pay including revised GST in proper head of
account for maintenance of law and order during
execution of writ in this execution. Put up on 07.12.2022
for deposit of cost."
11.9. It is stated at the Bar that the matter is still pending. At
this stage the observations made by the Hon'ble
Supreme Court of India through the decisions with
respect to execution proceeding may fruitfully be
referred to.
11.10. The Hon'ble Supreme Court of India made following
observations in the context of resistance to deliver
possession to the decree holder in the case of Jini
Dhanrajgir Vrs. Shibu Mathew, (2023) 5 SCR 551:
„2. More than a century and a half back, the Privy
Council (speaking through the Right Hon. Sir James
Colville) in The General Manager of The Raj
Durbhunga, Under the Court of Wards Vrs.
Maharajah Coomar Ramaput Singh, (1871-72) 14
Moo IA 605 lamented that the difficulties of litigants
in India indeed begin when they have obtained a
decree. A reference to the above observation is also
found in the decision of the Oudh Judicial
Commissioner‟s Court in Kuer Jang Bahadur Vrs.
Bank of Upper India Ltd., Lucknow, AIR 1925 Oudh
448. It was ruled there that the Courts had to be
careful to ensure that the process of the Court and
the laws of procedure were not abused by judgment-
debtors in such a way as to make the courts of law
instrumental in defrauding creditors, who had
obtained decrees in accordance with their rights.
3. Notwithstanding the enormous lapse of time, we are
left awestruck at the observation of the Privy Council
which seems to have proved prophetic. The
observation still holds true in present times and this
case is no different from cases of decree-holders‟
woes commencing while they are in pursuit of
enforcing valid and binding decrees passed by civil
courts of competent jurisdiction. The situation is
indeed disquieting, viewed from the perspective of
the decree-holders, but the law, as it stands, has to
be given effect whether the court likes the result or
not. In Martin Burn Ltd. Vrs. Corporation of Calcutta,
AIR 1966 SC 529, this Court held that a court has no
power to ignore that provision to relieve what it
considers a distress resulting from its operation.‟
11.11. An objection petition under Section 47 of Code of
Civil Procedure, 1908 should not invariably be treated as
a commencement of a new trial. [vide, MMTC Limited Vrs.
Anglo American Metallurgical Coal Pvt. Limited, (2025) 11
SCR 327]. In the case of Rahul S Shah Vrs. Jitendra
Kumar Gandhi, (2021) 4 SCR 279, following are the
observations of the Hon'ble Supreme Court of India in
connection with delay in the execution proceedings and
abuse of process of the execution court:
"23. This court has repeatedly observed that remedies
provided for preventing injustice are actually being
misused to cause injustice, by preventing a timely
implementation of orders and execution of decrees.
This was discussed even in the year 1872 by the
Privy Counsel in The General Manager of the Raja
Durbhunga Vrs. Maharaja Coomar Ramaput Sing,
(1871-72) 14 Moore‟s I.A. 605 which observed that
the actual difficulties of a litigant in India begin
when he has obtained a decree. This Court made a
similar observation in Shub Karan Bubna @ Shub
Karan Prasad Bubna Vrs. Sita Saran Bubna, (2009)
9 SCC 689, wherein it recommended that the Law
Commission and the Parliament should bestow their
attention to provisions that enable frustrating
successful execution. The Court opined that the Law
Commission or the Parliament must give effect to
appropriate recommendations to ensure such
amendments in the Code of Civil Procedure, 1908,
governing the adjudication of a suit, so as to ensure
that the process of adjudication of a suit be
continuous from the stage of initiation to the stage of
securing relief after execution proceedings. The
execution proceedings which are supposed to be
handmaid of justice and sub-serve the cause of
justice are, in effect, becoming tools which are being
easily misused to obstruct justice.
24. In respect of execution of a decree, Section 47 of CPC
contemplates adjudication of limited nature of issues
relating to execution, i.e., discharge or satisfaction of
the decree and is aligned with the consequential
provisions of Order XXI. Section 47 is intended to
prevent multiplicity of suits. It simply lays down the
procedure and the form whereby the court reaches a
decision. For the applicability of the section, two
essential requisites have to be kept in mind.
Firstly, the question must be the one arising
between the parties and
Secondly, the dispute relates to the execution,
discharge or satisfaction of the decree.
Thus, the objective of Section 47 is to prevent
unwanted litigation and dispose of all objections as
expeditiously as possible.
25. These provisions contemplate that for execution of
decrees, Executing Court must not go beyond the
decree. However, there is steady rise of proceedings
akin to a re-trial at the time of execution causing
failure of realisation of fruits of decree and relief
which the party seeks from the courts despite there
being a decree in their favour. Experience has shown
that various objections are filed before the Executing
Court and the decree holder is deprived of the fruits
of the litigation and the judgment debtor, in abuse of
process of law, is allowed to benefit from the subject
matter which he is otherwise not entitled to.
26. The general practice prevailing in the subordinate
courts is that invariably in all execution applications,
the Courts first issue show cause notice asking the
judgment debtor as to why the decree should not be
executed as is given under Order XXI Rule 22 for
certain class of cases. However, this is often
misconstrued as the beginning of a new trial. For
example, the judgement debtor sometimes misuses
the provisions of Order XXI Rule 2 and Order XXI
Rule 11 to set up an oral plea, which invariably
leaves no option with the Court but to record oral
evidence which may be frivolous. This drags the
execution proceedings indefinitely.
27. This is anti-thesis to the scheme of Civil Procedure
Code, which stipulates that in civil suit, all questions
and issues that may arise, must be decided in one
and the same trial. Order I and Order II which relate
to Parties to Suits and Frame of Suits with the object
of avoiding multiplicity of proceedings, provides for
joinder of parties and joinder of cause of action so
that common questions of law and facts could be
decided at one go.
***
40. In Ghan Shyam Das Gupta Vrs. Anant Kumar Sinha,
AIR 1991 SC 2251, this Court had observed that the
provisions of the Code as regards execution are of
superior judicial quality than what is generally
available under the other statutes and the Judge,
being entrusted exclusively with administration of
justice, is expected to do better. With pragmatic
approach and judicial interpretations, the Court
must not allow the judgment debtor or any person
instigated or raising frivolous claim to delay the
execution of the decree. For example, in suits
relating to money claim, the Court, may on the
application of the plaintiff or on its own motion using
the inherent powers under Section 151, under the
circumstances, direct the defendant to provide
security before further progress of the suit. The
consequences of non-compliance of any of these
directions may be found in Order XVII Rule 3.
41. Having regard to the above background, wherein
there is urgent need to reduce delays in the
execution proceedings we deem it appropriate to
issue few directions to do complete justice. These
directions are in exercise of our jurisdiction under
Article 142 read with Article 141 and Article 144 of
the Constitution of India in larger public interest to
subserve the process of justice so as to bring to an
end the unnecessary ordeal of litigation faced by
parties awaiting fruits of decree and in larger
perspective affecting the faith of the litigants in the
process of law.
42. All Courts dealing with suits and execution
proceedings shall mandatorily follow the below-
mentioned directions:
1. In suits relating to delivery of possession, the
court must examine the parties to the suit
under Order X in relation to third-party interest
and further exercise the power under Order 11
Rule 14 asking parties to disclose and produce
documents, upon oath, which are in possession
of the parties including declaration pertaining
to third-party interest in such properties.
2. In appropriate cases, where the possession is
not in dispute and not a question of fact for
adjudication before the Court, the Court may
appoint Commissioner to assess the accurate
description and status of the property.
3. After examination of parties under Order X or
production of documents under Order XI or
receipt of commission report, the Court must
add all necessary or proper parties to the suit,
so as to avoid multiplicity of proceedings and
also make such joinder of cause of action in the
same suit.
5. Under Order XL Rule 1 of CPC, a Court
Receiver can be appointed to monitor the status
of the property in question as custodia legis for
proper adjudication of the matter.
6. The Court must, before passing the decree,
pertaining to delivery of possession of a
property ensure that the decree is
unambiguous so as to not only contain clear
description of the property but also having
regard to the status of the property.
7. In a money suit, the Court must invariably
resort to Order XXI Rule 11, ensuring
immediate execution of decree for payment of
money on oral application.
8. In a suit for payment of money, before
settlement of issues, the defendant may be
required to disclose his assets on oath, to the
extent that he is being made liable in a suit.
The Court may further, at any stage, in
appropriate cases during the pendency of suit,
using powers under Section 151 CPC, demand
security to ensure satisfaction of any decree.
9. The Court exercising jurisdiction under Section
47 or under Order XXI of CPC, must not issue
notice on an application of third-party claiming
rights in a mechanical manner. Further, the
Court should refrain from entertaining any
such application(s) that has already been
considered by the Court while adjudicating the
suit or which raises any such issue which
otherwise could have been raised and
determined during adjudication of suit if due
diligence was exercised by the applicant.
10. The Court should allow taking of evidence
during the execution proceedings only in
exceptional and rare cases where the question
of fact could not be decided by resorting to any
other expeditious method like appointment of
Commissioner or calling for electronic materials
including photographs or video with affidavits.
11. The Court must in appropriate cases where it
finds the objection or resistance or claim to be
frivolous or mala fide, resort to Sub-rule (2) of
Rule 98 of Order XXI as well as grant
compensatory costs in accordance with Section
35A.
12. Under Section 60 of CPC the term "...in name of
the judgment-debtor or by another person in
trust for him or on his behalf" should be read
liberally to incorporate any other person from
whom he may have the ability to derive share,
profit or property.
13. The Executing Court must dispose of the
Execution Proceedings within six months from
the date of filing, which may be extended only
by recording reasons in writing for such delay.
14. The Executing Court may on satisfaction of the
fact that it is not possible to execute the decree
without police assistance, direct the concerned
Police Station to provide police assistance to
such officials who are working towards
execution of the decree. Further, in case an
offence against the public servant while
discharging his duties is brought to the
knowledge of the Court, the same must be
dealt stringently in accordance with law.
15. The Judicial Academies must prepare manuals
and ensure continuous training through
appropriate mediums to the Court
personnel/staff executing the warrants,
carrying out attachment and sale and any
other official duties for executing orders issued
by the Executing Courts."
11.12. Such guidelines/ruling of the Hon'ble Supreme
Court of India came to be passed showing anxious
consideration reflected at the first paragraph of Rahul S
Shah (supra), which is reproduced hereunder:
"The present appeals arise out of the common judgment
and order dated 16.01.2020 [Rahul S. Shah Vrs.
Jinendrakumar Gandhi, 2020 SCC OnLine Kar 2748] of
the Karnataka High Court which dismissed several writ
petitions. The course of the litigation highlights the
malaise of constant abuse of procedural provisions
which defeats justice, i.e., frivolous attempts by
unsuccessful litigants to putting up spurious
objections and setting up third parties, to object,
delay and obstruct the execution of a decree."
11.13. It may be pertinent to take note of the principle as
reiterated in Kanwar Singh Saini Vrs. High Court, Delhi,
(2011) 15 Addl. SCR 972 = (2012) 4 SCC 307 that it is a
settled legal proposition that the executing court does
not have the power to go behind the decree. Thus, in
absence of any challenge to the decree, no objection is
supposed to be entertained in execution. When a statute
gives a right and provides a forum for adjudication of
rights, remedy has to be sought only under the
provisions of that Act. When an Act creates a right or
obligation and enforces the performance thereof in a
specified manner, that performance cannot be enforced
in any other manner. Thus for enforcement of a right/
obligation under a statute, the only remedy available to
the person aggrieved is to get adjudication of rights
under the said Act.
11.14. Under the aforesaid premise, the competent
authorities are required to show utmost dispatch in
action and the procedure established in law should not
defeat justice to the citizens. Larger interest of the public
is paramount consideration; rather than interest of a
few, that too encroachers/squatters and, more
particularly judgment-debtors.
11.15. This Court now takes note of hurdle faced by the
Administration in removing the encroachments over the
Government land. The enquiry report dated 15.05.2017
was submitted by the A.S.I. of Police, Chandaka Police
Station in connection with CMC 460 of 2017 under
Section 144 of the Code of Criminal Procedure, 1973 and
Observations dated 26.05.2017 of the Additional DCP-
cum-EM, Bhubaneswar are relevant in connection with
said case. It is transpired that while carrying out
operation to remove encroachments and to wade the
persons occupying the land unauthorisedly, the
encroachers created hindrance. Hence, the
administration is to be facilitated by providing adequate
police force.
11.16. In this regard following observations of the Hon'ble
Supreme Court of India made in the case of Kaniz
Ahmed Vrs. Sabuddin & Ors., (2025) 4 SCR 2467 can be
noticed:
"5. In one of our recent pronouncements, in the case of
Rajendra Kumar Barjatya and Another Vrs. U.P.
Avas Evam Vikas Parishad and Others, reported in
2024 INSC 990 = (2024) 12 SCR 1320, we have
made ourselves very explicitly clear that each and
every construction must be made scrupulously
following and strictly adhering to the rules and
regulations. In the event of any violation, being
brought to the notice of the courts, the same should
be dealt with iron hands and any leniency or mercy
shown to the person guilty of unauthorised
construction would amount to showing misplaced
sympathy. In our decision referred to above, we
have issued the following directions:
„(i) While issuing the building planning permission,
an undertaking be obtained from the
builder/applicant, as the case may be, to the
effect that possession of the building will be
entrusted and/or handed over to the
owners/beneficiaries only after obtaining
completion/occupation certificate from the
authorities concerned.
(ii) The builder/developer/owner shall cause to be
displayed at the construction site, a copy of the
approved plan during the entire period of
construction and the authorities concerned
shall inspect the premises periodically and
maintain a record of such inspection in their
official records.
(iii) Upon conducting personal inspection and being
satisfied that the building is constructed in
accordance with the building planning
permission given and there is no deviation in
such construction in any manner, the
completion/occupation certificate in respect of
residential/commercial building, be issued by
the authority concerned to the parties
concerned, without causing undue delay. If any
deviation is noticed, action must be taken in
accordance with the Act and the process of
issuance of completion/occupation certificate
should be deferred, unless and until the
deviations pointed out are completely rectified.
(iv) All the necessary service connections, such as,
Electricity, water supply, sewerage connection,
etc., shall be given by the service provider/
Board to the buildings only after the production
of the completion/occupation certificate.
(v) Even after issuance of completion certificate,
deviation/violation if any contrary to the
planning permission brought to the notice of the
authority immediate steps be taken by the said
authority concerned, in accordance with law,
against the builder/owner/occupant; and the
official, who is responsible for issuance of
wrongful completion/occupation certificate
shall be proceeded departmentally forthwith.
(vi) No permission/licence to conduct any
business/trade must be given by any
authorities including local bodies of
States/Union Territories in any unauthorized
building irrespective of it being residential or
commercial building.
(vii) The development must be in conformity with
the zonal plan and usage. Any modification to
such zonal plan and usage must be taken by
strictly following the rules in place and in
consideration of the larger public interest and
the impact on the environment.
(viii) Whenever any request is made by the
respective authority under the planning
department/local body for co-operation from
another department to take action against any
unauthorized construction, the latter shall
render immediate assistance and co-operation
and any delay or dereliction would be viewed
seriously. The States/UT must also take
disciplinary action against the erring officials
once it is brought to their knowledge.
(ix) In the event of any application/appeal/
revision being filed by the owner or builder
against the non-issuance of completion
certificate or for regularisation of unauthorised
construction or rectification of deviation etc., the
same shall be disposed of by the authority
concerned, including the pending appeals/
revisions, as expeditiously as possible, in any
event not later than 90 days as statutorily
provided.
(x) If the authorities strictly adhere to the earlier
directions issued by this court and those being
passed today, they would have deterrent effect
and the quantum of litigation before the
Tribunal/Courts relating to house/building
constructions would come down drastically.
Hence, necessary instructions should be issued
by all the State/UT Governments in the form of
Circular to all concerned with a warning that
all directions must be scrupulously followed
and failure to do so will be viewed seriously,
with departmental action being initiated
against the erring officials as per law.
(xi) Banks/financial institutions shall sanction loan
against any building as a security only after
verifying the completion/occupation certificate
issued to a building on production of the same
by the parties concerned.
(xii) The violation of any of the directions would
lead to initiation of contempt proceedings in
addition to the prosecution under the respective
laws.‟
6. The learned counsel appearing for the petitioner
would submit that her client be given one chance to
pray for regularisation of the unauthorised
construction. We do not find any merit in such
submission. A person who has no regards for the
law cannot be permitted to pray for
regularisation after putting up unauthorised
construction of two floors. This has something
to do with the rule of law. Unauthorised
construction has to be demolished. There is no
way out. Judicial discretion would be guided
by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in
accordance with law. We are at pains to observe
that the aforesaid aspect has not been kept in mind
by many State Governments while enacting
Regularisation of Unauthorized Development Act
based on payment of impact fees.
7. Thus, the Courts must adopt a strict approach
while dealing with cases of illegal construction
and should not readily engage themselves in
judicial regularisation of buildings erected
without requisite permissions of the competent
authority. The need for maintaining such a
firm stance emanates not only from inviolable
duty cast upon the Courts to uphold the rule of
law, rather such judicial restraint gains more
force in order to facilitate the well-being of all
concerned. The law ought not to come to rescue
of those who flout its rigours as allowing the
same might result in flourishing the culture of
impunity. Put otherwise, if the law were to protect
the ones who endeavour to disregard it, the same
would lead to undermine the deterrent effect of laws,
which is the cornerstone of a just and orderly
society. [See: Ashok Malhotra Vrs. Municipal
Corporation of Delhi, W.P.(C) No.10233 of 2024
(Delhi High Court)1]"
11.17. Such observations of the Hon'ble Supreme Court of
India having substantial bearing on the issue of
providing police force to execute and effectuate the policy
of the Government to lay/construct road for safety of the
general public, the eviction process or removal of
1 Vide Order dated 07.08.2024.
encroachment is to be carried out in accordance with
law taking into account rulings of the Hon'ble Supreme
Court.
12. Another plea of the petitioners at paragraph 4.3 of the
writ petition deserves attention. The petitioners have
alleged the action of the opposite parties as
unauthorized. It is stated that the scheme for widening
of road encroaches upon the Grama Panchayat Area,
where generations of traditional forest dwellers have
established their homes and have been eking out
livelihood. It is said that in obedience to the direction of
Chief Engineer, DPI and Roads in his Letter dated
03.11.2023, the contractors engaged by the Road
Engineering Department are continuing with the
construction work attune with realignment of the road.
It is also alleged that by showing muscle power the
contractors threaten to forcibly demolish the dwelling
houses of the Adivasi people without resorting to due
process of law. On the contrary, the report of the ASI
Police as extracted hereinabove is otherwise.
12.1. To address this point agitated by the petitioners, a
glance at the Forest Dwellers Act, 2006 is necessitated.
12.2. Provisions of Sections 4 and 5 of the Forest Dwellers Act,
2006, stand thus:
"4. Recognition of, and vesting of, forest rights in forest
dwelling Scheduled Tribes and other traditional
forest dwellers.--
(1) Notwithstanding anything contained in any other
law for the time being in force, and subject to the
provisions of this Act, the Central Government
hereby recognises and vests forest rights in
(a) the forest dwelling Scheduled Tribes in States
or areas in States where they are declared as
Scheduled Tribes in respect of all forest rights
mentioned in section 3;
(b) the other traditional forest dwellers in respect
of all forest rights mentioned in section 3.
(2) The forest rights recognised under this Act in critical
wildlife habitats of National Parks and Sanctuaries
may subsequently be modified or resettled, provided
that no forest rights holders shall be resettled or
have their rights in any manner affected for the
purposes of creating inviolate areas for wildlife
conservation except in case all the following
conditions are satisfied, namely:
(a) the process of recognition and vesting of rights
as specified in section 6 is complete in all the
areas under consideration;
(b) it has been established by the concerned
agencies of the State Government, in exercise
of their powers under the Wild Life (Protection)
Act, 1972 that the activities or impact of the
presence of holders of rights upon wild animals
is sufficient to cause irreversible damage and
threaten the existence of said species and their
habitat;
(c) the State Government has concluded that other
reasonable options, such as, co-existence are
not available;
(d) a resettlement or alternatives package has
been prepared and communicated that
provides a secure livelihood for the affected
individuals and communities and fulfils the
requirements of such affected individuals and
communities given in the relevant laws and the
policy of the Central Government;
(e) the free informed consent of the Gram Sabhas
in the areas concerned to the proposed
resettlement and to the package has been
obtained in writing;
(f) no resettlement shall take place until facilities
and land allocation at the resettlement location
are complete as per the promised package;
Provided that the critical wildlife habitats from
which rights holders are thus relocated for
purposes of wildlife conservation shall not be
subsequently diverted by the State Government
or the Central Government or any other entity
for other uses.
(3) The recognition and vesting of forest rights under
this Act to the forest dwelling Scheduled Tribes and
to other traditional forest dwellers in relation to any
State or Union territory in respect of forest land and
their habitat shall be subject to the condition that
such Scheduled Tribes or tribal communities or other
traditional forest dwellers had occupied forest land
before the 13th day of December, 2005.
(4) A right conferred by sub-section (1) shall be heritable
but not alienable or transferable and shall be
registered jointly in the name of both the spouses in
case of married persons and in the name of the
single head in the case of a household headed by a
single person and in the absence of a direct heir, the
heritable right shall pass on to the next-of-kin.
(5) Save as otherwise provided, no member of a forest
dwelling Scheduled Tribe or other traditional forest
dweller shall be evicted or removed from forest land
under his occupation till the recognition and
verification procedure is complete.
(6) Where the forest rights recognised and vested by
sub section (1) are in respect of land mentioned in
clause (a) of sub-section (1) of section 3 such land
shall be under the occupation of an individual or
family or community on the date of commencement
of this Act and shall be restricted to the area under
actual occupation and shall in no case exceed an
area of four hectares.
(7) The forest rights shall be conferred free of all
encumbrances and procedural requirements,
including clearance under the Forest (Conservation)
Act, 1980, requirement of paying the „net present
value‟ and „compensatory afforestation‟ for diversion
of forest land, except those specified in this Act.
(8) The forest rights recognised and vested under this
Act shall include the right of land to forest dwelling
Scheduled Tribes and other traditional forest
dwellers who can establish that they were displaced
from their dwelling and cultivation without land
compensation due to State development
interventions, and where the land has not been used
for the purpose for which it was acquired within five
years of the said acquisition.
5. Duties of holders of forest rights.--
The holders of any forest right, Gram Sabha and
village level institutions in areas where there are
holders of any forest right under this Act are
empowered to--
(a) protect the wild life, forest and biodiversity;
(b) ensure that adjoining catchments area, water
sources and other ecological sensitive areas
are adequately protected;
(c) ensure that the habitat of forest dwelling
Scheduled Tribes and other traditional forest
dwellers is preserved from any form of
destructive practices affecting their cultural
and natural heritage;
(d) ensure that the decisions taken in the Gram
Sabha to regulate access to community forest
resources and stop any activity which
adversely affects the wild animals, forest and
the biodiversity are complied with."
12.3. Aforesaid provisions would show that not only rights are
conferred but duties are also accompanied with such
rights. The pleading of the writ petition does not reveal
such duties have been performed by the claimants.
Section 4(3) also makes it abundantly clearly that the
forest dwelling of the communities mentioned therein in
respect of forest land and their habitat are to be
recognised and vested, subject to the condition that
such Scheduled Tribes or tribal communities or other
traditional forest dwellers must have occupied forest
land before the 13th day of December, 2005. The fact
affirmed by the Deputy Director, Scheduled Tribes and
Scheduled Caste Development, Minority and Back
Classes Welfare Department of Government of Odisha in
counter affidavit dated 19.12.2024 reveals that the
claims of 238 numbers of persons belonging to
Scheduled Tribes community stood rejected for "the land
has been occupied by them after 13th December, 2005.
The recognition and vesting of forest rights under the
Forest Dwellers Act, 2006 to the forest dwelling
Scheduled Tribes and other Traditional Forest Dwellers
is subject to condition" that such persons must lead
evidence that they have come to occupy the forest land
before 13.12.2005 as envisaged under Section 4(3) of the
said Act. It is also asserted that no claim for community
forest rights or community forest resource rights have
been received in respect of Chunukuli Village under
Jagannath Prasad Mouza. Thus, the petitioners have not
made out any case by way of the writ petition that they
have occupied the land prior to 13.01.2005. Rather it
emanates from the pleadings and not disputed by the
petitioners that no claim is pending before the
competent authority under the Forest Dwellers Act, 2006
and the Civil Suit has been decreed against them. The
position with respect to judgment and decree of the Civil
Court and the execution proceeding remained
uncontroverted by the petitioners.
12.4. The Forest Dwellers Act, 2006 cannot be used as a tool
to hinder activity of development and construction of
road for the safety of the common citizens. Said Act does
not pose restriction to development in a prohibitive
sense; rather, it mandates a specific, legally binding
process that must be followed before forest land can be
diverted for any project, including road construction.
This process involves the recognition of forest rights and,
crucially, the free, prior, and informed consent of the
Grama Sabha. Failure to adhere to these provisions can
and often does lead to legal challenges, project delays,
and even abandonment, effectively hindering the
progress until compliance is achieved.
12.5. It transpires from the fact affirmed by the Deputy
Director, Scheduled Tribes and Scheduled Caste
Development, Minority and Back Classes Welfare
Department of Government of Odisha in counter affidavit
dated 19.12.2024 that in the list of rejected individual
forest rights claims by the District Level Committee,
Khordha, two of the petitioners of the instant writ
petition namely petitioner Nos.2 and 3 (Sukul Hansdah
and Narayan Hansdah) are included in the list whose
claims of occupation of land as members of Scheduled
Tribes community stood rejected and the reason thereto
was also communicated to them. In this connection it
may not be irrelevant to take note of factors which
created stumbling block in proceeding with the
developmental work like laying road by realigning. The
Enquiry Report dated 15.05.2017 vide Reference CMC
460/2017 under Section 144 of the Code of Criminal
Procedure, 1973 submitted by the ASI of Police,
Chandaka Police Station reveals that:
"During my inquiry I ascertained that the land is situated
in Mouza: Jagannath Prasad, Khata No.156, Plot No.1355
kisam Sarada-3, area Ac.0.375 dec. and was originally
stand recorded in the name of one 1. Nabakishore
Baghasingh, son of Raghunath Baghasingh, 2.
Nabakishore Rautray, Son of Biswambar Rautray, 3.
Padmanava Pradhan, son of Siba Pradhan, 4. Bidhar
Singh, son of Iswar Singh, 5. Dhada Prarida, son of
Adhikari Parida, 6. Fakira Parida, son of Rahasa Parida
all are residents of Village: Andharua and due to legal
necessity the co-sharer Arikishta Pradhan, the legal heir
of Padmanava Pradhan and Dhada Parida, son of
Adhikari Parida, and Suma Bewa wife of Lokanath
Parida has sold there share to Bijaya Ketan Gadabada.
Thereafter there was a partition between among the
recorded tenant Nabakishore Baghasingh, son of
Raghunath Bagha Singh, Prahalad Singh, Lalata Singh,
Malayabanta Singh, Alekha Singh all are son of Late
Bidhar Singh and Bijaya Ketan Gadabada in which
Bijaya Ketan Gadabada has got his share. While the
situation stood thus, due to legal necessity Bijayketan
Gadabada had sold an area A0.115 dec. including road
(A0.015 dec.) to one Bijaya Kumar Panda. The said Bijaya
Kumar Panda, son of Dibyasingh Panda to fulfill his legal
necessity had sold his purchased area A0.115 dec to
Mamata Panda the 1st Party vide RSD No.573 dated
17.01.2009 and the date of purchased the 1st party is the
absolute owner and is in possession over the same.
In the meanwhile the 1st Party has applied for correction
of record in her favour before the Tahasildar,
Bhubaneswar vide Mutation Case No.2971/2015 and
obtain the mutation ROR in her favour and paying rent to
the Government. It is further submitted that the first party
has produced necessary documents in support of her
claim and substantiates the facts as narrated above.
Notice served to the second parties and asked to
produced the document regarding their ownership but
they failec to produce local any document. The 2nd party
members are the local inhabitants and are rowdy in
nature having muscle power and are always in drunken
condition and they are in habits of creating nuisance and
trying to set up fictitious claim and indulging in all
unlawful activities with an ulterior motive to grab the
property of 1st party members. However there is every
apprehension of breach of peace, law and order problem,
which may loss to life and property of the 1st party. Both
the parties warned against breach of peace and strict vigil
is being maintained.
The 2nd party are directed not to raise any obstruction to
the 1st party‟s property for her enjoyment till disposal of
the case both the parties are directed to maintain peace in
the locality."
12.6. The Deputy Director, Scheduled Tribes and Scheduled
Caste Development, Minority and Backward Classes
Welfare Department of Government of Odisha has made
candid statement in counter affidavit dated 19.12.2024
that the special Grama Sabha was convened in
Andharua Grama Panchayat Office and a Resolution
dated 08.12.2023 was passed favouring construction of
road in order to facilitate communication and free-flow of
traffic to avoid accidents. In such view of the matter, the
objection in this regard by the petitioners is found to be
without any substance. It emanates from the facts so
narrated above that the claim of the petitioners that they
have been residing for long years which extended their
right in terms of the Forest Dwellers Act, 2006 appears
to be a myth.
13. With respect to deviation of original CDP of the BDA, it
can be stated that the area declared is only tentative for
the proposed laying of road. Nevertheless, while
undertaking the actual work, there arose requirement of
deviation by utilising the Government land looking at the
situational advantage of the land, growing population
with frequency of vehicular movement, accident risk and
possible future need for expansion and very many
factors. For stalling the developmental activity the
process of writ Court cannot be used/abused.
13.1. In view of the above discussions and this Court
appreciating the step taken by the agencies/
functionaries of the Government towards common good
and in the larger public interest in order to lay road with
adequate width facilitating free-flow of traffic, this Court
desists from granting any relief to the present writ
petitioners. At this juncture, it may be apposite to notice
the guidelines envisioned by the Hon'ble Supreme Court
of India in the case of In re: Manoj Tibrewal Akash,
(2024) 11 SCR 2348:
"29. The petitioner has alleged that the demolition was a
reprisal for a newspaper report which contained
allegations of wrongdoing in relation to the
construction of the road in question. We need not
engage with this aspect, save and except to the
extent that it supplies the background to the
grievance of the petitioner. In any case, such high-
handed and unilateral action by the State
Government cannot be countenanced. Justice
through bulldozers is unknown to any civilized
system of jurisprudence. There is a grave danger
that if high handed and unlawful behaviour is
permitted by any wing or officer of the State,
demolition of citizens‟ properties will take place as a
selective reprisal for extraneous reasons. Citizens‟
voices cannot be throttled by a threat of destroying
their properties and homesteads. The ultimate
security which a human being possesses is to the
homestead. The law does not undoubtedly condone
unlawful occupation of public property and
encroachments. There are municipal laws and town
planning legislation which contain adequate
provisions for dealing with illegal encroachments.
Where such legislation exists the safeguards which
are provided in it must be observed. We propose to
lay down certain minimum thresholds of
procedural safeguards which must be fulfilled
before taking action against properties of
citizens. The State must follow due process of law
before taking action to remove illegal encroachments
or unlawfully constructed structures. Bulldozer
justice is simply unacceptable under the rule of law.
If it were to be permitted the constitutional
recognition of the right to property under Article
300A would be reduced to a dead letter. Officials of
the state who carry out or sanction such unlawful
action must be proceeded against for disciplinary
action. Their infractions of law must invite criminal
sanctions. Public accountability for public officials
must be the norm. Any action in respect of public or
private property must be backed by due process of
law.
30. Before acting in pursuance of a road widening
project, the State or its instrumentalities must:
(i) Ascertain the existing width of the road in terms of
official records/maps;
(ii) Carry out a survey/demarcation to ascertain
whether there is any encroachment on the existing
road with reference to the existing records/maps;
(iii) If an encroachment is found, issue a proper, written
notice to the encroachers to remove the
encroachment;
(iv) In the event that the noticee raises an objection with
regard to the correctness or the validity of the notice,
decide the objection by a speaking order in due
compliance with the principles of natural justice;
(v) If the objection is rejected, furnish reasonable notice
to the person against whom adverse action is
proposed and upon the failure of the person
concerned to act, proceed in accordance with law, to
remove the encroachment unless restrained by an
order of the competent authority or court; and
(vi) If the existing width of road including the State land
adjoining the road is not sufficient to accommodate
the widening of the road, steps must be taken by the
State to acquire the land in accordance with law
before undertaking the road widening exercise."
13.2. While observing that developmental works catering to
the needs of the people cannot be put to grinding halt
using subterfuge by encroachers, some of whom were
also parties before the civil Court against whom suit is
decreed and the execution case is stated to be pending,
it is, also necessary to follow the guidelines envisioned
by the Hon'ble Supreme Court of India as culled out
above. Ensuring safeguards the functionaries/opposite
parties may proceed to complete the project in question.
14. Before parting, this Court would wish to make this
observation that the writ petition filed by the petitioners
is replete with suppression of material facts. The
interveners by way of application bearing I.A. No.9945 of
2024 have brought forth that much attempts were made
to evict the encroachers from the occupation of
Government land by way of instituting Execution
Proceeding before the Civil Court, yet the petitioners
could be successful in their evil design by filing the writ
petition by adopting dubious device. To examine the
veracity of such contention of the interveners while going
through the record it came to be noticed that vide Order
dated 19.03.2025 while noting the submission of the
counsel for the petitioners that in order to avoid
acquisition process, the Chief Engineer communicated
by a Letter dated 03.11.2023 addressed to the Chief
Construction Engineer instructing to proceed with the
execution of the work as per revised alignment plan,
afforded opportunity to the petitioners to file rejoinder
against the counter affidavits. However no rejoinder
affidavit is found to have been filed by the petitioners.
14.1. The contents of writ petition do not disclose that the
claim of certain petitioners under the Forest Dwellers
Act, 2006 stood rejected. Furthermore, the writ petition
is silent about decree being passed against certain
petitioners by the learned Civil Court. It is manifest from
the pleadings that only to thwart the execution
proceeding certain petitioners-judgment debtors joined
hands with other petitioners while filing the instant writ
petition. The fact of institution of execution case in
connection with decree passed against those judgment-
debtors, who are petitioners in the instant writ petition,
vide Judgment dated 19.05.2018 of the 1st Senior Civil
Judge, Bhubaneswar in CS No.1884 of 2011 has been
suppressed. Such vital factual aspects have been
suppressed. It is not a case of a mere third persons
moving the Court simpliciter on behalf of Adivasi or
aboriginal people; but knowing fully well their
applications had been rejected for want of material being
placed before the competent authority in terms of
requirement under the Forest Dwellers Act. This apart
certain petitioners are required to be evicted by virtue of
decree passed against them. Thus, it is a case of definite
abuse of process of court, justice and is a motivated
attempt based on falsehood to misguide the Court.
14.2. Noteworthy here to mention that in State of Odisha Vrs.
Laxmi Narayan Das, (2023) 10 SCR 1049 in the context
of non-disclosure of civil suit being withdrawn for
claiming identical relief in the writ petition, the
observations of the Hon'ble Supreme Court of India
proceeded as follows:
"39. The writ petition also ought to be dismissed on the
ground of concealment of material facts regarding
filing and withdrawal of the civil suit claiming the
same relief. Neither in the writ petition nor in the
appeal against the order passed in the writ petition,
the respondents disclosed the filing of civil suit and
withdrawal thereof. It only transpired only that at
the time of the hearing of the appeal.
40. As to how a litigant who conceals material facts from
the Court has to be dealt with, has been gone into by
this Court, time and again in plethora of cases and
the consistent opinion is that, he is not entitled even
to be heard on merits."
14.3. In K.D. Sharma Vrs. Steel Authority of India Limited
and others, (2008) 10 SCR 454, it was observed:
"36. A prerogative remedy is not a matter of course. While
exercising extraordinary power a Writ Court would
certainly bear in mind the conduct of the party who
invokes the jurisdiction of the Court. If the applicant
makes a false statement or suppresses material fact
or attempts to mislead the Court, the Court may
dismiss the action on that ground alone and may
refuse to enter into the merits of the case by stating
„We will not listen to your application because of
what you have done‟. The rule has been evolved in
larger public interest to deter unscrupulous litigants
from abusing the process of Court by deceiving it.
38. The above principles have been accepted in our legal
system also. As per settled law, the party who
invokes the extraordinary jurisdiction of this Court
under Article 32 or of a High Court under Article 226
of the Constitution is supposed to be truthful, frank
and open. He must disclose all material facts
without any reservation even if they are against him.
He cannot be allowed to play „hide and seek‟ or to
„pick and choose‟ the facts he likes to disclose and to
suppress (keep back) or not to disclose (conceal)
other facts. The very basis of the writ jurisdiction
rests in disclosure of true and complete (correct)
facts. If material facts are suppressed or distorted,
the very functioning of Writ Courts and exercise
would become impossible. The petitioner must
disclose all the facts having a bearing on the relief
sought without any qualification. This is because,
„the Court knows law but not facts‟.
39. If the primary object as highlighted in Kensington
Income Tax Commrs., (1917) 1 KB 486 = 86 LJKB
257 = 116 LT 136 (CA) is kept in mind, an applicant
who does not come with candid facts and "clean
breast" cannot hold a writ of the court with "soiled
hands". Suppression or concealment of material
facts is not an advocacy. It is a jugglery,
manipulation, manoeuvring or misrepresentation,
which has no place in equitable and prerogative
jurisdiction. If the applicant does not disclose all the
material facts fairly and truly but states them in a
distorted manner and misleads the court, the court
has inherent power in order to protect itself and to
prevent an abuse of its process to discharge the rule
nisi and refuse to proceed further with the
examination of the case on merits. If the court does
not reject the petition on that ground, the court
would be failing in its duty. In fact, such an
applicant requires to be dealt with for contempt of
court for abusing the process of the court."
14.4. The judicial precedents have consistently held that
suppression of material fact by a litigant disqualifies
them from obtaining any relief. One who seeks equity
must do equity. Approaching the Court with unclean
hands and multiple proceedings amounts to abuse of
process. It is relevant to refer to a decision of the
Supreme Court of India in Ramjas Foundation Vrs. Union
of India, (2010) 14 SCC 38, wherein it is held that if a
litigant did not come to the Court with clean hands, he
is not entitled to be heard and indeed such a person is
not entitled to any relief from any judicial forum. The
Hon'ble Supreme Court of India in the case of S.J.S.
Business Enterprises Pvt. Ltd. Vrs. State of Bihar, (2004)
SCR 56 held as follows:
"13. As a general rule, suppression of a material
fact by a litigant disqualifies such litigant
from obtaining any relief. This rule has been
evolved out of the need of the courts to deter a
litigant from abusing the process of court by
deceiving it. But the suppressed fact must be a
material one in the sense that had it not been
suppressed it would have had an effect on the
merits of the case. It must be a matter which was
material for the consideration of the court, whatever
view the court may have taken."
14.5. In Pandurang Vithal Kevne Vrs. Bharat Sanchar Nigam
Limited, (2024) 12 SCR 2113 the following view is
expressed by the Hon'ble Supreme Court of India for
misrepresenting the facts before the Court in pursuing
frivolous litigation:
"18. The petitioner‟s repeated and frivolous litigation has
wasted the court‟s valuable time and resources. It is
in interest of justice that genuine and timely claims
are addressed efficiently, without being hindered by
such unscrupulous litigation. We may refer here an
observation given by this Court in Subrata Roy
Sahara Vrs Union of India, (2014) 8 SCC 470:
„150. The Indian judicial system is grossly afflicted,
with frivolous litigation. Ways and means need
to be evolved, to deter litigants from their
compulsive obsession, towards senseless and
ill-considered claims. One needs to keep in
mind, that in the process of litigation, there is
an innocent sufferer on the other side, of every
irresponsible and senseless claim. He suffers
long drawn anxious periods of nervousness
and restlessness, whilst the litigation is
pending, without any fault on his part.‟
19. This Court in Dalip Singh Vrs. State of Uttar Pradesh
and others, (2010) 2 SCC 114 has strongly
condemned litigants who use the justice system for
their benefit and thereby attempt to pollute the
streams of justice. It was observed as under:
„1. In last 40 years, a new creed of litigants has
cropped up. Those who belong to this creed do
not have any respect for truth. They
shamelessly resort to falsehood and unethical
means for achieving their goals. In order to
meet the challenge posed by this new creed of
litigants, the courts have, from time to time,
evolved new rules and it is now well
established that a litigant, who attempts to
pollute the stream of justice or who touches the
pure fountain of justice with tainted hands, is
not entitled to any relief, interim or final.‟
20. Time and again, this Court has raised deterrence
against frivolous appeals and petitions by imposition
of costs on the litigating parties. This court in the
case of K.C. Tharakan Vrs State Bank of India &
Ors., Writ Petition (Civil) Diary No(s). 27458/2022
decided on 01.05.2023 held the following:
„No legal system can have a scenario where a
person keeps on raking up the issue again and
again once it is resolved at highest level. This is
complete wastage of judicial time. We, thus, dismiss
this petition with costs, though we limit the amount
of costs considering the petitioner is a dismissed
person. The writ petition is dismissed with costs of
Rs.10,000/- to be deposited with the Supreme Court
Advocates-on-Record Welfare Fund to be utilized for
the SCBA library.‟ ***"
14.6. There is no iota of doubt for the proposition that long
duration of illegal occupation confers no legal right; mere
passage of time in possessing the Government land and
construction of residence do not vest any right or create
any adverse title against the true owner. In the case of
Jagpal Singh Vrs. State of Punjab, (2011) 2 SCR 250 it
has emphatically been held that encroachers or
trespassers cannot claim legal right to continue with the
possession of the public property, and no equity arises
in their favour for they have erected structures or stayed
for many years. The Court held as follows:
"14. *** In Friends Colony Development Committee Vrs.
State of Orissa, (2004) 8 SCC 733 this Court held
that even where the law permits compounding of
unsanctioned constructions, such compounding
should only be by way of an exception. In our
opinion this decision will apply with even greater
force in cases of encroachment of village common
land. Ordinarily, compounding In such cases should
only be allowed where the land has been leased to
landless labourers or members of 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.
***
22. 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 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."
14.7. Under the above premises, having suppressed the
material fact, the petitioners are not entitled to be heard
and/or granted relief prayed for in the writ petition.
Conclusion:
15. Upon perusal of record this Court is satisfied to observe
that the petitioners have concealed material facts to seek
favour from this Court. The documents produced by the
intervener petitioners regarding such concealment
evince the conduct of the petitioners. The land in
question over which the writ petitioners have been
claiming Forest Rights was the subject matter in C.S.
No. 1884 of 2011 and the Civil Court judgment and
decree has been passed against certain writ petitioners
for eviction since 2018 and inquiry reports against them
have been submitted in connection with petition under
Section 144 of the Code of Criminal Procedure, 1973. It
emanates from such Reports that they are creating
disturbances and nuisance in the locality and
obstructed in the process of recovery of Government
lands and prevented true owners to enter into their
plots. No objection or affidavit in opposition has been
filed by the petitioners to such factual position narrated
in the intervention petition by the interveners. It is
noteworthy that the learned Civil Court vide Judgment
dated 19.05.2018 in C.S. No. 1884 of 2011 for
permanent injunction, eviction and recovery of
possession, decreed on contest against the defendants
therein directing for handing over the possession of the
plots to the true owners within three months. The
petitioners have not approached this Court with clear
heart and mind, clean hands and clean objective and
have suppressed the material facts. As it is found that
the petitioners are seeking to protect the rank-
encroachers, the illegal possession cannot be permitted
to be continued, that too, under the order of the Court,
as it is the bounden duty of the Court to ensure that
such wrongdoers are discouraged at every stage and not
permitted to prolong the litigation.
16. Therefore, given the aforesaid consistent view expressed
by the Supreme Court of India, and appreciating the
policy decision of the Government of Odisha showing
concern over removal of the encroachments and eviction
of the encroachers from the Government land and all
other factors discussed hereinabove, the writ petition
bearing W.P.(C) No.6497 of 2024 is liable to be dismissed
and this Court does so. Since said writ petition is
dismissed and this Court feels no necessity in passing
separate order in W.P.(C) No.15819 of 2025, as the
purpose for filing the writ petition has been addressed to
in the foregoing paragraphs.
17. The opposite parties/authorities are now required to
adhere to not only the principles enunciated by the
Hon'ble Supreme Court of India as discussed in the
foregoing paragraphs but also the policy of the
Government of Odisha as reflected in decision of this
Court in the case of Akash Singh Vrs. State of Odisha,
W.P.(C) No.26630 of 2025 (PIL), vide Order dated
30.10.2025 qua encroachers of Government lands
(extracted hereinbefore) and proceed to accomplish the
incomplete project of widening/expansion of the road as
described in the revised/modified Comprehensive
Development Plan.
18. With such observation and direction, these writ petitions
bearing W.P.(C) Nos.6497 of 2024 and 15819 of 2025 are
disposed of and pending interlocutory application(s), if
any, shall stand disposed of, but in the circumstances,
there shall be no order as to costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR High Court of Orissa, Cuttack
SETHY
Designation: Personal Assistant The 18th March, 2026//Aswini/Bichi/MRS/Laxmikant
(Secretary-in-charge)
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 18-Mar-2026 17:41:20
