Orissa High Court · 1965
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 18417 of 2011 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950). Subasini Hota & Ors. &. Petitioner(s) -versus- State of Odisha & Ors. &. Opposite Party (s) Advocates appeared in the case through Hybrid Mode: : For Petitioner(s) M/s. Manoj Kumar Mishra, Sr. Adv. Along with Mr. S. S. Parida, Adv. For Opposite Party (s) : Ms. Gayatri Patra, ASC CORAM: DR. JUSTICE SANJEEB K PANIGRAHI DATE OF HEARING:-23.09.2025 DATE OF JUDGMENT: -31.10.2025 Dr. Sanjeeb K Panigrahi, J. 1. The Petitioners have filed the present Writ Petition assailing the order dated 16.01.2010 passed by the learned Revenue Divisional Commissioner, Northern Division, Sambalpur in E.C. Revision Case No. 3 of 2003, whereby the said revision filed by the State of Odisha was allowed, setting aside the order dated 16.11.1988 passed by the learned Additional District Magistrate, Baragarh in E.C. Revision Case Nos. 1, 2 and 5 of 1988, after a lapse of more than fifteen years. I. FACTUAL MATRIX OF THE CASE:
Facts
2. The brief facts of the case are as follows: Page 1 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 (i) The land in question, measuring Ac.0.46 dec. under Plot No.491/3762 and Ac.0.06 dec. under Plot No.491/3861, both under Khata No.1427 of Mouza3Barpali, was originally recorded as Choukidari Jagir land and enjoyed by one Gayadhar Mallik, the then Choukidar of village Barpali. Upon abolition of the office of Village Police Officers under the Orissa Offices of Village Police (Abolition) Act, 1964, the said lands vested in the State Government free from all encumbrances with effect from 1 July 1965. (ii) Subsequently, V.P.A. Case No.21 of 1966367 was initiated against the said Choukidar. In the said proceeding, the grandmother, father, and uncle of Petitioner No.2 claimed possession over portions of the land on the basis of long, continuous, and undisputed occupation. It was stated
Legal Reasoning
Nos.1 and 2 approached this Court in O.J.C. No.15686 of 1997 seeking implementation of the order dated 16 November 1988. This Court issued notice and, by interim order dated 13 November 1997, restrained the Page 3 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 authorities from evicting the petitioners from the land, and the interim order was periodically extended. (viii) While the matter so remained pending, the State of Odisha filed E.C. Revision Case No.3 of 2003 before the Revenue Divisional Commissioner challenging the order dated 16 November 1988. In response to notice, the petitioners entered appearance and filed objections contending that the revision was barred by limitation and not maintainable for non-joinder of necessary parties. (ix) The Revenue Divisional Commissioner, however, by order dated 16 January 2010, allowed the said revision and set aside the order of the Additional District Magistrate dated 16 November 1988. The said order was passed without proper participation of the petitioners, who came to know of it only on 16 May 2011. On obtaining a certified copy of the order, the petitioners learnt that their previous counsel had expired in 2009. (x) Subsequent to the order dated 16 January 2010 passed by the Revenue Divisional Commissioner, steps were initiated by Opposite Party No.6 for eviction of the petitioners from the land in question, whereupon the petitioners filed the present writ petition challenging the said order. II. SUBMISSIONS ON BEHALF OF THE PETITIONERS: 3. Learned counsel for the Petitioners earnestly made the following submissions in support of his contentions: (i) The impugned order passed by the learned Revenue Divisional Commissioner is illegal, arbitrary, and contrary to the evidence on record. It has been passed behind the back of the petitioners and in Page 4 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 violation of the principles of natural justice, and is therefore liable to be set aside. (ii) The learned Additional District Magistrate, after considering the petitioners9 long-standing and continuous possession, rightly directed the Sub-Divisional Officer, Bargarh, to settle the land in their favour. However, the Revenue Divisional Commissioner, without jurisdiction and without affording an opportunity of hearing, admitted and allowed the revision after a lapse of fifteen years, thereby setting aside the well- reasoned order of the Additional District Magistrate. The said action, being arbitrary and in gross violation of the principles of natural justice, is unsustainable in law. (iii) The Revenue Divisional Commissioner had no power, authority, or jurisdiction to interfere with or set aside the order passed by the learned Additional District Magistrate in exercise of statutory powers under Section 3(a) of the Odisha Prevention of Land Encroachment Act, 1972. Consequently, the impugned order is void ab initio and without jurisdiction. (iv) The orders passed in E.C. Revision Case Nos. 1, 2, and 5 of 1988 by the learned Additional District Magistrate could not lawfully be challenged through a single revision. The composite order, having been passed in a statutory proceeding, attained finality and could not be reopened by way of a second revision, which is impermissible in law. (v) E.C. Revision Case No.3 of 2003, filed by the State before the Revenue Divisional Commissioner challenging the order dated 16.11.1988 of the Additional District Magistrate, was not maintainable for non-joinder of necessary parties. Several persons, including Indramani Sahu, Page 5 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 Khetrabasi Meher, Surubabu Meher, son of late Sunder Meher, Pandaba Seth, Dukhu Seth, Hasaru Pradhan, Lata Barai, Purnabasi Sahu, Sk. Farid, Mahabir Khatua, and Harisankar Koka, who were petitioners in the earlier revision, were not impleaded, and only Nabin Ch. Meher was made a party. The revision was therefore incompetent and could not have been entertained. (vi) Consequent upon the abolition of the offices of Village Police Officers, the land in question vested in the Government free from all encumbrances. Thereafter, V.P.A. Case No.21 of 1966367 was initiated for settlement, wherein the petitioners filed claims asserting their long- standing possession. The learned Tahasildar, after due inquiry, referred the matter to the Sub-Divisional Officer for settlement. When the Sub- Divisional Officer remanded the case without justification, the petitioners preferred E.C. Revision Case Nos. 1, 2, and 5 of 1988 before the Additional District Magistrate, Sambalpur, who, upon examining the records, rightly directed that the land be settled in favour of the petitioners. The finding of the Revenue Divisional Commissioner that the V.P.A. case was not finally disposed of, and his direction for initiation of a fresh encroachment case, are contrary to record, erroneous in fact and law, and wholly unsustainable. (vii) The petitioners have been in continuous, peaceful possession of the case land for over thirty-five years, and their possession has been recognized by the revenue authorities. The interference by the Revenue Divisional Commissioner after fifteen years, without jurisdiction or valid reason, is
Arguments
that Smt. Rukmani Hota, grandmother of Petitioner No.2, had been in possession of Ac.0.51 dec. of land under the same Khata covering Plot Nos.491/3762 and 491/3750, pursuant to an oral sale made in 1950 by the then Choukidar, which transaction was subsequently confirmed by a registered sale deed dated 18 January 1967 executed by his grandson, Sahadev Mallik. (iii) The father of Petitioner No.2, late Patitapaban Hota, and his brother thereafter partitioned the land and constructed residential houses on their respective portions. Following the declaration of Mouza3Barpali as a Notified Area Council, Petitioner Nos.1 and 2 constructed a pucca house on their portion in 1980 after obtaining due permission from the N.A.C., Barpali. Petitioner No.3 also claimed long-standing possession of Ac.0.18 dec. of land under Plot No.491/3831 of the same Khata and sought settlement of the said land. Page 2 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 (iv) By order dated 29 July 1977 in V.P.A. Appeal No.6 of 1976 arising out of V.P.A. Case No.21 of 1966367, the Additional District Magistrate, Sambalpur, directed the Tahasildar, Barpali, to initiate encroachment proceedings against those found in possession of Choukidari Jagir lands. Pursuant thereto, the Tahasildar initiated E.C. Case Nos.198 and 204 of 1980 against Smt. Rukmani Hota, Petitioner No.3, and others. (v) Upon enquiry, the Tahasildar found that they had been in possession for more than 30 years and had constructed houses on the land, and accordingly referred the matter to the Sub-Collector, Bargarh for settlement under Section 8-A of the Orissa Prevention of Land Encroachment Act, 1972. (vi) After the records remained pending before the Sub-Divisional Officer, Bargarh, for nearly four years, he, by order dated 6 April 1988, remanded the matter to the Tahasildar for fresh enquiry. Aggrieved thereby, the father of Petitioner No.2 preferred E.C. Revision Case No.1 of 1988 and Petitioner No.3 filed E.C. Revision Case No.5 of 1988 before the Additional District Magistrate, Sambalpur. The said revision cases, along with another, were heard together, and by common order dated 16 November 1988, the Additional District Magistrate allowed the revisions and directed the Sub-Divisional Officer, Bargarh, to settle the lands in favour of the respective occupants. (vii) As the Sub-Divisional Officer did not act upon the said order, Petitioner
Decision
arbitrary and unsustainable, and the impugned order is liable to be set aside. Page 6 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 (viii) The petitioners acquired and have continued in possession of their respective portions of the land through registered sale deeds executed by the ex-Choukidar, Gayadhar Mallik, and his legal representatives on different dates. Their possession is therefore lawful, bona fide, and supported by valid documents, and not that of mere encroachers. This aspect was duly considered by the learned Additional District Magistrate but has been ignored by the Revenue Divisional Commissioner. III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES : 4. The Learned Counsel for the Opposite Parties earnestly made the following submissions in support of his contentions: (i) The disputed land was recorded in Hamid Settlement Holding No.123 as <Choukidari Jagir= land and was being enjoyed by one Gayadhar Mallik, who was performing the duties of Village Police Officer. During his lifetime, the land was never settled in his favour. Consequent upon the abolition of the Village Police Officer system under the Orissa Offices of Village Police (Abolition) Act, 1964, the said land vested in the Government of Odisha free from all encumbrances with effect from 01.07.1965. (ii) After such abolition, the land was recorded in the Government Khata, and for its settlement, V.P.A. Case No.21 of 1966367 / 451 of 1970 was initiated. Before the case was finalized, the petitioners filed V.P.A. Appeal No.6 of 1976 before the Additional District Magistrate, Sambalpur, claiming long possession and alleging purchase from the then Choukidar, Gayadhar Mallik. Such claim, being based on an oral Page 7 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 sale, is not recognized in law, as the Choukidar had no transferable right in respect of Jagir land. (iii) The Revenue Divisional Commissioner (Northern Division), Sambalpur, in E.C. Revision Case No.3 of 2003, by order dated 16.01.2010, set aside the order dated 16.11.1988 passed by the Additional District Magistrate, Sambalpur, in E.C. Revision Nos.1, 2 and 5 of 1988, holding that the case land, being admittedly Choukidari Jagir land, could not have been transferred by the Choukidar or any of his successors in interest to any outsider, such transfer being void and impermissible in law. (iv) As regards the power of Opposite Party No.2, it is submitted that the Revenue Divisional Commissioner exercised jurisdiction under Section 12(3) of the Odisha Prevention of Land Encroachment Act, 1972, which authorizes the Commissioner to call for and examine the records of any proceeding before a subordinate officer where no appeal or revision lies, to rectify jurisdictional errors or contraventions of law causing miscarriage of justice. The impugned order dated 16.01.2010 was thus passed well within the scope and ambit of statutory authority. (v) The contention that the said order amounts to a <second revision= is misconceived, as the power under Section 12(3) is not a technical or statutory revision, but an independent supervisory power enabling the Revenue Divisional Commissioner to examine the legality and propriety of subordinate orders. Hence, the impugned order is a valid exercise of jurisdiction expressly conferred by law. (vi) Pursuant to this Court9s order dated 18.08.2023 directing submission of the L.R.C. record in V.P.A. Case No.21 of 1966367 / 451 of 1970, the case file was thoroughly searched in the office of the Tahasildar, Barpali, but Page 8 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 could not be traced. As the Barpali Tahasil commenced functioning only from 01.12.1982 after bifurcation from Bargarh Tahasil, the fact of non- traceability was intimated to the Revenue Divisional Commissioner (Northern Division), Sambalpur, the Collector, Bargarh, and the Sub- Collector, Bargarh, vide Memo Nos.1655 and 1656 dated 14.07.2023. Subsequently, the Collector, Bargarh, vide Memo No.11893 dated 11.08.2023, directed the concerned officers to verify their records and report on the availability of the said file. The process of searching for the original record is still continuing. (vii) The petitioners9 reliance on the order dated 16.11.1988 passed by the Additional District Magistrate (Land Reforms), Sambalpur, is both procedurally and legally untenable, as the learned Additional District Magistrate directed settlement of the land while the original V.P.A. Case No.21 of 1966367 / 451 of 1970 was still pending. Such action was beyond the jurisdiction vested in him under law, and therefore, the said order is void and without authority. (viii) The present proceedings before the Revenue Divisional Commissioner (Northern Division), Sambalpur, were initiated by the competent authority duly authorised by the Collector, Bargarh, in exercise of powers conferred under the Odisha Prevention of Land Encroachment Act, 1972. The initiation and consideration of the matter by the Revenue Divisional Commissioner were thus in full conformity with statutory provisions. (ix) In view of the admitted status of the land as Choukidari Jagir land vested in the State Government, it is respectfully submitted that no settlement in favour of the petitioners or any private individual can be Page 9 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 made under Section 8-A of the Odisha Prevention of Land Encroachment Act, 1972, as such land stands vested absolutely in the State and is not open to regularisation or settlement. IV. EXAMINATION OF THE LEGAL MATRIX AND REASONING: 5. Heard learned counsel for the parties and perused the pleadings and materials available on record. 6. The central issue that arises for determination before this Court is whether the petitioners have established any legally enforceable right or entitlement under the provisions of the Odisha Prevention of Land Encroachment Act, 1972 or the Orissa Offices of Village Police (Abolition) Act, 1964, so as to justify interference with the order dated 16.01.2010 passed by the Revenue Divisional Commissioner, Northern Division, Sambalpur. 7. Before adverting to the rival contentions, it is apposite to examine the legal framework governing the nature of Choukidari Jagir lands and the scope of the powers exercised by the authorities under the relevant statutes. 8. Under the Orissa Offices of Village Police (Abolition) Act, 1964, all offices of Village Police Officers stood abolished with effect from 1 July 1965. 9. Section 4 of the Act provides for the consequences of such abolition and for the settlement of Jagir lands. Sub-section (1) stipulates that lands resumed under the Act shall, subject to prescribed conditions, be settled with rights of occupancy on fair and equitable rent, either with the Village Police Officer himself or with him and those others, if any, who Page 10 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 were in separate and actual cultivating possession immediately before the appointed date. Sub-section (4) further mandates that persons claiming such settlement must file claims before the prescribed authority within the prescribed period failing which, the claimant stands debarred from asserting any right under that section. Thus, the statute contemplates a formal process of claim, inquiry, rent determination, and issuance of Patta, and until completion of such process the land continues to vest absolutely in the State Government. 10. From the above scheme it follows that the vesting of Choukidari Jagir lands in the State is automatic upon abolition of the office, that settlement under Section 4 is not automatic but conditional upon timely filing of claims and due inquiry, and that any private alienation, whether oral or written, by a Choukidar or his successors is invalid in law, since the tenure was service-linked and non-transferable. Only a settlement order passed by the competent authority in accordance with Section 4 can confer lawful occupancy rights. 11. The Odisha Prevention of Land Encroachment Act, 1972 operates in a distinct field. Section 8-A empowers the competent authority to regularise encroachments and settle lands in limited circumstances, yet this provision applies only to lands available for disposal by the State and not to those already reserved or statutorily vested under any other enactment. Consequently, lands vested under the 1964 Act cannot be settled with private individuals under Section 8-A of the Odisha Prevention of Land Encroachment Act, 1972. 12. Section 12(3) of the Odisha Prevention of Land Encroachment Act, 1972 confers on the Commissioner a supervisory power to call for and Page 11 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 examine the record of any proceeding before a subordinate officer where no appeal or revision lies, to satisfy himself as to the legality or propriety of any order passed. The power is corrective in nature and intended to remedy jurisdictional or legal errors. Its exercise cannot be equated with a <second revision=, as urged by the petitioners. 13. Applying the above legal position to the present case, it is not disputed that the case land was recorded in the Hamid Settlement as Choukidari Jagir land and was held by one Gayadhar Mallik in his capacity as the Village Police Officer. Upon abolition of the village-police system, the land vested in the State Government free from all encumbrances with effect from 01.07.1965. There is no material to indicate that any settlement was made with Gayadhar Mallik or that any claim was filed under Section 4(4) within the prescribed period. 14. The petitioners9 claim is founded upon an alleged oral sale said to have been made in 1950 and later confirmed by a registered deed of 1967. Under the Orissa Offices of Village Police (Abolition) Act, 1964, Choukidari Jagir land could be settled only by the State Government under Section 4 after abolition of the office, upon due inquiry and issuance of a Patta. The Choukidar himself possessed no transferable interest in such land, and any private alienation, whether oral or registered, was void ab initio and conveyed no right, title, or interest. As no settlement under Section 4 was made in favour of the petitioners, their possession cannot be regarded as lawful. 15. The order dated 16.11.1988 passed by the learned Additional District Magistrate, Sambalpur, directing settlement of the land in favour of the petitioners, was admittedly made while the original V.P.A. Case No. 21 Page 12 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 of 1966367 / 451 of 1970 was still pending before the Tahasildar. Such a direction, beyond the limited revisional jurisdiction available to the A.D.M., was without authority and could not have conferred any legal right upon the petitioners. 16. The contention that the Revenue Divisional Commissioner lacked jurisdiction to entertain E.C. Revision Case No. 3 of 2003 is untenable. The R.D.C. exercised power under Section 12(3) of the Odisha Prevention of Land Encroachment Act, 1972, which authorises supervisory interference where an order of a subordinate authority is found to contravene the law. The impugned order dated 16.01.2010, therefore, cannot be described as a <second revision=. 17. As to the plea of violation of natural justice, the record shows that notice was duly issued to the petitioners and opportunity afforded to them to contest the proceeding. The subsequent demise of their counsel, without any contemporaneous complaint or request for adjournment, cannot vitiate the proceeding after such long lapse of time. 18. Having regard to the admitted character of the land as Choukidari Jagir land vested in the State, this Court finds no infirmity in the observation of the R.D.C. that such land is not open to settlement under Section 8-A of the Odisha Prevention of Land Encroachment Act, 1972. The statutory vesting under the Orissa Offices of Village Police (Abolition) Act, 1964 overrides any claim founded merely on possession or private transfer. 19. Mere long possession, even if peaceful and undisturbed, cannot mature into ownership when the foundational title rests with the State under a statutory vesting. The petitioners9 occupation, not being based on any Page 13 of 14 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 06-Nov-2025 16:03:14 valid settlement or claim under Section 4 of the Orissa Offices of Village Police (Abolition) Act, 1964, is therefore without legal sanction. V. CONCLUSION: 20. In view of the foregoing discussion, this Court finds that the order dated 16.01.2010 passed by the learned Revenue Divisional Commissioner, Northern Division, Sambalpur, in E.C. Revision Case No. 3 of 2003 is a reasoned order passed within jurisdiction and in conformity with the statutory scheme. It neither suffers from procedural irregularity nor from violation of the principles of natural justice. 21. Accordingly, the Writ Petition stands dismissed. 22. Interim order, if any, passed earlier stands vacated. Judge (Dr. Sanjeeb K Panigrahi) Orissa High Court, Cuttack, Dated the 31st Oct., 2025/ Page 14 of 14