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