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Judgment
Dr. Sanjeeb K Panigrahi, J.
The dispute concerns Government land situated at Mouza Jatianali/Hatiamali, Tahasil Reamal, District Deogarh, originally recorded under Hal Khata No. 34 (Rakhita), comprising Plot No. 78 measuring Ac.1.65 decimals and Plot No.79(P) measuring Ac.0.15 decimals, aggregating Ac.1.80 decimals. The plots are recorded with the kisam “Bada Jungle” and, upon subsequent resurvey through modern technology, are stated to have been renumbered as Plot Nos.130 and 131 under Khata No.49.
I. FACTUAL MATRIX OF THE CASE:
Succinctly put, the facts of the case are as follows:
The petitioner, Guru Charan Mohapatra, traces his family's occupation to a Forest Department communication dated 29.05.1955. Letter No.716 issued by the then Divisional Forest Officer, Deogarh is relied upon as permitting his father, Late Bati Mohapatra, stated to be a landless person, to acquire/occupy Ac.1.50 decimals out of Sabik Plot No.20 of the Chaka. The petitioner states that his father thereafter used the land for homestead and agricultural purposes and that possession continued with the petitioner after his father's death.
During the subsequent settlement operation, the land was not recorded in the name of Bati Mohapatra or the petitioner but continued to stand in the Government khata. The Remarks Column of the ROR, however, recorded the possession of Bati Mohapatra as unauthorised/“Beain Dakhal”. Over the years, revenue authorities initiated Land Encroachment proceedings in respect of the land and rent, back rent and/or penalty were assessed and deposited by the petitioner on various occasions.
L.E. Case No.140 of 2022 was initiated by the Tahasildar, Reamal on the basis of a ‘G’ Form submitted by the Revenue Inspector, Naulipada for unauthorised encroachment of the two Government plots. The petitioner appeared in the proceeding and sought settlement of the land under Section 8-A of the Odisha Prevention of Land Encroachment Act, 1972 and issuance of a mutation ROR in his favour.
When the Section 8-A application remained pending, the petitioner approached the High Court in W.P.(C) No.28876 of 2024. By order dated 22.11.2024, the High Court directed the Tahasildar to ensure early hearing and disposal of L.E. Case No.140 of 2022, preferably within six weeks, after providing reasonable opportunity of hearing. Thereafter, on 31.12.2024, the Tahasildar rejected settlement principally because Plot Nos.78 and 79(P) were recorded as “Bada Jungle” and were considered objectionable Government land.
The petitioner challenged the Tahasildar's decision before the Sub-Collector, Deogarh in Mutation Appeal Case No.02 of 2025. By order dated 17.06.2025, the Sub-Collector upheld the Tahasildar's view, holding that the lands were Government lands of Bada Jungle kisam, that their objectionable nature prevented settlement under Section 8-A, and that no error existed in the order dated 31.12.2024.
The petitioner thereafter filed W.P.(C) No.18380 of 2025 against the Tahasildar's and Sub-Collector's orders. On 16.07.2025, the High Court permitted him to avail the revisional remedy under the OPLE Act, together with an application for condonation of delay and interim protection, whereupon Mutation Revision Case No.01 of 2025 was instituted before the Collector, Deogarh under Section 12(2) of the OPLE Act.
The Collector ultimately declined to interfere with the decisions of the Tahasildar and Sub-Collector, recording that the land continued to be classified as Government forest land and that no illegality, procedural irregularity or impropriety had been shown in the orders below. The present W.P.(C) No.01 of 2026 seeks quashing of the Tahasildar's order dated 31.12.2024, the appellate order dated 17.06.2025 and the impugned revisional order, together with settlement of the land and issuance of a fresh ROR in favour of the petitioner.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
Learned counsel for the petitioner earnestly made the following submissions in support of his contentions.
The petitioner's principal case is one of continuous possession originating not in a fresh act of encroachment but in the Forest Department's own permission of 1955. He relies heavily upon DFO Letter No.716 dated 29.05.1955 to contend that his landless father was expressly permitted to acquire and occupy Ac.1.50 decimals out of Sabik Plot No.20, following which the family established its homestead, cultivated the land and remained in continuous, peaceful and uninterrupted possession for more than seven decades.
The petitioner argues that the subsequent settlement ROR itself corroborates the factual continuity of the family's possession. Although title was recorded in the State and the possession was described as unauthorised/“Beain Dakhal”, the Remarks Column specifically recorded Bati Mohapatra's occupation of Plot Nos.78 and 79. According to the petitioner, this contemporaneous governmental record, coupled with successive encroachment proceedings and revenue receipts, demonstrates that his possession was open, continuous and known to the State for decades.
According to the petitioner, repeated initiation of L.E. proceedings and acceptance of rent, back rent and penalties by the Revenue Authorities further acknowledge his actual possession. He contends that he is a poor and landless cultivator without alternative homestead or agricultural land and therefore satisfies the protective object underlying Section 8-A of the OPLE Act, under which he applied for settlement and mutation rather than asserting an independent mutation claim disconnected from the encroachment proceedings.
The Tahasildar, Sub-Collector and Collector are alleged to have decided the matter mechanically by treating the entry “Bada Jungle” as conclusive, without investigating the crucial 1955 Forest Department permission. The petitioner contends that none of the authorities verified the Sabik records, examined the genesis of his family's possession or called upon the Forest Department to state whether Letter No.716 was genuine, continued to operate, or whether the land was still required for forest purposes. Therefore, the rejection merely on the basis of the present kisam is alleged to suffer from non-application of mind.
The petitioner's central legal challenge is founded upon Section 8-A(2) of the OPLE Act and the decision in Gulam Sarwar v. State of Orissa1. He submits that where the land belongs to a Government department other than the Revenue Department, that department must be given an opportunity to show cause against the proposed settlement and further inquiry may thereafter be conducted. Since the present land is asserted to belong to the Forest Department, the authorities could not lawfully decide the Section 8-A claim without issuing notice to the DFO/Forest Department.
The petitioner emphasises that the Forest Department, although impleaded as Opposite Party No.5 in the writ petition, was never heard at the Tahasildar, appellate or revisional stage. He characterises this omission as a mandatory procedural defect which vitiates the entire adjudication, because the Revenue Authorities themselves questioned the authenticity and continuing effect of the 1955 permission while simultaneously failing to seek clarification from the very department competent to answer those questions.
In rejoinder, the petitioner disputes the State's argument that the settlement entry describing possession as unauthorised defeats his case. He explains that his father could not object during the settlement operation because he was unaware of it and therefore the ROR came to be published in the Government khata, though the Remarks Column preserved the fact of Bati Mohapatra's possession. He consequently rejects the suggestion that a separate appeal or revision against the settlement record was indispensable before seeking relief under the OPLE Act.
The petitioner therefore seeks quashing of all three adverse orders and fresh adjudication of his Section 8-A claim after notice to the Forest Department. His latest written submissions seek a remand to the competent revenue authority for compliance with Gulam Sarwar (supra), followed by settlement of the schedule land and issuance of a mutation ROR if the statutory requirements are found satisfied.
III. SUBMISSIONS OF THE OPPOSITE PARTIES:
Per contra, the learned counsel for the Opposite Parties earnestly made the following submissions:
Opposite Party Nos.1 to 4 deny the petitioner's entitlement to settlement and contend that the writ petition is not maintainable either on facts or in law. Their fundamental position is that the disputed plots remain recorded Government land of Jungle/Bada Jungle kisam, an objectionable category which, according to them, cannot be settled with an encroacher under Section 8-A of the OPLE Act. Consequently, neither long possession nor payment of rent or penalties can override the statutory character of the land.
The State specifically contests the evidentiary foundation of the alleged 1955 grant. It states that there is nothing in the records available to Opposite Party Nos.1 to 4 establishing that Ac.1.50 decimals had actually been allowed to the petitioner's father by the then DFO, Deogarh, and maintains that the authenticity of Letter No.716 dated 29.05.1955 is a matter best known to the petitioner and Opposite Party No.5, the DFO. Thus, the Revenue Authorities do not admit the document as establishing any enforceable allotment or title.
The opposite parties rely upon the settlement record against the petitioner's claim of lawful possession. They point out that despite the alleged permission of 1955, the Settlement Authority did not record the land in Bati Mohapatra's name but expressly recorded his occupation as illegal/unauthorised, and the petitioner has produced no material showing that his father or he challenged that settlement entry through an appeal or revision before the Settlement Authorities.
According to the State, a Remarks Column entry showing possession “without right, title and interest” proves possession at most and does not create an entitlement to settlement. It contends that such an entry cannot ipso facto confer right, title and interest upon an encroacher and cannot satisfy Section 8-A where the land itself falls within an objectionable forest/jungle category. Thus, the petitioner's reliance upon decades of possession and revenue receipts is said to be legally insufficient.
The State disputes the allegation of denial of hearing or mechanical disposal. It states that after the High Court's order in W.P.(C) No.28876 of 2024, the Tahasildar gave the petitioner an opportunity of hearing, considered the L.E. Case record and Revenue Inspector's enquiry, and rejected settlement because of the objectionable nature of the land. The Sub-Collector thereafter examined the appeal and found no error in that determination, while the Collector similarly found no illegality, impropriety or procedural irregularity warranting revisional interference.
The Tahasildar's enquiry also recorded the petitioner's broader land and financial status before deciding the Section 8-A application. The Revenue Inspector reported that the petitioner was occupying Ac.3.14 decimals under Khata No.238 of Mouza Naulipada recorded in the name of Sri Mukteswar Mahadeb Bije and certain individuals, while recording that neither the petitioner nor his family had land recorded directly in their names and that no family member held Government employment. The authority nevertheless treated the decisive impediment as the objectionable “Bada Jungle” character of the case land.
The opposite parties ultimately contend that Section 8-A(3) itself bars the relief sought because the land continues to be Government forest/objectionable land. Even assuming that the petitioner is physically occupying the property and even assuming that the DFO had at some stage permitted such occupation, the State maintains that the present statutory classification of the land prevents its settlement and issuance of an ROR in the petitioner's favour. On that basis, the State seeks dismissal of the writ petition as devoid of merit.
IV. COURT’S ANALYSIS AND REASONING
Heard learned counsel for the parties and perused the materials placed on record.
The controversy lies within a narrow compass. The questions which arise for consideration are: first, whether the challenge is amenable to the writ jurisdiction of this Court; secondly, whether the impugned orders stand vitiated for want of notice to the Forest Department under Section 8-A(2) of the Odisha Prevention of Land Encroachment Act, 1972; and thirdly, whether land recorded in a Rakhita Khata with the kisam “Bada Jungle” can be settled under Section 8-A.
The limits of certiorari jurisdiction are well settled. In Syed Yakoob v. K.S. Radhakrishnan2, the Supreme Court held that certiorari may issue where an inferior tribunal acts without jurisdiction, exceeds its jurisdiction, fails to exercise jurisdiction vested in it, or adopts a procedure contrary to natural justice. The jurisdiction is supervisory and does not permit the High Court to reassess evidence as an appellate authority.
“A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or in excess of it, or as a result of failure to exercise jurisdictions. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of tact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the. Tribunal had. erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.”
The present challenge raises questions concerning the construction and application of Section 8-A. The writ petition, therefore, cannot be rejected merely on the ground that certain factual matters also arise from the record. This conclusion, however, answers only the question of maintainability. It does not establish that the petitioner is entitled to the settlement claimed.
Section 8-A follows a sequential procedure. Under sub-section (1), where the encroacher proves actual, continuous and undisputed occupation for more than thirty years as on the date of institution of the proceeding, the Tahasildar shall refer the case to the Sub-Divisional Officer. Rule 16 of the Odisha Prevention of Land Encroachment Rules, 1985 places the burden of proving those ingredients upon the encroacher.
The obligation under Section 8-A(2) arises “on receipt of a reference” under sub-section (1). It is at that stage that the Sub-Divisional Officer must afford the concerned Department of the State Government, other than the Revenue Department, an opportunity to show cause. The expression “shall” makes the opportunity mandatory once a valid reference has been received and the land belongs to such Department. It does not require the Tahasildar to issue that notice before determining whether the statutory conditions for making a reference are satisfied.
The contention that the Tahasildar’s order is void because no notice was issued to the Divisional Forest Officer, therefore, proceeds on an incorrect reading of the provision. No reference under Section 8-A(1) had been made. The stage contemplated under Section 8-A(2) had consequently not arisen.
Gulam Sarwar (supra) does not support a contrary conclusion. In that case, a reference had reached the Sub-Divisional Officer and the land belonged to the Revenue Department. The Court held that notice to the Revenue Department was not contemplated by Section 8-A(2). The decision cannot be read as requiring notice to a non-Revenue Department before the Tahasildar decides whether a reference should be made.
It is also necessary to distinguish the recorded character of the land from its departmental ownership. An entry describing the kisam as “Bada Jungle” may be material for determining whether the land attracts forest-conservation law. That entry does not, without the relevant departmental and settlement records, establish that the land belongs to the Forest Department for the purpose of Section 8-A(2). Forest status and departmental ownership are separate enquiries.
The submission concerning the absence of title also requires qualification. Section 8-A operates in proceedings against a person in unauthorised occupation. A claimant cannot, therefore, be excluded from consideration merely because he has no recorded title. In Gulam Sarwar (supra), this Court expressly held that the law of adverse possession is alien to the statutory enquiry under Section 8-A. The relevant question is whether the occupation satisfies the requirements prescribed by the provision and Rule 16.
The entry “Beain Dakhal” and payment of assessment or penalty do not confer title or any right of occupancy. The second proviso to Section 4 makes this clear. At the same time, those circumstances cannot substitute the statutory enquiry contemplated under Section 8-A. The petitioner’s case cannot succeed merely because possession is longstanding; nor can it fail merely because such possession was recorded as unauthorised.
The communication dated 29.05.1955 attributed to the Divisional Forest Officer may, if proved, be relevant to the commencement and nature of the occupation. It cannot, without a consequential grant, lease or order of settlement by the competent authority, be treated as a completed conveyance of title. The communication is also stated to concern Ac.1.50 decimals out of Sabik Plot No.20, whereas settlement is claimed over Ac.1.80 decimals comprising Hal Plot Nos.78 and 79(P). The identity and correlation of the land cannot be presumed in proceedings under Article 226.
The decisive feature of the present case is the entry of the subject land in Hal Khata No.34 as Rakhita. The proviso to Section 7(2) prohibits settlement of land recorded as Gochar, Rakhit or Sarbasadharan in any record-of-rights. It is imperative that Section 8-A must be read harmoniously with Section 7. Thus, even proof of occupation exceeding thirty years does not permit settlement of land falling within a prohibited category.
Once the land is found to fall within the express prohibition under Section 7, a reference under Section 8-A cannot result in a lawful settlement. A writ of certiorari does not issue to compel the performance of an exercise whose only possible result would be an order prohibited by the statute.
Forest law furnishes an additional restraint. The entry “Bada Jungle” in the record-of-rights is a material circumstance requiring the competent authorities to determine whether the land is covered by Section 1-A of the Van (Sanrakshan Evam Samvardhan) Adhiniyam, 1980, formerly the Forest (Conservation) Act, 1980.
In T.N. Godavarman Thirumulpad v. Union of India3, the Supreme Court held that land recorded as forest in Government records attracts the protective regime irrespective of ownership. The Court held as follows:
“The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and fore matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest: must be understood according to its dictionary meaning. This description cover all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof.”
Section 2 of the 1980 enactment prohibits the State Government or any authority from making an order permitting non-forest use, assignment or lease of forest land except with the prior approval of the Central Government. In State of Karnataka v. Gandhi Jeevan Collective Farming Co-operative Society Ltd.4, the Supreme Court applied that prohibition to an agricultural lease over admitted forest land. The Court held as follows:
“Having considered the submissions advanced at bar and after going through the material available on record, we are of the firm opinion that the very grant of lease to the respondent-Cooperative Society for agricultural purposes was uncalled for because it led to devastation and deforestation of huge forest area admeasuring nearly 134 acres. The respondent- Cooperative Society, having enjoyed cultivatory possession over the forest area for a period of more than 10 years, was not entitled for any further extension of the lease which was in the first place illegally granted. As per the extant statutes, forest lands could not be allowed to be used for non-forestry purposes which would include agriculture.”
Consequently, a settlement cannot first be ordered and thereafter made conditional upon obtaining Central approval. Where the enactment applies, prior approval is a condition precedent to the making of the State order itself. The direction proposed by the petitioner would reverse that statutory sequence.
In the present case, the authorities declined settlement on account of the recorded character of the land. Their reasons could have been expressed with greater precision. Nevertheless, the conclusion that land falling within the prohibited Rakhit category cannot be settled under Section 8-A is consistent with the statute. The absence of notice to the Forest Department before the Tahasildar does not disclose any jurisdictional or procedural illegality.
V. CONCLUSION:
Accordingly, this Court finds no ground to interfere with the order dated 31.12.2024 passed by the Tahasildar, the appellate order dated 17.06.2025, or the subsequent revisional order impugned in the writ petition.
Accordingly, the Writ Petition being devoid of merit is dismissed.
Interim order, if any, passed earlier stands vacated.