Basudev Agrawal Vs State

---------------------------------------------------------------------------------------Date of hearing & judgment : 18.11.2025 ----------------------------------------------------------------------------------------

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PER DIXIT KRISHNA SHRIPAD,J .

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Essentially, Petitioner (now dead by LRs), seeks an order to OPs to allot encroached land that adjoins the land allotted to him in a normative way. Incidentally, he also prays for interdicting coercive action for eviction/removal from the encroached land on the ground that he has already developed it all these years by making huge investment. It is noteworthy that he employs the term ‘encroached land’ in the very prayer column.

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2. Learned counsel for the Petitioner vehemently argues that the subject land in encroachment is inevitable for putting the allotted land to the ordained purpose: The OPs, having assured of allotting the same subject to payment ten times the premium, are liable to effectuate the

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assurance; in OJC No. 5810 of 1996 decided by a Division Bench of this Court on 13.03.2003 parameters have been fixed for making allotment of subject land to the Petitioner. OPs’ SLP No.9028 of 2003 against the said judgment has been dismissed on 07.07.2003. The eviction proceedings instituted under the provisions of the Orissa Public Premises (Eviction of Unauthorized Occupants) Act, 1972… having been dropped and Petitioner having developed the encroached land putting up huge structures, should be granted allotment/regularization. Lastly, the counsel invokes the doctrine of res judicata , estoppel and legitimate expectation in support of his case. He cited Apex Court decision in State Bank of India v. M.J. James , (2022) 2 SCC 301 in support of his case.

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3. Learned AGA Mr. Behura and learned ASC Mr. Khandayatray vehemently resist the petition per contra contending that:

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(i) Petitioner being a rank encroacher of public property cannot seek its allotment/regularization in the absence of statutory enablement. No civilized jurisdiction would countenance claim of the kind by risking breach of rule of law.

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(ii) In the earlier round of litigation, namely, OJC No. 5810 of 1996, all rights of the Petitioner having been adjudged, allotment of 1965 square feet of encroached land is made and in pursuance of that a lease dated 17.11.2003 has been executed & registered.

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(iii) Neither in OJC judgment nor in the lease Petitioner has been reserved liberty to agitate for allotment of remainder of the encroached land and therefore, cannot maintain another petition by virtue of constructive res judicata .

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(iv) Lastly, there is no law which authorizes the State to allot land on the ground of encroachment. If petition is allowed, as sought for, it would lay down a very bad precedent which would have abundant abuse potential detrimental to the interest of Government property, which is held in public trust.

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4. Having heard learned counsel appearing for the parties and having perused the petition papers, and also having adverted to the ruling cited at the Bar, this Court declines indulgence in the matter for the following reasons:

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4.1. Admittedly, Petitioner has been allotted land admeasuring ½ acre for industrial/commercial purpose and a lease has been executed & registered on 25.02.1967. In the days of growing population and consequent scarcity of land availability, the extent of land allotted to the

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Petitioner is indisputably large. It is said, that nature provides enough for the need and not for the greed. He encroached a little less than half an acre of adjoining land that was kept vacant for being used/allotted to others and put up certain structures without any authority of law. Such an unscrupulous person is not entitled to invoke the writ jurisdiction of Court, to say the least.

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4.2. Petitioner’s OJC No. 5810 of 1996 having been partly favoured,

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a Division Bench of this Court at Para-9 of the order observed as under:

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“ 9. In view of the fact that the State Government at a particular point of time decided to regularize the encroachment by settling the same with the Petitioner on payment of premium and penalty, we are inclined to hold that for the ends of justice the said decision of the Government should be resuscitated, when the Petitioner is now agreeable to pay the premium and penalty as stated in his affidavit dated 21.08.02. The Joint Secretary to the Government in his letter-dated 19.08.02 has indicated the premium of the encroached land, i.e. 1965 sft. Comes to Rs 2,25,551/- and the penalty as per the prevailing provision is being imposed equal to the amount of premium of the land i.e. Rs 2,25,551/-, the total of which comes to Rs 4,51,102/- . Having regard to the prevailing premium of the land for commercial purpose ( Rs 75.00 lakhs per acre), we direct the State Government to settle encroached land i.e. 1965 sq.ft. on the total payment of Rs 4,00,000/- (Rupees Four lakhs). The Petitioner shall, deposit the same with the State Government by 30.04.2003.On deposit of the said amount of Rs 4,00,000/- and on the compliance of other formalities by the Petitioner, the State Government shall settle the encroached area with him by passing appropriate orders in supersession of the impugned order determining the lease (Annexure-13) and the consequential direction (Annexure-15). In the event the Petitioner

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fails to comply the above direction within the stipulated time, the impugned order determining the lease and the consequential order for removal of structure, etc. shall automatically revive. If the Petitioner complies the above direction, he is at liberty to withdraw the amount of Rs 40,000/-(Fourty thousand) which is lying in deposit in this registry. In case of failure, the above amount of Rs 40,000/- shall stand forfeited to the State Government. With the aforesaid observation and direction, the writ petition is disposed of.”

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The above observations specifically provide for the allotment of encroached land only to the extent of 1965 square feet. Even the amount payable by the Petitioner for the same has been specified in so many words. This order has attained finality with seal of Apex Court in SLP(C) No. 9028 of 2003 dismissed on 07.07.2003, under which no liberty is reserved to the Petitioner to wage another legal battle for allotment of remainder of the encroached land. Mr. Behura is right in telling that the present petition is liable to be resjudicated, all aspects having already adjudicated earlier .

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4.3. Pursuant to Division Bench order in OJC, Petitioner has secured allotment of a portion of the encroached land, as above, vide supplementary lease dated 17.11.2003, that is duly registered. Even in this instrument, Petitioner has not reserved his right to go for another round of fresh litigation for securing allotment of remainder of the

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encroached land. He could have secured reservation of liberty at the hands of Division Bench which decided the OJC or the Government which granted 1965 square feet of land in the encroached area. That he has not done, is fairly admitted at the Bar. The contention that neither the OJC judgment nor the lease would curtail Petitioner’s right to get the remaining land is too farfetched an argument, which no reasonable person can favourably entertain. This Court repeats that Petitioner is an unscrupulous person of first order, since he is relentlessly fighting both legal & administrative battles to somehow snatch title to the encroached land and therefore, a Court of equity has to decline relief. Otherwise, granting any relief to a litigant of the kind would amount to placing premium on illegality, which the constitutional courts cannot afford to do.

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4.4. The vehement submission of Petitioner’s counsel that the eviction proceedings instituted under the provisions of 1972 Act have been dropped, does not make occupation of the encroacher lawful and therefore, on that count his claim does not become meritorious. The submission that the Division Bench in OJC has set the parameters for

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allotting/regularizing the entire land in encroachment in the light of Government’s decision to make such allotment on 10 times the premium, does not avail to the Petitioner. The OJC has been disposed off with a specific direction after considering all contentions of the kind specifically. Thus, the prayer of petition far transcends the argued parameters of OJC judgment, and to accommodate the same one has to manhandle its text. That the Courts cannot do, more particularly the Writ Courts.

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4.5. The contention that Petitioner has developed the entire land in encroachment by putting up structures involving huge investment, and that he has been paying the municipal taxes for the same, does not make his occupation any the less encroaching. Admittedly, it is a public property. It was Hugo Grotius (1583-1645), who is said to have said ‘that belongs to all, belongs to none and that belongs to none, belongs to all’ . Our Constitution, vide Article 39 (b) & (c), enacts distributive justice qua the public resources, vide Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. , (1983) 1 SCC 147. It abhors

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monopoly. In State of Karnatak v. Ranganatha Reddy , AIR 1998 SC 215, it is observed:

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“The article emphasizes the entire material resources of the community and its task is to distribute such resources. Its goal is so to undertake distribution as best as to subserve the common good. It recognizes by such distribution, the ownership and control.”

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The structure of petition runs counter to this grand Directive of State

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Policy. Therefore, the only option left to the Petitioner is to withdraw himself from the encroached area and yield it to the State at the earliest without prompting any coercive action to throw him out, of course, in due process of law.

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4.6. The submission of learned counsel that the Division Bench in

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OJC itself has observed that in the best interest, the Petitioner should be allotted the encroached area in a wholesale way, is not true. Merely because certain things are stated in a judgment as part of reasoning process, no right should accrue to the litigant therefrom per se . It hardly needs to be stated that judgments & orders of Courts have to be construed not as Statutes. Their content & intent have to be ascertained

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in the light of questions treated, may be, at times, inarticulately.

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Ordinarily, what one has to focus is the operative portion in the light of reasoning. Viewed from that angle, there is absolutely no scope for invoking estoppel , legitimate expectation, or the like in favour of the Petitioner. The ruling in M.J. James supra relates to the realm of service jurisprudence. Paragraphs 39 & 40 therein discuss about laches & acquiescence in a totally different context. They do not support the contention that when the State keeps silent against encroachment of public property, it is presumed to have acquiesced in it. Contra proposition runs counter to rule of law and offends the very institution of property.

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4.7. Lastly, encroachment of property, be it private or public, is a serious tort, if not an offence. Allotting public property to the encroacher would lay a dangerous precedent having abundant mischief potential. The encroacher should be sued for damages and action should be taken for the retrieval of property, if not prosecution for the offence. The constitutional Court and the Government have an obligation to protect the public property by removing encroachment on a war footing. It hardly needs to be stated that unscrupulous

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encroachers like the petitioner may stake claim for title by adverse possession. In fact, such a contention is taken up in the petition.

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In the above circumstances, this petition, being thoroughly devoid of merits, is liable to be dismissed and accordingly it is, costs having been reluctantly made easy.

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Dixit Krishna Shripad, Judge

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Orissa High Court, Cuttack The 18^th day of November, 2025/Madhusmita

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA MALLICK Reason: Authentication Location: HIGH COURT OF ORISSA, CU TTACK Date: 19-Nov-2025 18:19:41

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Basudev Agrawal v. State

Case brief

What is this about?

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Basudev Agrawal v. State

Case brief

What is this about?

What did the court decide?

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