IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) NO. 12747 OF 2004

In the matter of an application under Articles 226 & 227 of the

Constitution of India.

Basudev Agarwal (dead) represented …. Petitioner

through LRs

-Versus-

State of Odisha & Others …. Opp. Parties

Advocates appeared in this case:

For Petitioner : Mr. Budhadev Routray, Sr. Advocate with

M/s S. Routray, S. Sekhar, J. Biswal, S.

Swain & S. Dash, Advocates

Mr. Prafulla Kumar Rath, Sr. Advocate with M/s S. Rath, A. Behera, S.K. Behera, S. Das, S. Mohapatra, S. Chandan, I.P.

Bose & A. Biswal, Advocates

M/s. A.V. Bhat, A.R. Bharadwaj and

(Ms) M. Routray, Advocates

For Opp. Parties : Mr. U.C. Behura,

Addl. Government Advocate

with

Mr. J.K. Khandayatray, Addl. Standing Counsel

CORAM:

THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD

J U D G M E N T

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

PER DIXIT KRISHNA SHRIPAD,J 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.

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 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.

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

(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.

(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.

(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.

(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.

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:

4.1. Admittedly, Petitioner has been allotted land admeasuring ½ acre for industrial/commercial purpose and a lease has