The Orissa High Court set aside an eviction order passed by the Collector of Kendrapara under the Orissa Prevention of Land Encroachment Act, 1972, holding that the officer acted without jurisdiction and denied the petitioners a statutory remedy. The Court quashed the associated show cause notice and remitted the matter to the Tahasildar for a fresh decision after hearing both parties, with a directive to conclude proceedings within thirty days of their appearance.
Background & Facts
The Dispute
The petitioners challenged an order passed by OPNo.3-cum-Collector, Kendrapara under Annexure-3 of the Orissa Prevention of Land Encroachment (OPLE) Act, 1972, alleging that the Collector exercised original jurisdiction not vested in him and that no notice was given before initiating eviction proceedings.
Key Facts
- The Orissa Prevention of Land Encroachment (OPLE) Act, 1972 is a self-contained statute providing for eviction and demolition of unauthorized occupation.
- Section 7(1) of the Act empowers the Tahasildar to evict a person in unauthorized occupation after giving reasonable opportunity and notice.
- Section 12(1) provides for an appeal from any order of the Tahasildar to the Sub-Divisional Officer; Section 12(2) vests revisional power in the Collector.
- The Collector, Kendrapara passed the impugned order under Annexure-3 in exercise of original jurisdiction, which is not conferred upon him under the Act.
- It is averred that no notice was given to the petitioners while passing the impugned order.
- The petitioners had previously approached the Collector pursuant to an earlier order in W.P.(C) No.27459 of 2025, which directed them to approach the appropriate authority within two weeks and the authority to consider the application within two months.
- The Show Cause Notice issued to the petitioners under Annexure-1 was also challenged.
Procedural History
- 2025: W.P.(C) No.27459 of 2025 filed by Kanakalata Malla; a coordinate bench passed an order directing the petitioner to approach the appropriate authority within two weeks and the authority to consider the application within two months (exact date not specified).
- Following that order, the petitioners approached the Collector, Kendrapara-cum-OPNo.3, who passed the impugned order under Annexure-3 (date not specified).
- The present writ petition, W.P.(C) No.31418 of 2026, was filed challenging the impugned order and the show cause notice under Annexure-1.
- 5 October 2026: Date of hearing and judgment; the Court delivered its order.
Relief Sought
The petitioners sought:
- Quashing of the impugned order passed by the Collector under Annexure-3.
- Quashing of the Show Cause Notice issued under Annexure-1.
- Direction to the Tahasildar, Kendrapara to hear the matter afresh after giving notice to both parties and to decide in accordance with law.
- Any further relief deemed fit.
The Legal Issue
The central question was whether the Collector of Kendrapara, acting under the Orissa Prevention of Land Encroachment Act, 1972, possessed jurisdiction to pass an eviction order when the statute expressly confers eviction power only on the Tahasildar and assigns appellate and revisional functions to the Sub-Divisional Officer and the Collector respectively. Additionally, the Court had to determine whether a writ petition is maintainable when an authority exercises power not vested in it and fails to provide the affected parties with notice or an opportunity to approach the statutory forum for redress.
Arguments Presented
For the Petitioner
The petitioners contended that the Collector lacked original jurisdiction under the OPLE Act, as Section 7(1) vests eviction authority solely in the Tahasildar, while the Collector’s role is limited to appellate and revisional powers under Sections 12(1) and 12(2). They argued that the impugned order, passed without issuing notice, violated the principles of natural justice and the statutory requirement of providing a reasonable opportunity before eviction. Furthermore, they asserted that the Collector’s action deprived them of the statutory remedy of appeal or revision, rendering the order a nullity and justifying interference by writ jurisdiction.
For the Respondent
The State defended the Collector’s order, maintaining that the OPLE Act authorizes the Collector to initiate eviction proceedings in exercise of original jurisdiction, relying on the broad language of the Act and the Collector’s role as the district revenue officer. It submitted that the Show Cause Notice under Annexure-1 had been duly served and that the petitioners had ample opportunity to contest the order through the statutory appeal and revision mechanisms. The State further argued that the petitioners had an alternative remedy and that the Court should not intervene in administrative actions absent a clear jurisdictional error or violation of fundamental rights.
The Court's Analysis
The Court began by noting that the OPLE Act is a self-contained code. It examined Sections 7(1), 12(1) and 12(2). It observed that the Tahasildar is the designated authority for eviction after notice, while the Collector’s power is limited to appellate and revisional functions. The Court held that the Collector’s assumption of original jurisdiction to pass the impugned order was illegal and without authority.
"Considering the submissions made by the learned counsel for the Petitioner and on going through the averments made in this Writ Petition, this Writ Petition stands disposed of directing the Petitioner to approach the appropriate authority by way of filing an application within a period of two weeks hence. In such event, the appropriate authority shall consider his application within a period of two months in accordance with law from the date of presentation of the application along with a certified copy of this order, by the Petitioner."
The Court referenced the earlier order in W.P.(C) No.27459 of 2025 to show that the petitioners had already been directed to seek relief from the proper forum.
The Court then emphasized that the impugned order proceeded from an illegal assumption of power and that no notice was given to the petitioners, thereby violating both statutory mandate and natural justice. It concluded that where an authority acts without jurisdiction and fails to provide the statutory remedy, a writ is maintainable to prevent a failure of justice.
The Court further held that the Show Cause Notice issued under Annexure-1, which was predicated on the impugned order, must also fall with it.
Accordingly, the Court set aside the impugned order, quashed the show cause notice, and remitted the matter to the Tahasildar, Kendrapara-cum-OPNo.4 for a fresh decision after hearing both parties, with a directive to conclude the proceeding within thirty days of the appearance of the parties.
The Verdict
The Court allowed the petition, setting aside the impugned order passed by the Collector of Kendrapara under Annexure-3 of the Orissa Prevention of Land Encroachment Act, 1972, and quashing the associated Show Cause Notice issued under Annexure-1. The matter was remitted to the Tahasildar, Kendrapara to hear the case afresh after giving notice to both parties, with a direction to dispose of the proceeding within thirty days of the appearance of the parties before him. No costs were awarded.
What This Means For Similar Cases
Jurisdictional Limits of Revenue Officers
The judgment clarifies that under the OPLE Act, only the Tahasildar may initiate eviction proceedings after issuing notice; the Collector’s authority is confined to appellate and revisional functions. Revenue officers must therefore verify their statutory power before acting, lest their orders be liable to be set aside for lack of jurisdiction.
Natural Justice Requirements in Encroachment Proceedings
The Court reiterated that notice and a reasonable opportunity are conditions precedent to any eviction under Section 7(1). Authorities that proceed without providing such opportunity violate natural justice and render their orders vulnerable to writ intervention.
Remedy of Writ When Statutory Forum Bypassed
When an authority acts outside its jurisdiction and deprives a person of the statutory appeal or revision remedy, a writ petition lies to prevent a failure of justice. The judgment reinforces that the writ jurisdiction will step in to restore the statutory scheme and direct the matter to the correct forum.
