The Odisha Prevention of Land Encroachment Act, 1972.

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*. Published vide Orissa Gazette, Extraordinary No. 296-D/16.2.1972 - Notfn.
No. 1943, Legis. - D/16.02.1972.
1. Orissa Gazette Extraordinary No. 15-D/04.01.1972-Notfn. No. 150 L.A. - D/
04.01.1972.
ORISSA ACT 6 OF 1972
(Assented to by the President on the 12th February, 1972)
An Act to provide for prevention of unauthorised occupation of lands
which are the property of Government
Be it enacted by the Legislature of the State of Orissa in the
Twenty-second Year of the Republic of India as follows :
1[STATEMENT OF OBJECTS AND REASONS] :–  The Vires of
Orissa Prevention of Land Encroachment Act, 1954 as amended by the
Orissa Prevention of Land Encroachment (Amendment) Act, 1970 was
recently challenged in a writ petition in the Orissa High Court in O.J.C.
No. 1584 of 1968. The Court held that Sec. 3 of the Act is void as it
contravenes Article 14 of the Constitution. In a series of cases the
Court has also earlier observed that Secs. 5 and 6 of the Act were void.
As Secs. 3, 5 and 6 forming the very core were void. The Court held
the entire Act including the amending Act of 1970 to be Void. It was
held that the amending Act 1970 not being a re-enactment of the entire
Act cannot resuscitate the Act into life. It, therefore, ruled that the Act
and the amending Act separately and together are void. This decision
created serious difficulties for the Government as there was no law to
deal with encroachment on Government land or Communal land. An
Ordinance had, therefore, to be promulgated to meet the situation
simultaneously complying with the provisions of the Constitution and
judicial pronouncements. It is now necessary to effect the re-enactment
of the law permanently to replace the Ordinance.
The Bill seeks to achieve this objective.
Scope of the Act :–  The Provisions of this Act are applicable
preventing the persons from occupying the Government lands and also
in certain cases subject to the Provisions of Section-7 the Government
land may be settled in favour of such persons who have been
unauthorizedly occupying the Government lands. Thus the Provisions
The Odisha   Gazette
EXTRAORDINARY
PUBLISHED BY AUTHORITY
No. 296-D Dated. 16 February, 1972
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of this Act being summary in nature and any person unauthorizedly
occupying any land which is the property of the Government as defined
under Section-2 of the Act can be summarily evicted by the competent
authority from the said land. However before proceeding summarily
eviction a reasonable opportunity of hearing is extended to the person
occupying the land. Under the scheme of the Act proceedings can be
initiated if it is seen that there has been encroachment of Government
lands either by construction of house or otherwise. In a given case the
Government had constructed the houses on the Government land.
Thereafter the land was transferred to the Municipality and several
persons were inducted lawfully by the said Municipality on monthly
rent basis in respect of the shop rooms and as such it cannot be said
that they were unauthorized occupants. Therefore, any proceedings
initiated against them was thoroughly wrong and misconceived. However,
the said tenants remained silent in the matter and did not challenge
such eviction proceeding. That apart they approached the Government
for allotting the shop rooms on lease basis bye passing the concerned
Municipality. In such view of the matter it can be said that the conduct
of the tenants was not bonafide and their plea that they quieted the
shop rooms against their will and approached the State Government
under compulsion. Infact, the concerned Municipality is the real owner
of the shop rooms and the tenants were estopped from denying its title:
(S.A. No. 86/90 of 1974 decided on 10.12.1980) Keonjhargarh
Municipality vs. Judhistir Sendha and others.
1. Short title, extent and commencement :– (1) This Act may be
called the Orissa Prevention of Land Encroachment Act, 1972.
(2) It shall extend the whole of the State of Orissa.
(3) It shall be deemed to have come into force with effect from
the 29th day of October, 1954.
NOTES
In view of Section-3 (Sub Section-30 of the General Clauses Act)
any legislation may be published in the Official Gazette on a day, but
the same Act may not come into enforcement from that day. In such
view of the matter Sub Section-3 of Section-1 has provided that this
Act shall be deemed to have come into force with effect from 29th day
of October, 1954 which clearly reveals that the Act has been enforced
retrospectively.
By way of enactment of this legislation the lacunae’s of the
previous Act have been validated and rectified: 1972 (1), CWR 438.
Scope of the Act: Explained: AIR 1965 SC 1296: AIR 1986
ORISSA 114.
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Applicability of the Act: Its Scope and Intention: Explained : 49
(1980) CLT 252
Meaning of the term Encroachment: Explained: AIR 1962 MAD
601.
The Enactment is expropriately in nature and character is to be
strictly construed: 27 (1961) CLT (SN.119) 75. The Act is not
retrospective but retroactive: 41 (1975) CLT (SN. 145) 99.
2. Property of Government :–  Subject to the provisions of any
law for the time being in force, the following classes of lands are hereby
declared to be the property to Government for the purposes of this Act,
namely :
(a) all public roads, streets, lanes and paths, the bridges, ditches,
dikes and fences, on or beside the same, the bed of the sea
and of harbours and creeks below high water mark and of
rivers, streams, nalas, lakes and tanks and all canals and
water sources and all standing and flowing water and all
lands including temple sites, house sites or backyards
wherever situated, save in so far as the same are the
property–
(i) of any ruler of Indian State merged with the State of
Orissa Zamindar, Proprietor, Sub-proprietor, Landlord,
1[***] Jagirdar, 1[***] Khoropshdar or any other tenure
holder or any person claiming through or holding under
any of them; or
(ii) of any person paying shist, kattubadi jodi, porupu or
quit rent to any of the aforesaid person; or
(iii) of any person holding under raiyatwari tenure or in
any way subject to the payment of cess or any other
dues direct to Government; or
(iv) of any other registered holder of land having proprietary
right; or
(v) of any other person holding land under grant from
Government otherwise than by way of licence; 1[***]
(vi) 1[***]
(b) land belonging to or vesting in any Local Authority which
is used or intended to be used for any public purpose
such as a road, canal, embankment, tank or ghat or for
the repair or maintenance of such road, canal,
embankment, tank or ghat;
1. Omitted by Act 4 of 1975
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(c) land acquired under the provisions of the Land Acquisition
Act 1 of 1894 or under similar Acts for the purposes of any
Local Authority, 1[***] Company owned or controlled by
the State Government, Statutory Body or Corporation while
such land remains as the property of the Local Authority,
1[***] Company owned or controlled by the State
Government, Statutory Body or Corporation;
(d) Immovable property claimed by the rulers of merged
territories but conceded in their favour; and
(e) land belonging to an establishment or undertaking owned,
controlled or managed by–
(i) any State Government or a Department of such Government;
(ii) any Company in which not less than fifty-one per cent of
the share capital is held by one or more State Governments;
or
(iii) a corporation established by law which is owned, controlled
or managed by any State Government.
Explanation :– In this section "high water mark" means the highest
point reached by ordinary spring-tides at any season of the year.
NOTES
“Abada Jogya Anabadi land” means such land which lies hallow
and which is capable of being utilized. Thus in view of Section-2(1) of
the Act such a land categorized as “Abada Jogya Anabadi land” is a
Government land: 86 (1998) CLT 170 (Parmeshwar Mohanty vs. State
of Orissa):1997(II) OLR 444.
The term Local Authority has not been defined in the Act: 34
(1968) CLT 307.
When “Abada Jogya Anabadi land” is settled as per Government
circular there cannot be encroachment: 43 (1977) CLT 177.
Transfer of Government Property to a Municipality will take only
after actual Transfer: 42 (1976) CLT 174.
2[3. Definitions :–  In this Act, unless the context otherwise
required–
(a) "Collector" means the Chief Officer in charge of the revenue
administration of a district and shall include an Additional
District Magistrate;
1. Omitted by Act 4 of 1975
2. Substituted by Act 4 of 1975.
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1(a-1) "Landless person" means a person, the total extent of
whose land excluding homestead together with lands of all
the members of his family who are living with him in common
mess, is less than one standard acre and whose total annual
income of all the members of his family who are living with
him in common mess, does not exceed rupees six thousand
and four hundred or an amount which the State Government
may, by notification from time to time, specify in that behalf;
2(a-2) "homesteadless person" means a person who, together
with all the members of his family who are living with him
in common mess, does not have any homestead land
anywhere in the State and owns less than one standard
acre of land other than homestead and whose total annual
income, together with the annual income of all the members
of his family living with him in common mess, does not
exceed rupees four thousand and two hundred or an amount
which the State Govt. may, by notification from time to
time, specify in that behalf";
(b) "Prescribed" means prescribed by rules made by the State
Government under this Act; and
3[(b-1) "standard acre" means a standard acre as defined in the
Orissa Land Reforms Act, 1960;]
(c) "Tahasildar" means the Chief Officer in charge of the revenue
administration of a Tahasil and shall include an Additional
Tahasildar.
NOTES
Tahasildar while proceeding in the matter of eviction is to consider
the question of settlement of land in favour of the encroacher in view of
the provision of the Sections: 1990 (I) OLR 304.
4. Levy of assessment of land unauthority occupied :– Any person
unauthorisedly occupying any land which is the property of Government
shall be liable to pay by way of assessment–
(i) if the land so occupied was at any time assessed to rent,
the full assessment for the whole period of occupation or a
part thereof proportionate to the area occupied, as the case
1. Substituted by Orissa Act 10 of 1988.
2. Inserted by ibid.
3. Inserted by Orissa Act 25 of 1979.
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may be, provided that for special reasons 1[the Tahasildar
may impose the full assessment of rent or any lesser sum
irrespective of the area occupied; or
(ii) if the land so occupied was not at any time assessed to
rent, an assessment on the area occupied calculated for
the same period at the rate imposed on lands of a similar
description and with similar advantages in the vicinity or
when no such prevailing rate exists, in such manner as may
be prescribed 2[***];
3[Provided that where the person unauthorisedly occupying such
land is a landless person, the amount payable by him by way of
assessment shall in no case exceed an amount equal to five times the
annual assessment:
Provided further that notwithstanding anything in the tenancy
laws for the time being in force, payment of assessment under this
sections shall not confer any right of occupancy.]
Explanation :–  For the purpose of the section occupation for an
incomplete portion of an agricultural year may be deemed to be
occupation for the whole of such year.
NOTES
The encroacher is to be evicted summarily under the Provisions
of this Act: 44 (1977) CLT 224 (BR).
Rent is to be realized from an unauthorized person being in
occupation of the Government land: 44 (1977) CLT 224 (BR).
Meaning of the Eviction Proceeding – Explained: 45 (1978) CLT
(SN.60) 29.
5. Decisions as to the amount of assessment shall not be
challenged in any Civil Court :– The decision as to the rate of amount of
rent assessed under Sec. 4 shall be recorded in writing and shall not be
called in question in any Civil Court.
6. Liability of person unauthorisedly occupying land to penalty:–
Subject to the provisions of Sec. 9, any person liable to pay assessment
under Sec. 4 shall, at the discretion of 1[The Tahasildar] be liable to pay
in addition to the assessment by way of penalty a sum calculated at a
rate 3[not exceeding one hundred rupees] per acre of land for each year
of unauthorised occupation :
1. Substituted by Act 4 of 1975
2. Omitted by ibid.
3. Substituted by Act 25 of 1976
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1. Added by Act 25 of 1976.
2. Inserted by Act 13 of 1982.
1[Provided that where the person liable to pay assessment is a
landless person, he shall not be liable to pay any penalty under this
section.]
NOTES
Eviction Proceeding not maintainable after leasing out the same
to an association: 43 (1974) CLT (SN.103) 78.
The person who has got Fishing Right cannot be treated as
Trespasser: 48 (1979) CLT (SN.71) 36.
Extent of the liability – Explained: 36 (1970) CLT 602.
The question of that a person against him proceeding has been
initiated for eviction from the Government land whether he is a landless
person is to be decided and if it is found that the land can be settled in
his favour than the same may be settled. But in the present case there
were several disputed question of facts which cannot be decided in the
Writ Application as such the matter was remanded with direction: 1999
(I) OLR 599.
In the Eviction Proceedings the Tahasildar should consider whether
the encroached land can be settled with the said person after finding
that he is a landless person: 1991 OLR 374.
Landlord encroaching upon the Government land appurtenant to
his residential house and thereafter letting out the same to a tenant. It
is the landlord who is to be treated as an encroacher: 63 (1987) CLT
597.
The authorities are to make due enquiry into several aspect of the
matter and should give proper finding: 41 (1975) CLT (SN. 145) 99.
2[6-A. Reduction and remission of assessment and penalty :–
Subject to such conditions as may be prescribed, the Collector may, in
suitable cases either reduce or remit the amount payable by way of
assessment under Sec. 4 of the penalty, if any, imposed under Sec. 6.]
NOTES :–  The reduction or remission before the omission of the
section has been protected. The proceedings which were pending on
the date of omission of the Section would continue. This is provided in
Sec. 7 of Orissa Act 25 or 1976 which reads as follows:
"7 Savings :–  The omission of Sec. 6-A of the principal Act by
this Act shall in no way affect any reduction or remission of any
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assessment or penalty made under the said section prior to the date
of commencement of this Act nor shall it any way affect the proceeding
under the section on the said date.
New Section inserted by Orissa Act 13 of 1982.
7. Summary eviction, forfeiture and fine :–  (1) Any person
unauthorisedly occupying land for which he is liable to pay assessment
under Sec. 4 shall be summarily evicted by the 1[Tahasildar] and any
crop or other product raised on the land, any encroachments such as a
building, other construction or anything deposited thereon shall be liable
to forfeiture:
Provided that in case of said encroachments. 2[the Tahasildar]
shall give reasonable notice to remove the same.
2[(2) Notwithstanding anything contained in Sub-Sec. (1)–
(a) where any land is in the unauthorised occupation of a
landless person, the Tahsildar may instead of evicting such
person from the land in his authorised occupation, settle
the same with him, so however, the land so settled with
him together with the land excluding homestead, if any
owned by him and the lands owned by all the members of
his family who are living with him in common mess, shall,
on no account, exceed one standard acre and shall not
include more than one-tenth of an acre of land which is
being utilised or can be utilised for purposes of homestead;
and
(b) where any land is in the unauthorised occupation of a
homesteadless person, which is being utilised by him as
homestead, the Tahasildar shall, instead of evicting such
person, settle the same with him, so however, that the land
so settled with him shall not exceed one-tenth of an acre."
3[Provided that no such settlement shall be made if the land belongs
to any of the following categories namely]:
(a) lands recorded as Gochar, Rakhit, or Sarbasadharan in any
record-of-rights prepared under any law;
(b) lands which are–
(i) set apart for the common use of villages;
1. Substituted by Act 4 of 1975.
2. Substituted by Act 10 of 1988.
3. Added by Act 4 of 1975.
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1. Substituted by Act 13 of 1982.
2. Substituted by Act 10 of 1988.
(ii) used as house site, back-yard of temple-site whether
or not recorded as such, in the record-of-rights;
(iii) likely to require for any development scheme and are
declared as such by the State Government by a
notification; and
(c) land belonging to an establishment of undertaking owned,
controlled or managed by–
(i) any State Government or a Department of such
Government;
(ii) any company in which not less than fifty-one per cent
of the share capital is held by one or more State
Government, or
(iii) a corporation established by law which is owned,
controlled or managed by any State Government:
1[Provided further that where the land in the unauthorised
occupation, of a person is situated within a Municipality or a Notified
Area constituted under the Orissa Municipal Act, 23 of 1950:
(a) the settlement of land with such person shall be made by
the Sub-divisional Officer on a reference made to him in
that behalf by the Tahasildar;
2[(b) not more than one-tenth of an acre shall be settled and that
such settlement shall be made only where
(i) neither the person nor any member of his family living with
him in common mess owns a house or house-site anywhere
in the State; or
(ii) the land being adjacent to the holding owned by the
person is necessary for the beneficial enjoyment of
such holding or for the residential purpose of the
person and is not reserved for the purpose of any
Government or for any development purpose; and
(c) the settlement shall not take effect until–
(i) the order for settlement made by the Sub-divisional
Officer is confirmed by the Collector of the district;
and
(ii) the person in favour of whom the settlement is made,
makes payment of the market value of the land
assessed by the Sub-divisional Officer in the manner
prescribed by rules made under this Act:
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Provided also that on failure, of payment of the market value
within the time fixed by the Sub-divisional Officer, the person in
unauthorised occupation of the land shall be liable to be summarily
evicted from the land in accordance with the provisions of this Act.]
1(2-a) Notwithstanding anything contained in the first proviso to
Sub-Sec. (2), where any land specified under the said proviso except
those classified Gochar, Rakhshit or Sarbasadharan and used as burial
ground, Government premises, tanks, roads and public places of worship
is in the unauthorised occupation of any homesteadless person and
who is using its as homestead and residing thereon by constructing a
house on or before the 10th March, 1985, the Tahasildar shall instead
of evicting such person, settle the same with him so, however, that the
land so settled with him shall not exceed one twenty-fifth of an acre;
(3) If such a person fails to remove the encroachment within the
time specified in the notice, 2[the Tahasildar] may in his discretion, in
addition to the order of forfeiture, impose a fine which may extend to
fifty rupees and a daily fine of rupees ten until the encroachment has
been removed:
3[Provided that the aggregate of the fines payable under this sub-
section shall in no event exceed an amount equal to twice the market
value of the encroachment land;
Provided further that subject to such conditions as may be
prescribed, the Collector may, in suitable cases, either reduce or remit
the amount payable by the way of fine under this sub-section].
(4) Forfeitures under this section shall be adjudged by 4[the
Tahasildar] and any property so forfeited shall be disposed of as the
4[the Tahasildar] may direct.
(5) An eviction under this section shall be made by serving a
notice in the manner provided in Sec. 9 on the person reported to be in
occupation or his agent requiring him within such time as 4[the Tahasildar]
may deem reasonable after receipt of the said notice to vacate the land
and if such notice is not obeyed, by removing or deputing a subordinate
officer to remove any person who may refuse to vacate the same.
(6) If the Officer removing any such person shall be resisted or
obstructed by any person, 4[the Tahasildar] shall hold a summary inquiry
1. Inserted ibid.
2. Substituted by Act 4 of 1975.
3. Substituted by Act 29 of 1974.
4. Substituted by Act 4 of 1975.
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into the fact of the case and if satisfied that the resistance or obstruction
was without any just cause and that such resistance or obstruction still
continues, may issue a warrant for the arrest of the said person and on
his appearance may send him with a warrant in the form appended to
Schedule I for imprisonment in the civil jail of the District for a period
not exceeding thirty days as may be necessary to prevent the continuance
of such resistance or obstruction.
NOTES
Burden is upon the Applicant to show and establish that he or she
is a landless or homestead less person for settlement of Government
land in his favour. Revenue Authorities taking no steps as to find out
whether applicant was a landless or homestead less person as such the
order settling the land in his favour is illegal: 2008 (CLT) 101: 2008 (1)
CLR 187 (Rama Mani Devi vs. Tahasildar and Others)
Some persons filing writ petition making allegations that the land
in question being a Communal Land is being encroached upon by some
encroachers. Said writ petition disposed with a direction directing the
said petitioner to make representation before the Collector: Balasore
and on such representation collector would take appropriate steps. On
such representation Collector registered encroachment cases against
the persons directing them to show cause and on failing which orders
of eviction was passed…. But on perusal it is seen that orders of eviction
cannot be sustained as the same have been passed prior to the date
fixed for filing show cause and as such the same were quashed and
further directions issued: 2005 (II) OLR 706 ( Sri Manoranjan Behera
and five others vs. State of Orissa and two others )
Settlement of Government Land/ Plot ….. Applicant is the wife of
Government Servant and not a divorced lady and the plot belongs to a
reserve category, as such denial of settlement is not illegal: 2004 (I)
CLR 85 ( Smt. Rabeha Khatun vs. State of Orissa)
8. Stay of Construction :– 1[The Tahasildar] may, if he has reasons
to believe that any person unauthorisedly occupying any land is
constructing or is about to construct any building or other structure
thereon, by order, prohibit such person from proceeding with the
construction or as the case may be, from constructing such building or
structure 2[***] and if such person fails to comply with the said order,
1[the Tahasildar] may impose a fine which may extend to fifty rupees
and a daily fine of rupees ten for everyday during which such
1. Substituted by Act 4 of 1975.
2. Words "during the pendency of any proceeding under this Act "deleted by
Act, 13 of 1982.
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noncompliance continues 1[and may also issue a warrant for the arrest
of the said person and on his appearance may send him with a warrant
in the form appended to Schedule I for imprisonment in the civil jail of
the district for a period not exceeding thirty days as may be necessary
to prevent the person from proceeding with the construction].
2[8-A. Settlement of land in cases of encroachment for more than
thirty years :–  (1) Where in the course of any proceeding instituted
under Secs. 4, 6, 7 or 8 against any person unauthorisedly occupying
any land it is proved by such person that he has been in actual, continuous
and undisputed occupation of the land for more than thirty years by the
date of institution of the proceeding, the Tahasildar shall refer the case
to the Sub-divisional Officer.
(2) On receipt of a reference under Sub-Sec. (1) the Sub-divisional
Officer shall given the Department of the State Government (other than
the Revenue Department) to which the land belongs, an opportunity to
show cause against the settlement of the land may make such further
enquiry as he deems necessary.
(3) If after making such enquiry the Sub-divisional Officer is
satisfied that such person has been in such occupation of the land as
aforesaid, he may by order, settle the land with him and every such
settlement shall be subject to such conditions, regarding assessment
and payment of rent (including arrears of rent) as may be prescribed by
rules under this Act.]
NOTES
Claim of adverse possession over the Government land cannot be
decided in a writ petition. In eviction proceedings Tahasildar directing
the petitioner to deposit penalty and assessment amount and the same
was paid by the petitioner, cannot be challenged as the same attained
its finality 106 (2008) CLT 21 : 2008 (1) CLR 864 : 2008 (Supp.1) OLR
938 (Silu Ekha vs. State of Orissa)
A person occupying the land for more than 30 years by the date
of institution of the encroachment proceedings….The Tahasildar is to
refer the case to the Sub Divisional Officer. The matter was decided by
the Civil Court in favour of the petitioner as he was found to be in
possession of the disputed plot for more than 30 years acquiring the
right, title by way of adverse possession. The matter was finally decided
by the High Court in favour of the petitioner holding his/ her title to the
land. But at the instance of Opp. Party No.5 who had no Locus Standi
in the matter as agitated before the appellate authority challenging the
1. Added by Act 4 of 1975.
2. Inserted by ibid.
13
order passed by tahasildar dropping the second encroachment proceeding
against the petitioner. The S.D.O also dismissed the appeal. Thereafter
matter was carried in revision before the Additional District Magistrate
Chatrapur who also directed to Tahasildar to do needful in accordance
with the observation and direction of the Civil Court and as such
tahasildar recommended for settlement of land in favour of the
petitioner…. As the matter stood so the Opp. Party No.5 who had lost
at all stages carried the matter in second revision before the R.D.C who
surprisingly held that the petitioner as well as Opp. Party No.5 are
directed to be evicted held that order is not sustainable in view of clear
finding of the Civil Court which has been confirmed by this Court: 93
(2002) CLT 119: A 2002 Orissa 147 (Smt. Labonga Lata Panda vs.
State of Orissa and Others)
Tahasildar is not competent to decide the question of adverse
possession: 59(1985) CLT 1 (Rev.)
Settlement of land show cause by the Government department
not necessary: AIR (1993) Orissa 77.
Read with Rule 16 of OPLE Rules - Provisions Make clear that
settlement under those provisions shall be made in favour of the
encroacher who is in actual, continuous and undisputed occupation of
the law far more than 30 years, by the time and date of institution of a
proceeding against him. The land in dispute has been occupied and
encroached by two persons settlement in favour of only one is illegal –
2010 (2) OJR 348 (Chandrasekhar Prasad Sharma Vrs RDC & another.)
9. Prior notice to person in unauthorised occupation :–  Before
taking proceedings under 1[Sec. 4], Sec. 6 or Sec. 7 2[the Tahasildar]
shall cause to be served on the person reported to be in unauthorised
occupation of the property of Government, a notice specifying the land
so occupied and calling him to show cause before a certain date as to
why he should not be proceeded against under 3[Sec. 4], Sec. 6 or Sec.
7. Such notice shall be served in such manner as the Government may,
by rules or orders under Sec. 10 direct.
NOTES
(i) A notice under Sec. 9 calling upon the person in occupation to
show cause why he should not be proceeded under Sec. 6 or 7 of
the Act does not give rise to a cause of action : 30 MLJ 255: AIR
1924 Mad. 825 : AIR 1925 Madras 415.
1. Inserted by Act 4 of 1975.
2. Substituted by Act 4 of 1975.
3. Inserted by Act 13 of 1982.
14
1. Inserted by ibid.
2. Substituted by Act 4 of 1975.
3. Added by Act 13 of 1982.
4. Substituted by Act ibid for the words "Board of Revenue".
(ii) But where such notice did not take effect because the authorities
on representation by the landlady recognised her right to
possession, the tenant is estopped from pleading justice in a third
person : AIR 1956 An. W.R. 1090.
10. Power to make rules :– (1) The State Government may, subject
to the condition of previous publication, make rules, orders either
generally or in any particular instance –
(a) regulating the rates of assessment leviable under Sec. 4;
1[(b) regarding the imposition of penalties under Sec. 6; and
(b-1) prescribing the manner of assessment of market value of
land under Sec. 7;
(b-2) prescribing the conditions regarding assessment and
payment of rent under Sec. 8-A];
(c) regulating the service of notice under this Act.
(2) All rules made under this section shall, as soon as may be
after they are made, be laid before the State Legislature for a total
period of fourteen days which may be comprised in one session or in
two or more  successive sessions and if during the said period the State
Legislature makes modifications, if any, therein, the rules shall, thereafter
have effect only in such modified form; so, however, that such
modification shall be without prejudice to the validity of anything
previously done under the rules.
11. Recovery of assessment and penalty as public demand :–
The amount of fine, assessment or penalty, imposed under this Act on
any person unauthorisedly occupying any land shall be recoverable from
him as arrears of public demand.
NOTES
Sales for recovery of penal assessment, if prevails over prior
encumbrance : See AIR 1942 Madras 244.
2[12. Appeal and Revision :–  (1) An appeal from any decision or
order made under this Act by the Tahasildar shall lie to the Sub-divisional
Officer.
(2) The Collector may revise a decision or order made by a Sub-
divisional Officer under Sub-Sec. (1) 3[or under Sec. 7 or Sec. 8-A.]
(3) The 4[Revenue Divisional Commissioner having jurisdiction]
may call for and examine the records of any proceedings under this Act
15
before any officer in which no appeal or revision lies and if such officer
appears–
(a) to have exercised a jurisdiction not vested in him by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) while acting in the exercise of his jurisdiction to have
contravened some express provision of law affecting the
decision on the merits, where such contravention has
resulted in serious miscarriage of justice, it may after giving
the parties concerned a reasonable opportunity of being
heard pass such order as it deems fit.
(4) Pending the disposal of any appeal or revision the Sub-divisional
Officer, the Collector the 1[Revenue Divisional Commissioner] as the
case may be, may stay the execution of the decision or order appealed
against or sought to be revised.
NOTES
Distinction between powers of suo motu revision under Section
12 (2) and 12 (3), 13 – explained…… there is no limitation provided U/
s- 12(2) of the Act to exercise revisional powers – such powers would
be exercised taking into consideration the Provisions of Art. 137 of the
Limitation Act in filing of the Revision: 2005 (1) CLR 710: 2005 (1) OLR
666 and 2005 AIHC 2942 (Orissa) (Smt. Sarojini Mallick vs. State of
Orissa and others)
Exercise of Power U/s- 12(3) of the Act ….. Explained. It can be
exercised only in cases where against the orders no appeal or revision
lies. There was revision before the collector in the matter and as such
no second revision U/s- 12(3) of the Act is tenable: 93 (2002) CLT 119
(Smt. Labongalata Panda vs. State of Orissa)
 The Provisions of this Section are to check illegality and
improprietority while making settlement or denying settlement: 2003
(II) OLR 637.
The Jurisdiction should be exercised within a reasonable period:
2000 (II) OLR 260.
The petitioner was lessee of a nazul plot – the same plot was
sold to another person. On a complain, the Commissioner directed the
Tahasildar to initiate encroachment case and to cancel the lease of
nazul plot. The Commissioner has no jurisdiction to give such direction
and he cannot declare the said Sale Deed illegal. The matter is to be
dealt with summarily as per the Provisions of the Act by the Tahasildar:
2000 (I) OLR 178.
1. Substituted by Act 4 of 1975.
16
Powers of the R.D.C – Explained. Even if there is no limitation for
exercise of such powers the same cannot be exercised after elapse of a
long period. It should be exercised within a reasonable time: 1991 (II)
OLR 51.
Meaning of the terms “In which no Appeal or Revisions lies” –
Explained. Unless and until such orders are passed there is no Provision
for Suo Motu Revision: 1987 (II) OLR 241.
There is no Provision for Second Suo Motu Revision under the
Provisions of the Act: 1984 (1) OLR (BR) 18 and also 1.
Powers are to be exercised within a reasonable period for Suo
Motu Revision: 72 (1991) CLT 49.
13. Limitation :–  1[(1) * * *]
(2) No appeal shall be brought after the expirty of thirty days from
the date of the decision or order complained of and in computing the
said period of thirty days the time required to obtain a copy of the
decision or order appealed against shall be excluded :
Provided that an appeal may be admitted after the aforesaid period
if the appellant satisfied the appellate authority that he had sufficient
cause for not preferring the appeal within that period.
NOTES
Legality of the Proceeding- Explained. Son possessing land in
question proceeding against the father whether maintainable: 72 (1991)
CLT 49.
14. Document accompanying memorandum of appeal :–  Every
memorandum of appeal shall be accompanied by the decision or order
appealed against or by an authenticated copy of the same.
15. Delegation of powers and duties of Collector, Sub-Divisional
Officer, Deputy-Collector and Sub-Deputy Collector :–  The State
Government may, by order, direct that any power, duties or functions
conferred or imposed on a 2[Collector or Sub-Divisional Officer] shall in
such circumstances and under such conditions, if any, as may be
specified in that order, exercised or dicharged by such other officer or
authority as may be specified in that order.
16. Bar of suits and proceedings :–  Not suit or other legal
proceedings in respect of the matter of disputes for determining or
deciding which provision is made in this Act shall be instituted in any
Court of law except under and in conformity with the provisions of this
Act.
1. Omitted by Act 13 of 1982.
2. Substituted by Act 4 of 1975.
17
NOTES
Suit for permanent injunction Civil Court has no jurisdiction as
section 16 of OPLE Act is a bar….. – Authorities granting interim order
under OPLE Act. Thereafter plaintiff withdrawing the suit. The present
petitioner filing petition for transposing them as plaintiffs was rejected.
In Revision also they lost, as at any stage the suit was to be dismissed
writ petition was held not to be maintainable: 107 (2009) CLT 730:
209 (1) OLR 647 (Mohammed Nasir vs. Jadal Kumar Sahu and others)
- The question of title by either of the party can be decided by the
Civil Court only and not in a summary proceedings under OPLE Act.
When there is bonafide dispute with regard to right, title and interest
with regard to a land, the Civil Court has jurisdiction to decide the
matter. :2008 (1) CLR 951 ( Harekrushna Behera vs. State of Orissa
and    another)
Plots wrongly recorded as Government Land and plaintiff claims
to be in possession of the same since long …. Prima facie there is
serious dispute with regard to right, title and interest in the two plots. It
is not a case that lands were Government Land and the plaintiff is
unauthorized occupant of the same. Thus, there being a complicated
question of right, title in respect of the suit land Civil Court has got
jurisdiction to entertain the suit and adjudicate the question of right,
title and interest of the parties:105 (2008) CLT 800: 2008 (II) OLR
170: 2008 (II) CLR 132 (State of Orissa vs. Sahukar Gurumurthy )
In a case where the party raises bonafide question of right, title
over the property, authorities cannot adjudicate the same under the
provisions of OPLE Act …… Thus the suit in such a matter is to be
entertained by Civil Court and it has jurisdiction to grant proper relief
regarding title: 2007 (1) OLR 52 (State of Orissa and another vs. Daitari
Sahu and other)
When it has been found that the land is Raiyati land and not a
government land, the provisions of this Act (OPLE Act) are not applicable
and any encroachment case instituted against the occupant of the land
is not maintainable. In a case where bonafide dispute arises as to whether
the land is Government land or Private land the Government cannot
assume unilaterally that it is Government land and can initiate
encroachment proceedings under the provisions of OPLE Act: 2007 (1)
OLR 550 (Dist. Collector representing State of Orissa and also in the
capacity as Collector and others vs. Nirupama Behera and others)
Scope under the Provisions of this Act for initiating Encroachment
Proceedings explained – There being dispute between two private parties
with regard to claim of title over the land. Civil Court is competent to
decide the matter: 93 (2002) CLT 119 (Smt. Labongalata Panda vs.
State of Orissa)
18
17. Protection of action to be taken under this Act :–  No suit,
prosecution or other legal proceedings shall lie against any person for
anything in good faith done or intended to be done in pursuance of this
Act.
18. Repeal and Savings :–  (1) The enactments mentioned in
Schedule II are repealed to the extent specified in column 4 thereof.
(2) All things done, liabilities incurred, amounts assessed or penalty
or fine imposed, enquiries held, notices served, warrants issued, eviction
ordered, forfeiture adjudge under any of the enactments hereby repealed
shall, so far as may be, deemed to have been respectively done, incurred,
assessed, imposed, held, served, issued, ordered, adjudged and made
under this Act.
(3) All rules made under the Orissa Prevention of land
Encroachment Act 15 of 1954 shall be deemed to have been made
under this Act.
(4) Notwithstanding any judgement order of any Court all
proceedings, whether original, appellate or by way of revision, started
under the Orissa Prevention of Land Encroachment Act, 15 of 1954
which have been dismissed on or after the 12th November, 1969 merely
on the ground that provisions contained in that Act were void, shall be
restored to the file of the respective authorities who had dismissed the
proceedings and shall be proceeded with and disposed of in accordance
with the provisions contained in this Act as if they had never been so
dismissed.
NOTES
The proceedings which were already ordered and adjudged are
protected and saved under the Act: (1966) OJD 135.
The Orissa General Clauses Act is not applicable to the proceedings
under the Act: 47 (1979) CLT (SN.69) 39.
19. Repeal of Orissa Ordinance No. 7 of 1971 :–  (1) The Orissa
Prevention of Land Encroachment Ordinance, 1971, is hereby repealed.
(2) Notwithstanding such repeal anything done or any action taken
under the said Ordinance shall be deemed to have been ordered or
taken under this Act.
NOTES
Orissa General Clauses Act has no application to proceedings
initiated under the Prevention of Land Encroachment Act, 1954 :
47 (1979) CLT (Notes 69) 39.
19
1[SCHEDULE - I]
[See 7 (6) and (8)]
Form of warrant to be issued by the Tahasildar under Secs. 7 or 8
SEAL
To,
The Officer-in-charge of the Civil Jail at...............................
whereas A.B. of ....................................... has resisted/obstructed
C.D. in removing F.E. (or himself, that is, the said A.B.) from certain land
in the village of ....................... in the ..................... mouza has failed
to comply with the order issued under Sec. 8 of the Orissa Prevention
of Land Encroachment Act, 1972;
And whereas, it is necessary in order to prevent the continuance
of such resistance/obstruction/in order to enforce compliance of the
said order, to commit the said A.B. to close custody.
You are hereby required under the provisions of Sec. 7/Sec. 8 of
the said Act to receive the said A.B. into the Jail under your charge and
there to keep him in safe custody for............ days.
[Dated this.............. days of............... (Signature of Tahasildar)]
1. Substituted by Act 13 of 1982.
20
SCHEDULE - II
[Section 18]
Year Number Short title Extent of repeal
(1) (2) (3) (4)
1905 (Madras) III The Madras Land Whole
Encroachment Act
1917 (C.P. II The Central Provinces Secs. 217 & 219
Land Revenue Act
1936 V The Angul Laws The entry "1947
Regulation XXXIII, The Orissa
Land Encroachment
Act, 1947" in Part VI
of the Schedule.
1947 XXXIII The Orissa land Whole
Encroachment Act
1950 IV The Orissa Merged The entry "1947
States (Laws) Act. XXXIII. The Orissa
Land Encroachment
Act, 1947" in the
Schedule.
1984 XV The Orissa Prevention Whole
of Land Encroachment
Act.

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