Orissa High Court
Afr Krushna Chandra Mohapatra (Dead) vs State Of Odisha & Others …….. … on 7 April, 2026
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). No. 29828 of 2024 &
W.P.(C) No. 29911 of 2024
(Applications under Articles 226 and 227 of Constitution of India)
AFR Krushna Chandra Mohapatra (dead).
represented through L.Rs & Others ....... Petitioners
-Versus-
State of Odisha & Others ........ Opposite Parties
_______________________________________________________
For Petitioners : Ms. D. Mahapatra, Advocate
For Opp. Parties: Ms. J. Sahoo,
Addl. Standing Counsel
Mr. D. Mohapatra, Sr. Advocate
With Mr. M.R. Pradhan, Advocate
(For O.P Nos. 2 to 4)
Mr. N.P. Parija, Advocate
(For O.P Nos. 5 to 9)
_______________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
7th April, 2026
SASHIKANTA MISHRA, J. The petitioners seek to challenge the
inaction of Opposite Party Nos.2 to 4, namely, Cuttack
Development Authority (C.D.A.), Planning Member/Secretary,
CDA and Enforcement Officer, CDA respectively in the matter of
removal of encroachment allegedly made by the private opposite
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parties over Plot Nos.602 and 606 under Mouza-Nuapada in
Cuttack despite fresh measurement conducted pursuant to the
directions of this Court in W.P.(C) No.33429 of 2020 and
W.P.(C) No.21106 of 2023.
2. Since both the writ petitions involve common facts, they
were heard analogously and are being disposed of by this
common judgment. For the sake of convenience, the facts of
W.P.(C) No.29828 of 2024 are referred to.
3. The case of the petitioners, in brief, is that Opposite Party
Nos.5 to 9 made unauthorized constructions over Plot Nos.602
and 606, which according to the them are public road, thereby
obstructing to easy ingress and egress of the petitioners and
other inhabitants of the locality. It is stated that in U.C. Case
No.174 of 2015, Cuttack Development Authority (Opp. Party
no.2) upon enquiry found such encroachment and directed
removal of the unauthorized constructions by order dtd
28.08.2016 which was affirmed in Appeal No.27 of 2016 by
order dtd. 23.09.2017. Said appellate order was challenged
before this Court in W.P.(C) No.22558 of 2017, wherein this
Court directed joint measurement of the land taking into
account both existing and non-existing maps. Pursuant
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thereto, joint measurement was conducted in 2019, wherein
the encroachment was confirmed.
It is also stated that that despite such findings, no steps
were taken by the authorities, compelling the petitioners to
approach this Court in W.P.(C) No.33429 of 2020, which was
disposed of on 06.05.2024 with a direction to conduct fresh
measurement and to take consequential action within a
stipulated period. In compliance thereof, fresh joint
measurement was conducted on 10.07.2024, by which
encroachment was again found over the said plots and notices
dated 23.08.2024 were issued to Opposite Party Nos.5 to 9 for
removal of the unauthorized constructions. As no further action
was taken by the authorities (O.P no. 2 to 4), the petitioner has
approached this Court in the present writ petition.
4. Opposite Party Nos.5 to 9, on the other hand, have filed a
counter affidavit claiming that Plot No.602 is a private passage
jointly owned by them and their co-sharers, and Plot No.606 is
a private homestead land belonging to third parties. The
petitioners have no right over the said land and have falsely
projected a private passage as a public road.
Page 3 of 9
It is also stated that the dispute involves questions
relating to title, possession and nature of land, which are
matters for adjudication by the Civil Court and in fact, civil
suits are already pending between the parties in C.S no. 1015
of 2024 before Civil Judge, Sr. division, Cuttack. The
correctness of the measurement reports is also disputed in C.S.
no. 995 of 2024 before the same Court.
5. Heard Ms. D. Mahapatra, learned counsel for the
petitioners, Mr. Dayanand Mohapatra, learned Senior Counsel
with Mr. M.R. Pradhan, learned counsel for the CDA, Mr. N.P.
Parija, learned counsel for the private Opp. Party nos. 5 to 9
and Ms. J. Sahoo, learned ASC for the State.
6. Ms. D. Mahapatra would argue that the issue of
encroachment over Plot Nos.602 and 606 has already been
determined in earlier proceedings under the provisions of the
ODA Act, wherein, upon due enquiry, the CDA directed
demolition of the unauthorized constructions and the same was
affirmed in appeal. Said order was challenged before this Court
but did not result in setting aside of the same rather directions
were issued for joint measurement. She submits that pursuant
to such directions, joint measurements were conducted on
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more than one occasion, including the latest measurement on
10.07.2024, wherein encroachment was found to have been
made again. Despite issuance of notice on 23.08.2024 by
Opposite Party no. 2, no fruitful action ensued.
She further argues that the plea taken by Opposite
Party Nos.5 to 9 that the land in question is a private passage is
not correct as once it is confirmed as public road by the
Opposite party no. 2 and confirmed in appeal, the authorities
are under obligation to enforce such order and remove the
encroachment.
7. Per Contra, Mr. Parija would argue that the writ petitions
are based on disputed questions of fact. He submits that Plot
No.602 is a private passage jointly owned by Opposite Party
Nos.5 to 9 along with their co-sharers as per ROR and Plot
No.606 is a private homestead land belonging to third parties
as per ROR, and as such, the petitioners have no manner of
right, title or interest over the same.
He further argues that civil suits have already been
instituted by the parties and are pending adjudication, wherein
all these issues can be effectively decided on the basis of
evidence.
Page 5 of 9
He further argues that the earlier order issued by this
Court was to cause measurement considering both existing and
non-existing maps but it has not been done properly so no
reliance can be placed upon.
8. Mr. Dayanand Mohapatra would argue that the
authorities have acted in compliance with the directions issued
by this Court from time to time. He submits that pursuant to
the order dated 06.05.2024 passed in earlier writ petitions,
fresh joint measurement was conducted on 10.07.2024 in
presence of the concerned parties. Thereafter, notice dated
23.08.2024 was issued to the private opposite parties directing
removal of the unauthorized constructions within the stipulated
time.
He further submits that subsequent action could not be
taken in view of the order passed by this Court in W.P.(C)
No.23535 of 2024, wherein the parties were relegated to
approach the Civil Court for adjudication of their disputes and
to seek appropriate interim relief. He therefore, submits that in
view of the pendency of civil proceedings and interim orders
being passed therein, the authorities have refrained from taking
steps so as to avoid any conflict with judicial orders.
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9. Ms. J. Sahoo, ASC supports the submissions of Mr.
Mohapatra and makes similar arguments.
10. Upon hearing learned counsel for the parties at length
and on careful perusal of the pleadings and materials on
record, this Court finds that the dispute essentially relates to
the nature and character of Plot Nos.602 and 606, i.e., whether
the same are public road or private land. While the petitioners
rely upon orders passed under the ODA Act and subsequent
measurement reports to allege otherwise as to their nature as
also encroachment, the private opposite parties have disputed
the same by claiming private ownership and right of passage.
11. It is also not in dispute that civil suits relating to the
disputed land are pending. As can be seen from the order dated
06.01.2025 passed in I.A. No.1 of 2024 arising out of C.S.
No.1015 of 2024, the Civil Court, upon consideration of the
documents on record including RORs, measurement report and
demolition notice, has directed the parties to maintain status
quo over the schedule property and has further restrained the
CDA from acting upon the measurement report dated
19.07.2024. The said order clearly indicates that the Civil Court
has taken cognizance of the dispute relating to right of passage,
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nature of land and correctness of the measurement and has
thought it fit to grant interim protection pending adjudication of
the rights of the parties. It is common ground that the said
order of order of restraint still subsists.
12. Significantly, the correctness of the measurement
reports and the manner in which such measurements were
conducted, particularly with reference to the direction of this
Court in W.P.(C) No.22558 of 2017 to take into account both
existing and non-existing maps has also been the main
question in the suit filed by the private opposite parties in C.S
no.995 of 2024. Such dispute cannot be resolved without
appreciation of evidence, including examination of revenue
records, maps and other documents by this Court exercising
writ jurisdiction.
13. Thus, from a conspectus of the analysis of facts, law,
the contentions raised and the discussion made, this Court is
of the considered view that issuance of a writ of mandamus
directing demolition or removal of alleged encroachment would
necessarily require this Court to determine disputed questions
of fact. It is well settled that where disputed questions of fact
are involved and the parties are already before the Civil Court,
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the writ court should refrain from exercising its extraordinary
jurisdiction. Therefore, this Court is not inclined to interfere in
the matter or issue any direction for removal of the alleged
encroachment, leaving it open to be adjudicated by the Civil
Court in accordance with law. The petitioner, if so advised may
approach the Civil Court in the pending suit(s) seeking
appropriate relief. In such event, it shall be for the Civil Court
to consider the prayer on the basis of materials and evidence
placed before it.
14. The writ petitions are disposed of accordingly.
………………………….
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 6th April, 2026/ A.K. Rana, P.A.
Signature Not Verified
Digitally Signed
Signed by: AJAYA KUMAR RANA
Designation: P.A.
Reason: Authentication Page 9 of 9
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 07-Apr-2026 14:21:17