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IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) No. 8548 OF 2026

[Application under Articles 226 & 227 of the Constitution of

India]

AFR Sri Gadagadeswar Mahadev Bije …. Petitioner

-Versus-

State of Odisha & Others …. Opp. Parties

Advocate(s) appeared in this case:

For Petitioner : M/s. Bhaskar Chandra Panda,

S.Mishra, J.N.Panda, A.Tripathy,

A. Mishra, D.Nanda, Advocates

Mr. Ramakanata Mohanty,

Sr. Advocate

(Amicus Curiae)

For Opp.Parties : Mr. S.N. Patnaik,

Addl. Government Advocate

CORAM:

JUSTICE SASHIKANTA MISHRA

JUDGMENT

1

st

October, 2026

SASHIKANTA MISHRA, J.

The petitioner is a deity represented by its

trustee. In the present writ application, it seeks quashment

of notifications dated 15.10.2025 and 14.02.2020 of the

Government in Revenue and Disaster Management WP(C)/8548/2026

ODHC010188822026

2026:OHC:170

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Department as also for a direction to the Tahasildar,

Sadar, Cuttack to accept its demarcation application

through offline as per Rule-38 of the Orissa Survey and

Settlement Rules, 1962 (in short, ‘OSS Rules’).

2. Facts of the case, briefly stated, are that the

petitioner- deity is the recorded tenant of land recorded

under Khata No. 29/2 comprising 11 nos. of plots, in all

measuring Ac.2.600 dec. The 11 plots are Plot Nos. 98, 99,

100, 101, 102, 104, 105, 106, 107,108 & 112. It is claimed

that a portion of the aforesaid land has been encroached by

outsiders and Cuttack Municipal Corporation (CMC) has

constructed a road over a portion thereof without any

acquisition. The Government, CMC as well as other

organizations hold various meetings over a portion of the

property without paying anything to the deity. Baliyatra is

also being organized over a portion of the property. After

much persuasion by the trustee, the Government has paid

some amount for the last two years for user of the

property. Under such circumstances and in order to

recover and protect its property, the trustee wanted the

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land to be demarcated. His application for demarcation was

not accepted on the ground that only online applications

would be considered. When the petitioner attempted to

apply through the online mode, the system did not accept

the single application on the ground that separate

applications are necessary for each individual plot along

with payment of fees for each. Since the process is

expensive, the trustee requested the Tahasildar to accept

offline application as the deity is a perpetual minor and

without successor. According to the petitioner, fee of Rs.4/-

is payable for each plot to be demarcated as per Rule 38 of

the OSS Rules, which has not yet been amended. In the

meantime, on 15.10.2025, the State Government issued a

Standard Operating Procedure (SOP) for demarcation of

boundary of plots at the instance of the recorded tenants.

In the said SOP, the Revenue Authorities have been

directed to accept application for demarcation through

online mode by charging Rs.800/- towards user charges for

each plot. The State Government issued another

notification earlier i.e. on 14.02.2020 for deployment of

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Licenced Surveyors in the work of demarcation mentioning

that Rs.800/- will be collected per day per application for

demarcation of private land. According to the petitioner,

both the notifications as above are inconsistent with the

OSS Rules. On such facts, the petitioner-deity has

approached this Court with the following prayer:

“It is therefore prayed that, this Hon'ble

Court may graciously be pleased to admit this

writ petition, issue notice to the Opposite Parties

and after hearing the counsels for the parties be

pleased to quash the Notifications dated

15.10.2025 and 14.02.2020 under Annexure-4 &

5 respectively and further pleased to direct the

Tahasildar, Cuttack Sadar/ opp.party No.3 to

accept the demarcation application through offline

under Annexure-3 as per Rule-38 of OSS

Rules,1962 to secure ends of justice;

And or pass any other order/orders,

direction/ directions as deem fit and proper in the

facts and circumstances of the case.

And for which kind act the petitioner as in

duty bound shall ever pray.”

3. Counter affidavit has been filed by the State-

opposite party No.1. It is stated that the petitioner’s claim

is founded upon complete misconception of the statutory

and administrative framework governing measurement and

demarcation of land and that the petitioner has

erroneously equated the statutory fee prescribed under

Rule-38 of OSS Rules with the process fee (user charges)

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payable for demarcation of private lands towards

remuneration of Licenced Surveyor engaged for conducting

demarcation, both of which are distinct in their object,

scope, purpose and legal character. It is further stated that

Rule-38 prescribes a nominal statutory fee of Rs.4/- per

plot only towards measurement or field enquiry arising out

of mutation cases required for maintenance of RORs and

maps under Chapter-IV of the OSS Rules. Said statutory

fee is merely incidental to mutation cases as and when

applied by the land owners and has no bearing on the

demarcation of private lands applied for by land owners. It

is further stated that demarcation of private lands is

governed by separate executive guidelines issued by

Government from time to time. The guidelines vide letter

dated 13.12.2016 provided that every application for

demarcation shall be accompanied by the prescribed

process fee/user charges. The SOP vide letter dated

15.10.2025 introduced online application and slot-booking

system with prescribed process fee and user charges of

Rs.800/- per plot, as fixed by notification dated

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14.02.2020. In view of the acute shortage of Revenue

Inspectors, Asst. Revenue Inspectors and Amins in the

State, the policy vide letter dated 14.02.2020 was

formulated to engage Licenced Surveyor under the Odisha

Special Survey and Settlement Act, 2012 and Rules framed

thereunder to ensure expeditious delivery of services. The

petitioner has not been denied the service of demarcation,

rather it was advised to follow the prescribed online

procedure. There is no provision in the executive

instruction enabling the Tahasildar to accept offline

application or for exemption of user fee.

4. Heard Mr. B.C. Panda, learned counsel for the

petitioner and Mr. S.N. Patnaik, learned Addl. Government

Advocate for the State. Also heard Mr. Ramakanta

Mohanty, learned Senior Counsel, who assisted the Court

as Amicus Curiae being requested by the Court having

regard to the importance of the point involved in the writ

application.

5. Mr. Panda would argue that Rule-38 of the OSS

Rules provides for measurement/field enquiry for which

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the fees chargeable is Rs.4/- per plot. This provision has

not been amended as yet. The guidelines issued on

13.12.2016 are executive in nature confirming the fees

prescribed under Rule-38 of the OSS Rules. The SOP

issued on 15.10.2025 makes a clear departure from the

provisions of Rule-38 as well as the guidelines dated

13.12.2016 inasmuch as it has enhanced the fees to

Rs.800/-. That apart, the various requirements indicated

therein, such as, furnishing of the name, mobile number

and other particulars of the boundary tenants are

impossible to be complied with on the part of an applicant.

According to Mr. Panda, the executive instructions cannot

override statutory Rules. The Government can enhance

fees only by way of amendment of the Rule and not by

executive instructions. He further submits that the stand

taken by the State in its counter affidavit that Rule 38 of

the OSS Rules provides for measurement arising out of

mutation proceeding is entirely misconceived.

6. Learned State Counsel, Mr. S.N. Patnaik argues

that Rule-38 occurs in Chapter-IV of the OSS Rules, which

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pertains to maintenance of record of rights and map. He

further submits that as per Section 2(11) of the Orissa

Survey and Settlement Act, (in short, the ‘ OSS Act’),

‘Survey’ includes measurement of a boundary. He further

refers to Section 3 of the said Act to submit that as per

Sub-Section (3), survey can be conducted on the request of

any local authority or other persons, who agree to pay such

amount as may be directed by the Government towards the

cost of survey. According to Mr. Patnaik, Rule-38 of the

OSS Rules has to be interpreted in light of these

provisions. Since Licensed Surveyors are being utilized in

demarcation work, the government decided to collect user

fees, which was prescribed for the first time in the

notification dated 14.02.2020 and reiterated in the SOP

dated 15.10.2025. The statutory fee of Rs.4/- prescribed in

Rule-38 relates specifically to cases where measurement

and field enquiry is conducted in mutation cases. This

cannot be equated with the user fee payable for

demarcation of a private land.

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7. Mr. Ramakanta Mohanty, learned Amicus Curiae

submits that Rule-32 mandates that the Tahasildar is

responsible for maintaining the finally published map and

ROR. In the SOP, it is admitted that Rule-38 empowers the

Tahasildar to conduct measurement as well as determining

and recording boundaries upon realization of prescribed

fees. Such being the case, the Government cannot now

take a stand that the fees prescribed in the SOP is not a fee

but administrative and supervisory expense incurred for

engagement of Licensed Surveyors. Even otherwise, a fee

cannot be levied by an executive instruction without being

backed by any statutory provision. Mr. Mohanty further

contends that the fee prescribed under Rule-38 was

enhanced by way of amendment of the Rule in 1992.

Referring to Article-265 of the Constitution of India, which

prohibits levy of tax except by authority of law, Mr.

Mohanty reiterates his argument that a fee needs a

statutory foundation. There being no statutory prescription

authorizing the State Government to impose a fee

otherwise than that imposed under the Statute, the

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Government cannot unilaterally prescribe/enhance fees by

way of an executive instruction, which is not ‘law’ within

the meaning of Article-13. Article 162 of the Constitution

permits the State to issue executive instruction, where the

Rules are silent and require supplementation, but under

no circumstances can it supplant the statute. It is open to

the Government to amend the Rule to enhance the fees but

without resorting to the same, the fees cannot be

enhanced. Rule-38 is a part of subordinate legislation

framed under the Rule-making power prescribed under

Section 43 of the OSS Act. Mr. Mohanty sums up his

argument by submitting that if a statute prescribes a thing

to be done in a particular manner it has to be done in that

manner or not at all. Therefore, the executive instructions

are ultra vires the provisions of the Act and Rules.

However, they can at best be interpreted to act as an

alternative mode but cannot take away the right of the

applicant guaranteed under Rule-38 of the OSS Rules.

8. Having heard the rival contentions, this Court feels

that a brief reference to the relevant statutory provisions at

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the outset would be apposite. Undisputedly, neither the

OSS Act nor the OSS Rules defines the word ‘demarcation’.

According to the petitioner as well as learned Amicus

Curiae, Rule-38 of the OSS Rules deals with demarcation.

According to the State Counsel however, Rule-38 is a

process in the mutation. Rule-38 is reproduced below.

“38. Measurement - Where a measurement or field

enquiry is claimed, fees shall, be realized at the rate of

four rupees for every plot of land covered by such

measurement or enquiry:

Provided that the fees shall be calculated on the

number of plots that are made after the said

measurement or enquiry:

Provided further that no measurement fee shall be

realized for measurement or field enquiry necessitated

in any proceedings commenced otherwise than on an

application.”

This Rule occurs in Chapter-IV of the OSS Rules, which

deals with maintenance of records of rights and map. Rule-

32 provides for maintenance of the same by the Tahasildar

after final publication in accordance with the provisions of

the Act. Rule-34 provides the grounds on which record of

rights and map can be corrected. Rule-35, which is

reproduced below specifically provides that the proceedings

commenced under this Chapter shall be registered as

mutation cases.

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“35. Registration of proceedings All proceedings

commenced on a report, application or otherwise

under this Chapter shall be registered as

mutation cases and each such case shall be

numbered and entered in register in Form No.8

to be called the Mutation Register: Provided that

changes in any entry of the record-of-rights

arising out of an order to decree of a Revenue or

a Civil Court or the order of a Tribunal

constituted under any law for the time being in

force shall be numbered and entered in the

Register as separate cases and carried out by

the Tahasildar immediately on receipt of such

order or decree, as the case may be, and it shall

not be necessary to commence a Mutation

Proceeding for that purpose.”

(Emphasis added)

Rule-36 provides for realization of application fees for

mutation and Rule-37 provides for realization of process

fees. Rule 38 provides for measurement, with realization of

fees at the rate of Rs.4/- for every plot of land. Thus, Rule-

36, 37 as well as 38 provide for realization of fees

separately. This implies that there is an essential

distinction between the proceedings referred to in Rule 36,

and 37 and Rule 38. Even though Rule-35 provides that all

applications under the chapter are to be treated as

mutation cases, Rule-38 cannot be interpreted to mean a

part of the process of mutation in the sense of correction of

ROR and map. This is being said for the reason that

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separate fees are payable for measurement under Rule-38.

While mutation means correction of ROR and map,

measurement within the meaning of Rule-38 obviously

means physical measurement of the land in question,

which in ordinary parlance goes by the name

‘demarcation’. This Court is therefore, unable to accept the

argument of the State Counsel that the measurement

referred to in Rule-38 is a part of the mutation process

relating to ROR and map.

9. The State Counsel has argued that demarcation is

a part of survey within the meaning of the OSS Act by

referring to Section 2(11) and 3 of the Act. This Court is

unable to agree with such contention for the reason that

Section 3 empowers the Government to order a survey to

be made of any land in the State or the boundary thereof

by issuing a notification. For immediate reference, Section-

2(11) and Section 3 are quoted in their entirety.

“2. Definitions.

11. "Survey" includes all or any of the operations

incidental to the determination, measurement and

record or a boundary or boundaries or any part of

a boundary and includes a re-survey;

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3. Power to order a survey.

[(1) The Government or subject to their control any

Officer or Authority empowered by Government

may, at any time, by notification, order a survey

to be made of any land in the State or the

boundary thereof.] [Substituted vide Orissa Act

No. 7 of 1962.]

(2) The Government shall be competent at any

time during the continuance of the proceedings of

any survey to issue an order to stop such survey

and, if subsequently so ordered, such proceeding

shall be proceeded with from such stage as may

be directed.

(3) The Government may also issue a notification

ordering a survey:

(a) on the request of -

(i) any local authority; or

(ii) other persons;

who agree to pay such amount as may be

directed by the Government towards the cost of

survey; or

(b) Where in any local area not less than one-half

of the total number of raiyats apply for the

survey, depositing or giving security for such

amount towards the payment of expenses as the

Government may direct.”

(Emphasis added)

A conjoint reading of the above provisions makes it clear

that the word ‘survey’ used in these provisions obviously

refers to a larger exercise conducted by the Government

upon issuance of notification for the purpose of general

measurement of any particular land or lands. There is

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nothing in Section-3 to indicate that such survey includes

demarcation of private lands at the instance of a citizen.

Rule-38 on the other hand does not require any

notification being issued by the Government for its

operation. It comes into operation automatically upon

submission of application.

10. Having dealt with the preliminary contentions

raised by the State Counsel, it would now be proper to

consider whether it is within the competence of the State

Government to enhance the fees for measurement

(demarcation) prescribed under Rule-38 by an executive

instruction. It would be relevant to note that prior to

13.12.2016, there was no executive instructions governing

the demarcation. For the first time, the Government issued

guidelines for demarcation. What is significant to note is

that the said guidelines refer to both Rule-32 and

specifically mentions that Rule-38 prescribes the fees for

measurement of plot. Therefore, the stand taken by the

State that Rule-38 does not apply to demarcation, falls to

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the ground automatically being contrary to its own

notification.

11. Coming to the SOP dated 15.10.2025, it provides

that prescribed process fee under the relevant Rules along

with user charges of Rs.800/- per plot is payable. The

notification 14.02.2020 provides that in case a Licensed

Surveyor is assigned the work of demarcation of a private

land by the Tahasildar, then user fee amounting to

Rs.800/- per application will be collected from the

applicant out of which Rs.700/- will be paid to the

Licensed Surveyor as remuneration and Rs.100/- will be

deposited to the Government Account. While the decision

of the Government to provide for online applications for

demarcation cannot be questioned, or the methodology of

measurement prescribed therein, facts remain that attempt

to realize fees other than what has been prescribed in Rule-

38 cannot obviously be countenanced. In fact, the letter

dated 15.10.2025 circulating the SOP to all concerned

itself refers to Rule-38. As argued by learned Amicus

Curiae, it is within the competence of the State to issue

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executive instructions but only where the Rule is silent as

to procedure and like matters. It is the settled position of

law that an executive instruction can only supplement the

statute and not supplant it. Reference in this regard may

be had to the judgment of the Supreme Court in the case of

Narendra Kumar Maheswari vs. Union of India

1.

12. The OSS Rules is a subordinate legislation framed

by the State in exercise of its rule-making power conferred

by Section 43 of the OSS Act and duly placed before the

State legislature. It is ‘law’ within the meaning of Article-13

of the Constitution of India, whereas an executive

instruction is not. Law can only be changed or altered by

law and not by executive instruction. If the Government

desires to enhance the fees prescribed under Rule-38, it

can always do so by resorting to amendment of the said

Rules. That not having been done, the Rule shall reign

supreme. It goes without saying that any fee levied has to

be backed by statutory provision in view of Article-265 of

the Constitution of India.

1

AIR 1989 SC 2138

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13. As regards the argument that dearth of Revenue

Inspectors, Asst. Revenue Inspectors and Government

Amins has necessitated engagement of Licensed Surveyors,

the same can only be treated as a procedural/

administrative exigency which cannot give a handle to the

State to by-pass the statutory provision under any

circumstances in the matter of realizing fees for

demarcation. The law as it exists has to be respected and

followed in letter and spirit.

14. Notwithstanding the findings above, this Court

does not consider it necessary to quash the notifications

dated 14.02.2020 and 15.10.2025. The engagement of

Licensed Surveyors under the Odisha Special Survey and

Settlement Act, 2012 and the introduction of an online

slot-booking system are measures aimed at expeditious

delivery of service, and their validity is not in question. The

infirmity lies only in treating these measures as the

exclusive mode of demarcation, and in making payment of

user charges of Rs.800/- a precondition to the exercise of

the right under Rule-38 of the OSS Rules. To that extent

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the notifications cannot prevail over the Rule. They can,

however, operate validly as an alternative mode, open to an

applicant who, of his own volition, chooses to have the

demarcation done through a Licensed Surveyor and agrees

to pay the user charges for that service. In so far as the

prayer for quashment of the impugned notification is

concerned, this Court is of the considered view that the

same offers an alternative mode of facilitating demarcation

through Licensed Surveyor as also for receiving and

processing application in the online mode. Since the Rules

are silent in this regard, it would be permissible for the

State to issue executive instructions in the form of

notification (SOP). However, if the executive instructions

are intended to provide the only mode, it would come in

conflict with the statutory Rules and therefore, cannot be

countenanced to such extent. Faced with such situation,

this Court would allow the notifications to exist with the

strong rider that a citizen cannot be forced to apply for

demarcation only through the online mode and/or to pay

fees other than what has been prescribed in Rule-38 of the

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OSS Rules. The impugned notifications shall be inoperative

only to the extent they treat the online mode as the sole

mode, or require payment of fees beyond what is prescribed

under Rule-38. In other words, (a) the mode of application

shall not be restricted to online alone, and (b) no fee

beyond what is prescribed under Rule-38 shall be charged

from an applicant who does not choose the Licensed

Surveyor facility. Even in the online mode, if there is

technical difficulty in accepting a single application for

multiple plots in a single Khata, the system/portal should

be synchronized appropriately but under no

circumstances, the applicant should be asked to submit

multiple applications for demarcation of plots under the

same Khata.

15. Thus, from a conspectus of the analysis of facts,

law and contentions raised by the parties, this Court is of

the firm view that the Tahasildar committed an illegality in

not accepting the application for demarcation of the

petitioner offline and insisting upon payment of Rs.800/-

for each plot to be demarcated.

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16. In the result, the writ petition is allowed in part

with the following directions:

(i) The notifications dated 14.02.2020 and

15.10.2025 shall operate only as an alternative

mode of demarcation, available to an applicant

who voluntarily opts for the same and agrees to

pay the user charges prescribed therein.

(ii) To the extent the said notifications make

online filing or payment of user charges

compulsory, the same shall not be enforced

against any person seeking demarcation under

Rule 38 of the OSS Rules. Such person shall be

entitled to apply offline on payment of the fee

prescribed under Rule 38.

(iii) The Tahasildar, Cuttack Sadar (Opposite

Party No.3), shall accept the petitioner's

application for demarcation in offline mode on

payment of the fee prescribed under Rule 38 and

shall complete the demarcation, after due notice to

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other parties, within a period of four weeks from

the date of submission of the application.

(iv) The State shall ensure that the online

portal is suitably modified to enable submission of

a single application in respect of multiple plots

under one Khata.

17. Before parting, the Court places on record its

appreciation for the assistance rendered by Mr. Ramakanta

Mohanty, learned Senior Counsel, as Amicus Curiae.

Sashikanta Mishra

Judge

Orissa High Court, Cuttack

The 1

st October, 2026/ A.K. Rana, P.A.