The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.8344 of 2022 In the matter of an application under Articles 226 & 227 of the Constitution of India Susama Mishra …. Petitioner -Versus- State of Odisha & others …. Opp. Parties Advocates appeared in this case: For Petitioner : M/s.Soubhagya S. Das, For Opp. Parties : S.Das & T.R. Mohapatra, Advocates Mr. Satya Brata Mohanty Addl. Government Advocate [O.P.No.1]
Legal Reasoning
Mr.Dayananda Mohapatra, Senior Advocate, with M/s. M.R. Pradhan, J. Barik & P.K. Singhdeo, Advocates [O.P.Nos.2 & 3] CORAM: THE HON’BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD J U D G M E N T ---------------------------------------------------------------------------------------- Date of hearing : 13.08.2025 : Date of judgment : 14.08.2025 ---------------------------------------------------------------------------------------- PER DIXIT KRISHNA SHRIPAD,J. Petitioner, an old lady in the evening of her life, is knocking at the doors of Writ Court for assailing the order dated 04.03.2022 Page 1 of 10 issued by Opposite Party No.3 at Annexrue-6, whereby allotment of subject house having been cancelled, she is directed to hand over its possession within thirty days. 2. Learned counsel appearing for the petitioner seeks to falter the impugned order contending that: the same has been issued without due opportunity of hearing; the author of the order arbitrarily assumed that the deceased-husband of the petitioner having possessed another house site had filed a false affidavit and thereby procured the second site; the authorities committed a grave error in misconstruing the words ‘possession’ and ‘ownership’ that have long been obtained as legal concepts; in any circumstance petitioner or her husband owned or possessed two sites within the specified jurisdictional limits, which later came to be comprised in Bhubaneswar Municipal Corporation. 3. Learned Senior Advocate appearing for the answering Opposite Parties vehemently resisted the petition making submission in justification of the impugned order and the reasons on which it has been structured. He contended that the petitioner’s husband had sworn to a false affidavit to the effect that he did not Page 2 of 10 possess any site, when he was possessing one; but for the said affidavit, the subject site/plot on which now stands a structure would have been allotted; it is a policy of the State that persons who are already possessing sites/plots should not secure one more to the detriment of other aspiring people. So contending, he
Decision
seeks dismissal of the writ petition. 4. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter for the following reasons: 4.1. The first submission of learned counsel appearing for the petitioner that his client’s husband, during his life time, had filed true & correct affidavit and that he had not made any false statement therein, merits acceptance. Reasons for this are not far to seek: There is a format of affidavit, as it then was, which aspiring allottee of site had to swear to. The said format prescribed at paragraph-2, the following requirement:- “That, I or my spouse or any of my minor children do not own or possess any (Residential Site/House/Flat) in the jurisdiction of the Municipal Corporation area, Bhubaneswar” Page 3 of 10 Petitioner’s husband had sworn to the affidavit decades ago and on that basis, the Allotment Letter No.974/93 was issued in respect of MIG Plot No.K-7-468 under Kalinga Nagar Project. A mere issuance of Allotment Letter does not amount to granting possession of site to the allottee, much less ownership. In other words, allotment of plot is one thing and delivery of its possession pursuant to such allotment is another. Possession, thus precedes allotment; therefore, unless it is further shown that the possession as such was given of the subject site, one cannot readily equate the Allotment Letter to delivery of possession. The impugned order proceeds on a factually wrong premise that petitioner possesses two allotments when the first allotment of MIG Plot No.K-7-468 was transferred to one Krishna Kalpana Pattnaik vide Office Order No.KNM-974/93/BDA dated 22.06.1998 issued by the Allotment Officer pursuant to her husband’s letter dated 12.06.1998. 4.2. The submission of learned Senior Advocate for the BDA that the text of the formal affidavit has to be understood in common parlance to the effect that the Allotment Letter itself should be treated as delivery of possession, is not supported by any precedent or practice of the answering Opposite Parties. Formats Page 4 of 10 of the kind are structured by the higher officials of the Department in the light of accumulated experience. What is not there cannot be found and what is there, cannot be ignored, while construing deed poles of the kind. No rule or ruling to support the contra view is cited. Since much is argued on the idea of possession, a bit more discussion is warranted. Possession consists of two ingredients which Salmond on Jurisprudence (7th ed.) page 297-308 mentions viz., (i) corpus possessionis and (ii) animus possidendi. The former, he says, comprises of both the power to use the thing possessed and the existence of grounds for the expectation that the possessor’s use will not be interfered with; the later consists of intent to appropriate to oneself the exclusive use of the thing possessed. Learned Author P.J.Fitzgerald who edited ’Salmond’s Jurisprudence’ 12th Edition (at page 272) states "(i) The distinction between animus and corpus was made in Roman law: Dig.41.2.3.1., and has been accepted by such jurists as Savigny, Thering, Pollock, Salmond and Holmes". Apex Court too in the case of Poonaram Vs. Motiram,1 at paragraph 9 has considered 1 AIR 2019 SC 813 Page 5 of 10 this aspect quoting Salmond. The Apex Court at paragraph 13 observes as under: "13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property…” 4.3. Since the affidavit in the format speaks of possession/ownership, learned counsel for the petitioner is more than justified in contending that the deponent of the affidavit had not ‘possessed’ any plot and therefore his version in the affidavit cannot be said to be false. This stands further adumbrated by the Show Cause Notice dated 04.12.2015 issued by the Allotment Officer at Annexure-4 wherein in respect of subject site, the column as to date of possession is kept conspicuously blank. This aspect has not been dealt with in the counter filed by the OPs to the specific plea taken up by the petitioner in her pleadings. 4.4. Learned Senior Advocate appearing for the Opposite Parties is right in telling that the object of housing schemes of the kind is to ensure distributive justice in the sense that material resources of the State are not held by a chosen few, but reach larger number of people, right to residence being a constitutional guarantee under Page 6 of 10 Article 19(1) read with Article 39(b & c). For implementation of such a laudable object, necessary provisions have to be made by an instrument of law. When the legal literature in that connection is lacking, right of the citizens cannot be abridged arbitrarily, that too years having passed without a leaf being turned. Petitioner, a widow in the evening of her life, cannot be now troubled for what her deceased husband is said to have done, especially when alleged act is not shown to be culpable. 4.5. There is yet another aspect to the matter: As on the date the affidavit was sworn to by the spouse of petitioner, i.e., way back years ago, there was no Bhubaneswar Municipal Corporation. Secondly, even assuming that the very Letter of Allotment is tantamount to possession, no case is made out for the cancellation of the allotment of house, inasmuch as the subject site as on that date, was not situate within the jurisdictional limits of any Municipal Corporation much less BMC. It is not in dispute that the allotment of site under Kalinga Nagar Plotted Scheme was not made by BDA and further the area comprised in the Scheme was then situate within the jurisdictional limits of Gram Panchayat. The provision for Page 7 of 10 cancellation of allotment on the ground of fraud or fabrication has to be construed strictly, regard being had to enormity of implications involved. 4.6. Since much is argued as to the contentious issue of fraud, the same requires a deeper examination so that one will have a clear idea as to what fraud means in the realm of law. (i) Kerr on fraud2 says as under: “…It is not easy to give a definition of what constitutes fraud in the extensive significance in which that term is understood ... Courts have always avoided hampering themselves by defining or laying down as a general proposition what shall be held to constitute fraud. Fraud is infinite in variety… courts have reserv(ed) to themselves the liberty to deal with it under whatever form it may present itself. Fraud … may be said to include properly all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprise, trick, cunning, dissembling and other unfair way that is used to cheat anyone is considered as fraud. Fraud in all cases implies a willful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to...” (ii) ‘Fraud vitiates everything’, said Lord Edward Coke centuries ago in REX vs. DUCHESS OF KINGSTON,3. Our Apex Court this as a native norm as adopted in S.P.CHENGALVARAYA NAIDU vs. JAGANNATH,4. However, reiterated 2 KERR ON FRAUD AND MISTAKE, BY SYDNEY EDWARD WILLIAMS, PART I.—FRAUD, FIFTH EDITION 3 20 How. St. Tr. 544 4 (1994) 1 SCC 1 Page 8 of 10 Coke’s statement is of wide sweep and has several implicationary reflections: fraud in public law vis-(cid:224)-vis fraud in private law; fraud on the parties vis-(cid:224)-vis fraud on the court; fraud going to the root of matter vis-(cid:224)-vis fraud operating at the periphery and the like. However, fraud & fabrication have to be strictly pleaded & demonstrated. Fraud cannot be chanted like mantra. Added, the person who had sworn to affidavit is dead & gone leaving the widow. 4.7. There is enormous delay that remains unexplained as to why for decades the OPs slept over the matter, when the original allottee, i.e., the husband of the petitioner was very much alive to answer allegation of fraud, had it been made then. That exercise they did not undertake. Now, all of a sudden having woken up from the deep slumber, they have taken a prejudicial decision. Law does not come to the protection of sleepy & tardy, said Jeremy Bentham, an English Jurist of yester centuries. Any public power of the kind has to be exercised within a reasonable time at least as a concession to the shortness of human life. Why nothing was done when petitioner’s husband was alive, is not explained Page 9 of 10 In the above circumstances, this petition succeeds; a Writ of Certiorari issues quashing the impugned order and as a consequence, there shall be no action from the side of Opposite Parties that would affect the ownership and possession of the subject house property of the petitioner. Costs made easy. Web copy of this judgment to be acted upon by all concerned. Dixit Krishna Shripad, Judge Orissa High Court, Cuttack The 14th day of August, 2025/Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: AR-CUM.SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 14-Aug-2025 19:07:42 Page 10 of 10