MIRZA JAMIR BEIG vs STATE
- Court
- Odisha High Court
OJC/2689/2002
ODHC010232102002
2026:OHC:280-DB
ORISSA HIGH COURT : CUTTACK
O.J.C. No.2689 of 2002
CNR No.ODHC01-023210-2002
In the matter of an Application under Articles 226 and 227
of the Constitution of India, 1950
*
Mirza Jamir Beig
Aged about 32 years
Son of Mirza Rambaj Beig
At: Barigaon, P.O.: Salepur
District: Kataka. Petitioner
…
ERSUS
-V -
1. State of Odisha
Represented through
The Special Secretary
General Administration Department
At: Lok Seva Bhawan (Secretariat Building)
Bhubaneswar, District: Khordha.
2. Joint Secretary to Government of Odisha and
Ex-Officio Director of Estates
General Administration Department
At: Lok Seva Bhawan (Secretariat Building)
Bhubaneswar
District: Khordha. ... Opposite parties.
Counsel appeared for the parties:
For the Petitioner : Mr. Samir Kumar Mishra
Senior Advocate
M/s. Sarfaraz Ahmed,
OJC No.2689 of 2002 Page 1 of 38
Sarthak Pradhan,
Rutuparna Dash,
Ananta Narayan Pattnaik,
Suman Modi and Shalaka Das
Advocates
For the Opposite parties : Mr. Sanjay Rath,
Additional Government Advocate.
P R E S E N T:
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDON
AND
HONOURABLE
MR. JUSTICE MURAHARI SRI RAMAN
Date of Hearing : 06.11.2026 :: Date of Judgment : 06.11.2026
J UDGMENT
M URAHARI S RI R AMAN
, J.—
The petitioner craves for indulgence of this Court to
exercise power under Articles 226 and 227 of the
Constitution of India to grant following relief(s):
“It is, therefore, humbly prayed that Your Lordships be
graciously pleased to admit the writ application, issue a
rule nisi calling upon the opposite parties to show cause
as to why the letter issued on 29.08.2001 rejecting the
petitioner‟s application for allotment of a residential plot
bearing No.339 measuring 60‟ X 90‟ under Mouza:
Chandrasekharpur shall not be quashed;
If the opposite parties fail to show cause or give
insufficient cause, make the rule absolute by quashing
Annexure-4 and issue a writ of mandamus directing the
OJC No.2689 of 2002 Page 2 of 38
authorities to allot the plot bearing No.339 measuring 60‟
X 96‟ drawing No.B/132 in Mouza: Chandrasekharpur
LLOTMENT OF OVERNMENT AND IN THE EW APITAL
under “A G L N C ,
B HUBANESWAR FOR R ESIDENTIAL P URPOSES , 1987 S CHEME
” by
accepting the premium amount and executing lease deed
in his favour within a stipulated period of two months
from the date of passing of the order;
And for which act of kindness, the petitioner as in duty
bound shall ever pray.”
Case of the petitioner:
2. The petitioner, an employee under the Defence
Department belonging to a minority community, being
persuaded by LLOTMENT OF G OVERNMENT L AND IN THE N EW
“A
C APITAL , B HUBANESWAR FOR R ESIDENTIAL P URPOSES , 1987
CHEME
S ” (for short, “Scheme”) applied for allotment of
land after purchasing the brochure. A lottery was
conducted where the petitioner was selected for
allotment of Government land.
2.1. Being selected for allotment of residential plot within the
Bhubaneswar Town, which was published in the daily
newspaper, the petitioner was awaiting for
communication of allotment letter, as it was the duty of
the General Administration Department to issue an
allotment order in his favour. On enquiry, it could come
to light that such allotment order was issued by
Registered Post from the office. However, it is asserted by
OJC No.2689 of 2002 Page 3 of 38
the petitioner that such communication has never been
received by him.
2.2. Having approached the authorities time and again, no
plausible explanation is rendered by them to show that
such communication was ever made to him. From the
sources at the Government Office it could be gathered
that till the date of filing of the writ petition in the year
2002, the plot bearing No.339, measuring 60’ X 90’,
Drawing No.B/132 in Mouza: Chandrasekharpur has
not been allotted to anybody and was lying vacant.
2.3. The petitioner made an application dated 02.07.2001
before the competent authority, which came to be
rejected by the Government of Odisha in General
Administration Department, vide Letter in Memo
No.13629/CSP-440/90/GA, dated 29.08.2001, the text
of which is reproduced hereunder:
“I am directed to invite a reference to the subject cited
above and to say that Mirza Zameer Beig, Village: Barigol,
P.O.: Salepur, District: Cuttack, was allotted with a
residential plot bearing No.339 measuring 60‟ X 90‟,
Drawing No.B/132 in Mouza: Chandrasekharpur vide this
Department Order No.6093, dated 09.04.1990. He has
neither deposited the premium within the stipulated time
nor executed lease deed. As he has not taken any step
during the last 11 years, his petitions have been rejected.
This is for favour of your kind information.”
2.4. Aggrieved thereby, this writ petition has been filed.
OJC No.2689 of 2002 Page 4 of 38
Submissions:
3. Sri Samir Kumar Mishra, learned Senior Advocate
submitted that it has been consistently denied by the
petitioner that he has received no communication with
regard to allotment of plot in question. As the petitioner
was serving in the Defence Department it was not
possible to pursue the matter before the authorities
being physically present. It is asserted that the reason
ascribed by the opposite parties in the Letter dated
29.08.2001 rejecting the application for allotment of
land (Annexure-4) is blatant lie inasmuch as the
petitioner had been pursuing the matter quite often and
the authorities did not pay any heed to hand him over
the original allotment letter.
3.1. It is further submitted that the petitioner was awaiting
communication of allotment letter for the purpose of
making requisite deposits. Though specific stance is
taken in this regard, the opposite parties by filing
counter affidavit dated 18.12.2002 merely stated that
since registered letter did not come back to the sender, it
could be presumed that such allotment letter was served
on him and the opposite parties bluntly denied that the
petitioner had ever made any enquiry. Sri Samir Kumar
Mishra, learned Senior Advocate vociferously submitted
that since no iota of evidence regarding communication
of allotment letter being furnished by the opposite
OJC No.2689 of 2002 Page 5 of 38
parties in the counter affidavit, and the petitioner has
specifically denied of receipt of such communication,
there could be no presumption of service.
4. Per contra , Sri Sanjay Rath, learned Additional
Government Advocate vehemently objected and
contended that the fact of selection of the petitioner for
allotment of land was published in the newspaper in the
year 1990, but the petitioner raised the issue of non-
receipt of allotment letter in the year 1998 by way of
grievance petition dated 25.11.1998. The unreasonable
delay in approaching the authorities cannot protect him.
Having slept over the matter for a considerable length of
time for around nine years, the authorities are justified
in rejecting his prayer vide Letter dated 29.08.2001.
4.1. It is submitted by the learned Additional Government
Advocate that even if the plot is lying vacant, the
conduct of the petitioner in not raising objection as to
non-receipt of allotment letter within reasonable time, he
cannot claim equity inasmuch as the market value of the
plot in Chandrasekharpur Mouza has been enhanced
manifold.
Hearing:
5. This Court on 18.03.2002 passed the following order in
the instant case:
OJC No.2689 of 2002 Page 6 of 38
“Issue notice on the question of admission to the opposite
parties.
Requisites will be filed by day after tomorrow failing
which the writ application shall stand dismissed without
reference to Bench.
Misc. Case No.2616 of 2002:
There shall be interim stay of allotment of residential plot
bearing No.339 measuring 60‟ X 90‟ and drawing
No.B/132 in mouza Chandrasekharpur to any person.”
5.1. On 18.10.2019 following further order was passed:
“Heard.
On 02.08.2019 following order was passed in this Case:
„Vakalatama taking consent of earlier set of counsel filed
in court today along with Memo of appearance of Sri
Sourya Sundar Das, Senior Advocate along with
associates filed in Court are taken on record.
Heard.
Learned counsel for the State will take instruction and
will come out with market price of the land in question
If the plot in question is vacant and if the petitioner shows
his readiness, he may be permitted to take the land on
current market price.
th
Put up this matter on 16 August, 2019.
Learned counsel for the petitioner may also take
instruction regarding willingness of the petitioner to
purchase land in question on the current market price.‟
OJC No.2689 of 2002 Page 7 of 38
It will be open for the petitioner to approach the competent
authority with this order. If such an approach is made by
the petitioner, the authority concerned will consider the
case of the petitioner in accordance with law.
The matter to come up on 08.11.2019.”
5.2. Since there was non-compliance of said order, on
08.11.2019 this Court directed as follows:
“Heard learned counsel for the parties.
Pursuant to the earlier order, if the petitioner is prepared
to pay the bench mark price, the authority concerned will
consider his case. On payment of the bench mark price by
the petitioner, possession of the land in question will be
handed over to him.
The matter to come up on 22.11.2019.”
5.3. State of Odisha assailing the interim orders, as stated
above, approached the Hon’ble Supreme Court of India
in SLP(C) Diary No.46640 of 2019, wherein on
07.02.2020, the following order was passed:
“Delay condoned.
Issue notice.
Until further orders, there shall be stay of operation of the
impugned order(s) passed by the High Court.”
5.4. Ultimately, the said case(s) being Civil Appeal No.10015-
10017 of 2024 (Arising out of SLP(C) No.4220-4222 of
2020) came to be disposed of vide Order dated
30.08.2024 with the following observation:
OJC No.2689 of 2002 Page 8 of 38
“1. Leave granted.
2. The State of Odisha has assailed three orders
passed by the High Court which are interim in
nature dated 02.08.2019, 18.10.2019 and
08.11.2019.
3. The net result of these three interim orders,
apparently, is to the effect that the respondent
herein, the original writ petitioner, would be entitled
to possession of the plot under the scheme provided
he pays the bench-mark as may be communicated
by the authorities.
4. The submission is that the interim order is in the
nature of final relief which is claimed by the writ
petitioner before the High Court, as such the
appellant-State had to approach this Court assailing
the correctness of the said orders.
5. We are of the view that the High Court should decide
the writ petition on merits rather than grant the relief
of allotment and possession by way of an interim
order.
6. Accordingly, we set aside the impugned orders and
request the High Court to decide the pending writ
petition on its own merits, after hearing learned
counsel for the parties strictly in accordance to law.
7. Since the matter is pending for substantially long
period, i.e. 2002 before the High Court, we request
the High Court to make an endeavour to decide the
same expeditiously.
8. It goes without saying that both sides shall extend
full cooperation for early disposal of the writ petition.
OJC No.2689 of 2002 Page 9 of 38
9. The appeals stand disposed of as above.”
5.5. Accordingly the matter was heard on 24.04.2026. At the
time of dictating the order, it was felt necessary for the
counsel for the parties to clarify certain doubts and
ambiguity in fact. Hence, the matter was directed to be
placed on board today for further hearing. Being listed
and upon hearing the counsel for the respective parties,
the instant order is passed.
5.6. Heard Sri Samir Kumar Mishra, learned Senior Advocate
assisted by Sri Sarfaraz Ahmed, learned Advocate for the
petitioner and Sri Sanjay Rath, learned Additional
Government Advocate for the opposite parties.
Consideration of arguments advanced by the counsel for
respective parties:
6. Sri Samir Kumar Mishra, learned Senior Advocate
submitted that there is no denial of the fact by the
opponents that the petitioner was allotted with the Plot
bearing No.339 under Drawing No.B/132 comprising
area of 60’ X 90’ in Mouza: Chandrasekharpur,
Bhubaneswar. It is the case of the petitioner that though
he is directed to deposit a premium of Rs.24,794/- on
the basis of Rs.2,00,000/- per acre and 20% more in the
event the plot is a corner plot and ground rent was fixed
@ Rs.150/- per acre per annum, the said
communication allotting the plot was never reached at
OJC No.2689 of 2002 Page 10 of 38
him; as a result of which he could not make the
requisite payment. It is disputed that the petitioner has
been approaching the authorities for supply of copy of
such allotment order in order to facilitate him to deposit
the requisite amount(s) so that he can possess the same
for the purpose of residence.
6.1. Sri Samir Kumar Mishra, learned Senior Advocate made
valiant attempt to persuade that the stand of the
opposite parties that the communication of allotment
letter and the direction to deposit the amount as
aforesaid was sent by registered post is a myth
inasmuch as he was not disclosed the details of receipt
showing the document being sent by registered post so
that the veracity could be verified from the postal
department.
7. Quoad ultra, Sri Sanjay Rath, learned Additional
Government Advocate would submit with reference to
the counter affidavit dated 18.12.2002 that it is clear
and unambiguous affirmation of the opposite parties
that the petitioner was selected through a lottery held
during 03.03.1989 to 10.03.1989 and allotted afore-
mentioned residential plot.
7.1. The allotment order No.6093, dated 09.04.1990 in
respect of the suit plot No.339, Drawing No.B/132 of
Mouza: Chandrasekharpur was communicated to the
petitioner by registered post in the address furnished by
OJC No.2689 of 2002 Page 11 of 38
him in his original application dated 21.01.1987 for
allotment of the residential plot of land. It is asserted
that since the said registered letter was not returned, the
petitioner has taken advantage of the said fact and filed
this writ petition.
7.2. It is forcefully submitted by the learned Additional
Government Advocate that the selection of the petitioner
along with others in the lottery for allotment of land was
widely publicised in the newspapers. The plea taken by
the petitioner that the communication was not duly
served on him is an after-thought inasmuch as he
approached the authorities by way of filing the grievance
petition on 25.11.1998 and an application for allotment
of said land on 02.07.2001. Said application, as it is
apparent from the letter vide Memo dated 29.08.2001,
has been rejected by refusing to grant any relief due to
delay and non-deposit of requisite amount within the
period stipulated.
8. Arguments advanced by the counsel for the respective
parties boils down to the factum of service of allotment
letter order No.6093, dated 09.04.1990 on the petitioner.
Only reason cited by the petitioner for non-deposit of
requisite amount for taking step for execution of lease
deed in terms of allotment letter was that (Rejoinder
affidavit filed on 21.01.2003):
OJC No.2689 of 2002 Page 12 of 38
“3. That in the counter affidavit it has been candidly
admitted by the opposite party No.2 that the
petitioner has been allotted a residential plot
measuring 60‟ X 90‟ in Chandrasekharpur bearing
Plot No.339, Drawing No.B/132 and it is alleged
that the allotment order has been communicated on
09.04.1990 by Registered Post in the address
furnished in O.A. dated 21.01.1987 for allotment of
a residential plot of land. The petitioner denies such
communication from the authorities and he has not
received the same and has not been communicated
to him. Excepting the issue number and date no
concrete proof has been produced before this
Honourable Court to indicate that the letter has been
despatched by registered post and the same has
been duly acknowledged by the present petitioner.”
8.1. From the above averment of the petitioner it is quite
clear that it has not disputed that the address given by
him in original application is correct. As it is the case of
the opposite parties that the allotment letter at relevant
point of time (say, 1990) was sent to the said address by
registered post, bare denial by the petitioner to have
received such communication is not acceptable. Setting
up such dispute after around eight years by way of
approaching the authority by filing a grievance petition
dated 25.11.1998 and an application dated 02.07.2001
demonstrates that in order to cover up delay and laches
on the part of the petitioner, such steps have been
taken.
OJC No.2689 of 2002 Page 13 of 38
8.2. It is to be pointed out that such controversial factual
aspect, being disputed question of fact, need not be gone
into in a writ jurisdiction by this Court. In the case of
A.P. Electrical Equipment Corporation Vrs. The Tahsildar,
(2025) 2 SCR 1625
, the Hon’ble Supreme Court of India
held as follows:
“48. Normally, the disputed questions of fact are not
investigated or adjudicated by a writ court while
exercising powers under Article 226 of the
Constitution of India. But the mere existence of the
disputed question of fact, by itself, does not take
away the jurisdiction of this writ court in granting
appropriate relief to the petitioner. In a case where
the Court is satisfied, like the one on hand, that the
facts are disputed by the State merely to create a
ground for the rejection of the writ petition on the
ground of disputed questions of fact, it is the duty of
the writ court to reject such contention and to
investigate the disputed facts and record its finding
if the particular facts of the case, like the one at
hand, was required in the interest of justice.
49. There is nothing in Article 226 of the Constitution to
indicate that the High Court in the proceedings, like
the one on hand, is debarred from holding such an
inquiry. The proposition that a petition under Article
226 must be rejected simply on the ground that it
cannot be decided without determining the disputed
question of fact is not warranted by any provisions
of law nor by any decision of this Court. A rigid
application of such proposition or to treat such
proposition as an inflexible rule of law or of
discretion will necessarily make the provisions of
OJC No.2689 of 2002 Page 14 of 38
Article 226 wholly illusory and ineffective more
particularly Section 10(5) and 10(6) of the Act, 1976
respectively. Obviously, the High Court must avoid
such consequences.
*
52. In one of the recent pronouncements of this Court in
State of U.P. & Anr. Vrs. Ehsan & Anr. reported in
2023 INSC 906, this Court observed that:
„28. We are conscious of the law that existence of
an alternative remedy is not an absolute bar on
exercise of writ jurisdiction. More so, when a
writ petition has been entertained, parties have
exchanged their pleadings/affidavits and the
matter has remained pending for long. In such
a situation there must be a sincere effort to
decide the matter on merits and not relegate
the writ petitioner to the alternative remedy,
unless there are compelling reasons for doing
so. One such compelling reason may arise
where there is a serious dispute between the
parties on a question of fact and materials/
evidence(s) available on record are insufficient/
inconclusive to enable the Court to come to a
definite conclusion.
29. Bearing the aforesaid legal principles in mind,
we would have to consider whether, in the
facts of the case, the High Court ought to have
dismissed the third writ petition of the first
respondent and relegate him to a suit as there
existed a serious dispute between the parties
regarding taking of possession. More so, when
the High Court, in the earlier round of litigation,
OJC No.2689 of 2002 Page 15 of 38
refrained from taking up the said issue even
though it had arisen between the parties.
30. No doubt, in a writ proceeding between the
State and a landholder, the Court can, on the
basis of materials/evidence(s) placed on
record, determine whether possession has
been taken or not and while doing so, it may
draw adverse inference against the State
where the statutory mode of taking possession
has not been followed [See State of Uttar
Pradesh Vrs. Hari Ram, (2013) 2 SCR 301 =
(2013) 4 SCC 280]. However, where possession
is stated to have been taken long ago and there
is undue delay on the part of landholder in
approaching the writ court, infraction of the
prescribed procedure for taking possession
would not be a determining factor, inasmuch
as, it could be taken that the person for whose
benefit the procedure existed had waived his
right thereunder [See State of Assam Vrs.
Bhaskar Jyoti Sarma, (2014) 14 SCR 1451 =
(2015) 5 SCC 321]. In such an event, the
factum of actual possession would have to be
determined on the basis of materials/
evidence(s) available on record and not merely
by finding fault in the procedure adopted for
taking possession from the land holder. And if
the writ court finds it difficult to determine such
question, either for insufficient/inconclusive
materials/evidence(s) on record or because oral
evidence would also be required to form a
definite opinion, it may relegate the writ
petitioner to a suit, if the suit is otherwise
maintainable.‟
OJC No.2689 of 2002 Page 16 of 38
53. Thus, it would all depend on the nature of the
question of fact. In other words, what is exactly, that
the writ court needs to determine so as to arrive at
the right decision. If the only issue, that revolves
around the entire debate is one relating to actual
taking over of the physical possession of the excess
land under the provisions of sub-sections (5) and (6)
of Section 10 of the Act, 1976 respectively, then in
such circumstances, the writ court has no other
option but to go into the factual aspects and take an
appropriate decision in that regard. The issue of
possession, by itself, will not become a disputed
question of fact. If all that has been said by the State
is to be accepted as a gospel truth and nothing
shown by the landowner is to be looked into on the
ground that a writ court cannot go into disputed
questions of fact, then the same may lead to a
serious miscarriage of justice.”
8.3. From the pleadings and arguments advanced, it is to be
ascertained that whether the petitioner has approached
the authorities with a delay on the plea of non-receipt of
registered letter containing allotment of plot and
direction to pay the requisite amount for said purpose.
8.4. Strong exception has been taken in the counter affidavit
by the opposite parties that as the petitioner was aware
of being selected for allotment of land in the lottery, the
result of which was widely publicised in the newspaper
(namely “The Sambad”, dated 21.05.1989), within a
reasonable time thereafter having not made any enquiry
with respect to allotment, he cannot take advantage of
OJC No.2689 of 2002 Page 17 of 38
“his own laxity and negligence”. Scrutiny of papers
available in record does not reveal iota of evidence to
establish the truthfulness of the fact asserted by the
petitioner to the effect that:
“The contention raised that he has not taken any step for
last 11 years is thoroughly misconceived inasmuch as
and when he was on annual leave he was approaching
the authorities by filing the representation as well as by
meeting the authorities in their grievance cell and all the
times, assurance was given that correspondence will be
made to him on the basis of the allotted plot.”
8.5. No scrap of paper has been placed on record by the
petitioner in the writ petition to justify his claim that he
had been approaching the authorities right since 1990.
Nonetheless, from the communication vide Letter
bearing Memo No.13629-CSP-440/1990/GA, dated
29.08.2001 it is manifest that the Government of Odisha
in General Administration Department has rejected his
application dated 02.07.2001 for allotment of land in
Mouza: Chandrasekharpur. This Court on the basis of
factual assertion made by the opposite parties finds that
the petitioner maintained absolute silence till he made
grievance petition dated 25.11.1998 and consequent
application being made on 02.07.2001. The petitioner
having not provided material particulars with respect to
approaches made to the authorities for complying with
the terms of allotment letter vide order No.6093, dated
09.04.1990 earlier to 1998, this Court cannot perceive
OJC No.2689 of 2002 Page 18 of 38
that the petitioner had been diligently pursuing before
the authorities since 1990.
8.6. It has been consistent stand of the opposite parties that
the allotment letter containing order No.6093, dated
09.04.1990 was “communicated to the petitioner by
registered post in the address furnished by him in his
original application dated 21.01.1987 for allotment of a
residential plot of land”. It is explained by the learned
Additional Government Advocate that the petitioner has
made his grievance petition only on 25.11.1998 despite
his knowledge about winning in the lottery for allotment
of land. Having found force in such submission, on
account of such inordinate delay, it is to be held, onus to
prove that the communication was not made lies heavy
on the petitioner, but not on the opposite parties. The
provisions of Section 27 of the General Clauses Act,
1897 read with Section 29 of the Odisha General
Clauses Act, 1937, would clinch the issue.
8.7. Section 27 of the General Clauses Act, 1897 reads as
follows:
“Meaning of service by post.—
Where any Central Act or Regulation made after the
commencement of this Act authorizes or requires any
document to be served by post, whether the expression
serve or either of the expressions give or send or any
other expression is used, then, unless a different intention
OJC No.2689 of 2002 Page 19 of 38
appears, the service shall be deemed to be effected by
properly addressing, pre-paying and posting by registered
post, a letter containing the document, and, unless the
contrary is proved, to have been effected at the time at
which the letter would be delivered in the ordinary course
of post.”
8.8. Section 29 of the Odisha General Clauses Act, 1937,
stands thus:
“Meaning of service by post.—
Where any Orissa Act authorizes or requires any
document to be served by post whether the expression
„serve‟ or either of the expressions „give‟ or „send‟ or any
other expression is used, then, unless a different intention
appears, the service shall be deemed to be effected by
properly addressing, prepaying, and posting by registered
Post a letter containing the documents and unless the
contrary is proved, to have been effected at the time at
which the letter would be delivered in the ordinary course
of post.”
8.9. The petitioner in his rejoinder affidavit dated 19.01.2003
merely stated thus:
“Excepting the issue number and date no concrete proof
has been produced before this Honourable Court to
indicate that the letter has been despatched by registerd
post and the same has been duly acknowledged by the
present petitioner. Therefore, doubt arose in the mind that
there was no communication made by the authorities to
the present petitioner far from issuing the same by
registered post.”
OJC No.2689 of 2002 Page 20 of 38
8.10. Mere raising suspicion would not suffice to take adverse
inference against the action of the authorities. The
petitioner has not denied nor has he laid any evidence to
demonstrate that the address to which the authorities
have stated to have communicated the allotment letter
was incorrect or not to the address given in the
application for allotment of land. It is requirement under
the afore-quoted provisions of the General Clauses Act(s)
is that the letter must be sent by registered post and it
must be properly addressed and pre-paid. Further the
1
letter must contain the document. The presumption
arises if it is proved that the letter was properly
addressed and put into post office. However, such
presumption can be rebutted by laying evidence that the
petitioner did not receive the allotment letter. The
petitioner having asserted the fact, it is his obligation to
1
In Shri Partap Singh Vrs. Shiv Ram, (2020) 1 SCR 694 it has been held that:
“21. In a judgment reported as Sodhi Transport Co. and Others Vrs. State of
U.P. and Others, (1986) 2 SCC 486, this Court was considering Section 28-
B of the Uttar Pradesh Sales Tax Act, 1948 which raises a presumption of
sale of goods in a manner prescribed therein. This Court considered
Section 4 of the Evidence Act and also the previous judgments and held as
under:
„14. A presumption is not in itself evidence but only makes a prima
facie case for party in whose favour it exists. It is a rule concerning
evidence. It indicates the person on whom the burden of proof lies.
When presumption is conclusive, it obviates the production of any
other evidence to dislodge the conclusion to be drawn on proof of
certain facts. But when it is rebuttable it only points out the party
on whom lies the duty of going forward with evidence on the fact
presumed, and when that party has produced evidence fairly and
reasonably tending to show that the real fact is not as presumed
the purpose of presumption is over. Then the evidence will
determine the true nature of the fact to be established. The rules of
presumption are deduced from enlightened human knowledge and
experience and are drawn from the connection, relation and
coincidence of facts, and circumstances.‟ ” *
OJC No.2689 of 2002 Page 21 of 38
lay evidence. The factual aspect as claimed by the
petitioner could have been demonstrated by placing on
record information from the postal department in this
regard. Nonetheless, the petitioner has placed burden of
proof on the opposite parties.
8.11. It may be apt to have regard to the following observation
made by the Hon’ble Supreme Court of India in the case
of Parimal Vrs. Veena @ Bharti, (2011) 2 SCR 648 :
RESUMPTION OF SERVICE BY EGISTERED OST AND URDEN OF
“P R P B
PROOF :
13. This Court after considering large number of its
earlier judgments in Greater Mohali Area
Development Authority Vrs. Manju Jain, AIR 2010
SC 3817, held that in view of the provisions of
Section 114 Illustration (f) of the Evidence Act, 1872
and Section 27 of the General Clauses Act, 1897
there is a presumption that the addressee has
received the letter sent by registered post. However,
the presumption is rebuttable on a consideration of
evidence of impeccable character. A similar view has
been reiterated by this Court in Dr. Sunil Kumar
Sambhudayal Gupta Vrs. State of Maharashtra, JT
2010 (12) SC 287 = (2010) 13 SCC 657 = (2010) 15
SCR 452.
14. In Gujarat Electricity Board Vrs. Atmaram Sungomal
Poshani, AIR 1989 SC 1433, this Court held as
under:
„There is presumption of service of a letter sent
under registered cover, if the same is returned back
OJC No.2689 of 2002 Page 22 of 38
with a postal endorsement that the addressee
refused to accept the same. No doubt the
presumption is rebuttable and it is open to the party
concerned to place evidence before the Court to rebut
the presumption by showing that the address
mentioned on the cover was incorrect or that the
postal authorities never tendered the registered
letter to him or that there was no occasion for him to
refuse the same. The burden to rebut the
presumption lies on the party, challenging the
factum of service.‟
15. The provisions of Section 101 of the Evidence Act
provide that the burden of proof of the facts rests on
the party who substantially asserts it and not on the
party who denies it. In fact, burden of proof means
that a party has to prove an allegation before he is
entitled to a judgment in his favour. Section 103
provides that burden of proof as to any particular
fact lies on that person who wishes the court to
believe in its existence, unless it is provided by any
special law that the proof of that fact shall lie on any
particular person. The provision of Section 103
amplifies the general rule of Section 101 that the
burden of proof lies on the person who asserts the
affirmative of the facts in issue.”
8.12. The following enunciation of legal position in C.C. Alavi
Haji Vrs. Palapetty Muhammed, (2007) 7 SCR 326 may be
significant for reference:
“13. According to Section 114 of the Act, read with
illustration (f) thereunder, when it appears to the
Court that the common course of business renders it
probable that a thing would happen, the Court may
OJC No.2689 of 2002 Page 23 of 38
draw presumption that the thing would have
happened, unless there are circumstances in a
particular case to show that the common course of
business was not followed. Thus, Section 114
enables the Court to presume the existence of any
fact which it thinks likely to have happened, regard
being had to the common course of natural events,
human conduct and public and private business in
their relation to the facts of the particular case.
Consequently, the court can presume that the
common course of business has been followed in
particular cases. When applied to communications
sent by post, Section 114 enables the Court to
presume that in the common course of natural
events, the communication would have been
delivered at the address of the addressee. But the
presumption that is raised under Section 27 of the
G.C. Act is a far stronger presumption. Further,
while Section 114 of Evidence Act refers to a general
presumption, Section 27 refers to a specific
presumption. *
14. Section 27 gives rise to a presumption that service of
notice has been effected when it is sent to the correct
address by registered post. In view of the said
presumption, when stating that a notice has been
sent by registered post to the address of the drawer,
it is unnecessary to further aver in the complaint
that in spite of the return of the notice unserved, it is
deemed to have been served or that the addressee is
deemed to have knowledge of the notice. Unless and
until the contrary is proved by the addressee,
service of notice is deemed to have been effected at
the time at which the letter would have been
delivered in the ordinary course of business. This
OJC No.2689 of 2002 Page 24 of 38
Court has already held that when a notice is sent by
registered post and is returned with a postal
endorsement „refused‟ or „not available in the house‟
or „house locked‟ or „shop closed‟ or „addressee not
in station‟, due service has to be presumed. [Vide
Jagdish Singh Vrs. Natthu Singh, AIR 1992 SC
1604; State of M.P. Vrs. Hiralal, (1996) 7 SCC 523;
and V Raja Kumari Vrs. P. Subbarama Naidu, (2004)
8 SCC 774. It is, therefore, manifest that in view of
the presumption available under Section 27 of the
Act, it is not necessary to aver in the complaint
under Section 138 of the Act (Negotiable Instruments
Act) that service of notice was evaded by the
accused or that the accused had a role to play in the
return of the notice unserved.”
8.13. In this respect the following observations made in the
case of Principal Commissioner of Income Tax, Mumbai
Vrs. I-Ven Interactive Limited, Mumbai, (2019) 13 SCR
509 may be relevant:
“7. Now so far as the observations made by the High
Court while concurring with the view of the learned
Tribunal that merely by filing of return of income
with the new address, it shall be enough for the
assessee to discharge its legal responsibility for
observing proper procedural steps as per the
Companies Act and the Income Tax Act is concerned,
we are of the opinion that mere mentioning of the
new address in the return of income without
specifically intimating the Assessing Officer with
respect to change of address and without getting the
PAN database changed, is not enough and sufficient.
In absence of any specific intimation to the
Assessing Officer with respect to change in address
OJC No.2689 of 2002 Page 25 of 38
and/or change in the name of the assessee, the
Assessing Officer would be justified in sending the
notice at the available address mentioned in the PAN
database of the assessee, more particularly when
the return has been filed under E-Module scheme. It
is required to be noted that notices under Section
143(2) of the 1961 Act are issued on selection of
case generated under automated system of the
Department which picks up the address of the
assessee from the database of the PAN. Therefore,
the change of address in the database of PAN is
must, in case of change in the name of the company
and/or any change in the registered office or the
corporate office and the same has to be intimated to
the Registrar of Companies in the prescribed format
(Form 18) and after completing with the said
requirement, the assessee is required to approach
the Department with the copy of the said document
and the assessee is also required to make an
application for change of address in the
departmental database of PAN, which in the present
case the assessee has failed to do so.
8. Now so far as the submission on behalf of the
assessee that with respect to the Assessment Years
2004-05 and 2005-06, communications and the
assessment orders were sent at the new address
and therefore the Assessing Officer was in the
knowledge of the new address is concerned, the
same has been sufficiently explained by the
Revenue.
9. In view of our findings, recorded hereinabove, the
impugned judgment and order passed by the High
Court as well as the orders passed by the learned
C.I.T (Appeals) and the I.T.A.T holding the
OJC No.2689 of 2002 Page 26 of 38
assessment order bad in law on the aforesaid
ground cannot be sustained and the same deserve
to be quashed and set aside. As the learned C.I.T
(Appeals) has not considered the other grounds on
merits and has not considered the appeal on merits,
the matter is required to be remanded to the learned
C.I.T (Appeals) to consider the appeal on merits, in
accordance with law.”
8.14. It would be apt to have regard to the following
observations made in Ajeet Seeds Limited Vrs. K. Gopala
Krishnaiah, (2014) 12 SCC 685 = (2014) 8 SCR 880 ,
where the Hon’ble Supreme Court of India has reiterated
that once notice is sent by registered post to the correct
address, a presumption of service arises and the burden
shifts upon the addressee to prove that it was not
served. It was held thus:
“10. It is thus clear that Section 114 of the Evidence Act
enables the Court to presume that in the common
course of natural events, the communication would
have been delivered at the address of the
addressee. Section 27 of the General Clauses Act
gives rise to a presumption that service of notice has
been effected when it is sent to the correct address
by registered post. It is not necessary to aver in the
complaint that in spite of the return of the notice
unserved, it is deemed to have been served or that
the addressee is deemed to have knowledge of the
notice. Unless and until the contrary is proved by the
addressee, service of notice is deemed to have been
effected at the time at which the letter would have
been delivered in the ordinary course of business.”
OJC No.2689 of 2002 Page 27 of 38
8.15. The application for allotment of Government land
containing the address for service and such address
shall be deemed to be the proper address for effecting
service of all processes. Once notice is sent to such
disclosed or known address, the party cannot
subsequently avoid service by remaining absent or
unavailable. It is not in dispute that the address given in
the application for allotment of Government land is
incorrect. When the opposite parties have affirmed that
the communication was made by registered post, in such
eventuality, no adverse inference can be drawn against
the opposite parties. As the petitioner has failed to
provide material particulars demonstrating that he
approached the authority within a reasonable period
since the publication of result of lottery in the
newspaper in the year 1990, his allegation regarding the
non-issuance of the registered letter stands
unsubstantiated and is an afterthought.
9. Another aspect which deserves to be addressed to is
this, that (paragraph 3 of rejoinder affidavit filed by the
petitioner):
“ It is further respectfully stated that whenever the *
petitioner caused an enquiry he has not been given any
appropriate answer either by the Dealing Clerk or any
official of the opposite parties. Therefore, he is being
harassed from the date of inception of allotment of plot in
his favour. The enquiry which has been made even orally,
OJC No.2689 of 2002 Page 28 of 38
the same having not been attended to, written
applications have also been submitted, but the same have
not been entertained by the concerned Dealing Clerk with
an ulterior motive that he wants to grab the property in
other means. On perusal of Annexure-3, paper
publication, with regard to allotment of plot, the result of
lottery done by the General Administration Department for
the residential plot. It is for the general information for the
public at large, but that has no nexus with the acceptance
of the premium amount unless the same is being
communicated to individual allottee for deposit of the
requisite amount within the time frame. The same having
not been done in case of the petitioner, the allegation
made that the petitioner is negligent has no bearing at all.
Therefore, the same is hereby denied.”
9.1. This Court is afraid to consider such a plea without
impleading proper and necessary party against whom
the petitioner has made scurrilous attack.
9.2. There is no cavil for the proposition that when a party
alleges mala fide against a statutory authority, burden
falls heavy on him who alleges it. It is a settled law
where a mala fide is alleged, the authority, who has
passed the order, which is said to be the result of the
mala fide exercise of power, has to be impleaded eo
nominee . In the absence of such impleadment, the Court
neither can look into the plea of mala fide nor can
consider the issue raising mala fide . In the case at hand,
none of the persons/authorities, against whom
unsubstantiated, uncalled for and unwarranted
OJC No.2689 of 2002 Page 29 of 38
allegations have been made, has been impleaded. [See,
Tara Chand Khatri Vrs. Municipal Corporation of Delhi,
AIR 1977 SC 567; J.N. Banavalikar Vrs. Municipal
Corporation of Delhi, AIR 1996 SC 326 = 1995 Supp.4
SCR 1; First Land Acquisition Collector Vrs. Nirodhi
Prakash Gangoli, (2002) 4 SCC 160; Jasvinder Singh Vs.
State of J&K, (2003) 2 SCC 132; Union of India Vrs.
Ashok Kumar, (2005) 8 SCC 760 ].
9.3. It has been settled legal proposition that in case
allegations of mala fide are made against any person he
is to be impleaded by name, otherwise the allegations
cannot be considered. [ Vide, State of Bihar Vrs. P.P.
Sharma, IAS of Delhi and another, AIR 1996 SC 326; All
India State Bank Officers Federation and others Vrs.
Union of India and others, (1997) 9 SCC 151; and I.K.
Mishra Vrs. Union of India and others, (1997) 6 SCC 228 ].
9.4. In the case of A.C. Ananthaswamy Vrs. Boraiah, (2004)
Supp.3 SCR 649 it has been held that:
“We do not find any merit in this appeal. Firstly, in the
present case, Patel Chikkahanumaiah had moved an
application under Order 9, Rule 13, CPC for setting aside
the ex-parte decree on the ground of non-service of
summons in which fraud was not alleged. As stated
above, Patel Chikkahanumaiah had moved R.A. No.54 of
1977 in which there was no such allegation. Secondly,
the present suit has been instituted to set aside the ex
parte decree on the ground that the decree was obtained
by fraud and misrepresentation. Fraud is to be pleaded
OJC No.2689 of 2002 Page 30 of 38
and proved. To prove fraud, it must be proved that
representation made was false to the knowledge of the
party making such representation or that the party could
have no reasonable belief that it was true. The level of
proof required in such cases is extremely higher. An
ambiguous statement cannot per se make the representor
guilty of fraud. To prove a case of fraud, it must be proved
that the representation made was false to the knowledge
of the party making such representation. [See: Pollock &
Mulla on Indian Contract & Specific Relief Acts (2001)
12th Edition page 489].
In the present case, there is no evidence of fraud. The
present case is a matter of non-service of summons. In the
present case, there is a bare allegation of fraud. In the
case of Choksi Bhidarbhai Mathurbhai Vrs.
Purshottamdas Bhogilal Shah reported in AIR 1962
Gujarat 10, it has been held that where the only fraud
alleged is a bare non service of summons then such a suit
to set aside the decree on alleged ground of fraud was not
maintainable. Lastly, no substantial question of law
arises in this appeal.
For the aforesaid reasons, we do not find any merit in this
civil appeal and the same is accordingly dismissed, with
no order as to costs.”
9.5. In the present case, the petitioner has not placed on
record any material to show that right since 1990 when
the result of lottery was published in the newspaper he
has been taking steps. It is admitted in the counter
affidavit by the opposite parties that the petitioner for
the first time raised objection by way of grievance
petition on 25.11.1998. Thereafter, in consideration of
OJC No.2689 of 2002 Page 31 of 38
his representation/petition dated 02.07.2001 for
allotment of land got rejected vide Letter in Memo
No.13629, dated 29.08.2001 on the ground that “he has
neither deposited the premium within the stipulated
time nor executed lease deed. As he has not taken any
step during the last 11 years, his petitions have been
rejected”.
9.6. Taking into consideration the facts and circumstances of
the case in its entirety, this Court finds that the
petitioner was thoroughly intelligent in enquiring about
the status of the allotment of the case land. A prudent
man, like the petitioner, is expected to make an enquiry
within a reasonable time with regard to status of
allotment of the Government land after making an
application.
9.7. This Court, thus, does not find substance in the
submission made by the learned Senior Counsel for the
petitioner by making a last ditch effort to get an order in
his favour by alleging malice or mala fide against the
officials of the Department.
10. Referring to an affidavit dated 13.08.2019 filed by the
petitioner, Sri Samir Kumar Mishra, learned Senior
Advocate then submitted emphatically
that “the
residential plot No.339 is vacant till date and no
construction over the said plot has been built by any
other parties”. Hence, he submitted that the opposite
OJC No.2689 of 2002 Page 32 of 38
parties can take lenient view of the matter and accept
the premium so that the vacant land can be allotted to
the petitioner.
10.1. Objecting arduously, Sri Sanjay Rath, learned Additional
Government Advocate referred to a decision of the
Hon’ble Supreme Court of India rendered in the case of
State of Odisha and another Vrs. Malati Biswal and
others, Civil Appeal Nos.9895-9896 of 2017, disposed of
on 27th July, 2017, wherein it has been observed as
follows:
“ *
Facts in short, indicates that the applications were invited
by the State of Orissa for allotment of the land way back
in the year 1987. Husband of Malati Biswal had filed
application on 20.01.1987. Girija Sankar Mohapatra filed
application on 01.04.1987. Pradip Kumar Mohanty filed it
on 20.04.1987. Birachi Kumkar Dwivedy filed the
application on 05.04,1989. Provisional orders of allotment
were issued to all of them. With a clear stipulation that
they would deposit the premium amount within 60 days
failing which grace period of 15 days was granted.
Thereafter, provisional allotment stood cancelled
automatically on failure to deposit the premium.
The provisional allotment orders were issued to them on
06.04.1990, 24.07.1989, 20.03.1992 and 20.07.1989
respectively. However, it is an admitted fact that none of
the respondents had deposited any premium as per the
condition of provisional allotment and had filed the writ
petitions after 18-23 years. The High Court has allowed
OJC No.2689 of 2002 Page 33 of 38
the writ applications by the impugned orders. Hence the
appeals.
*
In view of the aforesaid stipulation, it is clear that there
was no necessity of passing any formal cancellation order
and the provisional allotment order stood cancelled
automatically due to admitted non-compliance of the
requisites to be performed, as stipulated in the order of
allotment. No reason has been shown good bad or
otherwise why there was so much of delay in
approaching the Court. Once the government framed
benevolent scheme such people, it was incumbent upon
them to take advantage of the same as stipulated in the
scheme and the allotment orders within reasonable time,
it would not be a sufficient ground in the facts of the case
that since some of them have served the country, they can
approach the court at any time after 20 years. Time
cannot be relaxed after lapse of decades delay. The delay
was inexcusable and due to latches on the part of the
respondent they were not entitled for any relief.
Thus, the impugned order is hereby set aside. The
appeals are, accordingly, allowed. No order as to costs.”
10.2. It is transparent from a review of the facts in Malati
Biswal (supra) that the instant case is also closely
proximate in time. In the said case , the Hon’ble Supreme
Court of India has categorically held that there was no
necessity for an order of formal cancellation, as the
provisional allotment order stood automatically
cancelled due to admitted non-compliance of the
requisite to be performed as stipulated therein. In the
OJC No.2689 of 2002 Page 34 of 38
instant case, it is categorical stand of the opposite
parties that allotment letter was sent by registered post
to make requisite deposit within stipulated period.
Admittedly, the petitioner did not deposit the premium
within the stipulated time as instructed in the order of
allotment. Thus, rejection of petition dated 02.07.2001
vide Letter dated 29.08.2001 cannot be said to be
tainted or arbitrary.
10.3. This Court appreciates the submission of the learned
Additional Government Advocate that execution of the
lease deed by accepting the premium does not arise at
this distance of time as the market value of the property
in Chandrasekharpur Mouza has been enhanced
manifold. It is also appreciated that receipt of the
premium at a much belated stage does not confer right
on the petitioner for allotment of the case land . In this
regard the learned Additional Government Advocate
brought to the notice of this Court a decision rendered
by the Hon’ble Supreme Court of India in the case of
State of Odisha Vrs. Shrimati Mohanty and Others, Civil
Appeal Nos.6610-6611 of 2019, vide Order dated
23.08.2019, which reads as follows:
Leave granted.
“1.
2. The allotment order was passed in the year 1990.
The employee/Surendra Nath Mohanty retired in
1989. He died in the year 2010. Communications
OJC No.2689 of 2002 Page 35 of 38
were went at his address, which returned back
twice and effort was made to inform the factum of
the allotment after two decades. In the year 2007
effort was made by the deceased employee to get
the allotment implemented that was declined. The
High Court has allowed the writ petition.
3. In the facts and circumstances of the case, as the
respondents have delayed the matter for 17 years, it
was not appropriate to entertain the writ petition due
to delay. Almost in the similar facts and
circumstances, this Court has passed the order
dated 27.07.2017 in C.A. Nos.9895-9896/2017 and
batch.
4. The amount of Rs.24,794/- deposited in the year
2009 shall be refunded by the appellants to the
respondents with interest @ 10% per annum, within
a period of four weeks from today and compliance
be reported to this Court.
5. With the aforesaid direction, the impugned order is
set aside and the appeals are disposed of.
6. Pending application(s), if any, shall stand disposed
of.”
10.4. In the instant case, no requisite amount has been paid
till date. In such view of the matter this Court does not
feel it apposite to grant any relief to the petitioner.
Conclusion:
11. It is an admitted position that the result of the allotment
of Government land was published in the newspaper as
far back as 1990. The petitioner has failed to place any
OJC No.2689 of 2002 Page 36 of 38
material particulars on record to demonstrate that he
had approached the competent authorities within a
reasonable period thereafter. Instead, the petitioner
seeks to assail the process at this distance of time on the
sole ground that he did not receive the individual
communication sent by registered post. However, once
the opposite party asserted fact on affidavit that the
letter was sent to the correct address via registered post,
a statutory presumption of service arises under Section
27 of the General Clauses Act, 1897, and Section 114 of
the Indian Evidence Act, 1872. The opposite party is not
required to lead further evidence to prove actual receipt.
Rather, the burden shifts entirely onto the petitioner to
adduce cogent evidence to rebut this presumption and
demonstrate that the registered letter could not have
reached him. In the absence of any such evidence, and
given the unexplained delay since the 1990, the
petitioner’s self-serving allegation of non-receipt stands
unsubstantiated and is devoid of merit.
11.1. The allegation that the person dealing with the file
played mischief remained unsubstantiated inasmuch as
he is not shown in the array of party to answer such
wild allegation. This itself indicates the motive of the
petitioner to put the burden on the opposite parties after
a long distance of time.
OJC No.2689 of 2002 Page 37 of 38
11.2. In
view of the decisions of the Hon’ble Supreme Court of
India in Malati Biswal (supra) and Srimati Mohanty
(supra), it is not prudent to issue writ of mandamus to
the authorities/opposite parties to allot the alleged
vacant plot in favour of the petitioner.
12. In view of the facts discussed and the conspectus of
decisions of the Hon’ble Supreme Court of India, this
Court finds no justified reason to interfere with the
decision of the Government of Odisha in General
Administration Department rejecting the application of
the petitioner to allot the land/plot vide letter dated
29.08.2001 issued by the Joint Secretary to Government
and Ex-Officio Director of Estates (Annexure-4).
Consequently, this Court desists to exercise its power
under Article 226/227 of the Constitution of India. Being
devoid of merit, the writ petition is dismissed. Pending
interlocutory application(s), if any, stands disposed of,
but in the circumstances, there shall be no order as to
costs.
I agree.
(HARISH TANDON) (MURAHARI SRI RAMAN)
CHIEF JUSTICE JUDGE
Signature Not
Verified
Digitally Signed
Signed by: ASWINI KUMAR
SETHY
Designation: Personal
Assistant (Secretary in-charge)
Reason: Authentication
Location: ORISSA HIGH
COURT, CUTTACK
Date: 09-Nov-2026 15:18:50
High Court of Orissa, Cuttack
The 06th November, 2026//Aswini/Bichi/Laxmikant
OJC No.2689 of 2002 Page 38 of 38