court news jan-mar-2008
TRANSCRIPT
Court
News
Court
News
01. From the desk of Chief Justice of Orissa High Court ... 2
02. Names of sitting Hon’ble the Chief Justice and Hon’ble ... 3Judges of Orissa High Court.
03. Appointments of Hon’ble Judge & Additional Judges of the ... 4Orissa High Court.
04. Editorial Acknowledgment ... 6
05. Sanctioned strength & vacancies in Orissa High Court. ... 7
06. Institution, Disposal and Pendency of Cases in the High Court ... 7
07. Sanctioned strength & vacancies in District & Subordinate Courts ... 8
08. Institution, Disposal and Pendency of Cases in ... 9District & Subordinate Courts.
09. Outlines of some recent Orissa High Court Judgments ... 15
10. Major Events ... 32
11. Activities of Orissa Judicial Academy. ... 33
12. Programmes attended by Hon’ble the Chief Justice and ... 34Hon’ble Judges of Orissa High Court at New Delhi, Bhopal& other places.
13. Activities of Orissa State Legal Services Authority & ... 35Orissa High Court Legal Services Committee.
❐❐
CONTENTS
1
Court
News
Court
News
CHIEF JUSTICE’S BUNGALOWKILLA FORT, CUTTACK - 753 001Phone : (0671) 2607808 (Off)
2301703 (Res)2301505 (Res)
Fax: (0671) 2301703 (Res)(0671) 2608446 (Off)
E-mail: [email protected]
Justice Asok Kumar Ganguly
FROM THE DESK OF THE CHIEF JUSTICE
(Asok Kumar Ganguly)
3rd April, 2008.
This is the third issue of Court News. We are really grateful to note the response andencouragement it has received from the Hon’ble Chief Justices of different High Courts as alsofrom the learned Judges of the Hon’ble Supreme Court.
During this quarter a very fruitful Seminar was organized on “Cyber Law and CyberForensic” under the auspices of the Ministry of Information Technology and Communication,Government of India and the International Centre for Alternative Disputes Redressal incollaboration with Orissa Judicial Academy. A good number of judicial officers participated init and experts on the subject imparted valuable training to the judicial officers.
I am happy to announce that during this period a Mediation Centre has been opened on24.2.2008 by Hon’ble Dr. Justice A.Pasayat, Hon’ble Judge, Supreme Court of India in thepremises of Orissa State Legal Services Authority. Mediation Rules of our High Court havealso been gazetted. We are very keen to make mediation a part of justice delivery system inthis State. We hope that the mindset of all the stakeholders, i.e., litigants, lawyers and Judgesmay be so attuned as to hasten the process and transform the entire system for the benefit of allconcerned.
During this period Hon’ble Justice S.R.Singharavelu from Madras High Court has, ontransfer, joined this High Court and the Judge Strength has gone up to 19. I, on behalf of allthe Judges, welcome His Lordship.
I wish and pray that the Court News may continue to disseminate vital informationabout this High Court in future.
2
Court
News
HON’BLE JUDGES OF THE ORISSA HIGH COURHON’BLE JUDGES OF THE ORISSA HIGH COURHON’BLE JUDGES OF THE ORISSA HIGH COURHON’BLE JUDGES OF THE ORISSA HIGH COURHON’BLE JUDGES OF THE ORISSA HIGH COURT
HON’BLE THE CHIEF JUSTICE
Hon’ble Shri Justice A.K.Ganguly, M.A., LL.B.
HON’BLE JUDGES
Hon’ble Shri Justice I.M. Quddusi, LL.B.
Hon’ble Shri Justice P.K. Tripathy, M.A., LL.B.
Hon’ble Shri Justice B.P. Das, M.A., LL.B.
Hon’ble Shri Justice L. Mohapatra, B.Sc., LL.B.
Hon’ble Shri Justice A.S. Naidu, B.Sc., LL.B.
Hon’ble Shri Justice Pradip Kumar Mohanty, LL.B.
Hon’ble Shri Justice S.R. Singharavelu, B.Sc., B.L.
Hon’ble Shri Justice M.M. Das, M.A., LL.B.
Hon’ble Shri Justice R.N. Biswal, M.A., LL.M.
Hon’ble Shri Justice A.K. Parichha, B.Sc., LL.B.
Hon’ble Shri Justice N. Prusty, LL.B.
Hon’ble Shri Justice I. Mahanty, LL.M.
Hon’ble Kumari Justice Sanju Panda, B.A., LL.B.
Hon’ble Shri Justice B.N. Mahapatra, M.A., LL.B., PGDTL.
Hon’ble Shri Justice B.P. Ray, LL.B.
Hon’ble Shri Justice S.C. Parija, LL.B.
Hon’ble Shri Justice L.K. Mishra, M.A., LL.M.
Hon’ble Shri Justice B.K. Patel, M.A., LL.B.
3
Court
News
Hon’ble Shri Justice S.R.Singharavelu 03.08.1947 26.3.2008 Madras High Court
Hon’ble Shri Justice Lalit Kumar Mishra 25.06.1955 17.1.2008 -- (Addl. Judge)
Hon’ble Shri Justice Bijaya Krishna Patel 24.01.1953 17.1.2008 -- (Addl. Judge)
Appointments as Judge / Addl. Judgesof the Orissa High Court
(From 1st January, 2008 to 31st March, 2008)
Name of the Hon’ble Judge Date ofBirth
Date ofAppointment
Transferredfrom
Hon’ble Shri JusticeS. R. Singharavelu
Hon’ble Shri JusticeLalit Kumar Mishra
Hon’ble Shri JusticeBijaya Krishna Patel
Retirement of Hon’ble Judgeof the Orissa High Court
(From 1st January, 2008 to 31st March, 2008)
Name of the Hon’ble Judge Date ofRetirement
Hon’ble Shri Justice 29.9.2004 19.2.2008Ashoke Kumar Samantaray
Date of elevationto the Bench
4
Court
News
Oath Ceremony ofHon’ble Shri Justice
S.R. Singharaveluon 26.3.2008
The newly appointed Hon’ble Judge and Hon’ble Additional Judges being Sworn-inby Hon’ble Shri Justice A.K. Ganguly, Chief Justice, Orissa High Court
Oath Ceremony ofHon’ble Shri JusticeLalit Kumar Mishra
on 17.1.2008.
Oath Ceremony ofHon’ble Shri JusticeBijaya Krishna Patel
on 17.1.2008.
5
Court
News
EDITORIAL ACKNOWLEDGEMENT
With profound gratitude we acknowledge the receipt of the letter of
appreciation from Hon’ble Shri Justice M.Karpaga Vinayagam, Chief Justice,
Jharkhand High Court.
“... The “Court News” really covers various issues. I am glad to
learn that your hands have been strengthened by appointment of
three more new Judges at your initiative. There is also special mention
in the issue relating to holding of National Seminar on “PLEA
BARGAINING” jointly held by I.L.I. State Unit and the Orissa Judicial
Academy on 23rd December, 2007 in which I also attended.
I shall state that this issue is wonderfully presented giving
full details of various events which are happening in your State Judiciary.
Your “Court News” has not only impressed me, but
prompted me to the extent that our High Court also has to publish such
type of news magazine for our State Judiciary in future ... “
6
Court
News
SANCTIONED STRENGTH & VACANCIES IN HIGH COURT(As on 31.3.2008)
Sanctioned Strength Working Strength Vacancies
17 + 05* 19 3
(A)* Addl. Judges(B) Two Hon’ble Judges of this Court have been transferred to other
High Courts and two Hon’ble Judges of other High Courts havecome on transfer to this High Court.
INSTITUTION, DISPOSAL AND PENDENCY OF CASES IN THE HIGH COURT(From 1.1.2008 to 31.3.2008)
MAIN CASES
Pendency as on1.1.2008
Institution duringthe period
Total disposalduring the period
Pendency as on31.3.2008
Civil Criminal Civil Criminal Civil Criminal Civil Criminal
MISC. CASES
Pendency as on1.1.2008
Institution duringthe period
Total disposalduring the period
Pendency as on31.3.2008
Civil Criminal Civil Criminal Civil Criminal Civil Criminal
TOTAL NO. OF CIVIL & CRIMINAL CASES DURING THE PERIOD(From 1.1.2008 to 31.3.2008)
Opening Balance Institution Disposed of
Civil
Criminal
107554 23480 6792 5388 6211 6789 108135 22079
101927 596 6608 2438 4391 2469 104144 565
209481 13400 10602 212279
24076 7826 9258 22644
Pending
7
Court
News
Category of Posts SanctionedStrength
WorkingStrength
SANCTIONED STRENGTH & VACANCIESIN
DISTRICT AND SUBORDINATE COURTS
(A) DISTRICT & SUBORDINATE COURTS
(As on 31.3.2008)(Regular Establishment)
(B) FAST TRACK COURTS
(As on 31.3.2008)
Sl. No. Vacancies
1. District Judge includingAdditional District Judge
2. Civil Judge (Sr. Divn.)
3. Civil Judge (Jr.Divn.) &Magistrates
Functional Strength Present Strength Vacancies
90 68 22
125 115 10
280 198 82
33 32 1
8
Court
News
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9
Court
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Court
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12
Court
News
Nam
eo
f th
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dges
hip
PR
EV
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TIO
N O
F C
OR
RU
PT
ION
AC
T (V
IG. +
C.B
.I.)
Op
enin
g
Bal
ance
as o
n 1
.1.2
008
Inst
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isp
ose
d o
fP
end
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as o
n 3
1.3.
2008
Bal
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OUTLINES OF SOME RECENT ORISSA HIGH COURT JUDGEMENTS
DHANU BISOI -Vrs.- STATE OF ORISSAJCRLA No. 37 of 1997 (Dt. 2.1.2008)
INDIAN PENAL CODE, 1860 - Sec. 302.
Conviction U/s. 302 - Based on only eye-witness (P.W.1) - Conviction challenged - This Courtheld since there is variation in the statement of P.W. 1, medical evidence, evidence of the I.O. (P.W. 10)and the statement of P.W. 1 recorded U/s. 164 Cr.P.C. in material particulars, the said witness cannot berelied on. There is no evidence on record to connect the appellant with the alleged offence. Convictionsetaside.
(L.Mohapatra, J. )
ARUN KUMAR DAS -Vrs.- UNION OF INDIA & OTHERSW.P.(C) No. 9443 of 2006 (Dt. 4.1.2008)
CONSTITUTION OF INDIA, 1950 - Article 226.
Contractual appointment - Petitioner engaged as a Co-operative education Instructor in theNational Co-operative Union of India, field project at Angul - Petitioner was informed that his serviceswould not be required after 31.7.2006, vide office memorandum dt. 13.6.2006. Action challenged -Reduction of Grant-in-Aid by Govt. of India - Closure of project in Angul District due to financial crunch -Held, no irregularity for dis-engagement of the petitioner.
(B.P.Das, J.)
MACHHUA BANDRA -Vrs.- STATE OF ORISSAJAIL CRIMINAL APPEAL NO.301/1997 (Dt.04.01.2008)
INDIAN PENAL CODE - SECTION 302 R/W SEC. 24 EVIDENCE ACT
Extra Judicial confession, by itself, if otherwise in conformity with the law, can be treated assubstantive evidence in appropriate Cases. In the instant Case Appellant confessed to have killed hiswife before P.W. 3, who inturn reported to P.Ws. 1, 2 & 4 - Evidence of Doctor, I.O. and report of Chemicalexaminer corroborates the evidence of P.Ws. 1, 2 & 4 - In cross-examination their evidence not shaken- Prosecution has proved the Case beyond reasonable doubt - No reason to distrub the findings of theTrial Court.
(L.Mohapatra,J & B.P.Ray,J.)
ASHOK KU.PANDA - Vrs.- STATE PROJECT DIRECTOR, O.P.E.P.A. & ORS.W.P.(C) No. 16416 of 2007 (Dt. 04.01.2008)
CONSTITUTION OF INDIA, 1950 - Art. 226
Engagement as Sikhya Sahayak - Under Patamundei Block - Petitioner belongs to KendraparaBlock but filed a residential certificate being a resident of Patamundei Block - His name finds place in themerit list - He has not been given engagement although persons securing less marks have been engaged- Action challenged - Standing Counsel submitted that the name of the petitioner was deleted from the
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select list when it was detected that he had applied by utilising a forged certificate - This Court held thata person can apply for his engagement as Sikhya Sahayak in respect of any one of the Blocks throughout the State even though he does not belong to the said Block, but no body can be allowed to apply byutilizing a forged Certificate showing him as a resident of that particular Block.
(N.Prusty,J)
MANDA MARANDI -Vrs.- STATE OF ORISSACrl. M.C. No. 471 of 2002 (Dt. 7.1.2008)
CODE OF CRIMINAL PROCEDURE, 1973 - Sec. 482
Quashing of order taking Cognizance - offence U/ss. 143, 341, 353, 506 I.P.C. and Section 7 ofthe Criminal Law (Amendment) Act. - When a prosecution in the initial stage is asked to be quashed, thetest to be applied by the Court is as to whether the uncontroverted allegations as made Prima facieestablish the offence and in any case Judicial Process should not be an Instrument of oppression orneedness harassment - In the present case allegations made in the F.I.R. and statements recorded U/s.161 Cr. P.C. does not reveal any specific offence against the petitioners - Moreover, all the petitionersare Women, allegations against them are bald and vague and chances of an ultimate conviction is bleakand no useful purpose would be served by allowing the Criminal Proceeding to continue - Held, theimpugned order of cognizance is quashed.
(S.C.Parija, J.)
MURALIDHAR PAL -Vrs.- STATE OF ORISSA AND OTHERSO.J.C. No. 17824 of 1998 (Dt. 8.1.2008)
CONSTITUTION OF INDIA 1950 - Article 226
SERVICE - Petitioner is a Lecturer in History - Show cause notice issued to him with regardto his misconduct - Petitioner remained silent. Notice issued vide Regd. Post but he did not respond -Charge framed and served on him but he refused to accept - Petitioner was terminated from service -Appeal preferred by him was also dismissed - Hence this Writ Petition. This Court found that the Showcause notice served on the petitioner through the office Peon in presence of English Lecturer - Postalreceipt shows that show cause notice and charge sheet were served on him - Petitioner kept silent - Noneed for conducting any hearing, much less, personal hearing. Held, no violation of the principles ofnatural Justice. Decision of the Governing Body not illegal, arbitrary and capricious.
(P.K.Tripathy, J. & R.N.Biswal, J.)
GOBINDA CHANDRA SAHU -Vrs.- STATE OF ORISSA & OTHERSCRIMINAL APPEAL NO.212/1995 (Dt.08.01.2008)
CODE OF CRIMINAL PROCEDURE,1973 - SECS.164 & 313
Confessional Statement - Recording of - Appellant was produced before the Magistrate at 1.30P.M. - Appellant was kept in charge of the orderly Peon till 3.30 P.M. when confession was recorded -Appellant had admitted to have killed his wife and daughter but retracted by saying that he had been
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assaulted by the Police - No complaint before the Magistrate regarding assault - No irregularity orillegality in recording the Confessional statement - Held, Confession found to be true and voluntary. Lawis well settled that once a Judicial Confession found to be true and Voluntary the same can be actedupon for maintaining Conviction even though such Judicial Confession is retracted in course of trial.
(L. Mohapatra,J. & B.P.Ray,J.)
M/S. ASSOCIATES CEMENT COMPANIES LTD. -Vrs.- STATE OF ORISSASTREV No. 191 of 2007 (Dt. 9.1.2008)
CENTRAL SALES TAX ACT, 1956 - Secs. 3(a) & 6-AR/W Rules 12(4) of the C.S.T. (Orissa) Rules.
(A) Branch transfer - Cement dispatched from the factory at Bargarh (Orissa) to the branchoffice at West Bengal - On facts this Court held, Revenue has miserably failed to establish inseparablelink between the dispatch of Cement in question from its factory at Bargarh in the State of Orissa to itsbranch office in West Bengal and thereafter sale of Cement by the branch office to the Stockist.
CENTRAL SALES TAX ACT, 1956 - Sec. 3(a).
(B) Inter State Sale - Movement of goods from one State to another under a contract of sale.Held, In the instant case there being no contract of sale between the Petitioner factory at Bargarh to itsbranch office at Kolkata the transfer / dispatch of Cement by the petitioner from its factory at Bargarh toits branch office at Kolkata cannot be said to be an Inter-State sale.
(A.K.Ganguly, C.J. & B.N.Mohapatra, J.)
MANORAMA SAHOO -Vrs.- PRAMOD KUMAR PRADHAN & ANOTHERWRIT PETITION (CIVIL) NO.6637/2006 (Dt.09.01.2008)
ORISSA CONSOLIDATION OF HOLDINGS & PREVENTION OF FRAGMENTATION OF LANDACT, 1972 - SEC.51
Suit for Partition - Issue relates to parantage, adoption, validity of transfer etc. - Area in questioncomes under Consolidation Act and Revision Petitions are pending - Civil Court, although held the issuesare not within the perview of the Consolidation Authorities, granted stay of Suit, on the ground that issueof adoption being an ancillary relief to the main issue can be adjudicated by the Authorities under theConsolidation Act - Order of stay challenged - Held, every question of relationship pertaining to legalcharacter or status connected to land has to be determined by way of evidence before the ConsolidationAuthorities and to that extent the bar of the Civil Court as contemplated u/s. 51 of the Consolidation Actclearly operates.
(Indrajit Mahanty,J.)
RAMA CHANDRA MISHRA -Vrs- STATE OF ORISSA AND OTHERW.P.(C) No.15742 OF 2006 (Dt.10.1.2008)
CONSTITUTION OF INDIA, 1950 - ARTICLES 226 & 227
Advertisement for appointment as multipurpose Assistant - Candidate need be passed 10+2Examination - Petitioner passed +2 Arts from Shri Jagannath Sanskrit Vishvavidyalay - His Case was notconsidered on the ground that the certificate issued in his favour not equivalent to the certificate grantedby the Council Higher Secondary Education, Orissa - Action challenged - This Court held, petitioner
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possessed requisite qualification as stipulated in the advertisement. Non-consideration of his Candidaturevitiated the entire selection process. Direction issued to the authorities to consider the Candidature ofthe petitioner and prepare a fresh select list on merit.
(A.S.Naidu,J.)
DR. YUDHISTIRA KHASTUA & OTHERS -Vrs.- STATE OF ORISSA & OTHERSW.P.(C) NO.9864/2005 (Dt.10.01.2008)
ORISSA EDUCATION (RECRUITMENT & CONDITIONS OF SERVICE OF TEACHERS ANDMEMBERS OF THE STAFF OF AIDED EDUCATIONAL INSTITUTIONS) RULES, 1974 - RULE-9
Dearness Allowance - Petitioners are Lecturers in Aided Colleges - Their Case is till 1.1.2001they were paid Dearness Allowance similar to Lecturers in Govt. Colleges but there after they arediscriminated. Action challenged - opposite Party cannot treat the Lecturers of Aided EducationalInstitutions as a separate ‘Class’ from Lecturers in Govt. Colleges - Held Rule 9 Mandates payment ofDearness Allowance to the Lecturers of Aided Educational Institutions like the petitioner at the rate suchallowance is being paid to their counter parts in Govt. Colleges with effect from 1.1.2001
(M.M.Das,J.)
SMT. MAMATA BARAL - Vrs. - STATE OF ORISSA & OTHERSO.J.C. No.4674 of 1996 (Dt.11.1.2008)
CONSTITUTION OF INDIA, 1950 - ARTICLES 14, 16 & 39(d)
Petitioner a Craft Teacher - Claims parity in the Scale of pay with Matric C.T. Teachers - On theground that they belong to same Cadre as per pre-revised scale - Decision of the Govt. for fixation ofhigher scale of pay for the Matric C.T. Teachers - Petitioner challenged the same as discriminatory andviolative of Articles 14, 16 and 39(d) of the Constitution. Job of a Craft Teacher and a Trained MatriculateTeacher are obviously different from each other though both of them profess the job of teaching. But sofar as education is concerned, teaching by Matriculate C.T. Teachers is at a superior footing. Held, thereis no legal justification for the petitioner as the Craft Teacher to claim parity if Govt. provided higher scaleof pay to the teacher in the Matric C.T. Cadre.
(P.K. Tripathy, J. & R.N. Biswal, J.)
RABINDRA KUMAR MALLICK -Vrs.- THE STATECRLA No. 183 of 2004 (Dt. 11.1.2008)
INDIAN PENAL CODE 1860 - Sec. 302, R/W Sec. 27 of Evidence Act.
CRIMINAL Trial - Appreciation of Evidence - Conviction based on circumstantial evidence- Conviction challenged - This Court held prosecution failed to prove that the deceased was sleepingwith the appellant in the fateful night - Although P.W. 9, 15 & 16 were witnesses for recovery of weapon ofoffence, P.Ws. 15 & 16 having specifically stated that their signatures were taken in plain papers andthey were not witnesses to any seizure, there is no corrobortion of their evidence with that of P.W. 9, andprosecution has failed to prove the Case to support conviction and sentence passed by the Trial Court.
(L.Mohapatra, J. & B.P.Ray, J.)
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STATE OF ORISSA -Vrs.- SITARAM BHALU & OTHERSDSREF No. 8 of 2007 & CRLA No. 366 of 2007 (Dt. 15.1.2008)
CRIMINAL PROCEDURE CODE, 1973 - Secs. 164, 366 R/W Sec. 27 Evidence Act, 1872.
Death Sentence - Based on circumstantial Evidence - Confirmation of - None had seen thedeceased accompaning the appellants - P.W. 6 being a witness to the recovery of knife (weapon ofoffence) stated in cross-examination that he cannot say where from the accused brought the knife, sohis evidence cannot be relied upon - Trial Court relied on the statement of one Laxmidhar Dalai recordedU/s. 164 Cr.P.C. but as he was not examined in the Court his statement is also not helpful - Onlycircumsance is appellants were accused persons in a murder case where deceased was to deposeas a witness but the same cannot bring the complete chain to hold the appellants guilty - Held, prosecutionhas failed to establish its Case and set aside the impugned judgment. Death Reference answeredaccordingly.
(L.Mohapatra, J. & B.P.Ray, J.)
SATYANASTH @ SATYABAN @ SATYA PRADHAN @ NAYAK-Vrs-
NIRMAL CHANDRA PRADHAN AND OTHERSW.P.(C) NO.8877 OF 2007 (DT.16.1.2008)
ORISSA GRAMA PANCHAYAT ACT, 1964 - SEC.31
Presentation of Election Petition - Cost as required U/s. 31 not paid at the time of filing - Objectionto dismiss the Petition - Objection rejected - Court below passed order that delay in deposit of securitysum cannot be construed as delay in presentation of the Petition - Order challenged - This Court held,election petition should be presented together with the cost. Impugned order is illegal hence quashed.However since petition U/s. 5 of the limitation Act is filed to condone delay, the same may be consideredby the learned Civil Judge under the Second proviso to Section 31 in accordance with law.
(A.S.Naidu,J.)
PRAMATH KUMAR MISHRA -Vrs.- STATE OF ORISSACRLREV No. 105 of 2005 (Dt. 18.1.2008)
BIHAR & ORISSA EXCESE ACT, 1915 - Secs. 47(a), 66, R/W Secs. 451 & 457 of Cr.P.C.
Seizure of I.D. liquor U/s. 47(a) alongwith a Scooter - Petition U/s. 457 Cr.P.C. for release of theScooter - Petition rejected - Order challenged - Learned single Judge, to set the controversy, referred thematter to a larger bench to decide whether the Apex Court in the decision reported in 2003 Vol. 24 OCR(SC) 444 bestowed unfettered power on Magistrates to release any property U/ss. 451 and 457 Cr.P.C.in each and every Case - Hence, this matter before the Division Bench - Held, seizure being under aspecial statute and there being provisions relating to release of seized property, in the present CaseMagistrate cannot direct release of the vehicle U/s. 457 Cr. P.C.
(B.P.Das, J. & A.K.Samantaray, J.)
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RAMA CHANDRA SISHU -Vrs.- STATE OF ORISSA & OTHERSW.P.(C) NO.15533/2007 (Dt.18.01.2008)
ORISSA SURVEY AND SETTLEMENT ACT, 1958 - Ss. 33 & 47
Member Board of Revenue - Revisional Powers U/ss.6-D, 15 and 25 vests on him - only Memberin the State - To remove difficulties of the litigant Public Revisional Powers delegated to differentcommissioners vide notification u/s. 33 - subsequently Govt. issued notification u/s. 47 stipulating thatall revision Cases shall be filed before the Member who shall allot to different Commissioners - He canalso withdraw re-allot and review any Case or Court work of any other Commissioner - Notificationchallenged - This Court held, after delegation of power vide notification u/s 33, the Original Authoritybecame defunct and the delegated Authority has to exercise such power.
(A.S. Naidu,J.)
AMULYA KUMAR PANDA -Vrs.- STATE OF ORISSACRLREV No. 248 of 2006 (Dt. 18.1.2008)
INDIAN EVIDENCE ACT, 1872 - Secs. 25, 26, 27.
Petitioner while in Custody confessed before the I.O. to have committed the offence which wasrecorded through Video Cassettes marked as M.Os. I, V and VI during trial - Prosecution filed petition todisplay the Cassettes - Objection filed by the Petitioner - Trial Court allowed the said petition to displaythe above Cassettes which is under challenge - Held, this Court, modified the impugned order to theextent that the Prosecution shall be permitted to make necessary arrangements for display of thoseparts of the Video Cassettes only which are relevant with regard to Section 27 of the Indian Evidence Act.
(Pradip Mohanty, J.)
CRP.36/07 : IPPILI LAKSHMAN RAO -V- IPPILI JAGANNATH SWAMY @ RAVI & OTHERSCRP.36/07 : IPPILI LAKSHMAN RAO & ANOTHER -V- IPPILI RAMA KRISHNA RAO
CRP NO.36 & 37 OF 2007 (DT.18.01.2008)
CIVIL PROCEDURE CODE, 1908 - SEC. 24
Petitioner filed suit for Partition - Opp. Party filed a Suit for eviction of the Petitioner - Petition U/s.10 C.P.C. to stay the Suit of the Opp. Party - Prayer rejected and both the Suits were directed to be heardanalogously - two applications before the District Judge to transfer the Suits on the apprehension that hemay not get fair deal - Application rejected - Hence, the two revisions - Held, merely because the decisionon the stay petitions went against the petitioner, there could not be reasonable apprehension for denial ofjustice. Non-recording of the answers given by the Witnesses also does not show any bias on the part ofthe Presiding Officer so as to make out a Case for transfer. Held, no illegality in the order of the DistrictJudge.
(Pradip Mohanty,J.)
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M/S. NATIONAL INSURANCE CO. LTD. -Vrs.- SRI DINESH @ VINESH CHANDRA SHARMA & ORS.F.A.O. NO.99 OF 2007 (Dt.18.01.2008)
WORKMEN’S COMPENSATION ACT, 1923 - SEC.2(1)(i) & SEC.4(1)(C)(ii)
Assessment of loss of earning capacity by a qualified Medical Practitioner - Should be Lawful andproper to the extent of computing the extent of permanent disablement - Evidence of Claimant’s treatingphysician shows that the Claimant sustained permanent disability to the extent of 50% - Doctor ofInsurance Company assessed Claimant’s loss of earning capacity at 45% - Claimant who was a driverat the time of accident can no longer drive a vehicle safely - Held, irrespective of the extent of permanentdisability, the injuries suffered by the claimant as such qualify to be treated as “Total disablement”. Claimantsdoctor having determined the Claimants disability to an extent of 50% in terms of Section 4(1)(C)(ii), theloss of earning capacity is to be “Proportionate to such permanent total disablement”.
(I.Mahanty,J.)
SHANKAR MAHATO -Vrs.- STATE OF ORISSAJCRLA No. 134 of 1997 (Dt. 21.1.2008)
INDIAN PENAL CODE - Secs. 302, 376
Criminal Trial - Appreciation of evidence - No eye witness to the occurrence - Trial Courtconvicted the appellant basing on circumstantial evidence - Only the appellant and the deceased were inthe house in the night of occurrence - Accused made extra judicial confession before P.W. 10 that he hadtaken wine and commited rape on the deceased and thereafter throttled her neck and when he found thedeceased dead, he put Valium 10 tablets inside her mouth and he also took similar number of tablets tocommit suicide. Doctor (P.W. 11) who conducted post mortem stated that signs of sexual assault werepresent and cause of death was due to asphyxia caused by throttling. Opinion of Doctor finds supportfrom extra judicial confession made before P.W. 10. This Court finds no reason to interfere with theimpugned judgment. Appeal dismissed.
(L.Mohapatra, J.)
GAGAN BEHARI SAHOO -Vrs.-
THE ORISSA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION & OTHERSO.J.C. NO.6702/1995 (Dt.24.01.2008)
CONSTITUTION OF INDIA, 1950 - ARTICLE 226
Regularisation of Service - After Matriculation Petitioner was appointed as Work Sarkar in1981 on daily wage - But he was doing the work of a Clerk - Opp. Parties also asked him to work as aClerk - No explanation as to why the duties of the Petitioner as Clerk was withdrawn - One NityanandaDas, Junior to the Petitioner was regularised w.e.f. 20.6.1989 by virtue of an order of this Court - Petitionerwas allowed to work as Clerk over a long period - No adverse remark against his performance - Held,Petitioner’s service as Clerk be regularised from the date Nityananda Das got the benefit.
(B.P.Das,J. & A.K.Samantaray,J.)
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BINOD PAIKRAY @ SURYA MAMA -Vrs.- STATE OF ORISSABLAPL NO.9400/2007 (Dt.24.01.2008)
CODE OF CRIMINAL PROCEDURE, 1973 - SEC. 439(I) readwith Proviso to Sec. 167(2)
Petition U/s. 439(1) - Consideration of the right of the petitioner for bail under the proviso to Sec.167(2) - Offence U/s. 395 IPC - Charge-sheet not filed within 120 days from the date of arrest - In thepresent Case, petitioner never applied for bail after expiry of 120 days before the learned Trial Court -Right under that Section extinguished the moment charge-sheet was filed - Prayer to be released underthe Proviso to Sec. 167(2) fails. On merit, though in the T.I. Parade the petitioner and the other accusedhave not been identified, considering the nature of Crime alleged and their statements recorded U/s. 27of the Evidence Act as well as the Criminal antecedent of the petitioner, this Court is not inclined torelease the petitioner on bail.
(M.M.Das,J)
KALANDI CHARAN SAHOO -Vrs.-
DISTRICT TRANSPORT MANAGER(A),O.S.R.T.C., ROURKELA & ANOTHERO.J.C. NO.6161/1995 (Dt.25.01.2008)
CONSTITUTION OF INDIA, 1950 - ARTICLE 226 R/W SECS. 33-A, 33(C)(1) & (2), I.D. ACT, 1947
Back wages - Non-payment of - Proceeding u/s. 33/A - Labour Court found petitioner entitled toarrear salary and Bonus and directed DTM, OSRTC, Rourkela for payment within two months - Due tonon-payment petitioner filed the Writ Petition - Maintainability of Writ Petition raised on the groundthat the order of the Labour Court can be enforced u/s. 33(C)(1) and the amount can be recovered asarrear of land Revenue under the O.P.D.R. Act - This Court held, inspite of alternative remedy is availablethe same being neither effective nor efficacious a Writ should be issued to Opp. Party No.1 to pay theamount quantified by the Labour Court.
(M.M.Das,J.)
SANTILATA SAHU -Vrs.- SABITRI SAHU & OTHERSFIRST APPEAL NO.149 OF 1991 (Dt.25.01.2008)
HINDU SUCCESSION ACT, 1956 (AS AMENDED IN THE YEAR, 2005) - Sec. 6.
Suit for partition - Plaintiff and Defendant No.2 are daughters and Defendant No.1 is the widow oflate Byasadev - Plaintiff’s Case is that she constructed the suit house out of her own income and claimsexclusive share - Case of Defendant No.2 is Byasadev constructed the Suit house and adopted DefendantNo.6 as Son - Trial Court did not accept adoption but allotted shares amongst Plaintiff and DefendantNos.1 to 5 - Decree challenged by Defendant No.2 - This Court held after amendment of section 6 of theAct daughters are entitled to a share in the ancestral property as Co-parceners and each of them areentitled to a share. Trial Court carved out the share properly. This Court is not inclined to interfere.
(Sanju Panda,J.)
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PANDU DALAI -Vrs.- STATE OF ORISSACRL. M.C. NO.153/2007 (Dt.25.01.2008)
CRIMINAL PROCEDURE CODE, 1973 - SEC. 482
Quashing of Criminal Proceeding - Offence u/ss. 241, 294, 323, 337, 506/34 IPC & Sec. 3(1)(x)of SC & ST (Prevention of Atrocities) Act - Present Petitioner remained as an absconder - Case split up- Two other accused persons faced trial - They entered into a compromise with the informant - Acquittalof the charges u/ss. 341, 323, 337, 506/34 - Trial continued for offences u/s. 294/34 & Sec.3(1)(x) of SC& ST (P.A) Act - The informant (PW.1) deposed that he does not remember about the incident - He alsodenied to have lodged any information with the Police - Accused persons found not guilty and acquitted- Held, continuance of Criminal Proceeding against the present petitioner after lapse of more than 8years would be an abuse of process of law. Criminal Proceeding quashed.
(S.C. Parija,J.)
IN RE. STATE -Vrs.- TANGAMALAI RAMASWAMAYIN CRLA T.RAMASWAMAY & ANOTHER -VRS- STATE
DSREF NO.7/2007 & CRLA NO.365/2007 (DT.30.01.2008)
CRIMINAL PROCEDURE CODE, 1973 - SEC. 366
Death sentence - Confirmation of - Appellants made extra Judicial Confession that they havekilled the deceased, cut her body into pieces and burnt the same in an Oven - Recovery of ‘Kati’ containinghuman blood - No explanation by Appellant No.1 U/S. 113 Cr.P.C. as to how ‘Kati’ stained with humanblood - Held, appellant No.1 had killed his wife and his conviction was maintained but Appellant No.2 wasacquitted - Since part of the Prosecution Case relating to cutting of the deadbody into pieces and burningthe same in an Oven has not been proved, it becomes a clear Case of murder, which can not be broughtwithin the ambit of ‘rarest of rare’ Cases to warrant Capital punishment - Death Sentence reduced to lifeimprisonment.
(L.Mohapatra,J. & B.P.Ray,J.)
BABULA AGARWAL - V - SECRETARY TO GOVERNMENT OF ORISSA & OTHERSCIVIL REVIEW, RVWPET NO.8 OF 2008 (DT.31.1.2008)
CIVIL PROCEDURE COE, 1908 - ORDER 47, RULE, 1
Writ Petition dismissed being devoid of merit - Application for review filed on the ground thatsome decisions of the Supreme Court could not be placed - No doubt review can be maintainable on theground of discovery of new and importment matter or evidence which after the exercise of due diligencewas not within the knowledge, or could not be produced at the time of Judgment.
Held, Review cannot be maintainable on the ground that the legal authority in existence on thedate of judgment could not be brought to the notice of the Court.
(I.M. Quddusi,J. & S.Panda,J.)
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SHIB SANKAR MOHAPATRA & OTHERS -Vrs.- STATE OF ORISSA & OTHERSAND BATCH OF THE CASES
W.P.(C) Nos. 426, 1233, 2878, 3424 & 5637 of 2006 (Dt. 7.2.2008)
ORISSA POLICE RULES - Rule 650 (a)(ii)
Promotion to the rank of Inspector from the post of Sub-Inspectors of Police and Steno Sub-Inspectors - Separate eligibility criteria for steno Sub-Inspectors and non-Steno Sub-Inspectors -Combined gradation list for the purpose of promotion - Action challenged before Administrative Tribunal- Tribunal directed to prepare final gradation list on the basis of their date of joining on appointment -Order challenged in Writ Petition - This Court held, date of joining is not relevant in view of Rule 650 andthe crucial date for the purpose of seniority is the dates of passing out the Sub-Inspector training Course.
(I.M.Quddusi, J. & N.Prusty, J.)
OM PRAKASH AGARWALLA -Vrs.- STATE OF ORISSACrl. Revision No. 356 of 1998 (Dt. 7.2.2008)
PROBATION OF OFFENDERS ACT - Sec. 4 (3)
Offence U/s. 16(1)(a)(i) of prevention of Food Adulteration Act - Petitioner sentenced to undergoR.I. for one year and to pay fine of Rs. 1,000/- in default, to undergo R.I. for two months - In appeal Addl.Sessions Judge confirmed the conviction, set aside the sentence and released the Petitioner U/s. 4(3)of the P.O. Act but enhanced the fine to Rs. 20,000/- in default, to undergo R.I. for six months - Hence,this revision - Purpose of releasing under the P.O. Act is to rehabilitate the offender but not to send himto jail - Held, revision is allowed in part and order imposing fine of Rs. 20,000/- and in default to undergoR.I. for six months is set aside.
(R.N.Biswal, J.)
STATE OF ORISSA -V- PRASANNA KUMAR SWAINGOVT. APPEAL NO.41 OF 1993 (Dt.8.2.2008)
N.D.P.S. ACT, 1985 - SEC. 20(b)(i)
Graver the offence, stronger should be the evidence - In the present Case, Ganja alleged to havebeen seized from the Respondent - Acquittal by trial Court on the ground that S.I. of Excise not empoweredto conduct raid and recovery of Ganja was not proved - Hence, this appeal by Govt. - Evidence of P.W. 3shows that by the time he arrived near the place of seizure, the Respondent found sitting in a bittle shopand the S.I. of Excise called him to the house in question where after it was searched. No witness to saythat the house where from Ganja was said to be recovered belongs to the Respondent. Held, though S.I.of Excise had power to conduct raid of any offence under the N.D.P.S. Act it would be hazardous to setaside the order of acquittal or remand the case for fresh trial.
(R.N. Biswal,J)
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MANGULU NAIK -Vrs.- STATE OF ORISSAJCRLA No. 34 of 1998 (Dt. 13.2.2008)
Criminal Trial - Appreciation of evidence - Investigation with the assistance of a Sniffer dog - Thedog was provided with the scent from the blood stained “Budia” lying near the deadbody - Whereafterit led the Police and witnesses to the house of the appellant - One Banion, two Lungies were seizedfrom his house - Appellant absconded immediately after occurrence - He was arrested 6 months after -Extra Judicial confession of the appellant before P.W. 2 - Evidence of P.W. 2 remained ontouched -Judicial confession gets corroboration from the Post Mortem report - Serological report shows thatblood was found on both the Lungies - No explanation given by the Appellant U/s. 313 Cr. P.C. as to howblood was found on both the Lungies. Held, no reason to interfere with the impugned judgment.
(L.Mohapatra, J. & B.P.Ray, J.)
CHAKRADHAR NAYAK -Vrs.- CHAIRMAN, STEEL AUTHORITY OF INDIA LTD. & ORS.OJC NO.10259 OF 1999 (Dt.14.02.2008)
CONSTITUTION OF INDIA, 1950 - ART. 226
Service - Petitioner joined as Asst. Teacher-cum-PTI through Selection Process against theVacancy reserved for Schedule Tribe - Allegation that Schedule Tribe Certificate was forged one -Disciplinary Proceeding against petitioner - Report of Enquiry Officer that Caste Certificate is not genuine- Petitioner was removed from service - Order challenged - This Court found there was no violation ofprinciples of natural Justice, nor any Procedural defect in the departmental Enquiry - Held, appointmentagainst the post reserved for S.T. Persons utilising a forged Certificate, not issued by the competentauthority is illegal. Plea that the petitioner already served the organisation for 14 years for which theimpugned order be quashed was turned down by the Court. Writ Petition dismissed.
(B.P. Das,J. & A.K. Samantaray,J)
SRI KAILASH NAHAK @ NAIK & OTHERS -Vrs.- STATE OF ORISSABLAPL NO.7840 OF 2007 & BATCH (Dt.14.02.2008)
BIHAR & ORISSA EXCISE ACT, 1915 - SEC. 47(a), 85-A
Offence U/s. 47(a) - Application u/s. 438 & 439 Cr.P.C. - whether Section 85-A introduced in theState Act creates a bar for granting bail to the accused persons. Held, Section 85-A of the State Act wasenacted and introduced to the statute keeping in view the new Penal Provision u/s 52-A of the Act and thesame will not be a bar for releasing an accused involved in an offence U/s. 47(a) of Bihar and OrissaExcise Act on bail.
(M.M.Das, J.)
NEELACHAKRA CONSTRUCTIONS -Vrs.- STATE OF ORISSA & ANOTHERARBP NOS.24 & 25 OF 2005 (Dt.15.02.2008)
ARBITRATION AND CONCILIATION ACT, 1996 - SEC. 11
Petitioner awarded work of new Construction - Works completed in time - Opp. Party took overthe site and inaugurated the Project - Concerned Engineer certified for final payment which did not
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include various outstanding dues inspite of reminders - Since accounts could not be finalised petitionerissued notice for appointment of Arbitrator - Clause 24.1 of the condition of contract shows, if the contractorbelieves that the decision taken by the Engineer was wrong, the said decision shall be referred to theadjudicator and if either party to contract feels aggrieved with the decision of the adjudicator, the decisionshall be referred to the Arbitrator - Held, Petitioner cannot ask for appointment of an Arbitrator bypassingclauses in the contract. Application dismissed.
(A.K. Ganguly, C.J.)
ORISSA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION & ANOTHER -Vrs.-
SRI DEBA PRASAD MISHRA AND OTHERSC.R.P. NO.12/2004 (Dt.15.02.2008)
CODE OF CIVIL PROCEDURE, 1908 - SEC. -115 (AFTER AMENDMENT BY ACT OF 1999 W.E.F. 1.7.2002)
Suit for malicious prosecution - Claim for Rupees ten lakhs as damaged and injunction - Newspublished in the Oriya Daily ‘The Samaj’ with allegations that the Plaintiffs - Petitioners accepted bribeand indulged themselves in corruption for which the corporation became bankrupt - Learned Court belowheld the suit was not maintainable - Order challenged in revision - In the present Case, the Plaintiffs areaggrieved by the impugned order and had the objection been accepted or the order being passed infavour of the Plaintiff the Suit could not have been finally disposed of, rather the Suit would have continued.Hence, the Case is not coming under the proviso to Section 115(1) of the C.P.C. - Held, Civil Revision atthe instance of the Plaintiff is not maintainable.
(Sanju Panda,J.)
STATE OF ORISSA & ANOTHER -Vrs.- KAMAL LOCHAN MOHAPATRAFirst Appeal No. 113 of 1994 (Dt. 15.2.2008)
INDIAN LIMITATION ACT, 1963 - Article 112 R/W Article 27 & 55.
Suit by or on behalf of the State - Period of Limitation under Article 112 is 30 years - Intentionbehind this Article is conservation of revenue due to the State - Article 27 is general in character butArticle 55 is a residual article - Article 55 is applicable when Article 27 is not applicable to a case - Wheretwo Articles attracted to a Suit, the more specific Article excludes the general Article - Article 27 beinggeneral, the same is not applicable when there is Article 112, a specific provision for filing of the Suit byor on behalf of the State - Held, Suit being filed by the State under Article 112, is not barred by limitation.
(Sanju Panda, J.)
RELIANCE INDUSTRIES LIMITED AND OTHERS -Vrs.- STATE OF ORISSAW.P.(C) NOS.6515 OF 2006 & BATCH (Dt.18.02.2008)
CONSTITUTION OF INDIA, 1950 - ARTICLES 246(3), 301, 304(a) & ENTRY 52 OF LIST-II OF 7TH SCHEDULE.
Validity of Orissa Entry Tax Act, 1999, Challenged - This Court found no discrimination betweenthe goods produced or Manufactured within the State of Orissa or imported from outside and broughtwithin the local area - Held, Orissa Entry Tax Act, 1999, intravires the Constitution. State has no jurisdictionto impose tax on such goods imported from outside the State and are not manufactured within the Stateof Orissas.
(I.M. Quddusi,J. & A.K. Samantaray,J.)
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STATE OF ORISSA -Vrs.- KALIA @ DEBABRATA MAHARANA&
KALIA @ DEBABRATA MAHARANA -Vrs.- STATE OF ORISSADSFEF No. 10 of 2007 & CRLA No. 2 of 2008 (Dt. 19.2.2008)
INDIAN PENAL CODE, 1860 - Sec. 84.
Plea of insanity - Proof of - Appellant assaulted five persons indiscriminately causing death tothree persons - Without any rhyme or reason, motive or intention - Conduct of appellant does notappear to be the conduct of a normal human being - Evidence of eye-witnesses and defence witnessesshows appellant was suffering from insanity prior to and at the time of occurrence - Appellant was notsecretive of such act and did the act openly in presence of the villagers without any preparedness -Held, benefit of section 84 should be extended to the accused appellant - Conviction and sentence setaside.
(L.Mohapatra, J. & B.K.Patel, J.)
A.B.I.T. - P.M.C.A., THROUGH ITS DIRECTOR, -Vrs.- B.P.U.T., ROURKELA & OTHERSW.P.(C) NO.15780/2007 (Dt.20.02.2008)
BIJU PATNAIK UNIVERSITY OF TECHNOLOGY ACT, 2002 - R/W SECS. 21 & 45 OF THEARCHITECTS ACT, 1972.
Prosecution of Bachelor of Architecture Degree Course - Whether knowledge in Chemistry andBiology in 10+2 Science Course has any nexus - Whether the JEE can fix the eligibility qualification foradmission to the First year degree course other than that fixed by the Council of Architecture (COA).
Held, this Court disposed of the Writ Petition directing the JEE, Orissa, to prescribe the eligibilityqualification for taking admission into B.Arch. Degree Course for the Session 2008 strictly in consonancewith the provisions of the Architect Act, 1972 and the stipulation and modalities prescribed by the Councilof Architecture.
(A.S.Naidu,J.)
RAGHUNATH JENA & OTHERS -Vrs.- ADIKANDA PANDARSA No. 146 of 2007 (Dt. 20.2.2008)
CODE OF CIVIL PROCEDURE, 1908 - Sec. 100 R/W Sec. 9(1), 67 and 73of Orissa Land Reforms Act, 1970.
Suit Land forms part of the Urban land - Defendant No. 1 and 2 filed application U/s. 9(1) OLRAct for settlement - Application allowed - Plaintiff filed Suit for declaration of right, title, possessionand for a declaration that the order of the Tahasildar U/s. 9(1) is illegal - Suit decreed and confirmedin appeal - Hence, this Second Appeal - This Court held, since Suit property comes within the purviewof Section 73(C) OLR Act, Settlement U/s. 9(1) not permissible. Since prayer made in the Suit forright, title, interest and possession which is beyond the Jurisdiction of the OLR Act, the Civil Courthas Jurisdiction to entertain the Suit and Sec. 67 of OLR Act is not a bar.
(A.K.Parichha, J.)
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NOBLE AQUA PVT. LTD. & TWO OTHERS-Vrs.-
STATE BANK OF INDIA & FOUR OTHERSW.P. (C) No. 4815 of 2007 (Dt. 21.2.2008)
SECURITISATION and Reconstruction of Financial Assets and Enforcement of Security on InterestAct, 2002 - Sec. 13(4), 37, R/W Sec. 3(1)(o), 15(1), 22(1) of sick Industrial Companies (Special Provisions)Act, 1985.
Petitioner company - Sudden fall in its business - Could not repay loan - Company approachedBIFR U/s. 15(1). SICA - Notice to Parties including S.B.I. - Petitioner unit declared sick in terms of Sec.3(1)(o) vide order dated 14.11.2006 - No appeal by S.B.I. against the order of BIFR - Bank issuedpossession notice U/s. 13(4) on 7.4.2007 - Notice challenged in Writ Petition - Petitioner - Companywas declared sick much prior to notice U/s. 13(4) - Protection given to sick Industrial Company underSICA 1985, has not been taken away by Sec. 37 of the Securitisation Act - Held, Bank cannot proceedagainst the petitioner in respect of its notice U/s. 13(4) of the Securitisation Act in view of the statutorybar created U/s. 22 SICA.
(A.K.Ganguly, C.J. & I.Mahanty, J.)
SHER KHAN -Vrs.- STATE OF ORISSASecond Appeal No.165/1996 (Dt.27.02.2008)
GOVERNMENT GRANTS ACT,1895 - SEC.2 R/W SEC.17 OF INDIAN REGISTRATION ACT.
Ruler of Talcher allowed Appellant Vide Ext.4 to occupy the Suit Land - Govt. refused to record/mutate - Suit filed for right, title, interest and possession - Suit dismissed on the ground that Ext. 4 is anunregistered gift deed, not recognised by the successor Sovereign State - Decree challenged in Appeal-Appeal dismissed - Hence, this Second Appeal.
This Court found Ext.4 is not a gift but a grant, exempted from registration - No finding by newState Authorities that the grant was unjust and unreasonable. When State prescribes that grant requiresrecognition of the new Sovereign State, it has to provide rules for the grantee to seek recognition. Held, inthe absence of any such provision the grant under Ext.4 can be deemed to have been recognised by thenew Sovereign State by implication. Grant by Ruler found to be valid. Appellant derived title and possessionover the suit land.
(A.K. Parichha,J.)
UTKAL BAPTIST MANDALI SAMMILANI - Vrs. - SMT. JANABHI MISSALW.A. No.19 of 2007 (Dt.29.2.2008)
CONSTITUTION OF INDIA, 1950 - Arts. 12 & 226 R/W Order-8 Rule-6-A C.P.C.
Counter claim by defendant - Civil Judge, rejected the same on the ground of delay as well as onother grounds - Order challenged in Writ - Writ Court set aside the same - Hence, the Writ Appeal - In theWrit Petition the sole Opp. Party was the present appellant (a Private Religious Organisation) which is
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neither a Public utility concern nor a statutory body discharging any Public duty - Not amenable to WritJurisdiction - No ground that the error committed by the Civil Court cannot be corrected in an appeal -Held, High prerogative Writ Jurisdiction of High Court should not be invoked to decide property disputesamongst the private parties. Learned single Judge of the Writ Court ought not to have entertained theWrit Petition and interfered with the order passed by the learned Civil Judge.
(A.K. Ganguly, C.J. & B.N. Mahapatra, J.)
DEBAHARI ROUTIA -Vrs.- STATE OF ORISSAJail Criminal Appeal No. 100 of 2001 (Dt. 29.2.2008)
INDIAN PENAL CODE, 1860 - Sec. 302 R/W Sec. 32 Evidence Act.
Dying declaration - A dying man is normally not likely to implicate innocent persons falsely - In thepresent case Appellant poured Kerosene Oil on the body of his wife and lit fire - Conviction U/s 302 I.P.C.- Conviction challenged - While in hospital the deceased made dying declaration before P.Ws. 3, 4, 5 and6 - P.W. 6, the Doctor recorded the same as per Ext. 6 - P.W. 2, who conducted post-mortem found 70%to 80% burn injuries and smell of Kerosene Oil - P.W. 6, certified that the patient was consious, co-operative and mentally sould while making dying declaration - Held, deceased was in a fit state of mindwhile making dying declaration and it was the Appellant who set fire to the deceased causing fatal burninjuries - No infirmity in the impugned judgment to warrant interference.
(L.Mohapatra, J. & B.K.Patel, J.)
SRI KRUSHNA CHANDRA ROUTRAY -Vrs.- STATE OF ORISSA & OTHERSW.P.(C) NO.9385 OF 2007 (Dt.13.03.2008)
ORISSA SUPPLY AND SALE OF STAMPS AND STAMPED PAPERS RULES, 1990 - RULE, 12 & 17
Stamp Vendor Licence - Renewal of - A.D.M. refused Renewal due to pendency of CriminalCase - Selling of forged Advocates welfare stamp - Under Rule 17(3) no licence can be granted if theperson is convicted for any offence under Chapter-XVIII of I.P.C. - In the present Case Criminal case ispending against the Petitioner. Moreover, Advocates welfare Stamp does not come within the definationof Stamps defined under Rule 12 of the Rules. Held, Order passed by A.D.M. is neither proper nor legalbeing in contravention of Rule 17(3) of the Rules, hence quashed.
(I.M. Quaddusi,J. & S.C. Parija,J.)
BISWAM PATRA AND OTHERS -V- KENDRIYA VIDYALAYA SANGATHAN & OTHERSW.P.(C) NOS.2480 & 2929 OF 2008 (DT.13.3.2008)
CONSTITUTION OF INDIA, 1950 - ARTICLES 226 R/W ARTICLES 93 & 94 OF KENDRIYA VIDYALAYASANGATHAN (FOR SHORT KVS.)
Some tiny tots have knocked the door of this Court as they were deprived of admission in Class-1 after passing Pre-primary Class on the ground that they would not complete 5 years as on 1st April,2008 as per Admission notice for the academic session 2008-2009.
Admission Brochure-2007 shows for admission to Class-I a child must be 5 years and for Pre-primary Class a child must be 4 years as on 30th September of the concerned academic year. This
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Court observes that once the eligibility age is fixed by KVS as on 30th September of the concernedacademic year and allowed the petitioners to take admission in pre-primary Class, is estopped fromimposing the changed eligibility criteria. Held, petitioners admission to Class-I shall not be rejected onthe ground that they would not attain five years as on 31st March, 2008 so far as 2008-2009 academicsession is concerned.
(A.S.Naidu,J.)
KHIROD CHANDRA DASH & OTHERS -Vrs.- BIMAL DASH & OTHERSWRIT PETITION (CIVIL) NO.287/2008 (Dt.14.03.2008)
CONSTITUTION OF INDIA, 1950 - ART. 226 & 227 R/W ORDER & RULE 6-A & ORDER 41 RULE-22 C.P.C.
Acceptance of Counter Claims by Defendants against Co-defendants - Order challenged - UnderOrder 41, Rule 22 a respondent has authority to prefer an objection only against the Appellant and arespondent does not have a right to file a claim against a Co-respondent - In the present CaseCounter Claim not made against the Plaintiff - Held, by accepting Counter Claim filed by Defendants 5 to7 against Defendants 1 to 4, trial Court has sought to assume a jurisdiction which it does not have andexercised jurisdiction in a manner not permissible in law thereby causing great injustice to the interest ofdefendants 1 to 4 - Impugned Order quashed.
(Indrajit Mahanty,J.)
BIPRESWAR SAHU -V- STATE OF ORISSA AND OTHEROJC NO.1204 OF 1996 (Dt.20.3.2008)
ORISSA MUNICIPAL RULES, - RULE 426(2) R/W RULE 17(2)(i) OF CHAPTER-IX OF THEREGULATIONS OF THE BOARD OF SECONDARY EDUCATION, ORISSA
Headmaster of High School - Eligibility for appointment - Seven years teaching experience aftertraining - Appointment of O.P. No.4 as Headmaster is under challenge - O.P. 4 was appointed as T.G.Teacher w.e.f. 1.6.1983 - He is Junior to Petitioner and several others - He has no requisite qualificationto be appointed as Headmaster - In the meantime Petitioner was given appointment as Headmasterwhich does not validate the order under Annexure-3 - Held, order under Annexure-3 is illegal and quashed.All consequential benefits provided to O.P. No.4 pursuant to Annexure-3 be withdrawn/recovered - O.P.No.2to take recourse to appropriate proceeding for recovery of any financial loss to the Municipality/Corporationfrom the officers concerned. Writ petition is allowed with cost of Rs.1,000/- to be paid by O.P. No.2 and3 to the petitioner.
(P.K.Tripathy,J. & L.K. Mishra,J.)
SR.DIVISIONAL MANAGER, M/S. NEW INDIA ASSURANCE COMPANY LTD.-Vrs-
ROSALIA BARLA AND OTHERSM.A. NO.257 OF 2002 (DT.20.3.2008)
MOTOR VEHICLES ACT, 1988 - SEC. 168(2), 173, R/W ORDER, 41 RULE-1 C.P.C & RULE-21(2)ORISSA MOTOR VEHICLES (ACCIDENTS CLAIMS TRIBUNAL) RULES, 1960.
Non-filing of certified copy of the Award with the Memo of appeal - Defect pointed out by theStamp Reporter - Appellant submits that appeal presented with true copy of the Award supplied U/s.
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168(2) - Respondent objected that the said copy is for the purpose of information and compliance of theAward.
A conjoint reading of the above provisions alongwith the meaning of certified copy given in the lawof lexicon and in view of the decision reported in AIR 1986 Keral 196, this Court held that the copy of theaward issued by the Tribunal U/s. 168(2) is no way different from a certified copy of the same Award -Defect pointed out by the Stamp Reporter ignored.
(B.N. Mohapatra,J.)
PRASANTA KR. DAS - Vrs.- STATE OF ORISSA & OTHERSMisc. Case No. 60 of 2008
Arising out of O.J.C. No. 6721 of 1999 (Dt. 27.3.2008)
CONSTITUTION OF INDIA, 1950 - Art. 21 & 226
Marriage Procession - Use of multiple loud speakers making sound pollution - Which thrilled thebrick walls of this Court - This Court took immediate cognizance and imposed Restrictions vide orderdated 7.12.2007 for the smooth and peaceful living of the inhabitants - Cuttack Mahanagar Band PartyAssociation prayed for modification of the above order - Held, Band Parties using amplifiers shall instalsound limiters which will not exceed 65 dB and the same must be indicated in the licence issued by theSub-Collector for procession in Barat Party failing which all the musical Instruments shall be seized bythe Police and Proceeding for violating sound pollution norms shall be initiated against them. Govt. isdirected to provide sound level meters to all Police Stations of Cuttack and Bhubaneswar within threemonths from today and till then the Pollution Control Board shall make random checks to see that thesound in Processions does not exceed the limit of 65 dB.
(B.P.Das, J. & M.M.Das, J.)
RABI SANKAR SHARMA -Vrs.- STATE BANK OF INDIA & ANOTHERM.A. No. 1153 of 1999 (Dt. 28.3.2008)
CIVIL PROCEDURE CODE - Order- 9, Rule - 13.
Exparte decree - application to set aside the same - Application dismissed on the ground thatdefendant had not proved that he had got knowledge of the decree for the first time only on a date prior tothe date of filing of the application under Order-9, Rule-13 C.P.C. - Hence this appeal - Defendant No. 1denies his signature in the summons - Plaintiff examined the Process Server who could only say that hehad served the Summons and got the signature of defendant No. 1 - No other witness examined whohas witnessed the service made upon Defendant No. 1 by the said Process Server - Plight of DefendantNo. 1 who would suffer out of the decree without being given an opportunity of being heard. Held,Necessarily that opportunity is to be given to defendant No. 1 subject to deposit 50% of the decretalamount in trial Court and to pay cost of Rs. 2000/- to the plaintiff within a period of one month and indefault the Misc. Appeal will be dismissed.
(S.R.Singharavelu, J.)
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MAJOR EVENTS
SWEARING-IN-CEREMONY OF HON’BLE SHRI JUSTICES.R.SINGHARAVELU, HON’BLE SHRI JUSTICE LALIT KUMAR MISHRAAND HON’BLE SHRI JUSTICE BIJAYA KRISHNA PATEL.
Hon’ble Shri Justice S.R.Singharavelu was transferred from Madras High Court asJudge of Orissa High Court vide Notification No. K.11017/2/2008-US.II dated the 11th March,2008 of the Government of India, Ministry of Law and Justice (Department of Justice), New Delhi.
His Lordship took Oath of Office on 26.3.2008 (Wednesday) at 10.30 A.M. ‘in thename of God”.
Hon’ble Shri Justice Lalit Kumar Mishra and Hon’ble Shri Justice Bijaya Krishna Patelwere appointed as Addl. Judges of Orissa High Court vide Notification No. K.13025/3/2007-US.IIdated the 14th January, 2008 of the Government of India, Ministry of Law and Justice (Depart-ment of Justice), New Delhi.
Their Lordships took Oath of Office on 17.1.2008 (Thursday) at 10.30 A.M. ‘in thename of God”.
RETIREMENT OF HON’BLE SHRI JUSTICEA.K.SAMANTARAY, JUDGE, ORISSA HIGH COURT.
Hon’ble Shri Justice A.K.Samantaray, Judge, Orissa High Court retired on 19.2.2008.His Lordship was elevated to the Bench on 29.9.2004.
NATIONAL SEMINAR ON “CYBER LAW & CYBER FORENSIC”
A National Seminar on “Cyber Law & Cyber Forensic” was organized at Cuttack inBiju Patnaik Film & T.V. Institute, Jobra by Orissa Judicial Academy, Cuttack in associationwith Ministry of Communications & Information Technology and I.C.A.D.R., New Delhi on24.2.2008. The seminar was inaugurated by Hon’ble Dr. Justice Arijit Pasayat, Judge,Supreme Court of India. Hon’ble Shri Justice A.K.Ganguly, Chief Justice, Orissa High Courtpresided over the inaugural meeting. Hon’ble Shri Justice I.M.Quddusi and Hon’ble Shri JusticeP.K.Tripathy, Judges of Orissa High Court, Shri T.K.Viswanathan, Secretary, Law & Justice, Govt.of India, Shri B.S.Saluja, Secretary General, I.C.A.D.R., New Delhi presented their viewpoints on the topic. Besides others, Judicial Officers, Public Prosecutors and SpecialPublic Prosecutors, Police Officers (Crime Branch), Advocates and Law Students attended theinaugural function.
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The last century witnessed spectacular progress in every branch of Science andTechnology. Electronic communication system is gradually replacing the conventional methodsof communication. Socio-cultural evolution has not kept pace with the revolution in science.The ongoing scientific progress has given rise to myriads of problems in the legal field whichJudiciary has to deal with the help of the new legislations enacted to tackle the complex issues.Scientific advancements influence every aspect of our present-day life making several of ouractivities greatly dependent on the Computers and Internet. Indian Courts have started adoptingand availing the benefits of Cyber Law and electronic mode of communicating in the matter ofevidence. In the day-long session of the Seminar participated by the Judicial Officers of allcadres, the Public Prosecutors and Special Public Prosecutors and the Police Officers (CrimeBranch) taking up investigation into Cyber offences, the experts highlighted on differentaspects of “Cyber Law & Cyber Crimes”.
Course contents ofthe Training
Cadre ofOfficersparticipating
No. of Officersparticipated.
Sl.No.
Ranks.
ACTIVITIES OF ORISSA JUDICIAL ACADEMY
During the period, following training programmes are organized in Orissa Judicial
Academy imparting training on the topics as hereunder.
1. 12.01.2008&
13.01.2008
Human Rights and the Roleof District Judiciary.
District Judges&
C.J.Ms.
23 (on 12.1.08)25 (on 13.1.08)
D.J.=12 CJM = 11D.J.=14 CJM = 11
Durationof theProgramme
2. 09.02.2008&
10.02.2008
General Administrationof the District
District Judges&
C.J.Ms.
25 D.J.= 10 CJM = 15
3. 08.03.2008&
09.03.2008
How to write various typesof Judgments & Orders.
Civil Judge(Sr.Divn.) &J.M.F.Cs.
24 Civil Judge (SD) = 8Civil Judge (JD) = 16
33
Court
News
Programmes attended by Hon’ble the Chief Justice,Orissa High Court at New Delhi.
Name of the Hon’ble Chief Justice PeriodSl. No. Topics
1. Hon’ble Shri JusticeA.K.Ganguly, Chief Justice
23.2.2008 All India Seminaron Judicial Reforms
1.3.2008 Seminar onDilogue with the Judiciary
Names of Hon’ble Judges participating Programmes/ Coursesat the N.J.A., Bhopal and at other places.
Names of the Hon’ble Judges PeriodSl. No. Topics
1. Hon’ble Shri JusticeI.M.Quddusi
6.3.2008 Attend the meetingto develop the NJA Calendar for
the next academic year(July, 2008 - June, 2009)
at N.J.A., Bhopal.
8.3.2008&
9.3.2008
Attend the“East India Regional
Conference on Mediation”at Ranchi.
2. Hon’ble Shri JusticeB.P.Das
14.3.2008to
16.3.2008
Attend High Court JusticesConference on Development
of Law : “Contribution ofIndian High Courts to the
Development of Law” at N.J.A., Bhopal. (T-141)
3. Hon’ble Shri JusticeS.C.Parija
8.3.2008&
9.3.2008
Attend the“East India Regional
Conference on Mediation”at Ranchi.
4. Hon’ble Shri JusticeB.K.Patel
22.2.2008to
24.2.2008
Attend High CourtJustices Conference onDevelopment of Law :
“Governance & Development” at N.J.A., Bhopal. (T-136)
34
Court
News
ACTIVITIES OF ORISSA STATE LEGAL SERVICES AUTHORITY
During the period of January and February, 2008, the State Level LokAdalats were held at Bhubaneswar and Cuttack on 12.1.2008 and 19.1.2008respectively. Similarly, 115 nos. of District and Taluk Level Lok Adalats and 92nos. of Legal Literacy / Awareness Camps have been organized in the State ofOrissa. Further, National Legal Aid Week for Women has been observed by the30 District Legal Services Authorities and 45 Taluk Legal Services Committeesof the State from 8-14 of March, 2008.
On 24.2.2008, the Orissa Mediation Centre has been established in thepremises of Orissa State Legal Services Authority, Cuttack, being inauguratedby Hon’ble Dr. Justice Arijit Pasayat, Judge, Supreme Court of India-cum-Chairman, Supreme Court Legal Services Committee, New Delhi in presenceof Hon’ble Shri Justice A.K.Ganguly, Chief Justice of Orissa-cum-Patron-in-Chief of Orissa State Legal Services Authority and Hon’ble Shri JusticeI.M.Quddusi, Judge, Orissa High Court and Executive Chairman of OrissaState Legal Services Authority along with the other Judges of Orissa High Court.Further, Orissa State Legal Services Authority has observed “National LegalAid Week for Women” at Satabdi Bhawan, Cuttack on 13.3.2008 on theoccasion of International Women’s Day as per instruction of NALSA.
In the above State Level Lok Adalats, 416 nos. of MACT caseshave been settled / disposed of and a sum of Rs. 3,84,45,100/- has beenawarded as Compensation. Similarly, in the District and Taluk Level Lok Adalats,18,152 nos. of cases in total has been disposed of, which includes Civil - 108,Criminal - 7019, Revenue - 8741, Bank - 2279 and Matrimonial - 5. The benefitof the scheme of Legal aid or assistance has been provided by the OrissaState Legal Services Authority to 495 persons, which includes SC - 39, ST-20,OBC - 13, Women - 295, Children - 10, Incustody - 10 and Other WeakerSections Society - 108.
35
Court
News
ACTIVITIES OF HIGH COURT LEGAL SERVICES COMMITTEE
News regarding Lok Adalat
I. The 19th sitting of Orissa High Court Permanent and Continuous Lok Adalat washeld on 23.2.2008 under the aegis of the High Court Legal Services Committee. Hon’bleShri Justice M.M.Das and Hon’ble Shri Justice L.K.Mishra, Judges of the Orissa High Court havepresided over the Lok-Adalat Benches in presence of Hon’ble Shri Justice P.K.Tripathy, Chairmanof High Court Legal Services Committee.
In the said Lok Adalat, 33 Motor Accident Claim Appeals and Pension Caseshave been disposed of in which the three General Insurance Companies, namely, New IndiaAssurance, United India Insurance and National Insurance have agreed to pay Rs. 75,73,000/- ascompensation in the above cases to the claimants.
II. Apart from the above, a Lok Adalat was also held in the official Chambers of theHon’ble Shri Justice M.M.Das on 13.3.2008 where 07 cases relating to Motor Accident ClaimAppeals have been disposed of. The Oriental Insurance Co. has agreed to pay compensation tothe tune of Rs. 20,31,056/- to the claimants.
III. The 20th sitting of High Court permanent & Continuous Lok Adalat was held on29.3.2008 in which Hon’ble Kumari Justice Sanju Panda and Hon’ble Shri Justice B.K.Patel havepresided over the Lok Adalat Benches in Court No. II and III respectively. Total number of 21cases relating to M.A.C. Appeals and service matters have been disposed of on the day in whichthe four Insurance Companies, namely, National Insurance, New India Assurance, United IndiaInsurance and ICICI Lombard Insurance have agreed to pay compensation of Rs. 38,40,136/- tothe claimants.
Other News
IV. During the period under report, 64 eligible persons have been provided with legalassistance by the High Court Legal Services Committee.
V. A Conciliation Proceeding Meeting was held by the Members of the SpecialConciliation Cell of the High Court Legal Services Committee in which Sri Yeeshan Mohanty,Adv., Sri Dharanidhar Nayak, Adv. and Smt. Mrinalini Padhi, Adv. were present in the officialChambers of the Registrar (Judicial) of the Court on 16.1.2008 at 2.00 P.M. The next meeting ofthe Cell has been fixed to 11.4.2008 for further conciliation between the parties.
36
Workshop on Cyber Law & Cyber Forensicheld at Cuttack on 24.2.2008
Inauguration of“Orissa Mediation Centre”
on24.2.08 in the
premises of OSLSA,Cuttack
Observance of“National Legal AidWeek for Women”
on 13.3.08at
Satabdi Bhawan,Cuttack
Farewell toHon’ble Shri JusticeA.K. Samantaray by
Hon’ble Chief Justice andHon’ble Judgeson the eve of
His Lordship’s retirementon 19.2.08