farewell to hon’ble shri justice h.s. bhalla on his ... · inauguration of gram nyayalaya at...
TRANSCRIPT
Inauguration of the Court of District & Sessions Judge at Nabarangpur on 22.10.2011by Hon’ble Shri Justice V. Gopala Gowda, Chief Justice, Orissa High Court in presence of
Hon’ble Shri Justice B.N. Mahapatra, Judge, Orissa High Court.
Farewell to Hon’ble Shri Justice H.S. Bhalla on his Lordship’s retirement on 20.11.2011
Inauguration of New Court Building at Rairangpur on 12.11.2011by Hon’ble Shri Justice V. Gopala Gowda, Chief Justice, Orissa High Court in presence of
Hon’ble Shri Justice S.K. Mishra, Judge, Orissa High Court.
Editorial Board� Hon’ble Shri Justice L.Mohapatra� Hon’ble Shri Justice I.Mahanty� Hon’ble Shri Justice B.K.Patel
Inauguration of Gram Nyayalaya at Rajnagar on 08.11.2011 by Hon’ble Shri Justice V. Gopala Gowda, Chief Justice,Orissa High Court in presence of Hon’ble Shri Justice B.P. Das, Judge, Orissa High Court & MLA, Rajnagar.
Silver Jubilee Celebration of C.A.T., Cuttack Branch on 11.12.2011. Guest on the dias :Hon’ble Shri Justice Altamas Kabir, Hon’ble Shri Justice A.K.Ganguly, Hon’ble Shri Justice A.K. Patnaik, Hon’ble Shri
Justice Dipak Misra, Judges of Supreme Court of India, Hon’ble Shri Justice V.Gopala Gowda, Chief Justice, Orissa HighCourt, Hon’ble Shri Justice B.P.Das, Judge, Orissa High Court, Hon’ble Shri Justice V.K. Bali, Chairman, C.A.T.,
Shri Ashok Parija, Chairman, Bar Council of India, Shri C.R.Mohapatra, Hon’ble Member (Admn.), C.A.T.,Shri P.H. Parekh, President, Supreme Court Bar Association and Shri D.K. Behera, Secretary, C.A.T. Bar Association.
Inauguration of the workshop on “Protection of Child Rights & ICPS” at Bhawanipatna on 15.10.2011 byHon’ble Shri Justice Altamas Kabir, Judge, Supreme Court of India in presence of Shri Naveen Patnaik,
Hon’ble Chief Minister of Odisha, Hon’ble Shri Justice V. Gopala Gowda, Chief Justice, Orissa High Court,Hon’ble Shri Justice B.P. Das, Hon’ble Shri Justice C.R. Dash, Judges of Orissa High Court and
Smt. Saraswati Hambrum, Chairperson, State Commission for Protection of Child Rights.
CHIEF JUSTICE’S BUNGALOWKILLA FORT, CUTTACK - 753 001Phone : (0671) 2507808 (Off.)
2301703 (Res)2301505 (Res)
Fax: (0671) 2301703 (Res)(0671) 2508446 (Off.)
March 1, 2012
(V. GOPALA GOWDA)
MESSAGE
This is the 18th issue of the Court News which relates to the last
quarter of the year 2011.
Various expansion programmes took place in the quarter under report.
The J.M.F.C. Court at Aul and Gram Nyayalaya at Rajnagar were inaugurated
during this quarter; so also the new court building at Rairangpur. A Regional
workshop on “Protection of Child Rights and Integrated Child Protection
Scheme” was organized on 15.10.2011 at Bhawanipatna by the Orissa
State Legal Services Authority in collaboration with the Women & Child
Development Department of the State. Hon’ble Mr. Justice Altamas Kabir,
Judge, Supreme Court of India and Chairperson, National Legal Services
Authority inaugurated the same. The Court of District & Sessions Judge
was also inaugurated at Nabarangpur during the quarter under report.
Hon’ble Mr. Justice H.S. Bhalla also demitted office during this quarter.
I am sure this issue will be very informative.
CONTENTS
01. Names of Hon’ble the Chief Justice ... 2and Hon’ble Judges of Orissa High Court.
02. Retirement of Hon’ble Judge of the Orissa High Court ... 2
03. Sanctioned Strength & Vacancies in Orissa High Court. ... 3
04. Institution, Disposal and Pendency of Cases in the High Court ... 3from 01.10.2011 to 31.12.2011
05. Institution, Disposal and Pendency of Cases in the High Court ... 4from 01.01.2011 to 31.12.2011
06. Sanctioned Strength & Vacancies in District & Subordinate Courts ... 4
07. Institution, Disposal and Pendency of Cases in ... 5District & Subordinate Courts from 01.10.2011 to 31.12.2011
08. Institution, Disposal and Pendency of Cases in ... 11District & Subordinate Courts from 01.01.2011 to 31.12.2011
09. Outlines of some recent Orissa High Court Judgments ... 18
10. Programmes attended by Hon’ble the Chief Justice & ... 36Hon’ble Judges of Orissa High Court at the NJA, Bhopal & other places.
11. Major Events ... 37
12. Activities of High Court Legal Services Committee ... 38
13. Activities of Orissa State Legal Services Authority ... 39
14. Activities of Orissa Judicial Academy ... 41
� � �
HON’BLE JUDGES OF THE ORISSA HIGH COURT
HON’BLE THE CHIEF JUSTICE
Hon’ble Shri Justice V. GOPALA GOWDA, B.Sc.,LL.B.
HON’BLE JUDGES
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 Pradip Kumar Mohanty, LL.B.
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 I. Mahanty, LL.M.
Hon’ble Shri Justice H.S.Bhalla, B.A., LL.B.
Hon’ble Smt. Justice Aruna Suresh, B.A., LL.B.
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 S.C. Parija, LL.B.
Hon’ble Shri Justice B.K. Patel, M.A., LL.B.
Hon’ble Shri Justice B.K. Nayak, LL.M.
Hon’ble Shri Justice S.K.Mishra, M.A., LL.B.
Hon’ble Shri Justice C.R.Dash, LL.M.
Hon’ble Shri Justice B.K.Misra, LL.B.
*
RETIREMENT OF HON’BLE JUDGE OF THE ORISSA HIGH COURT
Name of the Hon’ble Judge Date of appointment asJudge of OrissaHigh Court
Date of retirement.
Hon’ble Shri Justice 28.10.2010 20.11.2011Harjinder Singh Bhalla
*
Court
News2
SANCTIONED STRENGTH & VACANCIES IN HIGH COURT(As on 31.12.2011)
INSTITUTION, DISPOSAL AND PENDENCY OF CASES IN THE HIGH COURT(From 1.10.2011 to 31.12.2011)
MAIN CASES
TOTAL NO. OF CIVIL & CRIMINAL CASES DURING THE PERIOD (From 1.10.2011 to 31.12.2011)
Opening Balance Institution Disposed of
CivilCriminal
262288 16671 7717 271242
28557 10673 9158 30072
Pending
Total Pending - 301314
MISC. CASES
Pendency as on1.10.2011
Institution duringthe period
Total disposalduring the period
Pendency as on31.12.2011
Civil Criminal Civil Criminal Civil Criminal Civil Criminal
130547 291 7127 2462 2645 2265 135029 488
130838 9589 4910 135517
Pendency as on1.10.2011
Institution duringthe period
Total disposalduring the period
Pendency as on31.12.2011
Civil Criminal Civil Criminal Civil Criminal Civil Criminal
131741 28266 9544 8211 5072 6893 136213 29584
160007 17755 11965 165797
Sanctioned Strength Working Strength Vacancies
17 + 5* = 22 15 + 1* = 16 2 + 4* = 6
* Addl. Judges
Court
News 3
ANNUAL STATEMENTS SHOWING INSTITUTION, DISPOSALAND PENDENCY OF CASES IN THE HIGH COURT
(From 01.01.2011 to 31.12.2011)
MAIN CASES
Category of Posts SanctionedStrength
WorkingStrength
SANCTIONED STRENGTH & VACANCIES INDISTRICT AND SUBORDINATE COURTS
DISTRICT & SUBORDINATE COURTS (As on 31.12.2011) (Regular Establishment)
Sl. No. Vacancies
1. District Judge Cadre
2. Sr. Civil Judge3. Civil Judge
117 99 18181 143 38
268 251 17
5. Special Judicial Magistrates 18 14 04
4. Fast Track Courts 35 34 01
6. Gram Nyayalayas 08 08 --
Total 627 549 78
TOTAL NO. OF CIVIL & CRIMINAL CASES DURING THE PERIOD (From 01.01.2011 to 31.12.2011)
Opening Balance Institution Disposed of
CivilCriminal
251656 71814 52228 271242
29335 42944 42207 30072
Pending
TOTAL 301314
MISC. CASES
Pendency as on01.01.2011
Institution duringthe period
Total disposalduring the period
Pendency as on31.12.2011
Civil Criminal Civil Criminal Civil Criminal Civil Criminal
126204 1092 28882 9253 20057 9857 135029 488
Pendency as on01.01.2011
Institution duringthe period
Total disposalduring the period
Pendency as on31.12.2011
Civil Criminal Civil Criminal Civil Criminal Civil Criminal
125452 28243 42932 33691 32171 32350 136213 29584
94435114758280991
Court
News4
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Court
News 7
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Tota
l :
Bh
adra
k
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i
Nay
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h
Bar
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h
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ud
a
04
08
20
37
16
24
02
08
01
21
17 11 07
14
06
04 11 19
03
14
24
7
13 11 22
19
09
28
02
13 -- 18
12
05
10
07
05 -- 10
03
04
09
20
0
16
8
14
4
21
8
26
5
10
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23
9
20
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5
35
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87
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46
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79
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52
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9
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54
24
17
01
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07
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13
9
24
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56
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48
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28
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Nab
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17
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7
22
0
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93
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3
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13
0
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20
0
82
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67
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114
39
4
19
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94
98
22
19
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10
6
13
4
12
8
75
47
4214
Court
News8
Nam
e of
the
Judg
eshi
pO
peni
ng B
alan
ceas
on
1.10
.201
1In
stitu
tion
Dis
pose
d o
fP
ende
ncy
as o
n31
.12.
2011
PR
EV
EN
TIO
N O
F C
OR
RU
PT
ION
AC
T (V
IG. +
C.B
.I.)
Bal
aso
re
Bol
angi
r
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ttac
k
Dh
enka
nal
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ahan
di
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Ko
rap
ut
May
urb
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j
Phu
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Pu
ri
Sam
bal
pu
r
Su
nd
arg
arh
Tota
l :
Bh
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k
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apat
i
Nay
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h
Bar
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h
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a
15 -- 03
14 -- 22 -- 05
01
18
06 -- -- -- -- -- 13 -- -- -- 97
08 -- 03
14 -- 06 -- 11 03
17
08 -- -- -- -- -- 09 -- -- -- 79
43
3
-- 114
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6
-- 114
56
2
-- 24
6
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9
68
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13
8
-- -- -- -- -- 49
9
-- -- --
2886
Court
News 9
Nam
e o
f th
eJ
ud
ge
sh
ip
CR
IMIN
AL
CA
SE
S O
F M
AG
ISTE
RIA
L C
OU
RTS
Op
enin
g B
alan
ce a
s o
n 1
.10.
2011
Inst
itutio
nD
isp
ose
d o
fP
end
ency
as
on
31.
12.2
011
Gen
. F
ileT
rial
File
Tota
lG
en.
File
Tria
l F
ileTo
tal
Gen
. F
ileT
rial
File
Tota
l
TOTA
L N
O.
OF
CIV
IL A
ND
CR
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AL
CA
SE
S D
UR
ING
TH
E P
ER
IOD
FR
OM
1.1
0.20
11
TO 3
1.12
.201
1O
peni
ng B
alan
ceIn
stitu
tion
Dis
pose
d of
Pen
denc
y
CIV
IL2
112
13
13
46
71
08
71
21
38
09
CR
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92
49
32
77
01
96
22
43
93
97
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Gra
nd T
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113
61
45
90
48
67
311
411
53
51
7
Bal
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k
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nal
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Ko
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ut
May
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Sam
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Su
nd
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Tota
l :
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Jhar
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38
69
16
63
29
61
13
15
3
58
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15
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20
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18
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91
5
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33
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71
Nab
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22
79
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811
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8
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59
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89
8
10
20
4
28
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9
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22
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38
82
0
73
34
4
8952
69
Court
News10
AN
NU
AL
STA
TEM
EN
TS S
HO
WIN
G IN
STI
TUTI
ON
, DIS
PO
SA
L &
PE
ND
EN
CY
OF
CIV
IL &
CR
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AL
CA
SE
S IN
TH
E S
UB
OR
DIN
AT
E J
UD
ICIA
RY
FRO
M 1
.1.2
011
TO 3
1.12
.201
1
Nam
e of
the
Judg
eshi
p
CIV
IL S
UIT
S
Ope
ning
Bal
ance
as o
n01
.01.
2011
Inst
itutio
ndu
ring
the
yea
r
Dis
pose
dof
dur
ing
the
year
Pen
denc
yas
on
31.1
2.20
11
CIV
IL A
PP
EA
LS
Bal
aso
re
Bol
angi
r
Cu
ttac
k
Dh
enka
nal
Gan
jam
Kal
ahan
di
Keo
njh
ar
Khu
rda
Ko
rap
ut
May
urb
han
j
Phu
lban
i
Pu
ri
Sam
bal
pu
r
Su
nd
arg
arh
Tota
l :
Bh
adra
k
Gaj
apat
i
Nay
agar
h
Bar
gar
h
Jhar
sug
ud
a
28
71
12
21
87
8
59
97
19
96
13
51
81
51
5
64
6
34
72
56
9
16
10
59
23
8
16
80
18
7
10
39
29
9
13
5
63
1
2488
1
32
23
62
4
63
3
40
30
15
07
13
78
57
66
4
39
3
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63
51
5
39
77
2
19
6
114
1
10
2
87
6
23
3
40
57
3
1935
9
12
64
0
85
39
31
36
26
81
9
58
29
37
86
28
2
16
18
15
01
16
20
1
95
7
12
7
51
72
50
0
67
03
13
75
24
02
17
65
112
1
18
82
1023
55
18
09
-- 60
1
15
77
35
4
75
6
-- 30
6
16
0
69
1
33
3
-- 17
7
53
110
3
-- 38
3
-- -- 37
3
8676
26
9
84
10
6
41
7
12
4
16
2
14
80
74
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94
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14
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2114
17
0
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6
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37
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8
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02
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38
10
4
27
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1611
Nab
aran
gp
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20
93
4
--
28
91
24
85
2
53
40
40
71
--
17
67
12
48
15
09
2
10
53
--
48
85
45
8
74
54
--
49
64
-- --
18
24
9683
3
Tra
nsf
err
ed
Rec
eive
dO
peni
ngB
alan
ceas
on
01.0
1.20
11
Inst
itutio
ndu
ring
the
yea
r
Dis
pose
dof
dur
ing
the
year
Pen
denc
yas
on
31.1
2.20
11
Tra
nsf
err
ed
Rec
eive
d
--
79
42
-- -- -- -- 25
8
-- -- -- -- 15
0
-- -- --
12
90
--
16
99
10
26
--
1236
5
79
42
-- -- -- -- 25
8
-- -- -- -- 15
0
-- -- --
12
90
--
27
25
-- -- --
1236
5
-- 83
6
-- -- -- -- 38 -- -- -- -- 1
02
-- -- -- 13
3
-- 21
4
35 --
1358
83
6
-- -- -- -- 38 -- -- -- -- 1
02
-- -- -- 13
3
-- 24
9
-- -- --
1358
10
72
85
0
58
4
18
34
36
7
68
4
41
30
2
19
7
70
9
24
8
10
8
19
6
50
10
12
12
1
14
1
23
4
38
39
1
9179
Court
News 11
Nam
e of
the
Judg
eshi
p
CIV
IL M
ISC
. AP
PE
ALS
Ope
ning
Bal
ance
as o
n01
.01.
2011
Inst
itutio
ndu
ring
the
yea
r
Dis
pose
dof
dur
ing
the
year
Pen
denc
yas
on
31.1
2.20
11
CIV
IL R
EV
ISIO
NS
Bal
aso
re
Bol
angi
r
Cu
ttac
k
Dh
enka
nal
Gan
jam
Kal
ahan
di
Keo
njh
ar
Khu
rda
Ko
rap
ut
May
urb
han
j
Phu
lban
i
Pu
ri
Sam
bal
pu
r
Su
nd
arg
arh
Tota
l :
Bh
adra
k
Gaj
apat
i
Nay
agar
h
Bar
gar
h
Jhar
sug
ud
a
15
5
83
21
44
1
46
55
05
12
48
18
2
51
06
62
14
114
27
55
22
06
62
1467
12
3
61
59
37
6
44
97
05
34
27
16
0
46 -- 35
13
117
12
58
01
03
34
1305
21 -- 30
23
07
27 -- 07
01
33
01 -- 02 -- 45 -- 33 -- -- 03
23
3
07
06
12
12
09
15
01
05
04
15
06 -- 10
02
07
01
10
07
01
07
13
7
07
01
08
07
05
08
01
08
04
15 -- -- 03
01
05
02
04
02
06
02
89
Nab
aran
gp
ur
98
2
-- 13
4
90
8
78
19
3
-- 77
47
50
3
118
-- 52
15
60
1
-- 83 -- -- 1
00
3891
Tra
nsf
err
ed
Rec
eive
dO
peni
ngB
alan
ceas
on
01.0
1.20
11
Inst
itutio
ndu
ring
the
yea
r
Dis
pose
dof
dur
ing
the
year
Pen
denc
yas
on
31.1
2.20
11
Tra
nsf
err
ed
Rec
eive
d
-- 28
3
-- -- -- -- 06 -- -- -- -- 16 -- -- -- 52 -- 26
10 -- 3
93
28
3
-- -- -- -- 06 -- -- -- -- 16 -- -- -- 52 -- 36 -- -- -- 3
93
-- 07 -- -- -- -- 02 -- -- -- -- -- -- -- -- 07 -- 18
18 -- 52
07 -- -- -- -- 02 -- -- -- -- -- -- -- -- 07 -- 36 -- -- -- 52
73
1
30
5
96
97
3
80
14
5
06
55
68
52
5
10
7
22
79
16
54
6
67
44
47
13
12
8
4053
14
12
34
28 11 32
02
04
01
33
07 -- 09
01
40
06
03
23
13
08
28
1
Court
News12
Nam
e of
the
Judg
eshi
p
EX
EC
UTI
ON
PR
OC
EE
DIN
GS
Ope
ning
Bal
ance
as o
n01
.01.
2011
Inst
itutio
ndu
ring
the
yea
r
Dis
pose
dof
dur
ing
the
year
Pen
denc
yas
on
31.1
2.20
11
M.J
.C.s
/ S
PE
CIA
L A
CT
CA
SE
S
Bal
aso
re
Bol
angi
r
Cu
ttac
k
Dh
enka
nal
Gan
jam
Kal
ahan
di
Keo
njh
ar
Khu
rda
Ko
rap
ut
May
urb
han
j
Phu
lban
i
Pu
ri
Sam
bal
pu
r
Su
nd
arg
arh
Tota
l :
Bh
adra
k
Gaj
apat
i
Nay
agar
h
Bar
gar
h
Jhar
sug
ud
a
16
7
82
44
37
0
97
15
4
09
35
16
6
27
8
62
04
91
34
64
12
93
27
07
34
5
2141
15
4
13
47
23
9
19
7
43
1
08
10
4
97
13
5
10
3
02
67
57
74
12
79
15
04
15
4
1992
78
56
-- 75
4
14
19
4
25
16
24
32
--
12
40
37
1
85
72
44
9
-- 63
0
19
8
38
47
--
17
10
-- -- 66
1
4543
0
22
61
10
42
30
2
50
35
94
6
64
6
45
37
9
33
7
27
98
211 10
29
5
10
6
10
90
12
6
40
4
71
65
46
1
1663
0
16
83
53
3
25
4
44
22
99
1
86
0
37
30
2
25
8
16
98
25
8
06
27
7
118
90
6
79
44
3
47
21
41
0
1360
3
Nab
aran
gp
ur
16
07
-- 78
2
30
17
18
58
16
77
-- 40
7
66
8
21
53
67
1
-- 73
5
20
4
82
0
--
14
50
-- -- 83
5
1688
4
Tra
nsf
err
ed
Rec
eive
dO
peni
ngB
alan
ceas
on
01.0
1.20
11
Inst
itutio
ndu
ring
the
yea
r
Dis
pose
dof
dur
ing
the
year
Pen
denc
yas
on
31.1
2.20
11
Tra
nsf
err
ed
Rec
eive
d
-- 65
4
-- -- -- -- 81 -- -- -- -- 69 -- -- -- 2
09
-- 56
0
21
6
--
1789
65
4
-- -- -- -- 81 -- -- -- -- 69 -- -- -- 2
09
-- 77
6
-- -- --
1789
--
37
29
-- -- -- -- 67 -- -- -- -- 43 -- -- -- 4
92
-- 24
4
63
6
--
5211
37
29
-- -- -- -- 67 -- -- -- -- 43 -- -- -- 4
92
-- 88
0
-- -- --
5211
96
6
72
3
77
9
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Court
News 13
Nam
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Court
News14
Nam
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CR
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Ope
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News16
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Court
News 17
OUTLINES OF SOME RECENT ORISSA HIGH COURT JUDGEMENTS
SIBA BAGH & ANR. -V- STATE OF ORISSA.JCRLA NO.233 OF 2000 (Dt. 17.10.2011)
A. EVIDENCE ACT, 1872 – S.27.
Leading to discovery – P.W.3 in his Examination-in-Chief stated that both the appellants while incustody made discloser about the incident, led him as well as the other witnesses and the I.O. to thespot and gave recovery of the stone stained with blood – Evidence of P.W.3 corroborates the evidence ofthe I.O. (P.W.10) with regard to recording of the disclosure statement of the appellants and seizure of theweapon of offence at their instance – Held, prosecution is able to establish the leading to discovery madeU/s.27 of the Act.
B. EVIDCENCE ACT, 1872 – S.134.
Evidence has to be weighed and not counted – P.W.1 is the sole eyewitness to the occurrence –His evidence appears to be clear, cogent and trust worthy and there is nothing on record to the contrary– Held, prosecution is able to establish beyond all reasonable doubt that both the appellants in furtheranceof their common intention have committed murder of the deceased.
(Pradip Mohanty, J & B.K.Patel, J.)
GOPINATH PANDA -V- M/S. MINERAL & METALS TRADING CORPN. OF INDIA LTD., BBSR.W.P.(C) NO.2706 OF 2006 (D.19.10.2011)
INDUSTRIAL DISPUTES ACT, 1947 – S.25-B.
Continuous service of workman – The petitioner-workman was disengaged on 1.4.93 and the learnedTribunal calculated the number of days he worked from that date backward till 1.4.92 and held that thepetitioner-workman did not work for 240 days in 12 calendar months preceding the date of his disengagement,which is under challenge.
In this case even though the petitioner did not work for 240 days in twelve calendar monthsimmediately preceding the date of his termination, yet he has worked for more than 240 days in the year1991, 1990 and 1989 as found from the evidence on record and as such he was deemed to be incontinuous service for one year in terms of Clause (1) of Section 25-B of the I. D. Act – Held, the orderof the learned Tribunal that the petitioner-workman has not worked for one year is illegal and the Opp.Partymanagement having not complied with the provision of Section 25-F of the I.D. Act before refusing workto the petitioner-workman is illegal – Since the management no more require labourers, a lump sumamount of Rs,2,00,000/- is awarded in favour of the petitioner-workman.
(R.N.Biswal, J.)
INDIAN COUNCIL OF AGRICULTURAL & RESEARCH -V-P.O.,CGIT-CUM-LABOUR COURT, BBSR & ORS.
W.P.(C) NO.11451 OF 2005 (Dt. 19.10.2011)
INDUSTRIAL DISPUTES ACT, 1947 – S.2 (i).
Industry – Meaning of – An ‘industry’ can not exist without Co-operative endeavour between employerand employee – No employer, no industry, no employee, no industry.
Court
News18
Whether water Technology Centre for Eastern Region, Bhubaneswar (WTCER in short) an Unitunder the Indian Council of Agricultural Research (ICAR in short) is an industry – Besides undertakingresearch work WTCER undertakes welfare activities and economic adventure – It has more than 1000acres of land where it grows different variety of crops and vegetables by the help of workmen and sellsthe same in the open market besides undertaking various project works which fulfils the triple test – Held,WTCER is an ‘industry.’
(R.N.Biswal, J.)
SUBHASHREE DAS @ MILI PANDA & ORS. -V- STATE OF ORISSA.CRLMC. NO.3080 OF 2010 (Dt. 19.10.2011)
UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 – S.45.
Sanction for prosecution – Offence under chapter IV and VI of the U.A.P. Act – Sanction obtained– Validity – Magistrate took cognizance against the petitioners –Order of cognizance challenged.
In this case the State Government has not appointed an officer to act as an authority for conductingan independent review of the evidence gathered in course of investigation and has not recommendedwhether this case is a fit case for sanction or not as provided U/s.45 (2) of the U.A.P. Act which wasinserted with a view to avoid frivolous prosecution.
Held, the very foundation for obtaining sanction being not in consonance with law the impugnedorder of cognizance against the petitioners, in the absence of valid sanction is liable to be quashed.
( Indrajit Mahanty, J.)
STATE OF ORISSA -V- PRAMOD KUMAR SAHU & ANR.W.P.(C) NOS.4271 & 9251 OF 2007 (Dt. 20.10.2011)
ORISSA FOREST ACT, 1972 – S.56.
Confiscation proceeding – Authorized Officer confiscated the seized truck along with the wood andplanks – In appeal learned Addl. District Judge set aside the Order of confiscation – Hence the writ petitionfiled by the state.
Power of confiscation should be passed by the Authorized Officer, not sitting as a forest official butas an independent authority.
In the present case owner’s plea was that the seized truck was transporting disputed wood whichwere dismantled parts of old wooden furnitures - The said plea was supported by the forester as wellas an independent witness – The authorized Officer failed to consider such evidence – Held, state isunable to makeout any cogent ground for interference in the impugned order - Writ petition filed by thestate is liable to be dismissed.
(Pradip Mohanty, J & B.K.Patel, J.)
ASHWINI KUMAR NAIK -V- GOBARDHAN NAIKW.P.(C) NO.6440 OF 2011 (Dt. 21.10.2011)
CIVIL PROCEDURE CODE, 1908 – ORDER 6, RULE 17.
Amendment of written statement incorporating counter claim – In the instant case suit between theparties was decreed on compromise without trial and the decree being set aside in appeal the matter was
Court
News 19
remanded for hearing afresh – The amendment will not have the effect of prolongation of the trial orcomplicating the otherwise smooth flow of proceedings forcing a retreat on the steps already taken bythe Court but on the other hand it would help avoid multiplicity of judicial proceedings facilitating all thedisputes between the parties being decided finally – Held, there is no illegality in the impugned order ofthe trial Court in allowing the amendment of written statement introducing the counter claim.
(B.K.Nayak, J.)
M/S. VINAYAK AGRO INDUSTRY, RKL, BISRA -V-COMMISSIONEROF COMMERCIAL TAXES, ORISSA & ORS.W.P.(C) NO.25628 OF 2011 (Dt. 24.10.2011)
ORISSA VALUE ADDED TAX ACT, 2004 – S.74 (5).
Imposition of Penalty – Conditions – Only after giving the driver or the person-in-charge of the goodsa reasonable opportunity of being heard and holding such enquiry as may deem fit and further after beingsatisfied that any of the two conditions i.e. violation of provisions or submission of false or forgeddocuments or way bills either covering entire goods or part of the goods carried in the vehicle, theprescribed authority may impose penalty – Imposition of penalty can not be sustained unless it is clearlyshown that any of the conditions prescribed in Sub-Section (5) of Section 75 is satisfied – Held, suchpower not to be exercised on suspicion or doubt – In case of imposition of penalty tax to be determinedfirst otherwise no penalty can be quantified.
(V.Gopala Gowda, C.J. & B.N.Mahapatra, J.)
PRASKA LAKU -V- STATE OF ORISSA.JCRA. NO.70 OF 2000 (Dt.25.10.2011).
EVIDENCE ACT, 1872 – S.24.
Appellant not only made extrajudicial confession before P.Ws. 1 & 2 but also led to recover theweapon of offence while in police custody – Held, prosecution has proved the allegation made against theappellant through direct evidence of P.W.6 and circumstantial evidence of recovery of weapons of offenceat the instance of the appellant while in police custody.
( L.Mohapatra, J & B.K.Patel, J.)
MANORAMA NATH -V- UNION OF INDIA.F.A.O. NO.427 OF 2006 (Dt.25.10.2011)
RAILWAYS ACT, 1989 – Ss.123 (c) (2), 124-A.
Untoward incident – Scope of – Husband of the appellant died due to electrocution having comein contact with an electric pole inside the railway platform – Held, it can be construed to be an untowardincident U/s. 123 ((c) (2) of the Railways Act, though technically the deceased did not meet his deathdue to accidental falling from a train carrying passengers.
Held, impugned award passed by the learned Tribunal is set aside – Direction issued to therespondent-railways to pay compensation of Rs.4,00,000/- as per the schedule in the Railway Accidentsand untoward incidents (Compensation) Rules, 1990.
(M.M.Das, J.)
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A. CHAIN PATRA & ANR.-V- UNION OF INDIA.FAO NO. 138 OF 2009 (Dt. 27.10.2011)
RAILWAYS ACT, 1989 – S.123(c) (2), 124-A.
Compensation for untoward incident – Oral evidence given by appellant No.2 that he purchased aticket for his deceased brother for traveling in the train from Bhubaneswar to Berhampur and his brotherboarded the said train having not been controverted in any manner by the Railways, the learned Tribunalhas erred in law in disbelieving the said statement given on Oath – The above statement got corroborationfrom the investigation report of the GRP produced before the Tribunal.
Held, the incident is clearly an untoward incident and the appellants-claimants are entitled tocompensation.
(M.M.Das, J.)
KISHORE BHOI -V- STATE OF ORISSA.CRLREV NO.287 OF 2002 (Dt. 27.10.2011)
CRIMINAL PROCEDURE CODE, 1973 – S.154.
Delay in lodging F.I.R. – Offence U/s. 436 I.P.C – Five days delay remained unexplained – Houseof P.W.1 is alleged to have burnt but F.I.R. is silent regarding her presence at the spot – P.W.2 theinformant deposed that she does not know how the house was burnt and she cannot say who set fireto their house – Evidence of P.W.2 is not only inconsistent but also prevaricating – Both the Courts belowhave failed to take note of such infirmities – Held, impugned judgments passed by the learned Courtsbelow are set aside.
(B.K.Patel, J.)
DEEPAK FERTILIZERS & PETROCHEMICALS CORPN. LTD. -V- PARADIP PORT TRUST.W.P.(C ) NO.16172 OF 2008 (Dt. 29. 10. 2011)
CONSTITUTION OF INDIA, 1950 – ART.226.
Decision taken by an authority contrary to the judgment of a Court, under which the authority isbound, is a nullity in the eye of law.
In this case PPT allotted Ac.39 acres of Port land in favour of the petitioner in a tender process– Subsequently PPT passed a resolution and consequential order cancelling such allotment – Actionchallenged in writ petition and direction issued to P.P.T. – P.P.T. has not passed the order in pursuanceof such direction – Held, impugned resolution and the consequential order are set aside – Direction issuedto P.P.T. to take a fresh decision in terms of the direction issued by this Court in the writ petition.
(B.P.Das, J & Sanju Panda, J.)
HIRAN RANA -V- STATE OF ORISSAJCRA NO.188 OF 2000 (Dt.31.10.2011)
PENAL CODE, 1860 – S.84.
Plea of Insanity – Evidence of P.Ws.1,2,3 & 8 shows that some days prior to the occurrence andon the date of occurrence the appellant had developed insanity and his behaviour was abnormal – After
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the occurrence he did not try to run away from the place or did not make any attempt to conceal theweapon of offence – For the last 15 days he was neither taking food nor taking his sleep and his fatherwas suffering from insanity – Held, the appellant is entitled to the benefit U/s.84 IPC.
(L.Mohapatra, J & B.K.Patel, J.)
SIMANCHAL BEHERA @ KUNA @ ROWDY -V- STATE OF ORISSA.CRLMC. NO.3673 OF 2011 (Dt. 31.10.2011)
A. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) ACT, 2000 – S.2(I).
“Juvenile in conflict with law” – A person who has not completed 18 years of age as on the dateof commission of the alleged offence, will be considered to be a juvenile in conflict with law.
B. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN ) ACT, 2000) – S.7-A.
Claim of juvenility – Proviso to Section 7-A stipulates that a claim of juvenility may be raised beforeany Court and it shall be recognized at any stage, even after final disposal of the case and such claimshall be determined in terms of the provisions contained in the Act and the Rules made there under, evenif the juvenile has ceased to be so on or before the date of commencement of the Act.
C. JUVENILE JUSTICE (CARE & PROTECTION OF CHILDREN) RULES, RULE 12.
Rule 12 (3) stipulates the procedure to conduct the enquiry by the Court or the Board, Sub-rule (3)(a) of Rule 12 further prescribes the nature of documents which can be taken as evidence for determinationof the date of birth – Sub-rule (3) (b) provides that in the absence of such evidence, the medical opinionwill be sought for from a duly constituted medical board which will declare the age of the juvenile or child– In case the exact assessment of the age can not be done, the Court for the reasons to be recordedby it may, if considered necessary, give benefit to the child or juvenile by considering his/her age on loweraside within the margin of one year.
In this case the nature of evidence adduced by the petitioner does not come under Sub-rule (3) (a)of Rule 12 – Held, it was incumbent upon the learned SDJM to send the petitioner for medical opinionof a duly constituted medical board.
(M. M. Das, J.)
SK. SAMSUR & ORS. -V- STATE OF ORISSA & ORS.W.P.(C) NO.8140 OF 2011 (Dt.01.11.2011)
WAKF ACT, 1995 – S.99.
Appointment of Administrator – It must be for a specific period of six months unless the same isextended by the State Government U/s.99 (3) (a) of the Act after expiry of the initial period of six months.
There is no provision that the members of the Board which was constituted for a term of five yearsshall continue till the election is held and new Board is reconstituted – So the State Government haspower to appoint an Administrator to the Wakf Board U/s. 99 (1) & (2) of the Act to see that theadministrator and functioning of the Board is carried on till the Board is reconstituted U/s. 13 & 14 of theAct.
In the present case the appointment of Administrator is beyond the period of six months and thereis no order of extension after expiry of six months from the date of appointment – Held, impugnednotification appointing O.P.2 as Administrator is liable to be quashed.
( V.Gopala Gowda, CJ & B.N.Mahapatra, J.)
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ASHOK KUMAR MISHRA -V- STATE OF ORISSA & ORS.W.P.(C) NO.18599 OF 2011 (Dt. 01.11.2011)
(A) EDUCATION – Admission to Ist year MBBS Course – Information Brochure published by OrissaJEE 2011 – Clause-4.2 of the Information Brochure prescribed the lower age of 17 years and upper ageof 25 years – Petitioner’s application accepted and in the entrance test he became a rank holder in themerit list but he was debarred to participate in the counselling as his age found to be more than 25years – Hence the writ petition.
In order to maintain quality education MCI as well as the State Government can prescribe minimumeligibility criteria for regulating admission to medical colleges.
In the present case although the MCI under its Regulation has not prescribed any upper age limitof 25 years, the minimum eligibility criteria fixed by the Orissa JEE, 2011 under Clause 4.2 of theInformation brochure for regulating admission to MBBS course in the state cannot be said to impinge oradversely affect the norms prescribed by the MCI – Held, no illegality can be said to have been committedby the Orissa JEE in prescribing the upper age limit of 25 years as the minimum eligibility criteria foradmission to Ist year MBBS course and the impugned Clause 4.2 of the Information Brochure does notsuffer from any infirmity.
(B) EVIDENCE ACT, 1872– S.115.
Estopel – Petitioner at the time of filling up the application form for appearing in the Orissa JEE-2011 was fully aware of the minimum eligibility criteria i.e the lower age of 17 years and the upper agelimit of 25 years prescribed under Clause 4.2 of the Information Brochure for admission to Ist year MBBSCourse – Wrongly allowing the petitioner to appear in the entrance examination, in spite of the fact thathe was over age, which is admittedly a mistake of fact, cannot give any legal right to the petitioner toclaim admission to the MBBS Course in violation of the norms prescribed – Held, the petitionercan not be permitted to take the plea of estoppel and seek admission as of right.
(S.C.Parija, J.)
KUNI PALAI -V- SUB-COLLECTOR, PURI & ORS.W.P.(C) NO.4715 OF 2010 (Dt.01.11.2011)
SERVICE – Anganwadi Worker – Applicant should be a resident of the village in which the AnganwadiCentre was proposed to be established – In order to take advantage of being a resident of the AnganwadiCentre area, the applicant must file a residential certificate along with her application on or before the lastdate of submission of application.
In this Case last date of application was 26.11.2007 – O.P.3 applied for the post but has notannexed the residential certificate - O.P.3 got married on 28.11.2007 and granted a residential certificateon 30.11.2007 and she has submitted the certificate after expiry of last date of filing of the application– Held, order of the Sub-Collector, Puri appointing O.P.3 as Anganwadi Worker is set aside and directionissued to the C.D.P.O. for appointment of the petitioner.
( S.K.Mishra, J.)
BIRANCHI DEHURY -V- STATE OF ORISSA.JCRLA NO.52 OF 2002 (Dt.02.11.2011)
PENAL CODE, 1860 – S.84.
Plea of insanity – Although such plea was not taken as a defence at the time of trial nor anyevidence led to substantiate such plea but relying on the evidence of the prosecution witnesses such pleawas developed and proved.
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P.W.3 stated in Cross-examination that for the last two years the appellant was behaving like a madperson and he was being treated at Cuttack – He used to roam here and there – P.W.4 stated that whilethey were working in the field the appellant came running towards Mamata and his sister in nakedcondition without any weapon and while attempting to molest Mamata he was protested by the deceasedand at that moment the appellant suddenly picked up the “Kanka” left by P.W.7 and assaulted thedeceased who died on the spot and the appellant remained at the spot till witnesses arrived.
Held, such conduct of the appellant prior to, at the time of and after the occurrence, satisfied therequirement that the appellant suffered from unsoundness of mind and the impugned judgment of convictionand sentence can not be sustained.
(L.Mohapatra, J & B.K.Patel, J.)
RAJESWAR THAKUR-V- STATE OF ORISSA & ORS.W.P.(C) NO.20623 OF 2011 (Dt. 04.11.2011)
TENDER – Three tenderers submitted their bids – All of them became successful in the technicalbid – In the financial bid although the petitioner offered a lowest bid instead of issuing work order in hisfavour the tender call notice was cancelled to go for fresh tender with the same estimated cost – Actionchallenged.
Project financed by the Central Government as a national importance which is to be completed bythe end of March, 2012 otherwise the State Government will have to bear the expenses of the project –Cancellation of tender by the Government on the ground that land acquisition proceeding will take anothersix to eight months to complete is not proper as Government could have invoked the power U/s. 17 ofthe Land Acquisition Act and take possession of the land under the urgency provision –Moreover petitionerunder takes not to claim extra labour charges for the machineries for the delay in land acquisition – Held,direction issued to the Opp.Parties to award the contract in favour of the petitioner by executing theagreement and issuing work order.
( V.Gopala Gowda, CJ & B.N.Mahapatra, J.)
RANGADHAR BEHERA & ORS. -V- STATE OF ORISSA.CRA. NO.223 OF 1998 (Dt.04.11.2011)
PENAL CODE, 1860 – S.34.
Appellants contend that there was no evidence to support the charge U/s.34 I.P.C. in the absenceof prior meeting of mind to assault the deceased or the appellants had decided to cause death of thedeceased at the spur of the moment.
In this case there is cogent evidence adduced by the prosecution through the mouths of P.Ws.1& 2 being supported by the evidence of the Doctor P.W. 6, who conducted Post Mortem examination –Held, the appellants had the common intention of assaulting and causing death of the deceased.
(L.Mohapatra, J & B.K.Patel, J.)
BRAJABANDHU ACHARYA & ANR.-V- STATE OF ORISSA.CRA. NOS.53, 56 OF 1999 (Dt.04.11.2011)
PENAL CODE, 1860 – S.304-B.
Dowry death – The following are required to be proved to establish an offence U/s.304-B IPC.
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1. Death of a woman is caused by any burns or bodily injury or occurs otherwise than under normalcircumstances within seven years of her marriage.
2. It is specifically shown that soon before her death, she was subjected to cruelty or harassmentby her husband or any relative of her husband in connection with any demand for dowry.
In this case this Court perused all the letters exchanged between two families but did not findallegation with regard to demand of dowry in any of the letters – So although the first ingredient has beenproved by the prosecution that the death of the deceased occurred otherwise than under normalcircumstances within seven years of marriage, the second requirement has not been proved – Held,prosecution failed to prove the charges levelled against the appellants and this Court set aside theimpugned judgment and acquit the appellants.
(L.Mohapatra, J & B.K.Patel, J.)
JATINDRA PRASAD DAS -V- STATE OF ORISSA & ORS.W.P.(C) NO.21449 OF 2011 (Dt. 15.11.2011)
CONSTITUTION OF INDIA, 1950 – ART.311.
Seniority – Rule 17 of the Orissa Superior Judicial Service Rules, 1963 – Seniority to be countedfrom the date of initial appointment and not from the date of confirmation.
Petitioner claims seniority over O.P.3 & 4 – Service rendered by the petitioner in the Fast TrackCourt as Addl. Dist. Judge was not taken into consideration while fixing his seniority – Held, directionissued to O.P.2 to treat the period of service rendered by the petitioner in the Fast Track Court for thepurpose of his seniority from the date of his appointment and refix his seniority in terms of the observationmade in the judgment.
(V.Gopala Gowda, CJ & H.S.Bhalla, J.)
BUDHUNI DEHURY & ANR. -V- STATE OF ORISSA.JCRA. NO.70 & 71 OF 2001 (Dt.15.11.2011)
EVIDENCE ACT, 1872 – S.8.
Motive – Prosecution adduced direct evidence against the appellants for murder of the deceased– Such evidence corroborated not only by unimpeachable medical evidence but also by the circumstanceof extra-judicial confession made by the appellants – Held, in this case absence of proof of motive is oflittle relevance.
( L.Mohapatra, J & B.K.Patel, J.)
KANDA @ AJEN MURMU -V- STATE OF ORISSA.JCRA. NO.99 OF 2001 (Dt.15.11.2011)
PENAL CODE, 1860 – S.304, PART-II.
Appellant shot two arrows from a distance in complete darkness – Eyewitnesses deposed that theoccurrence took place in a dark night – It can not be said that the appellant intended to cause injury onany vital part of the body of the deceased though he had knowledge that the injuries that may be causedby arrow may result in death – Held, conviction of the appellant U/s. 302 IPC is converted to Section 304Part-II IPC.
(L.Mohapatra, J & B.K.Patel, J,)
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JOGENDRA JENA & ANR.-V- KRUSHNA JENA & ANR.W.P.(C) NO.11415 OF 2010 (Dt.15.11.2011)
OCH & PFL ACT, 1972 – S.35 (2).
Transfer of land by O.P.1 on 6.9.1985 in favour of the petitioners – After 25 years O.P.1 filed petitionU/s.35 (2) of the OCH & PFL Act, 1972 before the Collector, Bhadrak for eviction of the petitioners –Application allowed – Hence the writ petition.
The basic object of prohibition of transfer of a fragment of land in the Act is to prevent fragmentationof consolidable lands, which is the main object of the Act – Such a prohibition of transfer is not intendedto protect any class of persons, which is considered to be incapable of taking care of their own property– On the other hand law of limitation requires that the parties should be vigilant to protect their right andthat they should not sleep over the matter indefinitely – Held, since initial starting point of limitation shallbe the date of execution of the sale deed the petition filed by O.P.1 before the Collector is hopelesslybarred by limitation – Impugned order is quashed.
(S.K.Mishra, J.)
HARI HARIJAN -V- STATE OF ORISSA.CRLA NO.275 OF 2009 (Dt. 15.11.2011)
A. EVIDENCE ACT, 1872 – Ss. 27, 114-A.
Disclosure statement of the appellant about recovery of gold ornaments – P.W.9 deposed that theI.O. produced the seized gold ornaments before him on 4.3.2005 which he handed over to the Court Sub-Inspector (CSI) around 11.30 AM to arrange for matching articles and the CSI returned him at 4 PM andhe conducted TI Parade of the ornaments after 4 PM – P.W.9 stated that the identifying witnesses werein Court premises on 4.3.2005 around noon and the T.I. Parade of seized ornaments conducted after 4PM so possibility of the identifying witnesses seeing the alleged stolen properties can not be ruled out– Held, evidence of P.Ws.2,3 & 9 with regard to the identification of the stolen properties can not bebelieved and recovery of gold ornaments pursuant to the disclosure statement of the present appellant andthe presumption which has been drawn U/s.114-A can not stand to judicial scrutiny.
B. EVIDENCE ACT, 1872 – S.9.
T.I. Parade – F.I.R. which was lodged immediately after the occurrence discloses that the dacoitscovered their faces with towel and muffler – So the evidence of P.Ws. 2 & 3 that they could see the dacoitsbecomes a myth – Evidence of P.W.9, the Magistrate shows that he conducted T.I. Parade at NawarangpurSub-Jail on 3.3.2005 where P.Ws. 2 & 3 identified the present appellant and another but in the other handevidence of P.W.2 discloses that much prior to T.I. Parade Trinath Amanatya and some other dacoits wereshown to her in the police lock up – Held, the T.I. Parade conducted by P.W.9 looses its significanceand evidentiary value - There is no direct evidence on record to show the involvement of the presentappellant in the dacoity allegedly committed in the house of P.W.1 on the night of 7.2.2005 – Held, theappellant can not be held guilty U/s.395 I.P.C.
(B.K.Misra, J.)
M/S. PREM KUMAR & CO. -V-GENERAL MANAGER, BBSR & ORS.W.P.(C) NOS.1993 & 1994 OF 2010 (Dt. 16.11.2010)
(A) ORISSA VALUE ADDED TAX ACT, 2004 – S.54.
Tax deduction at source – Not to be made from the payments made to “transport contractor”.
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(B) ORISSA VALUE ADDED TAX ACT, 2004 - S.2 (57)
The activities carried on by a “transporter” “Carrier” or “transporting agent” are different and distinctfrom the activities carried on by a “works Contractor” – Ownership of the materials required to betransported remains with the railways – At no point of time, such ownership is transferred or conferredon the petitioner – Consequently the element of sale is absent in the present case.
(V.Gopala Gowda, CJ & B.N.Mahapatra, J.)
GOBIND CHANDRA ROUT & ORS. -V- STATE OF ORISSA & ORS.W.P.(C) NO.16400 OF 2011 (Dt.16.11.2011)
CONSTITUTION OF INDIA, 1950 – ART.226.
Public Interest Litigation (PIL) – Main intention of PIL is to vindicate public interest and to helpthe poor, ignorant and socially or economically disadvantaged persons whose fundamental and other rightsare affected and they are unable to seek legal redress – PIL can also be extended for air pollution andsexual harassment cases.
In this case there was litigation between the petitioners and IDCO with G.A. Department for a pieceof land belonging to the G.A. Department and IDCO which was allotted in favour of O.P. 9,10 &13 – Thiswrit petition was filed by the petitioners to achieve what they could not do in the Civil Court – Held,petitioners have not come up before this Court with clean hands and the action of the petitioners is a clearabuse of the process of the Court for private gain – Neither the petitioners nor the interveners have locusstandi to challenge the allotment.
(B.P.Das, J. & S.K.Mishra, J.)
NIRANJAN BEHERA -V- STATE OF ORISSA & ANR.CRL.REV. NO.76 OF 2011 (Dt 16.11.2011)
ESSENTIAL COMMODITIES ACT, 1955 – S.7.
Seizure of P.D.S. wheat – Police Officers not below the rank of Inspector have been authorized bythe Govt. to exercise the power like the Licensing Authority under Clause 23 of P. D.S. (Control) Order2008 – S.I. of Police, Bhadrak (Rural) P.S. who searched and seized the truck and the P.D.S. wheat beingbelow the rank of Inspector had no authority to do so – Held, the seizure being illegal, the order ofcognizance taken under Section 7 of the E.C. Act can not stand the scrutiny of law.
(R.N.Biswal, J. )
BIJAYA KUMAR SAHOO -V- STATE OF ORISSA.WPCRL. NO.1081 OF 2001 (Dt. 16.11.2011).
PREVENTION OF CORRUPTION ACT, 1988 – S.5 (6).
Conviction of the petitioner U/s. 13 (2) and 13(1) (e) P.C. Act by the Special Judge (Vig.), Bhubaneswar– Petitioner filed appeal in this Court which is subjudice – Inspector Vigilance filed petition U/s.3 of theCriminal Law (Amendment) Ordinance 1944 before the Special Judge which was registered as Misc. CaseNo.3 of 2011 to attach the property of the petitioners till disposal of the appeal – Learned Special Judge(Vigilance) issued notice to the petitioner and his wife to file show cause – Hence this writ petition toquash the entire proceeding in M.C. No.3 of 2011.
Section 5 (6) of the P.C. Act lays down that the Special Judge (Vigilance) while trying an offencepunishable under the P.C. Act shall exercise all the powers and functions exercisable by a District Judge
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under the Ordinance, 1944 – In the present case after pronouncement of the judgment learned SpecialJudge (Vigilance) became functus officio and as such can not deal with the petition filed U/s. 3 of theOrdinance, 1944 – Held, entire proceeding in Misc. Case No.3 of 2011 before the learned Special Judge(Vigilance) Bhubaneswar is quashed.
(R.N.Biswal, J.)
ATMARAM SAHU & ANR. -V- STATE OF ORISSA.CRLA.307/2004, GCRLA 35/07 & CRLREV. NO.543 OF 2007 (Dt. 18.11.2011)
(A) PENAL CODE, 1860 – S.304-B.
Cruelty or harassment conceived of in Section 304-B could be not only by the husband of thedeceased but also by any relative of the husband.
In the present case there is no evidence regarding any demand of dowry or harassment by accusedAtmaram, husband of the deceased but the demand of dowry made by the father of Atmaram – Held,accused Atmaram is guilty of an offence U/s.304-B I.P.C.
(B) INDIAN PENAL CODE, 1860 – S.304-B
Dowry death – The term “soon before” in Section 304-B I.P.C. has not been statutorily designedand it would depend upon the circumstances of each case and no strait-jacket formula has been laid downas to what would constitute a period “soon before” the occurrence – Held, there must be existence of a“Proximate and live link” between the effect of cruelty based on dowry demand and concerned death.
(C) CRIMINAL TRIAL –Trial Court held the death was homicidal and not due to suicidal hanging on the ground that the
deceased being a literate person should have left behind a fare well note ascribing reasons for taking suchextreme step and why the deceased did not commit suicide by jumping into the well located near thebath room which are purely presumptive in nature and based on conjecture and surmises – In the otherhand the evidence of the I.O. coupled with the seizure of steel pipe and a saree allegedly used in courseof suicidal hanging clearly establish that the death of the deceased was not homicidal but due toantemortem hanging – Held, no amount of hypothesis or guess work is permissible in course of aCriminal trial – Appellant-Atmaram is acquitted of the offence U/s.302 I.P.C.
(Indrajit Mahanty, J & H.S.Bhalla, J.)
MATANGINI ROUT @ GIRI -V- STATE OF ORISSA & ORS.W.P.(C) NO. 8277 OF 2010 (Dt.18.11. 2011)
EDUCATION – Anganwadi worker – Minimum qualification is matriculation from Board of SecondaryEducation (B.S.E) Orissa – Petitioner claims that she passed “Prathama” from Hindi Sahitya SammelanAllahabad which is equivalent to Matriculation – B.S.E., Orissa did not declare “Prathama” as equivalentto matriculation – Government letter Dt.8.9.1994 with reference to letter No.2318 EYS Dt.23.2.1981declaring Prathama as equivalent to matriculation are declared to be fake and forged papers.
Held, ‘Prathama’ qualification from Hindi Sahitya Sammelan Allahabad is not equivalent to matriculationfrom Board of Secondary Education, Orissa.
(Aruna Suresh, J.)
XAVIER’S INSTITUTE OF MANAGEMENT -V- STATE OF ORISSA & ORS.W.P.(C) NO.2467 OF 2011 (Dt. 24.11.2011).
A. INCOME TAX ACT, 1961 - S.10 (23-C) (vi).
The word “solely” means exclusively – The expression “solely” makes it clear that only the income
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of the institution established solely for educational purposes and not for commercial activities is entitledfor exemption – In deciding the character of the recipient of the income, it is necessary to consider thenature of the activities undertaken – If the activity has no co-relation to education, exemption has to bedenied – The recipient of the income must have the character of an educational institution to be ascertainedfrom its objects.
B. INCOME TAX ACT, 1961 – S.10 (23-C) (vi).
In order to be eligible for exemption U/s.10 (23 C) (vi) of the I. T. Act, the following conditions areto be satisfied –
(i) there must be an educational institution,(ii) such University or other educational institution must exist solely for educational purposes,(iii) it should not exist for the purposes of profit and(iv) approval by the prescribed authority.
(V.Gopala Gowda, CJ & B.N.Mahapatra, J.)
STATE OF ORISSA -V- TARUN KHAMARIW.P.(C) NO. 7611 OF 2007 (Dt. 24.11.2011)
ORISSA FOREST ACT, 1972 – S.56(2-c).
When owner of the vehicle proves to the satisfaction of the Authorized Officer that the vehicle wasused without his knowledge or connivance or knowledge of his agent and he had taken all reasonable andnecessary precaution against such illegal use the Authorized Officer may not pass the order of confiscation.
In the present case the owner had no knowledge about the use of the vehicle for commission ofthe forest offence and the driver being the agent of the owner had not loaded the wooden planks on thevehicle deliberately but he was forced to do so under threat – Moreover had the driver been involved incommission of the forest offence, he would not have intentionally dashed the vehicle against a tree to stopthe vehicle – Held, no justification to interfere with the appellate order setting aside the order of confiscationpassed by the Authorized Officer.
( L.Mohapatra, J & B.K.Patel, J.)
SUKANTA KUMAR JENA -V- STATE OF ORISSA & ANR.W.P.(C) NO.405 OF 2006 (Dt.24.11.2011)
ORISSA FOREST (DETECTION, ENQUIRY & DISPOSAL OF FOREST OFFENCE)
RULES, 1980 – RULE 4.
Vehicle seized while carrying Sal & Kurum planks – Confiscation of the vehicle and the planksU/s. 56 of the Orissa Forest Act.
Rule-4 of 1980 Rules mandates that the inquiry into the forest offence shall be held by an officernot below the rank of a Range officer.
In this case nothing has been placed before the Authorized Officer to show that an officer in therank of Range officer had conducted any inquiry – Non compliance of the statutory requirement –Held,Order for confiscation of the vehicle is set aside and on production of documents relating to procurementof seized timber the Authorized officer may release the seized timer along with the vehicle in favour ofthe petitioner.
( L.Mohapatra, J & B.K.Patel, J.)
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SUKANTI PATTNAIK -V- SAILENDRA NARAYAN SINGH & ORS.W.P. (C) NO.26831 OF 2011 (Dt. 24.11.2011)
A. CIVIL PROCEDURE CODE, 1908 – ORDER 6, RULE 17.
Amendment of plaint – Suit pending for more than 32 years – Evidence not yet adduced in the suit– After Hal settlement and publication of Hal record of right petition for amendment was filed to incorporatethem in the description of the property of the plaint –If the amendment will be allowed it will not changethe nature and character of the suit rather it will facilitate the Court to arrive at a just decision in the case– Held, application for amendment is allowed subject to payment of cost of Rs.10,000/- to the Opp.Parties.
B. CIVIL PROCEDURE CODE, 1908 – ORDER 6, RULE 17.
Amendment of pleadings – While dealing with an application under Order 6 Rule 17 C.P.C. the Courthas to bear in mind the following points namely :-
(i) Whether the amendment sought is imperative for proper and effective adjudication of the case ?(ii) Whether the application for amendment is bona fide or mala fide ?(iii) The amendment should not cause such prejudice to the other side which can not be compensated
adequately in terms of money;(iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation;(v) Whether the proposed amendment constitutionally or fundamentally changes the nature and
character of the case ? and
As a general rule, the court should decline amendments if a fresh suit on the amended claims wouldbe barred by limitation on the date of application.
(B.K.Misra, J.)
APARUP MOHAN DAS (DEAD) & AFTER HIM SURANDAN DAS & ORS. -V-STATE OF ORISSA & ORS.
W.P.(C) NO.189 OF 2002 (Dt. 25.11.2011)
CONSTITUTION OF INDIA, 1950 – ART. 311.
Compulsory retirement – Petitioner has not been communicated with any adverse remark – C.C.R.records produced before the Court shows that the petitioner had been awarded with good and very goodremarks – The impugned order based upon the decision of the Review Committee and the materialparticulars basing upon which they came to a conclusion that the petitioner’s integrity is doubtful – Reportof the review committee is an out come of non-application of mind as well as want of material particulars– Held, impugned order is quashed - Petitioner is entitled to get all arrear salary from the date of suchorder till he would have retired on superannuation - Since the petitioner died during the pendency of thewrit petition the arrear-dues be paid to his legal heirs.
(B.P.Das, J & S.K.Mishra, J.)
CHOUDHURY JIBITESH PRADHAN & ORS. -V-COUNCIL OFHIGHER SECONDARY EDUCATION, ORISSA & ANR.
W.P.(C) NO.18042 OF 2011 (Dt. 25.11.2011)
EXAMINATION – Mass malpractice – Special report submitted by Flying Squad that all the staffincluding the Centre Superintendent were involved in aiding and assisting the students in resorting tomalpractice and the situation in the College campus was chaotic – C.H.S.E. issued notification of
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18.05.2011 cancelling the Ist sitting examination in English held on 15.03.2011 in Panchayat SamitiCollege, Saharapada by awarding ‘O’ marks – Action challenged.
This Court is conscious of the deterioration in the standard of discipline of academic institutionsand did not like to substitute its own opinion in place of the opinion expressed by the authorities cancellingthe whole examination, even at the cost of sufferings of a few in the larger interest of the society.
Held, there is no illegality or impropriety in the decision of the C.H.S.E. in issuing the impugnednotification Dt.18.5.2011.
(S.C.Parija, J.)
NAGESH KHILLO -V- STATE OF ORISSAJCRA NO. 96 OF 2001 (Dt.29.11.2011).
PENAL CODE, 1860 – S.84.
Appellant in his statement recorded U/s. 313 Cr.P.C. had taken a plea that he had becometemporarily insane at the time of occurrence – No evidence led on behalf of the appellant in support ofsuch plea – Appellant though examined himself as defence witness there was nothing to suggest fromhis deposition that he was temporarily insane at the time of occurrence – Except suggestions made tosome villagers in their Cross-examination there is no other evidence on the basis of which it can be heldthat the appellant was temporarily insane at the time of occurrence – Held, plea of the appellant that hewas temporarily insane is not accepted.
(L.Mohapatra, J & B.K.Patel, J.)
BIMAVIHAR DUPLEX HOUSE OWNERS’ WELFARE SOCIETY -V-CHAIRMAN, LIC. LTD. & ORS.W.P.(C) NO.882 OF 2009 (Dt.30.11.2011)
LEASE – Land belongs to Revenue Department who leased out the same in favour of C.D.A. –C.D.A. in turn leased out the said land in favour of LIC for construction of Duplex Houses for the policyholders – LIC allotted the said land to the policy holders and issued notice to execute sub lease deed– Clause 6 of the Sub-lease puts restriction for the purchasers to sub let – Hence this writ petition filedby the members of the petitioner society challenging the above clause as arbitrary.
In this writ petition purchasers of the buildings or allottees of the plots become the ultimateindividual allottees and they acquire a heritable and transferable right – The individual allottee of the landor allottees of the building directly made by the C.D.A. or through LIC can mortgage or transfer theirproperty subject to permission of CDA - Held, there shall not be any restriction to let out the buildingin question on rent for the purpose for which it is constructed and the lease has been granted – Moreoverright of renewal of the property always remains with the allottee and the lease holder, but the lessees haveto pay the fees as applicable to them for the land only.
(B.P.Das, J & B.K.Nayak, J.)
MANOJ KUMAR PATI -V- STATE BANK OF INDIA & ORS.O.J.C. NO.12217 OF 2001 (Dt.01.12.2011)
SERVICE LAW – General principle regarding resignation is that in the absence of a legal, contractualor constitutional bar a prospective resignation can be with drawn at any time before it becomes effective.
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In this case the petitioner was promoted to officer’s grade on 28.08.1998 w.e.f. 01.08.1997 – Hemade a representation on 07.101998 to forgo promotion – Though on record the Bank might have takena decision to accept the representation Dt.07.10.1998 it was never communicated to the petitioneralthough the petitioner joined the promotional post on 18.01.1999 and continued to receive salary in thispromotional post till he was reverted to the post of Head Assistant in April 1999.
Held, direction issued to the Bank to permit the petitioner to continue in the promotional post fromthe date he was reverted to the post of Head Assistant.
(L.Mohapatra, J & B.K.Misra, J.)
M/S. BHUSHAN POWER & STEEL LTD.-V- STATE OF ORISSA & ORS.W.P.(C) NO.27427 OF 2011 (Dt. 02.12.2011)
A. ORISSA VAT ACT, 2004 – S.42.
Audit assessment – Rule 12 (3) of the C.S.T. (O) Rules 1957 – Audit assessment has to becompleted on the basis of the materials available in the audit visit report – The assessing authority cannot travel beyond the materials available in the audit report – Utilization of any other materials from anyother sources in audit assessment is completely foreign to audit assessment.
B. ORISSA VAT ACT, 2004 –Ss. 42,43.
Audit assessment under Rule 12 (3) of C.S.T. (O) Rules read with Section 42 of OVAT Act andescaped assessment under Rule 12 (4) of the C.S.T. (O) Rules read with Section 43 of OVAT Act areseparate and distinct – In the Case of audit assessment the maximum period of limitation is one yearbut in the Case of assessment of turn over escaping assessment the period of limitation is 5 years – held,the period of 5 years as provided under the statute for completing assessment of escaped turn over cannot be restricted to one year as provided in Case of audit assessment.
C. PRINCIPLES OF NATURAL JUSTICE –
Copy of the report – The assessee/dealer has a right to receive a copy of the report submittedagainst him – He has also a right to avail a fair opportunity to meet, explain and controvert such allegationbefore he is condemned.
D. CENTRAL SALES TAX ACT, 1956 – S.6 (2).
While examining the transaction of stock transfer, the Assessing authority is required to examineeach and every transaction to find out the genuineness of the claim.
(V.Gopala Gowda, CJ & B.N.Mahapatra, J.)
KALANDI RANA -V- SRI SRI BIRAJA THAKURANI, JAJPUR.W.P.(C) NO.25961 OF 2011 (Dt 02.12.2011)
CIVIL PROCEDURE CODE, 1908 – ORDER 6, RULE 17.
Amendment of written statement at appellate stage – Defendant seeks to introduce new factsthrough the proposed amendment of his pleadings which is entirely inconsistent with the written statementhe filed in the Court below and if the proposed amendment would be allowed virtually, it will introduce newfacts and would change the nature and character of the pleadings – Held, there is no illegality in theimpugned order rejecting the prayer for amendment of the written statement.
(B.K.Misra, J.)
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JUGAL KISHORE NAYAK -V- STATE OF ORISSA & ORS.W.P.(C) NO.1065 OF 2009 (Dt. 06.12.2011).
Service – Regularization – Petitioner was working as N.M.R. Store Assistant – His prayer forregularization was rejected although services of his juniors have been regularized – Petitioner fulfills allthe criteria and conditions for the purpose – Although the petitioner was discharging the duty of a StoreAssistant it can not be said that he ceases to be an NMR – Plea of the state that it had already prepareda scheme for absorption for daily wagers, NMRs and work-charge employees – Held, since the schemecovers the NMR employees including the present petitioner the impugned order passed by the Tribunalis set aside – Direction issued to the State Govt. to regularize the service of the petitioner placing himabove his juniors.
(B.P.Das, J & B.K.Nayak, J.)
RAJU @ RAJENDRA KUMAR SAHU -V- STATE OF ORISSA.JCRA. NO.47 0F 2002 (Dt.07.12.2011)
PENAL CODE, 1860 – S.302, 304-I.
Evidence of P.W.4 shows that there was a quarrel between the appellant and the deceased in themorning, in the afternoon and again at 9 P.M. and the deceased abused the appellant at random –Thereafter the appellant ran towards the deceased with a knife and stabbed him – Provocation started fromthe side of the deceased for which the appellant lost the power of self control and stabbed the deceased.
Held, this is a fit case where Exception-1 of Section 300 I.P.C. should apply and the appellantshould have been convicted for commission of offence U/s. 304 Part-I I.P.C. instead of the offence U/s.302I.P.C.
(L.Mohapatra, J & B.K.Patel, J.)
TULSI PRASAD AGARWALA -V- NARAYAN DAS & ANR.M.A. NO. 698 OF 2000 (Dt.9.12.2011)
MOTOR VEHICLE ACT, 1988 – S.166.
Compensation – Injured claimant – Tribunal should not have brushed aside that the claimant is anIncome Tax assessee – Tribunal should have taken into consideration the income of the injured whileassessing the quantum of compensation – Tribunal should not have refused claim towards attendantcharges – Held, compensation be awarded to the claimant towards shortening of leg, conveyance,attendant charges, medical expenses, loss of amenity, loss of earning capacity and physiotherapy expenses.
(V. Gopala Gowda, CJ.)
AMIT TOPPO -V- NONEF.A.O. NO.184 OF 2011 (Dt. 12.12.2011)
NATIONAL TRUST FOR WELFARE OF PERSONS WITH AUTISM, CEREBRAL PALSY,
MENTAL RETARDATION & MULTIPLE DISABILITIES ACT, 1999 – S.14.
A parent of a person with disability or his relative may make an application u/s.14 of the 1999 Actfor appointment of any person of his choice to act as a guardian of the person with disability.
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In the present Case one Deepak Toppo is a mentally ill person – Both of his parents expired – Heis maintained under the Care and Custody of the appellant – The appellant filed an application U/ss 52& 53 of the Mental Heath Act, 1987 for being appointed as guardian of the person and property of thesaid Deepak Toppo – The said application was dismissed by the learned Civil Judge (Sr.Divn.) Rourkala– Hence this appeal.
Held, learned Civil Judge (Sr.Divn.) has rightly dismissed the application filed under the MentalHealth Act, 1987 – Liberty granted by this Court to the appellant to file appropriate application u/s.14 ofthe 1999 Act.
(M.M.Das, J.)
ORISSA RURAL HOUSING DEVELOPMENT CORPN. LTD. -V-THE ASST. COMMNR.OF INCOME TAX, BBSR.
W.P.(C) NO.4554 OF 2011 (Dt.15.12.2011)
A. INCOME TAX DACT, 1961 – S.139 (5).
Revised return – An assessee has a right to file revised return to correct bonafide mistake, omissionor wrong statement in the original return – Held, Assessing Officer has no power to entertain fresh claimafter filing of original return except a revised return.
B. INCOME TAX ACT, 1961 – S. 139 (5).
Distinction between revised return and correction in the originally filed return – If an assessee filesan application for correcting a return already filed or for making some amendments there in it would notcertainly mean that he has filed a revised return.
C. INCOME TAX ACT, 1961 – S.142 (1), 143(2).
Purpose of service of notices U/s.142 (1) and 143 (2) is different – Nothing to say that the noticeU/s.142(1) should precede notice U/s.143(2) so far as production of documents/accounts is concerned.
D. INCOME TAX ACT, 1961 – S. 264.
Section 264 of the I T. Act is an alternative/Additional remedy available to the petitioner-assesseewho does not want to avail remedy by way of appeal.
E. CONSTITUTION OF INDIA, 1950 – ART.226, 227.
Grant of return can be allowed by an order under the statute but not in exercise of power underArticle 226 and 227 of the Constitution of India.
F. INTERPRETATION OF STATUTE – Conflict between two Central statute, Viz, Income Tax Act, 1961and National Housing Bank Act, 1987 – No provision in the later Act giving overriding effect over the IncomeTax Act.
(V.Gopala Gowda, CJ, & B.N.Mahapatra, J.)
KSHNAPRAVA MOHANTY -V- STATE OF ORISSA & ORS.W.P.(C) NO.9704 OF 2005 (Dt. 16.12.2011)
A. CONSTITUTION OF INDIA, 1950 – ART. 311.
Removal from service – Grievance of the petitioner is that she was not given opportunity of beingheard in the disciplinary proceeding – Opp.Party No.5 relies upon reports of its employees to prove thatnotices were tendered to the petitioner who denies such assertion – Institution ought to have acted in a
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transparent manner – In Case petitioner refused to receive notices, those notices should have been sentto her by registered post and basing on its own employees O.P.5 cannot urge that the petitioner was givenopportunity to submit her explanation and to participate in the proceeding.
B. CONSTITUTION OF INDIA, 1950 – ART. 226, 227.
Private educational institution receiving grant-in-aid and performing public duty by imparting educationis amenable to writ jurisdiction of this Court.
C. ORISSA EDUCATION ACT, 1969 – S.10-A.
Services of a teacher and other members of staff of an aided Educational Institution shall not beterminated without prior approval of the competent authority in writing.
In the present case no prior approval of the competent authority has been obtained for removal ofthe petitioner from service which is mandatory in nature – Held, order of removal is liable to be quashed.
(L.Mohapatra, J. & B.K.Patel, J.)
PRATIMA KUMARI DAS & ORS. -V- LAXMI KANTA SABAT & ANR.MACA NO.247 OF 2010 (Dt. 16.12.2011)
MOTOR VEHICLES ACT, 1988 – S.168.
Compensation – Death of husband at the age of 57 years while working as progressive Assistantin the office of the B.D.O. Chikiti - Tribunal determined compensation by applying 9 multiplier anddeducted 50% on the ground that his wife is getting family pension and his sons are earning by doingbusiness – Held, deduction of compensation by 50% by the Tribunal is not legally sustainable – Appellantsare entitled to get full compensation.
(B.N.Mahapatra, J.)
RATNAMANJARI SWAIN-V- RITANJALI PATTANAIK & ANR.W.P.(C) NO.7377 OF 2010 (Dt. 16.12.2011)
ORISSA CONSOLIDATION OF HOLDINGS & PREVENTION OFFRAGMENTATION OF LAND ACT, 1972 – S.4 (4).
Consolidation operation still in force in the suit village – No notification for closure of the consolidationoperation U/s.41 (1) of the Act – Learned Trial Court rightly held that in view of the amendment inConsolidation Act even a piece of home stead land comes within the purview of the consolidation operation– Held, plaintiff’s suit is not maintainable in the Civil Court being hit U/s.4 (4) of the Act.
(C.R.Dash, J.)
BAINSI MOHAKUD -V- STATE OF ORISSA.JCRLA. NO. 103 OF 2004 (Dt.19.12.2011)
EVIDENCE ACT, 1872 – S.27.
Appellant alleged to have caused murder of two persons by means of a crowbar – None of thewitnesses deposed that the Crowbar (M.O.I) was discovered at the in stance of the appellant – P.W.7stated that having seen the police he went to the house of the appellant and found the dead bodies lyingin the house with bleeding injuries and a blood stained crowbar – P.Ws.4 & 5 stated that the crowbar
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HON’BLE CHIEF JUSTICE & HON’BLE JUDGES OF ORISSA HIGH COURTPARTICIPATING PROGRAMMES/ COURSES
AT THE N.J.A., BHOPAL AND OTHER PLACES
Names of the Hon’ble Judges PeriodSl. No. Topics
1. Hon’ble Shri JusticeS.K.Mishra
Participated in the National Conference ofHigh Court Justices on ‘Law and Social
Change’ at NJA, Bhopal
5.11.2011&
6.11.2011
(M.O.I) was affixed to the roof of the house – So the alleged weapon of offence (M.O.I.) was not discoveredat the instance of the appellant – Held, the crowbar (M.O.I) having not been proved to have beendiscovered in consequence of information received from the appellant while in police custody, prosecutionis not entitled to avail any benefit U/s.27 of the Evidence Act and in that view of the matter there is nolegal evidence on record to sustain the conviction of the appellant and as such the impugned judgmentis liable to be set aside.
(L.Mohapatra, J & B.K.Patel, J.)
RANJITA KAHALI & ORS. -V- STATE OF ORISSA & ORS.W.P.(C) NO.23504 OF 2011 (With Batch) (Dt. 21.12.2011)
A. CONSTITUTION OF IDNIA, 1950 – ART.226, 227.
Vires of Orissa Co-operative Societies (Amendment) Act, 2011, specifically Sub-Section 2 (g) (i) and2 (g) (ii) of Section 28 challenged.
The Court can declare a statute to be unconstitutional on the ground of lack of legislative competenceand violation of any of the fundamental rights guaranteed in part-III of the constitution or any otherconstitutional provision – The Act can not be held to be invalid on the ground that it breaches the rightof a class of person or individuals which has been conferred by a statute.
In the present case the object of the Act is to increase the representation of the weaker sectionof the society namely, Scheduled Castes, Scheduled Tribes and other backward classes and the Act doesnot violate any of the provisions of the constitution more fully part-III of the Constitution of India.
Held, the Amendment Act is intravires but the action of O.P.2 by nominating committees of the Co-operative Societies are declared to be unsustainable – The last elected members shall officiate as officebearers and Directors of the Co-operative Societies and they shall continue to function as care takercommittee till the next election but their power shall be restricted to the extent that they can not takeany major policy decision but can induct new members without prior approval of the Registrar.
B. ORISSA CO-OPERATIVE SOCIETIES (AMENDMENT) ACT, 2011.
Sub-section 2(g)(i) and 2 (g) (ii) of Section 28 of the Orissa Co-operative Societies (Amendment)Act, 2011 – Vires of the Act challenged – Act does not violate any of the provisions of the constitutionmore fully Part-III of the Constitution of India – Held, the Amendment Act is held to be intravires and donot violate any of the provisions of the Constitution of India.
(B.P. Das, J & S.K.Mishra, J.)
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MAJOR EVENTS
1. Workshop on “Protection of Child Rights & ICPS” at Bhawanipatna.
A Regional Workshop on “Protection of Child Rights and Integrated Child Protection Scheme (ICPS) wasorganised by OSLSA in association with W & CD Deptt., Govt. of Odisha on 15.10.2011 at Bhawanipatna.The said Workshop was inaugurated by Hon’ble Mr.Justice Altamas Kabir, Judge, Supreme Court of India& Executive Chairman, National Legal Services Authority in the august presence of Mr.Naveen Patnaik,Hon’ble Chief Minister, Odisha as the Chief Guest, Hon’ble Mr.Justice V.Gopala Gowda, Chief Justice,Orissa High Court & Patron-in-Chief, OSLSA, Hon’ble Mr.Justice B.P.Das, Judge, Orissa High Court &Executive Chairman, OSLSA, Hon’ble Mr.Justice C.R.Dash, Judge, Orissa High Court, and Smt.SaraswatiHembrum, Chairperson, State Commission for Protection of Child Rights.
2. Inauguration of the Court of District & Sessions Judge at Nabarangpur.
The Court of District & Sessions Judge at Nabarangpur was inaugurated by Hon’ble Shri Justice V.GopalaGowda, Chief Justice of Orissa High Court on 22.10.2011 in presence of Hon’ble Shri Justice B.N.Mahapatra,Judge, Orissa High Court.
3. Opening of New Court Building at Rairangpur
The New Court Building at Rairangpur was inaugurated by Hon’ble Shri Justice V.Gopala Gowda, ChiefJustice of Orissa High Court on 12.11.2011 in august presence of Hon’ble Shri Justice B.P.Das and Hon’bleShri Justice S.K.Mishra, Judges of Orissa High Court.
4. Inauguration of Gram Nyayalaya at Rajnagar and Court of J.M.F.C. at Aul.
Gram Nyayalaya at Rajnagar and Court of J.M.F.C. at Aul was inaugurated by Hon’ble Shri JusticeV.Gopala Gowda, Chief Justice of Orissa High Court on 8.11.2011 in august presence of Hon’ble ShriJustice B.P.Das Judge, Orissa High Court.
5. Silver Jubilee Celebration of C.A.T., Cuttack Bench.
Silver Jubilee Celebration of Central Administrative Tribunal was Inaugurated by Hon’ble Shri Justice AltamasKabir, Judge, Supreme Court of India on 11.12.2011 in auguest presence of Hon’ble Shri Justice A.K.Ganguly,Hon’ble Shri Justice A.K. Patnaik, Hon’ble Shri Justice Dipak Misra, Judges of Supreme Court of India,Hon’ble Shri Justice V.Gopala Gowda, Chief Justice, Orissa High Court, Hon’ble Shri Justice B.P.Das,Judge, Orissa High Court, Hon’ble Shri Justice V.K.Bali, Chairman, C.A.T., Shri Ashok Parija, Chairman,Bar Council of India, Shri C.R.Mohapatra, Hon’ble Member (Admn.), C.A.T., Shri P.H. Parekh, President,Supreme Court Bar Association and Shri D.K. Behera, Secretary, C.A.T. Bar Association.
6. Golden Jubilee Celebration of Odisha State Bar Council
Odisha State Bar Council celebrates its Golden Jubilee on 5th & 6th November, 2011 at Saheed Bhawan,Cuttack. On the auspicious occasion, Hon’ble Shri Justice Altamas Kabir, Judge, Supreme Court of Indiainaugurated the programme in august presence of the Chief Guest Shri Naveen Patnaik, Hon’ble ChiefMinister of Odisha, Dr. M.Veerappa Moily, Hon’ble Union Minister, Corporate Affiars, Hon’ble Shri JusticeA.K.Patnaik, Hon’ble Shri Justice Dipak Misra, Judges of Supreme Court of India, Hon’ble Shri JusticeV.Gopala Gowda, Chief Justice, Orissa High Court, Shri Ashok K.Parija, Chairman, Bar Council of India,Shri Asok Mohanty, Advocate General, Odisha, Shri Jagannath Patnaik, Senior Advocate, Shri Gopal
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Krushna Mohanty, Chairman, Odisha State Bar Council and Shri Ramakanta Sahoo, Vice-Chairman,Odisha State Bar Council.
During the two days celebration, discussions in great details were made on the following topics :
(i) Need of Legal Reforms; the Role of Lawyers to uphold the Rule of Law.
(ii) Access to Justice and Constitutional Safeguards
(iii) Need of Reform in Legal Education
(iv) Environmental Jurisprudence
(v) Protecting Human Rights in an age of insecurity
On the above discussions, Hon’ble Shri Justice V.Gopala Gowda, Chief Justice, Orissa High Court, Hon’bleShri Justice M.B.Lokur, Chief Justice, Guwahati High Court, Hon’ble Shri Justice A.P.Mishra, Former Judge,Supreme Court of India, Hon’ble Shri Justice P.K.Misra, Former Chief Justice, Patna High Court, Hon’bleShri Justice B.P.Das, Hon’ble Shri Justice L.Mohapatra, Hon’ble Shri Justice M.M.Das, Hon’ble Shri JusticeIndrajit Mahanty, Judges of Orissa High Court, Shri D.V.Suba Rao, Former Chairman, Bar Council of Indiaand Shri Bipin Behari Ratho, Senior Advocate presided over different seminar sessions as Chair Personand Co-Chairperson. Eminent persons like Vice Chancellor of different N.L.Us., Senior Advocates of SupremeCourt of India as well as Orissa High Court and Members of Odisha State Bar Council presented their viewpoints on the above topics.
The valedictory ceremony of the celebration was held on 6.11.2011 at 5.00 P.M.. In the valedictoryceremony, Hon’ble Shri Justice P.Sathasivam, Judge, Supreme Court of India delivered valedictory addressas Chief Guest in august presence of Hon’ble Shri Justice G.B.Patnaik, Former Chief Justice of India,Hon’ble Shri Justice D.P.Mohapatra, Former Judge, Supreme Court of India, Shri Bikram Keshari Arukh,Hon’ble Law Minister, Govt. of Odisha, Shri Prafulla Ch. Ghadei, Hon’ble Finance Minister, Govt. of Odisha,Shri Ashok K.Parija, Chairman, Bar Council of India, Shri Jagannath Patnaik, Senior Advocate, Shri GopalKrushna Mohanty, Chairman, Odisha State Bar Council and Dr. Tahali Charan Mohanty, Member, OdishaState Bar Council.
–0–
ACTIVITIES OF HIGH COURT LEGAL SERVICES COMMITTEE
1. The 7th High Court Mega Lok Adalat was held on 26.11.2011 in which Hon’ble Shri Justice B.P.Das,Executive Chairman, Orissa State Legal Services Authority, Hon’ble Shri Justice L.Mohapatra, Chairman,High Court Legal Services Committee and Hon’ble Shri Justice S.C.Parija presided over the Lok Adalat Benches.In the above Lok Adalat 67 cases are disposed of which includes Motor Accident Claim Appeals and LandAcquisition cases by way of Compromise. The General Insurance Companies agreed to pay Rs. 77,06,700/-.
2. The National Legal Services Day was observed on 9.11.2011 in the New Conference Hall of the Court by theHCLS Committee in collaboration with the Orissa State Legal Services Authority & District Legal ServicesAuthority.
3. During the period under report, 36 applicants have been provided with the benefit under the scheme of Legal Aidand Advice by the High Court Legal Services Committee to file and defend their cases in the High Court.Similarly, 37 Legal Aid Counsels have been paid their honorarium dues during the month of December, 2011.
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ACTIVITIES OF ORISSA STATE LEGAL SERVICES AUTHORITY
01. Lok Adalats
During the period from October, 2011 to December, 2011, 5 State Level Lok Adalats were held, oneeach at Berhampur, Puri, Bhawanipatna, Rourkela and Cuttack on 15.10.2011, 12.11.2011, 19.11.2011,26.11.2011 and 17.12.2011 respectively, in which total 569 number of Motor Accident Claim Cases havebeen settled/disposed of on conciliation and a total sum of Rs.6,52,44,800/- has been awarded asCompensation. Besides the above, 10936 no.of other cases have also been disposed of in toto, whichconsisted of Civil- 92, Criminal-2555, Revenue-7795, Matrimonial-112, Bank-330, BSNL-42, Land AcquisitionCases-10 and a sum of Rs.4,30,793 towards Criminal fine and Rs.14,59,616/- as Revenue have beencollected in the said Lok Adalats.
Similarly, during the above quarter, 138 no.of District and Taluk Level Lok Adalats and 367 no.ofLegal Literacy/Awareness Camps have been organized by the field units. In the above District and TalukLevel Lok Adalats, in total 36,264 no.of cases have been disposed of which consisted of Civil-658,Criminal-20267, Revenue-12857, Matrimonial-39, Bank-2163, BSNL-127, Labour-129 and MACT-24. A sumof Rs.34,48,823/- towards Criminal fine and Rs.75,96,175/- as Revenue have been collected in the saidLok Adalats. Further, a sum of Rs.2,09,67,600/- has also been awarded as Compensation in the MACTcases disposed of in the said Lok Adalats.
02. Permanet Lok Adalats(for Public Utility Services(U/s.22-B of the L.S.Act)
During the period under report, 129 number of cases relating to Public Utility Services wereregistered in the Seven Permanent Lok Adalats, out of which, 83 no.of cases were settled.
03. Mediation Activities
During the above period, out of the 351 no.of referred cases, 53 no.of cases have been disposedof through mediation in the District Mediation Centres.
04. Intensive Training Programme on “Mediation”
With the kind approval of the Hon’ble High Court of Orissa, the O.S.L.S.A. organized one IntensiveTraining Programme on “Mediation” at KIIT University, Bhubaneswar from12.10.2011 to 16.10.2011, inwhich 38 number of Advocates-Mediators nominated by the different District Court Bar Associations wereimparted training on mediation. Expert Trainers from Bangalore Mediation Centre deputed by Mediationand Conciliation Project Committee, New Delhi imparted training to the participants.
05. Legal Aid Beneficiaries.
Free Legal Aid and assistance has been provided to the 864 no.of beneficiaries, which compriseSC-144, ST-118, OBC-40, Women-256, Children-02, In-custody-75 and other weaker sections of theSociety-229.
06. Legal Literacy/Awareness Campaign
(i) The Orissa State Legal Services Authority in association with the District Legal Services Authority,Cuttack organized a sensitization programme in the Psychiatric Ward of SCB Medical College & Hospital,Cuttack on 10.10.2011. Hon’ble Mr.Justice B.P.Das, Judge, Orissa High Court & Executive Chairman,OSLSA was pleased to grace the said event being accompanied by Sri B.C.Rath, Member Secretary,Orissa State Legal Services Authority, Sri S.Pujahari, District Judge-cum-Chairman, Dist.Legal ServicesAuthority, Cuttack, other local Judicial Officers, Collector, Cuttack, Mayor, Cuttack Municipal Corporation.Head of the Psychiatric Department and other doctors and staff of the Hospital extended due cooperationin organization of the said programme. His Lordship Sri Justice B.P.Das, Judge, Orissa High Court &
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Executive Chairman, OSLSA interacted with the patients and the doctors of the Psychiatric Ward anddistributed fruits and sweets to the patients.
(ii) The Orissa State Legal Services Authority in association with Women & Child DevelopmentDepartment, Govt.of Odisha organized a Regional Workshop on “Protection of Child Rights and IntegratedChild Protection Scheme (ICPS) on 15.10.2011 at Town Hall, Bhawanipatna. The said Workshop wasinaugurated by Hon’ble Mr.Justice Altamas Kabir, Judge, Supreme Court of India & Executive Chairman,National Legal Services Authority in the august presence of Mr.Naveen Patnaik, Hon’ble Chief Minister,Odisha as the Chief Guest, Hon’ble Mr.Justice V.Gopala Gowda, Chief Justice, Orissa High Court &Patron-in-Chief, OSLSA, Hon’ble Mr.Justice B.P.Das, Judge, Orissa High Court & Executive Chairman,OSLSA, Hon’ble Mr.Justice C.R.Dash, Judge, Orissa High Court, and Smt.Saraswati Hembrum,Chairperson, State Commission for Protection of Child Rights. A book on “Child Rights” in vernacularlanguage prepared by OSLSA was released in the said occasion.
(iii) The Orissa State Legal Services Authority in association with High Court Legal Services Committee& District Legal Services Authority, Cuttack observed the National Legal Services Day on 9.11.2011 at 5.00P.M. onwards by organizing a programme at New Conference Hall, Orissa High Court, Cuttack. On thesaid occasion, there was a meeting presided over by Hon’ble Mr.Justice V.Gopala Gowda, Chief Justice,Orissa High Court & Patron-in-Chief, OSLSA, Hon’ble Mr.Justice B.P.Das, Judge, Orissa High Court &Executive Chairman, OSLSA, in presence of some other Hon’ble Judges of Orissa High Court, FormerJudges, Officers of the Hon’ble Court, Advocate General, Odisha and local Judicial Officers and dignitaries.On the said occasion, a film titled as “MARU-MALLHAR” focusing on role of legal aid, front office andmediation benefit, prepared by OSLSA was released and exhibited for awareness of the general public.
(iv) With inspiration and encouragement from Hon’ble Sri Justice V. Gopala Gowda, Chief Justice-Cum-Patron-in-Chief, OSLSA, and under able leadership and strategic guidance of Hon’ble Sri Justice B.P.Das, Judge, Orissa High Court & Executive Chairman of OSLSA, the Odisha State Legal ServicesAuthority has taken a project “Capacity Building of Judicial Officers and other Stakeholders under PC &PNDT Act” with support from Department of Health & Family Welfare, Government of Odisha and UnitedNations Population Fund. The project is conceived with an object and aim to sensitize the key stakeholdersunder the Act and to empower them with all knowledge, skills and appropriate attitude so that allconcerned can contribute for the effective implementation of the Act. and Workshops were organized onregional basis at Balasore on 31.10.2011, at Baripada(Mayurbhanj) on 27.11.2011, at Angul on4.12.11, at Sambalpur on 10.12.11 and at Balangir on 11.12.11 under the said project. In thesaid Workshops, deliberations and discussions were held on social dimensions of sex selection,medical aspect of the PC & PNDT Act with reference to MTP Act, legal aspect and judicialapproach to the Act and sharing of State’s experience in implementation of the Act with specialstress for implementation of the provisions of the Act in a pro active manner. Judicial Officers,Sub-district Level Appropriate Authorities, C.D.M.Os., Public Prosecutors and others attendedthe said Workshops.
This Authority developed and published two separate study materials in compilations-onerelating to PC & PNDT Act with leading cases of the Hon’ble Supreme Court and other Hon’bleHigh Courts and the other on Gender related laws for distribution to the participants of thetraining programme/workshop
Besides, the Authority to create mass awareness on prohibition of Sex Selection and SexDetermination leading to female foetas and discrimination against girl child, drew a Plan ofAction under a theme “ Save the Girl Child” and selected 843 Student Legal Literacy Clubs from19 Districts Dhenkanal, Ganjam, Khurda, Cuttack, Puri, Sambalpur, Balasore, Sundargarh,
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Kalahandi, Nayagarh, Angul, Deogarh, Baragarh, Jharsuguda, Kendrapara, Jajpur, Jagatsinghpur,Bhadrak and Sonepur, where sex ratio is below 950 to carry out the campaign. As a part of thatmass campaign activity, a two days State Level Training Workshop was organized for younglawyers and Secretaries of D.L.S.As.on 22.10.2011 and 23.10.2011 at Cuttack. Participantswere given deliberation on gender discrimination and general laws and a Plan of Action wasformulated as to how the general public would be made aware on such prohibition of sexselection and discrimination against the girl child by taking assistance of the Student LegalLiteracy Clubs. Such campaign activities of the D.L.S.As. was carried out under the supervisionof the State Authority. Awareness materials like leaflets and hand bills on this score were printedand distributed among the public. An advertisement on Prohibition of Sex Determination andSex selection was published in three Odia Newspapers.
A handbook with nomenclature “MAHILANKA PAIN AAIN’ ( in Odia ) containing theprovisions of different enactments protecting the interest of women and Government Schemesformulated for their benefit is already in the press for distribution of the same to the 843 HighSchools running the Student Legal Literacy Clubs.
The above Workshops and mass campaigning were carried out with all support fromthe Department of Health and Family Welfare, Government of Odisha and UNFPA, the activitiesplanned under the Annual Work Plan 2011 were carried out within the stipulated timeframe.
ACTIVITIES OF ORISSA JUDICIAL ACADEMY
(October - December, 2011)
Refresher Programme :
Course contents ofthe Training
Cadre ofOfficersparticipating
No. of OfficersNominated/Present
Sl.No.
No. of officersparticipated
1. 10.10.2011&
11.10.2011
SC/ST & Social ReformCases
Dist. Judges &Addl. Dist.
Judges
25/24 D.J. = 05, Spl. J. = 03A.D.J. = 11
Adhoc A.D.J. = 05
Durationof theProgramme
2. 15.10.2011&
16.10.2011
Criminal AdjudicationSessions Cases & in
Magisterial Courts
Dist. Judges &Magistrates
25/24 D.J. = 04, S.D.J.M. = 15,JMFC = 05
3. 5.11.2011&
6.11.2011
Criminal Adjudication underSpl. Laws with reference tocombating Anti-corruption
& NDPS Offences
District Judges 25/23 D.J. = 07A.D.J. = 16
4. 10.12.2011&
11.12.2011
Adjudication of Civil Cases Civil Judges (S.D.)& (J.D.)
C.J. (S.D.) = 12C.J. (J.D.) = 12
5. High Court Rules, C.F. Act,Suit Valuation Act &
Stamp Act
S.R., O.C.,Superintendents
of High Court
25/22
25/24
10.12.2011&
11.12.2011
S.R & O.C. = NilA.S.R. & O.C. = 05
Supt. L-I = 17
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Cadre of Officersparticipating
No. of P.Ps./ A.P.Ps.Nominated.
Sl.No.
1. 28th to1st October, 2011 Asst. P.Ps. 35/33 Asst. P.P. = 33
Duration of the Programme
For Public Prosecutors :
No. of Participants
2. 17th to 21st October, 2011 Spl. P.P., Addl. P.P.Associate Lawyer
35/12
3. 28th to 1st November, 2011
Spl. P.P. = 3Addl. P.P. = 7, Associate Lawyer = 2
Spl. P.P., P.P., Addl. P.P.Associate Lawyer
30/24 Spl. P.P. = 4, P.P. = 2, Addl. P.P. = 11Associate Lawyer = 7
4. 8th to 11th November, 2011 Asst. P.P., Associate Lawyer
37/28 Asst. P.P. = 27Associate Lawyer = 1
2nd Induction Training Programme :
Programmes with other Agencies :
Cadre of Officersparticipating
No. of P.Ps./A.P.Ps.Nominated.
Sl.No.
1. 23rd to 30th Nov., 2011(Organized by Women & Child DevelopmentDepartment in collaboration with OrissaJudicial Academy, Cuttack)
CJM-cum-PM,Member JJB,
Member CWC,Chairperson CWC
32/26
Duration of the Programme No. of Participants
CJM-cum-PM = 10Member JJB = 06Member CWC= 06
Chairperson CWC = 06
2. 13th November, 2011(Symposium on Laws & Issues related toWomen & Children for Judicial Officers,organized by UNDP, Deptt. of Justice, Ministry ofLaw & Justice, Govt. of India in collaborationwith Orissa Judicial Academy, Cuttack)
Chief JudicialMagistrates,S.D.J.Ms &J.M.F.Cs.
30/30 CJM = 10SDJM = 10JMFC = 10
1. Induction TrainingProgramme (2nd phase)
Civil Judges(Jr. Division)
44/43 C.J. (J.D.) = 4321st. Nov.to 11th Dec.,
2011
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GOLDEN JUBILEE CELEBRATION OF ODISHA STATE BAR COUNCILon 5th & 6th November, 2011
GOLDEN JUBILEE CELEBRATION OF ODISHA STATE BAR COUNCILon 5th & 6th November, 2011
A scene of affection & Human touch. Hon’ble Shri Justice B.P. Das, Executive Chairman, OSLSA feedinga mentally ill child in the Psychiatric Ward of SCB Medical College & Hospital, Cuttack on the occasion
of observance of “World Mental Health Day” on 10.10.2011
Observance of National Legal Services Day at New Conference Hall, Orissa High Court on09.11.2011. Seen in the picture : Hon’ble Shri Justice V. Gopala Gowda, Chief Justice Orissa
High Court & patron-in-Chief, OSLSA, Hon’ble Shri Justice B.P. Das, Judge, Orissa HighCourt & Executive Chairman, OSLSA, Sri B.C. Rath, Member Secretary, OSLSA,
Sri S. Pujahari, District Judge-cum-Chairman, DLSA, Cuttack,Shri B.K. Mohanty, Registrar (Judicial), Orissa High Court-cum-Secretary, HCLSC.
Seminar on “Permanent Lok Adalat of Public Utility Services” organized by Bhubaneswar BarAssociation. Seen in the Picture : Hon’ble Shri Justice B.P. Das, Judge, Orissa High Court & Executive
Chairman, OSLSA, Hon’ble Shri Justice L. Mohapatra, Judge, Orissa High Court,Shri D. Rout, District Judge, Khurda & other dignitaries