The Indian Law Reports
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THE INDIAN LAW REPORTS (CUTTACK SERIES, MONTHLY) Containing Judgments of the High Court of Orissa and some important decisions of the Supreme Court of India. Mode of Citation 2019 (III) I L R - CUT . NOVEMBER -2019 Pages : 401 to 592 Edited By BIKRAM KISHORE NAYAK, ADVOCATE LAW REPORTER HIGH COURT OF ORISSA, CUTTACK. Published by : High Court of Orissa. At/PO-Chandini Chowk, Cuttack-753002 Printed at - Odisha Government Press, Madhupatna, Cuttack-10 Annual Subscription : 300/- All Rights Reserved. Every care has been taken to avoid any mistake or omission. The Publisher, Editor or Printer would not be held liable in any manner to any person by reason of any mistake or omission in this publication ii ORISSA HIGH COURT, CUTTACK CHIEF JUSTICE The Hon’ble Shri Justice KALPESH SATYENDRA JHAVERI B.Sc., LL.B. PUISNE JUDGES The Hon’ble Justice KUMARI SANJU PANDA, B.A., LL.B. The Hon’ble Shri Justice S.K. MISHRA, M.Com., LL.B. The Hon’ble Shri Justice C.R. DASH, LL.M. The Hon’ble Shri Justice Dr. A.K. RATH, LL.M., Ph.D. The Hon’ble Shri Justice BISWAJIT MOHANTY, M.A., LL.B. The Hon’ble Shri Justice Dr. B.R. SARANGI, B.Com.(Hons.), LL.M., Ph.D. The Hon’ble Shri Justice DEBABRATA DASH, B.Sc. (Hons.), LL.B. The Hon’ble Shri Justice SATRUGHANA PUJAHARI, B.A. (Hons.), LL.B. The Hon’ble Shri Justice BISWANATH RATH, B.A., LL.B. The Hon’ble Shri Justice S.K. SAHOO, B.Sc., M.A. (Eng.&Oriya), LL.B. The Hon’ble Shri Justice PRAMATH PATNAIK, M.A., LL.B. The Hon’ble Shri Justice K.R. MOHAPATRA, B.A., LL.B. The Hon’ble Shri Justice Dr. A.K.MISHRA, M.A., LL.M., Ph.D. The Hon’ble Shri Justice BIBHU PRASAD ROUTRAY, LL.B. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri RADHA KRISHNA PATTNAIK, Registrar General Shri CHITTA RANJAN DASH, Registrar (Judicial) Shri DILIP KUMAR MISHRA, Registrar (Administration) iii N O M I N A L I N D E X PAGE Achyutananda Rout -V- Chief Manager, Union Bank of India & Ors. 573 Akshaya Kumar Routray -V- State Bank of India, Bhubaneswar & Ors 521 Baleswar Prasad Gupta -V- State of Orissa. 535 Bijayalaxmi naik -V- State of Orissa & Ors. 580 Budha @ Sukru @ Samanta Kanhar -V- State of Odisha. 553 Dasara Munda -V- State of Orissa. 477 Kabasi Ganga -V- State of Orissa. 469 Laxmidhara Samantasinghara & Ors -V- The Alaranath Dhanda Mulaka 546 Mahavidyalaya Managing Committee & Ors. M/s. Tata Steel Ltd. & Anr. -V- Union of India & Ors. 440 Madan Mohan Patra -V- Collector, Cuttack & Ors. 484 Manorama Mohapatra & Anr. -V- State of Orissa. 529 Mrinalini Padhi -V- Union of India & Ors. (S.C) 401 Nikunja Kishore Rajguru And Anr. -V- Nityananda Barik and Ors. 585 Orissa Rural Housing & Development Corporation Ltd. -V- Deputy 511 Director (Revenue), Employees State Insurance Corporation, BBSR. Panchei Sahoo & Ors. -V- Manoranjan Subudhi & Ors. 488 Punia Naik -V- State of Orissa. 472 Ramachandra Sahoo -V- State of Odisha. 562 Ramesh Ku. Agarwal & Ors. -V- State of Orissa & Ors. 590 Ramgopal Khadiratna & Anr. -V- State of Orissa, Through the Principal, 540 Secretary Revenue Department & Ors. Santosh Kumar Nanda -V- The Odisha State Housing Board & Ors. 458 Saroj Kumar Sahu -V- State of Orissa & Ors. 500 Sasadhar @ Sashadhar Samal -V- Pramo d Das And Anr. 538 iv Senior Divisional Manager, National Insurance Company Ltd.-V- 491 Shaibarani Mohanta & Ors. Sudam Charan Sahu -V- The Angul United Central Co-Operative Bank 481 Ltd. & Ors. Umesh Chandra Digal -V- Bank of India & Ors. 463 ACTS & RULE Acts & No. 1996-26…. Arbitration And Conciliation Act, 1996 1950 Constitution of India, 1950 1908-5….. Code of Civil Procedure, 1908 1973-2….. Code of Criminal Procedure, 1973 1923-8….. Employees Compensation Act, 1923 1948- 34… Employees’ State Insurance Act, 1948 1955-10…. Essential Commodities Act, 1955 1937-18…. Hindu Women’s Right to Property Act, 1937 1860-45…. Indian Penal Code 1860 1963-36…. Limitation Act, 1963 1959-3….. Orissa Survey & Settlement Act, 1958 Rule:- Orissa Stamp Rules, 1952 v S U B J E C T I N D E X PAGE CIVIL PROCEDURE CODE, 1908 – Section 80 – Notice under, before filing of the suit against the Govt. – Mandatory requirement – Neither the notice nor postal receipts had been marked as exhibits – The acknowledgment due (A.D.) cannot be said to be sufficient compliance of Sec. 80(1) CPC in absence of notice . Madan Mohan Patra -V- Collector, Cuttack & Ors 2019 (III) ILR-Cut…… 484 Section 100 – Second Appeal – Plaintiffs’ appeal against confirming judgment in a suit for permanent injunction – Plaintiffs not in possession over the suit land – Whether a suit for injunction simplicitor is maintainable without praying for any declaration of title when injunction is sought for not against the true owner but against the trespassers? – Held, No, a cloud is raised over the plaintiffs’ title – They are not in possession over the suit land – In view of the same, the simple suit for permanent injunction is not maintainable. Sudam Charan Sahu -V- The Angul United Central Co- Operative Bank Ltd. & Ors. 2019 (III) ILR-Cut…… 481 CIVIL SUIT – Plaintiff filed suit – Defendants filed written statement-cum-counter claim – Suit dismissed counter claim allowed – Party entrusted the case to lawyer where after appeal was filed against the dismissal of the suit and no appeal was filed against the order allowing the counter claim – Subsequently appeal was filed against the order allowing the counter claim along with a petition for condonation of delay and a petition seeking analogous hearing of both the appeals – Appellate court rejected the application of the petitioners- appellants for analogous hearing of the appeal – Writ petition challenging such rejection order – Defendants objects – Fault of vi the party considered – Held, the matter of delay be considered, if condoned, the appeals may be heard analogously. Smt. Panchei Sahoo & Ors. -V- Manoranjan Subudhi & Ors. 2019 (III) ILR-Cut…… 488 CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 – Writ petition – Challenge is made to the “Explanation” to Sub- rule (2) of Rule 10 of the Customs Valuation (Determination of Price Imported Goods) Rules, 2007 with a prayer to declare it to be ultra vires the provisions of Section 14 of the Customs Act, 1962 – Petitioner, a Company, imports certain machineries and other items to be used for manufacture of iron and steel products at its plants – Imports raw materials in bulk quantities by chartered vessels which is assessed to Duty of Customs under Section 14 of the Act – Petitioner contended that the provisions of principal Act does not include the cost of demurrage charges in the cost of transportation but by subsequent Rules framed there under, has travelled beyond the scope of the Act – Therefore, the same is required to be declared ultra vires – Plea considered – Court held that the explanation to Sub Rule-(2) of Rule 10 of the Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 is held to be bad and hence declared ultra vires the Constitution/ provision of Section 14 of the Customs Act, 1962, and hence the same is struck down. M/s. Tata Steel Ltd. & Anr. -V- Union of India & Ors . 2019 (III) ILR-Cut…… 440 Articles 226 & 227 – Engagement of “Gana Sikshyak” – Eligibility – Guidelines of the Education Guarantee Scheme and Alternative & Innovative Education (EGS & AIE) – Clause 21 – Information & Monitoring – Petitioner challenges the order of the District Collector not engaging her as “Gana Sikshyak” – As per resolution, before a Education Volunteer rehabilitated in the scheme must have faced disengagement due to up-gradation of E.G.S to regular scheme – Petitioner is claiming engagement vii only on the basis of the report of the BRCC, whereas neither any record was available in the office of the DPC, nor any acquaintance report with regard to payment of remuneration to the petitioner as Education Volunteer, so as to prove her continuance – Held, in the absence of such clinching and unimpeachable documentary evidence, the collector could not have passed the orders of continuance of the petitioner as “Gana Sikshyaka” – Therefore, there is no infirmity in the impugned order to call for any interference – Writ petition dismissed. Smt. Bijayalaxmi Naik -V- State of Orissa & Ors. 2019 (III) ILR-Cut…… 580 Articles 226 and 227 – Writ petition – Election dispute – Challenge is made to the order allowing recounting – Application calling for unused ballot papers is not in terms of the allegation in the election dispute – Principles for direction of recounting – Held, looking to the allegation in the election dispute, the petitioner has to give details as to which ballot paper will be called for, for examination and presented as evidence, in absence of which this Court finds there has been improper consideration of such application by the trial court – This Court observes that election petitioner cannot utilize the trial court to find out evidence for him to support his case and there should be specific allegation supporting any such claim – Impugned order being bad in law, set aside. Sasadhar @ Sashadhar Samal-V- Pramod Das And Anr. 2019 (III) ILR-Cut…… 538 Articles 226 and 227 – Writ petition challenging the order of dismissal from service on the charge of submitting fake caste certificate – Writ petition dismissed on the finding that the writ court cannot interfere with the findings arrived at by the disciplinary authority – Writ appeal – Appellant pleads that his appointment was considered as he is an ex-serviceman – Dismissed for allegedly submitting fake caste certificate – Caste certificate issued by competent authority in 1978 was valid till 1993 – Appeal pending against the order cancelling viii the caste certificate – Held, the finding that the appellant got the job by furnishing fake caste certificate is not sustainable and that the High court has jurisdiction to interfere with the finding of the disciplinary authority.