THE INDIAN LAW REPORTS (CUTTACK SERIES) Containing Judgments of the High Court of Orissa and some important decisions of the Supreme Court of India. Mode of Citation 2018 (I) I L R - CUT . MAY - 2018 Pages : 859 to 1010 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 VINEET SARAN , B.A., LL.B. PUISNE JUDGES The Hon’ble Shri Justice INDRAJIT MAHANTY, LL.M. The Hon’ble Justice KUMARI SANJU PANDA, B.A., LL.B. The Hon’ble Shri Justice S.C. PARIJA, 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 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 SUJIT NARAYAN PRASAD, M.A., LL.B. The Hon’ble Shri Justice K.R. MOHAPATRA, B.A., LL.B. The Hon’ble Shri Justice J. P. DAS, M.A., LL.B. The Hon’ble Shri Justice Dr. D.P. CHOUDHURY, B.Sc., LL.M., Ph.D. ADVOCATE GENERAL Shri SURYA PRASAD MISRA, B.Sc., LL.B. iii N O M I N A L I N D E X PAGE Ajit Kumr Barik -V- State of Orissa & Ors. 902 B. Manoj Kumar Rao.-V- State of Odisha & Ors. 864 Bijay Kumar Bal -V- Collector, Puri & Ors. 953 Chandrabati Das-V- State of Orissa & Ors. 895 Durgaprasad Sangramjit Mallick -V- NABARD & Ors. 988 Fakira Behera & Ors. -V- Krushna Chandra Thakur, Marfat, Harihar 950 Badapanda & Ors. Gargaba Biswal -V- State of Odisha & Ors. 982 Ghanashyam Pradhan & Ors. -V- Ram Pratap Kheria. 936 Jadunath Biswal (Dead) Through his L .Rs & Ors. -V- Laxman Alias 932 Durga Biswal & Ors. Jagruti Welfare Organization -V- State of Odisha & Ors. 873 Jenapur Primary Fishermen Co-Operative Society Ltd. -V- State of Odisha 925 & Ors. Jyotshna Mohapatra -V- State of Odisha. 869 Kefayat Khan-V- Abdul Halim Khan. 1008 Kishor Chandra Pradhani -V- State of Odisha & Ors. 906 Madhuri Das & Ors. -V- State of Orissa & Ors. 959 Pitamber Mohanta & Ors. -V- State Of Orissa. 887 Prakash Kanhar -V- State of Orissa. 964 Pramoda Das & Ors. -V- Saroj Kanta Misra & Ors. 1002 Raghulal Karnani -V- M/s. Carry Co., 26, Zakaria Street, Calcutta & Anr. 930 Ranjit Paika & Anr. -V- State of Orissa. 979 Sanjaya Narayan Sahoo -V- State of Orissa. 970 Siba Charan Pradhan -V- Bina Pradhan & Anr 999 Sukanta Chandra Dash & Anr. -V- The Collector, Cuttack & Ors. 945 Tarachand Agrawal -V- State of Orissa & Anr. 913 Vijay Arjun Bhagat & Ors. -V- Na na Laxman Tapkire & Ors. 859 iv ACTS & RULES Acts & No. 1865-3…. Carriers Act, 1865 1908-5…. Civil Procedure Code,1908 1950 Constitution of India, 1950 1955-10… Essential Commodities Act, 1955 1947-14… Industrial Dispute Act, 1947 1860-45… Indian Penal Code, 1860 1985-45… Narcotic Drugs And Psychotropic Substances Act, 1985 1951-1…. Orissa Estate Abolition Act, 1951 1958-3…. Orissa Survey & Settlement Act, 1958 1972-21… Orissa Consolidation of Holdings And Prevention of Fragmentation of Land Act, 1972 RULES :- 1. Orissa Civil Service (Classification, Control and Appeal) Rules, 1962 2. Odisha Co-Operative Societies Rules, 1965 v S U B J E C T I N D E X PAGE ADVERSE POSSESSION – Claim of – Ingredients thereof – Held, in order to prove adverse possession, a party must establish that his possession for the statutory period was nec vi, nec clam, nec precario – In simple language, the petitioner, in order, to establish that he has perfected title by way of prescription must establish by pleadings and proof the date from which his possession become adverse to the title of the true owner – He is required to plead and prove that he was in open and continuous and peaceful possession of the said land for a period of twelve years, without any disturbance and with a hostile animus to the title of the real owner. Tarachand Agrawal -V- State of Orissa & Anr. 2018 (I) I.L.R. Cut……... 913 CARRIERS ACT, 1865 – Section 10 – Provision under – Notice of loss or injury before institution of suit, whether mandatory? – Held, yes. – No suit shall be instituted unless notice in writing of the loss or injury has been given to the carrier before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff. Raghulal Karnani -V- M/s. Carry Co., 26, Zakaria Street, Calcutta & Anr . 2018 (I) I.L.R. Cut……... 930 CIVIL SUIT – Plaintiff prays for recovery of Possession and permanent injunction as against the suit land purchased by him – Defendants challenge the sale on the ground that consideration money has not been paid and that the contents of the deeds were not read over and explained to the vendors – Vendors not parties to the suit – Held, defendants being not the vendors can not challenge the sale deeds. Jadunath Biswal (Dead) Through his L .Rs & Ors. -V- Laxman Alias Durga Biswal& Ors. 2018 (I) I.L.R. Cut……... 932 CODE OF CIVIL PROCEDURE, 1908 – Section 100 – Second appeal – Six questions were framed during admission of vi the Second appeal – Judgment not on the basis of six questions of law originally framed –No additional questions framed during the hearing of the second appeal – HC allowed the appeal by framing two additional questions in judgement itself – Whether permissible, Held, no – The High Court, committed two jurisdictional errors while deciding the second appeal although it has the jurisdiction to decide the second appeal only on the six substantial questions of law framed at the time of admitting the appeal – In other words, the jurisdiction of the High Court to decide the second appeal was confined only to six questions framed and not beyond it – Secondly, the High Court though had the jurisdiction to frame additional question(s) by taking recourse to proviso to subsection (5) of Section 100 of the Code but it was subject to fulfilling the three conditions, first "such questions should arise in the appeal”, second, "assign the reasons for framing the additional questions" and third, "frame the questions at the time of hearing the appeal". Vijay Arjun Bhagat & Ors. -V- Nana Laxman Tapkire & Ors. 2018 (I) I.L.R. Cut……... 859 CODE OF CIVIL PROCEDURE, 1908 – Section 36 – Execution proceeding – Suit filed in 1983 and decreed in 1998 – Execution proceeding filed in 1999 – Judgment debtors filed petition under section 47 of the Code questioning the execution of the decree – Failed –Judgment debtors thereafter have been filing several petitions one after another, before the executing court and approaching the next higher forum on some plea or other to thwart the execution of that decree which is not at all permissible in the eye of law – Held, a judgment debtor is not allowed to raise pleas, in piecemeal in phase manner according to his own sweet will and desire in an execution proceeding in saying that the decree is not executable. Ghanashyam Pradhan & Ors. -V- Ram Pratap Kheria. 2018 (I) I.L.R. Cut……... 936 CODE OF CIVIL PROCEDURE, 1908 – Order 22 Rule 1 to 4 read with Article 171 of the Limitation Act – Applications for substitution, setting aside abatement and for condonation of delay – Delay of about 22 years – Plea that the limitation period vii should be counted from the date of knowledge about the death – Held, not acceptable, the delay has to be explained from the date of death. Smt. Pramoda Das & Ors.-V- Saroj Kanta Misra & Ors. 2018 (I) I.L.R. Cut……... 1002 Words and Phrases – Incentives – Meaning – Entitlement – Discussed . B. Manoj Kumar Rao.-V- State of Odisha & Ors. 2018 (I) I.L.R. Cut……... 864 CODE OF CIVIL PROCEDURE, 1908 – Order III Rules 1 and 2 – The question as to whether and when the Power of Attorney Holder can depose on behalf of the Principal? – Principles – Indicated. Raghulal Karnani –V- M/s. Carry Co., 26, Zakaria Street, Calcutta & Anr . 2018 (I) I.L.R. Cut……... 930 CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 – Tender – Writ petition challenging rejection of the claim of incentives in lieu of early completion of work – DTCN contains the clause for incentives – Rejection on the ground that there was change in the nature of work and that the Contractor did not intimate about early completion of the work to the authority – Records shows otherwise – Held, the petitioner is entitled for incentives. B. Manoj Kumar Rao. -V- State of Odisha & Ors. 2018 (I) I.L.R. Cut……... 864 CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 read with Article 12 – Writ petition by an Employee of ‘NABARD’ challenging the order of his dismissal from service – Plea of maintainability of the writ petition against ‘NABARD’ raised since it is a corporate body established U/s.3 of the NABARD Act, 1981 – Whether NABARD to be considered as an “Authority” within the meaning of Article 12 – Answer is yes – Held, the term "authority" used in Article 226, in the context, must receive a liberal meaning unlike the term in viii Article 12 – Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art.