The Indian Law Reports (Cuttack Series)
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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 . JUNE - 2018 Pages : 1010 to 1177 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 Abhishek Kumar Rai -V- I.I.T. , Bhubaneswar & Ors. 1133 Alupta Akanksha Biswal -V- State of Odisha & Ors. 1101 Arnapurna Panigrahi -V- State of Odisha. 1159 D. M, Oriental Insurance Company LTD., Sambalpur -V- 1027 Smt. Draupadi Behera & Ors. Divisional Manager, New India Assurance Co. Ltd. -V- Ananda 1025 Chandra Rout & Anr. Dr. Ganapati Prasad Choudhury -V- State of Orissa & Ors. 1152 Dr. Sushil Kumar Pati -V- State of Odisha (VIG.) 1118 Fani Bhusan Das & Ors. -V- State of Orissa & Ors. 1162 Ghadua Muduli & Anr. -V- State of Orissa. 1104 Gopal Sagar -V- State of Odisha . 1060 Kalpana Biswal -V- State of Odisha & Ors. 1052 Kalyani Mahana -V- Banshidhar Sahu & Anr. 1073 Karma Lakra -V- State of Orissa. 1077 Kartik Chandra Barik & Anr.-V- Principal Secretary, 1020 (R & D.M) Government of Odisha & Ors . Lingaraj @ Linga Nayak & Anr. -V- Abhimanyu Bhoi 1069 Lokanath Pradhan -V- Collector, Puri & Ors. 1017 M/s.Ferro Scrap Nigam Ltd., Rourkela, Represented by its M. D. -V- 1084 State of Orissa & Ors. Mahesh Chandra Verma -V- The State of Jharkhand through: its 1010 Chief Secretary & Ors. iv Panchanan Hembram -V- State of Orissa & Ors. 1031 Ramakanta Mallick -V- State of Odisha & Anr. 1039 Sasmita Kar -V- State of Orissa & Ors. 1094 State of Orissa & Ors. -V- Jagannath Das & Anr. 1035 Teena Patra -V- State of Odisha & Anr. 1055 ACTS Acts & No. 1950 Constitution of India, 1950 1973-2…. Code of Criminal Procedure, 1973 1961-59… The Institute of Technology Act, 1961 2000-56…. Juvenile Justice (Care And Protection of Children) Act, 2000 1860-45…. Indian Penal Code, 1860 1894-1….. Land Acquisition Act 1894 1988-59..... Motor Vehicles Act, 1988 1985-61.... Narcotic Drugs & Psychotropic Substances Act, 1985 1950-23… Orissa Municipal Act, 1950 1893- 4…. Partition Act, 1893 1988-49… Prevention of Corruption Act, 1988 RULES:- 1. Orissa Judicial Services Rules, 2007 2. Orissa Minor Mineral Concession Rules, 2004 v S U B J E C T I N D E X PAGE ADMISSION – Pursuant to an advertisement for filling up the seats in the Medical Colleges through NEET, the petitioner as a physically handicapped candidate submitted application – Faced the medical test and got admitted as per procedure prescribed – Another letter for medical check up on the question of physical handicapness – Held, not permissible, the law is fairly settled that once an advertisement is set into motion, it is to be abided by the scheme of advertisement and there is no question of bringing new conditions – In the process this Court interfering in the order vide Annexure-8 and also in the orders vide Annexures-5 to 7, sets aside the same and directs the opposite parties to treat the petitioner as a duly selected candidate in the NEET Examination – While observing that the petitioner has been already made to suffer, which might have affected her educational atmosphere, this Court directs the opposite parties not to disturb the petitioner any further. Alupta Akanksha Biswal -V- State of Odisha & Ors. 2018 (I) I.L.R. Cut……... 1101 CODE OF CRIMINAL PROCEDURE, 1973 – Section 197 read with Section 19 of the Prevention of Corruption Act, 1988 – Sanction for prosecution – Question can be raised at any stage – No cognizance of offence can be taken without there being any sanction for prosecution in respect of the act alleged which has got nexus with the discharge of duty by public servant – Charge sheet and order of cognizance for offences under IPC and PC Act occurred after retirement of the Govt. Servant – Requirement of Sanction – Held, it is clear that after retirement of a Government servant, no criminal prosecution can lie without any sanction for commission of offence under the IPC whereas the offence under the provisions of the P. C Act, 1988 would continue in absence of sanction. Fani Bhusan Das & Ors. -V- State of Orissa & Ors. 2018 (I) I.L.R. Cut……... 1162 vi CODE OF CRIMINAL PROCEDURE, 1973 – Section 362 – Provisions under – No Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error – Order taking cognizance – Whether an interlocutory or final order – Held, the order taking cognizance being an interlocutory order, the same can be reviewed – Provision of Section 362 of Cr. P.C would not apply. Fani Bhusan Das & Ors. -V- State of Orissa & Ors. 2018 (I) I.L.R. Cut……... 1162 CONSTITUTION OF INDIA, 1950 – Article 320 – Functions of Public service Commission – Discussed. Teena Patra -V- State of Odisha & Anr. 2018 (I) I.L.R. Cut……... 1055 CONSTITUTION OF INDIA,1950 – Article 227 – In a petition seeking issue of a Writ of certiorari under Article 227 of the Constitution of India, the Tribunal/Court whose order is impugned, whether be made a party and when? – Held, the following. Lingaraj @ Linga Nayak & Anr. -V- Abhimanyu Bhoi. 2018 (I) I.L.R. Cut……... 1069 CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 – Delay and Latches – Writ petition by State challenging the judgment passed by the SAT in OA after six years – No explanation given – Condonation of delay – Held, even though the direction of learned Tribunal vitiates the entire proceeding and if the said order is allowed to stand, it would occasion failure of justice, but that by itself is not a reason to condone the inordinate delay of six years. vii State of Orissa & Ors. -V- Jagannath Das & Anr. 2018 (I) I.L.R. Cut……... 1035 CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 – Writ petition challenging the action of CDA in not allowing transfer of plot – Allotment was made on 15.10.2007 and more than eleven years have elapsed in the meantime, as yet, the infrastructural development has not been completed – Fact not disputed by CDA – Stipulation by Govt. that the case of 3rd party interest cannot be considered before completion of two years of execution of lease deed and house built thereon – Held, the decision taken by the Government of Odisha that an original allottee or a person who has purchased a land from the original allottee can only sale the plot and house built thereon to the 3rd party with the permission of the R.D.C., Cuttack appears to be unreasonable – Direction accordingly. Kalpana Biswal -V- State of Odisha & Ors. 2018 (I) I.L.R. Cut……... 1052 INDIAN INSTITUTE OF TECHNOLOGY ACT, 1961 – Statute No.12 – Appointments – Petitioner pursuant to an advertisement, applied for the post of Assistant Professor – Petitioner found not suitable, however recommended for being engaged as a ‘visiting faculty’ on contractual basis for a period of one year – Petitioner accepted the offer and joined – Extension was given for two consecutive years – When extension not given further, the petitioner filed the writ petition seeking a direction to delete the word ‘visiting’ from the appointment letter and to appoint him as Assistant Professor as per the recruitment/selection process raising other ancillary questions like that the selection process was bad and that the Selection Committee had no jurisdiction to change the terms of the selection – Whether such a relief can be granted to the viii petitioner – Answer is no, as there were materials contrary to the allegations made by the petitioner – Writ petition dismissed. Abhishek Kumar Rai -V- I.I.T., Bhubaneswar & Ors. 2018 (I) I.L.R. Cut……... 1133 INDIAN PENAL CODE, 1860 – Section 302 – Offence under – Conviction – Sentence of life imprisonment – Absence of mens rea to commit murder – Effect of – Held, the order of conviction altered to one under 304 Part- I, IPC and to undergo R.I. for 10 years.