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The Indian Law Reports 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 2020 (II) I L R - CUT . JULY - 2020 Pages : 321 to 480 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 MOHAMMAD RAFIQ, M.Com., 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 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. The Hon’ble Shri Justice SANJEEB KUMAR PANIGRAHI, LL.M. The Hon’ble Miss Justice SAVITRI RATHO, B.A., (Hons.), LL.B. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri MALAYA RANJAN DASH, Registrar General Shri RAJENDRA KUMAR TOSH, Registrar (Administration) Shri LALIT KUMAR DASH, Registrar (Judicial) iii N O M I N A L I N D E X PAGE Ananga Kumar Otta -V- Union of India & Ors. 344 Anindita Mohanty -V- The Senior Regional Manager, H.P. 398 Co. Ltd. Bhubaneswar & Ors. Bana Munda -V- State of Odisha. 420 Benudhar Panda -V- State of Odisha & Ors. 462 Bidyut Manjari Sethi-V- State of Odisha & Ors. 434 Debabrata Sahoo @ Mithun @ Debaprasad Sahoo -V- State of 469 Odisha & Ors. Dusmanta Kumar Behera -V- Registrar, Orissa High Court 411 & Ors. Dusmanta Sethy -V- State of Orissa. 425 Gugu @ Subasis Khuntia -V- State of Odisha & Ors. 368 M/s. Maa Sarala Multipurpose Co. Ltd. -V- Steel Authority of 358 India & Anr. Nimai Charan Samantaray -V- Chairman-Cum-Managing 460 Director, O.S.R.T.C. Paribahan Bhawan, Bhubaneswar. Raghu Tudu -V- State of Odisha. 430 Rajiv Kumar Parida -V- State of Odisha & Ors. 321 Regional Transport Officer, Dhenkanal –V- Arun Kumar 443 Behara & Ors. Suchismita Ray -V- Collector-Cum-C.E.O., Zilla Parishad 454 & Ors. Suresh Chandra Mishra -V- State of Odisha & Anr. 383 iv ACTS, RULE & ORDER Acts & No. 1950 Constitution of India, 1950 1986- 68 The Consumer Protection Act, 1986 1980- 65 National Security Act, 1980 1964- 01 Orissa Grama Panchayat Act,1964 RULE:- The Odisha District and Subordinate Courts’ Non-Judicial Staff Services (Method of Recruitment and Conditions of Service) Rules, 2008 ORDER : - The Orissa High Court Order, 1948 v S U B J E C T I N D E X PAGE CONSTITUTION OF INDIA, 1950 – Article 226 – Power under – Exercising of – Ambit and scope –Discussed. Anindita Mohanty -V- The Senior Regional Manager, H.P. CO. Ltd. Bhubaneswar & Ors. 2020 (II) ILR-Cut…… 398 Articles 226 and 227 – Writ petition (PIL) – Prayer to issue a writ directing the appropriate Government authorities to frame Rules/Guidelines and take steps for ameliorating the problems of persons infected/affected by COVID-19, so as to ensure that they are not stigmatized or victimized – Pleas considered with reference to right to privacy – Principles – Discussed and directions issued. Ananga Kumar Otta -V- Union of India & Ors. 2020 (II) ILR-Cut…… 344 Articles 226 and 227 – Writ petition – Tender matter – Challenge is made to the decision taken by the authority with regard to disposal of Ammonium Sulphate – Scope of interference by the court in a writ petition – Held, courts vi ought not to sit in appeal over the decisions of the executive authorities or instrumentalities and plausible decision need not be overturned, and latitude ought to be granted to the State in exercise of executive power so that the constitutional separation of powers is not encroached upon. M/s. Maa Sarala Multipurpose Co. Ltd. -V- Steel Authority of India & Anr. 2020 (II) ILR-Cut…… 358 Articles 226 and 227 – Writ jurisdiction – Writ of certiorari – When and to whom can be issued? – Discussed. Bidyut Manjari Sethi-V- State of Odisha & Ors. 2020 (II) ILR-Cut…… 434 CONSUMER PROTECTION ACT, 1986 – Sections 2(b), (c), (d), (g), (o) and Section 11 – Provisions under – Definition of ‘Consumer’ – Held, in order to satisfy the requirement of definition of “Consumer” as contemplated under Consumer Protection Act, 1986, there must be transaction for consideration under Section 2(1)(d)(i) of the said Act. – The definition also contemplates pre-expenses vii of a completed transaction of a sale and purchase – Therefore, the prime consideration is whether the petitioner is a “consumer” within the meaning of Section 2(1)(d)(i) of the Consumer Protection Act so as to attract the provisions of the said Act, otherwise, the Act itself is not applicable – Consequence thereof, any order passed thereof is nullity in the eye of law – In view of the statutory provisions mentioned above, it is made clear that the Act is made to deal with the rights of the consumers wherein good or “services” have been defined under the said Act – Therefore, the forum created under the Consumer Protection Act cannot deal with the issue concerning the discharge of statutory functions by the statutory authorities. Regional Transport Officer , Dhenkanal -V- Arun Kumar Behera & Ors. 2020 (II) ILR-Cut…… 443 Section 12 – Application claiming refund of road tax on the ground of non-plying of bus – Whether maintainable? – Held, No – Reasons indicated. Regional Transport Officer, Dhenkanal -V- Arun Kumar Behera & Ors. 2020 (II) ILR-Cut…… 443 viii CRIMINAL TRIAL – Offence under section 302 of Indian Penal Code, 1860 – Conviction – Out of three accused persons one convicted two acquitted – Conviction based on the testimony of sole eye witness, P.W 1, discovery of weapon of offence, i.e. knife which was stained with blood and also presence of blood of group ‘B’ in the napkin of the appellant – P.W. 1 stated that the accused was cutting the neck of his father by a knife but neither he has mentioned the said fact in the F.I.R. nor stated before the investigating officer – This being is a major contradiction makes the witness wholly unreliable – Weapon of offence was discovered on the disclosure statement made by the appellant while in police custody – The seizure witnesses and the witnesses to disclosure statement have turned hostile to the prosecution – Moreover, the knife was sent for chemical examination and it was found to have been stained with human blood but the blood grouping not made – Effect of – Held, this circumstance will also not help the case of the prosecution – The last circumstance appear in this case is that the napkin of accused was stained with human blood of ‘B’ group – The seizure witnesses have turned hostile to the prosecution – Moreover the deceased and the accused are brothers and there is every possibility that the blood group of the accused may be group ‘B’ – So in such a situation it was the duty of prosecution to determine the blood group of the accused in order to obviate any reasonable chance of the accused staining his napkin with his own blood – Conviction and sentence set aside. Raghu Tudu -V- State of Odisha. 2020 (II) ILR-Cut…… 430 ix CRIMINAL TRIAL – Offence under section 302 of Indian Penal Code – Conviction based on sole eye witness – Duty of the appellate court – Held, as the prosecution has advanced and trial court has based the conviction upon the sole testimony of P.W.1, it is obligatory on the part of the appellate court to analyze the evidence independently. Bana Munda -V- State of Odisha. 2020 (II) ILR-Cut…… 420 CRIMINAL TRIAL – Offence under section 302 of Indian Penal Code – Conviction based on sole eye witness – Testimonies of three witnesses demonstrate that on the occurrence night the deceased was sleeping with her two sisters including P.W.2 in a room. – P.W.2 had not seen the person who caused homicidal death of the deceased in the night – She was not declared hostile – The mother of the deceased who came to know about the incident on the next morning also had not ascertained anything from her daughters – The brother-informant who claims to have entered inside the room hearing shout of the deceased did not chose to ascertain anything from P.W.2 and other sister – In such a backdrop the illicit relationship of deceased with the accused which P.W.1 was apprehending to culminate into social ostracization, assumes significance – Reliance on the sole testimony of P.W.1, in such circumstances, would be a negation of prudence – The sole testimony of P.W.1, in our considered opinion, requires corroboration – P.W.2 does not corroborate P.W.1 – His unusual conduct in not asking anybody available inside the x room, leaves enough room to suspect his motive – He is a wholly unreliable witness – Conviction set aside.
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