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 (II) I L R - CUT . JULY - 2019 Pages : 449 to 656 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. ADVOCATE GENERAL Shri ASHOK KUMAR PARIJA, B.Com., LL.B. REGISTRARS Shri RADHA KRISHNA PATTNAIK, Registrar General Shri CHITTARANJAN DASH, Registrar (Judicial) Shri DILIP KUMAR MISHRA, Registrar (Administration) iii N O M I N A L I N D E X PAGE Akshya Kumar Mohanty -V- State of Orissa 654 Ambika Bhuyan & Anr. -V- Saukat Alli & Anr. 639 Bikash Sethy -V- Odisha Gramya Bank, Bhubaneswar & Ors. 536 Corporation Bank, Bhubaneswar -V- Smt. Sailabala Pradhan & Ors. 525 D.M, Reliance General Insurance Co. Ltd., Bhubaneswar -V- Manjushree 506 Mohapatra & Anr. D.R.M., Waltair Rly. Division & Anr. -V- M/s. A.I.E. Valley Traders Pvt. 492 Ltd. & Ors. Dharmananda Pradhan -V- State of Odisha 572 Dhruba Charan Swain & Anr. -V- State of Odisha & Ors. 648 Dusasan Jena -V- State of Orissa 501 Gurmit Singh Bhatia -V-Kiran Kant Robinson & Ors. 449 Haren Mandal -V- State of Odisha 626 IRC Natural Resources Pvt. Ltd. -V- District Magistrate & Collector, 532 Sambalpur & Ors. Jayanti Devi @ Damayanti -V- Ramdeo Shaw & Anr. 498 Kartika Bag -V- State of Orissa 576 Kuntala Beura & Anr. -V- Baikuntha Bhol 529 Lalit Kumar Dalua -V- Govt. of Orissa & Ors. 549 M/s Anheuser Busch Inbev India Ltd. -V- State of Odisha & Ors. 457 M/s. Bharat Heavy Plate &Vessels,Visakhapatnam -V- Orissa Steel 513 Corporation, Bhubaneswar & Anr. M/s. Bharat Motors, Cuttack & Ors. -V- Savitri @Savitri Devi Bhawsinka 519 & Ors. M/s. Global Feeds -V- Commissioner-cum-Secretary, Govt. of Odisha, 483 Energy Dept. & Ors. Mallika Patnaik -V- Managing Director, OSFC & Ors. 473 Mamta Tripathy & Anr. -V- State of Orissa & Ors. 617 Paradeep Port Trust -V- Udayanath Rout 590 Paskul Behera & Anr. -V- State of Orissa 585 iv Prafulla Chandra Naik -V- Executive Director, Bank of Maharashtra & Anr. 556 Prahallad Mohanty & Anr. -V- D.G.P, CRPF & Ors. 563 Satya Sai Construction -V- State of Odisha & Ors. 466 Saudamini Das, since Dead, Her L.Rs & Ors. -V- Purusottam Pany 606 Sonia Pujari & Anr. -V- State of Orissa 578 Suresh Chandra Suara -V- State of Orissa (Vig.) 613 The Chairman, Odisha Gramya Bank -V- Abdul Ahad 477 The Marwah Company -V- National Thermal Power Corporation Ltd. 598 ACTS Acts & No. 1996-26….. Arbitration And Conciliation Act, 1996 1908-5….. Code of Civil Procedure, 1908 1973-2….. Code of Criminal Procedure, 1973 1950 Constitution of India, 1950 1872-9… Contract Act, 1872 2003-19… Electricity Act,2003 1956-78… Hindu Adoption & Maintenance Act, 1956 1860-45… Indian Penal Code, 1860 1988-59…. Motor Vehicle Act, 1988 1985-61…. Narcotic Drugs And Psychotropic Substances Act, 1985 1951-63… State Financial Corporation Act, 1951 1989-24… The Railways Act, 1989 RULES & REGULATION 1. Board’s Excise Rule, 1965 2. Bank of Maharashtra Officer Employees (Conduct) Regulations, 1966 3. Orissa Survey and Settlement Rules, 1962 v S U B J E C T I N D E X PAGE ARBITRATION AND CONCILIATION ACT, 1996 – Section 37 – Appeal – Challenge is made to the order passed under section 34 of the Act by the District Judge with regard to grant of pre and pendent lite interest – Grant of interest – Scope of – Held, considering the question of entitlement of interest pre and pendent lite and going through the above decision, this Court finds the legal position involving above issue is already settled to the extent that the Arbitrator had the jurisdiction and authority to award interest for three different periods, namely, the pre reference period i.e. the period between the date of cause of action to the date of reference, pendent lite i.e. the period between date of reference to the date of award and future period i.e. period between the date of award to the date of payment provided there is no express bar in the contract regarding grant of interest – However, where there is bar on the entitlement of pre and pendent lite interest, the Arbitrator as well as the District Judge erred in granting interest pre and pendent lite. Paradeep Port Trust -V- Udayanath Rout 2019 (II) ILR-Cut……… 590 Section 37 – Appeal challenging the order of District Judge passed in the proceeding under section 34 of the Act – Arbitration award – Award challenged under section 34 of the Act – During pendency of the proceeding under section 34 of the Act, an additional award passed allegedly without notice to the claimant – Claimant owing to delay in receiving the pending dues for a long time issued no due certificate and received the payment after adjustment as per the additional award – After that the claimant challenged the additional award and stated that the no due certificate has been obtained by coercion and duress – District Judge rejected the application holding that, the claimant had no scope for raising dispute involving the award or the additional award for his signing no claim certificate, granting a no due certificate and receipt of amount offered by the respondent – Whether such a finding is legal and justified? – Held, No – Reasons explained. The Marwah Company -V- National Thermal Power Corporation Ltd. 2019 (II) ILR-Cut……… 598 BANK OF MAHARASHTRA OFFICER EMPLOYEES (CONDUCT) REGULATIONS, 1966 – Regulation 33 Sub-Rule (2) – Compulsory retirement – Release of terminal benefit – Petitioner allowed basic pension of 66.67% out of total admissible pension & remaining 33.3% withheld – Board of Directors had not been consulted before releasing the said pensionable amount – Petitioner pleads that, as per Sub-Rule (2) of vi Regulation 33 of the Regulation before awarding less than full compensation pension, Board of Directors must be consulted – Action of the authority challenged – Held, applying sub-regulation (2) of regulation 33, there must be effective consultation with the Board of Directors since pension granted to the petitioner is less than the full compensation pension granted to the petitioner – Had the Board of Directors been consulted, the petitioner could have put forth his grievance claiming for full pension amount, instead of that the authorities have unilaterally granted 2/3 rd of pension applying above regulation which is arbitrary, unreasonable, contrary to the provision of law and also violates the rules of natural justice. Prafulla Ch.Naik -V- Executive Director, Bank of Maharashtra & Anr. 2019 (II) ILR-Cut……… 556 BOARD’S EXCISE RULES, 1965 – Rule 38 read with Section 90 of the Bihar and Orissa Excise Act, 1915 – Provisions under – Power to make rules – Amendment – Challenge is made to the amendment of the Rule-38 (13-A) of Board’s Excise Rules, 1965 by notification dated 17th April, 2001 thereby substituting the fees on bottling of beer @ Rs.3/- per bottle to be paid by the manufacturer after the beer is bottled and then be removed to the approved warehouse – Plea of competency of the Board questioned – Further plea that neither there being any power conferred on the Board nor there being any charging section in the Act, 1915, to levy or impose fees on bottling of beer and therefore the Rule 38 (13-A) of the Rules, 1965 be held ultra vires of Section 90 of Act, 1915 – Court considered all pleas. M/s. Anheuser Busch Inbev India Ltd. -V- State of Odisha & Ors. 2019 (II) ILR-Cut……… 457 CIVIL PROCEDURE CODE, 1908 – Order 1 Rule 10 – Application for impleadment as a defendant in the suit – Suit for specific performance of contract – Property in question sold during pendency of the suit – Purchaser wanted to implead himself as defendant – The question arose as to whether the plaintiff can be compelled to implead a person in the suit for specific performance against his wish and more particularly with respect to a person against whom no relief is sought for ? – Held, No – Reasons explained. Gurmit Singh Bhatia -V-Kiran Kant Robinson & Ors. 2019 (II) ILR-Cut……… 449 Order 6 Rule 17 – Application for amendment – Prayer to correct the cause title – Petitioner filed a petition for amendment of the cause title of the petitions filed under Order 1 Rule 10 CPC as well as under Order 7 Rule 11 CPC stating that due to inadvertence, application under Order 1 Rule 10 CPC was filed to implead the Chief Manager, Corporation Bank, as vii defendant instead of Corporation Bank represented through Chief Manager – Objection that it will change the nature and character of the suit – Held, No – Impugned order quashed.