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 (I) I L R - CUT . APRIL-2019 Pages : 641 to 848 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 J. P. DAS, M.A., LL.B. The Hon’ble Shri Justice Dr. A.K.MISHRA, M.A., LL.M., Ph.D. ADVOCATE GENERAL Shri SURYA PRASAD MISRA, B.Sc., LL.B. REGISTRARS Shri RADHA KRISHNA PATTNAIK, Registrar General Shri MANAS RANJAN TRIPATHY, Registrar (Administration) Shri TARA PRASAD RATH, Registrar (Vigilance) Shri CHITTA RANJAN DASH, Registrar (Judicial) Shri PRATAP KUMAR PATRA, Registrar (Inspection) iii N O M I N A L I N D E X PAGE Akshya Kumar Lenka -V- Bharat Charan Lenka & Ors. 777 Arati Sahoo @ Behera -V- State of Orissa (Vig.) 694 Authesh Kumar Keut @ Kunda -V- State of Orissa 781 Basanta Kisan-V- State of Orissa. 787 D.G. & I.G. of Police, Fire Services, Odisha & Anr. -V- Jyotish Chandra 676 Muduli. Daitary Swain-V- Kartika Swain & Ors. 659 Damodar Rout -V- State of Orissa. 841 Dhiren Kumar Mishra & Anr. -V- Kande Purty & Anr. 719 Durga Soren -V- State of Orissa. 830 Gitashree Dey -V- State of Orissa & Anr. 825 Janardan Mohanty -V- Union of India & Ors. 745 Kishore Kumar Mishra -V- State of Orissa,(VIG.) 710 Kumari Behera & Ors. -V- State of Orissa. 705 Lallu @ Dillip Sahoo -V- State of Odisha & Ors. 699 M/s. Indian farmers fertilizer Co-Operative Ltd.-V- M/s.Bhadra Products 794 M/s. Z. Engineers Construction Pvt. Ltd. & Anr. -V- Sri Bipin Bihari 724 Behera & Ors. Madhab @ Madhaba Ch. Pradhan -V- The State of Orissa. 836 Manoranjan Sa & Ors. -V- State of Odisha & Ors. 686 P. Bandopadhya & Ors. -V- Union of India & Ors. 641 Rama Deo -V- State of Orissa & Ors. 736 Ripudaman Singh -V- Balkrishna. 655 Sabyasachi Lenka & Ors. –V- State o f Odisha & Ors. 752 Satyanarayan Palai -V- Odisha Gramya Bank & Anr. 766 Shaw Wallace & CO. Ltd.-V- State of Odisha & Ors. 672 State Manager, ICICI Lombard Gen. Insurance Co. Ltd., Bhubaneswar 716 -V- Sarita Agrawal & Ors. iv State of Orissa & Anr. -V- Jaladhar Sha & Ors. 741 Sukanti Malik -V- The State of Odisha & Ors. 816 Superintending Engineer, Rengali Canal Circle & Anr.-V- Gokulananda 821 Jena. Supriyo Bose & Ors. -V- State of Odisha & Ors. 682 Sushama Meher -V- State of Orissa (Vig.). 827 Trinath Basant Ray & Anr. -V- Sk. Mohamood & Anr 667 ACTS Acts & No. 1985 - 13… Administrative Tribunal Act, 1985 1996 -26… Arbitration And Conciliation Act, 1996 1950 Cons titution of India, 1950 1973 -2….. Code of Criminal Procedure, 1973 1908 -5….. Code o f Civil Procedure, 1908 1972 - 5…. Forest Act, 1972 1947 -14…. Industrial Disputes Act, 1947 1860 -45…. Indian Penal Code, 1860 1885 -13…. Indian Telegraph Act, 1885 1988 -59…. Motor Vehicle Act, 1988 1980 - 65… National Security Act, 1980 1881 -26…. Negotiable Instrum ents Act, 1881 1988 -49…. Prevention of Corruption Act, 1988 v S U B J E C T I N D E X PAGE ADMINISTRATIVE TRIBUNAL ACT, 1985 – Section 2 – Definition – ‘Any other armed forces’ – The question arose as to whether writ petition against Odisha Industrial Security Force (OISF) an armed force constituted and maintained by the State Govt. is maintainable? – Held, yes – Reasons indicated. Sabyasachi Lenka & Ors. -V- State of Odisha & Ors. 2019 (I) ILR-Cut……… 752 ADVERSE POSSESSION – Suit for declaration of title on the basis of adverse possession of a Govt. Land – Decreed and confirmed in appeal – Second appeal by State – Admittedly the suit land is a Govt. land and recorded as Jalasaya – Plaintiffs paid penalty in encroachment case thus admitting the title of the State – Held, mere possession of the suit land for long time is not suffice to hold that the plaintiffs have perfected title by way of adverse possession, unless the classical requirements of adverse possession nec vi, nec clam, nec precario are pleaded and proved and the possession is not hostile to the real owner. State of Orissa & Anr. -V- Jaladhar Sha & Ors. 2019 (I) ILR-Cut……… 741 ARBITRATION AND CONCILIATION ACT, 1996 – Section 21 read with Section 43 – Commencement of arbitral proceedings vis-a-vis Limitations – Distinction between – Held, the period of limitation for commencing an arbitration runs from the date on which the "cause of arbitration" accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to require that an arbitration take place upon the dispute concerned – The period of limitation for the commencement of the arbitration runs from, the date on which, had there been no arbitration clause, the cause of action would have accrued: "Just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued" – Even if the arbitration clause contains a provision that no cause of action shall accrue in respect of any matter agreed to be referred until an award is made time still runs from the normal date when the cause of action would have accrued if there had been no arbitration clause., State of Orissa & another vrs. Damodar Das reported in (1996) 2 SCC 216 followed. M/s. Indian farmers fertilizer Co-Operative Ltd.-V- M/s. Bhadra Products. 2019 (I) ILR-Cut……… 794 vi Section 21 r/w Section 43 – Limitation in commencement of arbitral proceedings – Plea of limitation raised by respondent in an arbitration proceeding – Matter travelled from Arbitrator to Apex court – Finally the High court decided the issue as to from which date the cause of action arose and as to whether the arbitration proceeding is barred by limitation – From the fact situation it was held that there is no denial to the fact that the claimant vide notice dated 6.6.2011 made the claim for payment of balance sale price with interest as indicated therein, rather such claim was denied by the present appellant by its correspondence dated 27.9.2012 and finally the claimant- respondent issued a notice to opt for arbitration on 1.10.2014 and there appears no material in denial of any such notice by the appellant herein – Therefore, looking to the legal provision indicated above, this Court finds, even though there is no material/pleading as to when the notice dated 1.10.2014 by the claimant was received by the present appellant and further this Court not finding any dispute by the appellant on issuance of such notice, this Court finds, in the worse the cause of action in raising the arbitration proceeding at the minimum becomes 1.10.2014 – Direction to conclude the proceeding in four months. M/s. Indian farmers fertilizer Co-Operative Ltd.-V- M/s. Bhadra Products 2019 (I) ILR-Cut……… 794 Section 34 – Application challenging the award filed after the prescribed period – Delay – Application filed under Section 5 of the Limitation Act for condonation of such delay – Whether maintainable? – Held, no, the provision of Section 5 of the Limitation Act not applicable to arbitration proceeding. (Simplex Infrastructure Ltd. vrs. Union of India reported in (2019) 2 SCC 455 followed.) Superintending Engineer, Rengali Canal Circle & Anr.-V- Gokulananda Jena. 2019 (I) ILR-Cut……… 821 BOARDS OF EXCISE RULES, 1965 – Rule 39 A-(7) (b) read with Sections 38, 39 and 90 of Bihar and Orissa Excise Act, 1915 – Writ petition challenging imposition of five times penalty owing to long storage of beer or any stock of I.M.F.L. which has become unfit for human consumption – Plea that neither in the Act nor in the Rule any provision is available for imposition of such penalty – Action of the authority challenged – Held, when section 90 of the Act, which confers power on Board to make Rules, does not empower to make rules for imposition of penalty and as such the Clause (b) under Rule 39-A (7) of Boards of Excise Rules, 1965 which provides for imposition of penalty is without jurisdiction and is required to be struck down – The same is hereby struck down.