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 (II) I L R - CUT . NOVEMBER & DECEMBER-2018 Pages : 593 to 832 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 Shri Justice INDRAJIT MAHANTY, LL.M. (up to Dt. 14.11.2018) 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 BISW ANATH 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 .(up toDt. 22.11.2018) 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. iii N O M I N A L I N D E X PAGE Ahalya Padhi -V- State of Orissa & Ors. 787 Amarendra Bihari & Ors. -V- State of Orissa & Anr. 810 Benu Sethi & Ors.-V- Commissioner of Consolidation, Orissa, 778 Cuttack & Ors. Bhimsen Rout -V- State of Orissa & Ors. 753 Bipin Bihari Bishi -V- State of Odisha & Ors. 701 Biswanath Patra -V- State of Orissa. 815 Braja @ Birgu Lakra -V- State of Orissa. 740 Chandra Sekhar Swain -V- State of Odisha & Ors. 654 Dashrath Singh Chauhan -V- Central Bureau of Investigation. 593 Debi Prasad Pattnaik -V- State of Odisha & Ors. 716 Dolagovinda Pradhan & Ors. -V- State of Odisha & Bharat Mulia. 698 Gumudu Chittibabu -V- Kotni Narasimha Murty & Ors. 732 Jagannath Pattnaik -V- State of Odisha & Ors. 663 M/s Hindon Forge Pvt. Ltd. & Anr. -V- The State of Uttar Pradesh 599 Through District Magistrate Ghaziabad & Anr. M/s. Maa Santoshi Construction -V- State of Odisha & Ors. 638 M/s.Torrent Advertisers -V- M/s. OPPO Mobiles, Orissa Pvt. Ltd. 728 Gumudu Chittibabu Kotni Narasimha Murty & Ors. Manas Ranjan Nath -V- N.T.P.C. Ltd. Represented by its General 783 Manager, N.T.P.C., Kaniha, Angul & Anr. Namitarani @ Pratimarani Khuntia -V- State of Odisha, Represented 771 Through the Collector, Cuttack & Ors. Narendranath Dash -V- L.I.C. of India, Central Office, Mumbai & Ors. 647 Rabindra Sahu -V- State of Odisha & Ors. 709 Raja Brajendra Kishore Singh @ Raja Birendra Kishore Singh (Dead) his 760 Power of Attorney Holder, Braja Mohan Das -V- District Collector, Nayagarh. Rudra Prasad Dwibedi -V- State of Odisha & Ors. 726 State of Odisha & Ors. -V- Kirtan Bihari Singh. 682 iv Sunil Kumar Garg & Anr. -V- State of Odisha & Anr. 828 Tamilnadu Dr. MGR Medical University -V- SVS Educational 633 & Social Trust The Chief Manager, Indian Bank, Bhubaneswar -V- The General Secretary, 691 Indian Bank Employees Union. The Management, Berhampur Cooperative Central Bank Ltd. -V- State of 671 Odisha & Ors. ACTS & RULE Acts & No. 1996-10….. Arbitration and Conciliation Act, 1996 1950 Constitution of India, 1950 1973-2….. Code of Criminal Procedure, 1973 1908-5….. Code of Civil Procedure, 1908 1971-70… Contempt of Courts Act,1971 1860-45…. Indian Penal Code, 1860 1985-61…. Narcotic Drugs And Psychotropic Substances Act, 1985 2007-9…... Orissa Special Courts Act, 2006 1988-49…. Prevention of Corruption Act, 1988 2002- 54 Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 RULES:- 1. Orissa Civil Services (Classification, Control And Appeal) Rules, 1962 2. Orissa Civil Services (Pension) Rules, 1992 v S U B J E C T I N D E X PAGE ARBITRATION AND CONCILIATION ACT, 1996 – Section 9 – Application under for grant of interlocutory injunction – Appellant’s contract has been cancelled – Application for appointment of Arbitrator pending – Principles to be followed – Held, mandatory injunction should be granted in rarest of the rare cases as it amounts to granting the final relief – It can be passed only to restore status quo and not to establish a new state of things, differing from the position which existed at the date, when the suit was instituted – The contract has been cancelled – The petitioner has filed ARBP No.6 of 2018 before this Court under Section 11 of the Act for appointment of Arbitrator – The same is sub-judice – The alleged loss sustained by the petitioner can be quantified – Learned court below has rightly held that the petitioner will not suffer any irreparable loss and injury – There is neither any jurisdictional error nor perversity in the order passed by the learned court below. M/s. Torrent Advertisers -V- M/s. OPPO Mobiles, Orissa Pvt. Ltd. 728 2018 (II) ILR-Cut……… CIVIL SUIT – Claim for right to pathway over Govt. Land – Difference between ‘natural right’ and ‘right of easement’ – Indicated. Smt. Namitarani @ Pratimarani Khuntia -V- State of Odisha, Represented Through the Collector, Cuttack & Ors. 2018 (II) ILR-Cut……… 771 CIVIL SUIT – Claim for right to pathway over other person’s land – Appellant plaintiff purchased the adjacent land in 1988 – No recital in the sale deed nor in the map that there was any mention regarding existence of any path way over Schedule-‘B’ property – This leads to infer and show that at the relevant point of time of purchase of Schedule-‘A’ land by the plaintiff, there was no such user of any part of the land under Schedule-‘B’ property situated towards the north-west side of Schedule-‘A’ land – Appellant/ Plaintiff has alternative road – Held, this Court finds that such a natural right of way over the land under Schedule-‘B’ land is not available to the plaintiff and, therefore, the owner of said Schedule- vi ‘B’ land cannot be put to restrictive user of the same in any such manner. Smt. Namitarani @ Pratimarani Khuntia -V- State of Odisha, Represented Through the Collector, Cuttack & Ors. 2018 (II) ILR-Cut……… 771 CODE OF CIVIL PROCEDURE, 1908 – Section 100 – Second appeal – Suit for declaration of right, title and interest over two nos. of Tank – Suit as well as first appeal dismissed – Plea before the second appellate court to exercise power under Order 7 Rule 7 of the Code and grant relief of fishing right over the tanks as recorded in the remarks column of the ROR – No document filed by the plaintiff showing grant of such right – Held, mere recording of fishing right in remarks column of ROR would not be sufficient to grant such relief. Raja Brajendra Kishore Singh @ Raja Birendra Kishore Singh (Dead) his Power of Attorney Holder, Braja Mohan Das -V- District Collector, Nayagarh. 2018 (II) ILR-Cut……… 760 Order 14 Rule 2(2) – Provisions under – Application filed to decide some issues as preliminary issue on the question as to whether the suit is barred – Allowed – Order confirmed in first appeal – In second appeal the question arose as to whether the mixed question of fact and law can be taken as preliminary issue – Principles – Discussed. Gumudu Chittibabu Kotni Narasimha Murty & Ors. 2018 (II) ILR-Cut……… 732 Order 14 Rule 2(2) – Provisions under – Application filed to decide some issues as preliminary issue on the question as to whether the suit is barred – Allowed – Order confirmed in first appeal – In second appeal the question arose as to whether the mixed question of fact and law can be taken as preliminary issue – Principles – Discussed. Gumudu Chittibabu -V- Kotni Narasimha Murty & Ors. 2018 (II) ILR-Cut……… 732 vii CONSTITUTION OF INDIA, 1950 – Articles 226 and 227 – Tender – Claim of incentives for early completion of the work – Petitioner completed the work 72 days prior to the scheduled date of completion and meaning thereby he had completed 21.56% earlier than the scheduled time – Petitioner executed the agreement on 11.11.2013 and the amendment in OPWD Code was w.e.f 08.11.2013 – Objection raised that since the amendment was on 08.11.2013 and the agreement had been executed on 11.11.2013, and that the amended provision was not included in the agreement, the old provision as provided in the DTCN would be applicable – Question arose as to whether the incentive for early completion of contract work was to be given to the petitioner-contractor as per the conditions in the contract, or as per the latest amendment brought in the Odisha Public Works Department Code – Held, the latest amendment dated 08.11.2013 was to be taken into account as the provisions of the DTCN clearly state that the latest amendment would be applicable – Direction to pay the amount with interest. M/s. Maa Santoshi Construction -V- State of Odisha & Ors.