Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court: In an appeal filed challenging the Trial court ruling, convicting the accused under Section 302 of Penal Code, 1860 (‘IPC') a Division Bench of S Muralidhar CJ., and R K Pattanaik J. upheld conviction under Section 302 IPC by examining circumstantial evidence in detail and directed cancellation of his bail bonds and surrender forthwith, as the appellant was enlarged on bail during the pendency of the proceedings.

The present Appellant alongwith Bidyadhar Pradhan, were charged with the offence under Section 109 read with Section 302 IPC on the grounds of abetting the murder of Bhagabati Pradhan. After analyzing the evidence, the Trial Court convicted the present Appellant while acquitting the co-accused. Assailing this order, the present appeal was filed.

The Court noted that this is a case of circumstantial evidence. Placing reliance on Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116 Krishnan v. State, (2008) 15 SCC 430 and G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593, the Court reiterated the conditions to be fulfilled before conviction could be based on circumstantial evidence.

The first circumstance is regarding the quarrel that took place the previous night between the Appellant, the co-accused, on one hand and the deceased and her family on the other. The Court thus noted that no doubt the witnesses are related to the deceased but such relation, by itself, would not result in their testimonies being discarded if they are otherwise truthful and consistent with each other.

It was further noted that based on the evidence of witnesses, it not only supplies the motive for the offence, but also proves the fact that immediately prior to the occurrence on that very evening, the accused had threatened to finish off the deceased. As regards the recovery of evidence, the Court was of the view that it has been more than adequately proved by the IO himself by producing the relevant record. Even, the opinion of the doctor is more than sufficient for the Court to conclude that the death was homicidal in nature.

The Court remarked “the fact that the weapon of offence did not have bloodstains will not matter if all other circumstances form a continuous chain and clearly point to the guilt of the Appellant and no one else.”

The Court held that the evidence is not only consistent with the guilt of the appellant but is also inconsistent with his innocence. Thus, no error can be found in the impugned judgment of the trial Court holding the appellant guilty of the offence punishable under Section 302 IPC.

[Tapan Kumar Pradhan v. State of Orissa, 2022 SCC OnLine Ori 2447, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Basudev Pujari, Advocate, for the Appellant;

Mr. Pravat Kumar Muduli, Additional Government Advocate, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Case BriefsHigh Courts

   

Orissa High Court: In a case where a father (‘petitioner') is seeking compensation on the death of his seven-year-old daughter, a Division Bench of S. Muralidhar CJ. and R K Pattnaik J. directed the State (‘Opposite party') to pay compensation on account of negligence by its authorities.

The Petitioner's daughter was a student of Class-I at Kolhabeda Ashram School under Ghasipura Block in the district of Keonjhar. She was staying in the hostel of the said school when one day due to sudden collapse of a newly constructed area of the hostel, she succumbed to death . Aggrieved by the unfortunate death of a young girl, the father of the deceased filed the instant writ petition seeking compensation for her death.

The District Welfare Officer, Keonjhar submitted that the Petitioner had been provided with ex gratia sum of Rs.50,000/- apart from Rs.10,000/- paid out of the District Red Cross Society Fund. Also, the In-charge Head Sevak of the Ashram School was suspended for negligence committed by constructing a kitchen shed without obtaining permission from the competent authority as well as without any technical support.

Placing reliance on Nilabati Behera v. State of Odisha (1993) 2 SCC 746, Shyam Sundar v. State of Rajasthan (1974) 1 SCC 690 and Darshan v. Union of India, 1999 SCC OnLine Del 326, the Court in Jambeswar Naik v. State of Odisha in WP (C) No. 24882 of 2012 held that a clear case has been made out for grant of compensation for violation of the constitutional right to life of the two children, resulting in their avoidable deaths at a very young age.

The Court further noted that the negligence of the State authorities in using defective materials to construct a kitchen on the school premises has already been established during the enquiry. The death of the young child was totally avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.

The Court directed the Opposite Party-State to pay the petitioner a sum of Rs.10,00,000/- (Rupees Ten Lakhs) as compensation deducting the amount already paid to him by the State within a period of eight weeks from today. The aforesaid amount shall be directly deposited into the bank account of the Petitioner.

[Madhav Soren v State of Odisha, 2022 SCC OnLine Ori 2459, decided on 11-08-2022]


Advocates who appeared in this case :

Mr. Prabir Kumar Das, Advocate, for the Petitioner;

Mr. Ishwar Mohanty, Addl. Standing Counsel, Advocate, for the Respondent.


*Arunima Bose, Editorial Assistant has put this report together.

Appointments & TransfersNews

The President appoints Gourishankar Satapathy and Chittaranjan Dash, to be Judges of the Orissa High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.

 

 

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of Krushna Ram Mohapatra and Murahari Sri Raman, JJ. in a case where due to pandemic certified copy was not available on time while filing appeal , enclosure of impugned order copy available on GST portal as opposed to procedural requirement of certified copy must not result in compromising the matter to be decided on merits.

The present appeal arises from the rejection of the petitioner’s prior appeal against the order of the Joint Commissioner of CT & GST, dated 23-05-2022. The petitioner, Atlas PVC Pipes Ltd., claims to have filed an appeal against an order of the CT & GST Officer for a rise in demand, and it is further asserted that apart from adhering to the procedure for filing of the appeal, the petitioner could not submit the certified copy of the impugned order along with the appeal memo in time.

The petitioners contended the hyper-technical approach of the Appellate Authority left it remediless and that the Authority should have been more practical in its approach, by taking into consideration the pandemic situation.

While the defendants claimed that the Authority had sufficiently followed the principles of natural justice as it gave the petitioners the opportunity to adhere to the impugned procedure by specifying dates for compliance.

Reliance was placed on the judgment, In Re: Cognizance for Extension of Limitation, 2022 SCC OnLine SC 27, the Court held that the petitioner was entitled to the benefit of the exclusion of 7-day limitation as per Rule 108(3) of the OGST Rules, 2017. The Bench further made the observation that a mere delay in attaching a certified copy of the impugned order appealed against, should be treated a mere technical defect and the merit of the matter must not be disregarded in this respect.

The Court allowed the appeal accordingly and directed the petitioner to appear before the Joint Commissioner of State Tax (Appeal),so that the Appellate Authority may proceed to decide the present appeal on the basis of its merits.

[Atlas PVC Pipes Limited v. the State of Odisha, 2022 SCC OnLine Ori 2182, decided on 29-06-2022]


Advocates who appeared in this case :

Sudeepta Kumar Singh, Advocate, for the Appellant;

Sunil Mishra, Advocate, for the Respondents.


Orissa High Court
Case BriefsHigh Courts

   

Orissa High Court | Arindam Sinha, J. criticised the State for not following the procedure and granted compensation to a woman who conceived even after being sterilised by the State.

The petitioner underwent sterilisation operation on 02-01-2014, organised by the State. The petitioner had given an undertaking that if she misses her menstrual cycle, she was to report to the clinic, to which she did not. Eventually she was found to be pregnant. Being harmed by carelessness and unable to shoulder the costs of raising the kid, she petitioned the High Court for compensation from the State.

Counsel for petitioner Mr. Arjun Behera relied on “Standards for Female and Male Sterilization Services issued in October, 2006” by the Ministry of Health and Family Welfare, Government of India. Under Standards for Female sterilization, there is subheading 1.4.2 on Clinical Assessment and Screening of Clients, to be made prior to the operation. Clause-b under the sub-heading has entry-v, which says as under.

“Menstrual history: Date of last menstrual period and current pregnancy status.”

He made use of an Family Planning Indemnity Plan that the Ministry of Health and Family Welfare of India, through the Family Planning Division, released in October 2013 and which offers coverage upto Rs 30, 000 in the event of failure of sterilization . He emphasized that this process had to be followed in advance of the operation. After failing to cooperate, the State cannot now claim that the child was delivered full term in an attempt to prove that his client was pregnant at the time the sterilization procedure was carried out.

The court was informed that the petitioner’s last menstrual period occurred on 22-12-2013, and her sterilization procedure took place on 02-01-2014. The petitioner had agreed that she would go to the clinic and seek medical termination of pregnancy if she missed her menstrual period right away following the surgery. Counsel for respondent Mr. Sailaja Nanda Das stated that since the petitioner hasn’t done so, she is no longer able to claim that the process failed and thus, is not liable to seek compensation.

The Court noted that the State appeared to have failed to enquire about the petitioner’s current pregnancy status prior to completing the sterilisation surgery. The Court further ruled that the State’s counterclaim did not directly dispute the petitioner’s assertions. The Chief District Medical Officer was cited as having testified to the counter as an affidavit. It was ruled that the doctor’s evasive denial was insufficient to persuade the court to disbelieve the petitioner’s assertions.

Thus, the Court granted compensation at par with limit as mentioned in the Indemnity Plan of Rs 30,000 alongwith Rs 20,000 which must be paid to the petitioner within three week of communication and this money is to be spent on the benefit of the child.

[Shriya Channchan v. State of Orissa, 2022 SCC OnLine Ori 1156, decided on 24-06-2022]


Advocates who appeared in this case :

Mr. Arjuna Ch. Behera, Advocate, for the Petitioner;

Mr. Sailaja Nanda Das, Advocate, for the Respondent.

Orissa High Court
Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and R.K. Pattnaik, JJ. issued a declaratory writ to the effect that the impugned notification dated 11-08-2016 issued by the Information and Public Relations Department, Government of Odisha under Section 24(4) of the Right to Information Act, 2005 (‘RTI Act’), will not permit the Government to deny information pertaining to the Vigilance Department involving allegations of corruption and human rights violations, and other information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department.

The instant petition was filed by way of PIL challenging the notification dated 11-08-2016 issued by Commissioner-cum Secretary, Information and Public Relations Department, Government of Odisha under Section 24(4) of the RTI Act, providing that nothing contained in the RTI Act “shall apply to the General Administration (Vigilance) Department” of the Government of Odisha “and its organization”.

The Court observed that Section 24(1) of the RTI Act is similarly worded as Section 24(4) of the RTI Act, with one difference being that the former relates to ‘intelligence and security organizations, being organizations established by the Central Government’ whereas Section 24(4) of the RTI Act pertains to those established by the State Government. However, in both instances, where information that is sought is in respect of allegations of violations of human rights, prior approval of the Information Commission concerned, Central or State, as the case may be, is required. Thus, the legislative intent is to provide information, and not to withhold it, particularly when it pertains to allegations of corruption and human rights violations.

The Court while rejecting the contention of the opposite party that the information that stands protected from disclosure under Section 8 of the RTI Act will somehow straightway become available to an applicant in the absence of the impugned notification under Section 24(4) of the RTI Act, noted that what stands protected by Section 8 of the RTI Act would remain as such and additionally when such information pertains to allegations of corruption and human rights violations, the proviso to Section 24(4) of the RTI Act would have to be considered as well. Thus, it is not as if such information would be straightway made available to a person seeking such information. In processing the request by an applicant seeking information regarding violation of human rights or involving corruption, regard will be had to Section 8 of the RTI Act. That is the true purport of the non obstante clause at the beginning of Section 8 of the RTI Act. In effect, therefore, there is no conflict between Section 8 on the one hand and the proviso to Section 24(4) of the RTI Act on the other.

Placing reliance on Md. Abid Hussain v. State of Manipur, 2015 SCC OnLine Mani 129 wherein it was observed that “if there are any information which do not impinge upon the confidentiality of the sensitive activities of the organization and if such information is also relatable to the issues of corruption or violation of human rights, disclosure of such information cannot be withheld. Similarly, in respect of the police organizations in the State of Manipur if anybody seeks any information which does not touch upon any of the sensitive and confidential activities undertaken by the police department and if the said information also can be related to the issues of any allegation of corruption or violation of human rights, such information cannot be withheld.”

Further reliance was placed on CBSE v. Aditya Bandhopadhyay (2011) 8 SCC 497 wherein it was observed that “Section 8 should not be considered to be fetter on the right to information, but as an equally important provision protecting other public interest essential for the fulfillment and preservation of democratic ideals.”

The Court concluded that the impugned notification in so far as it seeks to exempt the entire Vigilance Department of the Government from the view of the RTI Act would run counter to the first proviso to Section 24(4) of the RTI Act. In other words, the notification insofar as it prevents disclosure of information concerning the General Administration (Vigilance) Department even when it pertains to allegations of corruption and human rights violations would be contrary to the first proviso to Section 24(4) of the RTI act and, by that yardstick, would be unsustainable in law. If under the RTI Act disclosure is the norm, and non-disclosure is the exception, then the impugned notification seeks to take away what is provided by the RTI Act and is therefore ultra vires the RTI Act.

The Court thus held “the General Administration (Vigilance) Department of the Government of Odisha cannot, notwithstanding the impugned notification dated 11th August 2016, refuse to divulge information pertaining to corruption and human rights violations, which information is expressly not protected from disclosure by virtue of the first proviso to Section 24(4) of the RTI Act. Also, information that does not touch upon any of the sensitive and confidential activities undertaken by the Vigilance Department, cannot be withheld”

[Subash Mohapatra v. State of Odisha, 2022 SCC OnLine Ori 2014, decided on 20-06-2022]


Advocates who appeared in this case :

Mr. S.P. Das, Advocate, for the petitioner;

Mr. S.N. Das and Mr. Srimanta Das, Advocates, for the opposite parties;

Case BriefsSupreme Court

Supreme Court: The vacation bench of AS Bopanna and Vikram Nath, JJ has issued notice returnable in 3 weeks in the matter where one Mohd. Naseer, who has been in custody since 14.02.2019 for being charged under the Prize, Chits & Money Circulation Schemes (Banning) Act, 1978.

Prior to this, the Petitioner had been arrested on 20.07.2009 and was granted bail on the same date. He was then not arrested till 14.02.2019 even though the charge-sheet was filed on 09.12.2016. It has hence been argued before the Court that the same is against the law laid down by the Supreme Court in Siddharth v. State of UP, (2022) 1 SCC 676 and Aman Preet Singh v. CBI, 2021 SCC OnLine SC 941, wherein it was held that if the accused has not been arrested during the course of the investigation and has cooperated with the investigation then there is not requirement of arrest post filing of charge-sheet.

Further, the petitioner had applied for bail before the Orissa High Court and the order was reserved on 12.06.2020. It has been argued that he is confined in jail awaiting adjudication of the case since then. Notably, the Petitioner has already been detained for more than 3 years where the total period of incarceration in case of conviction is maximum 7 years.

“The Petitioner has already been in custody for more than 3 years post filing of charge-sheet, wherein the Trial against the Petitioner has already begun and there is hardly any possibility of early conclusion of the Trial.”

The petitioner, who suffers from a permanent disability of blindness by birth, has submitted before the Court that the prolonged detention is against the fundamental rights of the Petitioner under Article 21 of the Constitution of India.

[Mohd. Naseer v. Directorate of Enforcement Government of India, 2022 SCC OnLine SC 767, order dated 13.06.2022]


Counsels

For petitioner: Sr. Adv Siddharth Bhatnagar, AORs Swarnendu Chatterjee and Gaurav and Advocates Yashwardhan Singh, Himanshu N and Raman Yadav

Calcutta High Court
Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharyya, J. allowed a petition directing the CESC Ltd. to restore the electricity supply of the petitioner unconditionally. 

Counsel for the petitioner submitted that initially the petitioner’s electricity supply was disconnected by the CESC Ltd. but subsequently, pursuant to an order of this Court and upon deposit of an amount of money, the same was restored. 

Division Bench of this Court, in MAT 225 of 2018, had directed the petitioner to deposit the balance sum of Rs.2,42,985/- within a limited period, on which the CESC Ltd. was to restore the supply of electricity within 48 hours of the deposit. He further submitted that despite such specific order and on deposit of the directed sum by the petitioner within the period as stipulated by the Division Bench, the CESC Ltd., during pendency of the appeal, which had been taken on board duly in the meantime, sent further communications to the petitioner, insisting upon payment of the entire amount of the disputed bill. 

Counsel appearing for the CESC Ltd. harps on the conduct of the petitioner which, according to him, inordinately delayed the appeal. It was also pointed out that petitioner deliberately did not take any steps for early disposal of the appeal. It was further communicated that in the light of the above situation, it was presumed that the petitioner was no longer interested to pursue the appeal and, as such, fifteen days’ time was given to the petitioner to settle and pay the balance amount of dues, failing which the CESC Limited warned that they shall reluctantly be compelled to apply for dismissal of the appeal without any further reference. 

Counsel for the petitioner submitted, further, that the CESC Limited had disconnected the electricity supply of the petitioner in the meantime due to non-payment of such balance amount.  

The Court reiterated that the Division Bench had clearly specified that that the right to enjoy the electricity shall be subject to the decision of the appellate authority. In the event the deposit was not made, the appeal presently filed before the appellate authority was to stand dismissed. 

 

The Court therefore held that since the amount of RS.2,42,985/- was duly deposited by the petitioner within the time as stipulated by the Division Bench, there cannot arise any question of the appeal having been dismissed. It was further held that it was beyond the authority of the CESC Ltd. to presume on its own that the appellant was no longer interested to pursue the appeal and consequentially disconnect the electricity supply for non-payment of the balance dues on the disputed bill, even during pendency of the appeal. 

 

The Court while allowing the appeal deprecated the act on the part of the CESC Ltd., directing the CESC Ltd. to restore the electricity supply of the petitioner unconditionally, without prejudice to the rights and contentions of the parties in the pending appeal, within 24 hours. 

[Aktar Hossain  v. CESC Ltd., WPA No. 8959 of 2022, order dated: 06-06-2022] 


For the Petitioner: Mr Bidyut Kumar Halder,  Mr Indranil Halder

For CESC Ltd.: Dr Madhusudan Saha Roy


*Suchita Shukla, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President is pleased to appoint Shri Sanjay Kumar Mishra, to be a Judge of the Orissa High Court, with effect from the date he assumes charge of his office.


Ministry of Law and Justice

[Notification dt. 3-6-2022]

Case BriefsHigh Courts

Orissa High Court: A.K. Mohapatra, J. directed to process the application for grant of family pension to the transgender woman as expeditiously as possible preferably within a period of six weeks from the date of communication of a certified copy of the order.

The facts of the case are such that the father of the petitioner late Balaji Kondagari was a Government servant working in Rural Development Department under Executive Engineer RW Division, Rayagada. After the death of late Balaji Kondagari his wife was sanctioned the family pension but after she expired due to old age the present petitioner applied for family pension under Rule 56 of the Odisha Civil Services (Pension) Rules, 1992 i.e Rules 1992 to the Executive Engineer RW Division, Rayagada as petitioner and her sister come under the category of unmarried daughter, widow or divorced daughter and as such eligible to get family pension. The present writ petition was filed by the petitioner with a prayer for a direction to the opposite parties to sanction family pension in favour of the petitioner, who is a transgender (women) and unmarried daughter of late Balaji Kondagari within a stipulated period of time.

Counsel for the petitioner submitted that since the petitioner belongs to transgender community, the authorities are treating the petitioner in a discriminatory manner and not sanctioning the family pension as is due and admissible to her after the death of her parents and is in gross violation of the pension rules as provided under rule 56(5)(d) Rules, 1992.

Rule 56(1) Odisha Civil Services (Pension) Rules provides for pension to specific class of family members of deceased Government employee entering into Government service and was holding a post in a pensionable establishment on or before 01.01.1964 and family pension to specific class of family members of the deceased Government servant, who was a Government servant and retired / died on or before 31.12.1963. Further the Pension Rules, 1992 under Rule 56(5)(d) provides that family pension is also payable in case of any unmarried daughter even after attaining the age of 25 years till her marriage or death whichever is earlier subject to condition that the monthly income of the daughter does not exceed Rs.4,440/- per month from employment in Government, semi Government, statutory bodies, corporation, private sector, self-employment shall be eligible to receive family pension.

The Court relied on judgment NALSA v. Union of India, (2014) 5 SCC 438 has recognized the right of the transgender community as citizens of the country at par with other. It was further stated in the judgment

“135.2 Transgender persons’ right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.”

The Court opined that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992.

The Court directed the authorities to “consider and disburse the family pension within a stipulated period of time.” [Kantaro Kondagari v. State of Odisha, W.P. (C) No.4779 of 2022, decided on 20-05-2022]


Appearances

For Petitioner: Mr Omkar Devdas, S. Dash, A. Suhail and P. Ray

For Opp. Parties: Mr K.K. Nayak


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: V Narasingh, J. disposed of the bail application and restrained the Court to not grant any further adjournments and released the petitioner on bail.

The facts of the case are such that the petitioner is an CCL i.e. child in conflict with law and an accused on the files of Additional Session Judge-Cum- Special Judge Protection of Children from Sexual Offences Act i.e. POCSO Act, Bargarh, arising out of J.G.R. under Sections 450/307/302/34/120-B of Penal Code, 1860 i.e. IPC and is in custody since 08-12-2018. Being aggrieved by the rejection of her application for bail U/s.439 Cr.P.C. by the Additional Session Judge-Cum- Special Judge POCSO Act, Bargarh, by order dated 23-07-2019 in the aforementioned case, the present BLAPL was filed.

The petitioner is in custody since 08-12-2018. The Court called for up to date information of the investigation and the case by various notices but the case diary was not made available to this Court.

The Court observed that as the petitioner is in custody since 08-12-2018, she cannot be allowed to suffer because of the apathy of investigating agency. The proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis.

The Court remarked “It is indeed disconcerting that the concerned District police administration have scant regard for the orders passed by this Court and have chosen to disregard repeated communication from the office of the Advocate General for submission of Case Diary for which the Case has to suffer adjournments.”

The Court further remarked It is fervently hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.

The Court thus held “Considering the age of the petitioner and the period of custody this Court is constrained not to grant any further adjournment to the counsel for the State.”

It was directed to the authorities “the petitioner to be released on bail on such terms to be fixed” [Roshni Meher  v. State of Odisha, 2022 SCC OnLine Ori 1393, decided on 12.05.2022]


Appearances

For Petitioner: Mr. D.P. Pattanaik

For Opposite Party: Ms. S. Mishra


Arunima Bose, Editorial Assistant has reported this brief.

Appointments & TransfersNews

President appoints S/Shri (1) V. Narasingh, (2) Biraja Prasanna Satapathy and (3) Murahari Sri Raman, to be Judges of the Orissa High Court, in that order of seniority, with effect from the date they assume charge of their respective offices.


Ministry of Law and Justice

[Notification dt. 10-2-2022]

Appointments & TransfersNews

Supreme Court Collegium has approved the proposal for the elevation of the following Advocates as Judges in the Orissa High Court:

1. Shri V. Narasingh,

2. Shri Sanjay Kumar Mishra,

3. Shri Biraja Prasanna Satapathy, and

4. Shri Sri Raman Murahari @ M.S. Raman.


Supreme Court of India

[Statement dt. 29-1-2022]

Case BriefsHigh Courts

Orissa High Court: The Division Bench of Dr S. Muralidhar, CJ and A.K. Mohapatra, J., partly allowed an appeal filed in a property dispute, after applying the doctrine of substantive representation.

The instant appeal was directed against the decision of the Single Judge.

Background

The facts of the present matter were that Baina and Dayanidhi Ghose were the two children of the second wife of the son of late Nandi Ghose who was the common ancestor. Of the two sons Pahali and Dhinu, the latter branch was extinct. Pahali had two wives. Ganesh was the son of the first wife and Baina (Defendant 1), Nandu and Dayanidhi (the plaintiff) were the children of the second wife. Ganesh died leaving four sons Abhinash, Krutibash, Kailash and Srinibas.

Further, it was stated that Kailash died leaving behind his widow Dhira, defendant 5 and daughter Jema (defendant 6). Baina’s sons were defendants 7, 8, 9 and 10. Nandu died leaving his wife Padmabati, who also died and therefore Nandu’s branch had become extinct.

Hence, the dispute was between the plaintiff/appellant on the one hand i.e., defendants/respondents 1 and 7 to 10 on the other hand.

Plaintiff-appellant stated that in an earlier partition, Ganesh took Ac 4.40 dec of land and was separated from the joint family.

Property described in Schedule ‘Kha’ of the plaint were ancestral and those in “Ga” were the properties acquired in the name of defendant 1 as Karta of the joint family out of the joint family nucleus.

Earlier, Padmabati, widow of Nandu had filed a partition suit and by compromise, the suit was decreed.

Plaintiff’s case was that Defendant 1 Baina Ghose had obtained a deed of partition dated 27th March 1962 under which he allegedly took a larger share than what he was entitled to. It was alleged that land of an area of Ac 10.00 which was the joint family property was left out of the partition deed. Plaintiff was allotted Ac13.00 dec of land in Schedule ‘Kha’ and ‘Ga’ Schedule property of Ac 4.00 was kept joint.

Trial Court upheld the validity of the partition deed. ‘Ga’ schedule properties having been kept joint under the partition deed were directed to be partitioned.

Single Judge also held that ‘Ga’ Schedule properties were the self-acquired properties of Defendant.1 in which the Plaintiff has no share. Accordingly, the first appeal was dismissed.

Questions for Consideration

Whether the First Appellate Court was right in holding ‘Ga’ Schedule properties to be the self-acquired properties of defendant 1?

Analysis, Law and Decision

High Court noted that although several of the parties, even some of those brought on record as legal representatives have themselves expired and have had to be substituted, the LRs of the main contesting parties viz., sons of appellants 1,2 and 3 and daughter (appellant 4)  and the LRs of Baina Ghose, the main contesting defendant have been on record.

Theory of ‘substantive representation’ was explained in this Court’s decision of Sarat Chandra Deb v. Bichitrananda Sahoo, AIR 1951 Ori 212, where it was held that:

“…once the representation was proper, the decree was binding and could not be reopened.” 

In the present matter,

while all the LRs/all the Respondents may not be present in these proceedings, since the main contesting parties in the suit are represented in the Court applies the doctrine of substantive representation and proceeds with the hearing of the appeal.

Bench accepted the plea that the Single Judge ought not to have held the property Schedule ‘Ga’ to be the self-acquired property of the original defendant. Once it was clear that the properties in ‘Ga’ were to be apportioned between the parties i.e. between two brothers, it was incumbent on the Single Judge to have acknowledged that position and not framed an issue.

Hence, appeal was partly allowed by clarifying that the properties in ‘Ga’ will be treated as a joint and be partitioned between two main contesting parties and their respective LRs. [Hatanagar Ghose v. Durgamani Ghose, 2021 SCC OnLine Ori 2078, decided on 5-11-2021]


Advocates before the Court:

For the appellants: Mr Avijit Pal, Advocate

Appointments & TransfersNews

Appointment of a Judge


President appoints Shri Aditya Kumar Mohapatra as a Judge of the Orissa High Court.


Ministry of Law and Justice

[Notification dt. 3-11-2021]

Case BriefsHigh Courts

Orissa High Court: The Division Bench of Dr S. Muralidhar, CJ and B.P. Routray, J. disposed of a writ petition while noting with approval the directions issued by Special Relief Commissioner relating to bursting of green fireworks for a limited period on Diwali day.

Supreme Court in its detailed order on 29-10-2021, had passed an order wherein it was observed that,

“8. Considering the fact that earlier directions issued by this Court which have been issued by this Court from time to time in the larger public interest and having found that such use of banned fireworks affects the health of the other innocent citizens including the senior citizens and the children, it is the duty of all the States/State Agencies to see that the directions issued by this Court in the earlier orders reproduced hereinabove are strictly complied with. No authority can be permitted the violation of the directions issued by this Court and permit banned firecrackers under the guise of celebration. Celebration cannot be at the cost of the other’s health. Under the guise of 9 celebration, nobody can be permitted to infringe the right to health of the others, guaranteed under Article 21 of the Constitution of India and nobody can be permitted to play with the life of the others, more particularly the senior citizens and the children. It is made clear that there is no total ban on use of firecrackers. Only those firecrackers are banned, as directed hereinabove, which are found to be injurious to health and affecting the health of the citizens, more particularly the senior citizens and the children. 

9. Before passing any further orders and while adjourning the present application, we again reiterate the directions issued by this Court earlier reproduced hereinabove including banning the use of Barium Salts in the firecrackers and manufacturing and selling joined firecrackers and other directions issued by this Court reproduced hereinabove. We direct all the States/Union Territories to see that the directions issued earlier by this Court and issued by this Court today are strictly complied with in its true spirit and in toto. Any lapse on the part of the State Governments/State Agencies and Union Territories shall be viewed very seriously and if it is found that any banned firecrackers are manufactured, sold and used in any particular area, the Chief Secretary of the concerned State(s), the Secretary (Homes) of the concerned State(s) and the Commissioner of Police of the concerned area, District Superintendent of Police of the concerned area and the SHO/Police Officer in-charge of the concerned police station shall be held personally liable. Nobody can be permitted to flout and/or disobey the directions issued 10 by this Court/Courts. Any wilful and deliberate disobedience shall have to be viewed very seriously.”

In the above said Order, Supreme Court directed the States/UTs to give due publicity through electronic media/print media/local cable services “to make the people aware and know the directions issued by this Court issued with respect to manufacture, use and sale of banned firecrackers.”

Special Relief Commissioner after referring to the orders of the Supreme Court order dated 29-10-2021 passed an order on 31-10-2021 issuing certain directions. Directions issued by Special Relief Commissioner:

“….In the light of the order dated 29.10.2021 passed by the Hon’ble Supreme Court, the following directions are passed in respect of sale and use of fireworks during the festival of Diwali:

A. Sale and use of fireworks shall be limited to only “green fireworks” that conform to the definition and formulation as proposed by CSIR-NEERI.

B. Sale and use of other fireworks shall be completely banned. Sale and use of joined firecrackers (series crackers or laris) shall also remain banned.

C. Only those traders/dealers who obtain and produce a certificate from the PESO, after due inspection of their existing stock, certifying that the green fireworks stocks in their possession conform to the definition and formulation proposed by CSIR-NEERI and are genuine shall be allowed to sell their products.

D. Authenticated copy of the PESO certificate granted after due inspection of existing stocks lying in possession of the traders/dealers shall be deposited with the District Administration/Police Commissioner for getting permission to sell the green fireworks.

E. Traders/dealers who fail to obtain and produce the certificate from PESO shall not be allowed to sell their products, keeping the “precautionary principle” in mind. Mere labeling of fireworks boxes as “green fireworks” and providing QR codes shall not entitle any trader/dealer to sell the same.

F. Only those retailers who obtain a license from the concerned authorities under the provisions of the Indian Explosive Act, 1884 shall be allowed to sell green fireworks.

G. Retailers shall be allowed to set up shops and sell green fireworks only in special zones designated by the respective District Administrations/Police Commissionerate.

H. Green fireworks shall only be sold at designated sites and all COVID-19 protocols shall be strictly followed. Sale of Fireworks on the internet shall be strictly banned.

I. Wholesale Traders and Retailers shall have to produce original invoices on demand by the District Administration/Police Commissionerate.

J. The use of fireworks shall be limited to 8:00 pm to 10:00 pm on Diwali day, i.e., 04.11.2021 only. Use of fireworks beyond the said time frame shall be visited with strict penal action.

K. Violation of any of the aforesaid conditions shall be dealt with strictly and penal action shall be taken in accordance with law.

L. The District Administration/Police Commissionerate is directed to ensure strict compliance with the above conditions.

M. The District Administration/Police Commissionerate shall ensure full & complete compliance of the orders above through proper verification of the documents as mentioned supra and proper enforcement so as to ensure no spurious/unauthorized/banned fire crackers are sold anywhere within their jurisdiction. Further, the local officers shall be personally liable for violations of the orders of Hon’ble Apex Court, Hon’ble National Green Tribunal and Hon’ble High Court of Odisha.”

Senior Counsel for the Petitioners welcomed the Order of the Special Commissioner and expressed an apprehension that the Petroleum and Explosive Safety Organisations may not be able to comply with the directions issued in paras C and D.

The reasoning of the Counsel’s apprehension was “since it has a relatively a small team of officers, and the task before it was rather daunting.”

Court stated that it would be open to PESO to expand its team of personnel to implement the directions at para C and D, considering that this is a festival season.

Bench was of the opinion that no further directions were needed and disposed of the matter with directions as mentioned above. [All Odisha Fireworks Dealers Assn. v. Union of India, 2021 SCC OnLine Ori 1844, decided on 1-11-2021]


Advocates before the Court:

For the Petitioners:

Mr. Gautam Mukherji, Senior Advocate Mr. Mark Wright, Advocate Ms. Ankita Mukherji, Advocate

For the OPs:

Mr. Ashok Parija, Advocate General (State)

Mr. Debakanta Mohanty, Addl. Government Advocate Mr. P.K. Parhi, Asst. Solicitor General Mr. Debasish Tripathy, Central Government Counsel Mr. Susanta Mishra, Advocate (O.P. No.6)

Case BriefsHigh Courts

Orissa High Court:  A Division Bench of S.K. Mishra and Savitri Ratho, JJ., dismissed the petition being devoid of merits.

The instant petition was filed by Hi-Tech Edifice Pvt. Ltd., Khurda- in all and prayed to declare the proviso to Sub-Section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 (“the Act, 2016”) to be ultra vires of the Constitution of India.

The Petitioner asserts that Proviso to Sub-Section (5) of Section 43 of the Act, 2016 is vague and arbitrary inasmuch as it provides for three different, disproportionate and illusory modes of calculation of the amount to be deposited in the Appellate Tribunal by the promoter, as a precondition for the appeal to be entertained by the Tribunal. It is further submitted that the provision leaves an unbridled power in the hands of the Authority in that regard.

The Court relied on judgment Tecnimont Pvt. Ltd. v. State of Punjab, 2019 SCC OnLine SC 1228  and observed that a condition of pre deposit imposed by legislature in their wisdom cannot be considered to be unconstitutional not being unreasonable or onerous. It was also observed that Section 43 of the Act provides for three modes of calculation of the amount to be deposited in the Appellate Tribunal by the promoter as a precondition for the appeal to be entertained by the Appellate Tribunal. The intention of the legislature behind providing three different modes for calculating the amount to be deposited in the Appellate Tribunal before entertaining appeal depends on facts of each case. The facts may vary from case to case and hence it is not necessary or advisable to provide a strait jacket formula for every case. Hence, a pre deposit conditional order is quite reasonable. A concessional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner.

It was observed in M. Nagaraj v. Union of India, (2006) 8 SCC 212

“19. Constitution is not an ephermal legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.”.

The Court further observed that while granting the right of appeal the legislature can impose condition for the exercise of such right. As long as the conditions are not so onerous, that it amounts to unreasonable restrictions rendering the right almost illusory.

A provision cannot be held to be unconstitutional being unreasonable and arbitrary. The admitted amount received from the allottee should be kept in deposit as condition precedent because the further right of the allottee to get compensation and penalty will be considered at the time of final hearing of the appeal. As such the right of the allottee will be protected and the proceeding will be finalized at an early date.

The Court observed the provision of sub-section (3) provides for deposit of amount which is already calculated by the Authority in a quasi judicial proceeding after taking into consideration all the materials available on record, a condition imposing a pre deposit by the promoter is not unreasonable or onerous.

The Court held “Sub-Section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 is not arbitrary, unreasonable or onerous requiring the same to be declared ultra vires.” [Hi Tech Edifice Pvt. Ltd. v. Union of India, 2021 SCC OnLine Ori 1633, decided on 07-10-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For Petitioner:  Mr Subhankar Rout

For Opp. Party 1 &2: Mr B.Nayak, Mr P. K. Parhi and Mr D. R. Mohapatra

For Opp. Party 3: Ms R Ronald

For Opp. Party 4: Mr M. Agarwal

Appointments & TransfersNews

Appointment of Judges | Orissa High Court


Following 3 Judges appointed to Orissa High Court:

  • Mrugankar Sekhar Sahoo
  • Radha Krishna Pattanaik
  • Sashikanta Mishra

Ministry of Law and Justice

[notification dt. 13-10-2021]

Case BriefsHigh Courts

Orissa High Court: A Division bench of S. Muralidhar CJ and B.P Routray J. allowed the petition and sets aside the impugned assessment order and the consequential demand order being unsustainable in law.

 The background facts are that the Petitioner firm is engaged in the business of manufacturing/processing of cashew nuts into cashew kernel. It filed its original return of income on 18-10-2016 for the AY 2016-17 declaring the total income at Rs 8,94,1000/-. The Authorized Officer undertook a survey operation under Section 133A of the Act and instead of survey assessment Opposite Party 2 invoked the jurisdiction under Section 153C of the Act for making a block assessment for the AYs 2010-11 to 2016-17. The challenge in the present writ petition is to an assessment order dated 29-12-2017 passed by the Assistant Commissioner of Income Tax, Central Circle-I, Bhubaneswar (Opposite Party 2) under Section 143(3) read with Section 153 C of the Income Tax Act, 1961 (‘Act’) for the Assessment Year (AY) 2016-17 and the second notice of demand of the same date issued by the Opposite Party 2 under Section 156 of the Act calling upon the Petitioner to pay a sum of Rs 7,71,81,350/-.

Counsel for the petitioner Mr S. Ray, submitted that there was no recording of satisfaction by the AO of the searched Persons and the materials seized during the said search revealed the undisclosed income of the present Petitioner and no such note of satisfaction was transmitted to the AO having jurisdiction to assess the present Petitioner under Section 153C of the Act. It was further submitted that even the assessment orders passed under Sections 153A in respect of the searched persons do not indicate that any incriminating materials vis-à-vis the present Petitioner was found during the course of search.

The Court observed that in the present case the documents relied upon by the AO were found in the course of survey of the Petitioner and not during the search of the aforementioned two persons viz., Sri Jami Ramesh and Sri Jami Sivasai against whom the search authorization was issued under Section 132 of the Act.

The Court relied on judgment Pepsi Foods P. Ltd. v. Assistant Commissioner of Income Tax (2014) 367 ITR 112 (Delhi) where it was observed as under: 

“On a plain reading of Section 153C, it is evident that the Assessing Officer of the searched person must be “satisfied” that inter alia any document seized or requisitioned “belongs to” a person other than the searched person. It is only then that the Assessing Officer of the searched person can handover such document to the Assessing Officer having jurisdiction over such other person (other than the searched person). Furthermore, it is only after such handing over that the Assessing Officer of such other person can issue a notice to that person and assess or re-assess his income in accordance with the provisions of Section 153A. Therefore, before a notice under Section 153C can be issued two steps have to be taken. The first step is that the Assessing Officer of the person who is searched must arrive at a clear satisfaction that a document seized from him does not belong to him but to some other person. The second step is – after such satisfaction is arrived at – that the document is handed over to the Assessing Officer of the person to whom the said document “belongs”. In the present cases it has been urged on behalf of the petitioner that the first step itself has not been fulfilled. For this purpose it would be necessary to examine the provisions of presumptions as indicated above. Section 132 (4A) (i) clearly stipulates that when inter alia any document is found in the possession or control of any person in the course of a search it may be presumed that such document belongs to such person. It is similarly provided in Section 292C (1) (i). In other words, whenever a document is found from a person who is being searched the normal presumption is that the said document belongs to that person. It is for the Assessing Officer to rebut that presumption and come to a conclusion or “satisfaction” that the document in fact belongs to somebody else. There must be some cogent material available with the Assessing Officer before he/she arrives at the satisfaction that the seized document does not belong to the searched person but to somebody else. Surmise and conjecture cannot take the place of “satisfaction”.”

The Court further relied on judgment PepsiCo India Holdings P. Ltd. v. Assistant Commissioner of Income Tax (2015) 370 ITR 295 (Del) wherein it was observed that

“From the foregoing discussion, it is evident that in order that the Assessing Officer of the searched person comes to the satisfaction that documents or materials found during the search belong to a person other than the searched person, it is necessary that he arrives at the satisfaction that the said documents or materials do not belong to the searched person.”

The Court thus held that in view of the clear legal position explained in the above decisions, and in the absence of incriminating materials vis-à-vis the present Petitioner being found in the course of the search of the searched persons viz., Sri Jami Ramesh and Sri Jami Sivasai, the impugned assessment order and the consequential demand order are unsustainable in law and are hereby set aside.[Sri Sai Cashews v. Chief Commissioner of Income Tax, Writ Petition (Civil) No. 2936 of 2018, decided on 23-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Mr Sidhartha Ray, Advocate

For Opposite Parties: Mr R.S. Chimanka

Case BriefsHigh Courts

Orissa High Court: S. K. Sahoo, J., dismissed the petition being devoid of merits and upheld the conviction passed in the impugned order.

The facts of the case are such that victim, a student of Class-VII was returning home from the school in her bicycle along with her younger sister aged about ten years when the appellant obstructed their path and wrongfully restrained the victim near a tank of village Renupada and dragged her to a nearby field and committed rape on her. FIR was registered before the Inspector in-charge of Basta police station, Basta P.S. under Sections 341/376(2) (i) of the Penal Code, 1860 and section 4 of the POCSO Act.  The investigation was thereby conducted and chargesheet was submitted. The learned trial Court on analyzing the oral as well as documentary evidence on record, hold that the the appellant was guilty under Section 341 IPC and section 4 of the POCSO Act whereas the prosecution has failed to establish the charge under section 376(2) (i) of the Indian Penal Code. It is this order which is under challenge in the present petition.

During course of investigation, the school admission register was seized which reveals the date of birth of the victim as thirteen years of age at the time of occurence and hence the victim was a “child” as per section 2(d) of the POCSO Act.

The Court observed that the ingredients of the offence under section 4 of the POCSO Act which prescribes punishment for penetrative sexual assault, it appears that the “penetrative sexual assault” has been defined under section 3 of the POCSO Act. Section 3(b) is relevant for the purpose of this case wherein it is stated that a person is said to commit penetrative sexual assault, if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person. Thus, inserting a finger into any of the three parts of the child victim i.e., vagina, urethra and anus makes out the offence of “penetrative sexual assault” as defined under section 3(b) of the POCSO Act.

The Court observed that the act of the appellant in coming in front of the victim and her sister and catching hold of the handle of the bi-cycle to stop their movement which led them to fall on the ground, in my humble view, clearly makes out the ingredients of the offence “and therefore, I find no infirmity in the conviction of the appellant under section 341 of the Indian Penal Code.”

The court thus held “there is no illegality in the impugned judgment and order of conviction passed by the learned trial Court and the appellant has been rightly found guilty under section 341 of the Indian Penal Code and section 4 of the POCSO Act.”

 [Lilu v. State of Odisha, JCRLA No. 37 of 2018, decided on 12-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.