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 , BLAPL No. 4649 of 2021, 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.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar and B. P. Routray, JJ., addressed the issue of the problems encountered in the effective implementation of the various statutory provisions towards maintaining the ecological balance in the area.

Background (Significance of Chilika Lake)

  1. In 1981 the Chilika Lake was designated as the first Indian wetland of international importance under the Ramsar Convention on Wetlands, an inter-governmental treaty entered into by 169 countries of the world, which deals with conservation aspects of inland waters and the near shore coastal areas.
  2. A unique feature of the Chilika Lake is that it is adjoining the Bay of Bengal and therefore, there is salt water predominance in the lake during summer. During the rainy season, sweet water displaces the salt water and flows into the sea. Fish of the lake swim to the sea to lay eggs. The juveniles then return to the lake to grow. Chilika fish thus possess a peculiar distinct taste.

 The instant batch of petitions were filed regarding concerns of the threats posed to the ecology of the Chilika Lake on account of unregulated, indiscriminate fishing, including the large-scale production of shrimps/prawns on commercial scale.

 Observations

The Court relied on judgment S. Jagannath v. Union of India, (1997) 2 SCC 87 and M. K. Balakrishnan v. Union of India in Writ Petition (Civil) No.230 of 2001 and observed that numerous directions have been issued rfrom time to time but there has been a huge failure on the part of law enforcement. It was further observed that there is no dearth of statutory provisions, or authorities constituted thereunder or powers of those authorities to carry out steps to ensure the preservation of the ecology of the Chilika lake and regulate the activities of fishing, coastal aquaculture including shrimp/prawn production. Numerous committees have also been constituted from time to time to examine the issue. There also have been Task Forces constituted at periodical intervals.

The Court observed that the purport of the provisions of the Coastal Aquaculture Authority Act, 2005 i.e. the CAA Act is to ensure that all persons undertaking the activity of coastal aquaculture in a coastal area have to compulsorily get the operation/farms registered. If they do not have any such registration as mandated under Section 13 (1) read with Section 13 (4) (5) and (9), then straightaway they invite action under Section 14 of the CAA Act. Thus it is clear that in a coastal area there cannot be any coastal aquaculture activity undertaken unless there is registration under the CAA Act and if a person operating a coastal aquaculture farm is unable to produce a valid registration as well as the license, such person cannot be allowed to continue to operate.

The Court also remarked that even while the eviction/demolition drives are undertaken, those erecting and operating the illegal prawn/shrimp farms are able to revive the activity in the very same area in a very short time.

Findings of the Court

  1. There is a failure to invoke the statutory provisions that resultant the FIRs being registered only under some relatively benign provisions of the Indian Penal Code (IPC)
  2. There was inaction of the Authority under the CAA Act in nominating an officer under Section 15 of the CAA Act to file complaints under Section 14 of the CAA Act.
  3. failure to fill up the vacancy of the posts of Chairperson and Members of the Authority under the CAA Act. plethora of authorities including the CDA have not really taken effective measures

Specific Directions laid down

  1. The Court accordingly directs that each of the STFs will

(i) Prepare and operate a check list of what should be seized during the raid;

(ii) Ensure that the seized materials are taken away far from the site, properly inventorised and kept under the watch of the authorities till the conclusion of the criminal cases;

(iii) Promptly register FIRs invoking all the available statutory provisions and importantly the PDPPA Act.

 General Directions

The Court directed “the CDA to be proactive in this regard and continuously draw the attention of the authorities concerned to the extent and complexity of the problem. raids conducted in the different districts is sporadic and not continuous. This gives enough time to the violators to regroup and revive their activities.” 

The Court directed the demolition should be not only of the illegal prawn gherries but also of illegal prawn hatcheries.

The Court directs that each of the demolition actions must be videographed to show that not only have they been effectively demolished but all the equipments used have actually been seized and taken away far from the site and detained in the custody of the authority concerned.

The Court further directed each of the Collectors of Puri, Ganjam, Kendrapara and Khurda to immediately apply to the National Centre for Sustainable Coastal Management in Chennai and obtain satellite imagery of the areas in which the illegal shrimp/prawn farms and hatcheries are operating; place those satellite imagery maps before the Court to indicate the exact locations of such illegal farms and hatcheries,

The Court further directed “the concerned Police Stations in each of the four Districts to ensure that the investigation in each of these FIRs is not delayed; the charge-sheets are properly filed; that the cases are taken to the logical end without undue delay.”[Registrar Judicial v. Union of India, 2021 SCC OnLine Ori 1123, decided on 14-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances

For petitioner- Mr Mohit Agarwal, Amicus Curiae and Mr S. K. Dalai

For respondent- Mr. P. K. Parhi, Mr. M. S. Sahoo, Mr. V. Narasingh, Mr. Manoj Kumar Mohanty, Mr. Sukant Kumar Nayak, Mr. B. P. Pradhan, and Mr. S. K. Sarangi

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar, CJ and S.K. Panigrahi, J. gave a slew of directions regarding the issue of overcrowding in jails.

The instant case came up before the Court via videoconferencing to address the issue of overcrowding in jails.

Amicus Curiae (AC) Mr Gautam Misra, submitted that the figure of the present population in Odisha especially based on one district jail at Phulbani, one Special Sub-Jail at Bhadrak and eleven sub-jails in each of which the overcrowding ranges between 161 to 260% as available on the website of the Inspector General (I.G.), Prisons was last updated on 31-05-2021.

State filed affidavits and submitted that as of 3rd June 2021, 737 convicted prisoners were released on Special Parole (furlough) for a period of 90 days each pursuant to the order dated 7th May 2021 passed by the Supreme Court of India in Suo Motu W.P.(C) No.1 of 2020 and 89 convicted prisoners were released on furlough for a period of 14 days each during the months of April and May, 2021.

Few Facts submitted with regard to Overcrowding

  1. Steps are being taken for release of 106 life convicts who are recommended by the State Sentence Review Board on different dates for premature release.
  2. As regards to overcrowding, as of 3rd June, 2021, 1239 inmates have been shifted/being shifted from overcrowded jails to less populated jails.
  3. Government buildings with adequate security, secured boundary walls order to accommodate prisoners” are being selected for Temporary prisons.
  4. As of 31st May, 2021 the excess present population in Bhadrak was 242%, in Malkangiri it was 214%, in Paralekhamundi it was 209%, in Nayagarh it was 163% and in Jajpur it was 220%.
  5. As on 31st May, 2021 the present population is 237 in Kodala Sub-Jail where the scheduled accommodation is 93 and the excess is 255%. In Nuapada Sub-Jail there are 125 prisoners whereas the scheduled accommodation is 48, thereby having an excess of 260%.

Female and Male Inmates above 60 years

The Court relied on Suo Motu v. State of Madhya Pradesh in W.P. (C) No.9320 of 2021and directed to consider suggestions by AC regarding female prisoners as well as male prisoners above the age of 60 years.

The Court held affidavit be filed by the IG Prisons updating the statistics and the exact numbers of prison inmates shifted from one jail to the other, or to some other suitable location and asked IG Prisons to remain present in virtual mode with the relevant records to answer any query concerning the said affidavit.

The Court held “rather than ad hoc measures which serve only the present needs, a long term plan to deal with the issue of overcrowding in prisons has to be drawn up on urgent basis and be placed before this Court before the next date.”

The case is next listed for 26-08-2021.[Krushna Prasad Sahoo v. State of Odisha, 2021 SCC OnLine Ori 984, decided on 16-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Advocates before the Court:

For Petitioners- Mr Gautam Misra,

For Opposite Parties- Mr M.S. Sahoo

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar, CJ and S.K. Panigrahi, J., directed to ascertain the actual living conditions and medical facilities available to the leprosy patients in the State.

The instant petition under Article 226 of the Constitution of India was filed in the nature of public interest litigation seeking inter alia directions to the Opposite parties – State authorities for effective implementation of the National Leprosy Eradication Programme (NLEP) and to give directions for composite post-management treatment and eradication of leprosy form the State.

Submissions

  1. Despite interventions through the National Leprosy Eradication Programme (NLEP) and integrating it with the general health system, the incidence of leprosy has not gone down.
  2. While the State of Odisha was quick to declare Odisha as leprosy free State in 2006-07, it dismantled several posts of paramedical workers and field officers that earlier existed to deal with the situation.
  3. There is a callous neglect by the State authorities to the medical and health care needs of leprosy patients as training program of a three day training program is devised to train Multi-Purpose Health Workers (MPHW) and 2 days’ training given to Block Nodal Leprosy Worker (BNLW) to convert them to LTPWs which is inadequate.
  4. Not even single counselor, dresser or health care staff has been appointed by the Government of Odisha to provide counseling services to the victims of leprosy and their family members.

The Court relied on Pankaj Sinha v. Union of India, (2014) 16 SCC 390 as the facts and prayers are very similar and laid down extensive directions

  • The Union and the States are to undertake periodical national surveys for determining the prevalence rate and new cases detection rate of leprosy and, at the same time, publish and bring the reports of the National Sample Survey of Leprosy conducted in 2010-11 and subsequent thereto into the public domain. That apart, the activities of the National Leprosy Eradication Programme (NLEP) must be given wide publicity
  • On leprosy day which is internationally observed every year on the last Sunday of January, the Union of India along with all State Governments should organize massive awareness campaigns to increase public awareness about the signs and symptoms of leprosy and the fact that it is perfectly curable by the Multi Drug Therapy (MDT). Awareness should also be spread about the free availability of MDT at all government health care facilities in the country, the prescribed course for MDT treatment and all other relevant information related to MDT. The content and information contained in the awareness programmes should discontinue to use frightening images of people disabled with leprosy and instead use positive images of cured persons sharing their experiences of being cured of leprosy;
  • The Union and the States are to ensure that drugs for management of leprosy and its complications including the MDT drugs are available free of cost and do not go out of stock at all Primary Health Centres (PHCs) or, as the case may be, public health facilities in the country;
  • All-year awareness campaigns should also be run, by the Union as well as the States, to inform the citizenry that under the National Leprosy Eradication Programme (NLEP), treatment is provided free of cost to all leprosy cases diagnosed through general health care system including NGOs
  • The Union and the States must organize seminars at all levels which serve as platforms to hear the views and experiences directly from the former patients and their families as well as doctors, social workers, experts, NGOs and Government officials;
  • The awareness campaigns must include information that a person affected by leprosy is not required to be sent to any special clinic or hospital or sanatorium and should not be isolated from the family members or the community. The awareness campaigns should also inform that a person affected with leprosy can lead a normal married life, can have children, can take part in social events and go to work or school as normal. Acceptability of leprosy patients in the society would go a long way in reducing the stigma attached to the disease;
  • Health care to leprosy patients, at both Government as well as private run medical institutions, must be such that medical officials and representatives desist from any discriminatory behaviour while examining and treating leprosy patients. Treatment of leprosy should be integrated into general health care which will usher in a no-isolation method in general wards and OPD services. In particular, it must be ensured that there is no discrimination against women suffering from leprosy and they are given equal and adequate opportunities for treatment in any hospital of their choice. To this effect, proactive measures must be taken for sensitization of hospital personnel;
  • Patients affected with leprosy, for whom partial deformity can be corrected by surgery, should be advised and provided adequate facility and opportunity to undergo such surgeries;
  • The possibility of including leprosy education in school curricula so as to give correct information about leprosy and leprosy patients and prevent discrimination against them should be explored;
  • The Union and the State Governments must ensure that both private and public schools do not discriminate against children hailing from leprosy affected families. Such children should not be turned away and attempt should be made to provide them free education;
  • Due attention must be paid to ensure that the persons affected with leprosy are issued BPL cards so that they can avail the benefits under AAY scheme and other similar schemes which would enable them to secure their right to food;
  • The Union and the States should endeavour to provide MCR footwear free of cost to all leprosy affected persons in the country;
  • The States together with the Union of India should consider formulating and implementing a scheme for providing at least a minimum assistance, preferably on a monthly basis, to all leprosy affected persons for rehabilitation;
  • The Union and the State Governments must proactively plan and formulate a comprehensive community-based rehabilitation scheme which shall cater to all basic facilities and needs of leprosy affected persons and their families. The scheme shall be aimed at eliminating the stigma that is associated with persons afflicted with leprosy.
  • The Union Government may consider framing separate rules for assessing the disability quotient of the leprosy affected persons for the purpose of issuing disability certificate in exercise of the power granted under the Rights of Persons with Disabilities Act, 2016

The Court directed “Director, Health Services, Odisha should specifically address the above issues and place before this Court by the next date by way of an affidavit the complete up to date statistics regarding (a) prevalence of leprosy of both varieties (b) status of compliance with each of the directions issued in Pankaj Sinha as far as Odisha is concerned (c) Status of availability of treatment, beds, drugs (including MDT) at the various hospitals, PHCs, health care centres in urban and rural locations (d) status of filling up of vacant posts of medical officers and staff.”

 The case was next listed for 02-09-2021.[Bipin Bihari Pradhan v. State of Odisha, 2021 SCC OnLine Ori 972, decided on 14-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner- Mr B.K. Ragada

Opposite Parties- Mr M.S. Sahoo

Case BriefsCOVID 19High Courts

Orissa High Court: A Division Bench of S Muralidhar, CJ and Savitri Ratho, J. directed independent inquiry by a retired District Judge to elicit the complete facts and submit a report accordingly.

The instant petition was filed highlighting, inter alia, the health crisis and Covid-19 mismanagement in western Orissa as there was an alleged lack of proper medical facilities at the Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), Burla, Sambalpur. It was also alleged, inter alia, that the medical professionals and authorities in charge of VIMSAR’s management had behaved irresponsibly and displayed insensitivity to the plight of the Covid- 19 victims. A letter was sent to the Collector & District Magistrate, Sambalpur, asking him to “make a discreet inquiry into the matter and furnish a report” to the Department. According to the said report, there was no shortage of medicine and no lack of proper treatment or facilities.

Mr Gyanadutta Chouhan, the Petitioner in person, filed nine affidavits of persons whose close relatives purportedly suffered on account of lack of proper or timely treatment at the Veer Surendra Sai Institute of Medical Sciences and Research (VIMSAR), Burla, Sambalpur during the Covid-19 pandemic.

The Court observed that each of the nine affidavits reveal prima facie that the victims did not receive the requisite medical treatment at VIMSAR and that needless deaths had occurred as a result thereof.

The Court further observed affidavits of the nine deponents’ raises serious questions involving the fundamental right to health which is an inherent part of right to life under Article 21 of the Constitution. VIMSAR is one of the premier medical institutions of the State catering to the medical needs of the population of western Odisha. It has to function in the manner befitting its status of providing the highest standard of care and treatment to everyone for that purpose. 

The Court directed “an independent inquiry by a retired District Judge be held in Sambalpur itself to elicit the complete facts and submit a report to this Court on completion of such inquiry”

Directions issued are as follows:

(i) Mr A.B.S. Naidu, a former District Judge is appointed as Inquiry Officer to examine the instances set out in the nine affidavits filed in this Court by the Petitioner and in particular whether there was medical negligence in the treatment of the victims of those cases.

(ii) Registry is directed to provide a copy of the complete set of records of this writ petition including the nine affidavits to Mr Naidu at the earliest.

(iii) The Government of Odisha shall take immediate steps for completion of necessary formalities by the publication of the Notification within a week from the date of receipt of the order. The Inquiry Officer within a period of one week from the date of publication of the Notification will initiate the process of inquiry by giving a public notice both electronically as well as in the print media inviting affidavits of the persons (other than those nine who have already submitted affidavits) who have been victimized by lack of proper treatment and care at VIMSAR and fixing an outer limit for receiving such affidavits which in any event should not be more than 15 days from the date of publication of such notice.

(iv) The place of enquiry shall be the premises of the District Court at Sambalpur. The District Judge, Sambalpur shall provide the space in the premises of the District Court for holding such enquiry. The Opposite Party-Government through the local administration shall provide all necessary infrastructure as well the Secretarial Staff and other support services as would be required by the Inquiry Officer without any delay to enable him to function and conduct the enquiry as quickly as possible.

(v) The Superintendent of Police, Sambalpur will also ensure the safety, security of the Inquiry Officer, his records and generally the premises where the enquiry shall be held by deploying sufficient police personnel as may be determined by the SP, Sambalpur on an assessment of the situation.

(vi) The Inquiry Officer will be paid an honorarium of Rs 2.00 (two) Lakh per month by the Government of Odisha for the enquiry which will be concluded within a period of 3 months from the date of commencement of such enquiry. In any event, the enquiry report should be made available to this Court by the Inquiry Officer not later than 1st November, 2021. The incidental expenses of the Inquiry Officer in conducting the enquiry and his functioning shall be borne by the Government of Odisha as per the bills raise on actual basis without any delay. The Government of Odisha will also provide the Inquiry Officer, the transport and conveyance facility besides his temporary accommodation.

(vii) Full cooperation be extended to the Inquiry Officer by the local administration and in particular by the Management, medical personnel, staff and workers of VIMSAR.

(viii) The Inquiry Officer will ensure that the relevant records for treatment of the victims available in VIMSAR is immediately secured and kept in a sealed cover with the custody of the Inquiry Officer.

(ix) The Inquiry Officer will draw up the procedure for conducting enquiry, and the schedule for completion of the pleadings, receipt of affidavits and examination of witnesses, within a week of taking over the inquiry, and give it wide publicity in the print media and on the internet. He may create a website for the office of the inquiry. The Inquiry Officer is at liberty to devise a flexible procedure consistent with the needs of the situation without overlooking the basic requirement of the rules of natural justice so as to subserve the ends of justice.

(x) It will be open to the Petitioner to participate in the enquiry proceedings and place the necessary documents and further information before the Inquiry Officer. In particular, he should provide forthwith the Inquiry Officer the original affidavits of nine individuals filed by him in this Court.

(xi) The Inquiry Officer will in his report also give suggestions, after consulting expert witnesses, on the steps taken to improve the existing medical infrastructure and the standard of medical treatment and care provided at VIMSAR and generally in other government medical/health facilities. He will give his suggestions regarding payment of compensation where the allegation of lack of proper medical treatment and care and/or medical negligence stands established.

The matter is next listed for 08-11-2021.[Gyanadutta Chouhan v. Additional Chief Secy to Government, Health and Family Welfare Department, WP (C) No.17152 of 2021, decided on 07-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For petitioner: In-person

For Respondent: Mr. M.S. Sahoo

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi J. allowed the bail application. by imposing some stricter terms and conditions and made clear that any of the observations made shall not prejudicially affect the fair trial of the present case.

The petitioner is the National Chairman of Dharma Rakshyak Shri Dara Sena and is accused of uploading a message in a WhatsApp group urging people to join him on a mission to assault the former Chief Justice of India i.e. CJI with shoes when the Bench headed by the CJI refused to give permission for observance of the CAR FESTIVAL (Rath Yatra) in the year 2020 at Puri. He believed that the former CJI is solely responsible for halting the Rath Yatra and aggrieving Hindu sentiments and therefore portrayed the former CJI as a Naxalite and Christian Terrorist and also allegedly made provocative statement inciting hatred and communal disharmony among the people of the nation. He was booked for commission of offences punishable under Sections 153/153-A/153-B/295-A/504/505/506 of the Penal Code, 1860 i.e. IPC read with Section 66(F) of the Information Technology Act,2008 i.e. IT Act. The petitioner filed instant bail application.

The Court considered the submission made by the petitioner and relied on judgment Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 wherein it was observed

“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept inmind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”

The Court thus held “this Court is inclined to allow the prayer of the petitioner.

It also held “Accordingly, the court in seisin over the matter will enlarge the petitioner on bail by imposing some stricter terms and conditions.”

[Mukesh Jain v. State of Odisha, BLAPL No. 3740 of 2021, decided on 06-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

Counsel for petitioner: Adv. J. Samantaray

Counsel for respondent: Adv. Mr. M.K. Mohanty

Case BriefsHigh Courts

Orissa High Court: S. K. Panigrahi, J., dismissed the bail application being found defective as the affidavit was sworn by the advocate’s clerk.

 The facts of the case are such that FIR was registered against two persons who were arrested in connection with the case alleged commission of offence punishable under Section 395 of the Penal Code, 1860. Previously bail applications moved was filed by the petitioner before the learned SDJM, Koraput as well as the learned Additional Sessions Judge, Koraput which was rejected on the ground that if the petitioner is enlarged on bail, it would hamper the investigation. Aggrieved by the above order, the petitioner filed the instant application under Section 439 of CrPC seeking bail.

The Court found that the affidavit accompanying the petition has been filed by one Tophan Pradhan who is the advocate’s clerk-in charge who has sworn that he is looking after the case on behalf of the petitioner.

The Court observed that advocate’s clerk swearing an affidavit claiming to be “looking after” a case before this Court is in gross violation of the Orissa High Court Rules. Chapter VI – General Rules. The Court noted that the Courts have always come down heavily on the practice by initiating contempt proceedings where they have discovered that an advocate’s clerk has falsely signed an affidavit.

What is an affidavit? 

The word “Affidavit” has its roots in a Latin word that literally means to “pledge one’s faith.” An affidavit is an affirmation of truth. It is a willing declaration made in writing, signed by a deponent and accompanied by an oath to prove the veracity of its contents. In India, the law on affidavits is governed by Order XIX of the Code of Civil Procedure, 1908.

It is observed that the very essence of an affidavit lies in the fact that the person deposing the same, affirms on oath that all the representations made in the affidavit are true and correct to the best of his knowledge and “courts have strongly deprecated the practice of affidavits being sworn by someone who has no knowledge of the facts or who has no means of achieving said knowledge”.

The Court observed that the Advocate-client relationship is quite clearly accepted as a fiduciary relationship and the communication is privileged and confidential. It is strictly between the client and the Advocate. Neither the brief nor is the permission to represent a party to be shared by the Advocate with his clerk. An advocate’s clerk signing an affidavit instead of the party himself or a person designated/authorised by the party or the Advocate holding the Vakalatnama is unacceptable and such attempts to subvert the law is impermissible.

An advocate’s clerk as defined in The Orissa Advocates’ Clerks Welfare Fund Act, 2008 is as under:

“2 – b) “Advocates’ clerk” means a clerk employed by an Advocate and recognized by such authority and in such manner as may be prescribed and who is a member of an Advocates’ Clerks’ Association;”

The Court observed that an advocate’s clerk cannot swear affidavits in a perfunctory manner for petitions/applications on behalf of a party before the court, especially those which include facts beyond his personal knowledge or where he cannot completely explain how he derived knowledge of the facts he has affirmed. 

The Court relied on judgment Amar Singh v. Union of India, (2011) 7 SCC 69 wherein it was observed

“64. …..perfunctory and slipshod affidavits which are not consistent either with Order 19 Rule 3 CPC or with Order 11 Rules 5 and 13 of the Supreme Court Rules should not be entertained by this Court. In fact three Constitution Bench judgments of this Court in Purushottam Jog Naik [AIR 1952 SC 317], Barium Chemicals Ltd.[AIR 1967 SC 295] and A.K.K. Nambiar [(1969) 3 SCC 864] and in several other judgments pointed out the importance of filing affidavits following the discipline of the provision in the Code and the said Rules.”

Whether an advocate’s clerk is empowered to swear an affidavit?

 The Court relied on judgment Tamizhaga Panchalai Thozhilalar Sangam v. Presiding Officer, 2012 SCC OnLine Mad 3105

“23. Though under the Vakalat, an Advocate is authorised to appear and defend the proceeding, has the duty to represent the proceedings, a Party to the lis cannot fix responsibility on the clerk. The brief is not in held in trust, by the advocate’s clerk. Neither the Civil Rules of Practice nor the rules framed by the High Court to regulate the registration of recognized clerk and communicated to the lower courts, enable the pleader’s clerk to file an affidavit on behalf of the litigant. Where the Advocate’s clerk, has committed a bona fide or inadvertent mistake or there is an accidental omission, or typographical error in a pleading by the typist engaged by the pleader in his office, it is the litigant or the pleader, to file an affidavit, explaining the reasons for the said mistake, on the basis of his personal knowledge, or information, as to the facts pleaded. There cannot be any extension of the vakalat given to an Advocate, to a Clerk or to a typist, to any other employee, in the Pleader’s office, to act on behalf of a party. Authorisation given under Vakalat cannot be extended to an Advocate Clerk for the purpose of swearing an affidavit.”

 It was further observed that an advocate’s clerk who has no personal knowledge of the facts of the case, nor is independently empowered to swear such an affidavit is not permitted in law to file a token and mechanical affidavit. When the Rules clearly lay out the form, content and degree of knowledge required to be included in an affidavit, to ensure the reliability and veracity of the same, any affidavit which is not in strict consonance with the same has to be discarded.

Exceptions and their scope

Rule 4(iii) of the Orissa High Court Rules contemplates that in cases where this court exercises appellate powers, as in cases involving civil or criminal revision as well as cases where the Court is exercising its power of Review, a specific exception has been made wherein the affidavit by the parties may be dispensed with and the accompanying affidavit can be filed by an advocate’s clerk. This specific exception was made, perhaps, keeping in mind that in certain cases, as aforementioned, the records of the case are already present in the records of the Court. In such a situation, the advocate’s clerk is not required to furnish any additional new information or put forth any original fact. That is the only extent to which such an exception may be made.

The Court held the question of an affidavit being filed by an advocate’s clerk is impermissible and perverse. When a rule provides for an exception, it has to be strictly construed and cannot be diluted.”

Rules of affidavits summarized:

  1. An affidavit must strictly be restricted to the facts that the deponent is able to prove are within his own knowledge
  2. In certain situations, i.e., in interlocutory applications, if the deponent chooses to rely on other sources on which he bases his belief, the details of such person, document, etc. must clearly be stated and it must be explained how the information was procured;
  3. An affidavit may be presented either by the petitioner, or the declarant or the Pairokar, or advocate or such person as duly appointed in writing only;
  4. If a petition is filed from the judgment or order of a Subordinate Court, where the facts are borne out by the records of the Court, an affidavit signed and dated by the Advocate’s Clerk may be accepted as per Rules; and
  5. Any affidavit not in complete compliance with the provisions shall not be relied upon or used.

[Thabir Sagar v. State of Odisha, 2021 SCC OnLine Ori 679, decided on 18-06-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Ms. Niranjan Lenka , H.K. Mohanta, N. Lenka, P.K. Barik and K.K. Pattnaik,

Advocates For Opposite Party: Mr. S.S. Mohapatra

Case BriefsHigh Courts

Orissa High Court: A Division Bench of B. R. Sarangi and K. R. Mahapatra, JJ., allowed the petition and directed to execute the lease deeds in favour of the petitioners for permanent settlement. 

The facts of the case are such that one Late Bira Kishore Kar, son of Late Krushna Chandra Kar was the original lessee of the case land which was granted in his favour for a period of 30 years w.e.f. 01.04.1973 valid up to 01.04.2003. Late B.K. Kar sold the aforesaid land to the present petitioners vide registered sale deeds executed on 04.11.1985 with due consideration, and since then all the petitioners are residing on the homestead land having constructed residential houses thereon and are in peaceful possession over the same. The petitioners are also paying holding tax as well as rent in respect of the suit land. Mr B. K. Kar also had a residential house over the said land which was separately mutated in the name of the petitioners and Records of Rights were also published separately in favour of each of the petitioners.  After registration of these Khasmahal lands the petitioner applied for a permanent settlement to the Collector, Cuttack for favour of approval as required under Rule 3(a) of Orissa Government Land Settlement Rules, 1983 (for short “OGLS Rules, 1983”) which was returned several times on flimsy grounds. Even in the recommendation of the Tahsildar, matter remains pending before Collector, Cuttack. The present petition was filed in the nature of mandamus to command the authority to permanently settle the leasehold lands in favour of the petitioners.

Counsel for the petitioners submitted that the petitioners are in possession of the leasehold land,

by constructing their residential houses over the same, for more than five years as on the appointed date and the Tahasildar, Sadar, Cuttack having recommended the case of the petitioners for permanent settlement, in view of the position of law that the leasehold estate of the Khasmahal land is heritable and transferable with a right of renewal, the Collector, Cuttack should have approved the leasehold land for permanent settlement in accordance with the provisions contained in Section 3(4)(c) of the OGLS Act, 1962 read with Rule-5-B of the OGSL Rules, 1983 read with Rule 3(a) of the Schedule-V of OGLS Rules, 1983.

The Court relied on judgment Satyapriya Mohapatra v. Ashok Pandit, 1984 SCC OnLine Ori 82 wherein it was held

“4. ………………. It has been held therein that a leasehold estate in the Khasmahal land is heritable and transferable with a right of renewal. It has also been held that the right of lease in respect of such land is in no way different from that which one has in his own private land. The lessee’s right in the Khasmahal land being heritable and transferable, the lessee can create a permanent right of tenancy in his holding. ……………..”

The Court observed that as provided in Schedule-V of the OGLS (Amendment) Rules, 1993 the Tahasildar, on being satisfied after enquiry that any Khasmahal land in occupation by any person as homestead for a period of not less than 5 years as on the “appointed date”, shall settle the said land in favour of the person holding such land on execution of the lease deed in form-IV subject to approval of the Collector.

The Court further observed that the Collector, Cuttack, who is a public authority, has failed to exercise its power vested under the statute.

The Court held “The Collector, Cuttack is directed to grant approval to the recommendation made by the Tahasildar, Sadar, Cuttack, as required for permanent settlement of the leasehold land in favour of the petitioners under Rule-3(a) of OGLS Rules”[Nirmal Chandra Panigrahi v. State of Odisha, W.P. (C) NO. 15300 OF 2019, decided on 17-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearance

For Petitioners: Mr Nirmal Chandra Panigrahi (in person), Mr Budhadev Routray, M/s. N.K. Tripathy, D. Dhal, J. Biswal and S.D. Routray

For OPs: Mr Ashok Kumar Parija

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar CJ. and B. P Routray J. dismissed the petition on grounds discussed below.

The facts of the case are such that the Food Corporation of India i.e. `FCI (Opposite 1 and 2) being the nodal organization of the Government of India, delivers food grains to different parts of the State of Odisha and for such purpose it uses the space available in different warehouses under OSWC for storing and facilitating movement of the food grains on contract basis. The Petitioner executed a contract with Odisha State Warehousing Corporation i.e. OSWC (Opposite Party 1 and 2) effective for a period of two years for Handling and Transportation (H & T) of foodgrains and other allied materials at OSWC as per the quoted rate of contract. The said contract was extendable for a further period of three months. The contract was extended twice before the expiration of their respective previous contracts as the tender issued for the purpose could not be materialized. Those two extensions were granted with the same rate of contract but on further extension, FCI expressed dissatisfaction and put a condition that, the rate applicable for the extended period would be the existing rate or the new rate, whichever is lower. The new agreement was executed and the rate of contract was much lesser than the earlier rate of contract fixed as per the original contract. Thus, for the bills raised by OSWC after 31st March 2017, FCI deducted the amount calculated on the differential rate between the rate of contract existed as per the 2013 agreement and 2017 agreement. As a result, OSWC realized the differential amount from the bill of the Petitioner and this is the subject matter of the dispute in the present petition.

Counsel for the petitioners Mr. P.K.Roy submitted that realization of differential amount from its bill with retrospective effect is grossly illegal and the same is violation of statutory rules as no opportunity of showing any cause or hearing has been granted. It is further contended that in the absence of any agreement after 31st October, 2015 till 31st March 2017, the rate applicable would be the existing rate as per the 2013 agreement.

Counsel for the respondents Mr. P.K. Rath, Mr. Bijay Kumar Dash and Mr. Debasish Nayak submitted that the Petitioner has not come with clean hands as the entire dispute has emanated from contractual obligations and, therefore, the writ petition under Article 226 would not be maintainable. It is further contended that the petitioner continued H & T work with OSWC having been aware of the stipulation of change in rate of contract, is estopped from raising the dispute at realization stage.

The Court observed that realization of the differential amount at a lower rate in absence of any existing contract is not contentious as it is clear that being fully aware of the lower rate, which may be stipulated in the new contract, the Petitioner continued with the work for the extended period.

The Court observed “Once the Petitioner has accepted the condition with a lower rate than the existing rate which may be effected for the period it continued with the work on extension, it hardly makes any difference whether a written contract on specific term is executed or not. Thus, the Petitioner now cannot claim that such a stipulation at the lower rate to realize the differential amount was without his knowledge.”

The Court relied on judgment Kerala State Electricity Board v. Kurien E. Kalathil (2000) 6 SCC 293 wherein it was held that

“11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act.

The Court observed that the petitioner is unable to point out the violation of any statutory rule in its favour. The rate on which work is to be performed, flows from the contract executed between the Petitioner and OSWC.

The Court thus held “….Therefore, adjudication of the dispute in the writ jurisdiction in the present form is neither appropriate nor feasible.”[Jayasingh Bhoi v. OSWC, 2021 SCC OnLine Ori 630, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar CJ. and B. P Routray J. dismissed the petition being devoid of merits.

The facts of the case are such that the petitioner since the time of his forefathers is in peaceful possession over a piece of land. Being a landless person he applied to the Tahasildar, Sambalpur for settlement of the case land in his favour under the provisions of the Odisha Government Land Settlement Act (in short ‘O.G.L.S. Act’). Earlier he had approached this Court in W.P. (C) No.4576 of 2014 which was disposed of by this Court by order dated 15th April, 2014 with a direction to the Tahasildar to dispose of the Petitioner’s application in accordance with law. The Petitioner contends that during the pendency of his application, the Opposite Parties without disposing of his claim as per the earlier order of this Court are trying to dispossess him in an arbitrary and discriminatory manner. The instant petition is filed by the Petitioner praying that the case land be settled in his favour.

Counsel for the petitioners Mr B.P.B. Bahali submitted that the State is duty-bound to provide shelter to its citizen, who is a landless person. The Petitioner resides on the case land by constructing a house over a portion of the same and the remaining portion is used for cultivation purpose. The petitioner submitted that he earns his livelihood on daily wage basis and as such he fulfils all eligibility criteria for settlement of the land in his favour as per the provisions of O.G.L.S. Act and Rules.

Counsel for the respondents Mr S. Pattnayak submitted that averments made in the writ petition are not correct as the petitioner was never in possession of the case land. As per field enquiry conducted by the Revenue Inspector, the case land was found a vacant piece of land and alienation was initiated in favour of Western Electricity Supply Company Ltd. (WESCO) for establishment of Grid Sub-Station. It was further stated that the case land comes under Category-III (A) reserved for public developmental purpose in terms of Section 3(1) of the O.G.L.S. Act, hence submitting that neither the petitioner nor his forefathers were in possession of the case land at any point in time.

The Court observed that on detailed scrutiny of the entire materials, the Court is unable to find anything to support the Petitioner’s claim. The Petitioner has not brought anything on record to support his claim of being a landless person covered under the O.G.L.S. Act for settlement of the case land in his favour or that he was in possession of the same from the time of his forefathers.

The Court relied on judgment Grid Corporation of Orissa Limited (GRIDCO) v. Sukamani Das, (1999) 7 SCC 298 and held that the present writ petition raises highly disputed question of facts, which would require the leading of evidence and the examination and cross-examination of witnesses, and which are, therefore, not amenable to being adjudicated under Article 226 of the Constitution.”[Anil Palai v. State of Odisha, 2021 SCC OnLine Ori 632, decided on 31-05-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar, CJ and B.P Routray, J., directed 10 lakh compensation to be paid to the grieving families and made noteworthy observations regarding the sorry plight of manual scavengers.

The present petition has been taken up suo motu after notice of the tragic deaths of sanitation workers in the two recent incidents one in Bhubaneshwar and other in Cuttack. In the first incident in Cuttack, two sanitation workers engaged in manually cleaning a sewer line died of asphyxiation. In the second incident in Bhubaneswar two sanitation workers, Sunaram Sardar (55) and Silup Birua (25) engaged in the maintenance of a sewage tank, died of Asphyxiation as they entered the septic tank that was over 25 feet deep, without any protective gear, and became unconscious due to asphyxiation.

The Court observed that it appears that in both incidents, there were egregious violations of the mandatory provisions contained in Section 7 read with Section 2 (1) (d) and Section 9 of The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act i.e. PEMSR Act as well as Rules 3 to 8 of the PEMSR Rules, 2013.

The Court stated that the social evil involving deaths of sanitation workers and/or manual scavengers where they happen to belong from scheduled castes (SCs) or the scheduled tribes (ST), the provisions particularly Sections 2 (1) (bf) and 3 (1) (j) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 i.e. SC/ST POA Act might get attracted.

It was further observed that Article 17 abolishes untouchability, forbidding its practice in any form and declaring that enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law, it was with the hope that the practice of untouchability in general and manual scavenging, in particular, would not continue in a free and independent India.

The Court further relied on judgment Safai Karmachari Andolan v. Union of India, (2014) 11 SCC 224, the Supreme Court of India held that the PEMSR Act “expressly acknowledges Article 17 and Article 21 and rights of the persons engaged in sewage cleaning and cleaning tanks as well as persons cleaning human excreta on railway tracks.”

The Court further relied on judgment Delhi Jal Board v. National Campaign for Dignity & Rights of Sewerage & Allied Workers (2011) 8 SCC 568 wherein it was observed

“….no one would like to enter the manhole of sewage system for cleaning purposes, but there are people who are forced to undertake such hazardous jobs with the hope that at the end of the day they will be able to make some money and feed their family. They risk their lives for the comfort of others. Unfortunately, for last few decades, a substantial segment of the urban society has become insensitive to the plight of the poor and downtrodden including those, who, on account of sheer economic compulsions, undertake jobs/works which are inherently dangerous to life. People belonging to this segment do not want to understand why a person is made to enter manhole without safety gears and proper equipments. They look the other way when the body of a worker who dies in the manhole is taken out with the help of ropes and cranes. In this scenario, the Courts are not only entitled but are under constitutional obligation to take cognizance of the issues relating to the lives of the people who are forced to undertake jobs which are hazardous and dangerous to life.”

Thus the Court laid down comprehensive directions to be followed by the concerned authorities regarding compensation, criminal nature of the act, vigilance regarding such matters etc. In the instant case the court “…..requests the Secretary, Odisha State Legal Services Authority (OSLSA) to immediately contact the family of the victims, both in Cuttack and in Bhubaneswar, and if they need legal assistance, to forthwith inform both the AC”

In view of the above, matter was listed for 10-05-2021.[Death of sanitation Workers v. State of Odisha, 2021 SCC OnLine Ori 383, decided on 19-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.