ILR - APRIL-2013 - Orissa High Court, Cuttackorissahighcourt.nic.in/ilr/ILR-APRIL-2013.pdf549 M/S.HINDUSTAN CONSTRUCTION-V- STATE [V.GOPALA GOWDA,CJ. ] learned Senior Counsel Mr. R.K

2013 ( I ) ILR - CUT- 548

V. GOPALA GOWDA, CJ.

M.C. NO. 60/2011 & ARBP NO. 54/2010 (Dt.24.08.2012)

M/S.HINDUSTAN CONSTRUCTION COMPANY L.T.D. …….Petitioner

.Vrs. STATE OF ORISSA & ANR. …….Opp.Parties

ARBITRATION & CONCILIATION ACT, 1996 – S.11 (6)

Appointment of Arbitrator – Procedure – Petitioner has not issued demand notice to the Chief Engineer giving thirty days time for appointment of an Arbitrator – Non compliance of the mandatory procedure as required U/s.11 (4) (a) of the Act – Held, Arbitration petition is liable to be dismissed. (Para 19) Case laws Referred to:-

1.2008 AIR SCW 2737 : (Mahipatlal Patel-V- Chief Engineer & anr.) 2.AIR 1954 SC 340 (P-6) : (Kiran Singh & Ors.-V-Chaman Paswan & Ors.) 3.AIR 1971 SC 740 : (Hakam Singh-V- M/s. Gammon (India) Ltd.) 4.AIR 1999 SC 1281 : (Babu Verghese-V- Bar Council of Kerala)

For Petitioner - M/s. A. Mishra, D.K. Pani, A.K. Roy & A.Mishra. For Opp.Parties - Government Advocate

V.GOPALA GOWDA,CJ. In this Arbitration Petition, after hearing the learned counsel for the parties on merits, the judgment was dictated and decision was pronounced on 12.8.2011 after adverting to the relevant facts and the pleadings of the case and relevant Clause 67.3 (i) of the Arbitration Agreement dated 15.9.1996, relevant provisions of the Arbitration and Conciliation Act, 1996 (for short, “the Act, 1996”) and the decisions of the Apex Court upon which both the learned counsel placed reliance and after rejecting the legal contentions urged on behalf of the opp.parties by the learned Government Advocate this Court allowed the Arbitration Petition and appointed one Mr Justice P. K. Mishra, former Judge of this Court as the Arbitrator. At the time of correcting the judgment, which was dictated in open Court on 12.8.2011, and before signing after noticing the provisions of Sections 21 and 43 of the Arbitration and Conciliation Act, 1996 doubt arose whether the provision of the Limitation Act, 1963 will be applicable to the proceedings under the provisions of the Act, 1996. Therefore, the matter was listed on 9.9.2011 under the heading “To be mentioned”. On that day,

549 M/S.HINDUSTAN CONSTRUCTION-V- STATE [V.GOPALA GOWDA,CJ.]

learned Senior Counsel Mr. R.K. Rath on behalf of the petitioner submitted that Annexure-K the notice dated 15.3.2011 was issued to the Chief Engineer of the opposite party by the petitioner expressing intention to commence the arbitration proceedings in respect of the recommendation of the Dispute Review Board (for short “DRB’), as the same was not acceptable to the petitioner for the reason that the recommendation of the DRB is impugned before the Arbitration Tribunal constituted under the repealed Arbitration Act, 1940.Therefore, this petition is filed. Under such circumstances, whether application under Section 14 of the Limitation Act is applicable or not to the Arbitration proceedings under the Act, 1996 is required to be considered. At this stage, Mr. Rath sought time to take steps in this regard. Therefore, the dictated judgment which was not signed was recalled, transcribed copy of the judgment was kept on record. The matter was adjourned on the request of the learned Sr. Counsel for the petitioner to take steps for filing application under Section 14 of the Limitation Act. That is how this matter got listed again to hear on the Misc. Case No.60 of 2011 filed under Chapter-VI, Rule 27(a) of the Rules of the High Court of Orissa, 1948 and under Section 14 of the limitation Act, 1963 read with Sections 21 and 43 of the Act, 1996. As per Clause 67.1 of the agreement, if any dispute arises between the parties, the same at the first instance shall be Dispute Review Board (DRB). If either of the parties is dissatisfied with any recommendation of the Board then either of the parties may within 14 days after receipt of the recommendation has to give notice to the other party of his intention to commence arbitration, as provided in the agreement in respect of the matter in dispute. Such notice shall establish the entitlement of the party giving the same to commence arbitration. Under Clause 67.3 of the agreement both the parties had agreed that any dispute in respect of which recommendation of DRB does not become final and binding, shall be finally settled by arbitration in accordance with the Indian Arbitration Act, 1940 in its application to the State of Orissa with statutory amendments thereof and, in such respect, procedure of the Orissa Arbitration Tribunal, Bhubaneswar shall be followed. 2. After referring to the aforesaid clause, it is stated that petitioner being aggrieved by the recommendations of the DRB in the matter of non-implementation of Clauses 69.4 for losses/damages incurred and extension of time due to default of the employer served a notice on 15.3.2001 on the opp. party- employer giving out the intention to commence arbitration against the recommendations of the DRB as per letter No.1795 dated 3.3.2001 received on 13.3.2001 in accordance with clause 67 of the agreement. Copies of the recommendation of the DRB dated 3.3.2001 and the notice

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] dated 15.3.2001 are produced at Annexures-X and Y respectively. Thereafter the petitioner approached the learned Orissa Arbitration Tribunal on 18.4.2001 for adjudication of the dispute and the same was registered as AAD No.3 of 2001 before the said Tribunal. 3. Further, it is stated that the Arbitration and Conciliation Act, 1996 came into force with effect from 22.8.1996 and the agreement was entered between the parties on 25.09.1996, therefore, they are governed by the provisions of the new Act since the Indian Arbitration Act, 1940 has been repealed under Section 85 of the new Act. On apprehension of the resultant decision of the Arbitration Tribunal being a nullity in the eye of law, the petitioner moved the learned Arbitration Tribunal on 6.6.2008 for dropping the pending Arbitration Case No. AAD No.3 of 2001 in view of the observation of the Apex Court in the case of Mahipatlal Patel v. Chief Engineer & another, reported in 2008 AIR SCW 2737. Since the application of the petitioner could not be disposed of, finding no other alternative it has approached this Court in the present Arbitration Petition. 4. At paragraph-8 of the Misc. Case it is stated that, in the background, the petitioner had moved the learned Arbitration Tribunal established under the repealed Indian Arbitration Act, 1940 erroneously, which was bona fide and under a genuine miscomprehension of jurisdiction of the learned Tribunal, notwithstanding the fact that the petitioner has been prosecuting the matter in good faith and with due diligence before the learned Tribunal till it came to their notice that the specific pronouncement regarding lack of jurisdiction rendered by the Apex Court in the aforesaid decision. For the aforesaid reason, the delay in approaching this Court, if any, is genuine, bona fide and diligent steps and not in any way willful or deliberate. Thus the provisions of sections 21 and 43 of the Arbitration and Conciliation Act, 1996 read with Section 14 of the Limitation Act, 1963 are applicable to the instant case. Therefore, the present petition is filed by the petitioner with request to allow the same by condoning the delay in filing the Arbitration Petition, which has taken place since 2001 to 2010 in approaching this Court. 5. As the proceedings are being prosecuted with bona file intention in view of the Clause 67.3 of the agreement in a wrong forum i.e. the Tribunal although the said Tribunal is not the forum for resolution of the dispute between the parties in view of the provisions of the Arbitration & Conciliation Act, which came into force with effect from 20.2.1996, an arbitration proceeding which commences on or after the new Act came into force shall be governed by the new Act, since the 1940 Act is repealed under Section 85 of the new Act. It is contended by the learned Sr. Counsel that having


regard to Clause 67 in the agreement between the parties the intention of the parties is very clear that any dispute arising between the parties in relation to execution of the contract work shall be decided in the Arbitration proceedings. No doubt, Clause 67.3 (i) provides for resolution of the dispute by the Dispute Review Board. If either of the parties is not agreeable to the recommendation of the DRB, they can approach the Arbitration Tribunal established under the repealed Arbitration Act, which makes it very clear that the dispute is required to be resolved in the arbitration proceedings. Pursuant to Clause 67.3, if jurisdiction is conferred upon the Arbitration Tribunal constituted under the provisions of the repealed Act contrary to the provisions of the Arbitration & Conciliation Act, as the provisions of Section 85 of the said Act repealed the Indian Arbitration Act and undisputedly the agreement was entered subsequent to the coming into force of the Arbitration & Conciliation Act, the parties to the agreement cannot confer jurisdiction upon a Court or tribunal is the law laid down by the Supreme Court in the case of Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340 (Para-6), and Hakam Singh v. M/s.Gammon (India) Ltd., AIR 1971 SC 740, and therefore, the learned counsel appearing on behalf of the petitioner placed reliance upon the observation made by the Supreme Court in the case of Mahipatlal Patel referred to supra. Hence, he had requested me to allow the Misc. Case and the Arbitration Petition filed by the petitioner.

6. Statement of objection was filed on behalf of the opp. parties by Sri Pradeep Sagar Duria-in-charge Executive Engineer, Mahanadi Barrage Division, Gandarpur by traversing all the averments made in the said Misc. Case.

7. It is stated in the statement of objection that provisions of the Limitation Act, 1963 are not applicable to the proceedings under Section 11(6) of the Arbitration and Conciliation Act, 1996. Hence, the Miscellaneous Petition filed for condonation of delay in filing the Arbitration case merits no consideration and is liable to be rejected.

8. Further, it is stated that the Arbitration Petition and the present Misc.Case are grossly barred by delay and laches. There is complete negligence on the part of the petitioner in approaching this Court. There is no explanation for the delay of more than nine years in filing the Arbitration Petition. Similarly, there is no explanation for the delay of more than ten months in filing the present Misc. Case. Further, it is stated that Misc.Case No.60 of 2001 does not contain details of the period of delay, which is sought to be condoned by filing the present Misc. Case. In the absence of details of delay and the reasons in support thereof, condonation of the same

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] cannot be sought for by the petitioner in vacuum. There is no explanation at all about the delay of more than nine years i.e. from 2001-2010. Hence, the learned Government Advocate submits that on this ground alone, the Misc. Case is liable to be dismissed for the reason that there is no explanation for delay either from 15.3.2001 to 9.11.2010 or from the date of filing of the Arbitration Petition i.e. 9.11.2010 to the date of filing the present Misc. case i.e. 24.9.2011.

9. On merits, it is reiterated that without the above objections and without conceding that the provisions of the Act of 1996 are not applicable to the facts of the present case, it is urged that the present Misc. case filed by the petitioner to condone the delay is wholly misconceived and not maintainable either on facts or law.

10. It is stated that the petitioner vide its letter dated 15.3.2001 intimated the opp.parties that the recommendations of the DRB is not acceptable to the petitioner-contractor and the contractor intends to commence arbitration against the recommendations of the DRB, but the accompanying Arbitration Petition under Section 11 (6) of the Act, 1996 was filed only on 09.11.2010 i.e. more than nine years of the alleged request to commence arbitration without giving any notice to the opp. parties demanding appointment of Arbitrator though, according to the petitioner, the provisions of the Act, 1996 are applicable w.e.f. 20.8.1996. The Arbitration Petition having not been filed after complying with the mandatory provisions of Section 11 sub-section 4(a) and bring grossly barred by delay is liable to be dismissed.

11. Further, it is contended that the mandatory procedure required to be followed before approaching the Chief Justice for appointment of a sole Arbitrator in exercise of power under Section 11 (6) of the Act, 1996 having not been followed by the petitioner, the Arbitration Petition is wholly misconceived and is liable to be dismissed.

12. It is also further stated that the petitioner has never requested the opp. parties for appointment of an Arbitrator by giving thirty days notice as required under Section 11(4) (a) of the Act, 1996. The Chief Justice of this Court while exercising his power under Section 11(6) of the Act, 1996 is to decide as to whether the conditions for exercise of the power have been fulfilled by the petitioner.

13. It is stated that the Act, 1996 is a special statute. An arbitrator is to be appointed in accordance with the procedure provided in the Act, 1996 itself and not otherwise. Since there is no demand by the petitioner for appointment of an Arbitrator with the opp.parties, the Arbitration Petition for


appointment of an Arbitrator in exercise of my power under Section 11(6) of the Act, 1996 is premature, wholly misconceived, not maintainable and liable to be rejected being devoid of any merit.

14. In reply to the averments made in paragraph-1 of the Misc. Case, the question of maintainability of the Arbitration petition is reiterated.

15. In view of the factual and legal rival contentions urged on behalf of both the sides for filing the Arbitration Petition and the Misc. Case for condonation of delay in filing the Arbitration Petition the following points would arise for my consideration:

i) Whether the Arbitration Petition filed under Section 11(6) of the Act, 1996 without following the mandatory provisions under Section 11(4)(a) of the Act, 1996 is maintainable in law?

ii) If the Arbitration Petition is not maintainable, whether Misc. Case

No.60 of 2011 filed under Section 14 read with Sections 21 and 43 of the Act, 1996, is required to be considered and answered?

iii) What order ?

16. The first point is required to be answered against the petitioner for the following reasons. It is an undisputed fact that the agreement was entered between the parties on 25.9.1996 for execution of construction of Naraj Barrage (civil works) at Naraj, Cuttack vide agreement No.CE-ICB/I of 1996-96 dated 25.9.1996, which is undisputedly after the Act, 1996 came into force. No doubt, in the agreement there is an arbitration clause 67,3, which reads as under :

“67. 3: Arbitration: Any dispute in respect of which recommendations, if any, of the Board has not become final and binding shall be finally settled by arbitration below :

(i) A dispute with an Indian Contractor shall be finally settled by arbitration in accordance with Indian Arbitration Act, 1940 in his application to State of Orissa or statutory amendments thereof. Procedures of Orissa Arbitration Tribunal, Bhubaneswar shall be followed.

xx xx xx xx (xiii) After the dispute surfaced, the petitioner was constrained to take

recourse to Clause 67.1 above and referred the matter to the Dispute Review Board on 14.12.2000 along with all supporting documents to

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INDIAN LAW REPORTS, CUTTACK SERIES [2013]

substantiate its rights under Clause 69.4 of the General Conditions of Contract in the matter of non-performance of its obligations by the opp. parties and also claimed for the extra const incurred and for extension of time.

(xiv) After hearing submissions from both the parties on several occasions,

the Disputes Review Board consisting of 3 members finally gave its report/recommendation on the said dispute on 13.03.2001, disallowing the claims of the petitioner with a majority of 2:1.

(xv) Thereafter as required under Clause 67.1 and 67.3 above, after

receipt of the said recombination/report of the Disputes Review Board, the petitioner being dissatisfied with the same indicated his intention to refer the matter to arbitration for final settlement of the dispute.”

Even assuming for the sake of argument that under Clause 67.3 any dispute in respect of which recommendation, if any, of the Board has not become final and binding it shall be finally settled by arbitration as set forth. A dispute with an Indian contractor shall be finally settled by arbitration in accordance with Indian Arbitration Act, 1940 in its application to State of Orissa or statutory amendments thereof. Procedures of Orissa Arbitration Tribunal, Bhubaneswar, shall be followed. If the said clause is construed as the arbitration clause for resolution of the dispute between the parties, the same shall be treated as such under the provisions of the clause which is contrary to the statutory provisions of the Act, 1996, applicable to the parties after the said Act came into force Section 85 (1) of which has repealed the provisions of the Indian Arbitration Act, 1940. Further, the agreement between the parties contrary to the statutory provisions of the Act,1996 is void ab initio in law. This legal position is very clear in view of the judgment of the Supreme Court in the case of Kiran Singh and others v. Chaman Paswan and others, referred to supra. 17. Apart from the decisions referred to in the aforesaid paragraph, reliance is also placed on the decisions of the apex Court in Thyssen Stahluniorn GMBH v. Steel Authority of India reported in AIR 1999 SC 3923, Delta Mechcons (India) Ltd. v. Marubeni Corporation reported in 2007 (2) Arb. LR 288 and of this Court in M/s. Bhagheeratha Engineering Ltd. v. State of Orissa and others, 2007 (Supp.II) OLR 615 and Gayatri Projects Limited v. State of Orissa reported in 2008 (Supp.I) OLR 876 in support of the contention. Reliance placed upon the aforesaid decisions do not help the case of the petitioner for the reason that it has filed arbitration petition under section 11(6) of the Act, 1996 without following the mandatory procedure as


provided under section 11 (4) (a) of Act, 1996. Relevant provision of Section 11 (4) (a) for the purpose of appreciating the rival legal contention urged on behalf of the parties is extracted as hereunder: “If the appointment procedure in sub-section (3) applies and – receipt of a request to do so from the other party.”

As rightly pointed out by the learned Government Advocate on behalf of the opp. parties, the procedure provided under Section 11 (4)(a) has not been complied with by the petitioner. Therefore, this Court cannot grant relief of appointment of Arbitrator in exercise of powers under Section 11(6) of the Act of 1996 even if the procedure agreed upon by the party has failed to act as required under the above provision of the Act. In this regard, learned Sr. Counsel Mr. Rath has placed reliance in compliance with Section 11(4) (a) of the Act, 1996 on the letter dated 15th March, 2001 addressed to the Chief Engineer, Naraj & Chitrotpala Project, Gandarpur, Cuttack. It is necessary to extract the relevant portion of the said letter, which reads thus;

“Ref. No.HNB/CT/C-2/Dated 15th March, 2001 The Chief Engineer

Naraj & Chtrotpala Project Gandarpur, Cuttack-3.

Dear Sir,

Reg: Construction of Naraj Barrage (Civil Works) under Agreement No.CE-ICB/1 of 1996 dated 25.09.96. In the matter of non Implementation of Clause 69.4 for Losses/Damages incurred and extension of time due to default of Employere and in the matter of Clause 67 of the agreement. Ref :- Letter No.1795 dt.03.03.01 received on 13.03.01 of Chairman, Dispute Review Board. In inviting a reference to the letter cited above, it is to intimate that the recommendations of the Dispute Review Board is not acceptable to the Contractor. The Contractor intends to commence arbitration against the recommendation of the Dispute Review Board. This notice is given in pursuant to Clause 67 of the said agreement.

This is for your information please.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Yours faithfully, For Hindustan Construction Co.Ltd. Sd/- S.P. Sinha Roy Project Manager CC:- The Superintending Engineer, Naraj Barrage Circle, Cuttack-3 CC:- The Executive Engineer, Naraj Barrage Division No.1, Cuttack-3 CC:- Shri P. Bhargava, DGM (Contacts) @ H.O. Mumbai. CC:- Contracts @ Naraj.”

18. By careful reading of the said letter it is clear that the petitioner has not made request to the opp. party to appoint an arbitrator other than the Arbitration Tribunal established under the Indian (Amended) Arbitration Act, 1940. But, on the other hand, he has intimated the Chief Engineer stating that recommendation of the DRB is not acceptable to the contractor, it intends to commence arbitration against the recommendation of the DRB and the said notice is given pursuant to Clause 67 sub-clause (3)(i) of the said agreement. Accordingly, the petitioner-contractor approached the Arbitration Tribunal established under Indian (Amended) Arbitration Act, 1940. Therefore, there is no demand with the opp. party-Chief Engineer by the petitioner demanding appointment of an Arbitrator other than the Arbitration Tribunal. The said intimation is only disclosing the intention of the petitioner-contractor that the recommendation of the DRB is not acceptable to it and it intends to resort to proceeding under Clause 67(3)(i) i.e. Arbitration Tribunal established by the Orissa State Government. Accordingly, it has done so in the year 2001 and the matter is pending. It has approached the Orissa Arbitration Tribunal on 18.4.2001 for adjudication of the dispute and the same was registered as AAD No.3 of 2001 before the said Tribunal and the apprehension of the petitioner, in view of the observations made by the Apex Court in the case of Mahipatlal Patel v. Chief Engineer & another, referred to supra, the said proceedings could not be disposed of and he did not find any other alternative but to approach this Court by filing the present petition. The same must be preceded by issuance of the demand notice to the opposite party-Chief Engineer demanding for appointment of Arbitrator even construing entire clause 67.3(i) that the parties have agreed for resolution of the dispute in arbitration proceedings as per the Indian Arbitration Act, 1940 on its application to the State of Orissa or the statutory amendments thereof. 19. Therefore, if the petitioner has to invoke the jurisdiction of this Court, he is required to issue a demand notice upon the Chief Engineer- opp. party


no.1 and wait till expiry of 30 days statutory period provided under Clause (a) of sub-section (4) Section 11 of the Act, 1996 and if he does not appoint an Arbitrator within 30 days, then only there will be a cause of action for him to approach this Court. That has not been done in the instant case. To file a petition under Section 11 (6) before the Chief Justice the procedure as laid down under Clause (a) of sub-section (4) of Section 11 of the Act of 1996 is required to be performed, as it is mandatory in law which has not been done by the petitioner. Hence, the arbitration petition is not maintainable in law. It is well established principle of law as laid down by the Supreme Court in the case of Babu Verghese v. Bar Council of Kerala, AIR 1999 SC 1281 (paras 31 and 32), that if a statute prescribes a particular procedure to do a particular thing in a particular manner that should be done in that manner. If it is not done in that manner, it is not at all done. Paragraphs-31 and 32 of the said judgment are extracted as hereunder :

“31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by the Lord Roche in Nazir Ahmad v. King Emperor who stated as under: “[W]here a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan. These Ncases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognized as a salutary principle of administrative law.”

The aforesaid principle is aptly applicable to the fact situation of the present case. In view of the procedure laid down under Section 11 (4) (a), before invoking the power of the Chief Justice of this Court the petitioner should have complied with the mandatory procedure under Section 11 (4)(a) by issuing a demand notice to the Chief Engineer for appointment of an Arbitrator. Construing Clause 67.3.1. as an arbitration clause and the petitioner having got right to get an arbitrator appointed if he is not satisfied with the DRB recommendation on the dispute presented before it, he should have issued demand notice and waited for 30 days and if the Chief Engineer had not appointed Arbitrator within 30 days then he could have approached

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] this Court. The letter referred to supra which was sent to the Chief Engineer by the petitioner cannot be treated as demand notice in terms of Section 11 (4) (a) of the Act for appointment of an independent arbitrator, but on the other hand the intention of the petitioner is very clear from reading of the contents of the letter referred to above that the same was issued intimating the Chief Engineer that the recommendation of the DRB is not acceptable to it. It has intended to proceed to the arbitration proceedings as per the provisions of the Indian Arbitration Act or the statutory provisions to that amended Act. Therefore, I have to hold that the Arbitration Petition is liable to be dismissed as not maintainable as it is not preceded by issuance of a demand notice to the opp.party no.2 demanding for appointment of an Arbitrator which is mandatory in law. I have answered point no.1 against the petitioner holding that the arbitration petition is not maintainable for the reason that it is not preceded by a demand notice issued and served upon the Chief Engineer seeking for appointment of an arbitrator. In view of the same, no useful purpose would be served to consider the Misc.Case filed under Section 14 of the Limitation Act, 1963 for condonation of delay even if the case pleaded by the petitioner regarding delay is acceptable. For the reasons stated supra, the arbitration petition is dismissed. Hence, there is no need to consider the Misc. Case which is also dismissed. Application dismissed.

559

2013 ( I ) ILR - CUT- 559

V. GOPALA GOWDA, CJ.

MACA NOS. 120, 635 OF 2006 (Dt.31.08.2012)

ASHA MOHARANA ……..Appellant .Vrs.

PRASANNA KU. SAHOO & ANR. ……...Respondents

MOTOR VEHICLES ACT, 1988 – S. 168.

Just compensation – Deceased was earning Rs.900/- per month by working as a coolie in the offending truck – No proof of monthly income of the deceased produced by the claimants - No evidence to the contrary has been produced nor what was the minimum wages at the relevant time is either stated or proved – In absence of the same the Second Schedule to Motor Vehicles Act U/s.163-A is required to be applied to determine the just and reasonable compensation. Second Schedule to M.V. Act, 1988 provides that in case of any fatal accidents/injury income ranging from Rs.3000/- to maximum Rs.40,000/- per annum can be taken in absence of proof to be produced by the claimant regarding the income of the deceased – Held, the compensation of Rs.44,100/- awarded by the Tribunal is erroneous in law - It would be just and proper for this Court to determine the income of the deceased at Rs.3,000/- per month and after deducting 1/3rd towards personal expenses, Rs.2,000/- would be the monthly dependency and accordingly the annual dependency comes to Rs.24,000/- and applying 11 multiplier the compensation comes to Rs.2,64,000/- - In addition to that the claimants entitled to Rs.50,000/- under conventional heads like loss of happiness, loss of estate, consortium and loss of love and affection. (Para 8) For Appellant - M/s. S.K.Mohanty, S.Dei, S.Mohanty, J.Patnaik & S.Barik (for Res.No.1) M/s. A.K.Moanty, M.C.Nayak, D.C.Dey.

For Respondents - M/s. G.S.Namtoar, D.K.Mishra, R.N.Singh (For Res.No.2)

V. GOPALA GPWDA, CJ. Both the appeals one by the claimant and the other by the insurance company – have been filed questioning the award dated 6.10.2005 rendered by the Ist Motor Accident Claims Tribunal,

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Keonjhar in M.A.C. Case No.54 of 1994 awarding compensation of Rs.44,100,00 to be paid within 45 days failing which the same will carry interest at the rate of 9% per annum from the date of the claim urging various grounds in support of their respective cases in their appeals. While the claimant has challenged the compensation as inadequate and prayed for enhancement of the same, the insurance company has prayed for setting aside the award on the ground that it is not liable to pay the compensation. 2. The necessary relevant facts and legal contentions are extracted herein with a view to find out as to whether the amount of compensation awarded is on the higher side or inadequate, as contended by the appellants and whether the appeal of the claimants is required to be allowed by awarding just and reasonable compensation. 3. The brief facts are that the claimant’s daughter Srimati Maharana was working as a coolie in the truck bearing registration number ORJ 1916. On 31.1.1994 she was traveling as a coolie in the said truck. While the truck was moving in a high speed, it capsized as a result of which Srimati, the daughter of the claimant, sustained injuries and expired at the hospital. The case of the claimant was that the deceased was earning Rs.900.00 per month and the vehicle in question was duly insured and the driver of the offending vehicle had a valid driving license. As the accident occurred due to the rash and negligent driving of the driver of the vehicle in question resulting in the death of the daughter of the claimant, the claim was made by her. The insured-owner of the vehicle did not appear in spite of service of summons upon him and therefore he was set ex parte. The appellant insurance company filed its statement of counter urging the plea that the vehicle was not duly insured and the driver of the offending vehicle had no valid driving license. Therefore, there was breach of the policy condition. Hence, the insurance company was not liable to pay the compensation. On the aforesaid pleadings, the case went for trial. The claimant examined herself and produced documents Exts. 1 to 7 but neither any witness was examined by the insurance company nor was any document produced on their behalf. On the basis of the pleadings, the tribunal framed three issues. The same were answered in favour of the claimant and after recording a finding that the accident took place on the fateful day due to the rash and negligent driving of the driver causing death of the deceased, awarded a sum of Rs.44,100.00 as compensation taking the monthly income of the deceased at Rs.900.00. Due to non-production of evidence to show her monthly contribution to the family, the learned Tribunal divided the family into units taking two units per major member and one unit for minor member. Since the petition revealed that the deceased died leaving behind the claimant, the total units came to

561 ASHA MOHARANA -V- PRASANNA KU. SAHOO [V.GOPALA GOWDA,CJ.] four. The expenditure per unit came to Rs.225.00 and calculated on that basis the expenditure towards the deceased came to Rs.450.00 and it was further considered that she being the earning member was likely to spend Rs.150.00 more towards her comfort. So the monthly dependency was determined at Rs.300.00 and accordingly the annual dependency came to Rs.3,600.00. The claimant being the only dependant and applying the multiplier of 11, the age of the claimant being 52, the total dependency worked out to Rs.39,600.00. Holding that the claimant was entitled to Rs.2000.00 towards funeral expenses and Rs.2500.00 towards loss of estate, the entitlement of the claimant was fixed at Rs.44,100.00 and the liability was fastened on the insurance company despite the plea that the driver of the offending vehicle had no driving license to drive the vehicle and therefore the liability should have been fastened on the owner. 4. It is urged on behalf of the insurance company that the Tribunal has erred in recording a finding that on account of injury sustained in the road traffic accident while she was traveling in the offending vehicle, the deceased succumbed to the injury there being no evidence available on record. There is no injury report or post-mortem report in the corresponding G.R.Case record. Hence, the death of the deceased was due to some other reason but not on account of the accident. This aspect of the matter has not been taken into consideration by the Tribunal while awarding the compensation in favour of the claimant. Further in col.3 of the claim application, the age of the deceased is mentioned as 42 years and in col.19 the relationship is mentioned as wife whereas the claimant was described as wife of late Bhagirathi Moharana. Therefore, the actual relationship of the deceased remained unknown. Hence, the claim petition filed by the claimant should not have been entertained and compensation should not have been awarded. Lastly, it is contended that the provision of the Motor Vehicles Act does not confer power on the Member of the Tribunal to award interest at the rate of 9% in the event the compensation awarded is not paid within forty-five days to the claimant. 5. In the claimant’s appeal, the ground of attack is that the compensation awarded is grossly inadequate. The Tribunal erred in law in taking into consideration the fact that the deceased was earning Rs.900.00 by working as a coolie in the offending vehicle. In absence of any evidence the Tribunal ought to have applied Schedule II of the Motor Vehicles Act, 1988 which provides the schedule for compensation for third party fatal accidents/injury case claims. In absence of evidence in proof of the monthly income of the deceased it could have taken the monthly income as rupees three thousand per month and awarded the compensation accordingly as the

562

INDIAN LAW REPORTS, CUTTACK SERIES [2013] accident in the instant case held taken place on 31.1.1994 after the Motor Vehicles Act, 1988 had come into force. No doubt as per section 163-A of the Act, the Second Schedule was inserted subsequently. In absence of the claimant not having any proof of monthly income, the amount mentioned in the schedule should be the guiding principle for awarding compensation. That has not been done by the Tribunal in this case. If the criteria are followed, then the monthly income should be taken as Rs.3000.00 as it would represent the minimum wages fixed for unskilled labour during 1994 which should be Rs.100,00 out of which 1/3 should be deducted towards personal expenses of the deceased. Hence, the dependency per month would come to Rs.2000.00 and on that basis the annual income would be Rs.24,000.00. Even if the claim made by the claimant was less, it is the statutory duty of the Tribunal to assess the just and reasonable compensation by applying the guiding principles mentioned in the second schedule to the Motor Vehicles Act and law in this regard is clear by the decisions of the various High Courts and the Supreme Court that even if the claimant has claimed less amount, it is the duty of the court to consider and assess the loss and award just and reasonable compensation even in the case of death caused on account of road traffic accident. Therefore, the responsibility of the Tribunal having regard to the object and intendment of the provisions contained in the M.V. Act is to award just and reasonable compensation and the insurer is compulsorily liable to indemnify the insured on the basis of the policy of insurance taken by the insured. Under the conventional head also, compensation in view of the decision in the case of General Manager, K.S.R.T.C. v. Sushma Thomas, AIR 1994 SC 1631, Rs.50,000.00 can be awarded. Further, the Tribunal has ordered that the insurance company shall pay the amount awarded by him within 45 days failing which interest at the rate of 9% will be charged from the date of application. It is submitted that the Tribunal in exercise of the power under the Motor Vehicles Act is required to grant interest on the compensation amount. Learned counsel for the appellant submits that it is a fit case where this Court should exercise its power to interfere with the judgment and award of the Tribunal and having regard to the relevant pleadings and materials on record, grant just and reasonable compensation of Rs.3,00,000.00 with interest at the rate of 6% from the date of claim petition till realization. 6. With reference to the above said rival contentions, the following points would arise for consideration:

(a) Whether the fastening of the liability on the insurance company despite its allegation of violation of the terms and conditions of the policy as the driver of the vehicle had no valid license is legal and valid? (b) Whether

563 ASHA MOHARANA -V- PRASANNA KU. SAHOO [V.GOPALA GOWDA,CJ.] the claimant is entitled for enhancement of compensation as claimed during the course of argument to Rs.6,00,000.00 and interest at 6 per cent? (c) What order ? 7. The first point is required to be answered against the insurer for the following reasons. It is an undisputed fact that the deceased Srimati Moharana Travelled in the offending vehicle bearing registration number ORJ.1916 on 31.1.1994 and she was working as a collie in that truck is also an undisputed fact. The plea taken by the insurer was that the driver who was driving the vehicle did not possess valid driving license. Therefore, there was violation of the terms and conditions of the policy. The said plea cannot be accepted in the absence of evidence. Mere pleading that the driver who drove the truck did not possess valid license thereby there was violation of the terms and conditions of the policy itself does not amount to proof. The pleading must be substantiated by cogent evidence. Having regard to the undisputed fact that the insurance company has not examined any witness nor called upon either the driver or the insured to produce the license which was valid on the date of accident, it could have taken necessary steps to obtain the authenticated copy of the license from the licensing authority. No such steps have been taken. Therefore, as held by the Supreme Court in catena of cases, particularly in the case of National Insurance Company Ltd. v. Swaran Singh and others, (2004)3 SCC 297 the award must be satisfied by the insurer and if it is proved that breach of policy condition has been committed by the insured, the amount can be recovered from the insured by establishing the fact that there is violation of terms and conditions of the policy as the driver of the offending vehicle did not possess effective and valid license. In the case at hand, since the insurance company did not prove the violation of the terms and conditions of the insurance policy on account of the driver not possessing valid driving license to drive the vehicle, the tribunal was justified in fastening the liability of paying the compensation on the insurance company which has been quantified at Rs.44,100.00 to be paid within forty five days failing which the same shall carry interest at the rate of 9 per cent per annum. Therefore, there is no merit in the appeal of the insurance company which is liable to be rejected and is accordingly rejected. 8. The second and third points are required to be answered in favour of the appellant-claimant. It is well established principle of law that the M.V. Act is a social piece of legislation enacted by the Parliament keeping in view the laudable object of Article 15 of the Directive Principles of State Policy enshrined in Part IV of the Constitution. The provisions of the Motor Vehicles Act has been interpreted in number of cases by the High Courts and the

564

INDIAN LAW REPORTS, CUTTACK SERIES [2013] Supreme Court that even if, the claimant has not claimed just and reasonable compensation by producing material evidence on record, it is the duty of the tribunal to award just and reasonable compensation in favour of the claimant. No doubt, the claimants have raised a claim of Rs.1,00,000.00. The claim was that the deceased was earning Rs.900.00 per month by working as a collie in the offending truck. Except contending that the quantum awarded is baseless, no acceptable evidence has been produced on behalf of the appellant to accept the contention. To repel the contention of the claimant that the deceased was earning Rs.900.00 at the time of accident, no evidence to the contrary has been produced nor what was the minimum wages at the relevant time is either stated or proved. In absence of the same, the second schedule to the Motor Vehicles Act under section 163-A of the Act is required to be applied to determine the just and reasonable compensation. The second schedule provides that in case of any fatal accidents/injury cases claims income ranging from Rs.3,000.00 to the maximum of Rs.40,000.00 per annum can be taken in absence of proof to be produced by the claimant regarding the income of the deceased. In the instant case, it would be just and proper for this Court to determine the income at Rs.3,000.00 per month and after deducting 1/3rd towards personal expenses, Rs.2000.00 would be the monthly dependency and accordingly the annual dependency would be Rs.24,000.00. I find that having regard to the age of the claimant, the Tribunal has rightly applied 11 multiplier. Therefore, the compensation would come to Rs.2,64,000.00. In addition to the above, the claimant would be entitled to Rs.50,000.00 under the conventional heads like loss of happiness, consortium, loss of estate and loss of love and affection as held by the Supreme Court in the case of General Manager, K.S.R.T.C. v. Sushama Thomas upon which decision reliance is rightly placed by the learned counsel on behalf of the claimant. The approach of the Tribunal in arriving at the figure at Rs.44,100.00 in the absence of evidence of monthly income of the deceased taking the monthly income as Rs.450.00 and deducting Rs.150.00 towards personal expenses and arriving at the annual dependency at Rs.3600.00 and applying the multiplier 11 arrived at the total dependency at Rs.39,600.00 and adding Rs.2000.00 towards funeral expenses and Rs.2500.00 towards loss of estate to the same awarded compensation of Rs.44,100.00 is totally erroneous in law. The approach of the Tribunal is contrary to the provisions of the Motor Vehicles Act and the law laid down by the Apex Court and various High Courts in catena of cases regarding the criteria to be followed to award just and reasonable compensation. The contention of the insurance company that in the claim petition the claimant has been described as wife of late Bhagirathi Mohapatra and her relationship with the deceased is unknown and therefore no compensation could be granted cannot be

565 ASHA MOHARANA -V- PRASANNA KU. SAHOO [V.GOPALA GOWDA,CJ.] accepted. It is the statutory duty of the Tribunal and of this Court to see that in a matter of this nature, just and reasonable compensation is awarded even if the claim made is less. For the aforesaid reasons, I am of the view that this is a fit case to award just and reasonable compensation of Rs.3,00,000.00. Accordingly, the insurance company-appellant in MACA No.635 of 2006 is directed to pay compensation of Rs.3,00,000.00 (Rupees three lakhs) to the claimant with interest at the rate of 6% per annum from the date of claim till the date of payment. In the result, MACA No.635 of 2006 is dismissed and MACA No.120 of 2006 is allowed to the extent indicated above. There would be no order as to costs. MACA No.635/06 dismissed. MACA No.120/06 allowed.

566

2013 ( I ) ILR - CUT-566

V. GOPALA GOWDA, CJ & S.K.MISHRA, J.

W.P.(C) NO. 9169 OF 2012 (Dt.20.12.2012) YUDHISTHIRA SAHOO & ORS. …….Petitioners

.Vrs. GOVERNMENT OF ORISSA & ORS. …….Opp.Parties A. P.I.L. – Decision taken by NALCO to construct Ash Pond-IV, adjacent to petitioners hamlet – Ash ponds discharge west ashes of the power plant causing air and water pollution, prone to serious diseases – It would also affect the ecology of the area in question – State Pollution Control Board made statutory violation in issuing consent order – Held, direction issued not to construct such Ash Pond and if already constructed the same shall not be used as Ash Pond. (Para 43) B. CONSTITUTION OF INDIA, 1950 – ART.226

Writ petition – Petitioners challenge the decision of NALCO to construct Ash pond-IV adjacent to their hamlet - Hazardous to human life – Violation of human, fundamental and statutory rights – Held, writ petition is maintainable – Matter need not be transferred to the Green Tribunal as prayed by the Opp.Parties. (Para 35) Case law Relied on :-

AIR 2000 SC 1997 : (M.C. Meheta-V- Kamal Nath & Ors.). Case laws Referred to:- 1.(1996)5 SCC647 : (Citizen Welfare Forum-V- Union of India( 2.AIR 1996 SC 1446 : (Indian Council for Enviro-Legal Action-V- Union of India). 3.AIR 1954 SC 403 : (Himatlal Harilal Meheta-V- State of M.P.) 4.(1998) 8 SCC 1 : (Harpal-V- State of U.P. & Anr.). 5.AIR 1999 SC 812 p-35,36,37 : (A.P. Pollution Control Board-V- Prof. M.V. Nayudu (Retd.) & Ors.) 6.(1996) 5 SCC 647 p-11 : (Vellore Citizen Welfare Forum-V- Union of India) 7.(2004)12 SCC 185 : (M.C. Meheta-V- Union of India) 8.AIR 2010 SC 2050 : (State of Uttaranchal-V- Balwant Singh Chaufal).

567 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] For Petitioners - M/s. Dayanidhi Mohanty, K.P.Mishra, A.K.Jena, R.C.Ojha, I.N.Choudhury, M.R. Padhi, S.K.Parida. For Opp.Parties - M/s. R.K.Rath (O.Ps.Nos.6,7 & 8) M/s. N.R.Rout, Pami Rath (O.Ps.Nos.6,7,8) M/s. S.P.Mohanty, P. Lenka & M. Barik (O.P.9).

V.GOPALA GOWDA, C.J. The petitioners who claim to be the representatives of a class of villagers of Badataila Sahi of mouza Balaram Prasad in the district of Angul challenge the inaction and illegal action of the opposite parties 6 to 8 and oppose the construction work of the Stage-IV Ash Pond undertaken by the management of the National Aluminium Company (for short, “NALCO”), at Balaram Prasad, Nalco Nagar in the district of Angul adjacent to the petitioners’ hamlet village, although three ash ponds are already in existence to discharge the waste ashes of the power plant of NALCO through pipe line which causes inconvenience and pollution of the air and water of the area endangering the lives, health and properties of the petitioners by creating hazardous pollution in the locality and spreading diseases like T.B. and leprosy and also causes orthopaedic diseases due to fluoride contents in discharged effluents polluting the air and water in the locality. 2. It is the case of the petitioners that even though the management of NALCO authority acquired the land measuring an area of Ac.46.90 dec. in the said mouza through land acquisition proceeding in exercise of emergent power of acquisition of land under the provision of Section 17(4) of the Land Acquisition Act, 1894 (for short, “the L.A. Act”) due to breakage of side walling of old ash ponds with the specific remark that the opposite party management of NALCO imploring upon the Pollution Control Board is making surreptitious attempt for construction of a new Stage-IV ash pond adjacent to petitioners’ hamlet village violating the purpose and endorsement in the Land Acquisition Act. 3. It is submitted that petitioner no.6 is an educational institution established Punyashrama under the name of Nakula Chandra Special School for Blind, Deaf and Dumb since 2002 in mouza Balaram Prasad, which is registered under the Societies Registration Act, 1860 and also under the provisions of the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 by the Government of Odisha, Women and Child Development Department vide Registration No.56/WCD of 2005, BBSR dated 10.03.2005.

568

INDIAN LAW REPORTS, CUTTACK SERIES [2013] 4. It is submitted that NALCO is a public limited company and Government of India Enterprise established in 1981 for production of aluminium from alumina ore and has constructed one separate captive power plant for generation of power. The ashes that come out from such power plant are sent through pipe line in slurry to ash pond for which three separate ash ponds are already there for dumping of the power plant wastes. Due to huge deposit of ashes in slurry form beyond control the ash ponds embankments collapsed on 31st December, 2000, as a result of which the slurry ashes dumped up to 50 meters level in the west-northern side of the ash pond flows to fields convey 20KMs. and ultimately came to Nandira River causing hazardous pollution in the entire environment. This has been published through media in almost all the local dailies. In this connection, the local people had also lodged FIR against the Chairman and the Managing Director and the Executive Direction of NALCO for not taking preventive measure to avoid air and water pollution in the locality causing damage to the common citizen of the area, which case is since pending. Thereafter the management proposed to acquire more land for dumping the ashes and accordingly on the request of the NALCO management, the Government of Odisha acquired Ac.46.90 decimals of land in mouza Balaram Prasad vide notification dated 25.9.2001 notified under Section 4(1) of the Land Acquisition Act, 1894. However, since the emergent situation arose in order to avoid Section 5(A) of the L.A. Act, the said land of Ac.46.90 dec. was acquired under Section 17(4) of the L.A. Act including some lands belonging to some private owners on payment of compensation. Thereafter opp. parties 6, 7 and 8 decided to construct another new ash pond in Stage-IV adjacent to the petitioners’ hamlet village Badatalia Sahi in mouza Balaram Prasad, wherein more than fifty family members including the petitioners are residing over their own homestead land from the time immemorial. 5. Despite all this, the NALCO floated tender for taking of the construction work of Stage-IV Ash pond, against which the villagers staged a hunger strike. 6. It is stated that though the Pollution Control Board suggested for certain precautionary measures for the purpose, opp. party no.1 has directed the NALCO management to proceed with the construction work and opp. party nos.6, 7 and 8 started the construction work over the land in question at the cost of the lives of common villagers in violation of Article 21 of the Constitution of India, which has been fortified in catena of decision delivered by this Court as well as the Apex Court. The Apex Court in the case of Vellore Citizen Welfare Forum v. Union of India, (1996) 5 SCC

569 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] 647, it has categorically observed that industries which are essential for economic development may have to be set up but measures should be taken to reduce the risk of hazardous nature to the community by taking necessary steps or locating such industries in a manner that would pose the least risk or danger to the community and maximizing safety requirement on such industries. Similarly, in the case of M.C. Mehta v. Kamal Nath and others, AIR 2000 SC 1997, the Apex Court has held that any disturbance of basic requirement element namely air, water and soil which are necessary for life would be hazardous to life. Further, the Apex Court in the case of Indian Council for Enviro-Legal Action v Union of India, AIR 1996 SC 1446, held that if an industry is established without requisite permission and/or violating the basic norm and in blatant disregard and violation of law to the detriment of citizen “right to life” the court can interfere and rule of absolute liability applies in such cases being violative of Article 21 of the Constitution of India. 7. Further, it is urged by the petitioner that “right to life” in the community does not mean to live being affected with diseases and live in a disadvantageous position like animal, but such living in the community is to live with human dignity. The “right to life” has been guaranteed by the constitutional provision which has received the widest possible interpretation made by the Apex Court under the canopy of Article 21 of the Constitution of India and such right is enforceable against the State also. 8. Notwithstanding the aforesaid reason, it is needless to mention that the Green Tribunal Forum is not an alternative remedy for the petitioners to get redressal of public interest involved in this case as it is the case of the petitioners that on account of the illegal action on the part of the NALCO in constructing the Stage-IV Ash Pond in the lands which are acquired by the company though the said lands do not come within the purview of ‘industrial area’ for which a notification under Section 14(1)(a) of the Act and under the IDCO Act is required to be issued by the State Government. Construction of such Ash Pond amounts to industrial activity which will not only cause air and water pollution but also ecology and environment will be adversely affected and thereby create health hazards to the residents of the locality and their agricultural occupation of the agriculturists of the locality will be affected and thereby the agricultural livelihood of the labourer will be deprived. Therefore, the action of the NALCO will be in blatant violation of the fundamental rights of the people residing nearby the proposed Ash Pond location. Therefore, the learned counsel for the petitioners submits that the PIL is maintainable. Hence, the contention raised on behalf of NALCO that

570

INDIAN LAW REPORTS, CUTTACK SERIES [2013] the matter should be transferred to the Green Tribunal or the alternative forum is not tenable in law. 9. Further, it is stated by the petitioners that keeping in view the basic legal principles laid down by the Apex Court in catena of decisions, construction of Stage-IV ash pond by the NALCO over the land in question which would make hazardous pollution of air, water and soil. The action of NALCO to construct the proposed Ashn Pond is in utter contravention of the terms of acquisition of land and also with willful disregard of the report of the Pollution Control Board, which action is highly illegal and the same is violative of Article 21 of the Constitution and therefore required to be stopped in the interest of the petitioners and the public at large and therefore writ petition should be allowed. 10. The writ petition is opposed by opp. parties 6, 7 and 8 by filing counter statements by way of affidavit sworn to by Duryodhan Samal, at present working as Manager H.R.D., Captive Power Plant, National Aluminium Company Limited, Nalconagar, Angul denying the averments made in the writ petition and justifying the construction of the proposed Ash Pond Stage-IV in the area in question alleging that the petitioners are guilty of suppression of material facts and they have resorted to deliberate distortion and as such the writ petition is liable to be dismissed. 11. It is further stated that this is not a case where ash slurry would be moved through sealed pipeline to be dumped in the ash pond. The petitioners are either ignorant of the actual facts or have deliberately resorted to distortion of facts. A scientific method has been adopted to move the ash and not the ash slurry in a semisolid form like paste though the sealed pipeline and would be discharged in to the ash pond in the semisolid form. The same would immediately be totally solid within a period of one or two hours. Therefore, there is no question of ash slurry getting deposited in the ash pond and as such there cannot be any apprehension for the petitioners and other residents of any breach of the ash pond embankment or seepage of the ash slurry to the adjacent ground. 12. It is further stated that the present system of dumping ash in the ash pond either in the shape of ash slurry or in the shape of high concentrated mode is going to be totally phased out gradually after disposal the coal voids of MCL would start through pipelines, which is the subject matter in W.P.(C) Nos.9772 and 9773 of 2012. The present high concentration mode which is going to be adopted does not have any problem relating to seepage/leakage through the embankment or overflowing the embankment. In the said high

571 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] concentrated mode of disposal, as the disposed of material would immediately become totally solid within a period of one or two hours, there will be absolutely no content of water left for any percolation. Therefore, there cannot be of any apprehension of flying or flowing ash for the petitioners and residents of the locality where the proposed Ash pond will be constructed by the NALCO. 13. It is further stated that the writ petitioner-Yudhistir Sahu has not correctly stated about his own residence. He is a permanent resident of Kurudol and does not reside in Badataila Sahi. The village Kurudol is at a distance of 3KMs from the construction site of ash pond-IV, which is evident from the Khatian filed by petitioners themselves. 14. It is their case that the averments made in paragraph-1 that three ash ponds are existing in the area in question are incorrect. In fact, there exist only two ash ponds. In between the two ash ponds there is a decantation channel to drain out the excess water and that is referred to as ash pond-III. 15. It is stated that in the year 2000 when there was a breach in the ash pond, the ash slurry slipped into the nearby areas. The said nearby areas were immediately acquired by NALCO on the request of the villagers. In fact the present ash pond, i.e., ash pond-IV is being constructed in that area only. The record containing the notes of discussion dated 4.4.2001 has been filed therewith as Annexure-A/6, which would indicate that the villagers requested for expeditious acquisition of land which got damaged on account of breach in the ash pond and also for payment of compensation. Consequent upon acquisition of the said land not only compensation was paid to the villagers who lost their lands but also 52 numbers of villagers were given employment in lieu of the same. Therefore, Ac.46.90 decimal of land, which is now being used for the purpose of construction of the ash pond-IV, was acquired in the aforesaid process. Annexure-B/6 is the notification issued by the Government in Revenue Department, which would indicate that for the purpose of ash pond the lands were acquired. 16. It is also stated that on account of breach in the year 2000, alternative methods have also been planned and adopted by the NALCO Co. One of the major steps taken by NALCO is to construct pipelines for about 22 KMs from NALCO area to Mahanadi Coalfields Limited to fill up the coal voids created by extraction of coal by MCL. In the said pipelines ash slurry will be flown and will be buried deep inside the ground from which coal has already been extracted and voids have been created. This is one of the

572

INDIAN LAW REPORTS, CUTTACK SERIES [2013] safest methods for which construction work is speedily going on. It is expected to be over by December, 2012. Once the said operation would start gradually the dumping of ash would be phased out. Another scientific method of disposal in the high concentrated mode in the ash pond-IV has been adopted and there will be no fear of flying ash or ash flowing to area adjacent. 17. In response to the averments made in paragraph-15 of the writ petition that the ash ponds could not accommodate the ash slurry beyond its capacity and would cause breach and would ultimately come to Nandira river causing hazardous pollution, it is stated that the present step taken to construct the ash pond-IV is to safe guard against any such eventuality and to accommodate the ash in lump form. 18. It is stated that the ash ponds were constructed in the year 1986 and are in existence since then. Once there was a breach in the year 2000. In the last 12 years there has been no breach, as adequate safety measures have been taken to prevent such occurrence. Therefore, the apprehension of breach is unfounded. 19. With regard to the averments made in rest of the paragraphs, it is stated that at no point of time the Pollution Control Board has prevented the construction of ash pond-IV. 20. It is further stated that if the ash pond-IV is directed to be closed down, it would not only cause irreparable injury to such a huge organization in terms of National wealth as production, etc. will be affected, but also it would cause heavy load on the existing ash ponds which are about to be filled up. Therefore as NALCO has already undertaken the alternative method of disposal through pipelines in MCL coal voids and which is likely to be over by 2012 December and which would be a step towards phasing out dumpimng in ash pond system, NALCO should be allowed to go ahead with the ash pond-IV programme without any interruption. 21. It is further stated that ash in the form of semisolid paste would be discharged through sealed pipelines by pumping through costly pumps. It would be discharged in the dumping yard like toothpaste being discharged from a tube. It would be solid within a couple of hours once it comes in contact with air and sunlight. A pump to discharge the same costs around seven crores and NALCO has already installed three such pumps costing more than twenty-one crores to discharge the same in the aforesaid form.

573 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] The apprehension of the petitioners that ash slurry is going to be discharged and that would cause breach in the embankment is totally ruled out.

22. It is also stated that the contents of Annexure-D/6 dated 18th April, 2012 would clearly show that a direction has been issued by the Government of Odisha in the Department of Forest & Environment to complete the construction of ash pond-IV on war footing. The contents further would indicate that NALCO has also deposited necessary amount with the RWSS Department of the Government for supply of water to the nearby villages. Besides, direction has also been given to NALCO to complete the disposal through pipeline system expeditiously. Therefore, steps have been taken expeditiously to complete not only the pipeline disposal system but also the construction of ash pond-IV in order to release pressure on the existing ash ponds. 23. It is further stated that Annexure-E/6 series contains the reports of the State Pollution Control Board in regard to disposal in existing ash ponds for different years, which would indicate that the standard as prescribed by the State Pollution Control Board is being strictly maintained. 24. It is also stated that most of the petitioners are aspirants for job in the NALCO. In the recent past Sisir Kanta Pradhan, son of Dibakar Pradhan (now deceased and petitioner), Bhagyashree Swapnanjali (petitioner), Rohit Sahu, son of Tirtha Sahu (petitioner), Lipan Kumar Dehuri, son of Trinath Dehuri and Rupa Sahu who after marriage has become Rupa Dehuri (petitioner) have applied for job under NALCO. Annexure-G/6 series are the applications filed by the above named petitioners. 25. It is also further stated that petitioner no.6, the school referred supra, from time to time has been applying for different kinds of help from NALCO in terms of finance. Annexure-H/6 series are the copies of some applications filed by petitioner no.6. On various occasions NALCO has given financial help to petitioner no.6, which would be more than Rs.5.00 lakhs. 26. It is stated that the present litigation has been filed by the people those who are substantially interested in getting benefits from NALCO. Therefore, the allegations made in the writ petition are totally denied and it is prayed that the writ petition is liable to be dismissed. 27. With reference to the above rival, factual and legal contentions, the points that would arise for consideration by this Court are as follows:

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] i) Whether the writ petition is required to be transmitted to the Tribunal

in view of the judgment dated 9th August, 2012 rendered by the Supreme Court in Civil Appeal Nos.3187-3188 of 1988 (Bhopal Gas Peedith Mahila Udoyg Sangathan & others v. Union of India & others)?

ii) Whether construction of the Ash Pond Stage-IV by the NALCO is in violation of the statutory provision and without obtaining the consent order as required under notification dated 14.9.2006 issued under sub-section(1) and Clause (v) of sub-section (2) of Section 3 of the Environmental (Protection) Act, 1986 read with clause (o) of sub-rule (3) of Rule 5?

iii) Whether construction of the Ash Pond Stage-IV by the NALCO over the area of Ac.46.90 dec. of land causes environmental problem in the locality?

iv) Whether the petitioners are entitled for relief of directing opp. parties 6, 7 and 8 to stop further construction of the Stage-IV Ash Pond adjacent to the petitioners’ hamlet village?

28. The first point is required to be answered in the negative for the following reasons. Learned counsel for the petitioners Mr K.P. Mishra placed strong reliance upon Sections 14, 15 and 29 of the National Green Tribunal Act, 2010 in support of his contentions. He submitted that the National Green Tribunal will exercise its jurisdiction in places of civil courts, where civil cases will be instituted in case of enforcement of the legal rights by public litigants relating to environment hazards claiming compensation and Section 15 confers power upon the Tribunal to grant relief for compensation to the victims of the pollution and other environmental damages arising out of breach of the environmental laws specified in Schedule-1 of the Act. He further contended that the petitioners have approached this Court with the grievance of violation of their fundamental right of peaceful residence and livelihood guaranteed under Articles 19(1)(e) and 21 of the Constitution of India. They have got every constitutional right to approach this Court seeking redressal of their grievance by filing this writ petition. In support of the said contention, he placed reliance upon two judgments of the Supreme Court viz. AIR 1954 SC 403 (Himatlal Harilal Meheta v. State of M.P.); and (1998) 8 SCC 1 ( Harpal v. State of U.P. and another). (para 14 & 15) contended that assuming that after the direction contained in Bhopal Gas Peedith Mahila Udoyg Sangathan’s case referred to supra the Green Tribunal is the alternative forum for the petitioners, there is no bar for this Court to exercise its extraordinary jurisdiction under Article 226 to protect

575 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] the fundamental and statutory rights of the residents whose rights are espoused through this public interest litigation. 29. Further learned counsel for the petitioners has relied upon the Doctrine of Precautionary Principle placing reliance upon the judgments of the Supreme Court in the case of A.P.Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and others, AIR 1999 SC 812 (paras-35, 36 and 37); Vellore Citizen Welfare Forum v. Union of India, (1996) 5 SCC 647 (para-11); M.C. Meheta v. Union of India, (2004) 12 SCC 185 and submitted that the first point is required to be answered against the NALCO and in favour of the petitioners.

30. The said legal submission is strongly rebutted by the learned Senior Counsel Mr R.K. Rath who appeared on behalf of NALCO relying upon Bhopal Gas Peedith Mahila Udoyg Sangathan’s case referred to supra, wherein the Supreme Court after examining the provisions of the National Green Tribunal Act and Rules made thereunder has directed all the High Courts to transfer the cases relating to the environmental aspects to the Green Tribunal established at New Delhi under the provisions of the Green Tribunal Act and Rules. He submitted that the writ petition cannot be entertained and this Court cannot grant relief in favour of the petitioners and requested this Court to transfer this case to the Green Tribunal at New Delhi for its consideration.

31. With reference to the above legal contention urged on behalf of the NALCO, this Court after examining the same is of the view that the said contention is wholly untenable in law, as the learned Senior Counsel’s interpretation of the said decision is not legally correct for the following reasons. For better appreciation, it would be necessary to extract the relevant provisions of Sections 14, 15 and 29 of the said Act.

“14(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment), is involved and such question arises out of the implementation of the enactments specified in Schedule-I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section (1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be

entertained by the Tribunal unless it is made within a period of six

576


months from the date on which the cause of action for such dispute first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

15. (1) The Tribunal may, by an order, provide—

(a) relief and compensation to the victims of pollution and other

environmental damage arising under the enactments specified in the Schedule I (including accident occurring while handling any hazardous substance);

(b) for restitution of property damaged;

(c) for restitution of the environment for such area or areas, as the Tribunal may think fit.

(2) The relief and compensation and restitution of property and environment referred to in clauses (a), (b) and (c) of sub-section (1) shall be in addition to the relief paid or payable under the Public Liability Insurance Act, 1991.

(3) No application for grant of any compensation or relief or restitution of property or environment under this section shall be entertained by the Tribunal unless it is made within a period of five years from the date on which the cause for such compensation or relief first arose:

Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from filing the application within the said period, allow it to be filed within a further period not exceeding sixty days.

(4) The Tribunal may, having regard to the damage to public health, property and environment, divide the compensation or relief payable under separate heads specified in Schedule II so as to provide compensation or relief to the claimants and for restitution of the damaged property or environment, as it may think fit.

(5) Every claimant of the compensation or relief under this Actshall

intimate to the Tribunal about the application filed to, or, as the case may be, compensation or relief received from, any other court or authority.

577 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] 29. (1) With effect from the date of establishment of the Tribunal

under this Act, no civil court shall have jurisdiction to entertain any appeal in respect of any matter, which the Tribunal is empowered to determine under its appellate jurisdiction.

(2) No civil court shall have jurisdiction to settle dispute or

entertain any question relating to any claim for granting any relief or compensation or restitution of property damaged or environment damaged which may be adjudicated upon by the Tribunal, and no injunction in respect of any action taken or to be taken by or before the Tribunal in respect of the settlement of such dispute or any such claim for granting any relief or compensation or restitution of property damaged or environment damaged shall be granted by the civil court.”

32. It is crystal clear that the Green tribunal has been established by virtue of the enactment made by the Parliament to exercise its jurisdiction in place of civil courts, where civil cases will be instituted in case of enforcement of legal rights of the people of the locality relating to environment and claiming compensation. Further, Section 15 of the said Act confers power upon the Tribunal to grant relief of compensation to the victims of the pollution and other environmental damages, arising out of breach of environmental laws specified in Schedule-I. Apart from the said reasoning, the allegations made by the petitioners in this writ petition is that on account of construction of Stage-IV Ash Pond adjacent to the petitioners’ hamlet village over the newly acquired land measuring an area Ac.46.90 dec. is in gross violation of the terms and conditions of acquisition of land and there is strong opposition in the locality and protest by the local people, which has been published in the local newspapers The Sambad dated 28.3.2012, which newspaper cutting is produced at Annexure-8 to the writ petition. Further, it is stated that the right to life guaranteed to the residents of the locality under Article 21 and right to peaceful residence guaranteed under Article 19(1)(e) of the Constitution have been affected on account of the proposed construction of the Stage-IV Ash Pond by the NALCO and the same is in contravention of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981. Therefore, to enforce the fundamental and statutory rights of the residents of the locality the petitioners have got every right to approach the constitutional Court under Article 226 of the Constitution in exercise of their constitutional right to espouse the cause of the residents by filing the public interest litigation petition. The Constitutional Court has been conferred with the power to interfere and protect the fundamental rights and the statutory rights

578

INDIAN LAW REPORTS, CUTTACK SERIES [2013] of the people as the conferment of such power upon this Court is for issuing certain writs. Notwithstanding anything contained in Article 32, every High Court shall have power through out the territory in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government a writ of prohibition, mandamus or certiorari for enforcement of the fundamental rights. This legal position is very clear from the judgment of the Supreme Court in Himatlal Harilal Meheta’s case referred to supra. 33. Further, the learned counsel for the petitioners placed reliance upon Harpal’s case (supra) and submitted that even assuming that in view of the direction issued by the Apex Court in the case of Bhopal Gas Peedith Mahila Udoyg Sangathan referred to supra that Green Tribunal is the appropriate forum, there is no bar for the petitioners to approach this Court and this Court is not precluded from examining the case sought to be made out by the petitioners for grant of reliefs as prayed in this writ petition. Apart from the said reasoning, the Green Tribunal is not situated within the Odisha State, the petitioners have to move to Delhi where it is at present functioning. Petitioners being rustic villagers will have no access to justice and will be affected adversely, if the arbitrary and illegal action on the part of the NALCO is allowed to continue. Therefore, the petitioners cannot be asked to go to the Green Tribunal situated at Delhi, which will cause economic hardships on them. Besides, it is relevant to accept the contention urged on behalf of the petitioners that this writ petition is maintainable and this Court is required to adjudicate rights of the parties in this PIL as public interest litigation jurisdiction is conferred upon this Court by the Apex Court in catena of judgments rendered by the Constitution Bench judgments of the Supreme Court, the latest judgment on the point is AIR 2010 SC 2050 (State of Uttaranchan v. Balwant Singh Chaufal), wherein the Apex Court after referring to various Constitution Bench judgment has held that the bona fide and genuine PIL is required to be entertained by this Court being the Constitutional Court for protection of the fundamental, constitutional and human rights of large number of people who have no access to justice, if it is shown that public interest is affected and there is violation of the Rule of Law. 34. In view of the Constitution Bench judgments of the Supreme Court referred to in the case of State of Uttaranchan v. Balwant Singh Chaufal, the contention urged by the learned counsel for the petitioners that this petition is maintainable and the same need not be transferred to the Green Tribunal at Delhi as the said decision has no application to the fact situation of the

579 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.] case on hand has substance. Accordingly, the first point is answered in favour of the petitioners and against the NALCO. 35. Further, a careful reading of the provisions of Sections 14, 15, and 29 makes it very clear that the jurisdiction of the civil court in relation to the claims of the public litigant for violation of the environmental laws claiming compensation is taken away and conferred upon the Green Tribunal established under the provisions of the Green Tribunal Act. Section 29 of the said Act makes it expressly clear that the civil court will not have any jurisdiction with effect from the date of establishment of the Tribunal under the aforesaid Act. The said provisions abundantly make it very clear that the civil court’s jurisdiction has been taken out and conferred upon the Green Tribunal that what is referred to in the judgment passed in the Bhopal Gas Peedith Mahila Udoyg Sangathan & others v. Union of India & others referred to supra. In the said decision nothing is stated with regard to the writ petitions filed by the petitioners independently and on behalf of the public complaint in violation of their fundamental and statutory rights. Therefore, the request made by the learned Senior Counsel Mr R.K. Rath to transfer the matter from this Court to the Green Tribunal cannot be accepted. 36. Point nos.2, 3 and 4 are interrelated and they are answered together in favour of the petitioners by assigning the following reasons. The Apex Court in the cases of A.P.Pollution Control Board and Vollore Citizen Welfare Forum and also in M.C.Meheta referred to supra has held that the Doctrine of Precautionary Principle is required to be recognized which has been explained in the following manner: “(i) Environmental measure by the State Government & the Statutory

Authority must anticipate and prevent and attack the cases of environmental degradation;

(ii) Where there are threats of serious and irresponsible damages, lack

of scientific certainty should not be used as a reason to postponing measure to prevent environmental degradation;

(iii) The “onus proof” is one the actor or developer/industrialist to show

that his action is environmentally benign” 37. The aforesaid principle has been rightly relied upon by the learned counsel for the petitioners. It is also worthwhile to extract certain paragraph from the judgment in A.P. Pollution Control Board’s case (paras-35, 36, 37)

580

INDIAN LAW REPORTS, CUTTACK SERIES [2013] and Vellore Citizen Welfare Forum’s case (para-11) and also in M.C. Meheta’s case (para-9). The Apex Court at paragraphs-35, 36 and 37 in A.P. Pollution Control Board’s case has observed as follows:

“Para-35: It is to be noticed that while the inadequacies of science have led to the ‘precautionary principle’ in its turn, has led to the special principle of burden of proof in environmental cases where burden as to the absence of injuries effect of the actions proposed is placed on those who want to change the status quo (Wynne, Uncertainty and Environmental Learning, 1 Global Envtl. Change 111 (1992) at p. 123). This is often termed as a reversal of the burden of proof, because otherwise in environmental cases, those opposing the change would be compelled to shoulder the evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party attempting to preserve the status quo by maintaining a less-polluted State should not carry the burden of proof and the party who wants to alter it, must bear this burden (See James M. Olson, Shifting the Burden of Proof. 20 Envtl. Law p.891 at 898 (1990). (Quoted in Vol.22 (1998) Harv. Env. Law Review p.509 at 519, 550).

Para-36: The precautionary principle suggests that where there is an identifiable risk of serious or irreversible harm, including, for example, extinction of species, widespread toxic pollution in major threats to essential ecological processes, it may be appropriate to place the burden of proof on the person or entity proposing the activity that is potentially harmful to the environment. (See Report of Dr. Sreenivbasa Rao Pemmaraju, Special Rapporteur, International Law Commission, dated 3-4-1998. para 61).

Para-37: It is also explained that if the environmental risks being run by regulatory inaction are in some way “uncertain but non-negligible”, then regulatory action is justified. This will lead to the question as to what is the ‘non-negligible risk’. In such a situation, the burden of proof is to be placed on those attempting to alter the status quo. They are to discharge this burden by showing the absence of a “reasonable ecological or medical concern. That is the required standard of proof. The result would be that if insufficient evidence is presented by them to alleviate concern about the level of uncertainty, then the presumption should b operate in favour of environmental protection. Such a presumption has been applied in Ashburton Acclimatisation Society v.

581 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.]

Federated Farmers of New Zealand, (1988) 1NZLR 78. The required standard now is that the risk of harm to the environmentl or to human health is to be decided in public interest, according to a ‘reasonable person’ test. (See Precautionary Principle in Australia by Charmian Barton) (Vol.22) (1998) Harv Env. L. Rev.509 at 549).”

The Apex Court at paragraphs-11 in Vellore Citizen Welfare Forum’s case has observed as follows:

Para-11: Some of the salient principles of “Sustainable Development”, as culled out from Brundtland Report and other documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protraction, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Cooperate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that “The Precautionary Principle” and “The Polluter Pays Principle” are essential features of “Sustainable Development”. The “Precautionary Principle” – in the context of the municipal law – means:

(i) Environmental measures – by the State Government and the statutory authorities – must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. (iii) The “onus of Proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.”

(Emphasis laid)

38. It is also an undisputed fact that the construction of the proposed of Ash Pond Stage-IV for the purpose of filling the ash by the NALCO is without obtaining the consent from the State Pollution Control Board as required under the notification dated 14.9.2006 referred to supra issued under sub-section (2) of Section 3 of the Environmental (Projection) Act, 1986 read with Clause (o) of Sub-rule 3 of Rule 5 of the rules framed thereunder and there is violation of the Environmental (Projection) Act, 1986. Therefore, the petitioners are justified in approaching this Court

582

INDIAN LAW REPORTS, CUTTACK SERIES [2013] complaining that there is a statutory violation on the part of the NALCO. The Pollution Control Board as well as the NALCO has not acted as per the notification. The condition imposed by the Board upon the NALCO has not been complied with by it and it has started construction of Stage-IV Ash Pond and the Board has not taken any step to stop it. The NALCO has violated the terms and conditions of the notification particularly the general conditions. Further, before issuing the Annexure-A to the Additional Affidavit, the State Pollution Control Board, Odisha has not conducted public hearing giving opportunity to the residents of the nearby villagers of the proposed construction Ash Pond Stage-IV thereby their right of opportunity of hearing as provided under the provisions of the Water (Prevention & Control of Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981 and the Environmental (Protection) Act of 1986 has been affected. 39. Apart from the said reasoning, the petitioners have rightly placed reliance upon the judgment of the Supreme Court in the case in the case of Vellore Citizen Welfare Foru’s case, wherein it is held by the Apex Court that the industries are essential for economical development, but measure should be taken to reduce the risk to the community by taking necessary steps or locating such industries in a manner that would pose the least risk or danger to the community and maximizing safety requirement on such industries. (Emphasis laid by this Court) 40. Similarly, in the case of M.C. Meheta v. Kamal Nath and others, AIR 2000 SC 1997, the Apex Court has held that any disturbance of basic required elements namely air, water and soil which are necessary for life, if hazardous to life of the citizens, precautionary measures are required to be taken by the State in anticipation to prevent the attack on the cause of environmental degradation. Further, the Apex Court in the case of Indian Council for Enviro-Legal Action v Union of India (supra), has taken the same view holding that if an industry is established without requisite permission and/or violating the basic norm and in blatant disregard of law to the detriment of citizens’ “right to life”, the court can interfere and rule of absolute liabilities applies in such cases being violative of Article 21 of the Constitution of India. 41. The aforesaid principles laid down by the Supreme Court in the above referred cases with all fours are applicable to the fact situation of the present case for the reason that, according to the inspection report of the State Pollution Control Board, the land in question is situated 50 meters away from the boundary of the proposed Ash Pond Badataila Sahi of mouza Balaram Prasad in the district of Angul, where 15 to 20 families reside. In

583 YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA [V.GOPALA GOWDA,CJ.]

respect of land in question the notification under Section 14(1)(a) of the IDCO Act has not been issued by the State Government declaring the area as an industrial area for establishment of industries. Therefore, there is statutory violation on the part of the State Pollution Control Board in issuing the consent order for construction of Ash Pond IV. The action of the State Pollution Control Board permitting the NALCO for construction of the proposed Ash Pond Stage-IV and issuing the consent order dated 23.12.2011 produced at Annexure-A to the Additional Affidavit filed on behalf of the State Pollution Control Board is bad in law. That apart, learned counsel for the petitioners placed reliance upon certain materials available on the Internet, wherein physicians have opined under the heading “Physicians for Social Responsibility” that coal ash is hazardous to human health. It also opined therein that most coal ash comes from coal-fired electric power plants. The coal ash also can cause heart damage, lung disease, respiratory distress, kidney disease, reproductive, gastrointestinal illness, birth defects and impaired bone growth in children. Further, 1 in 50 has the chance of getting cancer from drinking arsenic-contaminated water. Arsenic is one of the most common and most dangerous pollutants from coal ash. The EPA also found that living near ash ponds increases the risk of damage from cadmium, lead, and other toxic metals. Further, it is opined that coal ash recycling poses health risk, especially where the ash is exposed to weather for example when sprinkled as cinders on snowy roads, spread as agricultural fertilizer or used as a landfill or to fill abandoned mines. 42. Further, another newsletter i.e. ENVIS NEWSLETTER published by the Centre for Environmental Studies (Forest & Environment Department, Government Orissa) on Flyash Management available on the internet website reveals that the problem with fly ash lies in the fact that not only does its disposal requires large quantities of land but also water and energy. Its fine particles, if not managed well, can become airborne. Such a huge quantity does pose challenging problems, in the form of land used, health hazards and environmental damages. 43. In view of the aforesaid hazards to human health as extracted above from the internet materials uploaded on the website by the physician for social responsibility, we have to come to the conclusion that the construction of the fly-ahs pond near the village in question is not only harmful for human health, fertility but also develop various other ailments which will create health hazard and water and air will be polluted and the occupation of agriculture of the villagers will be adversely affected. Hence, the proposed construction of Stage-IV Ash Pond on the basis of consent produced at

584

INDIAN LAW REPORTS, CUTTACK SERIES [2013] Annexure-A along with the affidavit of the Pollution Control Board is in contravention of the fundamental and statutory rights of the residents of the area in question and contrary to the judgments of the Supreme Court on the aspects of the doctrine of precautionary principle required to be taken by the State Pollution Control Board. Instead of taking such pollution control measures, the State Pollution Control Board has granted consent order without public hearing and examining the danger which will be encountered by the residents of the village in question near the proposed construction of Stage-IV Ash Pond thereby it has acted arbitrarily and the action of the NALCO for construction of the Ash Pond will affect the ecology of the area in question. Hence, we answer point nos.2, 3 and 4 in favour of the petitioners and against the NALCO. Therefore, the petitioners are entitled for the relief as prayed for in the writ petition. Accordingly the writ petition is allowed. Rule issued. We direct the NALCO not to construct the Ash Pond IV in the land in question. If already constructed, the same shall not be used as Ash Pond by the NALCO. The other opposite parties in this case particularly, the State Pollution Control Board shall see that this order is implemented by the NALCO.

Writ petition allowed.

585

2013 ( I ) ILR - CUT-585

V. GOPALA GOWDA, CJ & B. N. MAHAPATRA, J.

W.P.(C) NO. 28343 OF 2011(Dt.08.10.2012)

COAL MINES OFFICER’S ASSOCIATION …….Petitioner

.Vrs. CHAIRMAN-CUM-MANAGING DIRECTOR & ORS. ……. Opp.Parties

NATURAL JUSTICE – Civil consequence – Infraction of not merely property of personal rights but of Civil liberties, material deprivations and non-pecuniary damages – Unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the Court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made is generally read in to the provisions of a statute, particularly when the order has adverse Civil consequences for the party affected. (Case laws Referred to:-

1.(2002)2 SCC 388 : (Rupa Ashoka Huraa-V- Ashok Hurra & Anr.) 2.(1978)1 SCC 248 : (Maneka Gandhi-V- Union of India) 3.2007(1)SCC 732 : (Arun Kumar-V-Union of India & Ors.) 4.1960 AC 376 (HL) : (Hochstrasser-V- Mayes) 5.(1980)4 SCC 379 : (S.L. Kapoor-V- Jagmohan) 6.(1994)1 WLR 521 : (Mercury Energy Ltd.-V- Electricity Corporation Newzealand) 7.AIR 1965 SC 1767 :(Bhagawati-V- Ramchand) 8.AIR 1967 SC 1269 : (State of Orissa-V- Binaparni) 9.AIR 1971 SC 1190 : (SDO-V- Gopal Chandra) 10.(1988)4 SCC 66 : (State -V- Mahadevan) 11.(2008)14 SCC 151 P.157 : (Sahara India(Firm) Lucknow-V- Commissioner of Income Tax, Central-I & Anr.) 12. (2007)2 SCC 181 : (Rajes Kumar-V- Dy. C.L.T.). For Petitioner - Mr. B.K.Mahanti, Sr, Advocate M/s. Bibek A. Mohanti, S.K.Mishra, A.R.Mohanty, M.Raul & M. Wright.

For Opp.Parties - M/s. S.Ray & A.C.Rath (Caveator).

586


B.N.MAHAPATRA,J. This writ petition has been filed with a prayer to quash the order dated 29.9.2011 passed by opp. Party no.1-Chairman-cum-Managing Director, Coal India Limited under Annexure-1 wherein opp. Party no.1 held that no scope is found to exist to pay “Up-keep Allowance” to executive cadre employees of Coal India Ltd. and of its subsidiary companies over and above perquisites already implemented. Further prayer of the petitioner is to issue a writ of mandamus or any other appropriate order directing opp. Party no.1 not to discriminate between the members of petitioner-Association and Non-executive members of the same company.

2. Petitioner’s case in a nutshell is that it is an Association of executives employed by opp. Party no.2-Coal India Limited and opp. Party no.3 -Mahanadi Coal Fields Limited (subsidiary of Coal India Limited) and it is registered under the Trade Union Act, 1926. By order of opp. Party nos. 2 and 3, they are working at Talcher and opp. Party no.3 allots residential accommodation and provides other amenities without any discrimination to all employees irrespective of class they belong to. From the salary of the employees, Opp. Party nos. 2 and 3 deduct income tax U/s.192 and deposit the same with the Central Government. The opp. Parties by an unreasonable classification, discriminate the members of the petitioner-Association in taking decision not to reimburse the tax deducted and paid on that part of the house rent allowance (hereinafter mentioned as ‘perquisites’), while it is reimbursing same to the non-executives by paying an equivalent amount known as “up-keep allowance”.

3. Clause 9(a) of the Coal Mines Regulation, 1957 provides for suitable residential accommodation for the Manager and the under-Manager or Assistant Manager within a distance of five kilometers from all mine openings, and every Manager, under-Manager and Assistant Manager shall reside in the accommodation so provided. Accordingly, opp. Party nos. 2 and 3 have provided residential accommodation in the colonies for every employee, whether executive or non-executive near about the place of work of the Coal Fields, which are mostly at remote places and alternative accommodations are not available. 4. Providing of quarters is a perquisite under the I.T. Act and each of the employees who enjoys the benefits is taxed under the head “salary” under the I.T. Act, 1961. Opp. Party nos. 2 and 3 as employers are obliged to deduct tax at source U/s. 192 of the I.T. Act and deposit it in time with the Central Government. For the Assessment Years 2008-09 and 2009-10 the opposite parties 2 and 3 deposited the tax, but did not make any deduction from the salary of non-executives and kept in abeyance till further orders.

587 COAL MINES -V- CHAIRMAN-CUM-MANAGING [B.N.MAHAPATRA,J.]

But the perquisites tax was sought to be deducted from the salary of executives. The petitioner-Association made representation to the Hon’ble Minister of Coal, requesting him not to deduct the perquisite tax. Since no action was taken by the opposite parties, the petitioner filed writ petition bearing W.P.(C) No.1533 of 2011 and this Court by order dated 01.02.2011 directed that no recovery of perquisite tax on house allotted to the petitioner be made till the next date. In the said writ petition opposite party no.3 filed a counter inter alia relying upon the office order dated 12.5.2011 of the Board of Directors of opp. Party no.2 approved for payment of up-keep allowance to the wage board employees (non-executives) who are residing in company’s quarters and come under the purview of perquisite tax. After hearing the parties, the petitioner was directed to file representations which was directed to be disposed of within a period of one month from the date of filing of the said representations. Pursuant to such order, the petitioner filed representations under Annexure-4. Opp. Party no.1 without giving any opportunity of hearing to the petitioner and taking into consideration some ex parte documents refused to grant upkeep allowance to the members of the petitioner-Association for the reason that Central Public Sector Undertakings are guided by DPE under the Ministry of Heavy Industries. Hence, the present writ petition.

5. Mr.B.K. Mahanti, learned Senior Advocate appearing for the petitioner submitted that the order passed under Annexure-1 is hit by Articles 14 and 19 of the Constitution of India by making a hostile discrimination between the non-executive and executive employees. An arbitrary decision has been taken under Annexure-1 relying on un-tested materials and without hearing the members of the petitioner-Association. Opp. Party no.1 passed the impugned order taking into consideration the ex parte materials, like the restraint on it not to pay more than 50% allowance.

6. Further, placing reliance upon the cases in Rupa Ashoka Hurra v. Ashok Hurra and another, (2002) 2 SCC 388 and Maneka Gandhi v. Union of Inida (1978) 1 SCC 248, Mr. Mohanti submitted that the decision rendered in violation of audi altaram partem is null and void. In support of his above contention, he also relied upon some other judgments of the Hon’ble Supreme Court.

7. Placing reliance on the decision of the Hon’ble Supreme Court in Arun Kumar V. Union of India and others, 2007 (1) SCC 732, Mr. Mohanti submitted that though Rule 3 is intra vires, valid, but it is always open to the assessee to contend that there is no concession in the matter of accommodation provided by the employer to the employee and hence the case did not fall within the mischief of Sec. 17(2)(ii) of the Act. If the

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] accommodation is provided by the employer as a part and parcel of his duty as agent to live in the bank house, such an income could not be regarded as part of income. It is further submitted that providing of quarters by all employers, as a part and parcel of the employees duty, is not perquisite and not an income. Placing reliance in the case of Hochstrasser v. Mayes, 1960 AC 376 (HL), it was submitted that the Court must be satisfied that the service agreement was the causa causans and not merely the causa sine qua non of the receipt of the profit. Mr. Mohanti further submitted that the object of Rule 3 is to extend relief to employees and keeping in view the said purpose, it has to be interpreted liberally. In support of his submission reliance was also placed on the decision of the Supreme Court in CIT, Bombay v. British Bank of Middle East MANU/SC/0510/2001. It is submitted that Rule 3 would apply to those cases where ‘concession’ has been shown by an employer in favour of an employee in the matter of rent respecting accommodation. ‘Charging provision’ is found in the Act of Parliament [Section 17(2)(ii)], ‘machinery component’ is in the subordinate legislation (Rule 3). The latter will apply only after liability is created under the former. Unless the liability arises under Section 17(2)(ii) of the Act, Rule-3 has no application and the method of valuation for calculating concessional benefits cannot be resorted to. Placing reliance on ILM Cadija Umma v. S. Don Manis Appu; AIR 1939 PC 63, Mr. Mohanti submitted that if literal reading of a prima facie definition leads to absurdity, a restricted meaning may have to be given to avoid the absurdity. 8. Mr. S. Ray, learned counsel appearing for opposite parties submitted that facts stated in the writ petition are not correct. It is not correct to say that though both executive and non-executive even taken from different source, but for the purpose of their pay, service condition, discipline and other perquisites like provision of quarters, education to the children of the employees, facility of medical treatment for the employees and their dependents, recreation etc. are the same. Mahanadi Coal Fields Ltd. provides quarters and where the quarters are not provided, it is paying house rent to its employees. 9. Mr.Ray further submitted that the impugned order passed under Annexure-1 is a reasoned order. If the petitioner-Association’s claim for up-keep allowance will be accepted, it will exceed the ceiling of their basic pay and therefore, it will be in violation of Presidential directive and service conditions. It is also submitted that there is no hostile discrimination as alleged since executive and non-executive are two different classes and are totally different right from entering into their services with regard to the nature of duties rendered, pay scale, perquisite. Hence, the allegation made


by the petitioner is totally false, frivolous and liable to be rejected. Opp. Party no.1 after considering all aspects and with due application of mind disposed of the representation rejecting the petitioner’s claim for granting up-keep allowance with a well reasoned order and therefore, the petitioner has no justifiable reason to allege that they have been subjected to hostile discrimination by refusing to grant up-keep allowance. There is huge disparity between the pay scale of the executives and non-executives and the executives are paid up to 50% of the basic salary as perquisites which includes House up-keep Allowances of 5%, whereas non-executives are not getting any similar monetary perquisites. The executives cannot seek parity with the non-executives by claiming grant of up-keep allowance. 10. It is further submitted by Mr. Ray that as per Section 192 of the I.T. Act, it is the liability of the employer to recover income tax from the monthly salary of the employees and deposit the same in time with the Central Government. This is a statutory obligation and failure to comply with it attracts interest u/s.201 and penalty u/s.221 and 271 C of the Act. Salary includes perquisites under Section 17(1) and the value of rent free accommodation provided to an employee by his employer is a taxable perquisite. Therefore, for the calculation of recoverable amount of income tax from the salary of an employee, the value of the perquisite (rent-free accommodation in this case) also has to be considered. Valuation of rent-free accommodation is done according to Rule 3(1) of the Rules.

11. On the rival contentions of the parties, the questions that fall for consideration by this Court are:

(i) Whether the impugned order passed under Annexure-1 by opposite party No.1 rejecting the claim of the petitioner that members of the executive and non-executive belong to same class, without affording opportunity of hearing to the petitioner, is valid in law?

(ii) Whether accommodation provided to the Executives working under opposite party nos.1 and 2 could be regarded as part of their income on which tax could be deducted at source under Section 192 of the I.T. Act from the salary paid to the Executives?

(iii) What order?

12. Question No.(i) is as to whether the impugned order passed under Annexure-1 by opposite party No.1 rejecting the claim of the petitioner that members of the executive and non-executive belong to same class, without affording opportunity of hearing to the petitioner, is valid in law?

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 13. Specific stand of the petitioner is that the impugned order under Annexure-1 is hit by Articles 14 and 19 of the Constitution of India by making a hostile discrimination between the Non-executive and Executive employee. Mr. Mahanti, learned Senior Advocate submitted that every classification shall be legal, valid and permissible if that classification is founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out and such a difference must have rational nexus to the object sought to be achieved by the statute or legislation in question. 14. Petitioner’s further case is that both Executive and Non-Executive even taken from different sources, but for the purpose of their pay, service condition, discipline and other perquisites like provision of quarters, education to the children of the employees, facility of medical treatment for the employees and their dependents, recreation etc. are same.

15. The case of opposite parties is that there are two categories of employees working in Mahanadi Coalfields Ltd. One is Executive and the other is Non-executive (Workmen). The entry of executives and non-executives are from two different sources. The executives are posted as Executive Management Trainees in E1 grade, whereas normally the non-executives are posted as general mazdoors Cat-1 which is the lowest non-executive pay scale. In so far as Executives are concerned, the pay and allowances are fixed as per guidelines issued by Department of Public Enterprises, Government of India and so far as non-executives are concerned, their pay and allowances are fixed by way of agreement which is called as ‘National Coal Wages Agreement’ and is finalized after discussion with five Central Trade Unions like INTUC, CITU, Bharatiya Majdoor Sangha etc. There is difference between two classes basically in service condition, career growth, recruitment done, Leave Rules, House Rent accommodation, duration of wages revision of executives and non-executives. In the official revision pay scale order, it is provided that board level and below board level executives of Coal India Ltd. and its subsidiary companies w.e.f. 1.1.2007 are entitled to get 5% of basic pay towards house up-keep allowance per month for purchase of curtains, wall paintings, hangings, carpets, decorative materials, cutlery and other household appliances etc.

16. According to Mr. B. Mahanti, learned Senior Advocate, since no opportunity of hearing was provided to the petitioner before passing the impugned order under Annexure-1, which has civil consequence, the same is violative of the principles of natural justice and therefore, the same is not sustainable in law.

17. In Maneka Gandhi vs. Union of India, (1978) 1 SCC 248, the Hon’ble Supreme Court held that the decision rendered in violation of audi


altarem partem is null and void. In S.L. Kapoor vs. Jagmohan, (1980) 4 SCC 379, it was extended to orders passed by quasi judicial authorities. In Mercury Energy Ltd. vs. Electricity Corporation, Newzealand, (1994) 1 WLR 521, the court declared an order of the Minister to be a nullity, if it was passed without hearing. [Also See Bhagawati vs. Ramchand, AIR 1965 SC 1767, State of Orissa vs. Binaparni, AIR 1967 SC 1269, SDO vs. Gopal Chandra, AIR 1971 SC 1190, State vs. Mahadevan, (1988) 4 SCC 669]. In Sahara India (Firm) Lucknow Vs. Commissioner of Income Tax, Central-I and another, (2008) 14 SCC 151 at page 157 and Rajesh Kumar vs. Dy. C.I.T., (2007) 2 SCC 181, the Hon’ble Supreme Court held that giving an opportunity of hearing is a must, where the Assessing Officer asks for special audit having regard to the nature and complexity of the accounts of the assessee and the interest of the revenue. The Hon’ble Supreme Court in some other cases held that administrative order, if it operates to the prejudice of assessee and entails civil consequences, opportunity of hearing should be given to the assessee. The court further held that natural justice implies to a duty to act fairly, i.e., fair-play in action. 18. The expression ‘civil consequence’ encompasses infraction of not merely property of personal rights but of civil liberties, material deprivations and non-pecuniary damages. Under its wide umbrella comes everything that affects a citizen in his civil life. Unless a statutory provision either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences for the party affected. The two fundamental maxims of natural justice are (i) audi altarem partem and (ii) nemo judex in causa sua. Thus, the observance of principles of natural justice is the pragmatic requirement of fair play in action.

19. Petitioner’s specific case is that the employer provides residential accommodation to the employees. Opposite Party Nos. 2 and 3 deduct tax at source under Section 192 of the Act and deposit it with the Central Government and do not reimburse to the employees, who are executive. The opposite parties, by an unreasonable clarification discriminate the members of the petitioner-Association in taking a decision not to reimburse the tax paid on that part of the house rent allowance (for short ‘perquisites’) to members of the petitioner-Association while they are reimbursing it to the non-executives by paying equivalent amount known as “Up-keep Allowances”. Further, both the members of executive and non-executive

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] belong to same class, i.e., I.T. assessee. Therefore, opposite party No.1 before rejecting the petitioner’s claim that the members of the executive and non-executives belong to the same class and the members of the petitioner-Association are not entitled to get “Up-keep Allowance” of 5% is required to give an opportunity of personal hearing to the members of the petitioner-Association in view of the settled position of law mentioned above. 20. In view of the above, the impugned order passed under Annexure-1 by opposite party No.1 rejecting the claim of the petitioner that members of the executive and non-executive belong to same class without affording opportunity of hearing to the petitioner is not valid in law. 21. Question No.(ii) is as to whether accommodation provided to the Executives working under Opposite party no.1 could be regarded as part of their income on which tax could be deducted at source under Section 192 of the I.T. Act from the salary paid to the Executives. 22. Petitioner’s specific case is that since accommodation is provided by the employer as part and parcel of his duty as agent to live in the accommodation, such an income could not be regarded as part of the income of the members of the petitioner. Therefore, no tax at source is deductible from the income under Section 192 of the Act. 23. Whether the accommodation provided by the employer is part and parcel of his duty as agent to live in the accommodation and therefore such an income could not be regarded as part of the income of the members of the petitioner-Association would depend upon the factual scenario and nature of evidence produced. Without examining the evidence it cannot be definitely said whether the quarters provided by the employer to the members of the petitioner-Association is not perquisite and therefore not an income. The nature of the income in respect of accommodation provided by the employer cannot be decided in the writ petition because the relevant material can be more factually examined by the Assessing Authority. This Court cannot examine the materials as an original forum. 24. At this juncture, it is necessary to extract here the relevant portion of Section 192 of the Act:

“192.(1) Any person responsible for paying any income chargable under the head “Salaries” shall, at the time of payment, deduct income-tax on the amount payable at the average of income tax computed on the basis of the [rates in force] for the financial year in


which the payment is made, on the estimated income of the assessee under this head for that financial year.”

25. Salary includes perquisites as provided under Section 17(1) of the I.T. Act and under Section 17(2)(i) ‘perquisite’ includes the value of rent free accommodation provided to the assessee by his employer. Valuation of the rent free accommodation is done according to Rule 3 of the I.T. Rules, 1962. 26. It is further necessary to extract the relevant portion of Section 197 of the Act:

“197. Certificate for deduction at lower rate

(1) Subject to rules made under sub-section (2A), where, in the case of any income of any person or sum payable to any person, income-tax is required to be deducted at the time of credit or, as the case may be, at the time of payment at the rates in force under the provisions of section 192, 193, 194, 194A, 194C, 194D, 194G, 194H, 194-I, 194J, 194K, 194LA and 195, the Assessing Officer is satisfied that the total income of the recipient justifies the deduction of income-tax at any lower rates or no deduction of income-tax, as the case may be, the Assessing Officer shall, on an application made by the assessee in this behalf, give to him such certificate as may be appropriate.

(2) Where any such certificate is given, the person responsible for

paying the income shall, until such certificate is cancelled by the Assessing Officer, deduct income-tax at the rates specified in such certificate or deduct no tax, as the case may be.

(3) (2A) The Board may, having regard to the convenience of assesses

and the interests of revenue, by notification in the Official Gazette, make rules specifying the cases in which, and the circumstances under which, an application may be made for the grant of a certificate under sub-section (1) and the conditions subject to which such certificate may be granted and providing for all other matters connected therewith.”

27. Therefore, in view of the above statutory provision, it is open to the members of the petitioner-Association to make an application as provided under sub-section (1) of Section 197 to the Assessing Officer and satisfy him that no tax is deductible from the salary on account of the accommodation provided by the employer to them. In such event, the Assessing Officer has to examine the case of the petitioner and if he is satisfied that the members

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] of the petitioner-Association are entitled to be issued with certificate of “No deduction of Income Tax” he shall issue such certificate and on production of such certificate before opposite party No.1, opposite party No.1 is bound not to deduct tax until such certificate is cancelled. Thus, a statutory remedy is available to the petitioner under Section 197 of the Act. Section 197 is a complete provision so far as deduction of tax at source is concerned. 28. In the result, the impugned order under Annexure-1 is set aside with a direction to opposite party No.1 to decide the claim of the petitioner as to whether the members of the petitioner-Association and non-executives belong to the same class and the executives are entitled to 5% “Up-keep Allowance” as the non-executives are getting after giving an opportunity of hearing to the petitioner, within a period of one month from the date of production of certified copy of this judgment. 29. With the aforesaid observation and direction, the writ petition is disposed of. Writ petition disposed of.

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2013 ( I ) ILR - CUT-595

V. GOPALA GOWDA, CJ & B. N. MAHAPATRA, J.

W.P.(C) NOS.1597 & 1686 OF 2012 (Dt.09.10.2012)

M/S. NATIONAL ALUMINUM CO. LTD. ……..Petitioner

.Vrs.

DY. COMMISSIONER OF COMMERCIAL TAXES. ……..Opp.Party

A. ODISHA VAT ACT, 2004 – S.2 (25), 2 (27)

Input – Whether coal, alum, caustic soda and other consumables used for generation of electricity is to be treated as an input U/s.2 (25) of the OVAT Act and the tax which has been paid on purchase of coal, alum, caustic soda and other consumables etc. can be claimed as input tax credit U/s.2 (27) of the OVAT Act against the tax payable on sale of finished product i.e. aluminum, aluminum ingots and sheets etc.

Held, coal, alum, caustic soda and other consumables purchased from market on payment of tax and used for generation of electrical energy in the Captive Thermal Plant of the petitioner which is used in the process of manufacture of finished product i.e. aluminum, aluminum ingots and sheets etc. taxable under the OVAT Act are inputs as defined U/s.2 (25) of the OVAT Act and the tax which has been paid on such purchases can be claimed as input tax credit U/s.2 (27) of the OVAT Act against the tax payable on sale of finished products i.e. aluminum, aluminum ingots and sheets etc. – Hence, the demand raised in the assessment orders Dt.31.10.2011 passed under Annexure-1 in both the writ petitions disallowing the input tax credit in respect of tax paid on coal, alum, soda and other consumables used for generation of electrical energy is quashed. (Para 35) B. ODISHA VAT ACT, 2004 – S.43 (2)

Whether imposition of penalty U/s.43 (2) of the OVAT Act can only be levied if the escapement is without any reasonable cause ?

Held, once the Assessing Officer comes to the conclusion that the dealer is indulged in fraudulent activities and assesses him under Section 43 of the OVAT Act, there is no need for the Assessing Officer to make further investigation to find out whether the escapement is without reasonable cause for the purpose of imposition of penalty U/s.43 (2) of the OVAT Act. (Paras 36,39)

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Case laws Referred to:- 1.(2008)15 VST 228 :(Reliance Industries Ltd.-V- Asst. Commissioner of Sales Tax) 2.(1965) 16 STC 563(SC) : (J.K. Cotton Spinning & Weaving Mills Co. Ltd.- V- Sales Tax Officer) 3.Vol.77 STC 282 (SC) : (Collector of Central Excise-V-M/s. Ballarpur Industries Ltd.) 4.25 STC 211 (SC) : (Hindustan Steels Ltd.-V- State of Orissa) 5.45 STC 197 (SC) : (Cement Marketing Co of India Ltd.-V-Asst. Commissioner of Sales Tax, Indore & Ors.) 6.(2007)7 SCC 347 : (Collector of Central Excise & Ors.-V-Solarish Chemtech Ltd. & Ors.) 7.(1988)69 STC 320 (SC) : (Deputy Commissioner of Sales Tax (Law)-V- Thomas Stephen & Co. Ltd.) 8.(2008)18 VST 180 (SC) : (Union of India & Ors.-V- Dharamendra Textile Processors & Ors.) 9.(2009)9 SCC 193 : (Maruti Suzuki Ltd.-V- Commissioner of Central Excise, Delhi III). 10.(2009)22 VST 615(SC) : (State of Gujarat & Anr.-V-AMI Pigments Pvt.:Ltd.& Ors.) 11.(1990)77 STC 282 : (Collector of Central Excise-V- Ballarpur Industries Ltd.) 12.(2000)117 STC 12 : (Coastal Chemicals Ltd.-V-Commercial Tax Officer, A.P. & Ors.) 13.(2010)32 VST 97 : (AMI Pigments Pvt. Ltd. & Ors.-V-State of Gujarat & Anr.) For Petitioner - Dr. Devi Pal, Sr. Advocate, M/s. S.Kanungo, CH. S. Mishra, R.N. Pattnaik, N.R. Mohanty & N.K.Nanda.

For Opp.Party - Mr. R.P. Kar, Standing Counsel (Revenue).

B.N.MAHAPATRA,J. The above two writ petitions have been filed with a prayer to quash the assessment order dated 31.10.2011 (Annexure-1) passed by the sole opposite party-Deputy Commissioner of Commercial Taxes, Bhubaneswar-III Circle, Bhubaneswar, Dist: Khurda and to issue a direction to the said opposite party to treat coal, alum, caustic soda, and other consumables as input for manufacturing of aluminum, aluminum ingots

597 M/S. NATIONAL ALUMINUM-V- DY. COMMISSIONER [B.N.MAHAPATRA,J.]

and sheets etc. and to allow the petitioner to take input tax credit on such inputs.

2. Annexure-1 attached to W.P.(C) No.1597 of 2012 is an order of assessment passed by the opposite party-Deputy Commissioner of Commercial Taxes, Bhubaneswar Circle-III, Bhubaneswar, Khurda under Section 43 of the Orissa Value Added Tax Act, 2004 (for short, “OVAT Act”) for the period 01.04.2011 to 30.06.2011 raising a demand of Rs.11,32,49,874/- which includes penalty of Rs.7,54,99,916/- levided under Section 43(2) of the OVAT Act.

Similarly, Annexure-1 attached to W.P.(C) No.1686 of 2012 is the

assessment order passed by the opposite party-Deputy Commissioner of Commercial Taxes, Bhubaneswar Circle-III, Bhubaneswar, Khurda under Section 43 of the OVAT Act for the period 01.07.2011 to 30.09.2011 raising a demand of Rs.14,68,62,843/- which includes penalty of Rs.9,79,08,562/- levied under Section 43(2) of the OVAT Act.

3. Since the issues involved in both the writ petitions are identical, they

are dealt with together.

4. Petitioners’ case is that the petitioner-company is a Central Government Public Sector Undertaking under the Administrative Control of the Ministry of Mines, Government of India, having its Corporate Office at NALCO, Plot No.P/1, NALCO Bhawan, Nayapalli, Bhubaneswar, Dist: Khurda. It is an integrated establishment consisting of the following three units, namely, (a) Aluminium Refinery Plant at Damanjodi in the district of Koraput,

having (8.00 lakh Tons per annum). Presently, enhanced to 21.0 lakhs MT per annum.

(b) Aluminium Smelter Plant at Angul in the district of Angul having (2.15 lakhs MT per annum). Presently enhanced to 4.60 MT per annum.

(c) Captive Thermal Power Plant of 720 Mega Watt meant for Smelter Plant at Angul. Presently, enhanced to 1200 Megawatt.

5. For the aforesaid activities, the petitioner is registered under the

Central Sales Tax Act, 1956 vide Registration Certificate No. BHC-1113 dated 16.09.1981 whereas separate and individual Registration Number had been allowed under Orissa Sales Tax Act, subsequently replaced with the OVAT Act in respect of the aforesaid three manufacturing units of the

598


petitioner. Thereafter the petitioner has been granted the centralized registration certificate under the OVAT Act w.e.f. 01.04.2011 by declaring its Corporate Office at Bhubaneswar as the principal place of business. It has filed its statutory monthly returns for the impugned tax period, by claiming Input Tax Credit in respect of inputs, namely coal, alum, caustic soda, consumables (lubricants, gas) used for generation of electricity in its Captive Power Plant which in turn used in the continuous process of manufacturing of aluminum. After scrutiny of the returns, the sole opposite party issued a notice in Form VAT-307 on 16.08.2011 by initiating assessment proceeding under Section 43 of the OVAT Act and completed the assessment raising aforesaid demands. Hence the writ petition.

6. Dr. Devi Pal, learned Senior Advocate appearing for the petitioners

submitted that the opposite party without communicating the reasons as asked for by the petitioner has reopened the assessment proceeding and passed the order of assessment disallowing the input tax credit in respect of purchase of coal, alum, caustic soda, consumables (lubricants, gas) used for its Captive Power Plant for generation of electricity which in turn is used in continuous process of manufacturing of aluminum by treating the electricity so generated by the petitioner in its Captive Power Plant as its finished product which is exempted from tax under Schedule-A of the OVAT Act. It was submitted that the impugned orders of assessment were passed under Section 43 of the OVAT Act without informing/communicating the information to the petitioner which was in the possession of Assessing Officer. The said information was also not indicated on the body of the order while completing the assessment proceeding under Section 43 of the OVAT Act.

7. Dr. Pal, learned Senior Advocate emphatically submitted that the

input tax credit on the purchase of coal etc. is to be set off and/or adjusted against the output tax under the OVAT Act on the final products, i.e., aluminum, aluminum ingot etc., which are sold in the market. Referring to Section 2(25) of the OVAT Act, it was submitted that ‘input’ means any goods purchased by a dealer in the course of his business for resale or for use in the execution of the works contracts or in the processing or manufacturing where such goods directly goes into composition of finished product or packing of goods for sale and includes consumables directly used in such processing or manufacturing. Further referring to Sections 20(1) and 20(8)(k) of the OVAT Act, Dr. Pal, submitted that no input tax credit shall be claimed by or be allowed to a registered dealer in respect of input or capital goods other than those covered under Schedules A, C and D in manufacturing of goods where the finished products are exempted from tax either in whole or in part under the OVAT Act or under the CST Act, 1956.


8. Dr. Pal, further submitted that the contentions of opposite party that

since the materials like coal, alum, caustic soda, etc. which are purchased from market on payment of tax and used as input in the manufacture of electrical energy in the Captive Power Plant of the petitioner and the said electrical energy being the finished product exempted from tax under Item No.13 of Schedule A, input tax credit on such materials cannot be allowed as a set off is totally misconceived and not sustainable in law. It is further submitted that coal along with other materials are used for generation of electrical energy which is subsequently used in continuous process of manufacturing of finished products viz. aluminum, aluminum ingots and sheets etc. After coal is being purchased from Mahanadi Coalfields Limited on payment of tax, the said goods are being fed into a boiler where it is burnt with the help of thermal heat and water is being converted into Super Saturated Steam and after attending at a particular temperature and pressure, steam enters into a turbine which in turn rotates the shaft of turbo-generator from where electricity is being generated. Aluminum metal is produced in smelter plant by adopting the hall-heroult process in a large carbon lined steel container called a reduction pot. Such pots lined up in long rows, are called pot lines. The key to the chemical reaction necessary to convert the alumina to metallic aluminum is by running high magnitude of electricity current through the cryollite/alumina mixture in the pot. This process requires huge quantity of electricity. This electrolysis process takes place in electrolytic cells (or pots), where carbon cathodes from the bottom of the pot act as the negative electrode. The smelting of aluminum in a pot is a continuous process and therefore, the potline is kept in operation for 24 hours a day without any interruption of power supply. A smelter plant cannot be easily stopped and restarted. If the production is interrupted by a power failure of more than 4 hours, the aluminum metal in the pots will be solidified which requires an expensive rebuilding process.

9. Dr. Pal, submitted that without electric energy the pot lines cannot function. Huge quantity of electrical energy is required during electrolysis process and then only the aluminum which is a commercial product saleable in the market is produced. Therefore, the electrical energy generated in the captive power plant is not the final product which is sold in the market. Aluminum, aluminum ingots and other aluminum products are sold @ 4% as provided under Sl.No.9 of Part-II of Schedule B under the OVAT Act and input tax credit can be allowed only against the sale of aluminum, aluminum ingots etc. which are taxable under the OVAT Act. Generation of electrical energy in its own captive power plant is neither meant for sale in the market and necessarily are not sold in the market but are used ranging from 95 to

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 99% only in the process of manufacture of aluminum, aluminum ingots etc. by using such energy in the smelter plant through electrolysis process. 10. Placing reliance on the judgment of this Court in the case of Reliance Industries Limited vs. Assistant Commissioner of Sales Tax, (2008) 15 VST 228, Dr. Pal submitted that disallowance of input tax credit as made by the Assessing Officer is not correct.

Placing reliance on the judgment of the Hon’ble Supreme Court in the case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. Sales Tax Officer, (1965) 16 STC 563 (SC), it is submitted that the expression “in the manufacture of goods” should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.

In support of the contention, Dr. Pal, has also relied upon the

judgment of the Hon’ble Supreme Court in the case of Collector of Central Excise vrs. M/s. Ballarpur Industries Ltd., Vol. 77 STC 282 and submitted that the opposite party while granting registration certificate under the OVAT Act has treated coal under the heading of fuel.

Further, placing reliance upon the judgment of the Hon’ble Supreme

Court in the case of Commercial Taxation Officer vs. Rajasthan Taxchem Ltd., 5 VST 529 (SC), Dr. Pal, submitted that diesel in that case was termed as raw material and not otherwise and the benefit of deduction had been allowed.

11. It is further submitted that if the test of essentiality or the test of dependency will be applied in the present case, it would be appreciated that without the use of coal and other goods, the electricity cannot be generated in the Captive Power Plant of the petitioner. Therefore, it will come under the definition of ‘input’ as provided under Section 2(25) of the OVAT Act.

Dr. Pal submitted that where a question involved is pure interpretation of law, that question should be decided and settled by the High Court.

12. It was further submitted by Dr. Pal that penalty can be levied only if the escapement is without any reasonable cause. In support of the contention, Dr. Pal, further relied upon the decisions of the Hon’ble Supreme Court in the cases of Hindustan Steels Ltd. vs. State of Orissa, 25 STC 211 (SC), Cement Marketing Co of India Ltd. vs. Assistant Commissioner of Sales Tax, Indore and other, 45 STC 197 (SC) and the decision of this Court


in the case of National Aluminium Co. Ltd. vs. State of Orissa and others, 93 STC 529 (Orissa).

13. Dr. Pal also submitted that the decision of the Hon’ble Supreme Court in the case of Collector of Central Excise and others vs. Solarish Chemtech Ltd. and others, (2007) 7 SCC 347 relied upon by the opposite party supports the case of the petitioner as the petitioner adopts electrolysis process for manufacture of aluminum which requires huge quantity of electricity and therefore, the potline is kept in operation for 24 hours a day without any interruption of power supply. It is further submitted that the decision of the Hon’ble Supreme Court in the case of Deputy Commissioner of Sales Tax (Laws), Board of Revenue (Taxes) Ernakulam vs. Thomas Stephen & Co. Ltd., 69 STC 320 has no application in the present case as the definition of ‘input’ appearing in Section 2(25) of the OVAT Act includes consumables directly used in such processing or manufacturing.

14. Mr. R.P. Kar, learned Standing Counsel appearing for the Revenue

submitted that there is no infirmity or illegality in the order passed by the sole opposite party-Deputy Commissioner of Commercial Taxes, Bhubaneswar Circle-III, Bhubaneswar in disallowing input tax credit under the OVAT Act in respect of purchase of coal, alum, caustic soda, and other consumables etc. used for manufacture of electrical energy in Captive Power Plant.

Placing reliance upon the judgment of the Hon’ble Supreme Court in

the case of Solaris Chemtech Ltd., (Supra), Mr. Kar submitted that any operation in course of manufacture, only if integrally connected with the operation which results in the emergence of manufactured goods, would come within the term “manufacture”. But in the case at hand, electricity generated is a finished product itself and it is not integrally connected with manufacturing of aluminum and aluminum ingots. Mr. Kar, further placing reliance on the decisions of the Hon’ble Supreme Court in the case of Deputy Commissioner of Sales Tax (Law) vs. Thomas Stephen & Co. Ltd., (1988) 69 STC 320 (SC), submitted that “consumption” as contemplated by Section 2(25) of the OVAT Act must be in the manufacture as raw material or of other components which go into the making of the end-product. Goods used for ancillary purposes, like fuel, in the process of manufacture, do not fall within section 2(25) of the OVAT Act. Further placing reliance upon the judgment of the Hon’ble Supreme Court in the case of Union of India and others vs. Dharamendra Textile Processors and others, (2008) 18 VST 180 (SC), Mr. Kar, submitted that wilful concealment is not an essential ingredient for attracting civil liability or penalty.

602


15. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court:

(i) Whether coal, alum, caustic soda, and other consumables used for

generation of electricity is to be treated as an input as defined under Section 2(25) of the OVAT Act and the tax which has been paid on purchase of coal, alum, caustic soda and other consumables etc. can be claimed as input tax credit under Section 2(27) of the OVAT Act against the tax payable on sale of finished product i.e. aluminum, aluminum ingots and sheets etc.

(ii) Whether imposition of penalty under Section 43(2) of the OVAT Act

can only be levied if the escapement is without any reasonable cause?

16. So far as question No.(i) is concerned, the case of the opposite party-Revenue is that the finished product of Captive Power Plant is electrical power or electrical energy which finds place at Sl.No.13 of Schedule A of the OVAT Act. As per Section 17 of the OVAT Act, the goods specified in Schedule-A are exempted from levy of tax and as such the electrical energy is exempted from tax under the OVAT Act. Coal is used for manufacturing of electrical energy, which is a finished product. Therefore, no input tax credit could be allowed in terms of Section 20(8)(k) of the OVAT Act. 17. On the other hand, petitioner’s case is that it has set up an integrated establishment consisting of three units, namely, (a) Aluminum Refinery Plant, (b) Aluminum Smelter Plant, and (c) Captive Thermal Power Plant. These three plants have been set up to manufacture the finished product i.e. aluminum, aluminum ingots and sheets etc. 18. The opposite party-Deputy Commissioner of Commercial Taxes in the assessment order has observed as follows:

“In the instant case the assessee company is carrying business in manufacturing and selling of alumina and aluminum ingots & sheets etc. This assessee company has three nos. of units in the State of Odisha, they are involved in mining and refining of the mineral from which alumina is produced at Damanjodi units and transferred to second unit i.e. smelting plant at Angul. The third unit is captive power plant, power generating unit at Angul, which supplies electricity power to smelting plant for manufacturing aluminum ingots, wires and sheets for sale”


19. It is nobody’s case that the petitioner is engaged in producing and selling of electricity. The admitted case is that the petitioner is carrying on business in manufacturing and selling of aluminum, aluminum ingot and sheet etc and to manufacture the finished products the power plant has been set up to manufacture/ generate electrical energy. 20. The relevant portion of Section 20(8)(k) of the OVAT Act, reads thus:

“20.(8) No input tax credit shall be claimed by or be allowed to a registered dealer—

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(k) in respect of input or capital goods other than those covered under Schedules A, C and D used in manufacture of goods where the finished products are exempted from tax either in whole or in part under this Act or under the Central Sales Tax Act, 1956 (74 of 1956)”

21. Section 17 of the OVAT Act envisages that the sale of all goods specified in Schedule A shall be exempted from tax subject to conditions and exceptions set out therein. Therefore, sale of electrical energy which appears under Item No.13 of Schedule ‘A’ is exempted from levy of value added tax under OVAT Act. Consequently, no input tax credit shall be claimed by or allowed to a registered dealer in respect of tax paid on input of purchases by a dealer in course of his business for use in producing or manufacturing of electrical energy in terms of Section 20(8)(k) of the OAVT Act. It is the admitted fact that the petitioner-company is carrying on business of manufacturing and selling of aluminum, aluminum ingot and sheet etc. It is not the case of opposite party-Revenue that the petitioner is carrying on business of generating/producing electrical energy for sale. 22. The next question arises whether the tax paid on the inputs for generating power can be set off against the tax payable on sale of aluminum, aluminum ingot and sheet etc. Undisputedly, electrical energy is necessary to produce/manufacture and sale of aluminum, aluminum ingot and sheet etc. 23. ‘Input’ has been defined in Section 2(25) to mean that any goods purchased by a dealer in the course of his business for resale or for use in the execution of works contract, in processing or manufacturing, where such goods directly goes into composition of finished products or packing of goods for sale, and includes consumables directly used in such processing

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] or manufacturing. Section 2(26) defines ‘input tax’ to mean tax collected and payable under this Act in respect of sale to a registered dealer of any taxable goods for use in the course of his business, but does not include tax collected on the sale of goods made to a commission agent purchasing such goods on behalf of such dealer. “Input tax credit” as defined under Section 2(27) of the OVAT Act means the setting off of the amount of input tax or part thereof under Section 20 against the output tax, by a registered dealer other than a registered dealer paying turnover tax under Section 16. 24. On a conjoint reading of Section 2(25), Section 2(26) and Section 2(27) of the OVAT Act, it is amply clear that a registered dealer under the OVAT Act shall be entitled to set off the tax paid on the purchase of goods effected by such dealer either for resale or for use in execution of works contract or for manufacture and processing against the output tax, that is the tax payable on sale of any taxable goods. 25. In the present case, the petitioner is engaged in manufacturing of aluminum, aluminum ingot and sheet etc. and in order to manufacture the above goods the electrical energy is required. The process of manufacturing of aluminum reveals that energy is required in such process of manufacturing. To generate energy/power, coal, alum, caustic soda and other consumables etc. are necessary which the petitioner purchases on payment of tax. 26. It is not disputed that huge quantity of electrical energy is required during electrolysis process to produce aluminum which is a commercial product. Thus, the electrical energy generated in the Captive Power Plant of the petitioner is not the final product which is sold in the market. Electrical energy which is generated with the use of coal and other materials is only an intermediate product which is used in the process of manufacturing of final product viz. aluminum, aluminum ingots and sheets etc. 27. The Hon’ble Supreme Court in the case of J.K. Cotton Spinning and Weaving Mills Co. Ltd. (supra), held that the expression “in the manufacture of goods” should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods. Where any particular process is so integrally connected with the ultimate production of goods but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would fall within the expression “in the manufacture of goods”. Undisputedly, in the present case, the generation of electrical energy in the Captive Power Plant is integrally connected with the ultimate production of finished goods.


Therefore, the goods required in the process of generation of electrical energy would fall within the expression “in the process of manufacturing”. 28. Power/energy is one of the primary and essential commodities which has a direct relation in the manufacturing process. Direct relation means without which manufacture of any product is not possible at all. In that view of the matter, we are of the considered view that coal, alum, caustic soda and other consumables etc. used by the petitioner in the process of manufacture of power/energy without which production of the finished products viz., aluminum, aluminum ingots and sheets etc. is not feasible which is nothing but an input in terms of Section 2(25) of the OVAT Act. 29. It is not at all necessary that coal, alum, caustic soda and other consumables etc. purchased on payment of tax and used in manufacturing of electrical energy in order to qualify as input should directly go into composition of the finished products, what is required is that those goods should be directly used in manufacturing and processing for production of finished goods. The expression “directly go into composition of finished product” and “directly used for manufacturing or processing of finished products” are not one and the same thing. There is a clear distinction between the two. In the former, while the goods directly go into the composition of finished products, in the latter the goods are directly used in manufacturing/processing of the finished products. Therefore, coal, alum, caustic soda and other consumables etc. which are used for manufacturing/generating of electrical energy, are inextricably connected with the manufacturing process of aluminum and aluminum ingots; they are nothing but input and tax paid on purchase of such input shall qualify for set off against output tax paid/payable on sale of finished products. There is no dispute that coal, alum, caustic soda and other consumables etc. are used to generate electricity through Captive Power Plant which is admittedly used for the purpose of manufacturing the end/finished products viz. aluminum, aluminum ingots and sheets etc. Therefore, coal, alum, caustic soda and other consumables etc. can only be termed as input in terms of Section 2(25) of the OVAT Act. 30. In the case of Reliance Industries Ltd. (supra), this Court held as under:

“18.Now the question that arises for consideration iwhether the furnace oil is a “consumable” within the meaning of Section 2(25) of the OVAT Act. The expression “consumable” has not been defined in the OVAT Act. In the absence of any such statutory definition the expression has to be understood in the meaning assigned to it by various dictionaries and how it

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] is understood in trade and commerce. “Consumable”, according to Webster Dictionary means that which can be consumed, a consumable commodity. “Consume” means to eat, use up, and destroy. According to Shorter Oxford Dictionary “consumable” means capable of being consumed by fire. The term “fuel” according to Webster Dictionary means any material as coal, oil, gas, wood, etc. which is burnt to supply heat or power. According to Shorter Oxford Dictionary “fuel” means material for burning combustible matter for fires. According Micropaedia Britannica Vol. 5, oil is also called fuel oil and it is used primarily for steam boilers in power plants, on board ship, and in industrial plants.

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36. In view of the proposition of law laid down by the Hon’ble Apex Court, different High Courts and the views taken by Taxation Tribunals, the contention of the opposite parties that furnace oil used by the dealer is to produce flame and therefore it is fuel and not consumable which is directly used in processing or manufacturing of finished product is totally misconceived and not sustainable in law. On the other hand, it boils down to an irresistible conclusion that furnace oil is one of the primary and essential commodities which has a direct relation in the manufacturing process and ‘direct relation’ means without which the manufacturing of end-product is not possible at all. In that view of the matter, we are of the considered view that furnace oil used by the petitioner in the process of manufacture without which production of PSF is not feasible is nothing but consumable. 37. Now it is to be examined whether Section 2(25) requires that furnace oil in order to be treated as input should directly go into the composition of finished product. In the definition of input under Section 2 (25), the legislature has included various types of articles. ‘Input’ has been defined to mean any goods purchased by a dealer in the course of his business for resale or for use in the execution of works contract, in processing or manufacturing, where, such goods directly goes into composition of finished products and includes consumables directly used in such processing or manufacturing. It will appear therefore that the definition of ‘input’ comprises four different types of articles viz. articles or goods for resale, goods used in the execution of works contract, goods used in processing or manufacturing, where such goods directly goes into composition of finished products and consumables directly used in such processing or manufacturing. Separately, by an inclusive definition consumables which are directly used in such processing or manufacturing have


been included. Therefore, the inclusive definition does not refer to any goods which must be used in processing or manufacturing where such goods directly go into composition of finished products. As per inclusive definition, the only requirement is that the consumables are directly used in such processing or manufacturing. ‘Consumables’ need not be required to directly go into composition of finished products. The very expression ‘consumables’ postulates that such articles are destroyed or used upon the processing or manufacturing of goods. It is because of this reason that while consumable by an inclusive definition are included in the definition of input under Section 2 (25) of the VAT Act the legislature did not insist upon the requirement which appears in the earlier clauses that such goods must go into composition of finished products. When the legislature does not insist upon such requirement, the insistence by opposite party no.1 that consumables must go directly into composition of finished products is totally misconceived and runs contrary to the very definition of input under Section 2 (25) of the VAT Act.”

31. In the case of Commercial Taxation Officer (supra), the question was whether diesel can be called raw material in the manufacture of polyster yarn. In that case the assessee is engaged in he business of manufacture of polyster yarn and for the said purpose it purchased diesel and used it for manufacturing of electricity by G.D. Sets. The assessee in that case claimed the benefit of sales tax on the ground that diesel purchased is a raw material for the manufacture of the ultimate final product viz. polyster yarn although diesel was used for generation of electrical energy by D.G. Sets. The Hon’ble Supreme Court observed that there is no dispute in the instant case that diesel and lubricant is used to generate electricity through DG sets which is admittedly used for the purpose of manufacturing yarn. In view of the above facts diesel is being used for the purpose of running the generator set for the production of the ultimate product which is also required for the purpose of manufacturing the end product. The diesel therefore can only be termed as raw material and not otherwise and the benefits of deduction have been allowed. 32. In the case of Maruti Suzuki Ltd. vs. Commissioner of Central Excise, Delhi III, (2009) 9 SCC 193, the Hon’ble Supreme Court held that electricity generation is more of a process having its own economics. When the electricity generation is a captive arrangement and the requirement is for carrying out the manufacturing activity, the electricity generation also forms

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] part of the manufacturing activity and the input used in that electricity generation is an input used in the manufacture of final product. 33. Further in the case of State of Gujarat and Another vs. AMI Pigments Pvt. Ltd. and others, (2009) 22 VST 615 (SC), the issue before the Hon’ble Supreme Court was, whether the fuel such as natural gas, furnance oil, diesel oil and naphtha to generate electricity which was then used in the manufacturing process of the finished products like caustic soda, industrial chemicals, etc would come under meaning of the expressions ‘raw materials’, ‘processing materials’ or ‘consumables stores’ for the purpose of section 15 B of the Gujarat Sales Tax Act, 1969 and while remanding back the said batch of cases to the Hon’ble High Court of Gujarat, the Hon’ble Supreme Court further observed that whether for determining this question the test to be applied would be the ‘test of essentiality’ or the ‘test of dependency’ laid down by the Hon’ble Supreme Court in the case of Collector of Central Excise vs. Ballarpur Industries Ltd (1990) 77 STC 282 and in J.K. Cotton Spinning & Weaving Mills Co. Ltd. (supra), or the test laid down by the Hon’ble Supreme Court in Coastal Chemicals Ltd. vs. Commercial Tax Officer, A.P. and others, (2000) 117 STC 12. 34. The High Court of Gujarat in the case of AMI Pigments Pvt. Ltd. and others vs. State of Gujarat and another, [2010] 32 VST 97 (Guj) by applying the “test of essentiality” and the “test of dependency” as laid down by the Hon’ble Supreme court in the case of Ballarpur Industries (supra) and J.K. Cotton (supra) has come to the conclusion that goods like natural gas, furnace oil, diesel oil and naphtha when used as fuel for generation of electricity which was then used in the manufacturing process of the finished products like caustic soda, industrial chemicals, etc will come under the meaning of the expression ‘raw materials’, processing materials’ or ‘consumables stores’. 35. In view of the above, we are of the considered view that coal, alum, caustic soda and other consumables purchased from market on payment of tax and used for generation of electrical energy in the Captive Thermal Plant of the petitioner which is used in the process of manufacture of finished product viz. aluminum, aluminum ingots and sheets etc. taxable under the OVAT Act. are input as defined under Section 2(25) of the OVAT Act and the tax which has been paid on such purchases can be claimed as input tax credit under Section 2(27) of the OVAT Act against the tax payable on sale of finished products i.e. aluminum, aluminum ingots and sheets etc. Hence, the demand raised in the assessment orders dated 31.10.2011 passed under Annexure-1 in both the writ petitions disallowing the input tax credit in


respect of tax paid on coal, alum, soda, and other consumables used for generation of electrical energy is quashed.

36. Question No.(ii) is as to whether imposition of penalty under Section 43(2) of the OVAT Act can only be levied if the escapement is without any reasonable cause.

VAT is indirect tax on consumption of goods. It is the form of collecting sales tax under which tax is collected in each stage on the value added to the goods. The basic object of VAT Scheme is to provide voluntary and self compliance. It goes without saying that to plug the leakage of revenue, the Legislature enacted law authorizing imposition of penalty for infraction of any statutory provision. We are conscious that generally penalty proceedings are quasi judicial in nature. Quantification of penalty under Section 43 of the OVAT Act is dependent upon the tax assessed under that Section. For the purpose of assessing tax, opportunity of hearing was afforded to the assessee, the explanation of the assessee and its books of account were examined and considered. Penalty is only quantified on the basis of the tax assessed. No discretion is left with the Assessing Officer for levying any lesser amount of penalty. Penalty is not independent of the tax assessed. If the tax is assessed, imposition of penalty under 42(5) is warranted.

37 The matter may be looked at from different angle. Section 43 of the OVAT Act deals with escaped assessment. As stated above, imposition of penalty is dependent upon the quantum of tax assessed under Section 42 of OVAT Act. If such a penal provision is not provided then fraudulent dealers would seriously venture to evade tax and whenever they will be caught hold of they will simply pay the tax and escape. Therefore, the provision for imposing penalty twice the amount of tax assessed, under Section 43 of the OVAT Act has been made so that a dealer-assessee would refrain himself from taking any step to avoid payment of legitimate tax. If, however, any dealer indulges himself in any fraudulent activities to evade tax, then in addition to tax assessed he would pay penalty which is twice the amount of tax assessed.

38. Against the assessment of tax and penalty, there is a provision for appeal. In appeal, if the amount of tax assessed under Section 43 of the OVAT Act is reduced, the quantum of penalty will also be reduced automatically. 39. In view of the above, once the Assessing Officer comes to the conclusion that the dealer is indulged in fraudulent activities and

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] assesses him under Section 43 of the OVAT Act, there is no need for the Assessing Officer to make further investigation to find out whether the escapement is without reasonable cause for the purpose of imposition of penalty under Section 43(2) of the OVAT Act. The Hon’ble Supreme Court in the case of Dharamendra Textile Processors (supra), held that wilful concealment is not an essential ingredient for attracting civil liability or penalty.

40. In the result, the writ petitions are allowed to the extent indicated above. Writ petition allowed.

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2013 ( I ) ILR - CUT- 611

V. GOPALA GOWDA, CJ & B.K. MISRA, J.

W.P.(C) NO. 15779 OF 2012 (Dt.26.11.2012)

PRABIR KUMAR DAS ……..Petitioner

.Vrs.

STATE OF ODISHA & ORS. …….Opp.Parties

COMPENSATION – Railway accident near an unmanned level crossing – Death of 14 persons – Writ petition for compensation – Opp.Parties took the plea of alternative remedy before the Railway Claims Tribunal – Negligence on the part of the railway authorities – Held, it would be just and proper to award Rs.5,00,000/- each to the keen of the persons who have lost their life.

Case laws Referred to:-

1.AIR 2012 Orissa 38 : (Shyam Nayak & Ors.-V-General Manager, East Coast Railway) 2.2011(II) ILR CTC.540 : (Phulan Nayak & Ors.-V-G.M.,East Coast Railway & Ors.) 3.2004(Supp.)OLR 914 : (Sajeeda Begum & Ors.-V- Divisional Railway Manager (Safety), S.E.Railways & Anr.) 4.1997(II) OLR 69 : (Parikhita Behera & Anr.-V- The Divisional Railway Manager South Eastern Railway, Khurda Division & Ors.) 5.(2001)8 SCC 151 : (M.S. Grewal & Ors.-V- Deep Chand Sood & Ors.).

For Petitioner - In person

For- Opp.Parties - Addl. Govt. Advocate (for O.P.Nos.1,5,6,7) M/s. P.K.Mishra, A. Sahu, S.Bhanja, B.K.Dash & Mr. Piyush Mishra (for O.P.Nos.2,3,4).

B.K.MISRA, J . The petitioner, who is a practicing advocate and human rights activist has approached this Court under Article 226 of the Constitution of India for exercising extra-ordinary jurisdiction in granting compensation of Rs.10,00,000/- to the families of each one of the deceased persons and to adequately compensate the injured persons, who were the victims of the railway accident i.e. the collusion of a speeding Express Train with a trolley auto rickshaw on 24.8.2012 morning i.e. at 8.40 A.M. at Khairpali unmanned level crossing in the district of Sambalpur resulting in the death of 14 persons in all. Besides payment of compensation to the

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] victims of such accident the petitioner has also prayed that direction to be issued to the Railway Authorities of East Coast Railways as well as the Railway Board to convert all the unmanned level crossing in the district of Sambalpur to manned level crossing and to construct over bridges/under bridges for preventing such accidents especially in unmanned level crossings for ensuring public safety. It is also prayed that direction may be issued to the State Government to extend all cooperation to the Railway Authorities in such construction of over bridges/under bridges at such unmanned level crossings etc. 2. The factual matrix reveals that on 24.8.2012 at 8.40 A.M. female agricultural labourers including some minor girls were proceeding to Sindurapank from village Ainapali for working in paddy fields in a trolley Auto Rickshaw bearing Registration No.OR-15-3-3034. It is alleged that the ill fated trolley auto rickshaw while crossing the unmanned level crossing at Khairapali was rammed by the Rourkela-Bhubaneswar intercity Express causing instantaneous death to 12 ladies and leaving many women injured who were in that Cargo Auto. Later on two ladies succumbed to the injuries while undergoing treatment in the hospital and therefore the death toll rose to 14. It is further alleged that all the victims of the accident belong to the below poverty line category. The driver of the ill fated trolley auto rickshaw, Satyaranjan Nath, besides agricultural labourers, namely, Champa Bhoi, Pooja, Gouri Sahu,Medam Sahu, Anu Bhoi, Arati Bhoi, Bharati Bhoi, Buli Bhoi, Khatkuri Bhoi, Jayanti Bag, Ahalya Badhei, Dukhi Pradhan and Sanjukta Rout died because of the accident whereas Nirupama Bhoi, Hemalata Bhoi, Subasini Rana, Chandini Rout, Mohini Bhoi and Brundabati Bhoi had sustained injuries because of the aforementioned accident. According to the petitioner, the accident took place because of the indifferent and callous attitude of the railway administration and failure to discharge the obligation to ensure public safety especially at all unmanned level crossings. According to the petitioner the District Administration after the accident in question granted a paltry sum of Rs.5,000/- to each of the family of the deceased and the Railway Administration assured payment of only Rs.2,000/- which are grossly inadequate by all standards. Accordingly, the petitioner decided to take up the cause of the poor and hapless persons belonging to the marginalized sections of the society for grant of compensation to the next of kith and kin of each of the deceased person to the tune of Rs.10,00,000/- and also to compensate injured persons adequately etc.

3. The opposite party nos.2, 3 and 4 have filed their counter affidavit wherein while admitting the accident in question it is their case that the

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PRABIR KUMAR DAS -V - STATE [B.K.MISRA,J.]

accident in question took place solely because of the careless and negligent driving of the Mahindra Alfa Cargo Auto by its driver which is not a passenger vehicle. Besides that it is the case of the opposite parties that the driver of the Train no.18105 Rourkela-Bhubaneswar Intercity Express while approaching the level crossing no.ST-7 between Sambalpur City – Maneswar the Loco pilot, observed one Cargo Three Wheeler Auto Mahindra Alfa suddenly crossing the unmanned level crossing and on seeing that he applied the emergency brake, but since the train was very close to the level crossing it could not be stopped short of the level crossing and rammed into the Cargo Auto which had already entered the level crossing and trying to cross the same resulting in the death of 12 passengers of the Cargo Auto at the spot and injuring seven persons who were in the said Auto. Out of the said seven injured, one of them died on the way to the hospital and another person succumbed to the injuries in the hospital. Out of the five injured persons, two had sustained grievous injuries while three had simple injuries. It is the specific case of the opposite party nos.2, 3 and 4 that though the train driver was blowing horn but unfortunately the deceased driver of the Auto was listening to music by using the head phone attached to his mobile phone and the said driver of the Auto did not bother to look both sides of the track before crossing the unmanned level crossing in question for which the accident took place. According to the opposite parties, 19 persons were travelling in the Cargo Auto at the time of the accident including the driver though the same was registered as a goods vehicle and had no permission for carrying passengers and the letter of the R.T.O., Sambalpur to that effect has been annexed as Annexure-A/1 series. It is also their case that at all unmanned level crossings warning boards have been provided at a distance of 40 meters from the crossing and stop boards are provided at 05 meters besides speed breakers have also been provided at a distance of 20 meters to ensure that the vehicle drivers do not approach the rail crossing at a high speed. 4. Opposite party No.5 namely, the Superintendent of Police, Sambalpur filed the counter affidavit wherein it is his stand that for the alleged collusion between the train and the Autorickshaw U.D. Case No. 15 of 2012 was initially registered at Dhanupali Police Station which was subsequently registered as Dhanupali P.S. Case No. 154 of 2012 dated 26.8.2012 under Sections 337, 338 and 304-A of the Indian Penal Code and the investigation of the case is on. It is the specific stand of the opposite party No.5 that the present writ petition is not maintainable in view of the availability of alternative remedy before the Railway Claims Tribunal.

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5. We have heard the learned counsel appearing for the respective parties and also perused the materials placed before us. There is no controversy about the accident which took place at the unmanned level crossing at Khairpali i.e. in between Sambalpur City and Maneswar on 24.8.2012 at 8.40 A.M. resulting in loss of 14 lives and injuring five ladies some of whom had grievous injuries. The only controversy is with regard to the cause of the accident that is to say as to whether the accident in question took place because of the deliberate negligence on the part of the Railway Authorities or because of the careless and negligent deceased driver of the ill fated Cargo Auto which was carrying the unfortunate poor victims who were on their way to eke out their living by working in the paddy fields in village Sindurapank.

6. There is no controversy at all about the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution for awarding compensation to a victim consequent upon deprivation of fundamental rights to the life and liberty as they suffered due to negligence of the State or its functionaries. The aforesaid principle has been laid down by the Apex Court as well as by this Court and it has become the trite law.

7. Section 18 of the Railways Act, 1989 makes it obligatory on the Railway Administration in providing sufficient safeguards like suitable gates, chains, bars, styles and handrails and to employ persons to open and shut gates, chains or bar. In the instant case, admittedly the accident took place at an unmanned railway level crossing, namely, Khairpali which falls in between village Ainapali and Sindurapank. As we see from the counter affidavit of the opposite party nos.2, 3 and 4, unmanned level crossings do not require any signal gate as per Indian Railway standards. But, however other sign boards for the road users like speed breaker board, stop board as well as whistle boards for train drivers were available on both side of unmanned level crossing and the visibility for the road users at the level crossing in question was 850 meters minimum from any direction which meets the minimum requirement of visibility of 800 meters. While meeting the allegation of the petitioner that the driver of the Autorickshaw could not see the approaching train because of the trees and bushes, in their counter opposite party Nos. 2, 3 and 4 have stated that the last jungle cutting was done on 29.6.2012. The learned counsel appearing for the railway authorities have produced some photographs before us which clearly shows the existence of big trees and wild bushes near the stop signal. Thus, it appears that there is substance in the allegation of the petitioner that the view of the approaching train from the road was obstructed because of existence of trees and wild bushes. Even if we accept the contention of the

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learned counsel for the railway authorities that the last bush cutting was done on 29.6.2012 but at the same time this Court cannot loose sight of the fact that the accident took place on 24th August, 2012 i.e. about two months after the alleged bush cutting. It is an admitted fact that the occurrence took place during rainy season and during that period, trees and wild bushes have very luxurious growth.

8. Mr.B.K.Dash and Mr.Piyush Mishra, learned counsel appearing for opposite party Nos. 2, 3 and 4 in course of his argument contended that the accident took place only because of the carelessness of the driver of the Cargo Auto vehicle in question as the driver was listening to music by using head phone and he did not care to stop the vehicle to see if any Loco is coming on the railway track and, therefore, when the accident in question took place solely because of the negligent crossing of the unmanned level crossing, under Section 161 of the Railways Act, the driver of the said Cargo Auto vehicle is responsible and not the railways. Similarly, it was also urged before us that when the driver of the Autorickshaw did not perform the duty while approaching the unguarded railway level crossing within the meaning of Section 131 of the Motor Vehicles Act, 1988, it is the driver of the Cargo Auto for whose negligence the unfortunate accident in question took place and the Railway authorities cannot be fastened with any liability. But this contention of the learned counsel for the opposite party Nos. 2, 3 and 4 falls to the ground because of the fact that the driver of the Cargo Auto namely, Satya Narayan Nath also has died in the said accident and therefore cannot be prosecuted. But the fact remains that the innocent ladies and minor girls who were travelling in the Cargo Auto at the time of accident for no fault, met with the horrific accident for which thirteen of them died and some others sustained grievous and simple injuries. It is the settled position of law that the railway authorities are bound to take steps from time to time by considering the increase in the rail and road traffic at the level crossing and they cannot wash of their hands by saying that their proposal for having over bridges/under bridges at all unmanned level crossing is pending with the Collector, Sambalpur. The failure of the Railway authorities in our humble view, is an act of negligence on their part in not providing adequate safety measures in unmanned level crossing to avoid any mishap of the magnitude that happened on the morning of 24th August, 2012.

9. The stand taken by the Railway authorities are not acceptable to us as this Court in several decisions on similar matters i.e. in the case of Shyam Nayak and others V. General Manager, East Coast Railway, reported in A.I.R. 2012, Orissa 38, Phula Nayak and others V. G.M. East Coast Railway and others reported in 2011(II) Indian Law Reports-

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Cuttack 540, Sajeeda Begum and others V. Divisional Railway Manager (Safety), S.E. Railways and another, 2004 (Supp.) OLR 914 and Parikhita Behera and another V. the Divisional Railway Manager, South Eastern Railway, Khurda Division and others, 1997 (II) OLR 69 is of the consistent view that where a railway line crosses highway path, reasonable precaution must be taken by the Railway authorities to reduce the damage to the public to the minimum. The Railway authorities cannot shut their eyes nor they can ignore the recurring accidents taking place at unmanned level crossings. The Railway authorities cannot simply abdicate their responsibilities on the pretext that the concerned State Government or the departments of the State Government is sitting over their proposal for construction of the over bridges or under bridges at unmanned level crossing spots. The human aspect cannot be overlooked. The bureaucratic apathy in dealing with the life and liberty of the human being which is well protected by the Constitution of this country is definitely condemnable especially when 80% of our population live in villages and belong to the marginalised sections of the society suffering from all forms of deprivation. The poor Scheduled Caste women labourers who are also illiterate cannot be expected to have the luxury of having a Cell phone and to decipher the SMS messages sent through cell phones by the railway authorities as to how to cross the unmanned level crossing. The plea of the opposite party Nos. 2, 3 and 4 that to educate people about crossing of unmanned level crossing, SMS messages are being sent can tantamount to an apology. The facts scenario of this case convinces us that the Railway authorities were negligent in keeping the unmanned level crossing in question vulnerable to pedestrians and people in the locality and they have failed to discharge their statutory and moral obligations.

10. Even if it is admitted that the Cargo Auto being driven by its driver did not listen to the advice of the labourers as he had put on head phones and was listening to music and therefore, the accident took place but what was the fault of the innocent persons who were travelling in the said Cargo Auto? Some of them died instantaneously at the spot and some others received grievous or other form of injuries. They were in no way involved in the driving of the Cargo Auto nor they were a part in taking the decision in crossing the level crossing at the time of accident. Therefore, the theory of contributory negligence cannot be applied to the innocent passengers who were travelling in the Cargo Auto.

11. A level crossing is on the other hand a danger spot in view of the possible movement of trains and on the other is an invitation to the passerby. The road which crosses the railway track at Khairpali is a public

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PRABIR KUMAR DAS -V - STATE [B.K.MISRA,J.]

road and therefore it is the legal duty of the railway to assure reasonable safety by way of providing gates or chain barriers and to post a watchman who should close them shortly before the trains pass. In the instant case, existence of wild bushes having luxurious growth and trees might have caused hindrance to the driver of the ill fated Auto to see the approaching train before crossing the railway track. It is an admitted fact that in the Puri-Sambalpur line many passenger and goods train are running and volume of passenger traffic and introduction of many long distance trains in that route have made it a busy one. Therefore, it is the bounden duty of the Railway to take all precautions which will reduce the danger to the minimum and they are duty bound to take steps from time to time by considering the increase in the rail and road traffic at the level crossing.

12. So far as the quantum of damages is concerned, the Apex Court in the case of M.S. Grewal and others V. Deep Chand Sood & Others, (2001) 8 S.C.C. 151 have held that the placement in the society or the financial status of the victim can be good guide for determining the quantum of compensation. Under Section 124 of the Railways Act read with the Railway Accidents and Untowards Incidents (Compensation) Rules, 1990, no fault liability of the passenger who died in a railway accident has been fixed at rupees four lakhs. In the instant case, it is alleged that the authorities immediately paid Rs.5,000/- to the family members of each of the person who died in the said accident and railways also assured to pay Rs.2,000/- which according to us is grossly inadequate by all standards.

13. Admittedly in this case Champa Bhoi, Pooja, Gouri Sahu, Medam Sahu, Anu Bhoi, Arati Bhoi, Bharati Bhoi, Buli Bhoi, Khatkuri Bhoi, Jayanti Bag, Ahalya Badhei, Dukhi Pradhan and Sanjukta Rout so also the driver of the ill fated Auto Satya Narayan Nath died because of the accident. Thus, it would be just and proper to award compensation of Rs.5,00,000/- (Rupees five lakhs) each to the aforementioned persons who have lost their life in the accident. They are also entitled to get interest at the rate of 6% per annum on the compensation amount from the date of presentation of this writ petition i.e. 28.8.2012. But with regard to payment of compensation to the injured Subashini Rana, it is seen from the photocopy of the injury report produced by the Railway authorities before that she had two lacerated wounds i.e. over the iliac crest and on upper thigh on the anterior part. Besides that she had another lacerated injury over the anterior aspect of right leg with fractures of tibia and fibula and there was a swelling with tenderness with abnormal mobility of left arm with fracture of Humerous. The later two injuries were reportedly grievous whereas the former two injuries were simple. Thus, taking into consideration the pain and suffering

618


of the injured Subashini Rana, it would be just and proper to direct the railway authorities to pay her a sum of Rs.1,00,000/- (Rupees one lakh) as compensation from the date of filing of the writ petition. The said Subashini Rana is also entitled to get interest at the rate of 6% per annum on the said compensation amount from the date of filing of writ petition i.e. 28.8.2012 till the actual payment is made. Injury report of Hemalata Bhoi aged 37 years shows that she had no external injuries and C.T. scan of head appeared normal but there was injury to hip joint for which she was referred to Dr.S.K.Mishra, who is an Orthopedician for further opinion but the opposite party Nos. 2 to 4 have not produced any other material to show if the injury to hip joint was grievous or simple one. Thus, taking into consideration the injury sustained by injured Hemalata Bhoi, it would be just and proper to direct the railway authorities to pay a sum of Rs.25,000/- (Rupees twenty five thousands) from the date of filing of the writ petition. The said Hemalata Bhoi is also entitled to get interest at the rate of 6% per annum of the said compensation amount from the date of filing of writ petition i.e. 28.8.2012 till the actual payment is made. Injury report of Nirupama Bhoi the girl aged about 16 years simply reveals that she complained of pain over right shoulder and flap but there was no external injury. Thus, it would be just and proper to direct the railway authorities to pay a sum of Rs.5,000/- (Rupees five thousand) towards compensation to the injured Nirupama Bhoi. The said Nirupama Bhoi is also entitled to get interest at the rate of 6% per annum on the said compensation amount from the date of filing of writ petition i.e. 28.8.2012 till the actual payment is made. Injury report of Mohini Bhoi aged about 40 years simply reveals that she had a lacerated wound over the right forehead which was reportedly simple and the C.T. scan of brain was found normal. Thus, it would be just and proper to direct the railway authorities to pay compensation of Rs.5,000/- (Rupees five thousand) to the injured Mohini Bhoi. The said Mohini Bhoi is also entitled to get interest at the rate of 6% per annum of the said compensation amount from the date of filing of the writ petition i.e. 28.8.2012 till the actual payment is made. Coming to Brundabati Bhoi the other girl aged about 17 years, the doctor found an abrasion over left temple which was simple in nature and the C.T. scan of head shows contusion on the left side of brain. Thus, in view of the head injury it would be just and proper to direct the railway authorities to pay compensation of amount Rs.25,000/- (Rupees twenty five thousands) to the injured Brundabati Bhoi. The said Brundabati Bhoi is also entitled to get interest at the rate of 6% per annum from the date of filing of the writ petition i.e. 28.8.2012 till the actual payment is made.

14. Let the payments be made within a period of two months from the date of receipt of the copy of this udgment. The family members of the

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PRABIR KUMAR DAS -V - STATE [B.K.MISRA,J.] deceased persons must keep 50% of the awarded amount in any one of the Nationalized Banks for a period a period of five years and the interest accrues on such deposit can be withdrawn by them. In this regard they have to file compliance report in this Court. 15. Now coming to the other prayer of the petitioner for a direction to the State Government for extending its cooperation to the Railway Authorities for construction of over bridges/under bridges at such posts of unmanned level crossings in the State, we are to observe that where Railway Administration has laid lines of rails across a public road at the same level, in the interest of the public safety the Railway Administration as well as the State Government or the local authority maintaining the road are to take the road either under or over the railway lines by means of a bridge or arch with convenient ascents or descents and other convenient approaches instead of crossing the road on the level or to execute such other works as may in the circumstances of the case appear to the State Government or the local authority maintaining the road to be best adopted for removing or diminishing the danger arising from the unmanned level crossing. To avert any accident involving loss of life, injury to the public, the Union Government and the Administration of Railways have to take appropriate remedial measures. It is brought to our notice that the Railway Authorities at the highest level have taken a decision to eliminate all unmanned level crossings on Indian Railways within a time frame of 5 years by construction of road over bridges, road under bridges, Limited Height Subway, Diversion, Closure/Manning and to continue as manned and the East Coast Railways in the Sambalpur Railway Division has adopted an action plan to eliminate all of its 263 numbers of unmanned level crossings in a phased manner and those proposals are pending at various stages of approval and execution at the level of Railway Authorities and the District Administration. We direct the appropriate authorities to act in right earnest in accomplishing the job in construction of road over bridges/road under bridges and to eliminate all unmanned level crossings in the country within a reasonable time frame of six months so that precious human lives and properties can be saved. Priority should be given to such type of projects without resorting to the bureaucratic wranglings. Till such construction of road over bridges/under bridges, the Railway Authorities are to take the following appropriate steps to avert any accident:-

(i) Posting Home Guards with red flag so that like manned level crossings they can also caution the pedestrian/cyclist/scoorterist/Biker or any four wheeler which approaches the unmanned level crossing when a train be it passenger or goods is to cross such level crossings,

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] (ii) Extensive campaigning in the adjoining villages and areas near the

unmanned level crossings are to be carried out by the Railway Authorities as well as the Public Relation Department of the State Government about the danger of crossing a railway line when a train is about to pass over that track,

(iii) The Law Enforcing Agency including the officers of the Motor Vehicles

Department so also the Transport Commissioner is to take effective steps for banning use of mobile phone by a person while driving a two wheeler or three wheeler or a four wheeler. Use of Head phones while driving is to be banned forthwith. Such persons who would be violating the provisions of the Motor Vehicles Act and Rules should be visited with exemplary and stringent penalty and the driving licence should be impounded, in this regard Rules may also be amended

(iv) All wild bushes and creepers by the side of railway track and the

approach road to the unmanned level crossing should be regularly cut and pruning should be done regularly so that the people in general and drivers of the vehicles can have a view of any approaching Loco which is about to cross the unmanned level crossing,

(v) Any structure be it dilapidated or abandoned found near the unmanned

level crossings should be demolished and, (vi) All sign posts on both sides of the unmanned level crossing must be

in bold letter i.e. in the vernacular language as well as in Hindi and English and clearly readable from a distance. The rumbler strips must have Thermoplastic paints fitted with Cat’s eye system.

16. We trust and believe that the directions/suggestions which we are making are not exhaustive in nature and we leave it to the Railway Authorities and the District Administration as well as the Law Enforcing Agency to ponder over the matter and take appropriate remedial measures in the right direction as early as possible and periodical report of compliance be furnished to the Registrar General of the Court, preferably once in every quarter. We know our limitations that the Courts are not there to legislate but these are some of our pious wishes for the betterment of the society and humanity at large.

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PRABIR KUMAR DAS -V - STATE [B.K.MISRA,J.] Accordingly, the writ petition stands allowed in the above terms. Rule issued.

Let a copy of this judgment be sent to the Chairman, Railway Board, Ministry of Railways, Government of India, New Delhi, Chief Secretary, Government of Odisha, Bhubaneswar/Principal Secretary, Home/Director General of Police for information.


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2013 ( I ) ILR - CUT- 622

V. GOAPALA GOWDA, CJ & B.K. MISRA, J.

W.P.(C) NO. 4757 OF 2012 (Dt.14.11.2012)

THE DEAN AND PRINCIPAL, M.K.C.G. MEDICAL COLLEGE & HOSPITAL, BERHAMPUR & ANR. ……..Petitioners .Vrs. BIJAY KUMAR PATNAIK ……..Opp.Party

LEGAL SERVICES AUTHORITIES ACT, 1987 – S.22-A (b).

Public Utility Service – Application filed by O.P. before the permanent Lok Adalat for Public Utility Services, Ganjam-Berhampur for reopening the Western gate of M.KC.G. Medical College – Application allowed – Order challenged. Permanent Lok Adalats for public utility services have been established to decide disputes relating to deficiency in service pertaining to public utility services as mentioned U/s.22-A (b) of the Act – Service in hospital or dispensary means the services provided with regard to the treatment of the patients only – Held, closure of one gate of a hospital by the authorities cannot come under the purview of service in hospital or dispensary – Impugned order directing the petitioners to open one of the western gates of the hospital is quashed being without jurisdiction. (Para 12) For Petitioners - Mr. R.K. Mohapatra, Govt. Advocate

For Opp.Party - M/s. G.C. Acharya, K.M.Patra, P.K.Das, S.K.Behera, J.K.Mohapatra, K.Ghadei, R. Nayak.

B.K.MISRA,J. The petitioners namely, the Dean and Principal as well as the Superintendent of M.K.C.G., Medical College and Hospital, Berhampur being aggrieved with the order of the Permanent Lok Adalat for Public Utility Services Ganjam, Berhampur in P.L.A. Case No. 24 of 2011 dated 7th February, 2012 directing the petitioners to keep open at least one flap of the twin western gate allowing patients, ambulance and other light motor vehicles to reach the hospital hassle free for enabling persons who

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THE DEAN AND PRINCIPAL -V- B. K. [B.K.MISRA,J.] are in need of medical care have approached this Court by invoking the extra-ordinary jurisdiction under Article 226 and 227.

2. One Sri Bijaya Kumar Patnaik of Berhampur belonging to the legal profession filed an application under Section 22C(1) of the Legal Services Authorities Act, 1987 praying for a direction to the Superintendent as well as Dean and Principal of M.K.C.G. Medical College and Hospital, Berhampur to reopen the western gate of the Hospital which was abruptly locked on 7th September, 2011 on the pretext of prohibiting entry of heavy vehicles and to curb antisocial activities in the college campus by undesirable elements and ensure security to the patients and students of the Medical College.

3. According to the applicant there exists two gates leading to the M.K.C.G. Medical College and Hospital i.e. eastern gate which is said to be the main gate facing the eastern part of Berhampur city. The rear gate i.e. the western gate faces the new bus stand of the city on Gate Bazar-Goilundi road which also touches National Highway number 59. According to the applicant people from various parts of Ganjam district and also from other southern districts come to Berhampur for receiving best of medical treatment as M.K.C.G. Medical College and Hospital, Berhampur caters to the health problem of the people in the absence of any other good hospital in the area. The people who come by bus and by other modes to Berhampur have easy accessibility to the hospital through the western gate but by its closure they have to traverse almost two kilometers that too a busy and congested road for coming to the Medical College Hospital. It is the further case of the petitioner that when the State Government has spent huge amount of money by erecting the western gate with pedestrian passages and security check post there is no justifiable reason for closure of the western gate. It is alleged that the said action of the authorities has affected the fundamental rights of the patients in getting medical services. Thus, the petitioner approached the permanent Lok Adalat for Public Utility Services for redressal of his grievance.

4. The present petitioners who were the respondents in P.L.A. Case No.24 of 2011 filed their joint written statement before the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur wherein it is their case that the western gate in question has been closed as per the policy decision and for the welfare of the patients and also to maintain peace and tranquility and healthy hospital atmosphere since for the last 40 years. Besides that it is their case that when there are other ways to enter the medical college in question, the applicant cannot claim entry into the Hospital premises through a particular gate. Accordingly, they prayed for dismissal of the application.

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5. The Permanent Lok Adalat for Public Utility Services Ganjam, Berhampur attempted to settle the dispute in between the parties by resorting to the provisions of Section 22C(7) of the Legal Services Authorities Act, 1987 but since the learned Addl. Government Pleader did not agree and stuck to the point that closure of the gate in question does not amount to deficiency in service rendered by the hospital, such attempt failed. Therefore, the Permanent Lok Adalat decided to deal with the dispute on merit under sub-section (8) of Section 22C of the Legal Services Act, 1987 and the impugned order at Annexure-1 was passed which has been challenged in this writ petition.

6. We have heard learned Government Advocate appearing for the petitioners as well as the learned counsel for the opposite party. The learned Government Advocate very vociferously attacked the impugned order passed by the Permanent Lok Adalat for Public Utility Services, Ganjam-Berhampur and contended that the said order is nonest in the eye of law as the authorities concerned traversed beyond its competence and usurped a jurisdiction which is not vested on it. Mr.Mohapatra, learned Government Advocate also challenged the impugned order on the ground that the impugned order was passed with undue haste and speed and that shows that the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur tried to over reach the highest court of the State i.e. this Court and did not observe the judicial discipline and propriety even though it was brought to its notice about the pendency of W.P.(C) No. 27309 of 2011 filed by one Sri Pitabash Panda an Advocate of Ganjam Bar Association on 12.10.2011 praying therein for a direction to the authorities of M.K.C.G. Medical College and Hospital, Berhampur for opening of the gate over looking the new bus stand Berhampur which has been closed by the authorities. It is contended that despite the said information furnished to the Permanent Lok Adalat, the authorities proceeded to adjudicate the P.L.A. Case No. 24 of 2011 and passed the impugned order and therefore the same needs to be quashed.

7. With the avowed object of providing speedy and inexpensive justice to the people of this country the Legal Services Authorities Act, 1987 has been enacted by the Parliament. The further object is to ensure that opportunities for securing justice are not denied to any citizen and to organize Lok Adalats to secure that the operation of the legal system promote justice on a basis of equal opportunity. In view of the growing popularity there has been an ever increasing demand for establishing Permanent Lok Adalats and the same has been inserted in Chapter 6A of the Legal Services Authorities Act, 1987. Section 22 A(a) speaks for establishment of Permanent Lok Adalat and Section 22B empowers the

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State authority to establish Permanent Lok Adalats in respect of one or more Public Utility Services for such areas as would be notified in the notification. What is Public Utility Service that has been defined in Clause (b) of Section 22A of the Legal Services Authorities Act, 1987 and the same reads as follows:-

“(b) “public utility service” means any-

(i) transport service for the carriage or passengers or goods by air, road or water; or

(ii) postal, telegraph or telephone service; or

(iii) supply of power, light or water to the public by any establishment; or

(iv) system of public conservancy or sanitation; or

(v) service in hospital or dispensary; or

(vi) insurance service, and includes any service which the Central Government or the State Government, as the case may be, in the public interest, by notification, declare to be a public utility service for the purposes of this Chapter.”

8. Thus, Permanent Lok Adalats for Public Utility Services have been established to decide disputes relating to deficiency of service pertaining to Public Utility Services as mentioned in Section 22A(b) of the Legal Services Authorities Act, 1987. Service in hospital or dispensary means the system that provides medical care facilities and treatment to the patients i.e., treatment by doctors, nursing staff and attendants attached to a Hospital or Dispensary.

9. The Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur in para five of its impugned order has observed that by virtue of sub-section (2) of Section 22 of the Legal Services Authorities Act, the Permanent Lok Adalat is to adopt its own procedure for determination of the dispute as it is a special tribunal and therefore, when conciliation initiated by it for opening of the western gate of M.K.C.G. Medical College and Hospital, Berhampur failed, it cannot sit helpless and therefore assumed jurisdiction to adjudicate the dispute under sub-section 8 of Section 22C of the Legal Services Authorities Act.

10. Sub-section 8 of Section 22C of the Orissa Legal Services Authorities Act, 1987 says that where the parties fail to reach at an agreement under

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Section 7, the Permanent Lok Adalat shall, if the dispute does not relate to any offence, decide the dispute.

11. Sub-section 7 of Section 22C reads as follows:-

“(7) When a Permanent Lok Adalat, in the aforesaid conciliation proceedings, is of opinion that there exist elements of settlement in such proceedings which may be acceptable to the parties, it may formulate the terms of a possible settlement of the dispute and give to the parties concerned for their observations and in case the parties reach at an agreement on the settlement of the dispute, they shall sign the settlement agreement and the Permanent Lok Adalat shall pass an award in terms thereof and furnish a copy of the same to each of the parties concerned.”

Sub-sections 7 and 8 of Section 22C cannot be read in isolation as it has reference to Section 22B of the Legal Services Authorities Act, 1987. Section 22B speaks of establishment of Permanent Lok Adalats in respect of one or more public utility services which the state authority shall notify through a notification. What constitute Public Utility Service has been defined in clause (b) of Section 22A of the Legal Services Authorities Act, 1987.

12. Upon examining the various provisions of the Legal Services Authorities Act, we are of the view that closure of one gate of a hospital by the authorities cannot come under the purview of service in hospital or dispensary. At the cost of repetition, we may reiterate here that service in hospital or dispensary means the services provided with regard to the treatment of the patients and nothing else. There is no allegation any where that the people of Berhampur city or adjoining areas have been denied medical service or treatment in M.K.C.G. Medical College and Hospital or there is any health hazard because of such deficiency in rendering or providing medical assistance to the patients in the hospital. When sub-section 8 of Section 22C is read harmoniously with Section 22B of Legal Services Authorities Act, 1987, we have no hesitation in our mind to hold that the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur could not have entertained the application filed by Sri Bijaya Kumar Patnaik, Advocate. We are constrained to observe that the Chairman and its two members exceeded their jurisdiction in holding that they can decide the dispute as because the conciliation failed with regard to the opening of the western gate of M.K.C.G. Medical College and Hospital. Reasoning assigned by the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur in our considered view shows that they traded on a wrong path and took upon themselves a jurisdiction which is not vested on them under

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the statute. When the authorities proclaimed them to be a special tribunal it is equally expected of them that they should function in a manner which the law of the land prescribes. Judicial discipline and propriety has to be maintained especially when the Chairperson of the Permanent Lok Adalat in question is a retired Senior Judicial Officer in the cadre of District Judge. When the authorities are called upon to adjudicate the dispute they must perform their duties in accordance with law and they shall not be swayed away by emotions and feelings of the people. The higher the responsibility the greater is the restraint. One should circumspect while passing any order as public functionaries. We should always remember that we are functioning under public gaze. Let not people loose confidence on our system. Let us preserve the sanctity of the institution. Let majesty of law prevail not personal feelings and emotions. All must function within the “Laxman Rekha” so that no one can point an accusing finger at our system.

13. Thus, in the instant case when the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur passed the impugned order at Annexure-1 without jurisdiction, the same is nonest and cannot be allowed to stand for a moment even. In the premises, we have no hesitation to quash the impugned order at Annexure-1 and the order passed for opening of the western gate of M.K.C.G. Medical College and Hospital, Berhampur is resultantly quashed.

14. Accordingly, the writ petition stands allowed. We direct the Registry to send copies of this judgment to all the Courts, Tribunals, Permanent Lok Adalats for Public Utility Services except State Administrative Tribunal and Central Administrative Tribunal for their information and guidance. Writ petitomn allowed.

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2013 ( I ) ILR - CUT-628

B.P.DAS,J. & B. K. NAYAK, J.

W.P.(C) NO. 9295 OF 2007 (Dt.09.11.2012)

DR. PRIYATAMA SINGH …….Petitioner

.Vrs.

STATE OF ORISSA & ORS. …….Opp.Parties A. CONSTITUTION OF INDIA, 1950 – ART.226.

Vires of Regulation 4(b) (i) of Odisha Public Service Commission (Conditions of Service) Regulations, 1952, challenged.

Constitutionally two categories of persons appointed as Members in the Public Service Commission i.e. Government Servants and other persons who are not Government servants – Persons not Government servants shall have to receive the pay as provided under Regulation 4(a) – In view of Regulation 4(b) (i) while fixing pay for members who were Government servants the amount of pension they get must be deducted from the pay stipulated under Regulation 4(a) so that their total pay inclusive of pension does not exceed the pay under Regulation 4(a) with a view that both categories of members get equal pay – In other words fixation of pay may cause hardship to a person who is appointed as a Member O.P.S.C. while continuing in Government service and had he been continued in service till superannuation would have received a pay more than what has been provided for a member OPSC under Regulation 4(a) – The above hardship cannot be said to be a variation of the service conditions after appointment of the person as Member of the commission as provided in the proviso to Article 318 (b) of the Constitution – Held, the impugned regulation cannot be said to be ultra vires the Constitution. (Para 13)

B. ODISHA PUBLIC SERVICE COMMISSION (CONDITIONS OF SERVICE) REGULATION, 1952 - REGULATION 4 (a), (b) (i).

Petitioner appointed as Member OPSC in 2002 – In ordinary course she would have retired on superannuation in Government service in 2006 – As per the State Government Resolution her scale has been revised w.e.f. January 2006 – Regulation 4(a) not revised/amended after 1994 – Despite such non-revision the pay of one Mr. Pratip Mohanty, Chairman OPSC was refixed by reducing the gross amount of revised pension – Such benefit is not extended to the

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DR. PRIYATAMA SINGH -V- STATE [B.K. NAYAK, J.] petitioner by OPSC – Discrimination – Held, petitioner entitled to proportionate revision of her pay and her pay be fixed by deducting such revised pension from her revised pay with effect from 1.1.2006 and the same be paid to her. (Paras 14,15) For Petitioner - M/s. Budhadev Routray,(Sr.Adv.), D.K.Mohapatra, B.N. Satpathy, B.B. Routray, P.K.Sahoo, R.P. Dalai. For Opp.Parties - Addl. Standing Counsel (for O.p 1 & 3) Mr. B.K. Dash, (for O.P2).

B.K. NAYAK, J. The petitioner, who was a Member of the Orissa Public Service Commission (in short ‘the OPSC’), has filed this writ application challenging the vires of Regulation 4 (b) (i) of Orissa Public Service Commission (Conditions of Service) Regulations,1952 (hereinafter referred to as “Orissa Regulation,1952”) and also prays for quashing the order dated 17.03.2007 under Annexure-7 passed by the Government and further to direct the opposite parties, particularly, the State Government to re-determine the salary payable to the petitioner calculating the same @ Rs.19,500/- per month from the date of her assumption of office as Member of the Commission.

2. While working as Principal, M.K.C.G. Medical College, Berhampur the petitioner was appointed as a Member of the OPSC vide Government Notification dated 3.12.2002 under Annexure-1. Prior to her appointment as a Member of the OPSC, the petitioner was drawing a salary of Rs.18,650/- with other allowances. On her assumption of office as a Member of OPSC she was provisionally placed in the pay of Rs.19,500/- (fixed basic pay) with other allowances as per office order dated 18.01.2003 (Annexure-2) in terms of Regulation 2 (e) of the Orissa Regulation,1952, which was made final by order dated 29.01.2005 under Annexure-4. With regard to pay of the Chairman and the Members of the OPSC Regulation 4 (a) & (b) of the Orissa Regulation,1952 as amended in 1994, provides as under :

“4. (a) The Chairman shall receive a pay of Rs.20,450 (fixed) a month and each of the members shall receive a pay of Rs.19,500 (fixed) a month.

(b) Notwithstanding anything contained in clause (a)-

(i)If a person is appointed as Chairman or Member while in Government service, he shall have to retire from Government

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service, before assuming the office of the Chairman or Member of the Commission, as the case may be, and in such case, he shall be entitled to receive the pay last drawn by him from Government service minus the gross amount of pension including any portion thereof which might have been commuted:

Provided that in a case where such person was in receipt of

pay less than the pay specified under clause (a) he shall be entitled to receive the pay so specified reduced by gross amount of pension including any portion thereof which might have been commuted, or

“(ii) If a person, after retirement from service under the

Government, is appointed as the Chairman or a Member, he shall also be entitled to receive the pay as specified in sub-clause (i).”

In terms of the aforesaid Regulation 4 the pay of the petitioner as a Member of the OPSC was fixed at Rs.19,500 (fixed pay) minus pension of Rs.9,325 = Rs.10,175 net pay per month. 3. It is stated by the petitioner that in the State of Punjab, the Service Conditions of the Members of Punjab Public Service Commission are governed by the Punjab State Public Service Commission (Conditions of Service) Regulations, 1958 (in short ‘1958 Regulation of Punjab) and the proviso to Regulation 5 (1) of the said Regulation is parimateria to the provision of Regulation 4 (b) (i) of the Orissa Regulation,1952. It is stated that one M.P. Pandove, who was working as Chief Auditor, Co-operative Societies, Punjab Government and was drawing salary of Rs.20,100/- was appointed as Member of the Punjab Public Service Commission vide Notification dated 8.12.2002 and was placed in the scale of pay of Rs.18,400-500-22,400/- and his pay was fixed at Rs.9,093 after deducting his pension of Rs.9,307/- as per order dated 07.12.2004 under Annexure-5. Mr.Pandove filed Civil Writ Petition No.85 of 2005 in the High Court of Punjab and Haryana for declaring the proviso to Regulation 5 (1) of the 1958 Regulations of Punjab as ultravires the Constitution being violative of Articles 14 and 16 and for quashing the pay fixation order dated 07.12.2004. The High Court of Punjab and Haryana by judgment dated 26.02.2005 allowed the writ application and quashed the pay fixation of M.P. Pandove. For passing the said judgment the High Court relied upon the judgment in the case of Ram Phal Singh v. State of Haryana in Civil Writ Petition No.15159 of 1996, which had reached finality without being challenged in the apex Court. It is stated that the judgment passed in the case of M.P. Pandove in Civil Writ Petition No.85 of 2005 was challenged by the State of Punjab

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DR. PRIYATAMA SINGH -V- STATE [B.K. NAYAK, J.] before the apex Court in Special Leave to Appeal (Civil) No.12336 of 2005 and the apex Court by their order dated 13.07.2005 dismissed the Special Leave petition and upheld the judgment passed by the Punjab and Haryana High Court.

4. It is stated by the petitioner that the aforesaid judgment of the Punjab and Haryana High Court, which was confirmed by the apex Court is squarely applicable to the case of the petitioner inasmuch as Regulation 4 (b) (i) of the Orissa Regulation,1952, is parimateria to the provision of Regulation 5 (1) of the 1958 Regulations of Punjab. Therefore, the petitioner made a representation to opposite party nos.1 and 2 for implementing the decision of the Hon’ble apex Court in Special Leave to Appeal (Civil) No.(S) 12336 of 2005 in the case of M.P. Pandove and accordingly to re-fix and pay the salary of the petitioner without deducting the pension. Considering the representation of the petitioner, opposite party no.2 (OPSC) requested the Government to effect suitable amendment to Regulation 4 of the Orissa Regulation,1952 and furnished a copy of such request dated 24.10.2006 to the petitioner which is at Anexure-6. However, by letter dated 17.03.2007 (Annexure-7) opposite party no.1 turned down the request of opposite party no.2 stating that the judgment of the Supreme Court is not applicable to the State of Orissa and therefore, there was no need to amend Regulation 4 of Orissa Regulation,1952.

5. In the aforesaid scenario, it is submitted on behalf of the petitioner that the provision of Regulation 4 (b) (i) of the Orissa Regulation,1952 with regard to fixation of pay of a Member of the State Public Service Commission being in parimateria to the provision of Regulation 5 (1) of the 1958 Regulations of Punjab, opposite party no.1 was not correct in saying that the decision of the apex Court in M.P. Pandove’s case will have no application to Orissa. It is also submitted that the Regulation 4 (b) (i) is ultravires the Constitution as it is repugnant to Articles,14, 16 and Article 318, which provides that the condition of service of a Member of a Public Service Commission shall not be varied to his disadvantage after his appointment. It is stated that the Regulation having provided for deducting the pension of the petitioner which she is entitled on retirement from past service rendered to the Government prior to her appointment as a Member of the OPSC amounts to making a provision which is to the disadvantage of the petitioner after her appointment as a Member of the OPSC. It is also submitted that though the petitioner retired as Member of OPSC during the pendency of the writ application, so far she has not received her pay and the differential benefit in the revised scale of pay as per recommendation of 6th Pay Commission with effect from 01.01.2006, though one Sri Partip Mohanty, who was appointed as Chairman of the OPSC after his retirement

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] as the Chief Secretary of the Government of Orissa, has already been given the benefit of pay revision in the revised scale of pay with effect from 01.01.2006 and as such petitioner has been discriminated. It is also stated that one Mr.Sujit Das, who was also appointed as Chairman of OPSC after his retirement under the State Government has already received the benefit of pay revision with effect from 01.01.2006, but the petitioner’s case is not being considered in spite of representations sent to the opposite parties time and again. 6. Opposite party no.1-State of Orissa has filed a counter affidavit wherein it is stated that the decision in the case of Ram Phal Singh v. State of Haryana has no application as because Regulation 6 (1) with its first proviso of the Haryana Regulation 1973, which was the subject matter of interpretation in the said case, did not provide for deduction of pension for fixation of remuneration of a Member of the Haryana Public Service Commission and as such the regulation not being in parimateria to Regulation 4 (b) (i) of the Orissa Regulation,1952, which provides for deduction of pension in the matter of fixation of pay. It is further stated that the decision of the Punjab and Haryana High Court in the case of M.P. Pandove which was disposed of in terms of the decision in Ram Phal Singh’s case was confirmed by the Hon’ble Supreme Court in SLP (C) No.12336 of 2005 on the ground that the impugned judgment of the High Court was based on concession and, therefore such order of the Hon’ble Supreme Court cannot be said to have laid down the law under Article 141 of the Constitution so as to be binding on the opposite parties. It is further stated that the petitioner prior to her appointment as Member of OPSC was drawing a pay of Rs.18,650/- per month with other allowances and on her joining as a Member of the OPSC her pay was fixed at Rs.19,500/- per month and as per Regulation 4 (b) (i) of the Orissa Regulation, 1952 her net pay came to Rs.10,175/- after deduction of the amount of pension of Rs.9,325/-. It is, therefore, contended on behalf of opposite party no.1 that Regulation 4 (b) (i) does not violate Article 318 or Articles, 14 and 16 of the Constitution of India.

7. The order dated 26.02.2005 of Punjab and Haryana High Court in the case of M.P. Pandove v. State of Punjab and others (Civil Writ Petition No.85 of 2005), copy whereof is produced before us, is extracted hereunder:

“Learned counsel for the parties are agreed that the controversy in hand is squarely covered by the decision rendered in Ram Phal Singh v. State of Haryana & others (Civil Writ Petition no.15159 of 1996, decided on 08.09.2004).

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DR. PRIYATAMA SINGH -V- STATE [B.K. NAYAK, J.] In view of the above, the instant writ petition is allowed in terms of the order passed by this Court in Ram Phal Singh’s case (supra). Accordingly, the impugned order dated 07.12.2004 (Annexure-P-6) is hereby quashed. The remuneration payable to the petitioner in furtherance of the instant order be calculated and released to the petitioner within a period of two months from today.”

Annexure-P-6 to the said writ application was the pay fixation order of Mr.M.P. Pandove, petitioner therein, as Member of Punjab Public Service Commission, whereby his pay had been reduced by the amount of pension admissible to him as a Government Servant prior to his joining as Member of the Public Service Commission. As is apparent from the order of the Punjab and Haryana High Court, the writ application was allowed because of the concession made by the State Government. The order was passed in terms of the decision in Ram Phal Singh’s case, which otherwise means that the reasoning given by the High Court in the judgment in Ram Phal Singh’s case with respect to the relevant provision of Haryana Regulation of 1973 have been accepted as the grounds for the order.

8. It is, therefore, necessary to see the decision of the Punjab and Haryana High Court in the case of Ram Phal Singh v. State of Haryana & others in Civil Writ Petition No.15159 of 1996.

As it appears from the judgment the vires of first proviso to Regulation 6 (2) of the Haryana Public Service Commission (Conditions of Service) Regulation 1973 fell for consideration. It is apposite at this stage to see the provisions of Regulation 5 (1) with the proviso of Punjab Regulation 1958 and Regulation 6 (1), (2) and (3) with provisos of the Haryana Regulation 1973.

Punjab Rule 5 (1) of the Punjab Regulation 1958 provides as under :

“5 (1) The Chairman shall receive pay in scale of Rs.22,400-525-24,500/- and other members in the pay scale of Rs.18,400-500-22,400/- and in addition thereto they shall also be entitled to get such other allowances as may be admissible from time to time to Government employees getting similar pay. Provided that-

(i) If the Chairman or a Member at the time of appointment as such is a person, who has retired from service under the Central Government, a State Govt., a local authority, a University, a privately managed

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recognized school or an affiliated college or any other body wholly or substantially owned or controlled by the Punjab Govt., and who is in receipt of or has received or has become entitled to receive and retirement by way of pension, gratuity, contributory provident fund or otherwise, the pay specified in this regulation shall be reduced by the gross amount of any kind of pension including any portion of the pensions which may have been commuted.

Provided that the amount of pension not exceeding Rs.500/- per mensem, shall not be taken into consideration for fixing the pay.”

Regulation 6 (1), (2) and (3) of the Haryana Regulation,1973 is extracted herein below :

“6. Pay (1) The Chairman shall receive a remuneration of seven thousand rupees in a month and each of the other members a remuneration of Six thousand rupees a month. They shall also be entitled to such other allowance as may be admissible in future from time to time to government employees drawing the same pay in addition to four hundred rupees a month as car allowance, provided a car is maintained.

2. Chairman or the Member, if at the time of his appointment as such, is a retired Government employee, he will be entitled to the remuneration in sub-regulation (1) in addition to the pension sanctioned to him. Provided that the amount of remuneration plus the gross amount of pension or the pension equivalent to other forms of retirement benefits does not exceed the pay last drawn by him before his retirement or the remuneration mentioned in sub-regulation (1) whichever is higher.

Provided further that the total remuneration plus the gross of pension and the pension equivalent to other forms of retirement benefits, excluding the allowances, shall in no case exceed eight thousand rupees per month.

3. The Chairman or the member who at the time of his appointment as such is in the service of the central or State Government and does not exercise option under sub-regulation (1) of regulation 9 shall be paid the remuneration drawing by him immediately before his appointment as Chairman or member as the case may be or the remuneration mentioned in sub regulation (1)

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DR. PRIYATAMA SINGH -V- STATE [B.K. NAYAK, J.]

whichever is higher, till the date of his retirement from Government service in the normal course and thereafter his remuneration shall be regulated as provided in sub regulation (2).”

9. In Ram Phal Singh’s case fixation of remuneration was made by deduction of pension payable to him on account of service rendered by him under the Government in terms of first proviso to Regulation 6 (2) of the Haryana Regulation 1973. Regulation 6 (1) stipulated a fixed remuneration of Rs.6,000/- for the Member of the Haryana Public Service Commission and also allowed such other allowances as may be admissible from time to time to the Government employees drawing the same pay. The word ‘remuneration’ used in the said Regulation apparently refers to the fixed basic pay. Sub regulation (2) of Regulation 6 has been enacted apparently keeping in view the Constitutional provision contained in the proviso under Article 316 (1) of the Constitution of India which stipulates that as nearly as may be onehalf of the Members of every Public Service Commission shall be persons who at the dates of their respective appointment have held office for at least ten years either under the Government of India or under the Government of a State. In order to clarify the position as to the entitlement to remuneration by a retired Government servant entitled to pension for such service, who was appointed as a Member of the Public Service Commission, Sub regulation (2) read with its first proviso makes it clear that such retired Government servant subsequently becoming a Member of the Public Service Commission will be entitled to the fixed remuneration of Rs.6,000/- along with the pension but this provision is subject to the first proviso which is in the nature of an exception. Sub Regulation (2) of Regulation 6 read with the first proviso would only mean that the remuneration plus pension of such a Member would not exceed the last pay drawn from the Government by the person at the time of his appointment as a Member or Rs.6,000/-, i.e., the remuneration specified in Regulation 6 (1), whichever is higher. Of course the proviso contemplates two categories of Government employees becoming Members of the Public Service Commission. The first category comprises of those who prior to their appointment were drawing wages in excess of the remuneration (Rs.6,000/-) stipulated under Regulation 6 (1) of the Regulation. The second category is referable to Members of the Public Service Commission, who prior to their appointment as members were drawing wages as Government servants at a level lower than Rs.6,000/-, i.e., the remuneration prescribed under Article 6 (1) of the Regulations. 10. While holding proviso to Regulation 6 (2) of the Haryana Regulation,1973 as ultra vires the Constitution and quashing the order fixing

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] the remuneration of the petitioner therein by deducting pension, the High Court of Punjab and Haryana held as under :

“The petitioner in the instant case was drawing a wage under the government which was less than the remuneration stipulated under Regulations 6 (1) of the 1973 Regulations. It is not a matter of dispute that the duties and responsibilities discharged by the members of the commission in respect of their source of appointment are the same. It is also not a matter of dispute that duties assigned to the members of the Commission recruited from the two broad sources expressed in Article 316 (1) of the Constitution of India are inter changeable. It is, therefore, inevitable to conclude that the members of the Public Service Commission cannot be justifiably classified on the basis of the duties and responsibilities assigned to them. The Apex Court in Marvyn Continho’s case (supra), Roshan Lal Tandon’s case (supra); S.M. Pandit’s case (supra) and in Ramchandra Shankar Doodhar’s case (supra) has repeatedly concluded that the source of recruitment of an incumbent cannot be basis of a valid classification. The written statement filed on behalf of the respondents does not disclose any justification on the basis of which different members of the Public Service Commission can be paid different levels of remuneration. Thus viewed, it is imperative to conclude that the impugned order which required the petitioner in the instant case Ram Phal Singh to be paid remuneration less than the one stipulated under Regulation 6(1) of the 1973 Regulations violates the principles of equal pay and equal work. In this behalf it would be pertinent to mention that while calculating the emoluments payable to the petitioner, deduction of pension payable to him (on account of service rendered by him under the government) as well as deduction of pension equivalent to Death-cum-Retirement Gratuity paid to him (for service rendered by him under the Government) are being made from the stipulated remuneration of Rs.6000/- under Regulation 6(1) of the 1973 Regulations. The aforesaid deductions comprising of pension, as well as pension equivalent to Death-cum-Retirement Gratuity, constitute earnings of the petitioner in lieu of the service rendered by him under the government. The action of making the instant deductions amounts to depriving the petitioner of his existing rights, prior to his appointment as a member of the Public Service Commission. The aforesaid earnings are not relatable to the duties and responsibilities which a member of the Public Service Commission discharge as a member of the Public Service

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DR. PRIYATAMA SINGH -V- STATE [B.K. NAYAK, J.] Commission. It is wholly unreasonable to make the aforesaid deductions from the remuneration of the petitioner because the aforesaid payments have no nexus to the duties and responsibilities of the petitioner as a member of the Public Service Commission. The only issue relevant for determining the emoluments payable to the members of the Public Service Commission is the duties and responsibilities discharged by them as members of the Public Service Commission. All the members of the Public Service Commission discharge the same duties collectively as a unified body and the duties and responsibilities of the members of the Public Service Commission are inter-changeable, there can, therefore, be no justification to pay them differently for the duties discharged by them. In view of the above, it is natural to conclude that the first proviso under Regulation 6(2) of the 1973 Regulations which envisages a stipulation wherein a number of the Public Service Commission fixed under Regulation 6(1) of the 1973 Regulations, is clearly ultra vires the provision of the Constitution of India and is therefore liable to be set aside and is accordingly set aside. The petitioners and others who were drawing wages under the government at a level less than the remuneration under Regulation 6(1) of the 1973 Regulations (Prior to their appointment as members of the Public Service Commission), are hereby held to be entitled to the remuneration fixed under Regulation 6(1) of the 1973 Regulations, without any deduction therefrom.”

11. With respect we are unable to accept all the reasonings given by the Punjab and Haryana High Court in Ram Phal Singh’s case as seen above because while deciding the vires of first proviso to Sub regulation (2) of Regulation 6 of Haryan Regulation, 1973, the High Court has not taken into consideration the second proviso to sub Regulation (2) and also sub Regulation (3) of Regulation 6 of the Haryana Regulation, 1973. The dismissal of the SLP by the Hon’ble Supreme Court in M.P. Pandove’s case on the ground that the judgment of the High Court was based on concession cannot be said to have laid down the law under Article 141 of the Constitution of India, as because it was a dismissal in limine and the High Court Judgment being an outcome of concession the Hon’ble Supreme Court was not inclined to entertain the SLP to consider the legality and propriety of the order of the High Court. 12. Regulation 4 (a) of the Orissa Regulation, 1952 prescribes fixed basic pay of Rs.19,500/- for the Member of the OPSC. Clause (b) of

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Regulation 4 of the said Regulation which starts with a non-abstante clause is referable to Government Servants, who are made Members of the OPSC. Sub clause (i) of Clause (b) provides the manner for fixation of pay of a Member, who was continuing in Government Service on the date of his appointment as a Member of OPSC. However, the proviso to the said sub Clause envisages that before assuming office of Member the person shall have to retire from Government Service and on assumption of office of Member he has to receive the last pay drawn by him where such pay was more than as stipulated in Clause (a) of Regulation 4, i.e., Rs.19,500/- minus the gross amount of pension. The proviso under Clause (i) also makes it clear that where on the date of assumption of office as Member the Government servant was in receipt of pay less than the pay specified under Clause (a) he shall be entitled to receive the pay specified under Clause (a) minus the gross amount of pension. Sub Clause (ii) of Clause (b) of Regulation 4 refers to the second category of Government Servants, who on the date of their appointment as Member of OPSC had already retired. Such retirement may be either on superannuation or voluntary retirement by the person concerned before he was appointed as a Member of the OPSC. Such a Member is entitled for pay to be fixed in the same manner as mentioned in Clause (i) which means that his pay as a Member of OPSC has also to be fixed by deduction of gross amount of pension from his basic pay. So far as the appointment of a Member of the Public Service Commission from amongst Government servants or retired Government servants is concerned, it is post retiral appointment or engagement in respect of which the policy of the Governments, Central as well as State, has always been to give salary to such an appointee in a manner which does not confer on him dual financial benefit. Therefore, salary in respect of all such post retrial appointments whether in Tribunals or in other bodies, are fixed as per the last pay drawn by them or the pay stipulated for the post in the concerned Rules or Regulations by deducting the pension. 13. Constitutionally two categories of persons are appointed as Members in the Public Service Commission as per proviso to Article 316(1), i.e., Government servants and other persons, who are not Government Servants. Persons who are not Government Servants shall have to receive the pay stipulated for the post of Member in Regulation 4 (a). Members who were Government Servants and are entitled to pension in respect of service rendered by them as such Government Servants, the Regulation stipulated for fixation of their pay by deducting the amount of pension from the pay stipulated under Regulation 4 (a) so that the total pay inclusive of pension does not exceed the pay prescribed in the Regulation. That way both categories of Members get equal pay and are treated equally and the

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DR. PRIYATAMA SINGH -V- STATE [B.K. NAYAK, J.]

Government servants are not doubly benefited by way of getting the full pay for the post of Member as well as the amount of pension which is admissible to them as Government Servants. Deduction of pension in fixation of pay can not therefore be said to be violative of Articles 14 and 16 of the Constitution. The fixation of pay, however, may cause hardship to a person, who is appointed as a Member of the OPSC while continuing in Government Service in case where had the person concerned continued in service till superannuation would have received a pay more than what has been stipulated for a Member of OPSC under Regulation 4 (a), i.e. Rs.19,500/-. The Regulation which does not make a provision to take care of such a situation would be detrimental to his interest. A Government Servant in service, who accepts the appointment of office of the Member of the OPSC does so consciously knowing well that he has to continue in the post carrying a fixed basic pay of Rs.19,500/- till he completes the tenure of six years or till he attains the age of 62 years whichever is earlier unless before attaining such age or completing the tenure the pay for the post gets revised. This hardship cannot be said to be a variation of the service condition after appointment of the person as Member of the Commission as provided in the proviso to Article 318 (b) of the Constitution. In such view of the matter, the impugned regulation cannot be said to be ultra vires the Constitution. 14. Admittedly, on the date of appointment as Member of OPSC in 2002 the petitioner was drawing a pay of Rs.18,650/- in the scale of pay of Rs.16,400-450-20,000/-. In ordinary course she would have retired on superannuation in Government service in 2006. However, with effect from January,2006 as per the State Government Resolution No.1/2012-5505WH dated 03.03.2010 under Annexure-10 of the Health and Family Welfare Department the aforesaid scale has been revised to Rs.37,400/- - Rs.67,000/- with AGP of Rs.10,000/-. It has been brought to the notice of this Court by the petitioner that one Sri Pratip Mohanty, IAS, who after his retirement as Chief Secretary was appointed as the Chairman of OPSC was allowed a pay of Rs.26,000/- (pay last drawn in Govt.) minus the gross amount of pension of Rs.13,000/-. As per pay revision of IAS Officers w.e.f. 01.01.2006 the pay of Rs.26,000/- was revised to Rs.80,000/- and, therefore, pay of Mr. Mohanty as Chairman of OPSC has been fixed at Rs.80,000/- reduced by the gross amount of pension of Rs.40,000/- with effect from 01.01.2006 vide Government of Orissa, G.A. Department office order dated 26.06.2009 under Anenxure-9. It is the grievance of the petitioner that though there is revision of pay scale which the petitioner was drawing as a Government Servant on the date of her assumption of office as the Member

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] of the OPSC, her pay as such Member has not been fixed in the revised scale as has been done in the case of Mr. Pratip Mohanty. 15. The pay stipulated for the Chairman and the Member of the OPSC under Regulation 4 (a) of the Orissa Regulation 1952 as amended in 1994 has apparently not been revised or amended thereafter even though pay of Government employees under the Centre as well as State has already been revised with effect from 01.01.2006. Despite such non-revision the pay of Mr. Pratip Mohanty, the Chairman of the OPSC was re-fixed/revised as per order under Annexure-9 at Rs.80,000/- (fixed) per month reduced by the gross amount revised pension. The petitioner, however, being a Member of the OPSC has not been extended such benefit even though there is a revision of her previous pay scale as per Resolution of Health and Family Welfare Department dated 03.03.2010. Her pension also has not been revised as per the revised scale. This definitely amounts to discrimination. We are therefore, of the view that the petitioner is entitled to the proportionate revision of her pay of Rs.19,500/- as per revision of pay scale under resolution at Annexure-10 and also revision of her pension in accordance with such revision of pay should also be done and her pay be fixed by deducting such revised pension from her revised pay with effect from 01.01.2006 and be paid to her. The whole exercise shall be completed within a period of three months from today.

The writ application is accordingly allowed partly to the extent indicated above.

Writ petition partly allowed.

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2013 ( I ) ILR - CUT- 641

L. MOHAPATRA, J & B.K.PATEL, J.

W.P.(C) NO. 7753 OF 2009 (With Batch) (Dt.23.12.2011)

AKSHAYA KU. SWAIN & ORS. ……..Petitioners

.Vrs. ORISSA LEGISLATIVE ASSEMBLY & ORS. ……..Opp.Parties

ODISHA LEGISLATIVE ASSEMBLY SECRETARIAT (RECRUITMENT & CONDITIONS OF SERVICE) RULES, 1983 – R-10.

Appointment in three posts of watch and ward in the Odisha Legislative Assembly - Favouritism in appointment –Action challenged.

As per Rule 10 Speaker shall Constitute a Selection Committee to advise the Secretary for appointment to Class-III and Class-IV posts – Initially the committee was constituted as per rules but after one of its members was allowed to officiate as Secretary Orissa Legislative Assembly, continuance of such committee was in contravention of Rule 10 – Secondly though office note shows that only 32 candidates appeared in the interview preparation of a panel of 36 selected candidates creates serious doubt in the process of selection – Held, entire selection process is vitiated, hence quashed – It is open for the Orissa Legislative Assembly to fill up the posts through a fresh selection. (Paras 6,7) For Petitioner - M/s. Budhadev Routray, D. Routray, D.Mohapatra, S.Das, S.Jena, D.K.Mohapatra & P.K.Sahoo. Miss Deepali Mohapatra.

For Opp.Parties - M/s. Milan Kanungo, M. Verma & S.K.Mishra, (for Opp.Party No.1) M/s. J.Sengupta, D.K.Panda, G.Sinha, A. Mishra & S. Mishra (for Intervenors).

M/s. S.N.Das M/s. B.B. Routray, R.P. Dalai (for Intervenors) M/s. M. Verma & L.N.Rayatsingh

L.MOHAPATRA, J. All the three writ petitions relate to selection of candidates for appointment to the post of Watch and Ward in the Orissa Legislative Assembly. W.P.(C) No.7753 of 2009 and W.P.(C) No.3229 of

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2004 have been filed by the unsuccessful candidates challenging the selection whereas W.P.(C) No.4744 of 2009 has been filed by the successful candidates praying for issuance of appointment letters.

2. The Orissa Legislative Assembly Secretariat issued an advertisement inviting applications for appointment to different posts including three posts of Watch and Ward. Out of the said three posts meant for Watch and Ward, one was for unreserved male candidate, one for SEBC male candidate and one for SEBC woman candidate. In pursuance of the said advertisement, the petitioners in all the three writ petitions and others submitted their applications for such appointment. A written test was conducted and the selected candidates were also subjected to a viva voce test. In relation to selection of candidates to different posts as advertised, there were serious allegations of favouritism covered by Media for which the Hon’ble Speaker of the Assembly appointed a retired Hon’ble Judge of this Court as Commission of Enquiry in exercise of powers conferred under Section 3, sub-Section (1) of Section 5 of the Commission of Enquiry Act, 1952 and a notification was issued in the gazette. On the basis of an opinion given by the Advocate General questioning the legality of the aforesaid notification, the State Government in exercise of the same power appointed Hon’ble Shri Justice Chitta Ranjan Pal, a retired Judge of this Court as Commission of Enquiry with effect from 22.7.2004 to enquire into and report. The said decision of the State Government was notified and published in the extraordinary gazette dated 15.9.2004. Some of the unsuccessful candidates including the petitioners sent affidavits to the Commission for necessary verification/ scrutiny of all the Examination records relating to appointment to the posts of Receptionist Clerk, Watch and Ward. When the matter stood thus, the Hon’ble Speaker filed W.P.(C) No.905 of 2007 questioning the jurisdiction of the State Government in appointing a Commission of Enquiry to enquire into the affairs of the Orissa Legislative Assembly and prayed for quashing the order dated 10.1.2007 passed by the Commission to the effect that the allegation of favouritism shall be decided in the final report. The aforesaid writ petition was allowed by this Court holding that the notification dated 15.9.2004 appointing the Commission with retrospective effect from 22.7.2004 is illegal. The unsuccessful petitioners, therefore, had no other option except filing the above two writ petitions.

3. Shri Budhadev Routray, the learned Senior Counsel appearing for the petitioner in W.P.(C) No.7753 of 2009 and Miss Dipali Mohapatra, the learned counsel appearing for the petitioner in W.P.(C) No.3229 of 2004 challenged the selection of candidates to the post of Watch and Ward basically on two grounds.

643 A K. SWAIN -V- ORISSA LEGISLATIVE ASSEMBLY [L.MOHAPATRA, J]

(1) The constitution of the Selection Committee was in contravention of the relevant rules.

(2) Manipulations have been made in the answer sheets in order to show favour to the selected candidates.

4. So far as the first ground is concerned, the learned counsel appearing for the petitioners in the above two writ petitions drew attention of the Court to the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983 and referring to Rule 10, it was submitted by the learned counsel for the petitioners in the said two writ petitions that under the said Rule, the Speaker shall constitute a Selection Committee to advise Secretary in the matter of appointment to be made to the Class III and Class IV posts of the service by direct recruitment and by promotion. The Committee shall consist of more than one senior Officer of the Secretariat, other than the Secretary. Rule 10 of the aforesaid Rules is quoted below for convenience:

“10. (1) The Speaker shall constitute a Selection Committee to advise Secretary in the matter of appointment to be made to the Class III and Class IV posts of the service by direct recruitment and by promotion.

(2) The Committee shall consist of more than one senior officer of the Secretariat, other than Secretary.

Provided that the services of an expert to aid to the committee in the matter of selection of candidates for appointment may be requisitioned as and when directed by the Speaker.

(3) The Selection Committee may conduct tests and prepare list of candidates as per merit for direct recruitment to the post in the service.

(4) The Selection Committee for recommending persons for appointment by promotion shall consider the C.C.Rs. of all eligible persons and prepare a list of candidates on the basis of merit and suitability with due regard to seniority.”

The learned counsel further referred to Annexure-15 series attached

to the rejoinder affidavit filed in W.P.(C) No.7753 of 2009 and submitted with reference to the office note that initially a Selection Committee had been constituted on 30.6.2003 and Shri K. Samal who was earlier working as

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Joint Secretary was included as one of the members of the Selection Committee but he had been promoted to officiate as Secretary on 12.11.2002 and therefore, in terms of Rule 10 of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983, he could not have been a member of the Selection Committee. The Selection Committee having been constituted in contravention of the aforesaid Rules, the entire selection process is vitiated.

So far as manipulation in the answer sheet is concerned, this Court

had called upon the learned counsel appearing for the Orissa Legislative Assembly to produce the records but it was submitted before the Court that the said records have been submitted before Justice C.R. Pal Commission. The learned counsel for the State intimated the Court that records have been received from the Orissa Legislative Assembly by the Commission but the answer sheets are not available in the record. We, therefore, called upon the learned counsel to produce the records and on verification of records we also did not find the answer sheets. Under these circumstances whether an adverse inference can be drawn against the Orissa Legislative Assembly or not has to be taken note of at the time of dealing with this submission of the learned counsel for the petitioners appearing for the unsuccessful candidates.

5. The learned counsel appearing for the Orissa Legislative Assembly and the learned counsel appearing for the successful candidates submitted that though Shri K. Samal had been promoted to officiate as the Secretary by the time the Selection Committee was constituted, he had expressed his unwillingness to participate in the selection process and therefore, his inclusion in the Selection Committee has not materially affected the selection process. It was also contended by the learned counsel appearing for the said parties that the answer sheets had been submitted before the Commission and if the same are not available in the record of the Commission, no adverse inference can be drawn against the Orissa Legislative Assembly for non-production of the answer sheets.

6. Out of the two grounds taken by the learned counsel appearing for the unsuccessful candidates, if the petitioners succeed in the first ground taken in the writ petition, it may not be necessary to consider the second ground. As quoted earlier Rule 10 of the aforesaid Rules clearly provides that the Selection Committee shall consist of more than one senior officer of the Secretariat, other than the Secretary. From Annexure-15 series attached to the rejoinder filed in W.P.(C) No.7753 of 2009 dated 6.9.2010 it appears


that initially a Selection Committee had been constituted with the following officers as its members:

1. Shri K. Samal, Joint Secretary

2. Shri B.K. Khadenga, Deputy Secretary

3. Shri B.N. Bhoi, Under Secretary

4. Shri A.K. Sarangi, Advisor to Speaker

Shri K. Samal, Joint Secretary having been allowed to officiate as Secretary, a suggestion was made on 30.6.2003 to reconstitute the Selection Committee. On 2.7.2003, the Hon’ble Speaker approved the constitution of the new Committee from which Shri K. Samal had been dropped. It is, therefore, clear from the said note sheet in Annexure-15 series that Shri K. Samal had been included as a member of the Selection Committee initially when he was working as Joint Secretary. From Annexure-16 series to the said affidavit, it appears that by notification dated 12.11.2002, Shri Samal was allowed to officiate as Secretary of the Orissa Legislative Assembly and he assumed charge of the said post on 12.11.2002 in the forenoon. Therefore, the following dates are important to resolve the first issue.

12.11.2002 Shri K. Samal, Joint Secretary, Orissa Legislative Assembly who had been included as a member of the Selection Committee was allowed to officiate as Secretary of Orissa Legislative Assembly from the date he assumed charge.

12.11.2002 Shri K. Samal assumed charge of the office of the Secretary, Orissa Legislative Assembly.

18.5.2003 The written test was conducted.

2.7.2003 The constitution of the new Selection Committee was

approved by the Hon’ble Speaker.

28.1.2004 The interview was conducted.

It is, therefore, clear that on the date the written test was conducted Shri K. Samal, who was a member of the Selection Committee was working as the Secretary of the Orissa Legislative Assembly and accordingly

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constitution of the said Selection Committee and continuance thereof even after Shri K. Samal was allowed to officiate as Secretary was in contravention of Rule 10 of the aforesaid Rules. The question as to whether he participated in the selection process or not is immaterial as the constitution of the Selection Committee though initially was in accordance with the Rules had become invalid after Shri K. Samal was allowed to officiate as the Secretary of the Orissa Legislative Assembly. Written test had been completed by the time the new Selection Committee was constituted. Therefore, on this ground alone, both the writ petitions, i.e., W.P. (C) No.7754 of 2009 and W.P.(C) No.3229 of 2004 have to succeed.

Apart from the above illegality, another interesting feature has also come to our notice. From Annexure-8 series attached to the writ petition in W.P.(C) No.7753 of 2009 it appears that for three posts of Watch and Ward, 850 number of candidates were called for written test and 36 number of candidates were called for viva voce test. 32 number of candidates appeared at the viva voce test held on 28.1.2004. Though 32 candidates appeared in the viva voce test, the list of selected candidates shows that 36 candidates had been selected on the basis of the marks secured in the written test and the interview. Annexure-9 series indicates names, roll numbers and the marks secured by the said 36 candidates both in written test and interview. When the office note clearly shows that 36 numbers of candidates were called for viva voce test out of whom 32 only appeared in the viva voce test, it is not understood as to how a panel of 36 selected candidates was prepared on the basis of the marks obtained in the written test and the interview. If the office note is correct, 4 candidates who had not appeared in the interview have been included in the list of selected candidates. Names of both the petitioners in W.P.(C) No.4744 of 2009 find place in the list of selected candidates. The learned counsel for the Orissa Legislative Assembly could not offer any explanation as to how a panel of 36 candidates had been prepared on the basis of marks obtained in the written test and interview when it is the case of the Orissa Legislative Assembly that only 32 candidates appeared in the interview. For the reasons stated above, the writ petition has to succeed on the following two grounds:

(1) Though the Selection Committee had initially been constituted in terms of Rule 10 of the Orissa Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, after one of its members Shri K. Samal was allowed to officiate as Secretary of the Orissa Legislative Assembly, the Selection Committee should have been reconstituted. The same Selection Committee having


continued till the written examination was over, continuance of such Selection Committee is in contravention of Rule 10 of the aforesaid Rules.

(2) Though the office note clearly shows that only 32 candidates appeared in the interview, a panel of 36 selected candidates has been prepared on the basis of marks obtained in the written test and the interview.

We, therefore, do not feel it necessary to go into the second ground taken by the learned counsel appearing for the unsuccessful candidates.

7. For the reasons stated above, we hold that the entire selection process for selection of three candidates to be appointed against the three posts advertised for Watch and Ward is vitiated and accordingly quashed. It is open for the Orissa Legislative Assembly to fill up the posts through a fresh selection. W.P.(C) No.7753 of 2009 and W.P.(C) No.3229 of 2004 are consequently allowed and W.P.(C) No.4744 of 2009 is dismissed. The records produced by the learned counsel for the State be immediately returned to the office of the Justice C.R. Pal Commission. WP(C) No.7753/09 & 3229/04 allowed. WP(C) No.4744/09 dismissed.

648

2013 ( I ) ILR - CUT- 648

L. MOHAPATRA, J & C.R.DASH, J.

W.P.(C) NO.9810 OF 2012 (Dt.10.10.2012)

UMA SANKAR MISHRA & ANR. …….Petitioners .Vrs. CHIEF MANAGER, BANK OF INDIA & ANR. …….Opp.Parties SECURITIZATION & RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT, 2002 (in short-SARFAESI ACT,2002) – S.17 (3) Appeal – Jurisdiction – Held, Tribunal has power to adjudicate whether steps taken by the secured creditor U/s.13 (4) of the SARFAESI Act is in accordance with provisions in the Act and the Rules and the action taken under the said provision is valid or not – It has also power to pass any stay/interim order subject to the conditions as it may deem fit and proper. In this case petitioners case is that they had paid the entire dues to the Op-Bank prior to sale of the mortgaged property and they entitled to get refund of Rs.3 lakhs – If the petitioners case is accepted sale of the mortgaged property becomes invalid in the eye of law and the Bank had no authority to sale the mortgaged property – Held, observation of the Tribunal that it can only examine the steps taken by the secured creditor U/s.13(4) of the SARFAESI Act is not correct. (Para 10) Case laws Referred to:-

1.AIR 2004 SC 2371 : (Mardia Chemicals Ltd.-V- Union of India & Ors.) 2.AIR 2012 SC 1727 : (Maria Margarida Sequeria Fernandes & Ors.-V- Erasmo Jack De Sequeria) For Petitioners - M/s. Mihir Kumar Mallick, B.K. Mohanty, J. Sahu, B.M.Mohapatra, N. Das & D. Solanki. For Opp.Parties - M/s. L.Dash, J.P.Behera & A.K.Dash, (for O.P.1) M/s. K.N. Parida, B. Mohanty & N.K.Mohanty, (for O.P.2).

649 U. S. MISHRA -V- CHIEF MANAGER, BANK OF INDIA [L.MOHAPATRA, J]

L. MOHAPATRA.J. This writ application is directed against the order dated 30.4.2011 passed by the Debts Recovery Tribunal, Cuttack in S.A.No.37 of 2011 as well as the order dated 30.4.2012 passed by the Tribunal in O.A.No.224 of 2010.

2. Case of petitioners is that they had taken loan from different Banks and all these loans were taken over by the opposite party-Bank and an amount of Rs.1,46,17,562.00 was the only debit at one time but the account was treated as C.C. Account. The petitioners had already paid Rs.2,05,81,750.25 by 9.9.2011. In spite of the same, the opposite party-Bank had made a demand of Rs.39,87,933.25 in the notice under Section 13(2) of the SARFAESI Act and the petitioners had paid a sum of Rs.30.75 lakhs against the payment made inclusive in Rs.2,05,81,750.25. However, the Bank without taking the note of the same took step under Section 13(4) of the SARFAESI Act showing a demand of Rs.9,12,933.25. According to the petitioners, the aforesaid amount of Rs.9,12,933.25 was to be adjusted against Rs.13,11,734.75 already paid and the balance amount of Rs.3,98,801.11 should have been returned by the Bank to the petitioners. However, when the Bank filed Original Application No.224 of 2010 for recovery of its dues before Debts Recovery Tribunal, petitioners filed written statement taking all these grounds. Had the Original Application been adjudicated with reference to the records of the Bank, it could have been found that all the dues of the Bank had been paid and the petitioners were entitled to get return of Rs.3,98,801.00. Without proceeding in the Original Application, the Bank took step under Section 13(4) of the SARFAESI Act, sold the mortgaged property in public auction, realized the so-called dues and ultimately approached the Tribunal praying for withdrawal of the Original Application on the ground that the entire dues of the Bank have been recovered through auction sale. Challenging the action taken by the Bank under Section 13(4) of the SARFAESI Act, the petitioners had filed S.A.No.37 of 2011. The said SARFAESI Appeal was dismissed on 30.4.2011 on the ground that the grounds taken by the petitioners in the said appeal did not come within the scope of Section 17 of the SARFAESI Act and no illegality having been found in the procedure adopted by the opposite party-Bank, the Tribunal cannot adjudicate the dispute raised before it by the petitioners

The opposite party-Bank appeared in the SARFAESI Appeal and filed counter affidavit stating therein that the account of the petitioners was declared N.P.A. on 30.11.2008 and notice under Section 13(2) of the SARFAESI Act was issued on 4.12.2008 demanding a sum of Rs.39,87,933.25 as on 3.12.2008. The petitioners did not file any objection

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nor paid the demanded amount and, accordingly, notice under Section 13(4) of the SARFAESI Act, was published on 11.8.2009. After publication of the said notice, the petitioners requested the Bank not to proceed under the SARFAESI Act as they were willing to pay the dues of the Bank and, accordingly, time was granted to them. Petitioners having failed to pay the amount, the Bank intimated them that it would proceed under Section 13(4) of the SARFAESI Act. In compliance of the said letter, petitioners requested the Bank on 21.9.2010 for settlement of account at Rs.20.00 lakhs under O.T.S. Scheme and grant three months time, but the demand made by the Bank was not disputed. The petitioners also filed W.P.(C) No.16394 of 2010 with a prayer to direct the Bank to consider their O.T.S. proposal and not to proceed under the SARFAESI Act. By order dated 24.9.2010, this Court directed the petitioners to deposit a sum of Rs.9.00 lakhs within one month, but due to non-compliance of the said order, the writ application was dismissed on 9.11.2010 and the interim order of stay was vacated. After dismissal of the writ application, the Bank proceeded under the SARFAESI Act and took over possession of the mortgaged property on 29.1.2011. At that stage, the petitioners again submitted a proposal for settlement of the account on payment of Rs.30.00 lakhs, but the Bank did not accept the same. The petitioners again enhanced their offer to Rs.45.00 lakhs and thereafter to Rs.51.00 lakhs in March, 2011. Though they promised to pay the said amount within fifteen days, after acceptance of the said offer by the Bank, they failed to deposit the amount, as a result of which, the Bank revoked the compromise and sale notice was published in September, 2011. The property was sold to the highest bidder in public auction and after adjustment of the dues of the Bank, the balance amount was paid to the petitioners. Therefore, nothing remained to be decided in the Original Application filed by the Bank and, accordingly, permission was sought for withdrawal of the same.

3. The question raised before the Tribunal was as to whether the defence of the petitioners taken in the Original Application filed by the Bank for recovery of its dues could be considered in the appeal filed by them under Section 17 of the SARFAESI Act. The Tribunal in the impugned order held that under Section 17 of the SARFAESI Act, the Tribunal is only called upon to examine as to whether the provisions contained in the SARFAESI Act and Rules made therein have been followed by the Bank or not. The Tribunal cannot go beyond the scope of section and adjudicate the dispute raised by petitioners in appeal filed under Section 17 of the SARFAESI Act.

4. Shri M.K.Mallick, learned Senior Counsel appearing for the petitioners drew attention of the Court to Section 17 of the SARFAESI Act


and submitted that in an appeal filed under the said provision the Tribunal is not only required to see as to whether the provisions contained in the Act and Rules made therein have been followed by the Bank or not, it has to also see as to whether sale of the mortgaged property was justified or not. In the event, the Tribunal comes to a conclusion that sale of the mortgaged property was not justified, it can direct restoration of the mortgaged property to the borrower or the guarantor, as the case may be. It was further submitted by Shri Mallick, learned Senior Counsel appearing for the petitioners that had the Original Application been adjudicated on contest, the petitioners could have proved that the entire dues of the Bank had already been paid by them and on the other hand, they are entitled to refund of more than Rs.3,00,000/- which had been paid in excess.

5. Learned counsel appearing for the Bank submitted that jurisdiction of the Tribunal under Section 17 of the SARFAESI Act is limited and it cannot adjudicate the present dispute raised by the petitioners. The petitioners having failed to deposit the compromise amount, there was no option left for the Bank except taking recourse to Section 13(4) of the SARFAESI Act and selling the property in public auction. The total outstanding dues of the Bank having been recovered from the auction purchaser, nothing remained to be decided in the Original Application filed by the Bank and, accordingly, the Tribunal was justified in granting permission for withdrawal of the Original Application.

6. The question to be adjudicated in this writ application is the extent of jurisdiction of the D.R.T. under sub-section 3 of Section 17 of the SARFAESI Act, 2002. The said provision for convenience is quoted below:-

“If, the Debts Recovery Tribunal, after examining the facts

and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of Section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management of the secured assets to the borrower or restoration of possession of the secured assets to the borrower, it may by order, declare the recourse to any one or more measures referred to in-sub-section (4) of Section 13 taken by the secured assets as invalid and restore the possession of the secured assets to the borrower or restore the management of the secured assets to the borrower, as the case may be, and pass such order as it may consider appropriate and necessary in relation

652


to any of the recourse taken by the secured creditor under sub-section (4) of section 13”.

7. A bare reading of the provision shows that in an appeal filed under Section 17 of the SARFAESI Act, the Tribunal has to adjudicate as to whether steps taken by the secured creditor under sub-section 4 of Section 13 of the SARFAESI Act are in accordance with provisions contained in Act and Rules made therein or not. In addition to, the Tribunal can also examine as to whether the action taken under Section 13(4) of the SARFAESI Act by the secured creditor against the secured assets is valid or not. Therefore, the observation of the Tribunal that in the said provision it can only examine the steps taken by the secured creditor under Section 13(4) of the SARFAESI Act in terms of the provisions contained in the Act and Rules made therein or not, does not appear to be correct.

8. In this connection, reference may be made to a decision of the Hon’ble Supreme Court in the case of Mardia Chemicals Ltd. Vrs. Union of India and others reported in AIR 2004 SC 2371. Analyzing Sections 13(2), 13(4) and Section 17 of the SARFAESI Act, 2002, the Court made the following observation in paragraphs 80 and 81 of the judgment. The said observations are quoted below:-

“Under the Act in consideration, we find that before taking

action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows:-

1. Under sub-section (2) of Section 13, it is incumbent upon the secured creditor to serve 60 days notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving


rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage.

2. As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal(petition) under Section 17 of the Act before the Debt Recovery Tribunal.

3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose.

4. In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down.

5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the Court.

In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would sub-serve the public interest”. 9. It is the specific case of the petitioners that they had paid the entire dues of the opposite party-Bank and on the other hand, they were entitled to be refund of more than Rs.3,00,000/-. If such contention of the petitioner is correct, sale of the mortgaged property was neither justified nor valid and validity of such sale at the instance of the Bank was required to be looked into by the Tribunal in the appeal filed under Section 17 of the SARFAESI

654

INDIAN LAW REPORTS, CUTTACK SERIES [2013] Act. Though the Bank has disputed the same, in our view, such dispute could be adjudicated by the Tribunal in order to find out the validity of the sale effected in a public auction. From the reading of the entire appeal filed before the Tribunal, it appears that the following three issues were raised before the Tribunal for adjudication in the appeal:- i) Whether Rs.2,10,81,750.25( actually Rs.2,14,98,647.25) discharged

the Loan of Rs.1,46,17,562.25 at the Bank’s dues of Rs.1,92,70,005,

ii) Whether Rs.18,11,745/- was/is excess paid to be returned to the petitioners or otherwise adjustable,

iii) Whether 9% interest was chargeable by the Bank on the outstanding of Rs.39,87,933.25 of the Sec.13(2) Demand or the OA Demand of Rs.49,93,364/- to reduce Rs.1,92,70,005/- as per AIR 2001 SC 3095, which could have been done by the DRT Cuttack, but was not done, on the contrary the learned DRT has ignored to decide OA No.224/10 on the plea of withdrawn by the Bank and has held as per the Madras Full Bench Decision that it has no powers to determine u/s 17(3) in the SA.

10. The Tribunal has not addressed any one of the issues solely on the ground that under Section 17 of the SARFAESI Act, it can only examine as to whether the opposite party-Bank has followed the procedure laid down in the Act and the Rules made thereunder. As stated earlier, if the petitioners’ case that they had paid the entire dues of the Bank prior to sale of the mortgaged property is accepted, such sale of the mortgaged property becomes invalid in the eye of law and the Bank had no authority to sale the mortgaged property having received its entire dues. In order to examine the above, it was necessary on the part of the Tribunal to adjudicate the three issues raised before it in the appeal and it is well within the competency of the Tribunal to adjudicate such issues. These issues were also raised in the written statement filed in the Original Application by the Bank before the Tribunal, but could not be adjudicated as the Bank withdrew the Original Application having realized its dues by putting the mortgaged property in a public auction. Accordingly the issues raised by the petitioners remained unanswered in both the proceedings. In this connection, though a decision of the Hon’ble Supreme Court in the case of Maria Margarida Sequeria Fernandes and others Vrs. Erasmo Jack de Sequeria reported in AIR 2012 Supreme Court 1727 may not have any direct nexus not being a decision on Securitization Act, the principles laid down relating to the

655 U. S. MISHRA -V- CHIEF MANAGER, BANK OF INDIA [L.MOHAPATRA, J] administration of justice has relevance. Accordingly, the Tribunal shall also take note of the said decision while deciding the appeal.

Since the Tribunal is also competent to pass interim orders in terms of the decision in the case of Mardia Chemicals Ltd.(Supra), if an application for any interim order is filed by the petitioners, the same shall also be considered on its own merit.

11. We, therefore set aside the order in Annexure-1 passed by the Tribunal and remit the matter back to the Tribunal to decide the appeal afresh and answer the three issues raised by the petitioners with a reasoned order.The writ application is accordingly disposed of.

Writ petition disposed of.

656

2013 ( I ) ILR - CUT- 656

M. M. DAS, J.

CRLMC. NOS. 1045 & 1647 OF 2008 (Dt.14.11.2012)

BHAKTA HARI MOHANTY & ANR. …….Petitioners

.Vrs. BISHNU CHARAN SWAIN & ANR. …….Opp.Parties

A. PENAL CODE, 1860 – S.499

Defamation – Exception – Accusations and Imputations made in good faith is not defamatory in view of 8th & 9th exceptions to Section 499 I.P.C. – Held, statement made by an advocate in different pleadings in course of a judicial proceeding even if alleged to have been made maliciously, can not be held to be defamatory. In this case accused No.1 being an advocate of accused Nos.2 & 3 filed pleadings with regard to the subject matter of dispute – Complainant-O.P. filed complaint case alleging derogatory words used in the pleadings causing injury to his prestige – Magistrate took cognizance – Order challenged – Held, Magistrate has not applied his mind to the facts of the case and the law applicable there to – Order taking cognizance is quashed. (Para 12,14,17) B. CRIMINAL PROCEDURE CODE, 1973 – S.482 Magistrate took cognizance of the offences U/ss. 500, 203, 205 I.P.C. without applying his judicial mind to the facts of the case and materials before him – No case is made out with regard to the commission of the above offences by the accused persons – If the impugned order stands it will amount to abuse of the process of the Court – Held, impugned order as well as the complaint case are quashed. (Para 17 ) Case laws Referred to:-

1.(1892) 1 QB 43, 451 : (Royal Aquarium etc.-V- Parkinson) 2.(1883)11 QBD 588 : (Munster-V- Lamb) 3.(1855)5 1r CLR 171 : (The Queen-V- Kierman) 4.(1992)ILR 1 Pat 371 : (Maharaj Kumar Jagat Mohan Nath Sah Deo-V- Kalipada Ghosh).

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BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN [M. M. DAS, J.] 5.ILR (1945) All 702 : (Sheodatt Sharma-V- Ram Swarup Sastry) 6.AIR 1998 SC 128 : (M/s. PEPSI Foods Ltd.-V- Special Judicial Magistrate & Ors.)

For Petitioner - M/s. R.K.Mohanty, D.Mohanty, S.K.Sahoo, A.P.Bose, D.P.Pattnaik, D.Varadwaja & P.Jena.

For Opp.Party - M/s. B.Baug, S.Dash, P.C.P.Das.

For Petitioner - M/s. S.K.Sahoo, G.Sahoo, M.K.Mallick & D.Pattnaik

For Opp.Parties-M/s. S.Rath Addl. Govt. Advocate (for O.P.1)

M. M. DAS, J. Both the aforesaid criminal misc. cases are applications under Section 482 Cr.P.C. arising out of one complaint case, being I.C.C. No. 2985 of 2007 pending before the learned S.D.J.M., Bhubaneswar. In both the criminal misc. cases, the petitioners haveprayed for quashing the order dated 27.3.2008 passed in the complaint case taking cognizance of the offences under Sections 500/203/205 I.P.C. and issuing process to the accused persons. The petitioners in both the cases are two of the accused persons in the said complaint case. 2. To appreciate the rival contentions raised by the learned counsel for the respective parties, it is felt appropriate to state the facts giving rise to these cases, in brief, which are as follows:

The dispute started with regard to assertion of title over a piece of land situated in village Damana under Chandrasekharpur P.S.,which stood recorded in the name of Tilotama Samal belonging to the said village, who is dead. A group of persons from village Damana claiming to be the legal heirs of Tilotama Samal have transferred some portions of the property to different persons. Similarly, a group persons from village Dihabalarampur under Patkura P.S. in the district of Kendrapada claiming to be the successor of late Tilottama Samal have also transferred the very same property to different persons. In course of mutation in the names of the alleged successors of late Tilottama Samal and their respective purchasers, when the matter was pending before the Board of Revenue, persons belonging to the village Damana engaged the petitioner, Shri Bhaktahari Mohanty, in CRLMC No. 1045 of 2008 as their Advocate, who argued their cases before the Board of Revenue. Being unsuccessful, the matter was carried to this Court in W.P.(C) No. 14783 of 2005. In the meantime, persons claiming to be the successors of late Tilottama Samal belonging to the 2village Dihabalarampur filed T.S. No. 349 of 2001 before the learned Civil Judge (Junior Division), Bhubaneswar for establishing their right as legal heirs of

658


recorded tenant Tilottama Samal. The writ petition was disposed of by this Court by order dated 27.3.2006 with the observation that the order passed in the mutation case by the Board of Revenue shall be subject to the decision of the civil suit. After disposal of the writ petition, a number of purchasers, who purchased the property from the alleged legal heirs of late Tilottama Samal belonging to the village Damana, got themselves impleaded as parties in the pending title suit. After being impleaded as defendants, they have filed their written statements along with their respective counter claims. Shri Bishnu Charan Swain, Advocate, who is the complainant in I.C.C. No. 2985 of 2007, appeared for the alleged legal heirs of late Tilottama Samal belonging to the village Dihabalarampur and the purchasers from them. Shri Swain holds a Power of Attorney on behalf of the said alleged legal heirs of village Dihabalarampur and the transfers on their behalf were made by Shri Swain as the Power of Attorney Holder. One Sudhansubala Sahoo had purchased a piece of land which belonged to the recorded tenant Tilottama Samal. Purchasers from the alleged legal heirs of late Tilottama Samal belonging to the village Dihabalarampur who purchased the property through the Power of Attorney Holder, Shri Bishnu Charan Swain, disputed the title of the said Sudhansubala Sahoo for which she had filed C.S. No. 29 of 2002 before the learned Civil Judge (Senior Division), First Court, Bhubaneswar for declaration of her title. After the suit proceeded for some time, the plaintiff- 3Sudhansubala Sahoo engaged the petitioner, Shri Bhaktahari Mohanty as her Advocate. An application was filed by the plaintiff in the said suit to implead Shri Bishnu Charan Swain as defendant wherein several instances of transfer made by Shri Swain as the Power of Attorney Holder was cited. The learned Civil Judge (Senior Division), Bhubaneswar allowed the plaintiff’s prayer and impleaded Shri Swain as a defendant in the suit. The original defendant being one Soubhagya Kumar Mishra prayed for injunction in the suit upon which an order of status quo was passed. In the interregnum, the plaintiff coming to know that one M/s. Z. Engineers, a company, was the real contestant, impleaded the said company and its Managing Director as defendant nos. 2 and 3 in the said suit and Shri Bishnu Charan Swain continued to be defendant no. 4. Shri Swain has filed his written statement, who was also appearing as an Advocate for the original defendant no. 1 and also supported the case of defendant nos. 2 and 3. The said Bishnu Charan Swain is a practising Advocate of this Bar and also a partydefendant in the suit filed by Sudhansubala Sahoo i.e. C.S. No. 29 of 2002. I.C.C. No. 2985 of 2007 has been filed by the said Shri Bishnu Charan Swain, Advocate, who in the meantime on an application being filed by him has disengaged himself as an advocate for the original defendant no. 1 in the above suit. Allegation has been made in the complaint petition that the accused persons 2 and 3, who are ladies, namely, Smt. Basanti Manjari

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BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN [M. M. DAS, J.] Satpathy and Smt. Sudhansubala Sahu, have filed false affidavit and the accused no. 1, namely, Shri Bhakta Hari Mohanty has prepared the appeal memo, written statement and 4amendment petition, which were filed in different courts including this Court, defaming the complainant knowing fully well that those are false in content but to vilify the character, honour and prestige of the complainant and lower his prestige in the society. In those pleadings and affidavits, certain derogatory words have been used deliberately knowing the same to be false, thereby causing irreparable loss to the complainant. All the accused persons are guilty of being authors and propagators of those incriminating materials in open courts and before the litigant public at large. The accused no. 1 (Shri Mohanty) who prepared the appeal petition in Misc. Appeal No. 299 of 2001 stated and read over the contents before this Court by which the complainant has been defamed. A copy of the said appeal memo was annexed to the complaint petition. The alleged defamatory statements made by the complainant were quoted in the complaint petition. With regard to the other two accused persons, it has been stated in the complaint petition that they are two ladies, who have filed their affidavits through the accused no. 1-Shri Mohanty as their Advocate and those affidavits were duly placed by the accused no. 1 in open Court with a motive to harass the complainant and strengthen his stand, thereby lowering the prestige of the complainant on such false statements. Allegation was also made that derogatory statement has been made in the amendment petition filed in the civil suit (C.S. No. 29 of 2002) on behalf of the plaintiff by the accused no. 1, who is the Advocate for the plaintiff. The alleged statements made in the misc. appeal as well as the amendment petition and affidavits are as follows:

5“Para-5 - That it further appears from the records that this Bishnu Charan Swain had also obtained a Power of Attorney from Tilottama Samal in 1982 by which time Tilottama was already dead. Obviously a false person was set up as Tilotama Samal and from her as Power of Attorney was obtained………..”

Para-6 ……..More interestingly the death certificate filed to show that

Tilottama died in 19.3.92 dislcoses that Tilottama died at Tala Telengabazar, Cuttack. Tala Telengabazar Cuttack is resident of the Power of Attorney Holder and Advocate Sri Bishnu Charan Swain. As indicated above, Tilottama of Chandrasekharpur, Bhubaneswar died on 5.6.67.”

Para-7 ……..There is no such record in favour of the other Tilottama

Samal of Dihabalarampur………. Tilottama Samal of Chandrasekharpur having died in 1967 could not have executed a Power of Attorney in 1982.”

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Para-8 - It might be that Sri Bishnu Charan Swain misusing his

authority as an Advocate is trying to take advantage of the (illegible). It may also be that there was actually no such person in Dihabalarampur in the name of Tilottama Samal and the name has been invented for oblique ends. There was no reason why Tilottama Samal of Dihabalarampur in the district of Kendrapara shall die at Tala Telengabazar in the town of Cuttack ……...”

3. The alleged statements made in the affidavit filed in W.P.(C) No. 14783 of 2005 are as follows:

“Para-2 – As a matter of fact, it is Sri Bishnu Charan nSwain who is at the root of all the manipulations”……If Sri Bishnu Charan Swain was really the son of Tilottama it is not understood why he did not appear for Tilottama in the settlement camp, before the Settlement Commissioner and before the Mutation Court. It is also worth noting that in none of these cases, the village Dihabalarampur finds mention as the address of Tilottama……..” The rest of the materials in para-4, 5, 6 are also false evidence tendered before the court and derogatory to the prestige of the complainant and intentionally used as imputations and conveyed obliquely or indirectly, by way of question and irony.”

4. The alleged statements made in the amendment petition filed by the plaintiff in C.S. No. 29 of 2002, which are alleged to be defamatory, are as follows:

(b) The defendant no. 2, Tapan Kumar Mohanty, who appears to be the Director of ‘Z’ Engineer and Construction Pvt. Ltd. claims to have purchased the property from one Siprarani Jena who had purchased the same from Bishnu Charan Swain, Power of Attorney Holder of one Tilottama Samal of Diba Balarampur in the District of Kendrapara. It is, however, submitted that Tilottama Samal of Diba Balarampur was not the owner of the suit property, which is situated in village Damana (locally known as Chandrasekharpur) in the District of Khurda. It appears that the above named Bishnu Charan Swain taking advantage of his status as an Advocate, who was appearing the Revenue Courts for the other co-sharer Uchhab Sahoo has manipulated documents for an un-lawful gain. (c) That the plaintiff apprehends that in fact there is no Tilottama Samal in village Diha Balarampur of Kendrapara District who could have died on 19.3.1992 at Tala Telenga Bazar in the Town of Cuttack. At any rate, Tilottama Samal of Damana not having sold the

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BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN [M. M. DAS, J.] suit property to Siprarani Jena, the purchaser from her Tapan Kumar Mohanty can not legitimately defeat the claim of the plaintiff. It now appears that this Bishnu Charan Swain claiming to be the Power of Attorney Holder of so called sons of Tilottama Samal of Diha Balarampur has fought many cases against the purchasers from Tilottama Samal or her heirs of Damana. No where the Record of Right reflecting Tilottama Samal, wife of Dhanurdhar Samal of Damana as owner of the suit property has been challenged as incorrect. Tilottama Samal of Diha Balarampur or her so called sons have never come to village Damana to possess the suit property or to fight cases in the Revenue Courts. It is Sri Bishnu Charan Swain, who has been running the show and the plaintiff apprehends that Sri Swain has been the master of all manipulations and fraud. Many official records also appear to have been manipulated. In view of all this it is necessary that the suit should be decided in presence of Sri Swain. He is, therefore, impleaded as a defendant in this suit. (e) That it is also appears that after procuring the fraudulent deeds of sale Tapan Kumar Mohanty and many other purchasers of the type with the active connivance of Sri Bishnu Charan Swain have created many documents. 7All these being on the basis of the registered documents, their validity will depend upon the sustainability of the original transaction which again depends upon the title of the vendors. Defendant No. 2, therefore, has not moved in clean hands in as much as he is guilty of fraud and manipulation. He, therefore, cannot defeat the title and possession of the plaintiff. It is asserted here again that Tilottama Samal of Damana was the real owner of the property and she has not sold it to Sipra Rani Jena, who is the vendor of defendant no. 2. (f) That one Uchhab Sahoo of Damana is distant agent of Tilottama Samal. He was assisting Tilottama Samal in the matter of mutation and fixation of rent after abolition of the Zamindari. There also Sri Bishnu Charan Swain as Advocate was appearing for Uchhab Charan Sahoo who was claiming to be co-lessee and not for Tilottama Samal. In this process the said Uchhab Sahoo produced a copy of the order passed in M.C. Case No. 75 of 59-60 showing fixation of rent in favour of both Uchhab Charan Sahoo and Tilottama Samal. Now the plaintiff has come to learn that this certified copy is also a fake one and in fact there is no such order. The forged copy was produced only to satisfy the illiterate Tilottama Samal. At any rate, Tilottama Samal of Damana being a tenant under the Zamindar

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] her tenancy is protected u/s 8 of the O.E.A. Act, especially where her name has been mutated in Tahasil Jamabandi and rent has been accepted for her.”

5. The initial deposition given by the complainant before the learned S.D.J.M., Bhubaneswar is as follows:

“Initial statement of Sri Bishnu Charan Swain, aged about 74 yrs. S/o. Lunjanath Swain of village Talatelanga Bazar, P.S. Purighat, Dist – Cuttack on S/A.

------------

I am the complainant of this case. I know all the three accused persons. The alleged incident was a continuous one. The accused persons used to publish affidavits & materials in diff. court of law defaming me. Accused nos. 2 & 3 are the clients of accused no. 1. Accused no. 1 appeared for accused nos. 2 & 3 in different litigations pending in different courts as I appeared against accused nos. 2 & 3. In misc. appeal no. 299/2001 filed before Hon’ble High Court of Orissa, accused no. 1 has attacked my character, without any affidavit of the parties. In para-4, he has given false informations regarding agreement made with “Aradhana Property Development Pvt. 8Ltd.”. Similarly the facts mentioned in para-5, 6, 7 & 8 are all false which are derogatory to my character as a practicing Advocate of the Bar. Accused no. 2 also has filed an affidavit before Board of Revenue in OSS Case No. 1836/03 along with 28 other cases and the said affidavit has been marked as “Annexure 4” before the Hon’ble H.C. in W.P.(C) No. 14783/05. The para-3 of that petition is blatantly false, fabricated and designed which clearly reveals my name. The damaging paras are from para 3 to 7. All the relevant documents have been filed (xerox copies) in this court today. The accused no. 3 filed a petition u/o 6 R 17, before CJ(S.D.), BBSR in Title Suit no. 29/02 using derogatory words against me in para 13 (b) to (e) in proposed amendment. It is stated that for my illegal gain, I have falsely manipulated the documents being the mastermind in connivance with one Tapan Kr. Mohanty. All these are drafted by accused no. 1. I enrolled in 1961. By this publication, I lost my prestige, dignity and unable to maintain prestige against the public. My family members were also shocked and ashamed. I am now working as President of All Orissa Revenue Court Bar.”

6. Basing on the averments made in the complaint petition and the initial deposition as well as the enquiry conducted under Section 202

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BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN [M. M. DAS, J.] Cr.P.C., the learned S.D.J.M., Bhubaneswar has passed the impugned order taking cognizance of the offences against the petitioners in both the Crl. Misc. Cases and the other accused persons and issuing process. 7. Mr. R.K. Mohanty, learned counsel appearing on behalf of the petitioner (Shri Bhakta Hari Mohanty, Advocate) in CRLMC No. 1045 of 2008 contended that from the above scenario, it is apparent that the petitioner (Shri Bhakta Hari Mohanty, Advocate) appeared in several cases on behalf of the plaintiff in C.S. No. 29 of 2002 as a legal practitioner and the statements made in the affidavits and the pleadings of the parties concerned have been supported by verifications/affidavits by the concerned party. Thus, the petitioner 9has not exposed any thing, which can be imputed personally upon him. He further submitted that the alleged statements stated to be defamatory have been made in the pleadings and affidavits, which are part of the judicial records and the same cannot come under the definition of “Defamation”. As the petitioner appeared as an Advocate, no personal liability can be attributed to him from the statements made in the pleadings/affidavits of the parties. He further urged that the complainant except citing different portions of the pleadings and affidavits has made no prima facie allegation with regard to the personal involvement of the petitioner-Shri Bhakta Hari Mohanty, Advocate and such step has been taken by the complainant to dissuade Shri Bhakta Hari Mohanty from appearing in the litigation between the parties as an Advocate and no offence whatsoever is made out in the complaint petition against the petitioner Shri Bhakta Hari Mohanty. 8. Learned counsel for the opp. parties in these Crl. Misc. Cases, on the contrary, contended that after recording the initial statement of the complainant, the learned S.D.J.M., Bhubaneswar conducted an enquiry under Section 202 Cr.P.C. and only thereafter being satisfied about the existence of a prima facie case with regard to commission of the offences under Sections 500/203/205 I.P.C. has taken cognizance of the said offences and directed issuance of process to the accused persons. Learned counsel for the opp. parties also brought to the notice of this Court the averments made in various pleadings and affidavits, which have been stated in the complaint petition, as quoted above, in support of his contentions that the 10petitioner (Shri Bhakta Hari Mohanty) in course of argument of the misc. appeal as well as hearing of the other applications made derogatory and defamatory submission against the complainant. Such defamatory submission has been recorded in paragraph-6 of the judgment passed in Misc. Appeal No. 299 of 2001 which has been reported in 2002 (I) OLR 52, the relevant portion of which is as follows:

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“…….. On the other hand, Shri Mohanty argued with vehemence that Sri Swain, learned counsel for the defendantrespondent nos. 1 and 2 was the brain behind to fabricate the documents with a view to grab the suit property inasmuch as he has executed the sale deeds as power-of-attorney holder of late Tilotama Samal stated to be his natural mother and had obtained the death certificate of Tilotama Samal from Cuttack Municipality after a long lapse of time. It was also alleged that orders of some authorities have been interpolated to show that Tilotama Samal was resident of Diha Balarampur under Patkura police station and not a resident of village Damana or Chandrasekharpur under Chandrasekharpur police station …………”

9. On the other hand, Shri Mohanty argued that Shri Bishnu Charan Swain, the counsel who was appearing for the defendantsrespondents 1 and 2 was the brain behind the fabricated documentswith a view to grab the suit property. Various case laws have been relied upon by Mr. R.K. Mohanty, learned counsel appearing for the petitioner as well as Mr. Baug, learned counsel appearing for the opp. parties. . 10. Before considering the rival contentions of the learned counsel for the respective parties, it would be appropriate to refer to the relevant exceptions to the definition of defamation as given in Section 499 IPC. 8th and 9th exceptions to Section 499 IPC refer to accusation made in good faith against any person, to any of those, who have lawful authority over that person with respect to the subject matter of 11accusation and with respect to imputation on the character of another, provided that the imputation is made in good faith for the protection of interests of the person making it, or of any other person, or for the public good. No action of libel or slander lies whether against the Judges, counsel, witnesses or parties, for words written or spoken in the course of any proceedings, before any court recognized by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal illwill and anger against the person defamed. As such words written or spoken in the course of any proceeding are in good faith. (See Royal Aquarium etc. v. Parkinson (1892) 1 QB 43, 451). 11. The English Law with regard to a criminal action against the Advocate for defamatory words spoken during the course of a judicial proceeding is well settled that no action lies against an Advocate for defamatory words spoken with reference to and in course of an inquiry before a judicial Tribunal, although they are uttered by the Advocate maliciously, and not with the object of supporting the case of his client and

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BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN [M. M. DAS, J.] are uttered without any justification or even excuse and from personal ill-will and anger towards the person defamed, arising out of a previously existing cause and are irrelevant to every issue of fact which is contested before the said judicial Tribunal. This was held in the case of Munster v. Lamb, (1883) 11 QBD 588. Counsel’s words are absolutely privileged, although he may have exceeded his instructions. This was held in the case of The Queen v. Kierman, (1855) 5 lr CLR 171. The Madras High Court and the Bombay High Court are of the view that an Advocate cannot be proceeded against either civilly or criminally for words uttered in his office as Advocate. He has fullest liberty of speech in the course of a trial before a judicial Tribunal so long as his language is justified by his instructions or by the evidence or by the proceedings on the record. Mere fact that his words are defamatory or that they ultimately turn out to be absolutely devoid of all solid foundation would not make him responsible nor render him liable in any civil or criminal proceedings. (See (1886) ILR 10 Mad 28 (FB) and (1899) 2 Bom. LR 3 (FB). The Patna High Court in the case of Maharaj Kumar Jagat Mohan Nath Sah Deo v. Kalipada Ghosh, (1992) ILR 1 Pat 371 has expressed similar view asthe Madras and Bombay High Courts. The Allahabad High Court also was of the same view in Sheodatt Sharma v. Ram Swarup Sastry, ILR (1945) All 702.

12. With regard to pleadings and affidavits also, it has been expressed in several decisions in no uncertain terms, that, no action lies against a man for a statement made in a pleadings or affidavit in course of a judicial proceeding, of defamation, even if such statements are alleged to have been made maliciously and without any reasonable or probable cause. However, where affidavits contain scandalous matter, the court has jurisdiction to direct for expunging the same.

13. Keeping the above in view, this Court, proceeding to examine the relevant portions of the averments made in the appeal memo, affidavit and amendment petition which are alleged in the complaint petition to be defamatory, finds that all the said averments, 13which are alleged to be defamatory by the complainant have been stated in connection with the claim of the party making such averments in the pleadings, more so, when the complainant has been impleaded as a party in the said case, i.e., C.S. No.29 of 2002.

14. Over and above the fact that the said statements have been made in various pleadings filed on behalf of the accused Nos.2 and 3 in different proceedings, who were represented by the accused No.1 as their advocate, a perusal of the said pleadings and statements do not prima facie show that the same is defamatory and appears to have been made in good faith with

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] regard to the subject matter of dispute in the said proceedings. It further appears that except the vague allegation of the complainant and the witnesses that when the accused No.1 was putting forth the case of his client before this Court or the civil court or revenue court in course of argument, uttered such words, by which the prestige of the complainant has been lowered in the estimation of the public, no case of defamation prima facie appears to have been made out against the petitioners in the above two Criminal Misc. Cases, who are the accused persons in the complaint case.

15. With regard to exercise of inherent power of this Court under Section 482 Cr. P.C., it is now well settled that an order taking cognizance of any offence or issuing process, where absolutely no prima facie case is made out against the accused persons, amounts to abuse of the process of law and should be nipped at the bud, as otherwise the same would tantamount to abuse of the process of the court. 16. The Supreme Court, in the case of M/s. PEPSI Foods Limited v. Special Judicial Magistrate and others, AIR 1998 SC 128 has expressed its view that summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion, as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegation in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of the allegation made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing the charge home against the accused. (emphasis supplied) 17. Applying the above principle to the facts of the present case, this Court is of the view that the learned court below, while passing the order in the complaint petition on 27.03.2008 taking cognizance of the offences under Sections 500/203/205 IPC and issuing process to the accused persons (petitioners in the above Criminal Misc. Cases) has not applied his judicial mind to the facts of the case and materials before him. Even if the said materials are considered, this Court finds that there is absolutely no case made out by the complainant with regard to commission of the above offences by the accused persons and if the impugned order dated 27.03.2008 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No.2985 of 152007 is not quashed, the same will amount to abuse of the process of law as well as process of the Court.

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BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN [M. M. DAS, J.] 18. In the result, therefore, the order dated 27.03.2008 passed in the aforesaid complaint case filed by the opposite party, taking cognizance of the offence as stated above and issuing process against the petitioners stands quashed. As a consequence, I.C.C. No.2985 of 2007 also stands quashed. The Criminal Misc. Cases are accordingly allowed Applications allowed.

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2013 ( I ) ILR - CUT- 668

M. M. DAS, J.

R.S.A. NO. 462 OF 2006 (Dt.11.12.2012)

NARAYAN KEDIA ……..Appellant

.Vrs. PRASANTA KUMAR PATTNAIK ……..Respondent

A. TRANSFER OF PROPERTY ACT, 1882 – S.106

Tenancy – Suit for eviction of a tenant by a Co-owner without impeading other co-owners – Maintainability – Held, one of the successors to the property while in jointness can maintain a suit against the tenant for eviction from out of the joint property unless a conflict between the Co-sharers is brought out on evidence.

In this case plaintiff-respondent filed the suit for eviction in the absence of his four sisters who have joint interest in the property – Jurisprudentially it is not correct to say that a co-owner of a property is not its owner – He owns every part of the composite property along with others and it cannot be said that he is only a part owner of the property – The position can be changed only when partition takes place - The defendant has also not established through evidence any conflict between the plaintiff and his sisters – Held, Courts below are correct in holding that the suit for eviction is maintainable at the behest of the sole respondent-Plaintiff. Paras 8,9) (B. TRANSFER OF PROPERTY ACT, 1882 – S.106

Tenancy – Death of Original tenant - Plaintiff filed suit for eviction impleading one of the co-tenants succeeded to the tenancy and served notice on such co-tenant U/s.106 T.P. Act – Validity of the notice – Held, it is construed to be a valid service in respect of all the co-tenants – No requirement to implead all the co-tenants as parties to the suit. (Para 11) C. TRANSFER OF PROPERTY ACT, 1882 – S.106

Tenancy – Succession – Plaintiff-respondent filed suit for eviction in the absence of his co-owner sisters – Whether he is competent to issue notice U/s.106 T.P.Act – Held, the plaintiff-respondent having

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NARAYAN KEDIA -V- P. KUMAR PATTNAIK [M.M. DAS, J.] assumed the character of the sole landlord was competent to issue notice U/s.106 T.P. Act. (Para 9) Case laws Referred to:-

1.AIR 1976 SC 2335 : (Sri Ram Pasricha-V- Jagannath & Ors.) 2.AIR 1989 SC 1470 : (H.C. Pandey-V- G. C. Pal)

3.1995 Supp.(3) SCC 403 : (Karayadathil Kunhimoosa Manjerintha & Anr.-V- Valiaparambath M.T. Kalliani (SMT) & Ors.)

For Appellant - M/s. S.P. Mishra, S. Mishra, S.Dash, S. Nanda, B. Mohanty & B. Prakash. For Respondent - M/s. R.K. Mohanty, D.K. Mohanty, A.P. Bose, S.N. Biswal, S.Mohanty, S.K. Mohanty, P. Jena.

M.M. DAS, J. This second appeal has been preferred against the judgment and decree passed by the learned Addl. Civil Judge (Senior Division), Dhenkanal in C.S. No. 123/106 of 2003 which was confirmed by the learned District Judge, Dhenkanal in his judgment dated 21.11.2006 passed in R.F.A. No. 10 of 2004 with certain modifications in regard to the quantum of damages decreed by the lower appellatecourt. The substantial questions of law on which the second appeal has been admitted are as follows: 1. Whether the suit for eviction is defective and not maintainable in the absence of the four sisters of the respondent as parties when they have got common/joint interest in the property, which is conflicting with that of the respondent? 2. Whether non-impletion of other co-tenants of the appellant renders the decree in-executable and ineffective? 3. Whether the notice under Section 106 of the T.P. Act terminating the tenancy is defective for want of 15 clear days notice ending in a month? 4. Whether the plaintiff alone was competent to issue notice under Section 106 of the T.P. Act when the other co-owners and co-sharers have not given consent either expressly or impliedly and have conflict of interest? 2. In order to decide the above questions, it would be appropriate to state the facts of the case in gist, which are as follows:

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The sole respondent filed a suit for eviction of the appellant from the suit premises and for damages. It was the case of the plaintiff-respondent that the deceased father of the plaintiff-respondent, namely, Ananta, let out the ancestral house consisting of two rooms with a Verandha in its rear side to late Hariram Kedia, father of the present appellant who was the efendant, in the year, 1965. The said house appertained to Holding No. 80 in Ward No. 2 of Dhenkanal Municipality corresponding to present Holding No. 158 in Ward No. 10. 2After death of the original tenant, the appellant-defendant came into possession of the suit house as the sole tenant. The original Landlord i.e. the father of the plaintiff, expired in the year 1982 whereas his mother has expired on 2.12.1997 at Kolkata. The plaintiff in December, 2001 requested the defendant to vacate the suit house within six months as he required the premises for use of his son. Previously an amount of Rs. 1,20,000/- was paid by the defendantappellant to the plaintiff as well as his mother for sale of the suit house in favour of the defendant. The said amount, however, was returned to the defendant on 18.11.2002. On 9.4.2003, the defendant sent an amount of Rs. 2100/- by way of draft along with a registered letter requesting him to accept the same towards rent of 15 months of his 7/15 share. As per the said letter, rest portion of the rent at the rate of Rs. 300/- per month was due to his four sisters. The plaintiff refused to receive the demand draft and also served a pleader’s notice on 8.5.2003 seeking the defendant to vacate the suit premises within 15 days of receipt of the same. As per the said notice, the plaintiff being the only son of his father badly needed the suit premises and failure to vacate the said premises within the stipulated period would make the defendant liable for payment of Rs. 200/- per day towards damages as trespasser. The notice also revealed that the rent of the suit premises was Rs. 300/- per month. It was further alleged by the plaintiff that in spite of the said notice, the appellant-defendant instead of vacating the 3premises replied through his Advocate revealing his intention not to vacate the suit premises as requirement of the plaintiff is not genuine. It was asserted by the plaintiff that the defendant is to be treated as trespasser. 3. The appellant-defendant in his written statement while pleading that the suit in the present form is not maintainable due to want of cause of action and bad for non-joinder of necessary parties and for indefiniteness, inter alia, stated that the plaintiff has suppressed that he has four sisters, namely, Dr. Jayashree Patnaik, Smt. Manjushree Das, Smt. Subhrasi Choudhury and Smt. Suvra Basu. The defendant admitted that his father was a tenant under the father of the present plaintiff in respect of the suit house, but disputed that the suit house consists of two rooms with Verandha to its rear side. He further pleaded that the house in question was taken on lease by his father

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NARAYAN KEDIA -V- P. KUMAR PATTNAIK [M.M. DAS, J.] for commercial purpose situated in Ward No. 11 under Holding No. 158. He did not admit that the plaintiff expressed his intention in the month of December, 2001 that his son would settle in the suit house to look after the ancestral property as pleaded in the plaint. He further contended that the suit house cannot be used for residential purpose. He also pleaded that Rs. 1,20,000/- was paid towards part consideration to the plaintiff and his mother to alienate the suit premises in his favour, who instead of executing the sale deed in his favour returned the advance amount on which he is entitled for 4damages at the rate of 18% per annum. He further contended that the sisters of the plaintiff intimated him in writing for sale of the suit land as per the terms of the agreement dated 27.3.1991 and further intimated him in letters dated 15.12.2002 and 5.1.2003 claiming their shares from out of the house rent. He asserted that sending the amount of Rs. 2100/- towards share of the plaintiff for 15 months’ rent was legal and proper. It was further asserted by him that the plaintiff cannot claim to be the sole owner of the suit property and he is not a trespasser. He denied the claim for damages as made out by the plaintiff. 4. The trial court on the pleadings of the parties framed as many as eight issues and came to the following findings on scrutinizing the evidence on record: 1. The suit property is the ancestral residential housecum-commercial shop house of the plaintiff.

2. The suit is not bad for non-joinder of necessary parties.

3. The plaintiff is entitled to evict the defendant from the suit house.

4. The plaintiff is entitled for damages as claimed for andis entitled to get such damages till the actual date of recovery of possession of the suit house from the defendant.

5. The suit is not bad for indefiniteness of the suit property.

6. There is a cause of action for the plaintiff to institute the suit and the plaintiff is entitled for eviction of the defendant as well as for damages along with cost. 5. With the above findings, the trial court decreed the suit on contest against the defendant with cost directing the defendant to give vacant possession of the suit premises to the plaintiff within one month hence and pay damages at the rate of Rs. 200/- per day from 20.6.2003 till the actual

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] date of recovery failing which the plaintiff is to recover the vacant possession of the suit house along with damages through process of law.

6. The defendant being aggrieved by the judgment of the trial court preferred RFA No. 10 of 2004 before the learned District Judge,Dhenkanal. The learned District Judge, Dhenkanal by his judgment, referring to various case laws confirmed the findings of the trial court, but, however, with regard to the quantum of damages, he held that the trial court has adopted a course of its own in assessing the damages per day which is not permissible under law. The house rent per month being Rs. 300/- in the absence of any cogent evidence relating to the present market rent for such house in that particular area, the damages decreed by the trial court is disproportionate and excessive and as such, he reduced the damages to Rs. 20/- per day. With the above modification with regard to the quantum of damages decreed by the trial court, the lower appellate court confirmed the said decree for 6eviction and damages. Being aggrieved, the appellant-defendant has preferred the present second appeal, which has been admitted on the substantial questions of law as enumerated above.

7. Upon hearing learned counsel for the respective parties, this Court finds that learned counsel for the appellant has not raised any contention with regard to the substantial question of law as to whether the notice under Section 106 of the T.P. Act terminating the tenancy is defective for want of 15 clear days notice ending in a month inasmuch as Section 106 of the T.P. Act has been amended in the meanwhile and in view of the amended provision, the above question no more survives determination in the second appeal.

8. With regard to the first substantial question of law “whether the suit for eviction is defective and not maintainable in the absence of the four sisters of the plaintiff being impleaded as parties?”, it is seen that the said question was raised before the lower appellate court and was negatived. It is not disputed that Ananta Charan Patnaik, father of the appellant-defendant, let out the suit house to the father of the respondent. After his death, his widow (since deceased), the respondent (son) and his four sisters succeeded to the said property. It is a well settled proposition of law that a suit for eviction of a tenant by a co-owner without impleading the other co-owners will not be maintainable, is not an universal rule but it is to be decided in the facts and circumstances of each case and the evidence led by the 7parties as to whether the co-owner filing the suit can be said to have assumed the character of the sole Landlord. In the case of Sri Ram Pasricha –v- Jagannath and others, AIR 1976 SC 2335, the Supreme Court dealing with a case under West Bengal Premises Tenancy Act

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NARAYAN KEDIA -V- P. KUMAR PATTNAIK [M.M. DAS, J.] (12 of 1956) laid down that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the provisions of the aforesaid Act. It is not necessary for him to establish that he is the only owner of the property for the purpose of the said Act so long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants. (Emphasis supplied). At this juncture, it may be stated that as a finding of fact, the courts below found that the appellant after death of the father of the respondent has accepted the respondent and his mother as his landlord and has admitted to be paying rent to either the respondent or his mother when she was alive for the suit premises. 9. It is a well settled proposition of law that one of the successors to the property while in jointness can always maintain a suit against the tenant for eviction from out of the joint property unless 8a conflict between the co-sharers is brought out on evidence. Such a case has not been established by the appellant. This Court, therefore, while answering the above substantial question of law finds that the courts below are right in holding that the suit for eviction is maintainable at the behest of the sole respondent-plaintiff. Further, the substantial question of law “whether the respondent was competent to issue notice under Section 106 of the T.P. Act without consent of the co-owners/co-sharers?”, no more remains to be decided as it being already held above that the suit was maintainable by the sole plaintiff who was one of the co-owners/co-sharers of the suit property. There can be no doubt that he having assumed the character of the sole landlord was ompetent to issue notice under Section 106 of the T.P. Act. 10. The only other substantial question of law remains to be dealt with whether non-impletion of the other co-tenants of the appellant renders the decree in-executable and ineffective. With regard to the above substantial question of law, it would be profitable to refer to the decisions in the case of H.C. Pandey –v- G.C. Pal, AIR 1989 SC 1470 and Karayadathil Kunhimoosa Manjerintha and another –vValiaparambath M.T. Kalliani (SMT) and others, 1995 Supp. (3) SCC 403, which were referred to by the lower appellate court in his judgment. In the case of H.C. Pandey (supra), the Supreme Court dealt with the question as to whether the notice addressed to the respondent 9alone in the said case is a valid notice or not.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] With regard to the same, the Supreme Court in para-4 of the judgment held as follows:

“It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case, it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All 38) (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed.” This view has again reiterated in the case of Karayadathil

kunhimoosa Manjerintha and another –v- Valiaparambath M.T. Kalliani (SMT) and others, 1995 Supp. (3) SCC 403 by the Apex Court. 11. In view of such position of law, it can be safely concluded that as notice to one of the co-tenants who succeeded to the tenancy after death of the original tenant, Section 106 of the Transfer of Property Act is to be construed as a valid notice in respect of all the cotenants. There was no requirement for impleading all the co-tenants as parties to the suit. 12. In view of the above, this Court finds that the second appeal holds no merit. The second appeal is accordingly dismissed, but in the circumstances, without cost.

Appeal dismissed.

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2013 ( I ) ILR - CUT- 675

M. M. DAS, J & C. R. DASH, J.

CRLA NO. 328 OF 2003 (Dt.21.11.2012)

SANKAR LENKA ……..Appellant .Vrs. STATE OF ORISSA ……..Respondent PENAL CODE, 1860 – S.304- PART-II

Appellant found his daughter (aged about 18 years) in naked condition in the arms of the deceased, shouting Marigali, Marigali – Finding a crowbar lying near the spot he mounted assault on the deceased – Such a sight undoubtedly grave and the appellant assaulted the deceased due to sudden provocation – Held, this Case squarely falls under Exception-1 to Section 300 I.P.C. – Conviction U/s.302 I.P.C. is modified to one U/s.304-Part-II I.P.C. (Paras 9, 10) Case law Referred to:-

AIR 1977 SC 1801 : (Hansa Singh -V- State of Punjab).

For Appellant - M/s. U. C. Mishra, A. Mishra, B.P. Chhualsingh D.R.Sendha & S.Panda. For Respondent - Addl. Govt. Advocate.

C.R. DASH, J. This appeal is directed against the judgment and order of sentence dated 26.04.2002 passed by learned Sessions Judge, Dhenkanal in S.T. No.24 of 2001, convicting the appellant under Section 302, I.P.C. and sentencing him to suffer imprisonment for life. 2. Sullav Naik is the deceased. He was done to death in the courtyard of co-accused Sambhua Pradhan (since acquitted). As found from the evidence on record, the deceased had come to the courtyard of aforesaid co-accused Sambhua Pradhan in the early morning when there was still darkness. Usha Naik (P.W.1), who happens to be the widow of the deceased, lodged the F.I.R. On the basis of the F.I.R. so lodged, investigation was taken up by P.W.8 Sarat Kumar Rout, A.S.I. of Police attached to Rasol P.S. From him, P.W.7 Pradeep Kumar Mishra, C.I. of Police, Sadar Circle, Dhenkanal took charge of the investigation and tested some witnesses. Ultimately charge-sheet was filed by P.W.5 Mandardhar Sahu, C.I. of Police, Sadar Circle, Dhenkanal, who took charge of the

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] investigation from P.W.7 on his transfer. On completion of investigation, altogether 13 accused persons were sent up for trial, out of whom 12 were acquitted and the present appellant Sankar Lenka was convicted for offence under Section 302, I.P.C.

3. Prosecution has examined eight witnesses to prove the charge. P.Ws.1 and 2, wife and daughter respectively of the deceased are the eye-witnesses to the occurrence. P.W.3, who is a eye-witness, has turned hostile, P.W.4, who is a seizure witness, has also turned hostile, P.W.6 is the Medical Officer, who conducted autopsy over the dead body of the deceased. P.Ws.5, 7 and 8, as introduced earlier, are the Investigating Officers.

Defence plea of the appellant is to the effect that hearing the shout of his daughter, he woke up and saw the deceased embracing his (appellant’s) daughter, who had no clothes on her body and, thus, being enraged, he gave four to five blows by a crowbar and while the deceased fell down, he gave two to four further blows, for which the deceased succumbed to the injuries.

4. Learned Trial Court, taking into consideration the discrepancies in the evidence of P.Ws.1 and 2 and especially the medical evidence relating to the injuries sustained by the deceased, disbelieved P.Ws.1 and 2 so far as participation of other co-accused persons in commission of the alleged offence is concerned, and acquitted them of the charge. So far as the present appellant is concerned, learned Trial Court found as follows :-

“12. …….But, however, the person being provoked suddenly should not have assaulted while a man after sustaining injuries fell down powerless. The very intention of assaulting after the deceased fell down sustaining injuries indicates that the accused Sankar had exceeded the right of private defence having an intention to take away the life of the deceased. The manner in which the injuries have been caused on the person of the deceased is so brutal that all will lead to a conclusion that the accused Sankar had the intention to kill the deceased even if the deceased became powerless after sustaining the injuries.”

Holding thus, learned Trial Court found the appellant guilty under Section 302, I.P.C. and sentenced him to suffer imprisonment for life. 5. Learned counsel for the appellant does not question the homicidal death of the deceased and evidence of P.Ws.1 and 2 so far as implication of

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SANKAR LENKA -V- STATE OF ORISSA [C.R. DASH, J.] the appellant is concerned. It is submitted by learned counsel for the appellant that the appellant having remained in custody for about 12 years by now, he intends to confine his argument to conviction of the appellant under Section 302, I.P.C. and the sentence recorded thereunder. He further submits that the offence committed by the appellant falls under Exception – 1 to Section 300, I.P.C. and whatever the appellant had done was done under grave and sudden provocation seeing his daughter naked in the arms of the deceased. Such a fact being the specific plea of the appellant, the appellant should have been convicted under Section 304, Part-II, I.P.C. and not under Section 302, I.P.C.

Learned Additional Government Advocate on the other hand supports the impugned judgment.

6. It is found from the statement of the appellant recorded under Section 313, Cr.P.C. that the appellant has clearly stated that at the relevant time he was sleeping in the ‘Pinda’ of his house. He woke up hearing the shout of her daughter as “MARIGALI…MARIGALI” and he saw that the deceased had embraced his daughter and his daughter was stripped naked. He found a crowbar lying near the spot, and catching hold of the crowbar he gave four / five blows to the deceased. After the deceased fell down, he gave two / four blows more to the deceased and the deceased died at the spot. In the morning, wife of the deceased came and saw her husband lying dead. Such a plea by the appellant cannot be dismissed as after-thought in view of the evidence of P.W.1 in paragraph-11 of her cross-examination and P.W.2 in paragraph-4 of her cross-examination. Both P.Ws.1 and 2 have testified that the appellant had stated such fact during his examination by the police. The I.O. has also admitted to such statement of the witnesses and the appellant before him.

7. The test of “grave and sudden provocation” is whether a reasonable man, belonging to the same class of the society as the accused, placed in the situation in which the accused was placed, would be so provoked as to loss his self-control. Before Exception – 1 to Section 300, I.P.C. can be invoked, the accused must establish the following circumstances :-

(i) There was a provocation, which was both grave and sudden;

(ii) Such provocation had deprived the accused of his power of self- control; and

(iii) While the accused so deprived of his power of self-control, he had caused death of the victim.

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In view of the ingredients of Exception – 1 to Section 300, I.P.C., the fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time or otherwise, giving room and scope for premeditation and calculation. 8. Learned counsel for the appellant relies on the case of Hansa Singh vs. State of Punjab, A.I.R. 1977 SC 1801. In that case, the accused appellant on seeing the deceased committing the act of sodomy on his son, lost his power of self-control and it was held to be undoubtedly a grave and sudden provocation for the accused appellant, which led him to commit the murder of assault on the deceased. Hon’ble Supreme Court convicted the appellant under Section 304, Part-II, I.P.C. by reversing the judgment of the Punjab and Haryana High Court. 9. In the present case, the daughter of the appellant is found to be aged about 18 years old. She was seen in naked condition in the arms of the deceased by the appellant, who woke up by hearing the alarming shout of “MARIGALI…MARIGALI” by his daughter. Finding a crowbar lying near the spot, the appellant immediately mounted assault on being influenced by the grave and sudden provocation on seeing his daughter in naked condition in the arms of the deceased. Such a sight itself is undoubtedly grave and sudden provocation for the appellant to commit murderous assault on the deceased. On such a situation, it cannot be expected for him to gauge and scale as to whether the deceased had fallen down or his daughter was free of danger. 10. Regard being had to all the aforesaid facts and circumstances, we feel inclined to modify the conviction of the appellant to one under Section 304, Part-II, I.P.C. instead of Section 302, I.P.C., as the case squarely falls under Exception – 1 to Section 300, I.P.C. The appellant is accordingly sentenced to suffer rigorous imprisonment for seven years for the offence under Section 304, Part-II, I.P.C. It is stated at the Bar that the appellant is there in custody for about twelve years. If that be so, the appellant be released from custody forthwith, as he has already served the sentence imposed on him under Section 304, Part-II, I.P.C., if his detention is not required in any other case.The Criminal Appeal is accordingly allowed in part. Appeal allowed in part.

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2013 ( I ) ILR - CUT- 679

INDRAJIT MAHANTY, J & RAGHUBIR DASH, J.

W.P.(C) NO. 1417 OF 2013 (Dt.20.02.2013)

SIBA PRASAD NAYAK ……..Petitioner

.Vrs. THE DIRECTOR, HEALTH SERVICE & ORS. ……..Opp.Parties

CONSTITUTION OF INDIA, 1950 – ART.21

Right to life – Petitioner’s Son suffered from a debilitating disease – Duty of the Government to provide necessary medical assistance to its citizens and employees.

In this case petitioner’s Son suffered from the disease “Muscular Dystrophy” and his application for referral certificate was rejected on the ground that the disease is not curable and “Stem-cell- therapy” or muscular disease is still a research initiative not ethically approved method for treatment and experimental or researched initiative does not fall within the meaning of the term “treatment” and the institution to which the reference has been sought was not duly approved by the State Government.

Treatment cannot be deemed to apply only to cure but also it includes all steps taken in order to cure an injury or disease and would include all steps which would “arrest the disease from further deterioration” – Held, direction issued to O.P.1 to 5 to issue referral certificate to the son of the petitioner within three days and O.P.6 is directed to sanction maximum limit of medical advance in favour of the petitioner for the treatment of his son at Chaitanya Hospital, Chinchwad, Pune (Maharashtra) which is an approved referral hospital permitted by the Government of India. (Paras 8 to 17)


1.1977 Cri. L.J. 312 : (Himansu Sekhar Nandy-V- Magistrate & Anr.) 2.AIR 1996 SC 2426 : (Paschim Banga Khet Mazdoor Samity & Ors.-V- State of West Bengal & Anr.)

For Petitioner - M/s. B.K.Routray, S.K. Nayak-2. K. Jena & S.S. Nayak. For Opp.Parties - Addl. Govt. Advocate.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] I. MAHANTY, J. The petitioner-Sri Siba Prasad Nayak who is a Government employee working as S.A. in the office of the D.P.S. & P, Madhupatana, Cuttack has filed the present writ application seeking direction to the opposite parties and in particular, Opposite Party No.1 (The Director, Health Service and Chairman of Technical Committee of Muscular Dystrophy Patients in the State of Odisha) to issue a “referral certificate” for his son, namely, Sarada Prasad Nayak to go for treatment of “Muscular Dystrophy” disease (Stem-cell therapy) at Chaitanya Hospital, Chinchwad, Pune (Maharashtra) or the State Muscular Dystrophy disease at Madurai Tamilnadu or any such place where immediate treatment may be available for the patient; as well as to opposite party no.6 to sanction the necessary medical advance to the petitioner for treatment of his ailing son immediately after receiving the referral certificate. 2. It is averred by the petitioner that his son, namely, Sarada Prasad Nayak is a good student and after completing +2 Science he is now studying in B.Tech Course. While he was continuing his study, suddenly he felt pain on his two legs and was unable to move. He, thereafter, went to the S.C.B. Medical College & Hospital, Cuttack for treatment and thereafter, he was referred to various doctors of various departments like Medicine, Neurology and Orthopedic. While the doctors at the S.C.B. Medical College and Hospital at Cuttack were unable to diagnose the disease, they referred the petitioner’s son to the National Institute of Mental Health and Neurosciences (NIMHANS), Bangalore for better evaluation. The petitioner’s son thereafter was taken for evaluation of the disease to Bangalore and the doctors at NIMHANS evaluated the petitioner’s ailing son to be suffering from the disease known as ‘Muscular Dystrophy’ under Annexure-2. Thereafter, the petitioner sent the blood samples of the petitioner’s son to the JAIN Foundation, USA for better analysis and the said JAIN Foundation submitted their opinion confirming the fact that the petitioner’s son is suffering from the disease scientifically known as “Dysferlinopathy” and was further informed that the research for the disease is going on and the Foundation was in the process of research to try and invent medicine for the cure of such disease under Annexure-3. 3. The petitioner thereafter made representation to the Hon’ble Prime Minister of India for encouraging research in order to enhance the possible discovery of medicine for treatment of ‘Muscular Dystrophy’ disease and similar representations also addressed to the Government of India in the Ministry of Heath and Family Welfare as well as to the Ministry of Science and Technology and the Director General, Indian Council of Medical Research.

681

S. P. NAYAK-V- THE DIRECTOR, HEALTH SERVICE [I. MAHANTY, J.]

The Director General, ICMR responded the petitioner’s communication vide letter dated 22.5.2012 advising the petitioner to contact Dr.B.R.Laxmi, Coimbatore and Dr.S.Khadilkar of Mumbai. Accordingly, the petitioner contacted the doctors named above and in turn, they advised the petitioner to contact certain research centers where treatment for Muscular Dystrophy disease was being researched. 4. On 17.10.2012 while the petitioner was desperately researching on the internet, he learnt that there are two Foundations i.e. Muscular Dystrophy Foundation of India at Madurai, Tamilnadu and Chaitanya Stem-Cell Centre, Pune in India where the patients of “Muscular Dystrophy” are being benefited by way of “Stem-Cell Therapy”, though such treatment was experimental and by way of research. Accordingly, the petitioner wrote to such organizations seeking their assistance for treating his son and sought for information regarding approximate charge for such treatment. The response from the aforesaid centers as well as the expenses involved was intimated to the petitioner through e-mail under Annexures-6 and 7 respectively. Since the amount required for treatment was beyond the financial means of the petitioner, he sought for necessary assistance from the State Government by addressing a representation to the Commissioner-cum-Secretary, Heath and Family Welfare Department praying for sanction of Rs.4,00,000/- for treatment of his son. 5. It is further averred that upon receipt of the representation of the petitioner, the Deputy Secretary to Government issued a letter to the Director, printing Stationary & Publication Odisha, Cuttack for sanction of medical advance in favour of the petitioner for treatment of his son where the petitioner was working. The Director called upon the petitioner to provide necessary supporting documents and also sought for permission of the D.M.E.T., Odisha for sanction of medical advance. 6. Thereafter, the petitioner went to the S.C.B. Medical College and Hospital, Cuttack and approached the Opposite Party No.4 (Professor and H.O.D., Neurology) for issuing the necessary “referral certificate” for which purpose, the petitioner’s son had to be admitted once again in S.C.B. Medical College on 27.12.2012 and discharged on 2.1.2013. Thereafter a Committee was formed and a meeting was convened for such a committee on 7.1.2013, took a decision on the issue of referral. The said Committee which consisted of the H.O.Ds of Medicine, Neurology and Orthopedics

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] ultimately turned down the request for referral on the basis of the following conclusions :

The Committee discussed about the treatment of the Muscular Dystrophy as the Stem-Cell therapy for muscular dystrophy is still a research initiative not ethically approved method for treatment and therefore, cannot be approved.

The Committee after threadbare discussion was of the opinion that we cannot refer a human being for an experimental studies.”

7. In the light of the facts as noted herein above, the petitioner was left no alternative other than to approach this Court by way of filing the writ application seeking the relief as noted herein above. This Court considering the emergent need for treatment of the petitioner’s son directed issue of notice to the State vide order dated 31.1.2013 and listing of the matter on 7.2.2013. Thereafter, the matter was adjourned from time to time at the request of the State and on 8.2.2013, written instructions were received by the office of the Advocate General for producing the same before this Court.

8. The letter of the Superintendent, S.C.B. Medical College & Hospital, Cuttack No.3036 dated 5.2.2013 addressed to the Advocate General, Odisha Cuttack along with the enclosures for producing the same before this Court. The relevant portion of the said communication is extracted herein below :

“xx xx With reference to above, I am to say that a referral committee was formed on 07.01.2013 consisting of Prof. & HODs of Medicine, Neurology and Orthopaedics under the chairmanship of Superintendent, SCB Medical College & Hospital, Cuttack wherein a decision was taken that since the disease Muscular Dystrophy is not curable and Stem Cell therapy for Muscular Dystrophy is still a research initiative not ethically approved method for treatment. Further, the committee after due discussion was of the opinion that the patient cannot be referred being a human being for an experimental study. Therefore, the referral could not be approved xx xx”.

While directions were issued to the State counsel to serve copies of the said document on the petitioner’s counsel, the matter was next posted to 11.2.2013. On the said date the members of the Committee who were the H.O.Ds of Medicine, Neurology and Orthopedics appeared before the court to assist the Court in understanding the nature of the disease and the grounds for refusal of referral. In course of such submission, the Members

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S. P. NAYAK-V- THE DIRECTOR, HEALTH SERVICE [I. MAHANTY, J.] of the Committee who were confronted by the Court to the letter of the Superintendent dated 5.2.2013, while reiterating the contents of the said communication, it was stated that certain guidelines for assistance under the “Odisha State Treatment Fund” has been formulated by the State and placing reliance on the same it was submitted that there are mainly four grounds on which the Committee has rejected the application of the petitioner, is as follows: i) The disease of Muscular Dystrophy is not curable.

ii) Stem-Cell therapy for Muscular disease is still a research initiative not ethically approved method for treatment.

iii) Experimental or researched initiative does not fall within the meaning of the term “treatment”.

iv) The institution to which the reference has been sought was not duly approved by the State Government.

9. In course of hearing of the case with regard to the grounds raised hereinabove, the Court sought for assistance of Shri S.D.Das, learned Asst. Solicitor General, Shri B.K.Mohanty, learned Sr. Counsel, Shri Biswajit Mohanty, learned counsel as well as Shri G.Mishra, learned counsel to assist the Court.

10. In the light of the facts and contentions as noted hereinabove, now it becomes necessary to deal with Issue No.(iv) i.e., the issue as to whether the institute to which the petitioner has sought reference is recognized and whether the petitioner’s son could be referred to such an institute? In this respect, Shri Routray, learned counsel for the petitioner drew our attention to the Government of India, Ministry of Health and Family Welfare Office Memorandum dated 7th November, 2012, in terms of which, Chaitanya Hospital, Chinchwad, Pune (Maharashtra) has been duly approved by the Central Government for treatment of their employees under CS(MA) Rules, 1994. Shri S.D.Das, learned Asst. Solicitor General duly confirmed the aforesaid fact by submitting a copy of the said Notification during hearing of the matter. Mr. Routray, learned counsel for the petitioner stated that the Government of Odisha in the Health and Family Welfare Department vide Resolution dated 17th May, 2002, published in the Orissa Gazette dated July, 12 2002 on the subject of “Concession regarding treatment of State Government servants and their families and other entitled persons”, outside the State and approved Private referral hospitals within the State provided a copy of the said Gazette and in particular drew our attention to the last paragraph of the said notification which reads as thus:

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“The practice of declaring certain hospitals as “approved referral hospitals” shall be discontinued. A Government employee, or his/her family member, or other entitled person, if referred for a particular kind of treatment by any of the Referral Medical Committees consisting of Senior Professors in each of the three Medical Colleges in the State, may undergo that treatment at any hospital in the country which is either a State or a Central Government hospital, or a private hospital recognized as a referral hospital by the Government of India or the concerned State Government where the hospital is located. Reimbursement of cost of treatment will be limited to the celling fixed for that kind of treatment.”

11. Placing reliance on the above, it is submitted by the learned counsel for the petitioner that amongst the various institutions to which the petitioner sought referral, the Chaitanya Hospital, Chinchwad, Pune, having been recognized by the Central Government has a referral hospital by the Government of India, there exists no legal bar to deny the petitioner’s son referral to the said hospital. In course of argument, both learned Addl. Government Advocate for the State as well as the learned Asst. Solicitor General confirmed to the fact that Chaitanya Hospital at Chinchwad, Pune was approved by the Central Government as referral hospital and, therefore, there exists no legal bar for such a referral. Therefore, the Issue No.4 as noted hereinabove is answered accordingly.

Insofar as Issue No.3 is concerned, Mr.Biswajit Mohanty, learned amicus curiae brought to the Court’s notice the judgment rendered by this Court in the case of Himansu Sekhar Nandy v. Magistrate and another, 1977 CriLJ 312. In the said case Hon’ble Justice S.K.Ray (the then Acting Chief Justice) dealt with the word ‘treatment’ as available in the Jail Manual and applicable to a detenues and came to hold at Parasgraph-6 thereof which is as follows:

“6. xx xx The word ‘treatment’ must be understood in its fullest [amplitude and not in the narrow sense of palliative treatment – treatment; required to deal with casual illnesses. ‘Treatment’ in the Chambers’s Twentieth Century Dictionary means, way of applying remedies. In Webster’s Dictionary ‘treatment’ means manner of applying remedies to cure; mode or course pursued for remedial ends; as, the treatment of a disease; the treatment of a patient. In Corpus Juris Secundum, Volume 87 at page 949, the word ‘treatment’ is said to be also employed to indicate all the steps taken in order to effect a cure of an injury or disease. Cure as the end would include arresting the disease from further worsening as a step

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S. P. NAYAK-V- THE DIRECTOR, HEALTH SERVICE [I. MAHANTY, J.] towards that end. ‘Treatment’ would include taking such steps as would not only tend to effect a cure of a disease but also steps which would prevent further deterioration of the disease.”

12. This Court while being in respectful agreement with the views expressed in the aforesaid judgment, is also of the clear view that ‘treatment’ cannot be deemed to apply only to cure but also includes within its widest meaning, all steps taken in order to cure an injury or disease and would include all steps which would “arrest the disease from further deterioration”. Therefore, the word ‘treatment’ would not only include within its ambit the “cure of the disease” but also would include the steps that could be taken to prevent further deterioration of the disease. We are also of the considered views that the word ‘treatment’ brings within the ambit and scope all steps that may have to be taken, even in a case of an incurable disease taken to ameliorate pain or suffering even in a case of patient who has no known medical chance of survival. Easing of pain of a patient at death door, obviously should also be treated within the scope of ambit of “treatment”. We are constrained to note that the attempt at giving a restrictive meaning to the term “treatment” to only such disease for which there are already known/accepted measures of treatment, would in our considered view be wholly frustrative of legislative intent behind framing the guidelines and policy resolution of the State and also be violative of Article 21 of the Constitution of India. 13. Hon’ble Supreme Court in the case of Paschim Banga Khet Mazdoor Samity and others v. State of West Bengal and another, AIR 1996 SC 2426 dealt with the scope of Article 21 of the Constitution of India and came to hold that, the failure on the part of Government to provide medical treatment to a person in need of such treatment would result in violation of his “right to life” guaranteed under Article 21. While there cannot be two opinions on this issue yet the Court cannot loose sight of the fact that no State or any county can have unlimited resources to spend on any of its project, which includes providing medical assistance to the citizens including its employees. While such provision of facilities cannot be unlimited, finance has to be given to the extent permitted. In the present case, the guidelines for assistance provided under the “Odisha State Treatment Fund” provides in paragraph-2.1 that “Financial aid so granted shall be one-time grant only with an upper limit of Rs.3.00 lakhs for treatment within or outside the State”, whereas, such a limit is purely within the competence of the State and may be wholly justified.

686


This Court requests the State to render the maximum help possible in order to try and assist the petitioner’s son in fight such a debilitating disease. 14. The second issue has been substantially dealt with in Issue No.(iii) but, we may add that, merely because at the present juncture in the history of development of medicine, no medically accepted treatment for “Muscular Dystrophy” exists and does not mean that no treatment can be given to the petitioner’s ailing son, when both the petitioner and his son are willing to give their consent for such experimental treatment. Of course, for the purpose of experimental treatment, the consent of the petitioner as well as his son may be mandatory and also the institute which conducts Stem-Cell research may obviously require the necessary clearances of the appropriate authority. But, we find no justifiable ground to deny referring the son of the petitioner to Chaitanya Hospital, Chinchwad, Pune (Maharashtra) (which is a approved referral hospital), specifically permitted by the Government of India, Ministry of Health & Family Welfare. We are of the further view that though it is claimed that the research and/or experiment cannot be permitted on a patient being a human being, is clearly beyond the scope and ambit of the jurisdiction of the referral committee. Such ethical issues and/or permissions for experimental research are not matters within the scope and ambit of the referral committee constituted by the State to refer the petitioner’s son who is suffering from Muscular Dystrophy for treatment at the Chaitanya Hospital, Chinchwad, Pune (Maharashtra). Once the petitioner and his son go there, their consent will have to be obtained and the necessary permissions from the appropriate authorities, including the ICMR and any other authorities may have to be obtained. But, such issues we repeat cannot be permitted to come in the way of reffering the petitioner’s son to Chaitanya Hospital for treatment. 15. Insofar as Issue No.(i) is concerned, the fact that as on date, no known medicine or cure for “Muscular Dystrophy” is presently available. The world of ‘science’ and ‘research’ therein is in a continuous process of evaluation and what is not known today, may be known tomorrow only through research. Insofar as incurable diseases are concerned, we are of the considered view that even if certain diseases are medically termed as “incurable”, if any facility exists where such patient’s pain and suffering is of amelioration or reduced, such an act or treatment may not be a “cure” in the classical sense but, even then has to be treated as part of “treatment”. From the various reports of research on “Muscular Dystrophy” is concerned, as annexed under Annexure-6, it is stated by the research foundation that “while a person cannot be cured and while in research, the ambit of such

687

S. P. NAYAK-V- THE DIRECTOR, HEALTH SERVICE [I. MAHANTY, J.] research and trials would reduce the speed of deterioration and maintain status quo/prolong the livability of a patient. The effects of Stemcell Therapy would be much better with young words with walking abilities and who does not have other problems”. 16. We are of the considered view that if such Stem-Cell Therapy is made available to the petitioner’s son for such disease and if through such research or trial on the petitioner’s son such treatment reduces the speed of deterioration and maintain the status-quo/prolong the livability of a patient, we believe that the same itself would be a great advancement and would most definitely come within the scope and ambit of the term “treatment”. 17. In the light of the findings arrived herein, we are of the considered view that the present writ application ought to be allowed with the following directions: (i) Opposite Parties 1 to 5 are directed to issue a referral certificate to

the petitioner’s ailing son, namely, Sarada Prasad Nayak for going to the Chaitanya Hospital, Chinchwad, Pune (Maharashtra) for immediate treatment within three days from today.

(ii) Opposite Party No.6 (The Director, Printing Stationary & Publication,

Odisha) is directed to sanction the maximum limit of medical advance available under the guidelines published in the Orissa Gazette in favour of the petitioner to enable him to proceed to Chaitanya Hospital, Chinchwad, Pune (Maharashtra) for treatment within a further period of one week thereafter.

18. In terms of the aforesaid observations and directions, the writ application is allowed. This Court also records its appreciation for the invaluable assistance given by the learned counsel appeared as amicus who are named hereinabove. Free copy of this judgment be handed over to the learned Addl. Government Advocate for the State as well as to the petitioner for necessary communication and compliance.


688

2013 ( I ) ILR - CUT- 688

SANJU PANDA, J.

W.P.(C) NO. 16218 OF 2012 (Dt.30.11.2012)

RAJASHREE NAYAK ……..Petitioner

.Vrs.

STATE OF ORISSA & ORS. ……..Opp.Parties

EDUCATION – Admission into MBBS Course 2012 – Held, prioritization procedure adopted by O.P.2 & 3 for admission, ignoring the merit list is illegal and violative of the rules of merit. In this Case out of total seats of 450 in Government Colleges 3% reserved for Ex-service men category (in short ESM Category ) which comes to 14 – Petitioner secured 15 rank under ESM category – Candidates placed at Sl.Nos.1,2 & 3 took admission under General category and Sl.No.14 was found unsuitable to take admission so petitioners’ position comes to Sl.No.11 in ESM Category – When Opp.Parties allowed candidates to take admission whose positions were below the rank of the petitioner on the basis of prioritization procedure ignoring the case of the petitioner, he filed this writ petition - Held, Direction issued to Op.2 & 3 to give admission to the petitioner in MBBS course as per her rank under ESM quota. (Para 11,12) Case laws Referred to:-

1.2012 (8) SCC 71 : (Rajan Purohit -V- Rajasthan University of Health Sciences) 2.(2002)7 SCC 258 : (Medical Council of India -V- Madhu Singh & Ors.) 3.(2012)7 SCC 389 : (Asha-V- Pt. B.D.Sharma University of Health Sciences & Ors.)

For Petitioners - M/s. D.Routray, P.K.Sahoo, S.Das, S. Jena, S.K.Samal, S.P.Nath & S.Rout. For Opp.Parties - Mr. R.C.Mohanty, K.C. Swain & S.Mohanty, (for O.P.No.4) Mr. S.Palit, A.K.Mahana, A. Mishra, A.Kegerwala, & Miss R. Tripathy (for O.P.No.2).

SANJU PANDA,J. In this writ petition, the petitioner challenges the action of the Chairman, Joint Entrance Examination, Odisha, 2012-opposite

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RAJASHREE NAYAK -V- STATE [SANJU PANDA,J.] party no.2, in not giving her admission in MBBS course in Government Medical Colleges under Ex-Servicemen category (in short ESM category).

2. The facts leading to the present writ petition are as follows:

The petitioner, as per the Information Brochure for admission into MBBS Course, 2012, applied under the heading of seats meant for Ex-Servicemen category. In three Government Medical Colleges of the State, 3% of total seats has been ear-marked and reserved for the aforesaid category. There are total 450 seats available in the Government Medical Colleges, out of that only 14 seats meant under the said reservation category. The petitioner filed her application along with the certificate issued by Rajya Sainik Board, Odisha in the prescribed format, appeared the examination and also secured rank in the merit list. As per the merit list, the petitioner secured 897 rank under General Category and 15 under ESM category. The petitioner, on verification of the rank list found that the candidate, whose name was found place at Sl.No.14 of ESM category was not eligible to take admission, since his father is in service and erroneously his name was reflected in the merit list under Ex-Servicemen category. One Rakesh Mohanty, whose position was at Sl.1 under Ex-Servicemen category, preferred to join in the General Category.Similarly, one Lipsa Tripathy and Ajaya Moharana, whose names were found place at Sl.Nos.2 and 3 respectively have also taken admission in General category. Accordingly, the petitioner position came to Sl.No.11 of the Ex-Servicemen category. Therefore, the opposite parties should have allowed the petitioner to take admission in the MBBS Course as per her rank in the merit list. However, the opposite parties have permitted the candidates, whose positions were below the petitioner to take admission under the aforesaid category ignoring the rank of the petitioner. Being aggrieved by such elimination to take admission in MBBS Course, the petitioner made a representation to the concerned authorities ventilating her grievance and since no action was taken thereon, she has approached this Court in the present writ petition.

3. It is submitted by the learned counsel for the petitioner that the action

of the opposite parties is erroneous, illegal for not allowing her to take admission in MBBS Course under Ex-Servicemen Category. It was learnt from reliable source that the opposite parties have given priority to others while considering allotment of seats under the aforesaid reserved category, though the allotment should have been made on the basis of merit list only. Therefore, the action of the opposite parties is not legal and liable to be interfered with.

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4. A counter affidavit has been filed by the Medical Council of India-opposite party no.4 taking a stand that as per the Regulation formed on Graduate Medical Education, 1997, the methodology of selection of candidates and determination of merit for admission to MBBS Course amongst the candidates, who are otherwise eligible for admission to the course, is prescribed under Regulation-5. Regulation-5 is quoted hereunder as follows:

“5.Selection to Students:

(5) Procedure for selection to MBBS course shall be as follows:

(i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to MBBS course must have passed in the subjects of physics, Chemistry, Biology/Bio-technology and English individually and must have obtained a minimum of 50% marks taken together in physics, chemistry and biology at the qualifying examination as mentioned in clause (2) of regulation 4. In respect of candidates belonging to scheduled castes, scheduled tribes or other backward classes, the marks obtained in physics, chemistry and biology/Bio-technology taken together in qualifying examination be 40% instead of 50% as above.

(ii) In case of admission on the basis of competitive entrance

examination under clause (2) and (4) of this regulation, a candidate must have passed in the subjects of physics, chemistry, biology/Bio-technology and English individually and must have obtained a minimum of 50% marks taken together in physics, chemistry and biology/Bio-technology at the qualifying examination as mentioned in clause (2) of regulation 4 and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less than 50% marks in physics, chemistry and biology/Bio-technology taken together in the competitive examination. In respect of candidates belonging to schedule castes, scheduled tribes or other backwards classes the marks obtained in physics, chemistry and biology/Bio-technology taken together in qualification examination and competitive entrance examination be 40% instead of 50% as stated above.

Provided that a candidate who has appeared in the qualifying

examination the result of which has not been declared he may be provisionally permitted to take up the competitive entrance

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RAJASHREE NAYAK -V- STATE [SANJU PANDA,J.]

examination and in case of selection for admission to the MBBS course, he shall not be admitted to that course until he fulfils the eligibility criteria under regulation 4.

5. In view of the aforesaid regulation, the merit of a candidate shall not be ignored in respective category and admission shall be made as per the position in the merit list in the common entrance test conducted by the authority. Further also, it was stated that the apex court in the case of Rajan Purohit v. Rajasthan University of Health Sciences, 2012 (8) SCC 71 held that admission in violation of Regulation of Medical Council of India is not permissible. The opposite party no.4 has also taken a stand that the apex court has also fixed the time schedule for admission to the respective Medical Courses. In the case of Medical Council of India v. Madhu Singh & Others, (2002) 7 SCC 258, the time schedule has been fixed to 30th September as the last date for admission to MBBS/BDS courses. Therefore, the admission in all the Medical courses in the colleges/institutions of the Country are to be made within the said stipulated time within the annual intake capacity sanctioned for each Medical Colleges and no direction is permissible to be passed for admission of the student after the last date of admission for MBBS courses. So far as intake sanctioned capacity of the College is concerned, the same is contrary to Section 10 of the Act and Regulation as per the Indian Medical Council Act, 1956. In view of the principle laid down by the apex court, the prayer of the petitioner being contrary to the statutory provision, the writ petition is not maintainable. However, admission has to be done on merit basis and if admission has been granted in violation of principle of merit, action against the authority may be taken. 6. Opposite party no.2, Chairman, Joint Entrance Examination, 2012,Odisha filed a counter affidavit admitting the fact that the petitioner was placed at Sl.No.15 of the merit list and the candidates, who have placed in Sl.Nos.1,2,3 and 14 though were selected under Ex-Servicemen reserve quota, but they preferred to take admission as against general category seats. Under the Ex-Servicemen reservation quota seat, only 13 numbers of seats are available and the petitioner’s position came to 11. From the list furnished by the Rajya Sainik Board, Odisha on 27.6.2012 giving prioritization in respect of Ex-Servicemen category candidates of OJEE,2012, it is found that out of 45 number of candidates attended the Board for medical stream and two candidates have been given priority-III, four candidates have been given priority-IV and 39 number of candidates have been given priority-VI. The said prioritization was made as per the procedure prescribed by the Ministry of Defence, Government of India for

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Ex-Servicemen which was communicated vide their D.O.No.3547 AS (R) 94 dated 3.6.1994. Accordingly, the Government of Odisha, Industry Department vide order dated 8.7.2009 circulated the order regarding reservation of seats for children/widows of Ex-Servicemen who are the natives of Odisha. In the said order, it has been categorically mentioned that Prioritization Policy is to be adopted for admission to the seats reserved for the children of Ex-Servicemen as prescribed by the Ministry of Defence, Government of India in their letter dated 3.6.1994. The chart of prioritization is quoted below as under: Priority-I Children/widows of Ex-Servicemen killed in action. Priority-II Children of Ex-Servicemen disabled in action. Priority-III Children/widows of Ex-Servicemen who died in peace time with death attributable to military service. Priority-IV Children of Ex-Servicemen disabled in peace time

with disability attributable to military service. Priority-V Children of Ex-Servicemen who are in receipt of Nerve Gallantry Awards.

1) Param Vir Chakra 2) Ashok Chakra 3) Sarvottam Yudh Seva Medal 4) Maha Vir Chakra 5) Kirti Chakra 6) Uttam Yudh Seva Medal 7) Vir Chakra 8) Shaurya Chakra 9) Yudh Seva Medal 10) Sena, Nau Sena, Vayu Sena Medal 11) Mention-in-Des

Priority-VI Children of Ex-Servicemen.” 7. In view of that prioritization, the present petitioner’s rank is 12 amongst the candidates of Priority-VI and admission has been given as per the priority basis and above the petitioner. More than four candidates in priority-VI are waiting for admission. Therefore, the allegation made by the petitioner is not correct. The candidates, who got higher priority, have been admitted first as per the procedure prescribed by the Ministry of Defence and the Government order dated 8.7.2009. Petitioner is very much aware

693

RAJASHREE NAYAK -V- STATE [SANJU PANDA,J. ] about that and has also not impleaded the Rajya Sainik Board, Odisha, which is the necessary party and as such the writ petition has no merit.

8. Learned counsel for the opposite party no.2 submitted that as per the Information Brochure, in Clause-2.1.5 under the heading of General Information it was categorically stipulated that the candidates applying under Ex-Serviceman reserved category shall furnish a certificate in the prescribed format provided in this brochure as Appendix-IV at the time of document verification. The candidates have to report to Rajya Sainik Board on the scheduled date for prioritization. The priorities will be notified in the OJEE-2012 website. The decision of this Board will be final and binding. In view of said information brochure, the petitioner is not entitled to take admission.

9. Learned counsel for the petitioner in reply to the stand taken by the opposite parties submitted that the apex court in the case of ASHA V. PT. B.D.SHARMA UNIVERSITY OF HEALTH SCIENCES AND OTHERS, (2012) 7 Supreme Court Cases 389, while considering the admission into Medical Colleges/ Education held that the criteria for selection has to be merit alone. Merit, fairness and transparency are the ethos of the process for admission to such courses. It will be travesty of the scheme formulated by the Supreme Court and duly notified by the States, if the Rule of Merit is defeated by inefficiency, inaccuracy or improper methods of admission. There cannot be any circumstance where the rule of merit can be compromised. From the facts of the present case, it is evident that merit has been a casualty. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate curse and college, as per his preference. No doubt the process of admissions is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The authorities concerned are expected to perform certain functions, which must be performed in a fair and proper manner i.e. strictly in consonance with the relevant rules and regulations. Further, it was also held that admission after cut-off date of 30th September, the exceptional relief of, only in rarest of rare case and after 30th September can be given if (a) no fault is attributable to candidate in respect of the admission,(b) there is fault on the part of authorities and,(c) there is violation of the principles of equality and rule of merit. All these conditions are satisfied in present case except that candidate was at fault to a limited extent in the sense that she did not have required attendance in first year of non-preferred course (to which she was admitted), benefit of which she wanted transferred. Therefore, due to said default in attending required number of classes in her non-preferred course, candidate, held, is not entitled to admission in same academic year in her preferred course. The court has allowed her to take

694

INDIAN LAW REPORTS, CUTTACK SERIES [2013] admission in preferred course in the succeeding academic year, as she was wrongly denied admission under MBBS course.

10. Taking into consideration the facts and circumstances of the case, as narrated, it appears that the petitioner is the meritorious student and her rank is much higher than the candidates, who have taken admission in the MBBS course. On the ground of prioritization, the Act and Regulation and the stand of the Medical Council of India reveals that admission to MBBS/BDS courses, the authority has to strictly adhere to rule of merit. Inaccuracy, inefficiency and improper admissions process defeating Rule of Merit, the candidate is only to prove illegal denial of admission. It is enough to prove that there has been an error (intentional or otherwise) and that consequently a candidate of merit has been denied admission. It is not necessary to prove mala fides, misconduct and favouritism as is strictly required in criminal cases. The apex Court further reclarified that admission after closing date of 15th September are not permissible and only courts of contempt jurisdiction in rare and exceptional circumstances can permit the same by stating the reasons thereof. Where admissions are arbitrary, contrary to judgments and illegal, disciplinary action should be initiated against erring officers. Students resorting to malpractice should pay compensation to students of merit, who were denied admission and students not entitled to such admission cannot continue on mere ground that they have put in a year or so. Such students cannot claim equity just because they have admitted on basis of interim orders of court. Therefore, in case of admission dispute High Court directed to avoid giving interim orders.

11. In view of the above principle as settled by the apex Court, the present case is coming squarely under the said principle. The petitioner’s rank was 11 in the merit list under the Ex-Servicemen category. However, ignoring such merit list, the authorities have adopted a policy on the basis of prioritization procedure prescribed by the Ministry of Defence, Government of India for Ex-Servicemen, which was communicated vide D.O.No.3547 AS(R) 94 dated 3.6.1994. The opposite parties have not produced the aforesaid D.O.No. No.3547 AS(R) 94 dated 3.6.1994 which prescribed the procedure to be adopted in admission to Medical Courses ignoring the merit list. Since the Medical Council of India Act and Regulation and the decision of the apex Court strictly directed the Authoritative to follow up and adhere the merit list while giving admission into MBBS/BDS Courses only and reservation within the reserved seat are also not permissible. Therefore, adopting another procedure ignoring the merit list by the opposite party nos.2 and 3 is illegal and violative of the rules of merit for admission into MBBS Course.

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RAJASHREE NAYAK -V- STATE [SANJU PANDA,J. ] 12. Accordingly, the writ petition is allowed. The Chairman, Joint Entrance Examination, 2012, Odisha and Director, Medical, Education and Training, Odisha-opposite party nos.2 and 3 respectively are directed to give admission to the petitioner in MBBS course as per her rank under the category of Ex-Serviceman quota seat forthwith. Writ petition allowed.

696

2013 ( I ) ILR - CUT- 696

B. N. MAHAPATRA, J.

W.P.(C) NO. 17656 OF 2012 (With Batch) (Dt.19.10.2012)

M/S. MAA LAXMI STEELS PVT. LTD. & ORS. ……..Petitioners

.Vrs. ODISHA ELECTRICITY REGULATORY COMMISSION (OERC) & ANR. …….Opp.Parties.

A. OERC (CONDUCT OF BUSINESS) REGULATIONS,2004 – R-70(I)

Power of Suo motu review – Power vested with OERC to exercise such power – Held, OERC-O.P.1 has inherent jurisdiction to exercise the power of suo motu review. (Para 13) B. CONSTITUTION OF INDIA, 1950 – ART.226

Writ petition – Petitioners have neither pleaded in the writ petitions nor made prayer to the effect that Regulation 70(1) of the OERC (Conduct of Business) Regulations 2004 is ultra vires the Electricity Act,2003 – Law is well settled that a party has to plead the case and produce/adduce sufficient evidence to substantiate his statement made in the petition and in case pleadings are not complete, the Court is under no obligation to entertain the pleas.

Held, since there is no pleading or any prayer to the effect that Regulation 70 is ultra vires Section 94(1) (f) of the Act, 2003 the argument advanced to that effect cannot be entertained hence rejected. (Para 12) C. ELECTRICITY ACT, 2003 – S.111

Appellate Tribunal – Tribunal consisting of Judicial Member and Technical Member having adequate knowledge and experience in dealing with the matters relating to electricity generation, transmission and distribution and regulation or economics, commerce, law and management – The Tribunal is an expert body and determination of tariff made by the commission involves a very highly technical procedure requiring knowledge of law, engineering, finance, commerce, economics and management which can be effectively adjudicated by the Tribunal for electricity.

697 M/S. MAA LAXMI STEELS -V- ODISHA ELECTRICITY [B.N.MAHAPATRA,J]

Held, this Court is not inclined to entertain these writ petitions – It is open for the petitioners to approach the appellate Tribunal for electricity challenging the legality and validity of the impugned order. (Paras 15 & 20)


1170 (25) STC 171 : (TISCO-V- State of Orissa) 2. (2012)2 SCC 108 : (Executive Engineer, Southern Electricity Supply Company of Orissa Ltd.(Southco) & Anr.-V-Sri Seetaram Rice Mill) 3. (2011) 5 SCC 697 : (Union of India & Ors.-V-Tantia Construction Pvt. Ltd.). 4. (1998)8 SCC-1 : (Whirlpool Corporation-V-Registrar of Trade Marks, Mumbai & Ors.). 5. 2003(8) SCC 715 : (West Bengal State Electricity Regulatory Commission-V- CESC Ltd.) 6.AIR 2010 SC 2061 : (Chhatisgarh State Electricity Board-V-Central Electricity Regulatory Commission & Ors.). 7.AIR 2002 SC 3588 : (W.B. Electricity Regulatory Commission-V- CESC. Ltd. etc. Etc.) For Petitioners - Mr. J. Patnaik, Sr.Advocate M/s. B. Mohanty, T.K. Patnaik, R.P. Roy,

A.Patnaik, S. Patnaik & M.S. Rozvi.

For Opp.Parties - M/s. Pradipta Ku. Mohanty, D.N. Mohapatra. Smt. J. Mohantyt, P.K.Nayak & S.N. Das, (for O.P. No.2) Mr. B.K. Nayak (for O.P.No.1).

B.N.MAHAPATRA,J. In all these writ petitions the common prayer is to quash the order dated 23.8.2012 passed under Annexure-1 by opposite party No.1-Odisha Electricity Regulatory Commission (for short, “OERC”) on the ground that the same is void ab initio. Except W.P.(c) No.16195 of 2012 in all other writ petitions further prayer is made to quash the ‘take or pay’ tariff in reducing the special rebate i.e., 50 paisa to 30 paisa per unit and restrain opp. Party no.2 from recovering the special rebate from the bill of the petitioners showing it as arrear. In W.P.(c) No. 16195 of 2012, a further prayer is made to quash the letter dated 27.8.2012 passed under Annexure-3 issued by the Executive Engineer (Electrical), RED, WESCO, Rajgangpur requesting the petitioner to submit his consent along with the undertaking to opt for the revised ‘take or pay’ Tariff Scheme latest by 30.8.2012.

698

INDIAN LAW REPORTS, CUTTACK SERIES [2013] 2. Since the relief claimed in all these writ petitions is similar in nature they are dealt with together by this common order. 3. Mr. Jagannath Patnaik, learned Senior Advocate appearing on behalf of the petitioners submits that the suo motu review order dated 23.8.2012 passed in Case No. 48/2012 under Annexure-1 is not sustainable in law. Suo motu review power is not available to the Commission under the statute. Section 94 of the Electricity Act, 2003 (for short, “the Act, 2003”) provides that the appropriate Commission shall, for the purpose of any enquiry or proceeding under the Act, 2003, have the same power as are vested in a Civil Court under the Code of Civil Procedure, 1908 in respect of matters enumerated in Section 94 of the Act. Under clause (f) of sub-section (1) of Section 94, the Commission has the power of reviewing its decisions, directions and orders. According to Mr. Patnaik, Section 94 (1)(f) does not authorize suo motu review of decisions/directions or orders. Power of review is a creature of statute. It is confined to the four corners of Sec.94(1)(f) of the Act, 2003. The provision imports the Code of Civil Procedure, 1908 in respect of review. The relevant provisions of the said Code are Sec.114 and Order47, Rule 1. None of these provisions admit of suo motu review. A review by a Civil Court can only be moved by an application by an aggrieved party. Therefore, to the extent that Regulation 70 of Business Regulations provides for suo motu review, the said Regulation is ultra vires Sec. 94(1)(f) of the Act, 2003. Consequently, the suo motu revision order passed under Annexure-1 is void. Moreover, the order under Annexure-1 which retrospectively takes away the petitioner’s right and benefits under its subsisting scheme formulated in paragraph 262 of the Retail Supply Tariff Order dated 23.3.2012 in Case No.93-96 of 2011 for financial year of 2012-13 in regard to ‘take or pay’ tariff for HT and EHT industries with guaranteed load factor, five months after such promulgation is entirely arbitrary and mala fide. The tariff proceedings of opp. Party no.1 are governed by Sections 61, 62, 63, 64 and 65 and 86 (1) (a) and (b) of the Act, 2003. Nothing in these provisions or any other provision of the Act, 2003 authorizes a suo motu proceeding in relation to tariff. A proceeding for determination of tariff can only be initiated by an application by a licensee or generating company, vide Sec. 64(1) and that being so, a proceeding for amendment of a tariff order must also be moved by an application for the purpose and facts necessitating amendment must be established before opp. Party no.1. The petitioners come under HT/EHT category in the current tariff for financial year 2012-13 and subject to a special ‘take or pay’ scheme optionally available to it. The petitioners shall be liable to pay slab rate of energy charges as per the tariff notified in order dated 23.3.2012. The Commission after due consideration of suggestions of DISCOMs and views of the


HT/EHT industries decided to implement the ‘take or pay’ scheme for financial year 2012-13 with certain stipulations. Neither any of the DISCOMs nor the petitioners or any other HT/EHT consumer has appealed against the said tariff order. Thus the said part of the tariff order has become final. Therefore, the suo motu review order dated 23.8.2012 is contrary to law. Finality of a tariff order at least for whole financial year is a salutary policy of the law. It promotes stability in cost of production of goods and services and conduces to rational economic growth of industrial and other large consumers through proper planning, and this leads to increase in demand for electricity in the long run. This is the rationale behind Section 62(4) which permits no more than a single amendment to the tariff in a financial year and that amendment should be demonstrably necessary and not fanciful or whimsical. Without stability there can be no development of the market as enjoined in Sec. 66 of the Act, 2003. 4. Opposite Party No.1 passed the impugned order on 23.8.2012 under Annexure-1 completely abolishing the existing load factor formula for the ‘take or pay’ scheme of concessional tariff for HT and EHT consumers replacing it by a novel, untried formula by a cryptic, arbitrary order without discussing and having inputs from any stakeholder regarding its nature, efficacy and impact and without showing how it better serves the purpose of the scheme. Opp. Party no.1 has taken everyone by surprise by introducing a novel formula in two cryptic and unspeaking paragraphs. Such tariff has been passed specially for HT and EHT consumers. In paragraph 22 of Annexure-1, it has been directed that those consumers who opt for revised ‘take or pay’ as earlier ordered shall avail a special rebate of 30 paisa per unit for the entire consumption of energy. Thus the rebate has been reduced from 50 paisa to 30 paisa per unit without explaining why and without determining whether 30 paisa per unit is good enough incentive. The appellate Tribunal for Electricity has no jurisdiction to deal with and determine these issues as it is a creature of the Electricity Act, 2003. Therefore, the petitioners invoke the extraordinary jurisdiction of this Court under Articles 226 & 227 of the Constitution of India. 5. Mr. Patnaik, learned Senior Advocate submits that introduction of concept of assured energy is unknown to the Statute. Under Section 181, the Commission has to make regulation in consistent with the Act, 2003. Placing reliance on the decision of this Court in the case of TISCO v. State of Orissa, 170 (25) STC 171, it is submitted that alternative remedy is not a bar to invoke the writ jurisdiction of the High Court. Mr. Pattnaik also relied upon the judgment of Hon’ble Supreme Court in the case of Executive Engineer, Southern Electricity Supply Company of Orissa Limited (Southco)

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] and another v. Sri Seetaram Rice Mill, (2012) 2 SCC 108, Union of India and others. Vs. Tantia Construction Private Limited; (2011) 5 SCC 697, and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC-1. Opposite party No.1 lacks inherent jurisdiction to redesign the ‘take or pay tariff’ scheme 2012-13 in midway by introducing a concept of assured energy which is very much patent to the statute and the regulation at large. Opposite parties committed gross illegalities by effectuating revised pay tariff retrospectively with effect from 1st July, 2012. Since there is no error in the RST order dated 23.3.2012 passed by the Commission for which the review proceeding of the order dated 23.3.2012 by opp. Party no.1 is not maintainable and liable to be quashed. Regulation 70(1) postulates that the Commission may on its own motion, or on the application of any of the person or parties concerned, within 90 days of the making of any decision, direction or order, review such decision, directions or orders and pass such appropriate orders as the Commission thinks fit. But in the instant case, the Commission has not reviewed the order dated 23.3.2012 within 90 days.

6. In the bill for the month of July, 2012 issued by opposite party No.2 to the petitioner there was a concept of rebate, but in the bill for the month of August, 2012 there was no concept of rebate and now opposite party No.2 in a whimsical manner is trying to recover the special rebate from the petitioner showing it as arrear which is illegal, unreasonable and thus the same is liable to be set aside. The action of opposite parties to recover the special rebate from the bill of the petitioner-company showing it as arrear is per se unreasonable, illegal in the eye of law. In the bill issued for the month of August, 2012, there is no rebate of 30 paisa which speaks about the whimsical attitude of the opposite parties and therefore, the same is liable to be set aside. Mr. Patnaik further submitted that in the interest of justice the recovery of rebate from the bill of the petitioners’-Companies and 30% of the bill amount be stayed till disposal of the writ petition.

7. Mr. P.K. Mohanty, learned counsel appearing for opp. Party no.2-WESCO filed a memo enclosing copy of letter No.7729(3) dated 27.8.2012 issued by opp. Party no.2-WESCO to the petitioner asking as to whether it opts to continue in “Take or Pay” Tariff Scheme and also so revised as per impugned order under Annexure-1. Petitioners’ industry in replying to the above letter, declined and said not to continue any further the ‘Take or Pay’ Tariff Scheme.

8. Mr. Mohanty, learned counsel for opposite party No.2 submits that as per the special agreement executed between the petitioner and opp. Party no.2, the previous take or pay tariff will operate as per Clause No.1 until expiry of the present RST Order, i.e., order dated 23.3.2012. As per Clauses


2.2 and 2.3 of the said special agreement it has been accepted by the parties that the OERC can review the initial take or pay scheme after three months. Thus, the impugned review order is wholly justified and binding on the parties and the petitioner is estopped by law of estoppel to challenge the same. If the industrial consumer does not agree or opt to continue in the scheme, it can pay as per the general tariff for its category which have also been provided in the RST Order dated 23.3.2012 for the financial year 2012-13. Implication of the terms of the Special Agreement for ‘take or pay’ privilege has already expired as its duration was till the passing of the impugned review and/or amended order. The main tariff order dated 23.3.2012 involves highly technical, financial and commercial aspects which can also be amended even normally once in a year as per Sec. 62(4) of the Act, 2003. Any Order passed by the appropriate Commission i.e. OERC is appealable to the Appellate Tribunal for Electricity under Sec. 111 and ultimately against order of the Appellate Tribunal appeal is to be preferred under Section 125 of the Act, 2003 to the Hon’ble Supreme Court. Mr. P.K. Mohanty further submitted that WESCO has filed appeal before the Appellate Tribunal of Electricity challenging RST order dated 23.03.2012 passed by the OERC wherein amongst other issues, the issue of “Take or Pay Tariff” scheme has also been challenged and the matter is pending before the learned Tribunal. No interim order can be given like final order.

9. Placing reliance upon the decision of the Hon’ble Supreme Court in the case of West Bengal State Electricity Regulatory Commission v. CESC Ltd. in 2003 (8) SCC 715, it was submitted that the writ petition is not maintainable and proper remedy available to the petitioner is appeal. In support of his contention, Mr. Mohanty also relied upon the judgment dated 14.09.2011 of the Hon’ble apex Court in Civil Appeal Nos.5775/5780 of 2007, U.P. Power Corporation Ltd. V. NTPC Ltd. and others with C.A. Nos. 725-730/2008.

10. Mr. B.K. Nayak, learned counsel appearing for OERC submitted that the present writ petitions are not maintainable as alternative remedy is available under the statute. Further, referring to Rule 9 of the General Rules Concerning the Proceeding before the Commission, Mr. Nayak submitted that while issuing the notice, the Commission may, in suo motu proceedings and in appropriate cases, designate an Officer of the Commission or any other person whom the Commission considers to be appropriate to present the matter in the capacity of the petitioner in the case. It is further submitted that under Rule 70(1), the Commission may on his own motion, or on the application of any of the persons or parties concerned, review such decision, directions or orders and pass such appropriate orders as the Commission thinks fit. Therefore, there is no illegality in passing the impugned order.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 11. On the rival contentions of both parties, the following questions fall for consideration by this Court: (i) Whether Regulation 70(1) is ultra vires Sec. 94(1)(f) of the Act, 2003 ?

(ii) Whether the present writ petition is maintainable on the ground of availability of statutory alternative remedy?

(iii) Whether the order passed by opp. Party no.1-OERC under Annexure-1 dated 23.8.2012 is sustainable in law?

12. Question No.(i) is whether Regulation 70(1) is ultra vires Sec. 94(1)(f) of the Act, 2003. The petitioners have neither pleaded in the writ petitions nor made a prayer to the effect that Regulation 70 (1) is ultra vires the Act, 2003. Law is well settled that a party has to plead the case and produce/adduce sufficient evidence to substantiate his statement made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. (See Bharat Singh and others v. State of Haryana and others, AIR 1988 SC 2181.) As stated above, since there is no pleading or any prayer to the effect that Regulation 70 is ultra vires Section 94(1)(f) of the Act, 2003, the argument advanced in that regard to declare Regulation 70 of Business Regulations ultra vires Sec. 94(1)(f) of Act, 2003 is not entertained and rejected.

13. So far question no.(ii) is concerned, the petitioners are consumers under the Electricity Act, 2003 and Rules made thereunder. They also come under HT/EHT category. They are challenging the legality and validity of the suo motu review order dated 23.8.2012 passed by opp. Party no.1-OERC under Regulation 70 (1) of the OERC (Conduct of Business) Regulations, 2004. Under Regulation 70(1) power is vested with OERC to exercise power of suo motu review. Therefore, it cannot be said that OERC –opp. Party no.1 lacks inherent jurisdiction to exercise the power of suo motu review. It is contended by the petitioners that such suo motu review has been exercised after 90 days from the date of original tariff order dated 23.3.2012. The stand of opposite party Nos. 1 and 2 is that in the original tariff order 23.3.2012 a condition was stipulated to review the order after three months and that tariff order has been accepted and acted upon by the petitioners. In any event, it cannot be said that OERC lacks inherent jurisdiction to pass such order as contended by the petitioners. 14. Section 110 provides establishment of Appellate Tribunal. The said section envisages that any person aggrieved by an order made by an


adjudicating officer under the Act, 2003, (except under Section 127) or an order made by the appropriate Commission under the Act may prefer an appeal to the Appellate Tribunal for Electricity. Section 112 provides composition of Appellate Tribunal which envisages that the Appellate Tribunal shall consist of a Chairperson and three other Members. Section 113 provides qualification for appointment of Chairperson and Members of Appellate Tribunal as under:

A person shall not be qualified for appointment as the Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal unless he –

(a) in the case of the Chairperson of the Appellate Tribunal, is, or has been, a judge of the Supreme Court or the Chief Justice of a High Court; and

(b) in the case of a Member of the Appellate Tribunal;

(i) is, or has been, or is qualified to be, a Judge of a High Court, or

(ii) is, or has been, a Secretary for at least one year in the Ministry or Department of the Central Government dealing with economic affairs or matters or infrastructure; or

(iii) is, or has been, a person of ability and standing having adequate knowledge or experience in dealing with the matters relating to electricity generation, transmission and distribution and regulation or economics, commerce, law or management.”

15. The above provisions clearly demonstrate that the Tribunal is consisting of Judicial Member and Technical Member having adequate knowledge or experience in dealing with the matters relating to electricity generation, transmission and distribution and regulation or economics, commerce, law or management or is, or has been, a Secretary for at least one year in the Ministry or Department of the Central Government dealing with economic affairs or matters or infrastructure. Thus, the Tribunal is an expert body and determination of tariff made by the Commission involves a very highly technical procedure requiring knowledge of law, engineering, finance, commerce, economics and management which can be effectively adjudicated by the Tribunal for electricity. 16. The Hon’ble Supreme Court in the case of Chhatisgarh State Electricity Board v. Central Electricity Regulatory Commission and others, AIR 2010 SC 2061, held as under :

704


“11. The brief analysis of the scheme of the Electricity Act shows that it is a self-contained comprehensive legislation, which not only regulates generation, transmission and distribution of electricity by public bodies and encourages public sector participation in the process but also ensures creation of special adjudicatory mechanism to deal with the grievance of any person aggrieved by an order made by an adjudicating officer under the Act except under Section 127 or an order made by the appropriate commission. Section 110 provides for establishment of a Tribunal to hear such appeals. Section 111(1) and (2) lays down that any person aggrieved by an order made by an adjudicating officer or an appropriate commission under this Act may prefer an appeal to the Tribunal within a period of 45 days from the date on which a copy of the order made by an adjudicating officer or the appropriate commission is received by him. Section 111(5) mandates that the Tribunal shall deal with the appeal as expeditiously as possible and endeavour to dispose of the same finally within 180 days from the date of receipt thereof. If the appeal is not disposed of within 180 days, the Tribunal is required to record reasons in writing for not doing so. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. ……..”

17. The Hon’ble Supreme Court in the case of W. B. Electricity Regulatory Commission v. C.E.S.C. Ltd. etc. etc, AIR 2002 SC 3588, held as under:

“101. We notice that the Commission constituted under Section 17 of the 1998 Act is an expert body and the determination of tariff which has to be made by the Commission involves a very highly technical procedure, requiring working knowledge of law, engineering, finance, commerce, economics and management. A perusal of the report of the ASCI as well as that of the Commission abundantly proves this fact. Therefore, we think it would be more appropriate and effective if a statutory appeal is provided to a similar expert body, so that the various questions which are factual and technical that arise in such an appeal, get appropriate consideration in the first appellate stage also. From Section 4 of the 1998 Act, we notice that the Central Electricity Regulatory Commission which has a Judicial Member as also a number of other Members having varied qualifications, is better equipped to appreciate the technical and factual questions involved in the appeals arising from the orders of the Commission…….”


18. A Division Bench of this Court vide judgment dated 30.03.2012 in the case of Keonjhar Navanirman Parisad and others vs. State of Odisha and others (in W.P.(C) No.8409 of 2011, held as under:

“5. We are of the view that in a matter of fixation of tariff, this Court should not exercise its jurisdiction under Articles 226 and 227 of the Constitution of India, and, therefore, we are not inclined to entertain the writ application, so far as the correctness of the fixation of tariff is concerned and it is open to the petitioners to raise the same before the appropriate statutory forum.”

19. Mr. P.K. Mohanty, learned counsel also submitted that WESCO has filed appeal before the Appellate Tribunal for electricity (I.A. No.274 of 2012 in DPR No.1078 of 2012) challenging the RST Order dated 23.03.2012 passed by the OERC wherein amongst other issues, the issue of “Take or Pay Tariff” Scheme has also been challenged. 20. In view of the above, this Court is not inclined to entertain these writ petitions. It is open to the petitioners to approach the Appellate Tribunal for electricity challenging the legality and validity of the impugned order passed under Annexure-1 dated 23.8.2012. 21. In view of the answer to question nos.(i) and (ii) as stated above, there is no need to answer question no.(iii). 22. The writ petitions are accordingly disposed of. There shall be no order as to cost. Writ petition disposed of.

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2013 ( I ) ILR - CUT-706

B. N. MAHAPATRA, J.

W.P.(C) NO. 7429 OF 2012 (Dt.23.11.2012)

NABIN CHANDRA MAJHI ……...Petitioner

.Vrs. STATE OF ODISHA & ORS. ……..Opp.Parties ODISHA GRAMA PANCHAYATS ACT, 1964 – S.122 (3) Petitioner working under Gram Panchayat – Appointed as Election Officer Rajpur G.P. – Allegation of irregularity against him – Collector passed order of suspension – Action taken by the Collector affects the spirit of self Governance of Gram Panchayats as provided Under Article 243-G of the Constitution of India – Held, Gram Panchayat has jurisdiction to initiate disciplinary proceeding but not the Collector – Order of suspension passed by the Collector, Kalahandi and article of charges framed by him are quashed. (Para 13 to 17)


1.2008 (II) OLR 530 : (Fakir Mohan Das & Ors.-V- Government of Orissa & Ors.) 2.2009(I) OLR 1020 : (Nabakishore Mishra-V- Collctor, Dhenkanal & Ors.)

For Petitioner - Mr. Sukanta Kumar Dalai. For Opp.Parties - Mr. Somanath Mishra, Addl. Govt. Advocate.

B.N. MAHAPATRA, J. This writ petition has been filed with a prayer to quash the order of suspension dated 09.04.2012 passed by the Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the Disciplinary Authority-cum-Collector, Kalahandi vide order dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat Act, 1964. 2. Petitioner’s case in a nutshell is that the petitioner was appointed as Grama Panchayat Secretary in Dashigaon Grama Panchayat. Thereafter, the petitioner was promoted to the post of V.L.W. vide letter No.760/GP dated 26.06.2009 of Collector, Kalahandi. On 05.01.2011, he was appointed as Election Officer for Rajpur Grama Panchayat by the B.D.O.-cum-Election Officer, Junagarh as per programme schedule communicated by the State

707

NABIN CHANDRA MAJHI -V- STATE [B.N. MAHAPATRA, J.] Election Commission of Odisha. The petitioner was directed to accept nomination papers for the Office of Sarpanch and Ward member of Rajpur Grama Panchayat from 07.01.2012 to 12.01.2012. It has been alleged that the petitioner during the aforesaid period acted in a very careless manner and committed gross error in contravention of Election Rules of the State. According to such allegation, one Smt. Bilash Majhi, wife of Narendra Majhi of Village Rajpur was issued with nomination papers by the petitioner in the capacity of Election Officer on 11.01.2012 for the post of Sarapanch of Rajpur Grama Panchayat and on the same day she submitted her nomination for the post of Sarapanch in Form-IV and it was received by the petitioner at 2.55 PM. Said Smt. Majhi was again issued nomination paper for the post of Ward member of Ward No.9 of the Grama Panchyat on the next day, i.e., 12.01.2012 and the same was submitted by her on the same day which was received by the petitioner in the capacity of Election Officer at 1.35 PM. It is alleged that multiple nomination is restricted under Section 11(a)(i) of the Orissa Grama Panchayats Act, 1964. Therefore, it is alleged that the petitioner allowed Smt. Bilasha Majhi to submit nomination papers for both the posts, i.e., Sarapanch and Ward Member and also declared both the nomination papers valid. As Smt. Majhi was only candidate for the post of Ward Member of Ward No.9 she was declared uncontested. Had the petitioner reported the matter to B.D.O., Junagarh, he would not have allowed Smt. Majhi to contest in the election for the post of Sarapanch. But the petitioner deliberately concealed the matter as a result of which Smt. Majhi was allowed to contest both for the post of Sarapanch and Ward Member and she also own the election to the post of Sarapanch by securing maximum of 1025 votes as per result declared by the Election Officer in Form No.8(B). Thus, it is alleged that the petitioner kept the Election Officer-cum-B.D.O., Junagarh Block in darkness till the notification of result by the Election Officer for the post of Ward Member and Sarapanch was declared on 24.02.2012. It is only on that day vide Notification No.505 dated 24.02.2012 it was disclosed that such type of irregularities has occurred in the election of Junagarh which is attributed to the petitioner. The Election Officer, Junagarh Block as well as District Administration was put to an embarrassing situation due to winning of one candidate for both the posts of Ward Member and Sarapanch. Thus the petitioner acted carelessly and rendered undue help to the concerned candidate and committed irregularity deliberately in connivance with the candidate to ensure that she would retain the post of Ward Member even if she would be defeated in the election of Sarapanch. With these allegations, the order of suspension dated 09.04.2012 and the article of charges of even date were issued. Hence, the present writ petition.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 3. Mr. Dalai, learned counsel appearing for the petitioner submitted that Smt. Bilash Majhi was the only member of Ward No.9. Therefore, she was declared elected uncontested. Subsequently, the election for the office of Sarapanch was held on the scheduled date and Smt. Majhi secured 1025 votes and declared elected as Sarapanch by Notification in Form-8(B). Mr. Dalai further submitted that while framing charges against the petitioner on 09.04.2012 the Collector, Kalahandi in the capacity of Disciplinary Authority has issued the suspension order under Annexure-2. Opposite party No.3, who was the Election Officer for Junagarh Block, after the election period was over, with a malafide intention and giving a false identification stating himself as Election Officer has signed in the charge paper which shows the misconduct and malafide intention of the authority while framing charges against the present petitioner. So entire framing of charge is defective. It is further submitted that there is no prohibition for issue of nomination papers to different persons who intended to participate in the election process. Petitioner was appointed as Election Officer for the limited purpose by opposite party No.3 for accepting nomination papers. Rule-29 speaks that the Election Officer shall at the appointed time, date and place receive nomination papers separately for the Office of the members and Sarapanch in Form No.4 and scrutinize them in presence of the candidates, their proposers and seconders, if any. If he finds that the candidates are duly qualified in accordance with the provisions of Section-11 and not disqualified under any of the clauses of Section 25 of the Act, he shall approve their candidature. Objections, if any, filed in the course of scrutiny shall be enquired into summarily by the Election Officer and his decision accepting or rejecting nomination papers shall be endorsed on the body of the nomination papers with reasons for the decision. In the instant case, there was no objection from any corner and accordingly after acceptance of the nomination papers, it was duly communicated to opposite party No.3. The petitioner has carefully scrutinized the nomination papers. Section 29 deals with penalty for misconduct of elections, but in the aforesaid Section there is no observation regarding the improper acceptance of the nomination papers. Section 30 provides that no election of a person as a member of a Grama Panchayat or as Sarapanch or Naib Sarapanch held under the Act shall be called in question except by an Election Petition presented in accordance with the provision of Chapter-V. Section 38 deals with decision of competent Court to declare another candidate to have been duly elected and all orders of the competent Court shall subject to the provisions of Sub-section (4) be final and conclusive or to declare a casual vacancy to have been created. Therefore, while the election petition is pending before the Election Tribunal issuance of suspension order and framing of charges gives very bad taste and is contrary to the statute.

709

NABIN CHANDRA MAJHI -V- STATE [B.N. MAHAPATRA, J.] 4. Mr.Dalai submitted that opposite party No.3 has the sole responsibility and he is the person to be punished. Only to shift the responsibility, the impugned orders have been issued which are not permissible under law. Issuance of order of suspension and framing of charge by opposite party No.2 is not only arbitrary, but also malafide and discriminatory in nature. In the district of Kalahandi, in other Grama Panchayats also the same mistake has been pointed out and it has been rectified by the State Election Commission and there is no punishment or any sort of charge has been framed against the officers concerned and no order of suspension also has been issued against them, but the petitioner has been victimized due to ill intention of the authorities. It is further submitted that the authorities have exceeded their jurisdiction and in a whimsical manner issued the order of suspension. Mr. Dalai further submitted that had the State Election Commission taken a decision against the present petitioner due to misconduct and non-compliance of the direction, the matter would have been different. Since the petitioner was on deputation, at a belated stage when the petitioner is neither working under the State Election Commission nor under the Collector, Kalahandi action has been taken, which is per se illegal.

5. It was further argued that the order of suspension and framing of charges have been issued on 09.04.2012 when the petitioner was working as Panchayat Executive Officer under Dashigaon Grama Panchayat. It is not correct that the petitioner while working as VLW has committed gross irregularity. While the petitioner was working as Panchayat Executive Officer under Dashigaon Grama Panchayat, he was appointed as Election Officer for the said period. In view of Section-9 of the said Act, superintendence, direction and control of the preparation of electoral roles for conduct of all election of Grama Panchayats shall be vested in the Election Commission and all the officers from the date of notification till declaration of the election result are under the control of the Election Officer and in view of the aforesaid provision the petitioner was working under the State Election Commission as Election Officer and not as VLW. So the entire observation and statement is misleading.

6. It is further argued that while the petitioner working as Panchayat Executive Officer under Junagarh Block he was completely under the control of the Grama Panchayat and neither the State Government nor the Collector has any authority to initiate disciplinary action against the petitioner as per Section-122(3) of the Act, 1964 which has been declared by this Court ultra vires the Constitution. Therefore, the proceeding initiated by opposite party No.2 is illegal. The entire allegation has been made against the petitioner while he was working as Panchayat Executive Officer. As per the decision of

710

INDIAN LAW REPORTS, CUTTACK SERIES [2013] this Court, the Secretary who is working under the Grama Panchayat is not holding a Civil Post. The Grama Panchayat is the master of the Secretary and the State Government has no authority at all to take any disciplinary action against the Secretary. After amendment of Section 122, power of superintendence and supervision was vested with the Collector, but in view of the judgment of this Court in the case of Fakir Mohan Vrs. Government, 2008 (II) OLR 530 such amendment has been declared as ultra vires. Subsequently, in case of Nabakishore Mishra Vrs. Collector, Dhenkanal, 2009(I) OLR 1020, it has been observed that the Collector cannot have any control over the services of VLWs posted as Panchayat Executive Officers in the Grama Panchayats. Their services are under the control of Grama Panchayat. Thus, the Collector has no authority to initiate disciplinary proceeding against the petitioner who was working as Panchayat Executive Officer. 7. Mr. Dalai referring to Section 122(2) of the Act, 1964 submitted that VLWs and VAWs working in a district, for the purposes of Sub-section (1), act as Executive Officers within the local area of such Grama or Gramas as may respectively be assigned to them by the Collector. Referring to affidavit of the petitioner dated 26.04.2012, Mr. Dalai submitted that the petitioner was placed under suspension while working as Panchayat Executive Officer under Dashigaon Grama Panchayat. Referring to Notification dated 10th February, 2009 in which (Orissa Act 7 of 2009) the Orissa Grama Panchayats (Amendment) Act, 2008 has been published, Mr. Dalai submitted that as per Section 3 of the said Amended Act, 2008 “subject to the provision of Sub-section (1), the Executive Officer shall function under the control and supervision of the Grama Panchayat.” Mr. Dalai further placing reliance on Rule 216(b) of Orissa Grama Panchayat Rules, 1968 submitted that Grama Panchayat may suspend the petitioner from office of the Secretary of the Grama Sasan pending disposal of the proceedings against him or if he has been detained in prison during trial, under the provisions of any law for the time being in force. It was submitted that in any event, Collector has no power to initiate proceeding and suspend the petitioner. 8. Mr. Somanath Mishra, learned Additional Government Advocate appearing for opposite party-State Authorities submitted that law is well-settled that authority competent to appoint a public servant would be entitled to suspend him during pendency of the departmental enquiry. In the instant case, the petitioner while working as Grama Panchayat Secretary has been promoted to the post of VLW temporarily, which is a Civil Post. The suspension order has been passed against the petitioner, who has been

711

NABIN CHANDRA MAJHI -V- STATE [B.N. MAHAPATRA, J.] posted as VLW, which has been issued by the order of the Collector, Kalahandi. According to Mr.Mishra, post of VLW is a Civil Post. Therefore, the Collector is competent to place the petitioner under suspension. Mr.Mishra submitted that the two judgments relied upon by learned counsel for the petitioner are not applicable in case of VLW. The petitioner was appointed as Grama Panchayat Secretary and duly approved by the District Panchayat Officer. During the year 2004 further recruitment of G.P. Secretary was stopped vide letter No.16017 dated 18.10.2004 of Panchayatiraj Department, Odisha, Bhubaneswar. Therefore, vide Resolution No.47214 dated 11.12.2008 of P.R. Department, Government of Odisha framed Rules for promotion of G.P. Secretary to the post of VLW. Accordingly, the petitioner was promoted to the post of VLW vide letter No.760/GP dated 26.06.2009 of Collector, Kalahandi. Petitioner while working as VLW his services was placed under Election Commission and he was discharging duties as Election Officer of Rajpur Grama Panchayat. During discharge of his duties as Election Officer, he committed grave irregularity in election work. Hence, he was placed under suspension. Charges framed against the petitioner are not at belated stage. Clarification was sought for from the State Election Commission, Odisha and the Commission has instructed to deal with the matter as per provision under Section 26 of the Act, 1964 and initiate disciplinary proceeding against the designated Election Officer vide letter No.3678/SEC dated 01.03.2012 (Annexure-D/2 to the counter) and according to such instruction, the petitioner has been placed under suspension and also draft charges framed against him under Rule-15 of O.C.S. (CCA) Rules, 1962. The period of charges is relating to General Election to P.R.Is., 2012. Therefore, the charges framed against the petitioner are not defective. 9. As per the provisions of Section 11(a)(i) of the Act, 1964 no member of a Gram Sasan shall be eligible to stand for election as a Sarapanch if he is a candidate for election as a Member of the Grama Panchayat in respect of any Ward. Petitioner is a responsible Government servant who neglected in government duty and suppressed the fact while discharging the duty of Election Officer of Rajpur Grama Panchayat. Therefore, he has rightly been placed under suspension. The post of Grama Panchayat Secretary is not a civil post as per the provision of Rules 4 and 8 of Odisha Village Level Workers (Recruitment and Conditions of Service) Rules, 2008 read with Resolution No.4947/PR dated 07.04.2009. The District Level Selection Committee have selected 97 numbers of eligible G.P. Secretary for promotion to the rank of VLWs which is a civil post wherein the petitioner as G.P. Secretary has been selected and promoted to the rank of VLW vide Sl. No.62 of Order No.760/G.P. dated 26.06.2009 of the Collector, Kalahandi.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] Therefore, his services is under the control of Collector, Kalahandi. The petitioner has been appointed as VLW by the Collector, Kalahandi and is continuing as such and during Panchayat election he was assigned duty of VLW-cum-Panchayat Executive Officer of Dasigaon Grama Panchayat. Panchayat Executive Officer is not a separate post. It is only a responsibility bestowed with some duties like recording of proceeding of Grama Panchayat, maintenance of cash book etc. The same VLW is discharging the duties as Panchayat Executive Officer. The petitioner-VLW was appointed as Election Officer of Rajpur Grama Panchayat by the B.D.O.-cum-Election Officer, Junagarh Block. Though the Panchayat Election is controlled by the State Election Commission, Odisha, the Collector and the B.D.O. are the supervising authorities under the State Election Commission and the petitioner was appointed to function as Election Officer for the limited purpose of receiving, scrutinizing the nomination papers for the office of the Ward Member and Sarapanch of Rajpur Grama Panchayat. The Panchayat Election Officer is not a separate post. It is only a responsibility with some duties to be discharged with. In the instant case, some duties are being discharged by the VLW, i.e, the petitioner. Therefore, the contention raised that the proceeding instituted against the petitioner while working as Panchayat Election Officer is misleading since the PEO is not a separate post. The petitioner as a VLW has been entrusted with some responsibilities of PEO, and Collector being the appointing authority of VLW, the VLW is working under the direct control of Collector while discharging duties as PEO. The Collector has rightly exercised power as per Rule-12 of O.C.S.(CCA) Rules, 1962. Referring to Section 122(3) of the Act, 1964, it was submitted that PEO is not a separate post but a designation having some responsibility. Mandate of provisions of Section 122(1) and (2) is very much in force. 10. On the rival contentions, the following questions fall for consideration by this Court: (i) Whether the Collector, Kalahandi is the competent authority to

initiate the disciplinary action against the petitioner, who was appointed and functioned as VLW of Dashigaon Grama Panchayat in the year 2009 for the alleged irregularity committed by him, which amounts to gross mis-conduct while appointed as designated Election Officer for the purpose of issue, receipt, scrutiny of nomination paper for the posts of Sarpanch and Ward Member of Rajpur G.P.?

(ii) Whether the order of suspension dated 09.04.2012 passed by the Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962

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NABIN CHANDRA MAJHI -V- STATE [B.N. MAHAPATRA, J.]

and article of charges framed by the Collector, Kalahandi as Disciplinary Authority vide order dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat Act, 1964 are sustainable in law ?

11. Since both the questions are interlinked, they are dealt with together.

12. Facts which are not in dispute are that initially the petitioner was appointed as Grama Panchayat Secretary and such appointment was duly approved by the District Panchayat Officer. During the year 2004, further recruitment of G.P. Secretary was stopped vide letter No.16017 dated 18.10.2004 of Panchayatiraj Department, Odisha, Bhubaneswar. Therefore, vide Resolution No.47214 dated 11.12.2008 of P.R. Department Government of Odisha framed Rules for promotion of G.P. Secretary to the post of VLW. Accordingly, the petitioner was promoted to the post of VLW vide letter No.760/GP dated 26.06.2009 of the Collector, Kalahandi. While the petitioner was working as Grama Panchayat Executive Officer under Dashigaon Grama Panchayat, on 05.01.2011, he was appointed as Election Officer for Rajpur G.P. by the B.D.O.-cum-Election Officer, Junagada. As per the programme schedule communicated by the State Election Commission of Odisha, the petitioner was directed to accept nomination paper for the Office of Sarapanch and Ward Member of Rajpur G.P. from 07.01.2011 to 12.01.2012. It has been alleged that the petitioner during the aforesaid period has acted in a very careless manner and committed gross error in contravention of the Election Rules of the State for which the aforesaid order of suspension has been passed and article of charges has been framed by the Collector, Kalahandi. The sole contention of the petitioner is that the Collector, Kalahandi, has no jurisdiction to take disciplinary action against the petitioner for which the order of suspension and framing of charges are not sustainable in law. According to the petitioner, since the petitioner is working under the Grama Panchayat, the Grama Panchayat has the jurisdiction to initiate disciplinary action, if any, irregularity has been committed. 13. This Court in the case of Fakirmohan Das and others vs. Government of Orissa and others, 2008 (II) OLR 530, held that Section 122(3) of the G.P. Act which provides that subject to general superintendence and overall control of the Grama Panchayats, the Executive Officer shall function under the control and supervision of the Director, Collector and District Panchayat Officers are ultra vires the Constitution and the Collector cannot have any control over the service of VLW/VLWs posted as Executive Officer in Grama Panchayats. Relevant portion of the said judgment is reproduced below:

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“15. Pre-amended Section 123 mentioned about the power, duties and function of the Secretaries. After the amendment, the impugned Section 122 provides that there shall be an Executive Officer for every Grama Sasan and their duties have been described therein. It has also been stated in Sub-section (2) that V.L.Ws. and V.A.Ws. working in a district shall be the Executive Officer within the local area of such Grama or Grama Panchayat as would be assigned to them by the Collector. In Sub-section (3) thereof, it has been provided that subject to the general superintendence and over all control of the Grama Panchayats, the Executive Officers shall function under the control and supervision of the Director, Collector and District Panchayat Officers. Though generally petitioners challenge each of the aspects relating to bringing into the system, the Executive Officers, but they specifically attack this Sub-section (3) calling it guillotining of self-governance.

xx xx xx 17. When the matter stands thus, the criticism by the petitioners on Sub-section (3) of Section 122 still remains to be considered. Answer of the State Government on the aforesaid point is flimsy. According to the counter affidavit of the opposite parties-State, the workload in the Panchayats has increased and still likely to increase many fold in view of different development schemes introduced by both the Central Government and the State Government and huge flow of money for development and therefore, additional staffs are necessary to cope with that pressure of work and to properly monitor and utilize of the funds allocated and allotted. This part of the logic of the State also run consistent with the provision of law and the competency of the State to create post and to assign/entrust work on the new employees of the Panchayats. But the further logic of the State that the V.A.Ws. and V.L.Ws. remaining in the duel charge are to remain under the specific control and supervision of Director, Collectors and District Panchayat Officers, as stated above is unacceptable, inasmuch as, if the Executive Officers of the Panchayats who have been bestowed with all responsibilities relating to maintenance of records, registers and cash be kept under the control of bureaucrats relating to their service conditions and function, then the Panchayats cannot function within independence and that is how that would interfere with the constitutional mandate of self-government. For the reasons assigned by the State, if V.A.Ws and V.L.Ws. are to function as Executive Officers, then their duties and responsibilities with respect to the duties in the Panchayat and their respective services should be within the control of the Grama

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NABIN CHANDRA MAJHI -V- STATE [B.N. MAHAPATRA, J.] Panchayats, or else the Grama Panchayats may suffer for any indiscipline or refusal or negligence to carry out the lawful order of the Sarpanch or Panchayat, as the case may be. Apart from that their may be clash of priority to carry out specific orders issued by the two authorities (Panchayat and State).

xx xx xx 19. For the aforesaid reasons, we dispose of these writ petitions with the conclusion that the provisions in Section 122(3) of the Act ultra vires the Constitution and in view of that the amended provision in Sections 122 and 123 of the Act relating to appointment and functioning of the Executive Officers cannot be done validly and legally. As a consequence thereof, the Circulars at Annexures-1 and 3 are also quashed.

14. Apart from the above, Orissa Act 7 of 2009, the Orissa Grama Panchayats (Amendment) Act, 2008 published in Notification dated 10th February, 2009 of the Orissa Gazettee amended sub-section(3) of Section 122 to the effect that “subject to the provision of Sub-section (1), the Executive Officer shall function under the control and supervision of the Grama Panchayat.” 15. This Court in the case of Naba Kishore Mishra vs. Collector, Dhenkanal and two others, 2009(I) OLR 1020 referring to the judgment of this Court in the case of Fakirmohan Das and others (supra), quashed the order of suspension issued by the Collector, Dhenkanal holding that the Collector has no jurisdiction to suspend the Executive Officer of Bangurusingh Grama Panchayat. 16. In view of the above judgment of this Court in the case of Fakirmohan Das and others (supra) and amendment of sub-section (3) of Section 122 of the Orissa Grama Panchayats Act by Orissa Grama Panchayats (Amendment) Act, 2008 published in the Notification dated 10th February, 2009 of Orissa Gazette, this Court is of the view that the order of suspension dated 09.04.2012 passed by the Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the Collector, Kalahandi vide order dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat Act, 1964 issued are wholly without jurisdiction and accordingly, they are quashed. 17. Before parting with the judgment, it is felt necessary to observe that while the petitioner was appointed as Election Officer for Rajpur G.P. by the

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] B.D.O.-cum-Election Officer, Junagarh as per the programme schedule communicated by the State Election Commission, Odisha, it is alleged that he during the aforesaid period has acted in a very careless manner and committed gross error in contravention of the Election Rules of the State. As held above, the Executive Officer functions under the control and supervision of the Grama Panchayat. Apart from that Sub-section (4) of Section 27 of the G.P. Act provides that the Election Officers, Presiding Officers and other officers appointed or designated for the time being for the conduct of elections under the Grama Panchayat Act shall be deemed to be on deputation to the Election Commission for the period commencing on the date of the notification calling for such election and ending with the date of declaration of the results of such election and, accordingly, such officers shall, during that period, be subject to the control, superintendence and discipline of the Election Commission. 9. Therefore, it is open to the competent authority to initiate disciplinary action against the petitioner for the alleged irregularity and mis-conduct committed by him in accordance with law. 18. In the result, the writ petition is allowed with the aforesaid observation.


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2013 ( I ) ILR - CUT- 717

B. N. MAHAPATRA, J.

W.P.(C) NO. 20648 OF 2012 (Dt.06.12.2012)

KIRANBALA ROUT ……. Petitioner

.Vrs. RASNAMAYEE ROY ……..Opp.Party ODISHA GRAMA PANCHAYAT ACT, 1964 – S.31

Election Petition – Petition shall be presented within 15 days from the date of declaration of result – Result of election declared on 21.02.2012 – Election petition filed on 02.03.2012 without depositing security for costs – Security money deposited on 05.03.2012 – No provision in the Act that non-deposit of security money with the election petition would result in dismissal of the election petition – Held, both filing of election petition and payment of security deposit having made within the period of limitation i.e. 15 days, there is substantial compliance of Section 31 of the Act – No error in the impugned order calling for interference of this Court. (Para 22) Case laws Referred to:-

1.2008(4) ALD 71, 2008(3) ALT 332 : (Maddipatla Jagan Mohan Rao, S/o. Nagaiah -V-Akula Nagamalleswari, W/o.Venkata Ramaiah & Ors.) 2.1991 RD 439 : (Shamsher Singh-V-VIIth Addl. District Judge, Varanasi & Ors.) 3.AIR 1959 SC 827 : (Chandrika Prasad Tripathi-V-Shiv Prasad Chanpuria & Ors.) 4.AIR 1958 SC 687 : (K. Kamaraja Nadar-V- Kunju Thevar & Ors.). 5.AIR 1978 SC 1583 : (Shiv Chand-V- Ujagar Singh & Anr.) 6.AIR 2002 SC 3105 : (M. Y. Ghorpade-V- Shivaji Rao M. Poal & Ors.) 7.AIR 1983 SC 558 : (M. Karunanidhi-V- H.V. Handa & Ors.)

For Petitioner - M/s. Anupam Rath & M. Panda. For Opp.Party - M/s. Gautam Mishra & D.K.Patra.

B.N. MAHAPATRA, J. The present writ petition has been filed with a prayer to quash the impugned order dated 24.9.2012 passed by the learned Civil Judge (Jr. Divn.), Jajpur (hereinafter referred to as “Election ibunal”) in Election Misc. Case No.6 of 2012 wherein the Election Tribunal rejected

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] petitioner’s prayer to dismiss the election petition as the same was not presented together with the security deposit. 2. Petitioner’s case in a nutshell is that the petitioner along with Election Petitioner-opposite party contested to the post of Sarpanch, Kalamatia Grama Panchayat in Bari Block, District-Jajpur in the year 2012. In the G.P. Election, the petitioner was declared elected by the Election Officer-cum-B.D.O., Bari. Opposite party challenges the election of the petitioner in Election Misc. Case No.6/2012 before the Election Tribunal on the ground that the petitioner is disqualified to be a candidate for the post of Sarpanch as she has given birth to three children after 1995 i.e. after the cut-off date. The result of election was declared on 21.2.2012 and the election petition was filed on 02.03.2012 without being accompanied by deposit of Security for costs as required under Section 31 of the Grama Panchayats Act. The said amount of security money was deposited on 05.03.2012 that is after three days of filing of the election petition. The Election Tribunal while admitting the election petition issued show-cause notice to the petitioner and on appearance before the Election Tribunal, an objection was filed by the petitioner with a prayer to dismiss the election petition on the ground of non-compliance of statutory provision as laid down under Section 31 of the G.P. Act. The said objection of the petitioner was rejected by the Election Tribunal on the ground that though the security deposit was paid on a later date, the same being paid within the period of limitation, election petition cannot be dismissed. Hence, the present writ petition. 3. Mr. A. Rath, learned counsel appearing for the petitioner submits that the impugned order passed by the Election Tribunal is not 2sustainable as the same has been passed whimsically without application of judicial mind coupled with colourable exercise of powers. A bare reading of Section-31 of the G.P. Act makes it clear that an Election Petition is to be presented together with the deposit of the security for costs. The word “together” signifies that an election petition whether filed within the period of limitation or beyond the same has to be accompanied by the prescribed deposit towards security for costs which has not been complied with in the present case. Under Section 31 of the G.P. Act, there is no scope for Election Tribunal to exercise any concession/discretion in case of non-compliance of the statutory requirement of deposit of security together with the Election Petition. The decision of the Election Tribunal defeats the object behind the statutory requirement and thereby makes the word “together” redundant. Such an interpretation by the learned Election Tribunal is impermissible under law.

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KIRANBALA ROUT-V- RASNAMAYEE ROY [B.N. MAHAPATRA, J.] 4. Learned Election Tribunal has passed a cryptic order without dealing with arguments raised by the petitioner with respect to the judgment of the Hon’ble Supreme Court in the case of M.Y. Ghorpade Vs. Shivaji Rao M. Poal and others, reported in AIR 2002 SC 3105 wherein the Hon’ble Supreme Court held that the requirement of making security deposit is mandatory and the same has to be made while presenting an Election Petition. If the statute provides a particular thing to be done in a particular manner then it should be done in that manner alone and in no other way or should not be done at all. The impugned order causes prejudice to the petitioner, hence liable to be quashed. In 3support of his contention, he relied upon the judgment of Hon’ble Supreme Court in the case of Sarif-ud-Din vs. Abdul Gani Lone, AIR 1980 SC 303

5. Mr. G. Mishra, learned counsel for opp. party submits that under Section 31 of Orissa Grama Panchayats Act, 1965, power has been given to the Election Tribunal to condone delay in presentation of election petition. Similar power has also been given to condone delay in presentation of election petition under Section 44-B of Panchayat Samiti Act. Under Section 10 of the Orissa Municipal Act, no such power has been given for condoning the delay. Similarly under Section 81 of Representation of the People Act, 1950, no power is vested with the High Court to condone the delay. The provisions contained in Section 81 of Representation of the People Act, 1950 are not available in G.P. Act or the Panchayat Samiti Act. The Division Bench by its judgment dated 25.4.2003 passed in W.P.(c) No.1277 of 2003 held that there is no provision in the Panchayat Samiti Act to indicate that “non-deposit of Rs.200/- as security together with the election petition would result in dismissal of election petition”.

Referring to the judgments in the cases of Maddipatla Jagan Mohan Rao vs. Akula Nagamalleswari, 2008(3) ALT 332 and Arun Kumar son of Sri Ram Sharan vs. The Presiding Authority, 2007 (3) ADJ 442, Mr. Mishra submitted that the security deposit can be made subsequent to filing of the election petition.

Mr. Mishra also placed reliance upon the judgment of Hon’ble Supreme Court in the case of Shiv Chand V. Ujagar Singh and another, AIR 1978 SC 1583 in support of his contention.

6. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court:

(i) Whether the learned Civil Judge (Jr. Divn.), Jajpur is justified to hold that the Election Petition presented within the period of limitation without deposit of the security amount as required under Section 31

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of the G.P. Act is maintainable as the security amount was subsequently paid within the period of limitation ?

(ii) Whether the learned Civil Judge (Jr. Divn.), Jajpur is justified to reject

the petition of the returned candidate challenging maintainability of the election petition which was not presented together with security amount as required under Section 31 of the G.P.Act ?

7. Since both the questions are interlinked, they are dealt with together.

To deal with the above questions, it is necessary to quote Section 31(1) of the Orissa Grama Panchayats Act, 1964 and Rule 88 of the Orissa Grama Panchayats Election Rules, 1965 (for short, “Election Rules”)

Section 31 of Grama Panchayats Act: “The petition shall be presented on one or more of the grounds specified in Section 39 before the [Civil Judge (Junior Division)] having jurisdiction over the place at which the office of the Grama Sasan is situated together with a deposit of such amount, if any, as may be prescribed in that behalf as security for costs 5within fifteen days after the date on which the name of the person elected is published under Section 15:”

Rule 88 of the Election Rules :

“88. Election Petitioners – The following amounts shall be deposited as security for costs along with an election petition filed under Chapter-V of the Act:

Election petition relating to election of Sarpanch - 150.00 Election Petition relating to election of Naib-Sarpanch- 50.00 Election Petition relating to election of a Member - 40.00” 8. A conjoint reading of Section 31 of G.P. Act read with Rule 88 of Election Rules postulates that an election petition should be presented on one or more of the grounds specified in Section 39 before the Election Tribunal together with Rs.150.00/Rs.50.00/ Rs.40.00, as the case may be as security for costs within fifteen days after the date on which the name of the person elected is published under Section 15 of the G.P. Act. There is nothing in Section 31 of the G.P. Act and Rule 88 of Election Rules which precludes the election petitioner from complying with the condition stipulated

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KIRANBALA ROUT-V- RASNAMAYEE ROY [B.N. MAHAPATRA, J.] under Section 31 of the G.P. Act and Rule 88 of Election Rules on two different dates within the period of limitation, i.e., within 15 days from the date on which the name of the person elected is published under Section 15 of the G.P. Act. Therefore, the requirement of Section 31 is that presentation of Election Petition as well as deposit of security for cost has to be made within the period of limitation prescribed under Section 31 of the G.P. Act read with Rule 88 of the Election Rules. Hence, in case the deposit of security amount is made before expiration of period of limitation prescribed under Section 31 of the G.P. Act for presentation of Election Petition though not paid together with the 6election petition filed earlier it would amount to substantial compliance of Section 31 of the G.P. Act.

9. In the present case, it is nobody’s case that the security deposit required to be made together with the election petition under Section 31 of the G.P. Act, which is mandatory, has not been paid within the period of limitation. The only dispute is that the security amount has not been deposited on the very day of filing of election petition on 02.03.2012, but subsequently paid on 05.03.2012 i.e. after three days of filing of election petition, which is undisputedly within the period of limitation.

10. There is no provision in the Orissa Grama Panchayats Act to indicate that non-deposit of Rs.150.00/ Rs.50.00/Rs.40.00, as the case may be as security for cost together with election petition would result in dismissal of Election Petition.

11. The Andhra Pradesh High Court in the case of Maddipatla Jagan Mohan Rao, S/o-Nagaiah V. Akula Nagamalleswari, W/oVenkata Ramaiah and Ors., 2008(4) ALD 71, 2008(3) ALT 332 held as under:-

“Having regard to the combined effect of Rules 3 and 5 of the Rules, 1995, the deposit of Rs.100/- is concerned, there are no two standards. On the other hand, both the filing of the election petition coupled with the deposit of Rs.100/- shall be within 30 days from the date of the declaration of the result of the election, as contemplated under Rule 3 of the Rules, 1995. But, the election petitioner is not precluded from complying with the conditions stipulated under Rules 3 and 5 of the Rules, 1995 on two different dates, provided if those two postulates are complied with within the prescribed period of 30 days from the date of7the declaration of the result of the election for filing the election petition.”

12. The Allahabad High Court in the case of Yashwant Singh Yadav V. Prescribed Authority/Sub-Divisional Officer and Another, (C.M.W.P.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] No.13732 of 1997 decided on 30.4.1997) held that Rule 24 of the U.P. Panchayat Raj Rules which has since been omitted by Rule 6 of the U.P. Panchayat Raj (Settlement of Election Disputes) Rules, 1994, came up for consideration in the case of Shamsher Singh V. VIIth Addl. District Judge, Varanasi and Ors., 1991 RD 439. It has been held therein that in case the deposit of security amount is made before expiration of the period of limitation prescribed for filing of election petition, it would amount to substantial compliance of the related provisions. Accordingly, the Court found no force in the arguments that the election petition would be defective merely because, it was not accompanied with a treasury challan testifying to the deposit of Rs.5 towards security. 13. The Hon’ble Supreme Court in the case of Chandrika Prasad Tripathi V. Shiv Prasad Chanpuria and others, AIR 1959 SC 827 following the earlier decision in the case of K. Kamaraja Nadar V. Kunju Thevar and others, AIR 1958 SC 687 held that Section 117 of the Representation of the People Act should not be strictly or technically construed. Wherever it is shown that there has been a substantial compliance with its requirements, the Tribunal should not dismiss the election petition under Section 90, sub-Section (3) on technical grounds. 14. The Hon’ble Supreme Court in the case of Shiv Chand V. Ujagar Singh and another, reported in AIR 1978 SC 1583 held as under:-

“We are satisfied that if he is impleaded as a respondent the election petition cannot be dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether the election petitioner has failed to comply with Section 82. The substance of the matter must govern because hyper-technicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition.”

15. In the instant case, since presentation of election petition and the security deposit has been made within the period of limitation prescribed under Section 31 of the G.P. Act, this Court is of the view that there is substantial compliance of Section 31 of the G.P. Act and a literal and mechanical interpretation of Section 31 of G.P. Act and Rule 88 of the Election Rules would lead to manifest absurdity. The substance of the matter must govern because hyper-technicality would defeat a vital judicial process.

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KIRANBALA ROUT-V- RASNAMAYEE ROY [B.N. MAHAPATRA, J.] 16. Learned counsel for the petitioner putting emphasis on the expression “together with” appearing in Section 31 of the G.P. Act submitted that if the election petition is filed without deposit of the security amount, such petition is liable to be dismissed. It has not satisfied the requirement of Section 31 of the G.P. Act. To substantiate his case, Mr. Rath relied upon the judgment of the Supreme Court in the case of M.Y. Ghorpade V. Shivaji Rao M. Poal and others, reported in AIR 92002 SC 3105 wherein the apex Court held that the requirement of making of security deposit is mandatory and the same has to be made while presenting an Election Petition. In that case, the question that arose for consideration before the Hon’ble Supreme Court was whether there has been non-compliance of Section 117 of the Representation of the People Act, 1951 (hereinafter referred as “Act, 1951”). Section 86 of the Act, 1951 in Chapter III deals with the trial of Election Petition and Section 86(1) states, the High Court shall dismiss Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117. Section 117 (1) of the Act, 1951 provides that at the time of presenting an election petition, the petitioner shall deposit in the High Court, in accordance with the Rules of the High Court, a sum of two thousand rupees as security for the costs of the petition. In that case, the allegation of the appellant was that a sum of Rs.2000/- had been deposited in the High Court of Karnataka by one Heroji Lad, Respondent No.5, and not by Shivaji Rao Poal, the election petitioner and, therefore, there has been non-compliance of Section 117 of the Act, 1951. The Hon’ble Supreme Court held that the evidence of the election petitioner as well as the evidence of respondent No.5 unequivocally pointed out that it was the election petitioner who deposited the amount of Rs.2000/-. Therefore, it was held that there was no infirmity with the conclusion of the High Court that there has been compliance of Section 117 of the Act and consequently election petition has been held to be maintainable and could not have been dismissed under Section 86 of the Act on the ground of non-compliance of Section 117 of the Act. While looking at the 10provision of Section 117 of the Act, the Hon’ble Supreme Court held that the requirement of making a security deposit of Rs.2000/- is mandatory and the same has to be made while presenting an Election Petition, but the mode of deposit as well as the person who could make a deposit has to be complied with in accordance with the rules of the High Court in question and the same has been held to be directory. 17. Undoubtedly in that case, the question was not before the Supreme Court, if the election petition was filed within the period of limitation and the amount of security was paid thereafter on some other day, but within the period of limitation, whether the said election petition was maintainable or not? Apart from that, the Hon’ble Supreme Court took into consideration, the

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] provisions of Section 86(1) of the Act which provides that the High Court shall dismiss Election Petition which does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act, 1951. In the Grama Panchayats Act, there is no such provision as to whether; if the election petition is filed within the period of limitation and the security deposit is made thereafter within the period of limitation, such election petition shall be dismissed ? Therefore, the judgment of the Hon’ble Supreme Court in the case of M.Y. Ghorpade (supra) is of no help to the election petitioner. 18. On the other hand, the Hon’ble Supreme Court in the case of M. Karunanidhi V. H.V. Handa and others and in connected cases, AIR 1983 SC 558, held that Sub-section (1) of Section 117 of the Act is in two parts. The first part of sub-sec. (1) of S.117 provides that at the time of presenting an election petition, the petitioner shall deposit in the High 11Court a sum of Rs.2000/- as security for the costs of the petition, and the second part is that such deposit shall be made in the High Court in accordance with the Rules of the High Court. The requirement regarding the making of a security deposit of Rs.2000/- in the High Court is mandatory, the non-compliance of which must entail dismissal in limine of the election petition under sub-sec.(1) of S. 86 of the Act. But the requirement of its deposit in the High Court in accordance with the rules of the High Court is clearly directory.

Where the amount of Rs.2000/- as security for costs was not deposited in cash in the High Court by the petitioner filing election petition but was deposited by pre-receipted challan in the Reserve Bank of India to the credit of the Registrar, High Court at the instance of the High Court, and in accordance with the procedure followed for deposit of amounts in Court, it was held that there was due compliance with the requirements of sub-sec.(1) of S.117 of the Act read with R.8 of the Election Petitions Rules.

Rule 8 of the Election Petitions Rules does not contemplate that the

money should be deposited in the High Court in cash. A literal and mechanical interpretation of R.8 would lead to manifest absurdity. 19. The decision of this Court in the case of Dr. Nirmal Chandra Satpathy V. Jitu Patnaik @ Jitendranath Patnaik and others (OJC No.4025 of 1993 decided on 6.9.1993) relied upon by Mr. A. Rath, learned counsel for the petitioner is also of no help to the petitioner. In that case, the last date of limitation in terms of Section 19 of the Orissa Municipal Act, 1950 was 16.3.1992. On that day, an 12election petition was filed without deposit of Rs.200/- as security as required under sub-section (1) of Section 19 of the Orissa Municipal Act. On the date of filing of the election petition, a petition

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KIRANBALA ROUT-V- RASNAMAYEE ROY [B.N. MAHAPATRA, J.] was filed on that date to permit the petitioner to deposit the security by way of challan. he District Judge while directing to register the petition, ordered to put up the same on 24.3.1992 with office note. The case was put up and on that day and after seeing the office note, the District Judge noted that the advocate for the petitioner filed challan to deposit the security money and asked the office to check and report. Later the learned District Judge ordered the Nazir to receive the amount, which was done. On an objection being taken that the petition had not been presented in accordance with law, the plea has been accepted and the election petition has been dismissed on the ground that since the petition was not in terms of Section 19 of the Orissa Municipal Act which is mandatory in nature, the petition was not maintainable. In that case, this Court held that the District Judge under the law has no power to grant extension of time to pay the security amount. Section 5 of the Limitation Act cannot apply to a petition filed under Section 19 of the Orissa Municipal Act. This Court further held that on examination of the relevant provision of the special law, it becomes clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Special Act. It was further held that the special provision, namely, Section 19 of the Orissa Municipal Act did exclude by necessary implication the provision of Section 5 of the Limitation Act inasmuch as 13if application of this section were to be conceded, the limitation provided by Section 19 of the Orissa Municipal Act would virtually be set at naught because it would then become open to the District Judge to extend the period of limitation on sufficient cause being shown. Accordingly, the election petition was held to be invalid.

20. The facts of the case at hand are completely different from the facts of Dr. Nirmal Chandra Satpathy’s case (supra). In that case the election petition was filed on the last date of limitation i.e. 16.3.1992 and the District Judge extended the time beyond the period of limitation for deposit of the security amount which was held by this Court not permissible. Under Section 19 of the Orissa Municipal Act, 1950, no power is vested with the District Judge to extend the period of limitation. In the instant case, the amount of security has been paid within the period of limitation and not beyond the period of limitation. Under Section 31 of the G.P. Act, there is a provision for extending the period of limitation for sufficient ground to present the election petition. Thus, Dr. Nirmal Chandra Satpathy’s case (supra) has no application to the present case.

21. The matter may be looked at from another angle. Election petitioner instead of filing the election petition on 02.03.2012 could have filed the same on 05.03.2012 when the security deposit was made. In such situation, it would not have been anybody’s case that the election petition is not

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] maintainable for non-compliance of requirement of Section 31 of the G.P. Act. Therefore, merely because the election petition was filed on 2.3.2012 and the security deposit was made on 1 the election petition was filed and the security deposit was made within the period of limitation.

22. In view of the above, this Court is of the opinion that since the election petition was presented on 2.3.2012 without security deposit which was paid on 5.3.2012 i.e. after three days of the filing of the election petition and both filing of election petition and payment of security deposit were made within the period of limitation, there is substantial compliance of Section 31 of the Orissa Grama Panchayats Act and therefore, the Election Tribunal is justified to entertain the election petition and reject the objection filed by the returned candidate.

23. In the result, the writ petition is dismissed. Writ petition dismissed.

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2013 ( I ) ILR - CUT- 727

B. K. PATEL, J.

R.S.A. NO. 153 OF 2010 (Dt.14.12.2012)

DILLIP KUMAR SAHOO …….. Appellant

.Vrs. MALATI ROUT & ORS. …….Respondents

SPECIFIC RELIEF ACT, 1963 – Ss.31, 34

Registered document – Presumption is, it is validly executed and prima facie it is valid in law – Onus lies on the person who wants to rebut such presumption.

In this case plaintiffs plead that fraud practiced on them while executing General Power of Attorney Ext-1 in favour of Defendant No.2 and the impugned sale deeds Exts-B & C executed by Defendant No.2 in favour of Defendant No.1 are the outcome of such fraud – No prayer in the suit to declare G.P.A. Ext.1 void – Both the Courts below failed to take note of the evidence of plaintiff No.3, examined as P.W.1, that they were present in the office of the Sub-Registrar on the date of sale of the suit land and raised no objection against such registration – Held, G.P.A. Ext.1 is a valid document so also the sale deeds Exts. B & C – Defendant No.1 has acquired title over the suit property on the strength of the above sale deeds as true owner and acquired right to enforce the right, title and interest over the suit property. (Paras 43, 44) Case laws Referred to:-

1.AIR 2011 SC 2521 : (Janak Dulari Devi-V- Kapildeo Rai & Anr.) 2.(2009)4 SCC 193 : (Kaliaperumal-V- Rajagopal & Anr.) 3.1995(1)CCC 368(Ori) : (Durgamani Behera & Ors.-V-Ghasiram Mohanta & Ors.) 4.2012(2) CCC 339 (Alah. : (Bhartu-V- Nawal @ Chhote(Dead)through LRs. & Ors.) 5.AIR 2007 A.P 50 : (Muddasani Sarojana-V- Muddasani Venkat Narsaiah & Ors.) 6.AIR 2007 Patna 59 : (Dhanbarti Koerin-V- Shyam Narain Mahton & Ors.) 7.AIR 1997 SC 1411 : (M/s. John Tinson & Co.Pvt. Ltd. & Ors. Etc .-V-Mrs. Surjeet Malhan & Anr. Etc.) 8.38(1972)CLT 1244 : (Gangadhar Mallik & Anr.-V-Kahnu Sethi & Ors.)

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 9. 2009(4) CCC 259 (SC) : (Ramdas-V- Sitabai & Ors.) 10. AIR 2001 SC 965 : (Santosh Hazari-V- Purushottam Tiwari(Dead) by Lrs.) 11. 2008 AIR SCW6476 : (Ranganayakamma & Anr.-V-K.S.Prakash (D) by L.Rs.& Ors.) 12. (1996)7 SCC 767 : (Md.Noorul Hoda-V- Bibi Raifunnisa & Ors.) 13. (2010)1SCC 756 : (Edukanti Kistamma(dead)thorugh L.Rs.& Ors. -V- S.Venkatareddy(dead)through L.Rs. & Ors.) 14. AIR 2003 SC 4548 : (R.V.E.Venkatachala Gounder-V-Arulmigu iswesaraswami & V.P. Temple & Anr.) 15.AIR 1993 Ori.103 : (Life Insurance Coporation of India-V-Narmada Agarwalla & Ors.) 16.AIR 1968 SC 956 : (Ningawwa-V- Byrappa Shiddappa Hireknrabar & Ors.). 17.AIR 1987 SC 1242 : (Ram Sarup Gupta(dead) by L.Rs. –V- Bishun Narain Inter College & Ors.) 18.AIR 1998 SC 3006 : (Bisundeo Narain Rai (dead) by L.Rs. & Ors.-V- Anmol Devi) 19.AIR 1993 Orissa 59 : (Dulana Dei @ Dolena Dei-V- Balaram Sahu) 20.34(1992) OJD.137 : (Gourhari Das-V- Kalpataru Das & Ors.) 21.2009(1) CLR 560 : (Harekrushna Mahakud-V- Radhanath Mahakud & Ors.) 22.(2008)7 SCC 46 : (Hardeo Rai-V- Sakuntala Devi & Ors.) 23.106(2008) CLT 330 : (Smt. Bina Sukla-V- Smt. Meena Devi Panch & Ors.).

For Appellant - M/s. Bansidhar Baug & S. Rath. For Respondents - M/s. Rama Chandra Sarangi, Siba Sankar Mohanty, (for Res.No.1 to 3) M/s. Millan Kanungo, S.K. Mishra, Y. Mohanty, D. Pradhan & S. N. Das (for Res.No.5).

B.K. PATEL, J. This second appeal is directed against the judgment and decree dated 7.4.2010 passed by the learned Adhoc Additional District Judge, F.T.C.No.3, Bhubaneswar dismissing R.F.A. No.19/22 of 2006/2003 and confirming the judgment and decree dated 21.4.2003 passed by the Civil Judge (Senior Division), Bhubaneswar in T.S. No.258 of 1990 by which the suit was decreed. Appellant was defendant no.1, respondent nos.1 to 3 were the plaintiffs and respondent no.4 was defendant no.2 in the suit. Respondent no.5 was impleaded in this appeal on consent of the parties on the basis of claim as a lis pendent purchaser.

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DILLIP KUMAR SAHOO -V- MALATI ROUT [B.K. PATEL, J.]

2. In the suit, plaintiffs sought for the following reliefs:

“(a) That their joint title to the suit land described in Schedules A & B of the plaint be declared and their exclusive possession over the same be confirmed. (b) Alternatively if it be held that the sale deed in favour of defendant

no.1 covering the suit land to the extent of share of Defendant no.2 therein is valid as the suit land is the undivided homestead of the plaintiffs and defendant no.2 and as defendant no.1 being a stranger to the family of the plaintiffs is not be entitled to joint possession of the suit land with plaintiffs, defendant no.1 be permanently restrained not to interfere with the possession of the plaintiffs over the suit land described in Schedule A & B shown in red colour in the sketch map marked as A B attached to the plaint.

(c) It be declared that the sale deeds dtd.28.6.89 and30.6.89 executed by Defendant No.2 in favour of Defendant no.1 in respect of the suit land(90 dec)are invalid, inoperative, and not binding on the plaintiffs and those have been brought into existence as a result of fraud and collusion practised by Defendant No.1 and 2.

(d) Cost of the suit be decreed in favour of the plaintiffs and against the defendants.

(e) Plaintiffs be given such relief/reliefs which they are deemed entitled to by the court.”

3. While admitting the second appeal by order dated 22.7.2010 the following substantial questions of law were formulated for adjudication. “(a) Whether, when further relief of declaring the registered general

power of attorney Ext.1 void was very much available to the plaintiffs and/or whether without nullifying the registered general power of attorney Ext.1, the suit for declaration to nullify the sale deeds executed and registered by the general power of attorney defendant no.2 will be maintainable ignoring the bar under Section 31 and provision of Section 34 of the Specific Relief Act?

(b) Whether the defendant no.1 who is not a party to the general power of attorney Ext.1 and when the said general of attorney Ext.1 is proved by producing a true attested copies of the certified copy

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thereof by the plaintiffs themselves, was bound to prove the original GPA or certified copy thereof in Court. When there is no relief claimed in the suit challenging the genuineness of the said GPA?

(c) Whether the Ext.1(the general power of attorney),the execution and registration of which is admitted by the executants thereof (plaintiff Nos.2 and 3) is a voidable document or void ab initio?

(d) Whether the courts below can ignore the Ext.1(the GPA) in absence of declaration to declare the same as void? It is humbly stated that the learned trial court in paragraph-7 of its judgment towards last has observed that “no judicial observations can be given basing upon such documents in Ext.1”. The learned trial court has not returned any finding as to whether the Ext.1 is a void document or voidable document and the said findings was not challenged by the plaintiffs. But the lower appellate court by ignoring the aforesaid findings of the trial court has ignored the Ext.1 as if the same is a void document.

(e) Whether the registered sale deed vide Exts. B and C executed by defendant no.2 in favour of defendant no.1(present appellant) for self and for on behalf of the plaintiff nos.2 and 3 by virtue of the GPA (Ext.1) can be altogether held or declared invalid/ void documents if it is found that the GPA Ext.1 is invalid or the sale deed will be valid to the extent of the share of defendant no.2, who has sold the lands wherein he has admittedly either 1/3rd or 1/4th share.”

In course of hearing by order dated 3.10.2012 leave was granted to the appellant to urge the following additional substantial question of law also:-

“Whether without pleading and proof of the ingredients of the existence of dwelling house over the suit land and even if there exists a house over the suit land whether the transferee on purchase gets a right and title thereon or his sale deed is ab initio void the same being a portion from the joint homestead land?”

4. Plaintiff nos.2 and 3 as well as defendant no.2 are sons of plaintiff no.1, wife of late Ram Chandra Rout who died in the year 1985 leaving behind the plaintiffs and defendant no.2 as his legal heirs. The suit land appertains to an area of Ac.0.90 decimals of land out of suit plot measuring Ac.4.075 decimals in total recorded under Hal Khata no.611/10 of mouza Chandrasekharpur (Ext.A). The suit plot was originally ex-intermediary

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DILLIP KUMAR SAHOO -V- MALATI ROUT [B.K. PATEL, J.] property of Madhusudan Dev who inducted late Ram Chandra Rout as an occupancy raiyat thereof in the year 1942-43. Subsequently, the estate was purchased by Raja of Kanika but late Ram Chandra Rout continued to be in possession of the suit plot on payment of rent to Raja of Kanika and, thereafter, in the Anchal office upon abolition of estate. In 1973 settlement, suit plot was recorded in the name of Government of Orissa. During 1988 settlement operation plaintiffs and defendant no.2 took steps to get their names recorded but failed and suit plot was recorded in the name of G.A. Department. However, suit plot was recorded in the names of plaintiff nos.2 and 3 and defendant no.2 on the strength of order passed by the Commissioner of Land Records in Revision Case No.398 of 1989 under Ext.A, the R.O.R. These facts are not in dispute.

5. It is also not disputed that plaintiff nos. 2 and 3 have executed Ext. 1 registered General Power of Attorney (for short, ‘GPA’ Ext. 1) dated 3.5.1989 in respect of suit plot in favour of defendant no.2. Defendant no.2 executed two registered sale deeds dated 28.6.89 (Ext.B) and 30.6.89 (Ext.C) in respect of the suit land in favour of defendant no.1.

6. Plaintiffs’ case is that plaintiffs are illiterate persons. Plaintiff no.2 was born blind whereas plaintiff no.1 is an old and pardanasin woman. Defendant no.2 being more literate than the plaintiffs took up the task of filing revision before the Commissioner of Land Records for getting the suit plot recorded in their names. While filing the revision defendant no.2 with an ulterior motive omitted plaintiff no.1 from the revision case though plaintiff no.1 as one of the successors of late Ram Chandra Rout has got right, title and interest over the suit plot. While the revision was pending defendant no.2 got GPA Ext.1 executed by plaintiff nos.2 and 3 for the purpose of contesting the revision. However, plaintiff nos. 2 and 3 subsequently learnt that defendant no.2 obtained the GPA Ext.1 by practising fraud in collusion with some other persons. Contents of the GPA was not read over and explained to them and they were asked to answer in affirmative to the questions put by the Sub-Registrar. Thereafter, defendant no.2 by practising fraud on the plaintiffs executed registered sale deeds in respect of suit land under Exts.B and C for an area of Ac.0.40 decimals and Ac.0.50 decimals respectively in favour of defendant no.1 without knowledge of the plaintiffs. No consideration amount was received for the transactions nor delivery of possession was handed over in favour of defendant no.1. On the strength of the sale deeds Exts. B and C defendant no.1 filed mutation case to get the suit plot recorded in his name. However, plaintiffs filed objection in the mutation case.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 7. Defendant no.2 was set ex parte. Defendant no.1 filed written statement denying plaint allegations. It is pleaded that plaintiff no.1 is not a pardanasin woman, plaintiff no.2 is not born blind and plaintiff no.3 is not illiterate. As plaintiff no.1 did not apply before the Commissioner of Settlements of Land Records, her name was not recorded in the R.O.R. Rather, plaintiff nos. 2 and 3 along with defendant no.2 filed revision with the consent of plaintiff no.1. Plaintiff no.1 has no right, title and interest over the suit plot. Sale deeds Exts.B and C have been validly executed by defendant no.2 on the strength of GPA Ext.1. Delivery of possession of the suit land was made upon receipt of consideration amount and execution of sale deeds. There was no fraud or collusion in execution of GPA or sale deeds.

8. Considering rival pleadings the following issues were settled:-

(1) Is the suit as laid maintainable in the eye of law?

(2) Have the plaintiffs any cause of action to bring this suit?

(3) Have the plaintiffs valued the suit properly and have paid necessary court fees thereon?

(4) Is the suit barred by law of limitation?

(5) Have the plaintiffs right, title and interest over the suit lands?

(6) Are the plaintiffs entitled for declaration that the impugned registered sale deeds dt.28.6.89 and 30.6.89 are invalid documents and are the result of fraud & collusion?

(7) Are the plaintiffs entitled for alternative declaration that the suit properties being undivided homestead property and the defendant no.1 being a stranger, is not entitled for joint possession of the suit lands along with the plaintiffs.

(8) Are the plaintiffs entitled for a decree of permanent injunction as prayed for ?

(9) Are the plaintiffs entitled for a decree of confirmation of possession?

(10) To what other relief, if any, the plaintiffs are entitled ? 9. In order to substantiate their case plaintiffs examined six witnesses including plaintiff no.3 as P.W.1 and plaintiff no.2 as P.W.2 and also placed reliance on documents marked Exts.1 to 9. Defendants examined two

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DILLIP KUMAR SAHOO -V- MALATI ROUT [B.K. PATEL, J.] witnesses of whom D.W.1 is defendant no.1 and D.W.2 is defendant no.2. Defendants also placed reliance on documents marked Exts. A to D. 10. It is pertinent to observe that defendant no.2 while deposing as D.W.2 was put leading questions on behalf of defendant no.1 as he supported the case of the plaintiffs.

11. Salient findings of the trial court in its judgment and decree are as follows:- (i) by order passed in R.P. Case No.398 of 1989 under Ext.4, the

suit plot was directed to be recorded in the names of plaintiff nos.2 and 3 and defendant no.2, and pursuant to the said order the suit plot was mutated in their favour in the ROR, Ext.A;

(ii) it is the boundain duty of defendant no.1 to prove the GPA and contents thereof which the defendant has failed to do as he has not examined the scribe or any other witness to the GPA. As GPA Ext.1, proved by the plaintiffs, is a Xerox copy, no judicial observation can be made with regard to the GPA Ext.1;

(iii) as plaintiff no.1 being one of the legal heirs of late Rama Ch. Rout has a substantive interest in the suit property, in absence of partition among all the legal heirs of late Rama Ch. Rout, sale deeds Exts.B and C executed by defendant no.2 are not valid instruments for want of written consent of plaintiff no.1;

(iv) plaintiff no.3, examined as P.W.1, deposed in his examination-in-chief that power of attorney was given to defendant no.2 to look after their case, but in his cross-examination he has stated that he had given power to defendant no.2 to sell the joint family property and that on the date of sale of suit land they were present in the office of Sub-Registrar and had not raised any objection against such sale;

(v) as defendant no.1 had not examined the scribe or any of the witnesses to Exts.B and C to prove contents thereof, evidence of P.Ws.1 and 2 as well as D.W.2 that there was no passing of consideration cannot be ignored and that defendant no.1 has not proved the legal necessity of plaintiff nos.2 and 3 to alienate the suit lands;

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(vi) even if evidence of P.W.1 in his cross-examination to the effect that he was present at the time of execution of sale deeds on 28.6.1990 and he gave power to defendant no.2 to sell the joint family property is accepted as genuine and voluntary, and even if defendant no.2 admitted that execution of Exts.B and C is valid to the extent of the share of defendant no.2, defendant no.1 cannot acquire any interest through these impugned sale deeds because he has not adduced any evidence to disprove plaintiffs’ case that the suit land is their joint homestead property and defendant no.1 is an outsider to their family;

(vii) as P.Ws.3, 4 and 5 have failed to describe length and breadth of the suit property even on approximation, their evidence relating to possession is not acceptable;

(viii) sale deeds Exts.B and C being not valid instruments, said sale deeds cannot be held to be impeccable instruments by placing reliance on orders passed in mutation cases under Exts.6 and 7 as well as sale deed Ext.D; and

(ix) the fact that plaintiff nos.2 and 3 had not cancelled the GPA is not a ground to ignore the case of the plaintiffs.

12. On the basis of above said findings the trial court decreed the suit in terms of main reliefs sought for by the plaintiffs declaring that plaintiffs have right, title and interest over the suit land and the impugned sale deeds Exts.B and C are invalid, and confirming plaintiffs’ possession over the suit land as well as restraining defendant no.1 by way of permanent injunction from interfering with possession of the plaintiffs in respect of the suit land. 13. While upholding the trial court judgment and decree the lower appellate court further held:

(i) the GPA has not been proved or filed in the suit;

(ii) defendant no.1 has failed to prove due execution of the impugned sale deeds Exts.B and C;

(iii) onus lies on defendant no.1 to prove the due execution of impugned sale deeds Exts.B and C by adducing cogent and reliable evidence;

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(iv) defendant no.2 sold the suit land to defendant no.1 by virtue of sale deeds Exts.B and C without the consent and knowledge of other co-sharers;

(v) GPA Ext.1 is not considered as a valid document and it does not empower defendant no.2 to sell any portion of the suit plot without consent and knowledge of other co-sharers; and

(vi) defendant no.1 has purchased the suit land from defendant no.2 on the strength of a fake and invalid GPA.

14. In support of the second appeal it was submitted by the learned counsel for the appellant that substantial questions of law (a) to (d) relate to legality of GPA Ext.1 whereas substantial question of law (e) relates to legality of validity of sale deeds Exts. B and C and additional substantial question of law formulated subsequently relates to legal effect of sale of suit land under the two impugned sale deeds. It was further submitted that the plaintiffs have squarely admitted execution of GPA Ext.1 by plaintiff nos. 2 and 3 and sale deeds Exts. B and C by defendant no.2. Execution of other sale deeds in respect of other portion of the land out of the suit plot by defendant no.2 on the strength of GPA Ext.1 under sale deeds Ext.D series is also not disputed.

15. It was argued that law being well settled that admitted facts are not required to be proved, in the present case formal proof of GPA Ext.1 and sale deeds Exts. B and C was not necessary. Moreover, copy of GPA Ext.1 was admitted to evidence on behalf of the plaintiffs. Clause 7 of GPA Ext.1 confers authority on Defendant no.2 to transfer by way of sale or otherwise land out of suit plot.

16. It was also argued by the learned counsel for the appellant that in spite of the fact that the entire case of the plaintiffs in assailing the impugned sale deeds is based on their tirade against GPA Ext.1, no relief was sought for in the suit to declare GPA Ext.1 to be void or to cancel Ext.1. Also, admittedly, no step has yet been taken by the plaintiff nos. 2 and 3 for revocation of the GPA Ext.1. Considering all the circumstances, trial court was constrained to hold that no judicial observation can be given on GPA Ext.1. Therefore, there was no scope for the lower appellate court to hold or observe that GPA Ext.1 was not proved or that the same cannot be considered as a valid document conferring power on defendant no.2 to sell any portion of the suit plot.

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] 17. It was contended that in the plaint it was vaguely alleged that fraud was practised to get the GPA Ext.1 executed by plaintiff nos. 2 and 3. Neither any particular of alleged fraud was pleaded nor any evidence was adduced to support the plea of fraud. Therefore, on this score also there is no scope for the plaintiffs to assail validity or legality of the GPA Ext.1.

18. It was strenuously contended that the plaintiffs having not sought for the relief of cancellation of GPA Ext.1 which is the very basis of their challenge to the sale deeds, they are precluded from assailing the validity of the impugned sale deeds Exts. B and C in view of the provision under section 31 as well as under the proviso to section 34 of the Specific Relief Act.

19. It was argued that both the courts below not only failed to take note of the above said vital legal aspects in considering materials on record but also both the courts below committed gross illegality in not taking note of the fact that plaintiff no.3, in his evidence, while deposing as P.W.1, stated that they were present in the office of the Sub-Registrar on the date of sale of the suit land and had raised no objection against the registration. It was contended that such admission on the part of the plaintiff no.3 by itself leads to the only inference that the suit property was sold to defendant no.1 by defendant no.2 with the knowledge and consent of the plaintiffs and plaintiffs have filed the suit in collusion with defendant no.2 who supported the plaintiffs by not filing written statement and by deposing in their favour. Defendant no.1 being a bona fide purchaser of the suit land recorded in the names of plaintiff nos.2 and 3, and defendant no.2, has legally acquired title over the suit land.

20. It was also contended that validity of GPA Ext.1 is assailed by the plaintiffs on the ground that though no authority to sell the land out of the suit plot was given, fraudulently such authority was inserted into it. Therefore, it is not the case of the plaintiffs that GPA Ext.1 is void ab initio. Therefore, in the absence of any prayer to declare GPA Ext.1 to be void and in absence of any declaration by the courts below to that effect, GPA Ext.1 remains valid and binding on the executants.

21. It was further argued that plaintiffs have neither pleaded nor adduced evidence to the effect that the dwelling houses of plaintiffs and defendant no.2 stand on the suit property. On their own admission plaintiffs and defendant no.2 reside in village Patia whereas the suit plot situates in village Chandrasekharpur. Therefore, right of defendant no.2 as a co-sharer to transfer his share in the suit property out of the entire suit plot

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cannot be questioned in view of provision under section 44 of the Transfer of Property Act. It was argued that the suit land comprising of area Ac.0.900 decimals is well below the extent of share which defendant no.2 is entitled to, as he is entitled to at least 1/4th of suit property left behind by his late father Rama Chandra Rout. In such circumstances, there is absolutely no scope to declare sale deeds Exts. B and C to be void or invalid.

22. In course of his argument it was urged by the learned counsel for the appellant that though plea of non-payment of consideration for sale of the suit lands by defendant no.1 to defendant no.2 was taken, such assertion does not hold good in view of specific recitals in the sale deeds regarding payment of consideration and in view of absence of admissible evidence to rebut such recital in the sale deeds. 23. In reply, though at the initial stage of argument it was contended and conceded on behalf of the contesting respondent nos.1 to 3 that non-payment of consideration amount by defendant no.1 is not pressed as a ground for assailing the sale deeds Exts.B and C, at a later stage learned counsel for the contesting respondents sought to argue that both the sale deeds are vitiated by non-payment of consideration amount. Placing reliance on the decisions in Janak Dulari Devi –vrs.- Kapildeo Rai and Anr. : AIR 2011 SC 2521, Kaliaperumal –vrs.-. Rajagopal and another : (2009) 4 SCC 193, Durgamani Behera & Ors. –vrs.- Ghasiram Mohanta & Ors. : 1995 (I) CCC 368 (Orissa), Bhartu –vrs.- Nawal @ Chhote (Dead) through LRs. & Ors.: 2012(2) CCC 339 (Allahabad), Muddasani Sarojana –vrs.- Muddasani Venkat Narsaiah & Ors.: AIR 2007 Andhra Pradesh 50, Dhanbarti Koerin –vrs.- Shyam Narain Mahton & Ors.: AIR 2007 Patna 59 and M/s. John Tinson and Co. Pvt. Ltd. and others etc. –vrs.- Mrs. Surjeet Malhan and another etc. : AIR 1997 SC 1411, and upon reference to observations made in the judgments of both the courts below it was contended by the learned counsel for the appellant that though there can be a valid sale even in the absence of payment of consideration and actual delivery of possession, each transaction is required to be examined in order to find out the intention of the parties as to whether payment of consideration was a condition precedent for effecting transfer of immovable property. It was contended that though in the sale deeds Exts. B and C there is recital that consideration was paid by defendant no.1, both the courts below recorded the finding that defendant no.1 failed to prove payment of consideration and delivery of possession of the suit land. It was argued that though even in the absence of delivery of possession and payment of consideration, title to immovable property passes on registration of sale deed, both are strong circumstances to indicate that the vendor had

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] got no intention to transfer the immovable property without receipt of consideration and delivery of possession. It was strenuously contended that in view of such finding of the courts below there is no scope to entertain substantial questions of law relating to validity or otherwise of the GPA Ext.1 and sale deeds Exts. B and C as formulated in this second appeal. That apart, neither GPA Ext.1 nor any of the sale deeds Exts. B and C has been duly proved by defendant no.1 inasmuch as neither the scribe nor any of the witnesses thereto has been examined.

24. On the basis of above contentions it was further argued that in the absence of due proof of suit documents GPA Ext.1 and sale deeds Exts.B and C, the impugned sale deeds cannot be held to be valid even to the extent of share out of the suit plot to which defendant no.2 is entitled. 25. Learned counsel for the contesting respondents also argued that there being admittedly no partition of the suit plot among the co-sharers comprising of plaintiffs and defendant no.2, and the suit plot being a piece of homestead land, sale deeds executed by defendant no.2 alone without the consent of all other co-sharers is void. In this connection, reliance was placed by the learned counsel on the provisions under Section 44 of the Transfer of Property Act and Section 4 of the Partition Act as well as on the decisions in Gangadhar Mallik and another –vrs.- Kahnu Sethi and others : 38 (1972) CLT 1244 and Ramdas –vrs.- Sitabai & Ors. : 2009(4) CCC 259(SC).

26. It was further contended on behalf of contesting respondents that even if execution of GPA Ext.1 as well as sale deeds Exts. B and C are held to have been proved on admission, it was incumbent upon defendant no.1 to adduce evidence to prove contents thereof. It was pointed out that formal proof of document does not amount to the truth of the contents thereof.

27. With regard to omission of making any prayer in the suit for declaring GPA Ext.1 to be invalid or void, it was contended that neither Section 31 nor Section 34 of the Transfer of Property Act is applicable to the facts of the present case inasmuch as relief of such declaration is not a relief consequential to other reliefs sought for in the suit and decreed by the courts below. It was argued that plaintiffs’ suit is not a suit for declaration simplicitor but the plaintiffs prayed for consequential relief of permanent injunction also. Therefore, omission to make the the prayer for relief of declaration that GPA Ext.1 is invalid or void, is inconsequential.

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28. It was further argued that though no specific prayer was made for declaring GPA Ext.1 to be invalid or void, in the plaint it was elaborately pleaded that power of attorney was got executed by defendant no.2 from plaintiff nos.2 and 3, who were illiterate and one of whom was blind, by practising fraud and both the courts below having rendered findings on such pleading, lower appellate court was not precluded from holding the GPA Ext.1 to be an invalid document.

29. I have heard the contentions raised by learned counsel for the parties and perused the materials on record upon reference to substantial questions of law formulated for adjudication in this second appeal. Substantial questions of law (b) to (d) as well as parts of substantial questions of law (a) and (e) relate to validity and legal implications of GPA Ext.1 whereas other parts of substantial questions of law (a) and (e) and the additional substantial question of law formulated during the hearing of the appeal relate to legality of impugned sale deeds Exts. B and C. Thus, legality of these three vital documents GPA Ext.1 and sale deeds Exts.B and C has to be determined on the basis of findings of fact arrived at by the courts below. All the substantial questions of law formulated in the present appeal involve examination of the legality of findings of the courts below with regard to validity of GPA Ext.1 and sale deeds Exts. B and C, and adjudication thereof has to be made on the basis of, as has been held by the Hon’ble Supreme Court in Santosh Hazari –vrs.- Purushottam Tiwari (Dead) by Lrs. : AIR 2001 SC 965, legal questions arising out of pleadings of the parties and sustainable findings of fact arrived at by the courts below which are necessary for a just and proper decision of the case. It has been laid down in Santosh Hazari –vrs.- Purushottam Tiwari (Dead) by Lrs. (supra), relied upon by the learned counsel for the contesting respondents, that it will depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

30. It is to be borne in mind that execution of GPA Ext.1 by plaintiff nos.2 and 3 in favour of defendant no.2 in respect of entire suit plot as well as execution of sale deeds Exts.B and C by defendant no.2 in favour of defendant no.1 in respect of the suit land are admitted by the plaintiffs. Plaintiffs, however, dispute to have authorized defendant no.2 under GPA Ext.1 for sale of any part of the suit plot. They alleged defendant no.2 to have practised fraud in obtaining authority to sell the land out of the suit plot under GPA Ext.1. It is not disputed that GPA Ext.1 authorises defendant

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no.2 to deal with the suit plot for the purpose of signing and executing deeds of conveyance. Clause 7 of GPA Ext.1 reads as follows:

“That he shall purchase stamp papers, sign and execute any deed of conveyance, present the same and appear before the Registering Authority, admit execution thereof in our name and on our behalf.”

Not only plaintiffs do not dispute execution of GPA Ext.1 but also a copy of GPA Ext.1 was admitted into evidence on behalf of plaintiffs themselves. It is too fundamental to reiterate that admitted facts need not be proved. Therefore, there is absolutely no scope in the present case to raise any technical objection regarding admissibility of GPA Ext.1 or sale deeds Exts. B and C. Plaintiffs having admitted execution as well as contents thereof, decisions relied upon by the learned counsel for the contesting respondents in order to assail admissibility and proof thereof are of no relevance under the facts of the case. In view of circumstances of existence of endorsement in the GPA Ext. 1 that the same was read over and explained in Oriya to the executants, of absence of particulars of fraud and prayer to declare GPA Ext. 1 to be void in the plaint and of admission of GPA Ext. 1 into evidence on behalf of plaintiffs, decisions relied upon by the learned counsel for the contesting respondents relating to onus and manner of proof of a document executed by paradanashin woman are also not applicable to the facts of the present case due to want of factual foundation.

31. Plaintiffs pleaded that fraud was practised on plaintiff nos.2 and 3 to get GPA Ext.1 executed by them. However, plaintiffs are altogether silent regarding particulars of fraud. There is an endorsement in GPA Ext.1 to the effect that the same was explained in Oriya to the executants. Though fraud was pleaded to assail GPA Ext.1, no evidence was adduced in support of the allegation. Plaintiffs also did not make any prayer in the suit for declaring GPA Ext.1 to be invalid or void document. There being no dispute regarding execution of GPA Ext.1 by plaintiff nos.2 and 3, there is no scope for the plaintiffs to assail the GPA Ext.1 to be void ab initio. A voidable document in order to be avoided requires an action in law and declaration to that effect on the basis of cogent evidence. There is a presumption that a registered document is validly executed, and is prima facie valid in law. The onus of proof would be on the person who alleges to rebut the presumption. In this connection decision of the Supreme Court in Ranganayakamma and another vs. K.S.Prakash (D) by L.Rs. & Ors.: 2008 AIR SCW 6476, cited by the learned counsel for the respondents may be referred to. However, plaintiffs have chosen not to make any prayer to declare GPA Ext.1 to be a void document. Under the circumstances, as was contended

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on behalf of the appellant it may not be unreasonable to assume that plaintiffs have consciously not made any prayer for declaring GPA Ext.1 to be a void document and, rather, bound themselves to the contents thereof so far as it related to transaction with defendant no.1 under sale deeds Exts.B and C and laid emphasis on alternative relief of injunction only.

32. Entire case of the plaintiffs in assailing the transaction under sale deeds Exts.B and C is based on the validity of GPA Ext.1. Under Section 31 of the Specific Relief Act it was open for the plaintiffs to seek avoidance of GPA Ext.1 by making a prayer to that effect. Sub-section (1) of Section 31 provides that any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. Proviso to Section 34 of the Specific Relief Act provides for consequence of not making prayer for further relief which flows out of a declaration sought for in a suit and to which plaintiff seeking declaration is entitled to. Section 34 of the Specific Relief Act reads as follows:

“Discretion of Court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is to entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

Thus, even though plaintiffs plead that GPA Ext.1 was got executed by practising fraud and the sale deeds Exts. B and C are challenged on the basis of such pleadings, no prayer was made for cancelling or declaring GPA Ext.1 as void as provided under Section 31 of the Specific Relief Act. Proviso to Section 34 of the Specific Relief Act prohibits making of any declaration when a party entitled to seek further relief than a mere declaration of title omits to do so. 33. In Md. Noorul Hoda –vrs.- Bibi Raifunnisa and others : (1996) 7 SCC 767 it has been held by the Hon’ble Supreme Court as follows:

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INDIAN LAW REPORTS, CUTTACK SERIES [2013] “xx xx xx When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded. Section 31 of the Specific Relief Act, 1963 regulates suits for cancellation of an instrument which lays down that any person against whom a written instrument is void or voidable and who has a reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, can sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered or cancelled. xx xx xx xx”

34. in Edukanti Kistamma (dead) through L.Rs. and others – vrs.- S. Venkatareddy (dead) through L.Rs. and others : (2010) 1 SCC 756 it has been held that it is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined.

35. Not only GPA Ext.1 has been admitted without objection but also GPA Ext.1 has been admitted into evidence on behalf of the plaintiffs. There is no dispute regarding execution of sale deeds Exts. B and C. In R.V.E.Venkatachala Gounder –vrs.- Arulmigu Viswesaraswami and V.P. Temple and another : AIR 2003 SC 4548 it has been held that when a document is admitted into evidence without objection, it cannot be said to be inadmissible being a photo copy. In Life Insurance Corporation of India –vrs.- Narmada Agarwalla and others : AIR 1993 Orissa 103 this Court has held that once a document is marked on admission, contents thereof are also treated to be admitted though truth of correctness of the contents of the document is required to be ascertained from evidence on record.

36. Learned counsel for the appellant also placed reliance on the decision of the Hon’ble Supreme Court in Ningawwa –vrs.- Byrappa Shiddappa Hireknrabar and others : AIR 1968 SC 956 to contend that when a contract or other transaction is assailed on the ground of fraud, such transaction cannot be assailed to be void ab initio, but it becomes voidable at the option of the party alleging fraud. Until it is avoided, the transaction is

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valid, so that third parties without notice of the fraud may in the meantime acquire rights and interests in the matter which they may enforce against the party alleging fraud. The legal position will be otherwise if there is fraudulent misrepresentation not merely as to the contents of the document but as to its character. With reference to the former, the transaction is void, while in the case of the latter, it is merely voidable.

37. In view of the above, the trial court is found to have correctly refrained from rendering any finding or observation with regard to GPA Ext.1. The trial court has taken note of the fact that plaintiff no.3, who was examined as P.W.1, categorically admitted at paragraph 7 of his cross-examination that he had given power of attorney to defendant no.2 to sell their joint family land. Also, at paragraph 10 of his cross-examination this witness admitted that on the date of sale of the suit land they were present in the Sub-Registrar office. It is also worthwhile to note that contesting defendant no.1 has brought on record registration copies of sale deeds Exts.D and D/1, execution of which by defendant no.2 in favour of other transferees in respect of other land out of the suit plot on the basis of authority derived from GPA Ext.1 has not been assailed. In such circumstances, the lower appellate court had no basis to render a finding that GPA Ext.1 cannot be considered to be a valid document empowering defendant no.2 to sell the land out of the suit plot. Conclusion of the lower appellate court with regard to GPA Ext.1 to be an invalid and fake document is not sustainable in law.

38. Extent of suit land in respect of which impugned sale deeds have been executed comprises of an area measuring Ac.0.900 decimals. It is not disputed that the extent of suit property is well within 1/4th share of the suit plot measuring Ac.4.750 decimals to which defendant no.2 is entitled. As has been adverted to earlier, initially it was conceded on behalf of the contesting respondents that plaintiffs do not assail validity of sale deeds Exts. B and C on the ground of non-payment of consideration amount. However, at a later stage, attempt was made to assail the impugned sale deeds on the ground also of non-payment of consideration amount. Execution of sale deeds Exts. B and C is an admitted fact. P.W.1 admits that they were present in the office of the Sub-Registrar on the date of execution of the sale deeds. There are explicit recitals in the sale deeds regarding receipt of consideration amount by defendant no.2. Defendant no.2 was the most competent person who could have adduced evidence regarding non-payment of consideration amount on the face of pleading and evidence of defendant no.1 that consideration amount was paid. However, defendant no.2 did not choose to file any written statement and while

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deposing in court supported the plaintiffs. In the absence of any pleading by defendant no.2 with regard to non-payment of consideration amount, assertion made by defendant no.2 in court while deposing as witness is of no consequence and is to be ignored. In Ram Sarup Gupta (dead) by L.Rs. vs. Bishun Narain Inter College and others: AIR 1987 SC 1242, cited by the learned counsel for the respondents, it has been pointed out that it is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. In such circumstances, there is no scope for the plaintiffs to assail the sale deeds on the ground that there is no passing of consideration amount. Consequently, under the facts and circumstances of the case, sale deeds Exts. B and C have the effect of passing of title of the suit property to the purchaser upon execution and registration thereof.

39. It is well-settled that on execution and registration of a sale deed, the ownership, title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which has to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered from the evidence, recital of the sale deed and other circumstances. In this context, decision in Bishundeo Narain Rai (dead) by L.Rs. and others –vrs.- Anmol Devi : AIR 1998 SC 3006 may be referred to. In Dulana Dei alias Dolena Dei –vrs.- Balaram Sahu : AIR 1993 Orissa 59 this Court has pointed out that when the immovable property was sold by a registered sale deed and recital in sale deed admitted that the vendor intended to transfer the title in favour of vendee on the very date of execution of sale deed, it cannot be said that for non-payment of consideration there was no passing of title. In Janak Dulari Devi –vrs.- Kapildeo Rai and Anr. (supra) and other decisions relied upon by the learned counsel for the contesting respondents also it has been pointed out that normally ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. However, this is not an invariable rule, as the true test of passing of property is the intention of parties. Learned counsel for the appellant has not raised any dispute with such settled principles of law.

40. Reliance was placed on the provisions under Section 4 of the Partition Act and under Section 44 of the Transfer of Property Act by the plaintiffs for assailing the sale deeds executed by defendant no.2 as a co-sharer in respect of the suit property. Neither Section 4 of the Partition Act

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nor Section 44 of the Transfer of Property Act prohibits the sale of undivided interest by a co-owner. However, where the sale is in respect of the dwelling house belonging to undivided family, the purchaser cannot claim separate possession. In the decision in Gourhari Das –vrs. Kalpataru Das and others : 34 (1992) O.J.D. 137 (Civil) it has been pointed out by this Court that when there is no proof of the fact that the disputed properties are parts of the dwelling house, protection under Section 4 of the Partition Act is not available. In Harekrushna Mahakud –vrs.- Radhanath Mahakud & Ors. : 2009 (1) CLR 560 also this Court with reference to Section 44 of Transfer of Property Act has pointed out that transfer by one of the co-owners remains valid to the extent of the share of the transferor.

41. Learned counsel for the appellant has also placed reliance on the decisions of the Hon’ble Supreme Court in Hardeo Rai vs. Sakuntala Devi and others: (2008) 7 SCC 46 and of this Court in Smt. Bina Sukla –vrs.- Smt. Meena Devi Panch and others : 106 (2008) CLT 330 to urge that a co-owner can transfer his undivided interest in a joint property and the transferee acquires right to enforce the sale.

42. In the present case plaintiffs have not pleaded that they have their dwelling house on the suit property. On the contrary, in the cause title and verification in the plaint the plaintiffs and while deposing in court P.Ws.1 and 2 described themselves to be the residents of village Patia which locality is admittedly different from village Chandrasekharpur where the suit property is situated. Evidence of P.Ws.1 and 2 also is altogether silent regarding existence of their dwelling house over the suit property. In fact, they have not stated regarding existence of any dwelling house on the same. Considering the nature of evidence adduced by plaintiffs, the trial court has rendered a positive finding to the effect that evidence of P.Ws.3, 4 and 5 with regard to possession of the plaintiffs over the suit property is not acceptable. The finding remains un-assailed. No doubt in the record of rights the suit plot has been described to be of Gharbari kissam which means that the nature of the suit plot is homestead, but in absence of any evidence with regard to existence of dwelling house or even house on the suit property, provisions relating to transfer of undivided property, i.e., dwelling house under Section 4 of the Partition Act or under the proviso to Section 44 of the Transfer of Property Act are not attracted in the present case.

43. Thus, in view of the above discussions, not only GPA Ext.1 remains a valid document but also there is no scope to declare the sale deeds Exts. B and C to be void or invalid documents. Defendant no. 1 has acquired title

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over the suit property on the strength of sale deeds Exts. B and C. As a true owner, he has acquired the right to enforce the right, title and interest over the suit property. In the absence of case for declaration of their right, title and interest over the suit property against defendant no. 1, plaintiffs are not entitled to any relief in the suit.

44. Before parting with the judgment, it is observed that it is evident from the fact of impletion of respondent no. 5 in this appeal on the basis of claim of being a lis pendent purchaser that there has been successive sale of suit property. The present suit is one of the instances of the impact of high price rise of land in Bhubaneswar. Scramble for land is leading to unscrupulous transactions even if the owner has already sold the land to bona fide purchaser. As a result, litigations of the present nature are on the rise. Plaintiff nos.2 and 3 along with defendant no.2 got the record of rights in respect of the suit plot prepared exclusively in their names to the exclusion of plaintiff no.1. Plaintiff nos.2 and 3 executed GPA Ext.1 in respect of the suit plot in favour of defendant no.2. Thereafter, plaintiffs combined with defendant no.2 in instituting the present suit which is evident from the fact that defendant no.2 not only did not file written statement but also supported the plaintiffs while deposing in court making a somersault with regard to execution of GPA Ext.1 and sale deeds Exts. B and C thereby leaving defendant no.1 a bona fide purchaser in the lurch. In such circumstances, defendant no.1 is entitled to protection not only under law as stated above but also in equity.

45. In the result, the second appeal is allowed. Judgments passed by both the courts below are set aside. Plaintiffs’ suit is dismissed. Parties shall bear their own cost.

Appeal allowed.

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2013 ( I ) ILR - CUT- 747

B. K. NAYAK, J.

CRLMC. NO. 2267 OF 2006 (Dt.17.10.2012)

PINTU @ SUJIT KUMAR GIRI & ORS. …….Petitioners

.Vrs. STATE OF ORISSA ……..Opp.Party CRIMINAL PROCEDURE CODE, 1973 – S.155 (4) Complaint Case – If a complaint contains the allegation about commission of offences both U/s.498-A and U/s.494 I.P.C., the Court can take cognizance there of even on a police report.

In this case there are clear allegations in the F.I.R. that during the course of torture, cruelty meted out to the Opp.Party-informant –The petitioners threatened to drive her away and solemnize a second marriage of the husband of the informant which is an integral part of the offence U/s.498-A I.P.C. – Held, there is no infirmity in the impugned order Dt.21.8.2004 passed by the learned SDJM, Balasore taking cognizance U/ss.498-A, 494, 323/34 I.P.C. and Section 4 of the D.P. Act.


1.2006 (1) OLR 777 : (Ashok Kumar Mohanty-V- State of Orissa) 2.AIR 1984 SC 1108 : (State of U.P.-V- Suresh Chandra Srivastava & Ors.) 3.1996 (6) SCC 435 : (State of Orissa-V- Sarat Ch. Sahu & Anr.) 4.(2012)6 SCC 353 : (Ushaben-V- Kishorbhai Chunilal Talpada & Ors.).

For Petitioner - M/s. Smira ku. Mishra For Opp.Party - M/s. Sabita Tola

Heard learned counsel for the petitioner, learned counsel for the State and the learned counsel for the informant.

Perused the records.

In this application under Section 482 of the Code of Criminal procedure the petitioners challenge the order dated 21.08.2004 passed by the learned S.D.J.M., Balasore in Crl.Trial No.679 of 2004 taking cognizance of the offences under Sections 498-A, 494, 323/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act against the petitioners.

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The only contention raised by the learned counsel for the petitioners that the offence under Section 494 of the Indian Penal Code is a non-cognizable offence, cognizance of which can be taken by the magistrate only on the basis of a complaint as required under Section 198, Cr.P.C. and that no cognizance in respect of that can be taken on the basis of a police report along with offences under sections 498-A and 323 of the Indian Penal Code inasmuch as the FIR does not disclose that the offence under section 494 of the Indian Penal Code is an integral part of offence under sections 498-A of the Indian Penal Code. In this respect he relies on a decision of this Court reported in 2006 (1) OLR 777; Ashok Kumar Mohanty-v- State of Orissa wherein similar circumstances, cognizance having been taken for offences under Sections 498-A, 494, 506/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, this Court quashed the cognizance under section 494 of the Indian Penal Code in the absence of a complaint in that respect. For passing such order this Court took note of the provisions under Section 198 Cr.P.C. which curtails the power of the Court to take cognizance of the offences punishable under Chapter XX of the Indian Penal Code except upon a complaint made by some person aggrieved by the offence. This Court also took into consideration the dictum of the apex Court in AIR 1984 S.C. 1108; State of U.P. v. Suresh Chandra Srivastava & others wherein it has been held as under :

“6. “In these circumstances, therefore, it is not necessary for us to go into the broader question as to whether if offences under Sections 467, 471 and 120-B, I.P.C. are committed, the complaint could proceed or not. The law is now well settled that where an accused commits some offences which are separate and distinct from those contained in Section 195, Section 195 will affect only the offences mentioned therein unless such offences form an integral part so as to amount to offences committed as a part of the same transaction, in which case the other offences also would fall within the ambit of S.195 of the Code.”

However the aforesaid decisions have not taken note of the provision of Section 155 (4), Cr.P.C. which was taken note of by the apex Court in the subsequent decision in the case of State of Orissa v. Sarat Ch. Sahu and another 1996 (6) SCC 435; wherein it is held as follows:

“11. Sub-section (4) creates a legal fiction and provides that although a case may comprise of several offences of which some are cognizable and others are not it would not be open to the police to investigate the cognizable offences only and omit the non-

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PINTU @ SUJIT KUMAR GIRI -V- STATE cognizable offences. Since the whole case (comprising of cognizable and non-cognizable offences) is to be treated as cognizable, the police had no option but to investigate the whole of the case and to submit a charge-sheet in respect of all the offences, cognizable or non-cognizable both, provided it is found by the police during investigation that the offences appear, prima facie, to have been committed.”

Similarly in the case of Ushaben –vrs- Kishorbhai Chunilal Talpada and others; (2012) 6 Supreme Court Cases 353 taking note of sub-Section (4) of Section 155 Cr.P.C. the apex Court held that if a complaint contains the allegation about commission of offences both under section 498-A of the Indian Penal Code as well as Section 494 of the Indian Penal Code, the Court can take cognizance thereof even on a police report. In view of such pronouncement of the Supreme Court, the decision of this Court in the case of Ashok Kumar Mohanty (supra) cannot be said to have laid down the correct position of law. The contention raised by the learned counsel of the petitioners has no force.

Apart from the above, on going through the copy of the F.I.R., it is found that there are clear allegations that during the course of torture and cruelty meted out to the opposite party-informant the petitioners threatened to drive her away and solemnize a second marriage of the husband of the informant, which is definitely an integral part of the offence under section 498-A of the Indian Penal code.

In the aforesaid circumstances I find no infirmity in the impugned order of cognizance. The CRLMC is accordingly dismissed as being devoid of merit. Interim order of stay of the Criminal Trial No.679 of 2004 stands vacated. Application dismissed.

Documents

ILR - APRIL-2013 - Orissa High Court, Cuttackorissahighcourt.nic.in/ilr/ILR-APRIL-2013.pdf549 M/S.HINDUSTAN CONSTRUCTION-V- STATE [V.GOPALA GOWDA,CJ. ] learned Senior Counsel Mr. R.K