ILR Cuttack August-2014

Transcription

2014 (II) ILR - CUT- 205
A.K. GOEL, CJ, B. P. RAY, J & DR. A. K. RATH, J.
FULL BENCH
O.J.C. NO. 17629 OF 2001
ARUNA KUMAR SWAIN & ANR.
………Petitioners
.Vrs.
STATE OF ORISSA & ORS.
………Opp.Parties
A. ODISHA EDUCATION ACT, 1969 - S. 7-C(4)
Whether the Court under Article 226 of the Constitution of Iindia
can direct the Government for making necessary budgetary allocation
for payment of Grant-in-aid to persons who are found eligible under the
grant-in-aid order framed U/s.7 (4) of the Act, when Section 7-C (4)
provides for grant-in-aid as per orders of the state it self and such
order cannot be rendered ineffective by permitting plea of financial
incapacity? – Held, if a case falls under the order covered by Section 7C (4), it will create an enforceable right and the Court is bound to
enforce the same under Article 226 of the Constitution – The judgment
in Prafulla Kumar Sahoo’s case is perfectly in consonance with the law
laid down by the Apex Court and this Court finds no valid reason to
take a different view – The reference is answered accordingly.
(Para 28)
B.
CONSTITUTION OF INDIA, 1950 - ART. 226
Writ jurisdiction – Whether the Court under Article 226 of the
Constitution can direct the Government for making necessary
budgetary allocation for payment of Grant-in-aid to persons who are
found eligible under the grant-in-aid order framed U/s. 7-C (4) of the
Odisha Education Act, 1969 – Held, Yes.
(Para 26)
Case laws Referred to:1.93 (2002) CLT 79 (SC) : (State of Orissa-V- Pratap Kumar Nayak & Anr.)
2.2003(I) OLR-91
: (Prafulla Kumar Sahoo-V- State of Orissa & Ors.)
3.AIR 1962 SC 1543 : (Madanlal Fakirchand Dudhediya-V- Shree
Changdeo Sugar Mills Ltd. & Ors.)
4.AIR 1993 SC 2178 : (Unni Krishnan J.P. & Ors.-V- State of A. P. & Ors.)
5.AIR 2005 SC 3226 : (P.A. Inamdar & Ors.-V- State of Maharashtra &
Ors.)
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INDIAN LAW REPORTS, CUTTACK SERIES
[2014]
6.(2008) 6 SCC 1
7.(1993) 4 SCC 288
: (Ashoka Kumar Thakur-V- Union of India & Ors.)
:(All India Judges’ Association & Ors.-V- Union of
India & Ors.)
8.((2000) 2 SCC 42
: (The Chandigarh Administration & Ors.-V- Mrs.
Rajni Vali & Ors.)
9.(1979) 3 SCC 489
: (Ramana Dayaram Shetty-V- International Airport
Authority of India & Ors.).
10.1965 AIR 1636
: (Keshav Mills Co. Ltd.-V- Commissioner of Income
Tax)
For Petitioner - Mr. K.K. Swain, Advocate
For Opp.Parties - Mr. R.K. Mohapatra, Govt. Advocate.
Date of hearing : 01 05. 2014
Date of judgment :14. 05. 2014
JUDGMENT
DR.A.K.RATH, J.
This reference has been made by a Division Bench of this Court to
the Full Bench for an authoritative pronouncement on the scope and ambit of
Section 7-C of the Orissa Education Act, 1969 (hereinafter referred to as ‘the
Act’), the interplay of Section 7-C(1) and Section 7-C(4) of the Act and the
Grant-in-Aid Order promulgated in terms of Section 7-C(4) of the Act vis-àvis the jurisdiction of this Court under Article 226 of the Constitution to direct
the Government for making necessary budgetary allocation for payment of
Grant-in-Aid.
2.
The reference order is as follows:
“The question raised in this case is of general importance. It
relates to the scope of ambit of section 7-C of the Orissa Education
Act. In particular it relates to the interplay of Section 7-C(1) and 7C(4) of the Act and the grant-in-aid order promulgated in terms of
section 7-C(4) of the Act. The Government has taken the stand that it
has been making budgetary allocations within the limit of its
economic capacity and the claims of all those who may be eligible for
the grant-in-aid could not be considered in view of paucity of funds
and they will be considered, if found eligible, for grant-in-aid as and
when sufficient funds are allocated in that regard. The State counsel
relies upon section 7-C(4) of the Act in support of its submission.
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ARUNA KUMAR SWAIN -V- STATE OF ORISSA
[DR.A.K.RATH, J.]
Mr. Swain, learned counsel for the petitioners relying upon the
decision in OJC No.126 of 2001 submitted that this Court can issue a
direction to the government to make necessary budgetary allocation
for payment of grant-in-aid to all persons who are found eligible
under the grant-in aid to all persons who are found eligible under the
grant-in-aid order framed under section 7-C(4) of the Act. It is further
submitted that once a person becomes eligible for grant-in-aid in
terms of the grant-inaid order, the plea of paucity of funds cannot be
accepted in the light of the relevant decision of the Supreme Court.
Though in State of Orissa Vrs. Pratap Kumar Nayak & another,
93(2002) C.L.T. 79(SC), the Supreme Court had occasion to refer to
section 7-C of the Act, their Lordships have not examined the scope
of that provision or the interplay of Sections 7-C(1) and 7-C(4) of the
Act and the grant-in-aid order framed thereunder. But their Lordships
have reversed the direction issued by this Court for payment of grantin-aid and have affirmed another direction issued by this Court to the
Government to consider the claim for grant-in-aid in terms of section
7-C of the Act. Thus, the guideline issued by this decision is to the
effect that it is a matter for the Government to consider and mere
eligibility to receive grant-in-aid under the Grant-in-Aid Order, does
not necessarily result in a person getting grant-in-aid as envisaged.
In that context, Mr. Swain submits that the Division Bench in the
decision referred to above, had issued a direction to the government
to make allocation of funds after considering the case of the
petitioner therein and if he is found eligible for grantin- aid in terms of
the grant-in-aid order. With great respect, we find it difficult to agree
that in each and every case once it is found that a person is eligible
for grant-inaid in terms of the grant-in-aid order, a direction can be or
should be issued to the government to make budgetary allocation for
payment to that person. Actually, there is no case that the
Government is not making allocations. It is making allocations, but its
plea is that allocation is being made within the limits of its economic
capacity. It is not the case that the plea of economic incapacity put
forwarded by the Government is not bona fide and is a mere pretext
for avoiding a statutory obligation or a constitutional obligation. In that
situation, can the Court direct the Government to make budgetary
allocation for payment of grant-in-aid to those who become eligible to
receive grant-in-aid under the grant-in-aid order? It is not the case of
one person or a few. A large number of teaching and non-teaching
staff of various educational institutions are waiting. Therefore, unless
we hold that the Government has an unqualified or absolute
obligation and/or a constitutional obligation to make budgetary
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allocation for disbursement of grant-in-aid, any such direction as
sought for cannot be granted. Normally this Court cannot issue a
direction to the Government to make budgetary provision for meeting
such an obligation with respect to any particular person or persons or
any institution or institutions. There is also question as to how far this
Court, exercising its jurisdiction under Article 226 of the Constitution,
can direct that budgetary allocation be made –- in this case be
enhanced –-in the circumstances, like the present. As we notice,
there are teaching and non-teaching staff who are already in the
Grant-in-Aid fold and are waiting for arrears and regular salary
payable to them and such matters are brought up every day before
this Court. We think that an authoritative pronouncement by a Full
Bench of this Court on the scope and ambit of section-7-C of the
Orissa Education Act and the interplay of section 7- C, the Grant-inAid Order and other relevant orders and statutory provisions and
judicial pronouncements is needed so that the decision can be
applied uniformally in all cases. In view of this and in view of some of
the observations made in the judgment in OJC No.126 of 2001 with
which we find some difficulty in agreeing, we feel that the matter
requires to be decided by a Full Bench. We, therefore, refer this case
as a whole to the Full Bench to finally decide all the questions falling
for decision.”
3.
Before proceeding to consider the question, it may be necessary to
refer to the case of the parties.
4.
The petitioners seek direction for approval of their appointment and
for release of salary under the direct payment scheme as per the provisions
of the Grant-in-Aid Order of 1994 read with Rule 9 of the Orissa Education
(Recruitment etc.) Rules, 1974 (in short “the Rules”). Their case is that they
are teaching staff of Sukinda College, Sukinda in the district of Jajpur. It is an
aided educational institution under Section 3(b) of the Orissa Education Act,
1969 (in short “the Act”). They were appointed on 19.12.1992 as
Demonstrator in Chemistry/Physics and became eligible to receive grant-inaid w.e.f. 01.06.1998 as per Rule 9 of the Rules, 1974, but approval to their
appointment and grant of salary has not been given. It is stated that
appointment of lecturers in the said college has been approved and they are
receiving salary, but demonstrators are not which is in violation of Article 14
of the Constitution of India.
5. In the counter affidavit filed by the Deputy Director of Higher Education,
it is stated that the Government has taken into consideration all the cases
which acquired eligibility for grant-in-aid up to 01.06.1990 and not beyond.
209
[DR.A.K.RATH, J.]
Since the petitioners acquired eligibility on 01.06.1998, their cases have not
been considered on account of economic capacity of the Government.
6.
Relying upon the earlier judgment of this Court in Prafulla Kumar
Sahoo Vrs. State of Orissa and others, 2003(I) OLR-91, it was submitted
that the Government be directed to make necessary budget allocation for
grant-in-aid to those who are found eligible for grant-in-aid under Section 7-C
(4) of the Act. The plea of paucity of funds could not be accepted, -as held
by this Court.
7. The Bench hearing the matter, vide above order of reference, found it
difficult to agree with some of the observations in Prafulla Kumar Sahoo. It
was observed that mere eligibility may not create an obligation, nor create a
right for direction to make budget allocation unless the plea of financial
incapacity is not bona fide. Accordingly, the Bench referred the whole case
to the Full Bench to finally decide the question.
8.
We have heard learned counsel for the parties and perused the record.
9. The Act has been enacted by the State of Orissa for better organization
and development of educational institutions in the State. It, inter-alia,
provides for regulating establishment of educational institutions, grant of
recognition, management of educational institutions, appointment and
service conditions of teachers and setting up of a tribunal to adjudicate
disputes between the managing committees and teachers/employees.
10. Section 7-C of the Act relates to Grant-in-Aid. The same was
incorporated in the Act by Orissa Education (Amendment Act), 1994.
Subsections (1) and (4) of Section 7-C of the Act are hub of the issues. The
same are quoted hereunder:“7-C(1) Grant-in-Aid - The State Government shall within the limits of
its economic capacity, set apart a sum of money annually for being
given as grant-in-aid to private Educational Institution in the State.
xx xx xx
(4) Notwithstanding anything contained an any law, rule, executive
order or any judgment, decree or order of any Court, no grant-in-aid
shall be paid and no payment towards salary costs or any other
expense shall be made to any private educational institution or for
any post or to any person employed in any such institution after the
commencement of the Orissa Education (Amendment) Act, 1994,
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except in accordance with an order of rule made under this Act.
Grantin-Aid where admissible under the said rules or order, as the
case may be, shall be payable from such date as may be specified in
that rule or order or from such date as may be determined by the
State Government. Provided that pending framing of such rule or
issue of order, the State Government may, without jurisdiction to
such rule or order, direct that private educational institutions which
were receiving grant-in-aid and the posts in such educational
institutions in respect of which grant-in-aid was being released shall
continue to be paid such amount as grant-in-aid as was being paid to
them immediately prior tocommencement of the Orissa Educational
(Amendment) Act,1994”.
11. In exercise of power under Section 7-C (4) of the Act, the Orissa (NonGovernment Colleges, Junior Colleges and Higher Secondary Schools)
Grant-in-Aid Order, 1994 (in short, “the 1994 Order”), has been issued to
regulate payment of grant-inaid to private educational institutions. The
Order lists the categories of non-government educational institutions eligible
for consideration as aided educational institutions, procedure for notifying an
institution as aided educational institution and the extent of aid to be given.
Aid has to be given for the teaching and non-teaching posts of the specified
categories at admissible rates.
12.
In Prufulla Kumar Sahoo, the question for consideration was as to the
validity of decision to abolish 50% of base level posts and not to admit any
posts in the cadre of Class III and Class IV into grant-in-aid unless
necessary for academic activity of the college. Prufulla Kumar Sahoo was
getting grant-in-aid against the post of a Library Attendant. He was promoted
to the post of Junior Librarian and the said post was not admitted to the
grant-in-aid fold. The contention raised on behalf of Sahoo was that grant-inaid having already been sanctioned for the post in question, the same could
not be discontinued in view of the provisions of the 1994 Order. Plea of lack
of financial capacity could not be the justification to avoid responsibility or the
State for proper education. Section 7-C (1) applied to institutions and not to
posts and if the institutions are covered by the grant-in-aid, aid in respect of
a post for which grant-in-aid had already been sanctioned could not be
discontinued.
13.
After a succinct analysis of the entire case law vis-à-vis Sections 7C(1), 7-C(4) and Grant-in-Aid Order 1994, the Bench speaking through
Justice A.K.Patnaik (as His Lordship then was), in paragraphs 12, 13 and 15
of the report held as under:-
211
[DR.A.K.RATH, J.]
“12. ….After the claim to eligibility to grant-in-aid is decided by the
Director, the State Government has to decide the date from which the
grant-in-aid would be paid after finding the resources for making such
payment. If funds are available under the budget for making payment
of the grant-inaid, the State Government can forthwith issue the order
specifying the date from which the payment of grant-in-aid would be
made. But if budgetary allocations for grant-in-aid have been
exhausted, the State Government will have to wait till such budgetary
allocations are made. Thus until the State Government issues an
order determining the date from which grant-in-aid is payable to an
educational institution or to a member of the teaching or non-teaching
staff of the educational institution after finding the resources for the
same, grant-in-aid cannot be claimed as a matter of right and no
direction can be issued by the Court for payment. But once the State
Government issues an order determining the date from which grantin-aid is payable, a direction can be given by the Court to make
payment of grant-in-aid, both current and arrear. This conclusion is in
accord with the decision of the Supreme Court in State of Orissa
and another v. Pratap Kumar Nayak and another (supra) that case
of each employee for grant-inaid has to be considered as per the
Grant-in-Aid Order and Section 7-C of the Orissa Education Act,
1969 and it is for the State Government to examine each and every
case in accordance with the prescribed procedure for such grantinaid. This conclusion is also consistent with the view taken by the
Full Bench of this Court in Laxmidhar Pati and others v. State of
Orissa and others (supra) that mere eligibility to grantin- aid ipso
facto does not confer a right or entitlement on the educational
institution or its teaching or non-teaching staff to claim and receive
grant-in-aid.
13.
This is not to say that after the eligibility or admissibility to
grant-in-aid is decided in accordance with the Grant-in-Aid Order,
1994 by the authorities of the Education Department, Government of
Orissa, the State Government will defer payment of grant-in-aid to
educational institutions or members of teaching or non-teaching staff
held to be eligible or admissible to grant-in-aid for a long and
indefinite period of time. Sub-section (1) of Section 7-C of the Orissa
Education Act provides that the State Government “shall” within the
limits of its economic capacity, set apart a sum of money annually for
being given as grant-in-aid to private educational institutions in the
State. The aforesaid provisions of law, therefore, casts an obligation
on the State Government to set apart a sum of money for being given
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as grant-in-aid to private educational institutions in the State. Such
obligation of the State Government, however, is subject to the limits
of its economic capacity.
15.
Orissa is a State with large sections of people including
Scheduled Castes and Scheduled Tribes who are illiterate and
backward consistent with the Directive Principles of the State Policy
in Articles 41 and 46 of the Constitution, the legislature has imposed
a mandate on the State Government under Sub-section (1) of
Section 7-C of the Orissa Education Act to set apart a sum of money
annually for being given as grant-in-aid to private educational
institutions in the State subject to the limits of its economic capacity.
The State Government has also made the Grant-in-Aid Order, 1994
under Sub-section (4) of Section 7-C of the Orissa Education Act
clearly indicating the relevant factors to be taken into consideration
for deciding the eligibility of an educational institution or a member of
teaching or non-teaching staff of such educational institution keeping
in mind the educational needs of the State. The State Government
cannot ignore such legislative mandate as well as the Directive
Principles of State Policy and the statutory provisions of the Grant-inAid Order, 1994. Unless, therefore, there are other more pressing
needs than education, the State Government must set apart sufficient
money for making payment of grant-in-aid to educational institutions
or their teaching or non-teaching staff in accordance with the Grantin-Aid Order, 1994”.
(Empahasis added)
14.
The above decision has been holding the field for the last more than
11 years. Appeals against the same, being Civil Appeal No.4389 of 2006
and connected matters, were dismissed by the Hon’ble the Supreme Court
on 18.8.2010, as follows:
“We have carefully gone through the impugned judgment passed by
the Division Bench of the High Court of Orissa. In our considered
view, no interference is called for. These appeals are devoid of any
merit. We, however, direct the appellant to decide the case of the
respondents as expeditiously as possible and, in any event, within
four months from the date of communication of this order.”
15.
Contention raised on behalf of the State and the observation in the
reference order suggesting that Section 7-C (4) is subject to Section 7-C (1),
on the basis of which observation in Prafulla Kumar Sahoo have not been
agreed to by the referring Bench, cannot be accepted. We do not find any
213
[DR.A.K.RATH, J.]
conflict in the two sub-sections. It is difficult to hold that Section 7- C(4) is
controlled by Section 7-C (1). The view taken in Prufulla Kumar Sahoo is that
the State is under an obligation under Section 7-C (4) to set apart such sum
of money as may meet the mandate of Section 7-C(4). The said mandate is
supported by directive principles under Articles 41 and 42 of the Constitution.
The words “within the limits of its economic capacity” in Section 7-C(1) refers
to incapacity which may arise on account of other more pressing needs than
education. This expression cannot be read as nullifying the mandate of
Section 7-C(4). It is obvious that grant-in-aid has to be paid as per Order or
Rule made by the State itself. There is no reason to resume that the State
will issue an Order/Rule without its economical capacity. Once Rule/Order is
issued under Section 7-C(4), plea of lack of economic capacity cannot be
allowed to be raised to nullify the same order or Rule issued by the State
itself
16.
It is well settled that two sub-sections in the same Section cannot be
interpreted to be in conflict with each other. Reference may be made to
Madanlal Fakirchand Dudhediya Vs. Shree Changdeo Sugar Mills Ltd.
and others, AIR 1962 SC 1543 laying down as follows:
“17. In construing section 76(1) and (2), it would be necessary to
bear in mind the relevant rules of construction. The first rule of
construction which is elementary, is that the words used in the
section must be given their plain grammatical meaning. Since we are
dealing with two subsections of S. 76, it is necessary that the said
two sub-sections must be construed as a whole "each portion
throwing light, if need be, on the rest." The two sub-sections must be
read as parts of an integral whole and as being inter-dependent; an
attempt should be made in construing them to reconcile them if it is
reasonably possible to do so, and to avoid repugnancy. If
repugnancy cannot possibly be avoided, then a question may arise
as to which of the two should prevail. But that question can arise only
if repugnancy cannot be avoided.”
17.
Since Section 7-C(4) provides for grant-in-aid as per orders of the
State itself, such order cannot be rendered ineffective by permitting plea of
financial incapacity. Section 7-C(1) can only apply to claim for grant-in-aid
beyond the orders of the State under Section 7-C(4).
18.
Importance of education is well known. Development of the nation is
dependent on education. In Unni Krishnan J.P. and others v. State of
Andhra Pradesh and others, AIR 1993 SC 2178, it was observed:-
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“14. Victories are gained, peace is preserved, progress is achieved,
civilization is built up and history is made not on the battlefields
where ghastly murders are committed in the name of patriotism, not
in the Council Chambers where insipid speeches are spun out in the
name of debate, not even in factories where are manufactured novel
instruments to strangle life, but in educational institutions which are
the seed-beds of culture, where children in whose hands quiver the
destinies of the future, are trained. From their ranks will come out
when they grow up, statesmen and soldiers, patriots and
philosophers, who will determine the progress of the land.
15.
The importance of education has come to be recognised in
various judicial decisions.
16.
In Oliver Brown v. Board of Education of Topeka (U.S.
Supreme Court Reports (1953) 98 Law Ed 873 at page 880) it was
observed :
"Today, education is perhaps the most important function of State
and local overnments. Compulsory school attendance laws and the
great expenditures for education both demonstrate our recognition of
the importance of education to our democratic society. It is required
in the performance of our most basic public responsibilities, even
service in the armed forces. It is very foundation of good citizenship.
Today it is a principal instrument in awakening the child to cultural
values, in preparing him for later professional training, and in helping
him to adjust normally to his environment."
19.
Article 21 of the Constitution includes variety of rights and some of
the Directive Principles have been read into the said Article. Adverting to this
aspect, it was observed in the above judgment:“31. The following rights Are held to be covered under Art. 21 :
1. The Right to go abroad - Satwant Singh v. A.P.O., New Delhi,
(1967) 3 SCR 525: (AIR 1967 SC 1836).
2. The right to privacy - Govinda v. State of M. P., (1975) 3 SCR 946:
(AIR 1975 SC 1378). In this case reliance was placed on the
American decision in Griswols v. Connection cut, (1965) 381 US 479
at 510.
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[DR.A.K.RATH, J.]
3. The Right against solitary cofinement -Sunil Batra v. Delhi
Administration, (1978) 4 SCC 494 at 545 : (AIR 1978 SC 1675 at p.
1710).
4. The Right against Bar fetters - Charles Sobraj v. Supt., Central
Jail, (1979) 1 SCR 512 : (AIR 1978 SC 1514). 5. The Right to legal
aid - Hoskot v. State of Maharashtra, (1979) 1 SCR 192 : (AIR 1978
SC 1548).
6. The Right to speedy trial – Hussainara Khatoon v. State of Bihar,
(1979) 3 SCR 169: (AlR 1979 SC 1360). 7. The Right against
Handcuffing- Prem Shahkar v. Delhi Administration, (1980) 3 SCR
855: (AIR 1980 SC 1535).
8. The Right against delayed execution T.V. Vatheeswaran v. State
of Tamil Nadu, AIR 1983 SC 361 (2).
9. The Right against custodial violence - (1983) 2 SCC 96 : (AIR
1983 SC 378) Sheela Bhasre v. State of Maharashtra.
10. The Right against public hanging - A.G. of India v. Lachmadevi,
AIR 1986 SC 467.
11. Doctor's Assistance, - Parmananda Katra v. U.O.I.,(1989) 4 SCC
286 : (AIR 1989 SC 2039).
12. Shelter - Santistar Builder v. N. K. Totame, (1990) 1 SCC 520 :
(AIR 1990 SC 630).
32. If really Art. 21, which is the heart of fundamental rights has received
expanded meaning from time to time there is no justification as to why it
cannot be interpreted in the light of Art. 45 wherein the State is obligated to
provide education up to 14 years of age, within the prescribed time limit.
33.
So much for personal liberty.
34. Now coming to life : this Court interpreted in Bandhua Mukti Morcha v.
Union of India, (1984) 3 SCC 161 at pp. 18384 : (AIR 1984 SC 802 at pp. 811-12) :
"It is the fundamental right of everyone in this country, assured
under the interpretation given to Art. 21 by this Court in Francis
216
[2014]
Mullin's case, (AIR 1980 SC 849), to live with human dignity, free
from exploitation. This right to live with human dignity, free from
exploitation. This right to live with human dignity enshrined in Art. 21
derives its life breath from the Directive Principles of State Policy and
particularly clauses (e) and (f) of Art. 39 and Arts. 41 and 42 and at
the least, therefore, it must include protection of the health and
strength of workers, men and women, and of the tender age of
children against abuse, opportunities and facilities for children to
develop in a healthy manner and in conditions of freedom and
dignity, educational facilities, just and humane conditions of work and
maternity relief. These are the minimum requirements which must
exist in order to enable a person to live with human dignity and no
State - neither the Central Government nor any State Government has the right to take any action which will deprive a person of the
enjoyment of these basic essentials. Since the Directive Principles of
State Policy contained in clauses (e) and (f) of Art, 39, Articles 41
and 42 are not enforceable in a Court of law, it may not be possible
to compel the State through the judicial process to make provision by
statutory enactment or executive fiat for ensuring these basic
essentials which go to make up a life of human dignity but where
legislation is already enacted by the State providing these basic
requirements to the workmen and thus investing their right to live
with basic human dignity, with concrete reality and content, the State
can certainly be obligated to ensure observance of such legislation
for inaction on the part of the State in securing implementation of
such legislation would amount to denial of the right to live with human
dignity enshrined in Art. 21, more so in the context of Art. 256 which
provides that the executive power of every State shall be so
exercised as to ensure compliance with the laws made by Parliament
and any existing laws which apply in that State."
35.
This, was elaborated in Olga Tellis v. Bombay Municipal Corporation,
(1985) 3 SCC 545 at pp. 571-573: (AIR 1986 SC 180 at pp. 193-94):
"As we have stated while summing up the petitioners' case, the main
plank of their argument is that the rightto life which is guaranteed by
Art. 21 includes the right to livelihood and since, they will be deprived
of theirlivelihood if they are evicted from their slum and pavement
dwellings, their eviction is tantamount to deprivation of their life and is
hence unconstitutional. For purposes of argument, we will assume
the factual correctness of the premise that if the petitioners are
evicted from their dwellings, they will be deprived of their livelihood.
Upon that assumption, the question which we have to consider is
217
[DR.A.K.RATH, J.]
whether the right to life includes the right to livelihood. We sees only
one answer to that question, namely, that it does. The sweep of the
right to life conferred by Art. 21 is wide and farreaching. It does not
mean merely that life cannot be extinguished or taken away as, for
example, by the imposition and execution of the death sentence,
except according to procedure established by law. That is but one
aspect of the right to life. An equally important facet of that right is the
right to livelihood because, no person can live without the means of
living, that is, the means of livelihood. If the right to livelihood is not
treated as apart of the constitutional right life, the easiest way of
depriving a person of his right to life would be to deprive him of his
means of livelihood to the point of abrogation. Such deprivation
would not only denude the life of its effective content and
meaningfulness but it would make life impossible to live. And yet,
such deprivation would not have to be in accordance with the
procedure established by law, if the right to livelihood is not regarded
as a part of the right to live. That, which alone makes it possible to
live, leave aside what makes life livable, must be deemed to be an
integral component of the right to life. Deprive a person of his right to
livelihood and you shall have deprived him of his life. Indeed, that
explains the massive migration of the rural population to big cities.
They migrate because they have no means of livelihood in the
villages. The motive force which propels their desertion of their hearts
and homes in the village is the struggle for survival, that is, the
struggle for life. So unimpeachable is the evidence of the nexus
between life and the means of livelihood. They have to eat to live :
Only a handful can afford the luxury of living to eat. That they can do,
namely, eat, only if they have the means of livelihood. That is the
context in which it was said by Douglas, J. in Baksey (( 19 54) 347
MD 442) that the right to work is the most precious liberty that man
possesses. It is the most precious liberty because, it sustains and
enables a man to live and the right to life is a precious freedom.
"Life", as observed by Field, J. in Munn v. Illinois (1877 (94) US 113),
means something more than mere animal, existence and the
inhibition against the deprivation of life extends to all those limits and
faculties by which life is enjoyed. This observation was quoted with
approval by this Court in Kharak Singh v. State of U.P. (AIR 1963 SC
1295).
Article 39(a) of the Constitution, which is a Directive Principle of
State Policy, provides that the State shall, in particular, direct its
policy towards securing that thecitizens, men and women equally,
have the right to an adequate means of livelihood. Art. 41, which is
218
[2014]
another Directive Principle, provides, inter alia, that the State shall,
within the limits of its economic capacity and development, make
effective provision for securing the right to work in cases of
unemployment and of undeserved want. Art. 37 provides that the
Directive Principles, though not enforceable by any Court, are
nevertheless fundamental in the governance of the country. The
principles contained in Arts. 39(a) and 41 must be regarded as
equally fundamental in the understanding and interpretation of the
meaning and content of fundamental rights. If there is an obligation
upon the State to secure to the citizens an adequate means of
livelihood and the right to work, it would be sheer pedantry to exclude
the right to livelihood from the content of the right to life. The State
may not, by affirmative action be compellable to provide adequate
means of livelihood or work to the citizens. But, any person, who is
deprived of his right o livelihood except according to just and fair
procedure established by law, can hallenge the deprivation as
offending the right to life conferred by Art. 21"
20.
In P.A. Inamdar and others v. State of Maharashtra and others,
AIR 2005 SC 3226, it was observed:“84. In 'India - Vision 2020' published by Planning Commission of
India, it is stated (at p.250) - "Education is an important input both for
the growth of the society as well as for the individual. Properly
planned educational input can contribute to increase in the Gross
National Products, cultural richness, build positive attitude towards
technology and increase efficiency and effectiveness of the
governance. Education opens new horizons for an individual,
provides new aspirations and develops new values. It strengthens
competencies and develops commitment. Education generates in an
individual a critical outlook on social and political realities and
sharpens the ability to self- examination, selfmonitoring and selfcriticism."
85. "The term 'Knowledge Society', 'Information Society' and
'Learning Society' have now become familiar expressions in the
educational parlance, communicating emerging global trends with
far-reaching implications for growth and development of any society.
These are not to be seen as mere cliche or fads but words that are
pregnant with unimaginable potentialities. Information revolution,
information technologies and knowledge industries, constitute
important dimensions of an information society and contribute
effectively to the growth of a knowledge society." (ibid, p.246)
219
[DR.A.K.RATH, J.]
86. "Alvin Toffler (1980) has advanced the idea that power at the
dawn of civilization resided in the 'muscle'. Power then got
associated with money and in 20th century it shifted its focus to
'mind'. Thus the shift from physical power to wealth power to mind
power is an evolution in the shifting foundations of economy. This
shift supports the observation of Francis Bacon who said 'knowledge
itself is power'; stressing the same point and upholding the
supremacy of mind power, in his characteristic expression, Winston
Churchill said, "the Empires of the future shall be empires of the
mind". Thus, he corroborated Bacon and professed the emergence of
the knowledge society." (ibid, p.247).
87.Quadri, J. has well put it in his opinion in Pai Foundation (para
287) - "Education plays a cardinal role in transforming a society into a
civilised nation. It accelerates the progress of the country in every
sphere of national activity. No section of the citizens can be ignored
or left behind because it would hamper the progress of the country as
a whole. It is the duty of the State to do all it could, to educate every
section of citizens who need a helping hand in marching ahead along
with others".
2002 AIR SCW 4957 : AIR 2003 SC 355 Para 289.
88. According to Dr. Zakir Hussain, a great statesman with
democratic credentials, a secularist and an educationist, a true
democracy is one where each and every citizen is involved in the
democratic process and this end cannot be achieved unless we
remove the prevailing large-scale illiteracy in our country. Unless
universal education is achieved which allows every citizen to
participate actively in the processes of democracy, we can never
claim to be a true democracy. Dr. Zakir Hussain sought to ensure
that the seeds of knowledge were germinated in the minds of as
many citizens as possible, with a view to enabling them to perform
their assigned roles on the stage of democracy. [Dr. Zakir Hussain,
as quoted by Justice A.M. Ahmadi, the then Chief Justice of India,
(1996) 2 SCC (J) 1, at 2-3.].
89. Under Article 41 of the Constitution, right to education, amongst
others, is obligated to be secured by the State by making effective
provision therefor. Fundamental duties recognized by Article 51A
include, amongst others, (i) to develop the scientific temper,
humanism and the spirit of inquiry and reform; and (ii) to strive
towards excellence in all spheres of individual and collective activity
220
[2014]
so that the nation constantly rises to higher levels of endeavour and
achievement. None can be achieved or ensured except by means of
education. It is well accepted by the thinkers, philosophers and
academicians that if JUSTICE, LIBERTY, EQUALITY and
FRATERNITY, including social, economic and political justice, the
golden goals set out in the Preamble to the Constitution of India are
to be achieved, the Indian polity has to be educated and educated
with excellence. Education is a national wealth which must be
distributed equally and widely, as far as possible, in the interest of
creating an egalitarian society, to enable the country to rise high and
face global competition. 'Tireless striving stretching its arms towards
perfection' (to borrow the expression from Rabindranath Tagore)
would not be successful unless strengthened by education.
90. Education is "-continual growth of personality, steady
development of character, and the qualitative improvement of life. A
trained mind has the capacity to draw spiritual nourishment from
every experience, be it defeat or victory, sorrow or joy. Education is
training the mind and not stuffing the brain." (See Eternal Values for
A Changing Society, Vol. III Education for Human Excellence,
published by Bharatiya Vidya Bhavan, Bombay, at p. 19)
91. "We want that education by which character is formed, strength of
mind is increased, the intellect is expanded, and by which one can
stand on one's own feet." "The end of all education, all training,
should be man-making. The end and aim of all training is to make the
man grow. The training bywhich the current and expression of will are
brought under control and become fruitful is called education."
(Swami Vivekanand as quoted in ibid, at p.20).
92. Education, accepted as a useful activity, whether for charity or for
profit, is an occupation. Nevertheless, it does not cease to be a
service to the society. And even though an occupation, it cannot be
equated to a trade or a business.”
21.
In Ashoka Kumar Thakur v. Union of India and others, (2008) 6
SCC 1, status of primary education was noticed in para 305 as under:“305. One of the petitioners, Youth for Equality had filed a
representation before the Parliamentary Committee giving certain
important data. Relevant portions read as follows:-
221
[DR.A.K.RATH, J.]
“TOP WITHOUT BASE
The condition of infrastructure and staff at the primary and secondary
level is of some concern and the Government – especially the Ministry for
Human Resource and Development which has proposed increased
reservations, should work towards improvement in its area for ‘real’
affirmative action. According to the National Institute of Educational Planning
and Administration (in 2003) the state of affairs at the primary level was as
under:i) 62996 schools in the country do not have school building and are
operating in tents or under the trees.
ii)
In 70739 primary schools –no classroom.
iii)
In 95003 primary schools –single classroom.
iv)
In 8269 primary schools – no teacher.
iv)
In 1,15,267 primary schools –single teacher.
vi) In more than 60000 schools the pupil: teacher ratio is
greater than 100:1 while the acceptable ratio is less than 40:1.
vii) In 84,848 schools –no blackboard.
viii) In more than 1,00,000/- schools – no electricity.
Apart from the above, according to NCERT (in 1998), only 34.6% of
government schools had safe drinking water, 13.2% had urinals and 4.9%
had urinals for girls and only 6.9% had a lavatory. While the Government
promises a spending of about 6% of GDP for the development of education,
the reality has been to the contrary. The Government spending in the years
was as under:2000-2001
2001-2002
2002-2004
2004-2005
It was further observed:-
4.1%
4.3%
3.8%
3.5%”
222
[2014]
“420. Under Article 21-A, it is a mandatory obligation of the State to
provide free and compulsory education to all children aged six to fourteen. In
order to achieve this constitutionalmandate, the State has to place much
greater emphasis on allocating more funds for primary and secondary
education. There is no corresponding constitutional right to higher education.
The entire nation’s progress virtually depends upon the proper and effective
implementation of Article 21-A.
xx xx xx xx xx
423. Though an improvement over past performance, the overall education
picture leaves much to be desired. The bad news is really bad. Even where
we have seen improvement, there is still failure. A survey by Pratham, an
NGO, fleshes out the acute problems found in rural schools. (See ASER
2007— Rural Annual Status of Education Report for 2007, published on 161-2008.) The survey covered 16,000 villages. As Pratham indicates, there
are an estimated 140 million children in the age group of 6 to 14 years in
primary schools. Of these 30 million cannot read, 40 million can recognise a
few alphabets, 40 million can read some words, and 30 million can read
paragraphs. Over 55 million of these children will not complete four years of
school, eventually adding to the illiterate population of India. The national
literacy rate is 65%.
424. 24 districts with more than 50,000 out of school children means we
have failed 24 times over. 71 districts in which there are 60 students per
teacher is just as bad, if not worse. According to Pratham (and in-line with
the Ministry of HRD’s six-month review), the number of out of school children
has hovered around 7,50,000. (p. 6) Moreover, it goes without saying that
children need proper facilities. Today, just 59% of schools can boast of a
usable toilet. (p. 49)
xx xx xx xx xx
430. While the Government is on the right track with regard to improving
the infrastructure of our system, books and buildings only go so far. They are
necessary but not sufficient for achieving the ultimate goals of (1) keeping
children in school, (2) ensuring that they learn how to think critically, and (3)
ensuring that they learn skills that will help them secure gainful employment.
The quality of education provided in the majority of primary schools is
woeful. That is why I find it necessary to review government spending on
education— especially at the primary/secondary level.
xx xx xx xxx xxx
223
[DR.A.K.RATH, J.]
440. Ultimately, this is the most important aspect of implementing Article
21-A, incentives should be provided to parents so that they are persuaded to
send their children to school. More than punishment, creative incentive
programmes will go a long way in the implementation of the fundamental
right enshrined under Article 21-A.
xx xx xx xx xx
491.
Though progress has been made, Parliament’s observation upon
passing Article 21-A still applies: the goal of providing universal and quality
education “… still remains
unfulfilled”.
22.
In view of above, having regard to the acknowledged importance of
education on one hand and shortage of infrastructure on the other and the
statutory scheme noticed above, the stand taken by the State cannot be
upheld.
23.
In Unni Krishnan, J.P. (supra), the Supreme Court held that the
fundamental rights and directive principles are supplementary and
complementary to each other and the provisions in Part-III of the Constitution
should be interpreted having regard to the Preamble and the Directive
Principles of the State Policy. It was further held that without education being
provided to the citizens of this country, the objectives set forth in the
reamble to the Constitution cannot be achieved. The Constitution would fail.
The right to education which is implicit in the right to life and personal liberty
guaranteed by Article 21 must be construed in the light of the directive
principles in Part IV of the Constitution. It was further held that right to
education is concomitant to the fundamental rights enshrined under Part III
of the Constitution. The State is under a constitution mandate to provide
educational institutions at all levels for the benefit of citizens.
24.
In All India Judges’ Association and others Vrs. Union of India
and others, (1993) 4 Supreme Court Cases 288, the question arose as to
whether the State can shirk its responsibility to pay salaries and perks to the
members of the sub-ordinate judiciary. In paragraph-16 of the report, their
Lordships held as under:“The contention with regard to the financial burden likely to be
imposed by the directions in question, is equally misconceived.
Firstly, the courts do from time to time hand down decisions which
have financial implications and the Government is obligated to loosen
its purse recurrently pursuant to such decisions. Secondly, when the
duties are bligatory, no grievance can be heard that they cast
224
[2014]
financial burden. Thirdly, compared to the other plan and non-plan
expenditure, we find that the financial burden caused on account of
the said directions is negligible”.
25.
In The Chandigarh Administration and others Vrs. Mrs. Rajni
Vali and others, (2000) 2 SCC 42, an identical question came up for
consideration before the Apex Court. The Bench speaking through Hon’ble
Shri Justice D.P.Mohapatra in paragraph-10 of the report held as under:“Coming to the contention of the appellants that Chandigarh
Administration will find it difficult to bear the additional financial
burden if the claim of the respondents 1 to 12 is accepted, we need
only say that such a contention raised in different cases of similar
nature has been rejected by this Court. The State Administration
cannot shirk its responsibility of ensuring proper education in schools
and colleges on the plea of lack of resources. It is for the Authorities
running the Administration to find out the ways and means of
securing funds for the purpose. We do not deem it necessary to
consider this question in further detail. The contention raised by the
appellants in this regard is rejected…..”.
26.
Thus, if a case falls under the order covered by Section 7-C(4), it will
create an enforceable right and the Court is bound to enforce the same
under Article 226 of the Constitution. An enforceable right cannot be
defeated on the ground of financial incapacity. There is no restriction on this
Court under Article 226 to pass appropriate orders for enforcing fundamental
or legal right.
In Ramana Dayaram Shetty Vs. International Airport Authority of India
& Ors., (1979) 3 SCC 489, it was observed :
“12. ….…..It must, therefore, be taken to be the law that where the
Government is dealing with the public, whether by way of giving jobs
or entering into contracts or issuing quotas or licences or granting
other forms of largesse, the Government cannot act arbitrarily at its
sweet will and, like a private individual, deal with any person it
pleases, but its action must be in conformity with standard or norms
which is not arbitrary, irrational or irrelevant. The power or discretion
of the Government in the matter of grant of largesse including award
of jobs, contracts, quotas, licences, etc. must be confined and
structured by rational, relevant and non-discriminatory standard or
norm and if the Government departs from such standard or norm in
225
[DR.A.K.RATH, J.]
any particular case or cases, the action of the Government would be
liable to be struck down, unless it can be shown by the Government
that the departure was not arbitrary, but was based on some valid
principle which in itself was not irrational, unreasonable or
discriminatory.”
27.
It is also well settled that review of a decision of long standing is
permissible only for a compelling reason. The classic words of Chief Justice
P.B.Gajendragadkar, (the then), for reviewing or reconsidering its earlier
cases, in Keshav Mills Co. Ltd. Vrs. Commissioner of Income Tax, 1965
AIR 1636, are quoted hereunder:“What is the nature of the infirmity or error on which a plea for a
review and a revision of the earlier view is based ? On the earlier
occasion, did some patent aspects of the question remain unnoticed
or was the attention of the court not drawn to any relevant and
material statutory provision, or was any previous decision of this
court bearing on the point not noticed ? Is the court hearing such plea
fairly unanimous that there is such an error in the earlier view ? What
would be the impact of the error on the general administration of law
or on public good ? Has the earlier decision been followed on
subsequent occasions, either by this court or by the High Court ?
And, would the reversal of the earlier decision lead to public
inconvenience, hardship or mischief ?”
28.
In our view the judgment in Prafulla Kumar Sahoo’s case is perfectly
in consonance with the law laid down by the apex Court in the decisions
cited supra. We do not find any valid reason to take a fresh look in the
matter. The reference is answered accordingly. The Registry is directed to
place the matte before the assigned Bench.
Reference answered.
226
2014 (II) ILR - CUT- 226
A.K.GOEL, C.J. & DR. A.K.RATH, J
WRIT APPEAL NO. 533 OF 2013
SAROJINI SAHOO
…….Appellant
.Vrs.
…….Respondents
ANGANWADI WORKER – Appointment – Criteria – Candidate
should belong to the service area of the Anganwadi Centre – Circular
of the Government Dt. 02.03.2012 that a person residing in a locality
continuously for one year may be granted residential certificate – R.I.
report shows that the appellant resides in village Adalia for the last 15
years and Tahasildar issued residential certificate after necessary
inquiry which has not been cancelled yet – Held, the appellant is a
resident of village Adalia and in that view of the matter the impugned
judgement passed by the learned single judge is quashed.
(Paras 8, 9 & 10)
For Appellant
: Mr. K.K.Swain
For Respondent
: Mr. R.K.Mohapatra (Govt. Adv.)
Mr. A.K.Mohapatra-1 (for R.4-Caveator)
Date of hearing : 30.04.2014
Date of judgment : 14.05.2014
JUDGMENT
DR. A.K.RATH, J.
This writ appeal has been filed under Clause-10 of the Letters Patent
against the judgment and order dated 18.12.2013 passed by the learned
Single Judge in W.P.(C) No. 9330 of 2010, whereby and whereunder, the
learned Single Judge dismissed the writ petition and confirmed the order of
the Sub-Collector, Sadar, Cuttack rejecting the candidature of the appellant
to the post of Anganwadi Worker as she does not belong to Adalia
Anganwadi Centre area.
2.
Shorn of unnecessary details, the short facts of the case of the
appellant is that pursuant to the advertisement issued by the C.D.P.O.,
Cuttack for engagement of Anganwadi Worker in Adalia Anganwadi Centre,
227
SAROJINI SAHOO -V- STATE OF ORISSA
[DR. A.K.RATH, J.]
she submitted an application. She having been selected, engagement order
was issued to her on 29.11.2008. Thereafter, she joined in the post.
Challenging her selection, respondent no.4 preferred appeal before the SubCollector, Sadar, Cuttack, which was registered as Anganwadi Misc. Appeal
No.14 of 2009. By order dated 27.4.2010, the Sub-Collector, Sadar, Cuttack
allowed the appeal by setting aside the engagement order issued in favour
of the appellant on the ground that she is not a permanent resident of
service area and directed the C.D.P.O. to finalize the selection of Anganwadi
Worker from amongst the eligible candidates.
3.
Challenging, inter alia, the order dated 27.4.2010 passed by the SubCollector, Sadar, Cuttack in Anganwadi Misc. Appeal No.14 of 2009, she
filed writ petition.
4.
In course of hearing of the writ petition, the C.D.P.O., respondent
no.3 filed counter affidavit contending, inter alia, that as per the guidelines
issued by the Government, the candidates for selection of Anganwadi
Worker should belong to the service area of the Anganwadi Centre. The
appellant submitted a resident certificate that she is a resident of village
Adalia. As she secured highest mark, she was selected. But then, on the
basis of the complaint lodged by respondent no.4, the matter was enquired
into by the Tahasildar, Sadar, Cuttack, who submitted a report stating that
the appellant was residing in the house of one Bhagyadhar Prusty on rent as
a tenant and presently she is residing in the house of one Basanti Barik of
village Adalia on rent. The contesting respondent no.4 also filed a counter
affidavit to the same effect. After hearing the matter at length, in an elaborate
judgment, the learned Single Judge came to hold that the appellant being
the permanent resident of village Kulasarichuan under Kalapada R.I.Circle,
her application could not have been considered for engagement as
Anganwadi Worker in respect of Adalia Anganwadi Centre as she does not
belong to the said area. Having held so, learned Single Judge dismissed the
writ petition.
5.
We have heard Shri K.K.Swain, learned counsel for the appellant,
Shri R.K.Mohapatra, learned Government Advocate for respondents 1 to 3
and Mr.A.K.Mohapatra-1, learned counsel for respondent no.4.
6.
The centripodal point, which revolves round the case, is the meaning
of word resident appearing in the Revised Guidelines for Selection of
Anganwadi Workers vide Annexure-3. Clause-1 of the said Revised
Guidelines provide that applications for selection of volunteers to work as
Anganwadi Workers will be invited for each village/Anganwadi Centre area
from women residing in the said village/Anganwadi Centre area.
228
[2014]
7.
In course of hearing, the appellant has filed an additional affidavit
annexing thereto the circulars dated 8.3.2011 and 2.3.2012 respectively
issued by the Government of Orissa, Revenue and Disaster Management
Department. As would evident from the circular dated 8.3.2011, the
Government after carefully consideration have been pleased to issue
guidelines for issuing resident/residence certificate to the landless persons,
who apply for the same under the Orissa Miscellaneous Certificate Rules,
1984. The same is quoted below:
“i)
ii)
Resident/Residence Certificate should not be denied to a land less
persons merely because he does not have documentary evidence of
ownership of land if the applicant is otherwise eligible.
A person residing in a locality for a period of at least two years
continuously may be granted residence certificate for that area.
iii)
Wherever the applicant does not own land documentary evidence
like extract at voter list Elector’s Photo Identity Card (if it contains
local address of the applicant), Certificate in support of residence
issued by the employer in Government/Public Sector rent agreement
with the land lords, address in Bank Pass Book, bills for public utility
services like PHED electricity distribution Company, land line
telephone etc. may be accepted in support of local address of the
applicant for a period of preceding two years. In the cases of doubt,
local enquiry may be conducted.
iv)
In the absence of any such documents the eligibility of the applicant
may be assessed by field enquiry supported by Statement from
neighbours and/or Ward Councillors/Ward Members”.
The circular dated 2.3.2012 was issued in view of the fact that the
Orissa Human Rights Commission vide their order dated 19.8.2011 have
directed the State Government to reduce the qualifying period two years for
grant of residence certificate to one year. In deference to the said order, the
Government have decided that a person residing in a locality for a period of
at least one year continuously may be granted residence certificate for that
year.
8.
We have examined the case on the anvil of the circulars dated
8.3.2011 and 2.3.2011 respectively. We find that the Tahasildar, Sadar,
Cuttack has granted residential certificate to the appellant. The report of the
Revenue Inspector dated 2.7.2008 clearly reflects that the appellant has
been residing in the village Adalia for the last fifteen years. In the voter
identity card issued by the Election Commission of India, resident of the
229
SAROJINI SAHOO -V- STATE OF ORISSA
[DR. A.K.RATH, J.]
appellant has been described as village Adalia. The voter list of the year
2009 also shows that the appellant belongs to village Adalia. Furthermore,
the circulars as quoted above are indicative of the fact that the residential
certificate should not be denied to a land less person merely because he
does not have documentary evidence of ownership of land. We fail to
understand as to why the same should not be granted to a person who
resides in a particular locality for a period of at least one year continuously, if
he is otherwise eligible.
9.
Since the Tahasildar has granted residential certificate to the
appellant after causing necessary enquiry, which has not been cancelled till
yet, we hold that the she is the resident of village Adalia.
10.
For the reasons given above, we allow the appeal and quash the
judgment and order passed by the learned Single Judge.
Appeal allowed.
2014 (II) ILR - CUT- 229
PRADIP MOHANTY, J & BISWAJIT MOHANTY, J.
JCRLA NO.39 OF 2004
BISIKESAN RANGULI
……..Appellant
.Vrs.
STATE OF ORISSA
……..Respondent
CRIMINAL TRIAL - Murder case – Extra judicial confession
made by the appellant that he had taken the deceased for sexual
enjoyment but when she shouted, he pressed her neck and killed her –
Such confession and demonstration was recorded by a video camera
which proves motive of the appellant – The appellant and the deceased
were also last seen together by P.W.3 – He has also failed to explain as
to how human blood was detected from his half Pant – Held, the
appellant is the author of the crime and the trial Court is correct in
convicting the appellant U/s. 302 I.P.C.
(Paras 9,10, 11)
230
[2014]
Case laws Referred to:1.AIR 1957 SC 614
: (Chinniah Servai-V- State of Madras)
2.(2010) 50 OCR 855 : (Buturu Mahanto @ Lingaraj-V- State of Orissa)
3.(1975) 4 SCC 234 : (Maghar Singh-V- State of Punjab)
For Appellant
- Mr. Saroj Kumar Dash
For Respondent - Sk. Zafarulla, (Addl. Standing Counsel)
JUDGMENT
P. KU. MOHANTY, J.
The appellant having been convicted for commission of offence
under Section 302, IPC and sentenced to imprisonment for life by the
learned Ad hoc Additional Sessions Judge (F.T.C.), Keonjhar in C.T. No.19
of 2002, has preferred this appeal from Jail.
2.
The prosecution case in brief is that on 21.11.2000 a written report
was lodged by the informant (P.W.1) before the O.I.C., Gunupur Police
Station alleging therein that on the previous day, i.e., on a Monday
(20.11.2000) at about 7.00 P.M., his wife – Ahalya Nagabansa (P.W.11) sent
her daughter – Shyamala (deceased), who was aged about 8 years to bring
betel from the betel shop of Ghasi Mali of Brahmin Sahi. But as his daughter
did not return to home, he and P.W.11 along with others searched for her in
the relative house, but could not trace her out. On the following morning at
about 6.30 A.M., the informant came to know from one Jamuna Nagabansa
of his Sahi that a girl was lying dead in a half-constructed house situated in
between Brahmin Sahi and Kachera Sahi. After hearing this, the informant
and his wife (P.W.11) along with others went to the spot and found their
daughter-Shyamala lying dead in the husk house in a half-constructed
house. Thereafter, P.W.1 came to the police station and lodged a report
stating therein that some unknown person has committed murder of his
daughter and the dead body was lying in a half-constructed house. On
receipt of the said report, the police registered the case. The O.I.C.
investigated the matter, made inquest over the dead body of the deceased
and sent the same for Post-Mortem Examination. Thereafter, collected
samples of earth, blood stained earth from the spot and seized wearing
apparels of the deceased. The O.I.C. also called the Scientific Officer and
police sniffer dog with his Master. Ultimately, after apprehending the
accused, the O.I.C. examined him and sent the material object for Chemical
Examination. After receipt of the Chemical Examination report, the O.I.C.
231
BISIKESAN RANGULI -V- STATE OF ORISSA
[P.KU.MOHANTY, J.]
submitted charge sheet against the accused-appellant under Section 302,
IPC. The plea of the appellant is one of complete denial.
3.
The prosecution in order to prove the charge, examined 17 witnesses
including the Doctor and two Executive Magistrates and exhibited 18
documents including Chemical Examination Report and Post-Mortem
Examination Report. The defence has examined one witness and exhibited
one document, i.e., report of the Dog Master. On completion of trial, the trial
court convicted the accused-appellant for commission of offence punishable
under Section 302, IPC basing upon the extra-judicial confession made
before the witnesses, last-seen theory, Chemical Examination report and the
evidences of P.W.12 and P.W.15 before whom the demonstration made by
the appellant was recorded.
4.
Mr. S.K. Dash, learned counsel for the appellant assailed the
judgment of the trial court on the following grounds;
(a)
Extra-judicial confession said to have been made by the accused
before P.W.2 and P.W.5 is not believable, as neither they are the
relations nor friends of the accused.
(b)
P.W.3 cannot be believed to be a witness to the last-seen theory, as
he developed the story in the court.
(c)
The Chemical Examination report (Ext.18) does not indicate the
blood group, for which prosecution case is to viewed with suspicion.
(d)
P.W.12 and P.W.15 are the Executive Magistrates before whom the
accused demonstrated how he killed the deceased and the same
was recorded by a video camera, which was not in accordance with
law. Moreover, recording was made in the police station under
coercion.
Besides, there are major contradictions in the evidence of the
prosecution witnesses for which their evidence cannot be relied
upon.
(e)
5.
Mr. Zafarulla, learned Additional Standing Counsel vehemently
contended that the accused made the extra-judicial confession at two
different places, once before P.W.2, the father of an Advocate, when the
accused went to approach his son for his bail, and second time before
P.W.5, who was working in the bus stand as a Helper and known to the
appellant. P.W.3 is a witness to the last-seen theory, who is a resident of
that area who last saw both the appellant and deceased moving together.
P.W.12 and P.W.15 are the Executive Magistrates before whom the
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appellant voluntarily demonstrated how he committed the crime. The
Chemical Examination Report reveals that a patch human blood was
detected from his half-pant and no explanation has been given by the
appellant how human blood was detected from his wearing apparels.
Therefore, there is no infirmity and illegality in the impugned judgment of the
trial court.
6.
Perused the LCR.
P.W.1 is the informant and father of the deceased. He lodged the
F.I.R. before the O.I.C., Gunupur police station stating therein that on a
Monday at about 8 P.M., his wife (P.W.11) sent his daughter (deceased),
who was aged about 8 years to bring betel from the betel shop situated
nearby Brahmin Sahi of Gunupur Town. As his daughter did not return to
home, P.W.1 and P.W.11 went and searched their daughter along with some
others including P.W.4 in the Brahmin Sahi and nearby places. Though they
searched their daughter (deceased) through out the night, they could not
trace her out and returned back to their house. In the early morning of the
following day at about 6.00 A.M. on Tuesday, some of the Sahi people told
that a dead-body of a girl was lying in the half-constructed house situated in
between Brahmin Sahi and Kachera Sahi. Immediately, the informant and
his wife (P.W.11) rushed there and found that their daughter (Shyamala) was
lying dead on the husk inside the half-constructed house. They also found
blood and foam coming out from her mouth and nostril. He also found
bleeding injury on her right shoulder. Thereafter, P.W.1 requested Ramanath
Kola (P.W.8) to scribe a written report contents of which were read over and
explained to him. Finding the same to be correct, the informant put his L.T.I.
on the said report. Thereafter, he went to Gunupur Police Station and
handed over the said report to the OIC, Gunpur Police Station. The O.I.C.
Gunupur Police Station registered the case and took up investigation. The
informant also identified the wearing apparels of the deceased which is
marked as M.O.I. In the cross-examination, the informant admitted that he
could not tell the date and month of the year of the occurrence and the
deceased was lean and thin built. He denied a suggestion that he did not
state in the F.I.R. that he and his wife searched for his daughter through out
that night.
P.W.2 who is a witness to the extra-judicial confession has stated
that on 21.11.2000 at about 8 P.M. the accused standing in the dock came
to his house to meet his eldest son, who is an Advocate in Gunupur Bar. At
that time, his eldest son was not in the house. The accused-appellant
enquired from him about his son and when he told him that his son was not
in the house, the accused called P.W.2 to outside and told him that on the
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[P.KU.MOHANTY, J.]
previous night of Monday at about 8 P.M. he took the daughter of the
informant (P.W.1) to the husk house situated at Golasahi for sexual
enjoyment and he offered Chocolates to her but she declined to take the
same and he caught hold of her for sexual enjoyment and when the girl
shouted, he pressed her neck and killed her. Further, the accused told him
that the police would arrest him and he requested him to tell his son and to
get him released on bail. P.W.2 told the accused-appellant that his son was
not taking such type of cases and asked to go away. But the accused told
him not to disclose to anybody and went away from there. In the crossexamination, P.W.2 admitted that on 25.11.2000 at about 8.30 P.M. the
police examined him. He denied the suggestion given by the defence that he
did not specifically told the Investigating Officer that the accused called
P.W.2 to outside of his house. But P.W.2 admitted in the cross-examination
that the informant was not related to him.
P.W.3 a physically handicapped person is the witness to the lastseen theory. In examination-in-chief he stated that he knew the family
members of the informant and the accused. His house and the house of the
informant were nearby but in different Sahi. Golasahi and Brahmin Sahi were
meeting at one junction (Chhak). P.W.3 most the time remained in a room by
the side of Golasahi. About two years five months back on a Monday at
about 8.00 P.M., he found the deceased daughter of the informant going
from Relly Sahi towards Brahmin Sahi by holding money in her fist and the
accused was going behind her. At that time, there was some quarrel in the
street among the Sahi people for about 10 minutes. Thereafter, he found that
the accused taking away the daughter of the informant towards Gali
(passage) towards a husk house by holding her with one hand and by
closing her mouth by another hand. In the cross-examination, P.W.3
admitted that the house of one Sri Manipatra, who is an Advocate is just in
front of his house in the Gol Sahi. He also admitted that the house of Krishna
is adjacent to the house of Advocate Manipatra and that by the side of his
house the house of one Ramesh, who is a Goldsmith is situated. If one goes
towards right side of his house then Brahmin street and bus stand can be
touched. The Brahmin street is at a distance of 100 cubits from his house.
On the very day of occurrence, though the police asked him, but he did not
tell anything to the police. On the next day, he disclosed the facts before the
police. He denied the suggestion given by the defence that he did not state
the facts before the I.O. that the daughter of the informant was holding
money in her fist. He also denied a specific suggestion by the defence that
he did not state before the I.O. that he found the accused taking the
daughter of the informant towards Gali by holding her with one hand and by
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closing her mouth with another hand. He admitted that on the following day,
he saw the dead body of the deceased.
P.W.4 is an independent seizure witness, who proved the seizure of
wearing apparels of the deceased which is marked as Ext.1.
P.W.5 is a Helper in a bus-stand. In examination-in-chief, he stated
that in the eleventh month of the year 2000 on Tuesday night at about 12 the
appellant came to him and asked him to go with him and on the river bed he
told him that on the next day police dog will come and when P.W.5 asked the
appellant as to what would happen to him if the police dog came there, the
appellant disclosed him that on the previous night he offered Chocolates to
the daughter of the informant(P.W.1) of Brahmin Sahi and when she refused
to accept the Chocolates and apprehending that she would tell her parents,
the accused-appellant killed her by pressing her neck. After hearing this,
P.W.5 instructed the accused to surrender before the police. On the next
day, he was examined by the police. In the cross-examination, P.W.5
admitted that his house was situated in Kumbhar Sahi near the Cinema Hall.
At that time no picture was being screened in the Cinema Hall. He further
admitted that the accused-appellant is not related to him. He also admitted in
the cross-examination that he had no previous acquaintance with the
accused-appellant. Again he was recalled by the prosecution. In further
cross-examination, he admitted that he was working as Helper in the busstand and the accused standing in the dock was pulling Rickshaw and he
was a Rickshaw puller at the bus-stand. As such, P.W.5 and the accused
used to meet each other and had acquaintance with each other and they
were friends before the occurrence. In further cross-examination, he has
stated that he was working as Helper in the Truck.
P.W.6, who was then is working as Constable in Gunupur Police
Station, produced the accused-appellant before the Doctor for examination
and also a witness to the seizure of the wearing apparels of the appellant.
He proved the seizure list marked as Ext.2 and his signature marked as
Ext.2/1. Also he identified the seized wearing apparels of the appellant in the
court which are marked as M.Os. III to V. In the cross-examination, he
admitted that no specific marks of identification of M.Os. III to V existed but
he stated that seeing those articles he could identify.
P.W.7 is the witness to the inquest and also witness to seizure and
has proved Ext.3 and Ext.4.
P.W.8 is the Scriber of the F.I.R. In the examination-in-chief, he has
stated that on 21.11.2000 in the morning, the informant came to his house
and told him that his daughter was lying dead in a half-constructed house in
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[P.KU.MOHANTY, J.]
between Brahamin Sahi and Gola Sahi. By stating so the informant
requested him to (P.W.8) to scribe an F.I.R. P.W.8 scribed the F.I.R. and
also proved the F.I.R. marked as Ext.5. He also stated that the informant put
his L.T.I. and he also endorsed the said L.T.I. of the informant and put his
signature thereon. In the cross-examination, P.W.8 admitted that he had not
made any separate endorsement in the F.I.R. that he read over and
explained the contents to the informant.
P.W.9 is the Medical Officer, who examined the accused-appellant
and made ossification test. In the said test, he found that the appellant was
aged about 20 to 25 years having all secondary sex character developed. He
is capable of sexual intercourse. But there is no injury on the private part and
any sign of violence. With his consent, pubic hairs, hairs of the head and nail
cuttings from both the hands were kept separately and handed over to
constable (P.W.6) for Chemical Examination. P.W.9 also proved the
Chemical Examination report marked as Ext.6.
P.W.10 is the Medical Officer who conducted the autopsy and found
the following injuries:
“A fresh dead body of female child of average built, secondary
sexual character not developed with eyes closed, mouth semi-open
with the tongue in between the teeth, blood stained frothy discharged
from mouth and nostril, pupils dilated, lips cyanised, faecal
discharged at the anus present. Rigor mortis present all over the
body. No ligature mark around the neck. Vaginal orifice admits one
finger. The hymen was circular. There was no visible injury near or
over the Genitalia. No discharge or bleeding seen from introitus. The
body had the following ante-mortem injuries;
(i) Ante-mortem laceration at the lunar side of flexure aspect of
elbow of right arm 1” x 1” x 1/4”,
(ii) Ante-mortem abrasion over the post-lateral side of right elbow
and ½" x 1”
(iii) Two small abrasions on the right side of submandibular region,
(iv) Three small abrasions over the left submandibular area (ante
mortem),
(v) Ante mortem abrasion near the angle of mouth (left side). 2 and
1/2" x 2”
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(vi) Ante-mortem abrasion lateral to left eye 3” x 1 and 1/2"
On dissection P.W.10 found the following:
Neck: Mucosa of trachea congested filled with blood stained frothy
discharge,
Thorax: Heat:- Left side empty, right side filled with dark blood, both
lungs congested with patechial hemorrhages and oedematous.
Large vessel intact and filled with dark blood.”
P.W.10 opined that the all injuries were ante-mortem in nature and cause of
death was due to asphyxia which might have been caused by throttling
leading to respiratory arrest, cardiac arrest and the time of death was within
12 to 24 hours. He also proved the Post-Mortem report marked as Ext.7. In
the cross-examination, he admitted that he did not found any ligature mark
around the neck. In further examination by the Court, he admitted that in
case of throttling by hand, the death must be caused without ligature mark.
He also admitted that the death was homicidal in nature.
P.W.11 is the wife of the informant. She also corroborated the
statement of P.W.1 to the effect that she sent her deceased daughter to
bring betel and as her daughter did not return to house, she went to Brahmin
Sahi and she enquired from the betel shop about her daughter. The shopkeeper told her that her daughter after purchasing betel, left the shop.
Hearing this, she came back to her house and searched the daughter and
told her husband. Thereafter, she searched the daughter but she could not
trace her. On the next day, the dead body of her daughter was found lying in
a half-constructed husk house situated in Kachera Sahi in between Brahmin
Sahi and Gola Sahi. She also identified the wearing apparels of the
deceased. In the cross-examination, she admitted that the house of the
accused is behind her Sahi which is also known as Relly Sahi. She denied
the suggestion given by the defence that she did not state before the
Investigating Officer that her daughter did not return to her house and she
went to the betel shop for betel.
P.W.12 was then working as Block Development Officer, Gunupur.
As per his version, he was also vested with the powers of Executive
Magistrate. As per the direction of the Sub-Divisional Magistrate, he along
with the Additional Tahasildar-cum-Executive Magistrate, Gunpur came to
police station to remain present during the video recording of the statement
given by the appellant in Gunupur Police Station Case No. 178 dtd.
21.11.2000 registered under Section 302 of I.P.C. and also proved the order
of Sub-Divisional Magistrate, Gunupur marked as Ext.8. He further stated in
the cross-examination that the appellant agreed to make statement
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BISIKESAN RANGULI -V- STATE OF ORISSA[
P.KU.MOHANTY, J.]
regarding the case of the occurrence before a video camera outside the
police station building. Accordingly, he, Sri Raito (P.W.15) and the appellant
came outside the Police Station. In their presence the appellant made
statements and gave demonstration of the manner of commission of the
offence of his causing the death of Shyamala before the video camera which
have been recorded. The statement and demonstration of the accusedappellant was recorded by a videographer. At that time no police personnel
was present near that place. Thereafter, the video cassette was seized by
the O.I.C. Gunupur, Police Station in his presence and in presence of
Bhaskar Raito (P.W.15). They put their signatures and sealed the same
along with video cassette and also proved the same vide Ext.9. In the crossexamination, he admitted that he had not seen the requisition and the
appellant prior to that date. The place where the video recording was made,
was at a distance of about 15 to 20 yards from the Police Station building,
but that place was inside the compound of the Police Station premises. He
had no idea about name and qualification of the videographer. In the crossexamination he denied the suggestion that at the instance of I.O. he gave his
signature in plain slip paper and the seizure list.
P.W.13 is the Scientific Officer, who collected the samples and other
incriminating articles and sent the same to the Foreignsic Science
Laboratory and also collected photographs.
P.W.14 is the Constable of Gunupur Police Station. He is the witness
to the seizure of the wearing apparels of the deceased and also
accompanied the dead body and identified the same.
P.W.15 is the Additional Tahasildar-cum-Executive Magistrate,
Gunupur. He stated that on 25.11.2000, he along with Subash Chandra
Sahu (P.W.12) proceeded to Gunupur Police Station and on enquiry, the
O.I.C., showed the appellant present in the dock, who wanted to give
statement regarding the occurrence before him and P.W.12. Accordingly, he
and P.W.12 brought out the appellant outside the police station and on
enquiry, the appellant disclosed his identity and also agreed to make
statement regarding commission of crime. On enquiry, the appellant also
stated that he wanted to make the statement and give demonstration out of
free will and that there was no threat or coercion from police or anybody.
Thereafter, the appellant made a statement and demonstrated the manner of
commission of the crime causing death of the deceased (Shyamala) and the
said statement and demonstration of the accused-appellant was recorded in
a video cassette by the videographer (P.W.16). The said recording was
made outside the Police Station but within the Police Station premises and
during that time no police personnel were present in that area. After the
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video shooting was over, the video cassette was seized by the O.I.C.,
Gunupur Police Station in presence of P.W.12, after obtaining the signature
on the paper slip, which is marked as Ext.9. P.W.15 has proved Ext.9. In the
cross-examination, P.W.15 admitted that he did not remember the exact time
of receiving the order of the Sub Divisional Magistrate. When he reached the
police station, P.W.12 has already been there and he has not seen the
appellant after that day. By the time, he went to the Police Station, the
appellant was inside the Police Station hazat. He brought the appellant
outside the police station building upto a distance of 50 yards and thereafter,
P.Ws.12 and 15 enquired. Except P.Ws.12 and 15, no outsider were present
when P.W.15 conducted enquiry. He denied the suggestion given by the
defence that he did not disclose before the Investigating Officer that out of
his own will, the appellant made statement. P.W.15, however, also admitted
in the cross-examination that there was no specific identification mark on the
video cassette. He further admitted that he did not know who were present
outside at the time of seizure of the video cassette.
P.W.16 is the videographer. He corroborated the statements of
P.W.12 and P.W.15 regarding video recording. In the cross-examination, he
admitted that he had no certificate issued by Government relating to his
working as videographer and also he had no technical certificate to that
effect.
P.W.17 is the Sub-Inspector Police. At the relevant time he was
working as O.I.C. of Gunupur Police Station. He registered the F.I.R. as
Gunupur P.S. Case No.178 of 2000. He drew up the formal F.I.R. and took
up investigation. During investigation, he examined the informant and some
other witnesses. He held inquest over the dead body of the deceased and
prepared the inquest report marked as Ext.3. He sent the dead body of the
deceased for post-mortem examination. Thereafter, he collected the sample
earth and blood stained earth from the spot. He also seized the wearing
apparels of the deceased, i.e., reddish printed gown suspected to be stained
with blood and prepared the seizure list marked as Ext.1. On 22.11.2000,
P.W.17 utilised the scientific team and the police dog in the investigation and
obtained the spot visit report. On 25.11.2000, he apprehended the accused
and examined him and made requisition to the Sub-Divisional Magistrate,
Gunupur for deputing two Executive Magistrates to remain present at
Gunupur Police Station during demonstration agreed to be given by the
accused. Thereafter, he handed over the accused to the said two Executive
Magistrates for recording the video cassette. On the same day at about 9.30
P.M. after the video shooting was over and on production by the Executive
Magistrates, P.W.17 seized the said video cassette in a sealed condition. On
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[P.KU.MOHANTY, J.]
26.11.2000, P.W.17 sent the appellant to the hospital with requisition for
collection of his hair and nail clippings and for age determination. He also
seized the wearing apparels of the appellant and sent the same for Chemical
Examination. After obtaining the Post-Mortem report and completion of
investigation, he submitted the charge sheet. In the cross-examination he
admitted that during the year 2000, there was no barbed fencing in the police
station premises. He further admitted that the dog squad was utilized on
22.11.2000. He received the report from the Dog Master relating to utilization
of dog during investigation but he did not know the name of Dog Master, who
submitted the report which is marked as Ext.A at the instance of the defence.
On 25.11.2000, around 9.00 P.M. P.W.12 and P.W.15 came to the police
station. Subsequently, when the videographer came to the police station, it
was around 9.10 or 9.15 P.M. At the relevant time the accused was only
detained in the police custody (Hazat). By the time of arrival of the Executive
Magistrates, the appellant was kept inside the room of P.W.17. Other police
personnel were in the main hall in the police station building. About 5 to 7
P.M. the staff including officers and constables were in the main hall. The
Executive Magistrates took the appellant from the police station building
towards the opposite side of pigon lot building and that place is in between
the building of the pigon lot and the Eye Ward of the hospital. However, he
admitted that he has not mentioned the said fact in the Case Diary. At about
9.00 P.M. on 25.11.2000 P.W.17 seized the video cassette on production by
Sri Bhaskar Raito (P.W.15) and at that time the other Executive Magistrate,
Sri Sahoo and the videographer were present. On the spot of crime, he
stated that it was an abandoned house situated in between Brahmin Sahi
and Kachara Sahi. Gola Sahi is parallel to Brahmin Sahi. Kachera Sahi is in
front of Dhobi Street and in between Gola Sahi and Kachera Sahi. Towards
eastern side of the spot, there is Brahmin Sahi road and towards the western
side the Kachera Sahi road is there. One G. Murali’s house is opposite to the
frontage of the abandoned house. The abandoned house was situated as
follows:
“Immediately East : Gali rasta (passage)
West : House of Gudula Apa Rao,
South : Brahmin street and North : Kachara street.”
P.W.17 further admitted that no part of the dead body was hidden inside the
husk. P.W.17 stated that P.W.2 had stated before him that the appellant
confessed his guilt but P.W.2 did not reproduce the exact words. P.W.2 did
not state before P.W.17 that the accused is of his caste and the mother and
sister of the accused used to supply water in the house of P.W.2 and they
were not financially rich and that with a hope of getting help from his elder
son, who was an Advocate, the appellant came to his house but stated the
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appellant came to his house to meet his elder son. P.W.3 did not state
before him that the daughter of the informant was holding money in her fist.
He did not state before him that there was quarrel in his Sahi among Sahi
people for about ten minutes and thereafter he found the accused taking the
daughter of the informant towards Gali by holding with one hand and by
closing her mouth with another hand. He had not stated before him that he
had seen the dead body. P.W.5 did not specifically state the place of
accused offering Chocolate to the girl in the Brahmin Sahi. P.W.5 did not
specifically state before P.W.17 that he is a Helper in a truck in the bus stand
during the relevant period and the appellant was a Rickshaw puller stationed
at Bus stand and they had acquaintance and friendship. P.W.11 did not state
before P.W.17 that as her daughter did not return to her house at 8.00 P.M.,
she went to the betel shop of Malighasi Pujari and that on her enquiry she
came to know that after purchasing betel her daughter left for her house and
that hearing this P.W.11 came back to her house and that finding her
daughter not there she searched for her daughter near the house and so
also came to the bus stand and informed her husband (P.W.1). P.W.12 did
not specifically state before P.W.7 that after arrival at the police station he
and Sri Raito gave their identity to the appellant and that the appellant had
come to record the statement and demonstration regarding the occurrence in
video. He did not specifically state before P.W.17 that the accused
demonstrated as to how he had caused the murder of Shyamala but stated
about the manner of killing. P.W.15 did not specifically state before him that
he and P.W.12 gave their identity to the appellant and enquired from him.
P.W.15 did not state before P.W.17 that the appellant told them that out of
his own will he was making demonstration.
D.W.1 is the uncle of the accused-appellant. He specifically stated
that there was no half-constructed house situated in Brahmin Sahi near any
such well. In the cross-examination, he admitted that his house situated in
Ward no.7 of Gunupur N.A.C. He could not say the places and roads
covered within Ward No.7. Brahmin Sahi is a very big street and he could
not say from where it starts and at which it ends. He further admitted that
there are five Relley Sahis in Gunupur town and his house is situated in
Third Relly Sahi. From his Sahi one has to cross another Sahi to touch
Brahmin Sahi. D.W.1 admitted that the accused was his own Bhanaja
(Nephew).
7.
On scrutinizing the evidence, it can be seen that P.W.3 is the only
witness with regard to the last-seen theory. P.W.3 is a physically
handicapped person being affected in both legs by polio and unable to
stand. Most of the time he remained in a room by the side of Gola Sahi. He
found the deceased daughter of the informant was going from Relli Sahi
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[P.KU.MOHANTY, J.]
towards Brahmin Sahi by holding money in her fist and the accused was
going behind her. At that time there was some quarrel in the street among
the Sahi’s people for about ten minutes. Thereafter, he found that the
accused taking away the daughter of the informant towards Gali (passage)
towards a husk house by holding her one hand and by closing her mouth by
another hand. But P.W.7 in his cross-examination has stated that P.W.3 did
not state before him that the daughter of the informant holding money in her
fist and that there was a quarrel in his Sahi and that thereafter, he found the
accused taking the daughter of the informant towards a Gali by holding her
one hand and by closing her mouth by another hand. In fact P.W.3
developed this part of story in court but he had only seen that at about 8.00
P.M. the deceased was moving from Relli Sahi towards Brahmin Sahi by
holding money in her fist and that the accused was going behind her. It has
been held by the apex Court in AIR 1957 SC 614 (Chinniah Servai v. State
of Madras) which is hereunder:
“Generally speaking oral testimony in this context may be classified
into three categories, namely (1) wholly reliable (2) wholly unreliable
and (3) neither wholly reliable nor wholly unreliable. In the
first category of proof, the Court should have no difficulty in coming
to its conclusion either way – it may convict or may acquit on the
testimony of a single witness, if it is found to be above reproach or
suspicion of interestedness, incompetence or subornation. In the
second category, the Court equally has no difficulty in coming to its
conclusion. It is in the third category of cases, that the Court has to
be circumspect and has to look for corroboration in material
particulars by reliable testimony, direct or circumstantial. There is
another danger in insisting on plurality of witnesses. Irrespective of
the quality of the oral evidence of a single witness, if Court were to
insist on plurality of witnesses in proof of any fact, they will be
indirectly encouraging subornation of witnesses. Situations may
arise and do arise where only a single person is available to give
evidence in support of a disputed fact. The court naturally has to
weigh carefully such a testimony and if it is satisfied that the
evidence is reliable and free from all taints which tend to render oral
testimony open to suspicion, it becomes its duty to act upon such
testimony.”
With the above ratio, this Court examined the evidence of P.W.3 and
comes to a conclusion that his evidence is neither wholly reliable nor wholly
unreliable. Therefore, this Court scrutinized the evidence very clearly and
comes to the conclusion that P.W.3 had seen only the first part of the
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evidence, i.e., at about 8.00 P.M. he found the deceased daughter of the
informant was going from Relly sahi towards Brahmin Sahi by holding money
in her fist and the accused was going behind her. This first part was
corroborated by the mother of the accused (P.W.11) that she had sent his
daughter to bring betel from the betel shop of Ghasi Mali of Brahmin Sahi.
Therefore, that part of the evidence is believable and remains undemolished.
There is no dispute that the deceased was going to bring betel from the betel
shop of Ghasi Mali of Brahmin Sahi and the accused was going behind her.
8.
The appellant made extra judicial confession before P.W.2 and
P.W.5. P.W.2 specifically stated in examination-in-chief that on 21.11.2000
at about 8.00 P.M., the accused came to his house to meet his eldest son,
who was an Advocate at Gunupur Bar. The accused enquired from him
about his son and when he told him that his son was not in the house, the
accused called him outside his house and told him that on the previous night
on 20.11.200 at about 8.00 P.M., he took the daughter of the informant to the
husk house situated at Golasahi for sexual enjoyment and offered
Chocolates to her but she declined to take the same and he caught hold of
her for sexual enjoyment. When the girl shouted, he pressed her neck and
killed her. The accused further told that the police would arrest him and
requested P.W.2 to tell his son and get him released on bail. P.W.2 told the
accused that his son was not taking up such type of cases and asked him to
go away but the accused requested him not to disclose the fact to anybody
and went away from there. There is no material to disbelieve the evidence of
P.W.2 though minor contradictions are there, which will not affect the
prosecution case. In the cross-examination nothing has been demolished by
the defence except bringing out some minor contradictions. P.W.5 is another
witness before whom the accused confessed that on the previous night he
offered Chocolates to the daughter of the informant of Brahmin Sahi but
when she refused; apprehending that she may tell her parents, the appellant
killed her by pressing her neck. Hearing this, P.W.5 told the appellant to
surrender before the police. In the cross-examination P.W.5 also admitted
that the appellant was a Helper in the bus stand. Though there are some
minor contradictions, however, appellant reposed confidence on P.W.5 as he
was working in the same bus stand and was a friend. The accused went to
the son of P.W.2 for his bail. Since the son was not available, he disclosed
the fact to his father (P.W.2).
In this context, the judgments reported in (2010) 50 OCR 855
(Buturu Mahanto @ Lingaraj v. State of Orissa) and (1975) 4 SCC 234
(Maghar Singh v. State of Punjab) are relevant. In the decision reported in
(1975) 4 SCC 234, the apex Court has held as follows:
243
[P.KU.MOHANTY, J.]
“The evidence furnished by the extra judicial confession made by the
accused to witnesses cannot be termed to be a tainted evidence and
if corroboration is required it is only by way of abundant caution. If
the court believes the witnesses before whom the confession is
made and it is satisfied that the confession was voluntary, then in
such a case conviction can be founded on such evidence”.
With the above ratio, this Court has examined the evidence of
P.Ws.2 and 5 and finds that they are the reliable witnesses. Therefore, the
prosecution has been able to prove extra-judicial confession made by the
appellant. In the decision reported in (2011) 50 OCR 855 (Buturu Mahanto
@ Lingaraj v. State of Orissa) no ratio has been decided and the same is
factually distinguishable. In the said case there is no corroboration with
regard to extra-judicial confession.
9.
Further in the present case, a patch of human blood was detected
from the wearing apparels of appellant and was sent for Chemical
Examination. The Chemical Examination report vide Ext.2 reveals that
human blood was detected from the half-pant of the accused. On this, a
question was put to him under Section 313, Cr.P.C. but he denied the same
saying it to be false and he had not explained how the human blood was
detected from his half pant. This is a circumstance, which clearly goes
against the appellant.
Motive has been proved by the prosecution through extra-judicial
confession that the accused was taking the deceased for sexual enjoyment
but since she protested, he throttled her neck. This is also another event in
the chain of circumstances, which goes against the appellant.
10.
The prosecution has also relied upon the evidences of P.Ws.12 and
15 and 16. P.Ws.12 and 15 are the witnesses before whom the appellant
confessed and demonstrated how he committed the crime. On scrutinizing
the evidence, it is revealed that the confession and demonstration was
recorded by a video camera in the police station premises. In the said
premises without any warning given by the Executive Magistrates (P.Ws.12
and 15) to the accused, they called him to the said premises of police station
and recorded his statement. In fact before recording confession, it is the duty
of the Executive Magistrate to give warning to the accused. But in this case,
there is no material to show that such warning was given to the appellant
and the statement of the accused was recorded in the police station
premises. Further, P.W.16 has not been identified by P.Ws.12 and 15 and
no certificate of accurate functioning of the instrument has been given. In
244
[2014]
such background, the evidence of P.Ws.12,15 and 16 cannot be relied upon.
However, following proved circumstances completes the chain to implicate
the appellant under Section 302 I.P.C. They are - the appellant and
deceased were last seen together by P.W.3, voluntarily disclosure of
commission of crime by appellant before P.W.2 and P.W.5 and motive for
such commission and finally non-explanation of the appellant relating to
detection of blood from his half pant.
11.
In view of this, it is crystal clear that the appellant and the appellant
alone was the author of the crime and none else. Thus, the learned court
below has not gone wrong in convicting the appellant under Section 302 of
I.P.C. In view of the above the jail criminal appeal is dismissed.
Appeal dismissed.
2014 (II) ILR - CUT- 244
PRADIP MOHANTY, J & BISWAJIT MOHANTY, J.
W.P.(C) NO.15548 OF 2012
ABHIRAM BEHERA & ORS.
……..Petitioners
.Vrs.
A.
……..Opp.Parties
ODISHA GOVT. LAND SETTLEMENT ACT, 1962 - S.3-A
De-reservation of Gochar land – P.I.L. filed challenging violation
of the provisions of the Act – Held, the requirement of Clause (b) & (c)
of Sub-Section (2) of Section 3-A of the Act 1962 having been satisfied
and the order of de-reservation being made by following due procedure
contemplated under the Act and the Rules, there is no illegality in
passing the impugned orders under annexures-3 & 4.
(Para 9)
B.
P.I.L. – De-reservation of Gochar land and violation of the
provisions of the O.G.L.S. Act and Rules challenged – In the instant
case, not only the Gochar land is in excess of reasonable requirement
but also the same has lost its Gochar Character – Held, since dereservation is made by following due procedure contemplated under
the Act and the Rules the order impugned need not be interfered with –
Writ petition dismissed.
(Para 9)
245
ABHIRAM BEHERA -V- STATE OF ORISSA
[B. MOHANTY,J.]
Case laws Referred to:1.(2011) 2 SCC 591 : (State of Jharkhand & Ors.-V- Pakur Jagran Manch
& Ors.)
2.AIR 2002 SC 834 : (The State Financial Corporation & Anr.-V- M/s.
Jagdamba Oil Mills & Anr.)
For Petitioners - M/s. Bibhu Pr. Das, Mr. D. Kumar,
Mr. P.K. Mishra.
For Opp.Parties - Mr. B.P. Pradhan, Addl. Govt. Advocate,
M/s. D. Mohanty, Mr. S.M. Patnaik,
Mr. S. Nanda, Mr. B. S. Tripathy.
JUDGMENT
BISWAJIT MOHANTY,J.
The present writ application styled as Public Interest Litigation has
been filed by some of the villagers of Bhairpur of Cuttack district challenging
the order of the authorities under Annexures-3 and 4, whereby the lands
classified as Gochar in village Bhairpur in Khata No.657 (Rakhit)
corresponding to Plot No.752 (part) measuring upto Ac.0.072 decimals have
been de-reserved. According to them, such de-reservation of Gochar land is
bad in law as the same violates the provisions of the Orissa Government
Land Settlement Act, 1962 (for short the “Act”) and the Orissa Government
Land Settlement Rules, 1983 (for short the “Rules”).
2.
Briefly the case of the petitioners is that opposite party no.5
approached the authorities for settlement of land in village Bhairpur in Khata
No.657 (Rakhit) corresponding to Plot No.752 (part) measuring upto
Ac.0.072 decimals for using the same as passage to their retail outlet. On
receipt of such application under Annexure-1, opposite party no.4 directed
for issuance of general proclamation inviting objections. As no objections
were received within the statutory period of 30 days, the opposite party no.4
recommended for settlement of the above land in favour of the opposite
party no.5. While doing so, opposite party no.4 relied on his field verification
report. In the field verification report it was indicated that the land had lost its
Gochar character. On receipt of the recommendation of opposite party no.4,
opposite party no.3 vide order dated 11.10.2010 under Annexure-3
sanctioned de-reservation of Gochar land for the purpose of utilizing the land
as passage to the retail outlet proposed to be constructed in village Bhairpur.
246
[2014]
Pursuant to such order of opposite party no.3, sanction order under
Annexure-4 was issued. According to the petitioners, villagers of Bhairpur
had no knowledge about such proceedings. It is only when opposite party
no.5 started filling sand in the de-reserved land, the petitioners came to
know about the de-reservation and immediately they approached all the
official opposite parties by way of representations dated 12.8.2012 and when
nothing was done they filed this writ application challenging orders under
Annexures-3 & 4 on the ground that there had been violation of Section-3 of
the Act and various provisions of the Rules. According to them, the entire
process of de-reservation has been vitiated as no notices were issued prior
to such de-reservation.
3.
Learned counsel for opposite party nos. 3 and 4 filed one counter
affidavit dated 20.2.2013 and an affidavit dated 30.4.2014. In the said
counter affidavit and later affidavit, they have made it clear that the order
under Annexures-2,3 and 4 have been passed in accordance with the
relevant provisions of the Act and Rules and hence no illegality has been
committed by opposite party nos.3 and 4 in dereserving plot no.752 (part)
measuring an area Ac.0.072 decimals under Khata No.657 belonging to
village Bhairpur. Learned Addl. Government Advocate also produced the
relevant case record in order to support the contention made by opposite
party nos.3 and 4 in their counter affidavit and affidavit dated 30.4.2014.
4.
A separate counter affidavit has been filed by opposite party no.5. In
that counter affidavit opposite party no.5 has stated that as per spot
verification report of opposite party no.4 the land in question has completely
lost its gochar character and the said land is not serving its purpose of
grazing. On the other hand lot of Gochar land is available very near to the
land in question for grazing purpose. Further, the stand of opposite party
no.5 is that one of the Banks, namely, Central Bank of India is also using the
adjacent Gochar land as a passage since 1985. In this context, opposite
party no.5 also pointed out that the opposite party no.4 after necessary
verification, published proclamation as required under law inviting objection
with regard to de-reservation of the land in question but none had objected
to the same. This being the position, it is not permissible on the part of the
petitioners to say now that they were not noticed prior to passing of the order
of de-reservation. Opposite party no.6 has not filed any separate counter
affidavit but adopted the stand taken by opposite party nos.3, 4 and 5. No
rejoinder has been filed by the petitioners to the counter affidavit filed by
opposite party nos.3, 4 and 5.
5.
Heard Mr. B.P.Das, learned counsel for the petitioners and Mr.
B.P.Pradhan, learned Additional Government Advocate, Mr. Debraj
247
[B. MOHANTY,J.]
Mohanty, learned counsel for opposite party no.5 and Mr. B.S.Tripathy,
learned counsel for opposite party no.6 respectively.
6.
The main contention of the learned counsel for the petitioners is that
in the instant case the land has been de-reserved for the purpose of
providing road to retail outlet of opposite party no.5 and such purpose is not
covered under the provisions of Section-3 of the Act. Therefore, any such
de-reservation contravenes the statute. Secondly, he submitted that as no
public notices were issued prior to passing of order of de-reservation, the
entire process of de-reservation is vitiated. Thirdly, he submitted that in the
village Bhairpur there existed no surplus Gochar land. According to him as
per Rule-4(2)(i) 5% of the effective area of the village should be set apart for
pasturage (Gochar) subject to availability of suitable Government land and in
the present case the authorities have made a wrong calculation with regard
to quantum of surplus Gochar land available. According to him, those
calculation has been done in violation of the provisions of law as contained
in Rule-2(1)(c) and Rule-4(2) (i) of the Rules. In this view of the matter, the
orders under Annexures-2, 3 and 4 are liable to be set aside. Lastly, he
submitted that in any case as per the judgment of the Hon’ble Supreme
Court as reported in (2011) 2 SCC 591, State of Jharkhand and others –vPakur Jagran Manch and others, de-reservation of any Government land
reserved as Gochar, should only be done in exceptional circumstances and
for valid reasons, having regard to the importance of Gochar in every village.
Any attempt by either the villagers or others to encroach upon or illegally
convert the Gochar to house plots or other non-grazing use should be
resisted and firmly dealt with. Any requirement of land for any public purpose
should be met from available waste or unutilized land in the village and not
Gochar. According to Sri Das here exists no exceptional circumstances and
no valid reason for de-reservation.
Per contra, learned counsel for the opposite party nos.3,4,5 and 6
took the following common stand. According to them, proviso to Section-3(1)
of the Act makes it clear that once Gochar land is de-reserved in accordance
with the provisions of the Act and Rules, the same can be used for house
sites/commercial purpose/industrial purpose or for any other purpose
whatsoever. According to them their case is clearly covered under Clause
“for any other purpose whatsoever”. Secondly, they submitted that despite
issuance of general proclamation inviting objections, the petitioners never
filed any objections. In such background, the submission of the learned
counsel for the petitioners that no notices were issued prior to de-reservation
has no legs to stand. Relying on case record, Mr. Pradhan, learned
Additional Government Advocate submitted that proclamation inviting
248
[2014]
objection was published by beat of drum in the village in which land was
situated in presence of more than two persons of the locality. Copy of the
proclamation was affixed in the Notice Board and a copy of the same was
served on Sarpanch of concerned Gram Panchayat. Despite this, none filed
objection. Thirdly, they submitted that a combined reading of Section-3-A of
the Act and Rules-2(1)(c) and 4 in the background of Annexures-2 & 3 filed
by the petitioners themselves would show that surplus Gochar land was/is
available in village Bhairpur. Accordingly, there has been no infraction of law
in passing the orders under Annexures-2,3 and 4. Lastly, they contended
that the decision reported in (2011) 2 SCC 591, State of Jharkhand and
others –v- Pakur Jagran Manch and others is factually distinguishable
rather their case is covered by a decision of this Court rendered on
20.8.2013 in the case of Jitendra Rout and another –v- State of Odisha
and others in W.P(C)No.9415 of 2012.
7.
Before we take up the above contention of the parties, let us refer
and analyze some of the relevant provisions of the Act and Rules relevant
for our purpose.
“Section-2.(b) Government land means any waste land belonging to
Government, whether cultivable or not, recorded as House-site,
Anabadi, Chot Jungle, Puratan Patit, Nutan Patit, Parityakta
Bedakhali, Gochar or by any other description, whatsoever;
Section-3.(1).Notwithstanding anything to the contrary in any law or
any custom, practice or usage having the force of law ,Government
shall not be deemed to be debarred from exercising all or any of the
following powers in respect of Government lands, namely :(a) to reserve such portion of the lands as they deem proper for the
purpose of being used as house-sites or for any communal or
industrial purpose or for any other purpose whatsoever ;
(b) to charge premium for settlement of any such land;
(c) to charge rent for the lands so settled ;
(d) to charge fees on applications for settlement of lands and such
other fees as may be necessary for or incidental to the disposal of
such application at such rates as may be prescribed and all such
fees shall be payable in the prescribed manner ; and.
249
[B. MOHANTY,J.]
(e) to authorise any office of Government not below the rank of a
Tahasildar to dispose of applications for settlement of lands and
settle the same in such manner as may be prescribed and subject to
the provisions of sub-sections (2) and (3):
Provided that no Government land recorded as Gochar shall be
reserved for any purpose mentioned in Clause (a) or settled under
Clause (e) without being dereserved in accordance with the
provisions contained in Section 3-A.
Section-3-A. Power to de-reserve land – (1) The Government may,
by notification in the Official Gazette, authorise any officer, not below
the rank of a Collector, to de-reserve any land which has been
reserved under clause (a) of Section 3 or any Government land
recorded as Gochar or any portion thereof.
(2) Any officer authorised under sub-section (1) shall subject to such
conditions and limitations as may be prescribed, have power to dereserve any land referred to in that sub-section or any portion
thereof, if such Officer is satisfied that such land or portion thereof,
as the case may be,(a) is no longer required for the purpose for which it was reserved; or
(b) can no longer serve the purpose for which it was reserved; or
(c) is in excess of the reasonable requirement for the purpose for
which it was reserved;
Provided that the officer so authorized shall in assessing the
reasonable requirement for the purpose of gochar follow the
prescribed principles laying down the extent of gochar land to be set
apart for use by the community.
Rule-2.(1)(c)
“Effective area of a village” means the total extent of
private agricultural land plus arable Government lands consisting of
Gochar, village forests and waste land in the village, multiplied by
20/23.
Note-For the purpose of calculating arable Government land under
this clause, the following categories of lands shall be excluded
namely :
250
(i)
(ii)
[2014]
lands known as ‘char’ and ‘diara’;
lands subject to the custom of Utabandi Settlement;
(iii) Canal side, road side and other lands considered temporarily
surplus by the Works Department and Irrigation and Power
Department which are placed at disposal of the Revenue
Department for temporary settlement;
(iv)
surplus railway lands placed by the Ministry of Railways at
the disposal of the Revenue Department for being utilized for the
purpose of agriculture; and
(v)
lands recorded or used for communal purposes.
Rule 4. (1)
Any land which has been reserved under Clause (a)
of Sub-section (1) of Section 3 or recorded as Gochar may be dereserved by any officer not below the rank of Collector authorized by
the State Government in that behalf. In making such de-reservation
the following procedure shall be followed, namely;
(i) A notice inviting objection to the proposal for de-reservation
specifying particulars of the area to be de-reserved and its situation
such as village, Gram Panchayat and town, khata or holding and plot
number and extent shall be published in the manner prescribed in
Sub-rule (5) of Rule 5. A period of thirty days shall be allowed for
filing objections, if any, before the concerned Tahasildar. If during
the said period no objection is received, the Tahasildar shall submit
his proposal for de-reservation giving justification for the same.
(ii) xxx
xxx
xxx
(2) While de-reserving any Government land recorded as Gochar
the authorized Officer shall assess the reasonable requirement for
the purpose of Gochar for use by the community in the following
manner:
(i)
in every surveyed village which is not included within the
limits of an urban area, five per cent of the effective area of the
village shall be set apart for pasturage (Gochar) subject to
availability of suitable Government land;
251
[B. MOHANTY,J.]
(ii)
in every surveyed village, land for pasturage shall be set
apart at the rate of one acre for every fourteen inhabitants of the
village, and if the village is non-inhabited; reservation for pasturage,
shall be made at the rate of one acre for every three persons having
land in the village, subject to availability of suitable Government land;
Provided that the above provision shall not apply to Gochar
situated in an urban area.
Rule-5. Manner of settlement of Government land(1)
xxx
xxx
xxx
(2) xxx
xxx
xxx
(3) xxx
xxx
xxx
(4) xxx
xxx
xxx
(5) The proclamation shall be published by beat of drum and by
affixing a copy of the same at a conspicuous place in the village or
urban area in which the land is situated in the presence of not less
than two person of the locality. If the village is un-inhabited, the
notice shall be published in the nearest inhabited village. A copy of
the proclamation shall be published by affixing in the Notice Board of
the Tahasil office and a copy shall be sent to the Gram Panchayat or
Notified Area, Council or Municipality, as the case may be, urban
which the land is situated.
(6)
xxx
xxx
xxx
(7)
xxx
xxx
xxx
Section-2(b) of the Act makes it clear that Gochar is a type of
Government land. As per proviso to Section-3(1)(a) of the Act no
Government land recorded as Gochar shall be reserved for any purpose
mentioned in Clause (a) or settled under Clause (e) without being dereserved in accordance with the provisions contained in Section-3-A of the
Act. This clearly means that once Gochar land is de-reserved in accordance
with the provisions of the Act, the same can be reserved/used for house
sites/commercial purpose/industrial purpose or for any other purpose
whatsoever by the Government as envisaged under Section 3(1)(a) of the
252
[2014
Act. As per Section-3-A of the Act, the Collector has got power to de-reserve
any land which has been reserved under Clause (a) of Section-3 or any
Government land recorded as Gochar. Sub-section-(2) of Section-3-A makes
it clear that any authorized officer like Collector has got power to de-reserve
any land referred to in Sub-section-(1) of Section-3-A or any portion thereof if
he is satisfied that such land or portion of the land, as the case may be, is no
longer required for the purpose for which it was reserved or when such land
or portion of land no longer serves the purpose for which it was reserved or
where such land or portion of such land is in excess of the reasonable
requirement for the purpose for which it was reserved. Proviso to Subsection-2 of Section 3-A makes it clear that the Authorised Officer shall in
assessing the reasonable requirement for the purpose of Gochar is to follow
the prescribed principles laying down the extent of Gochar land to be set
apart for use by the community. The prescribed de-reservation principles are
contained in Rule-4 of the Rules. Rule-4(1)(i) makes it clear that any officer
not below the rank of Collector, authorized by the State Government can
deserve any land reserved under Clause-(a) of Sub-section-(1) of Section-3
of the Act or lands recorded as Gochar by taking recourse to the following
procedures. A notice inviting objection to the proposal for de-reservation
specifying particulars of the area to be de-reserved and its situation such as
village, Grama Panchayat and town, khata or holding and plot number and
extent has to be published in the prescribed manner. A period of thirty days
shall be allowed for filing objections, if any, before the concerned Tahasildar.
If during the said period no objection is received, the Tahasildar would
submit his proposal for de-reservation giving justification for the same. SubRule-2 of Rule-4 lays down that while de-reserving any Government land
recorded as Gochar, the authorized officer shall assess the reasonable
requirement for the purpose of Gochar for use by the community in the
following manner. For every surveyed village, which is not included within
the limits of an urban area, five percent of the “effective area of the village”
shall be set apart for pasturage (Gochar) subject to availability of suitable
Government land.
Rule-2(1) ( c ) indicates that “effective area of a village” means the
total extent of private agricultural land plus arable Government lands
consisting of Gochar, village, forests and waste land in the village multiplied
by 20/23. The note attached to Rule-2(1)(c) provides for exclusion of
categories of land indicated therein while calculating quantum of arable
Government land under Rule-2(1)(c ) of the Rules.
All these make it clear that authorized officer, following prescribed
procedure under Rules-4 & 5 read with Rule-2(1)( c ) can de-reserve lands
recorded as Gochar land if such lands are no longer required for Gochar
253
[B. MOHANTY,J.]
purpose/if such lands can no longer serve the Gochar purpose/if such land
are in excess of reasonable requirement for Gochar purpose. Once dereserved, Government can use such Gochar land for house site/communal
purpose/industrial purpose/ for any other purpose.
8.
Once an application for de-reservation is there, the authorities are to
apply their mind as to whether fact situation satisfies requirements of either
Clause-(a) or Clause-(b) or Clause-(c) of Sub-Section-2 to Section-3-A of the
Act. In the instant case, a perusal of records shows that as per field enquiry
report dated 11.1.2010, the opposite party no.4 was satisfied that the land in
question had completely lost its Gochar character. According to the report,
the land was/is a shallow land and gets waterlogged during rainy season.
There are pucca structures on its both sides. Because of its existence very
near to Pira Bazar Market area it has completely lost its Gochar character
and it can safely be used as passage.
Secondly, a perusal of Annexure-3 would show that the opposite
party no.3 has relied on a calculation sheet to arrive at reasonable
requirement of Gochar land. Learned Addl. Government Advocate has
produced the relevant case record for perusal of this Court. The calculation
sheet dated 30.6.2010 reveals that the total area of land is around
Ac.445.342 decimals. The effective area of the village would be Ac.445.342
decimals x 20/23 and as per Rule-4(2)(i), 5% of the effective area of the
village should be set apart for pasturage (Gochar). Therefore, the Gochar
land required for village Bhairpur would be Ac.445.342 decimals x 20/23 x
5%. Thus, the R.I. arrived at Ac.19.362 decimals as the land required as
Gochar land. In other words, this quantum of land is required under the law
to be set apart for Gochar land under Rule-4(2)(i) for the village. However,
as per calculation sheet, the total extent of Gochar land available in the
village is around Ac.20.780 decimals. Thus, there is a surplus of Ac.1.418
decimals of Gochar land. All these have been clearly explained in affidavit
dated 30.4.2014 filed by opposite party no.4.
9.
In such background, now let us consider the rival contention of the
parties as indicated above. Learned counsel for the petitioners pointed out
that in the instant case land has been de-reserved for the purpose of
providing a road to the retail outlet and the said purpose is not covered
under Section-3 of the Act. This contention is without merit as we have noted
earlier that once Gochar land is de-reserved following the procedure of law,
the Government can reserve/use the same for any other purpose
whatsoever
besides
using
the same as house site or for
commercial/industrial purpose. So no fault can be found if the authorities
have allowed use of deserved Gochar land as passage to retail outlet. So far
as second contention of the learned counsel for the petitioners that no notice
254
[2014]
was issued inviting objection prior to de-reservation this Court finds that the
same is factually not correct. In fact, as it appears from the case record on
24.1.2010, the opposite party no.4 had issued proclamation inviting
objections. The said proclamation was published by beat of drum in the
village in presence of near about 10 persons of the locality. Copy of the said
proclamation was also published in the notice board of opposite party no.4
and handed over to Sarpanch of the Gram Panchayat. Despite this,
petitioners never filed by objection within 30 days. Therefore, in such
background, the grievance of the petitioners that no notice was issued prior
to passing of de-reservation order is without any merit. The third contention
of the learned counsel for the petitioners relate to wrong calculation made by
the authorities under the Rule with regard to the extent of Gochar land
required for the village. The calculation sheet dated 30.6.2010 of R.I. filed
along with L.C.R. and also the affidavit dated 30.4.2014 filed by opposite
party no.4 clearly show that the calculation arrived at with regard to quantum
of land which should be earmarked for Gochar is correct. It clearly shows
that the total available land as per law is Ac.445.342 decimals and as per
Rule-2(i)(c ) read with Rule-4(2)(i) the area of village which is required to be
set apart for pasturage Gochar would be total land x 20/23 x 5%. When total
land is taken at Ac.445.342 decimals, the Gochar land required for village is
Ac.19.362 decimals. Since the available Gochar area in the village is
Ac.20.780 decimals under Annexure-3, the opposite party no.3 has rightly
arrived at the conclusion that there has been surplus Gochar land to an
extent of Ac.1.418 decimals. Coupled with this, since opposite party no.4 has
given a clear finding that the land has lost its Gochar character, we find no
wrong has been committed by issuance of orders under Annexures-3 and 4
de-reserving the said land for the purpose of using the same as a passage to
the retail outlet. Here there exists enough justification for de-reservation.
Lastly, the learned counsel for the petitioners contended that de-reservation
of any Government land reserved as Gochar, should only be done in
exceptional circumstances and any attempt by either the villagers or others
to encroach upon or illegally convert the Gochar to house plots or other nongrazing use should be resisted and firmly dealt with, as per the judgment of
the Hon’ble Supreme Court as reported in (2011) 2 SCC 591, State of
Jharkhand and others –v- Pakur Jagran Manch and others. To such
contention we can only say that the above noted case is factually
distinguishable. Unlike the above noted case, here both Act and Rules make
detailed provisions for carrying out process of de-reservation and here the
de-reservation has been done as per the provisions of the Act and Rules. So
one cannot say any illegality has been committed in the process. Secondly,
in the present case there exists surplus Gochar land. The quantum of such
surplus Gochar land is around Ac.1.418 decimals. Out of this only Ac.0.072
255
[B. MOHANTY,J.]
decimal has been de-reserved. Thirdly further here the land in question has
completely lost its Gochar character. Fourthly, here law permits for reserving
or use of Gochar land for house sites, commercial use/industrial use and for
any purpose whatsoever by the Government, once it is de-reserved.
Therefore, the facts of this case are clearly distinguishable. As per the
judgment of the Hon’ble Supreme Court reported in AIR 2002 S.C. 834, The
State Financial
Corporation and another –v- M/s.Jagdamba Oil Mills
and another it is well settled that the Courts should not place reliance on
decisions
without
discussing
as
to
how
the
factual situation fits in with the fact situation of the decision on which reliance
is placed. Observations of Courts are not to be read as Euclid’s theorem nor
as provisions of the statute. These observations must be read in the context
in which they appear. Judgments of Courts are not to be construed as
statutes. To interpret words, phrase and provisions of a statute, it may
become necessary for judges to embark into lengthy discussions but the
discussion is meant to explain and not to define. Judges interpret statutes,
they do not interpret judgments. They interpret words of statutes, their words
are not to be interpreted as statutes. Circumstantial flexibility, one additional
or different fact may make a world of difference between conclusions in two
cases. Each case depends on its own facts and a close similarity between
one case and another is not enough because even a single significant detail
may alter the entire aspect. Thus, the case of State of Jharkhand and
others –v- Pakur Jagran Manch and others, (2011) 2 SCC 591 has no
application to the present case. Here the Act and Rule nowhere required that
Gochar land can be de-reserved only in exception circumstances. Here
separate parameters are there for de-reserving Gochar land. In the instant
case, not only the Gochar land is in excess of reasonable requirement but
also the same has lost its Gochar character. Thus, the requirement of
Clause-(b) & (c) of Sub-Section-(2) of Section-3-A of the Act have been
satisfied. In such background, authorities have committed no illegality in
passing the orders under Annexures-3 and 4. Rather, the judgment of this
Court cited by learned counsel for the opposite parties i.e. Jitendra Kumar
Rout and others –v- State of Orissa and others applies with some force to
the present case. It has been made clear there that when de-reservation is
made by following due procedure contemplated under the Act and Rules, the
same should not be interfered with. Here, we are satisfied that the order of
de-reservation was passed legally following due procedure.
For all these reasons, the writ petition is without any merit and
same is dismissed. No costs.
the
256
2014 (II) ILR - CUT- 256
INDRAJIT MAHANTY, J & BISWANATH MAHAPATRA, J.
W.P.(C) NO. 9384 OF 2012 (With Batch)
CHARIDESA KRUSAK
SURAKHYA SANGHA & ORS.
……...Petitioners.
.Vrs.
LAND ACQUISITION – Validity challenged – Land acquired by
IDCO for the petitioner-Company (KVK) to set up thermal power plant –
KVK under taken to apply for clearance of forest land and not to carry
out any construction on the said land till forest clearance is obtained
and further to seek necessary approval of the wild life Board prior to
commencement of its operation – Held, there is no impediment to allow
the petitioner-Company (KVK) to proceed with construction activities
as they have already invested crores of money which is necessary for
the development of the state – Moreover in view of the categorical
finding on the issues raised the order passed by the learned single
Judge is affirmed.
(Paras 32 to 36)
Case laws Referred :1.(1997) 2 SCC 267 : (T.N. Godavaraman Thirumulkpad-V- Union of India)
2.(1996) 5 SCC 647 : (Vellore Citisen Welfare Forum-V- Union of India)
3.(1992) 4 SCC 718 : (AP Pollution Control Bard –V- M.V. Naidu)
4.(2002) 4 SCC 356 : (M.C. Mehta-V- Union of India)
5.(1998) 9 SCC 589 : (M.C. Mehta-V- Union of India)
6.(2012) 3 SCC 1
: (Centre for PIL –V- Union of India)
7.(2009) 5 SCC 373 : (Nature Lovers Movement-V- State of Kerala & Ors.).
8.AIR 1981 SC 324,P-75,76 : (Bhim Singhji-V- Union of India)
9.AIR 1988 SC 1681 : (J.R. Raghupathy-V- State of A.P.)
10.AIR 1993 SC 276 : (Dalpat Kumar & Anr.-V- Prahalad Singh & Ors.)
For Petitioners - M/s.Jayant Das, Sr. Advocate,
S.N. Sarkar, B.K. Jena.
For Opp.Parties -Mr. Ashok Mohanty, A.G.
Mr. S.D.Das, Asst. Solicitor General,
M/s.Pinaki Mishra, Sr. Advocate,
Mr. Milan Kanugo, Sr. Advocate,M/s. S. Das,
M/s. J.Pattnaik, Sr, Advocate,
CHARIDESA KRUSAK SURAKHYA SANGHA -V-STATE
[I. MAHANTY, J.]
257
M/s. B. Mohanty, P.K. Pattnaik, A. Pattnaik,
S.Pattnaik, R.P. Ray, V.S. Rayaguru.
T. Barik, Sachidananda Sahoo, P.R. Bhuyan
M/s. S.K. Padhi, Sr. Advocate, M. Padhi,
A .Das & B. Panigrahi.
JUDGMENT
I. MAHANTY, J.
The present batch of writ applications has come to be filed by the
petitioner Charidesa Krusak Surakhya Sangha and several land losers
seeking to challenge the validity of the acquisition of land made by the
Industrial Development Corporation of Odisha (hereinafter referred to as the
‘IDCO’) for the purpose of setting up a thermal power plant by M/s. KVK
Nilachal Pvt. Ltd. (hereinafter referred to as the ‘KVK’).
2.
At the commencement of hearing, we requested the learned counsel
for the respective parties in this batch of cases to make out categories on
the issues raised and to bunch the various cases in each such category.
Accordingly, on the consent of the learned counsel representing the various
parties, four categories were made. This judgment relates to the cases
under Category-IV as noted hereinbelow:
Category-IV
14.
15.
16.
17.
Challenge to lack of permissions and
clearances for construction of the project,
lack of forest clearance, lack of wildlife
clearance.
W.P.(C) No.9384 of 2012
W.A. No.321 of 2011
W.P.(C) No.30369 of 2011
W.P.(C) No.3926 of 2010
3.
For the convenience of adjudication, we have proceeded to deal with
the aforesaid cases category-wise and, accordingly, the present judgment is
confined to the issues raised in Category-IV i.e. challenge to lack of
permissions and clearances for construction of the project, lack of forest
clearance, lack of wildlife clearance.
258
[2014]
4.
Since in the connected judgment delivered today in W.P.(C)
Nos.6715 of 2011 along with batch of writ applications, the factual
background of challenge has been noted in detail therein, for the sake of
brevity, the same is not being repeated herein.
5.
We will now record the submissions of the parties and their
respective objections.
Category-IV - Challenge to lack of permissions and clearances for
construction of the project, lack of forest clearance, lack of wildlife
clearance.
6.
Mr. Jayant Das, learned Senior Advocate on behalf of the petitioners
submitted that, part of the land over which the thermal power plant of KVK is
to be come up is, classified as “forest land” and such land is covered under
Section 2 of the Forest Conservation Act, 1980 as determined by the
Hon’ble Supreme Court in the case of T.N.Godavarman Thirumulkpad v.
Union of India (1997) 2 SCC 267 and such forest land cannot be put to in a
“non-forest activity”, without a clearance in terms of Section 2 of the Forest
Conservation Act, 1980 and any non forest use of the land, would require
prior approval of the Central Government in terms of Section 2 of the Forest
Conservation Act 1980 and since KVK do not possess any such prior
approval, they should be injuncted from carrying out any non-forest activity
thereon. In this respect, it is further alleged that KVK have already
commenced construction activity without the necessary approval under the
Forest Conservation Act, 1980 and once there is a mixture of forest land
and non-forest land, any activity on non-forest land also requires a prior
clearance from the Government of India under Section 2 of the Forest
Conservation Act. For this purpose, reliance is also placed on a guideline
issued by the Ministry of Environment and Forest (in short ‘MOEF’) dated 21
March, 2011 relevant portion of which is quoted hereinbelow.
“4.4. Project involving Forest as well as Non-forest Lands.
Some project involve use of forest land as well as non-forest
land. State Governments/project authorities sometimes start work on
non-forest lands in anticipation of the approval of the Central
Government for release of the forest lands required for the projects.
Though the provisions of the Act may not have technically been
violated by starting of work on non-forest lands, expenditure incurred
on works of non-forest lands may prove to be infructuous if diversion
of forest land involved is not approved. It has, therefore, been
decided that if a project involves forest as well as non-forest land,
[I. MAHANTY, J.]
259
work should not be started on non-forest land till approval of the
Central Government for release of forest land under the Act has
been given.”
7.
On behalf of the petitioner, it is further contended that the Kapilash
Wild Life Sanctuary which was notified on 02.04.2011 is very close to the
site of the thermal power plant being constructed by the KVK. Placing
reliance on the judgment dated 04.12.2006 of the Hon’ble Supreme Court in
the case of Goa Foundation V. Union of India, passed in W.P.(C) No.460
of 2004 to the following effect:
“Even in cases where environmental clearance was obtained
before declaration of sanctuary and the activities fall within 10Kms of
the sanctuary boundary, clearance of the National Wildlife Board
(NWB) had to be mandatorily obtained”
8.
It is therefore contended that even though KVK admittedly had
obtained an environment clearance under the environment Protection Act on
18.02.2009, in terms of the direction of the Hon’ble Apex Court, since the
site of the KVK thermal plant is within 10 Kms. of the sanctuary boundary,
without obtaining the clearance of the National Wild Life Board, the KVK
ought not to be allowed to proceed with the construction. In this respect
reliance is placed on the following judgments in the cases of
1.
T.N.Godavarman v. Union of India, (1997) 2 SCC 267;
2.
Goa Foundation v. Union of India dated 04.12.2006 passed in
W.P.(C) No.460 of 2004;
3.
Vellore Citisen Welfare Forum v. Union of India, (1996) 5 SCC
647;
4.
AP Pollution Control Board v. M.V.Naidu, (1992) 2 SCC 718;
5.
M.C.Mehta v. Union of India (2002) 4 SCC 356;
6.
M.C.Mehta v. Union of India (1998) 9 SCC 589;
7.
Centre for PIL v. Union of India (2012) 3 SCC 1.
It is to be noted that other learned counsel appearing for various
parties adopted similar arguments as advanced by Mr. J. Das, learned
Senior Advocate appearing for the petitioner-Charidesa Krusak Surakhya
Sangha.
260
[2014]
9.
Insofar as Forest and Environmental issues are concerned, the
learned Advocate General submitted that no construction over the forest
lands will be allowed till forest clearance is received from the MOEF under
Section 2 of the FC Act, 1980. Insofar as the boundary of the Kapilash
Wildlife Sanctuary is concerned, a memo is filed by the learned Additional
Standing Counsel on behalf of the State enclosing a copy of the minutes of
the 3rd meeting of the State Board for Wildlife held on 11.02.2014. While in
the said meeting various issues relating to several other projects were
considered, insofar the project of KVK and Wildlife clearance are concerned,
the same have been noted at para-8 of the minutes, which is quoted
hereunder:
“8. Wildlife clearance proposal for establishment of Thermal
Power Plant by M/s. KVK Nilachal Power Pvt. Ltd. in Kandarei
GP, Athagarh tahsil, at Cuttack district:
•
Chief Wildlife Warden appraised that M/s KVK Nilachal Power
Pvt. Ltd. intends to set up a 1050 MW Thermal Power Project in
Kandarei, Tahsil-Athagarh, Dist. Cuttack. The Environmental
Clearance to the project has been granted vide Letter No.J13011/51/2008-IA.II (T) dated 18.02.2009 by the Ministry of
Environment and Forest, Government of India. Upon grant of EC and
other necessary clearances and approvals from authorities as are
required for the project, construction activities were undertaken by
the Company. Subsequently, Kapilash Wildlife Sanctuary was
notified vide Government of Odisha, Forest and Environment
Department Notification No.5937/F & E dated 02.04.2011.
Consequent upon notification of Kapilash Wildlife Sanctuary, the
project site located within jurisdiction of Athagarh Forest Division
comes at a distance of 3.5 km from Sanctuary Boundary. The
Project Proponent has applied for obtaining clearance from the
National Board for Wildlife as per Government of India, Ministry of
Environment and Forest, letter F. No.6-10/11WL dt.19.12.12 and
submitted the Wildlife Conservation Plan vide letter dt.30.12.11
through the DFO, Athagarh. Acting on a PIL WP© No.9384/2012, the
Hon’ble High Court of Odisha has ordered status-quo. The
construction activities of the Company has come to a halt as per the
order dated 18.05.2012 of Hon’ble High Court, Odisha. Further, vide
order dated 25.6.2012, Hon’ble High Court Odisha have given
direction to Standing Committee of National Board for Wildlife for the
purpose of disposing of the application of the company, to secure the
relevant/ necessary records from the concerned Deptt. Of the State
[I. MAHANTY, J.]
261
Govt. as well as Central Govt. and take a decision on the application
of the applicant company & dispose of the same as expeditiously as
possible, preferably within a period of 3 weeks and submit a report.
Principal CCF (Wildlife) & Chief Wildlife Warden, Odisha has
inspected the site and recommended the proposal with following
conditions:
•
The Laterite quarries lying in the project area and in area
surrounding the project area shall be developed and maintained by
the project proponent in form of water bodies. At least 15 such water
bodies shall be developed and ma Barajora Nala in its natural form
should be maintained as far as possible. If diverted with due
permission from Water Resources Deptt., the diverted nala inside
project area shall follow proper gradients and soil conservation
measures. Further, on both side of the diverted nala green belt shall
be maintained.
•
Enrichment Plantation of elephant-friendly fodder species in
Baniabandha R.F. and Gobra R.F. (at least over 50 ha) in north-west
of proposed Darpani Right Canal of Rengali shall be taken up where
elephant movement is noticed at present. Further, in south-east of
the said Canal, Canal Bank Plantation shall be taken up.
•
3 Nos. of underpasses for smooth movement of elephants at
suitable locations as per suggestion of the DFO be constructed in
collaboration with the Railways observing all the technical
formalities.
Government of Odisha have approved the proposal of Chief
Wildlife Warden, Odisha for placing before State Board for Wildlife.
Chief Wildlife Warden has observed after field visit on
25.12.2013 that the project would not cause any damage,
destruction, exploitation of removal of any wildlife or forest produce
or degradation of habitat in the sanctuary. The project also does not
involve any elephant corridor or established path which would
adversely affect the movement of wild animals and has suggested
some additional conditions. Sri S.K. Pattnaik opined that it is
estimated that Coal based thermal power plant shall produce 7,416
tons of fly ash and 2160 tons of bottom ash per day which is very
huge quantity. The industry is in close proximity to a sanctuary will
be detrimental to wildlife and the flow of effluents through Barajore
nala to Mahanadi shall also affect aquatic flora and fauna of river
262
[2014]
system. Similar view was also expressed by Sri S.N. Patra Member
State Board for Wildlife. Hon’ble Forest Minister desired that the
issue of disposal of fly-ash in the State has to be given serious
thought to prevent health hazard due to pollution caused by fly-ash.
Principal Secretary, Forest and Environment Department informed
and assured that necessary action has already been taken for
utilization of fly ash and more steps utilizing the same in different
uses would also be taken to reduce the pollution caused by fly-ash.
He further informed that a High Level Committee under the
Chairmanship of Chief Secretary, Odisha is monitoring the utilization
of fly-ash in the State. Industries are required to make arrangements
for utilization of fly ash as per the guidelines of the MoEF. Dr. LAK
Singh opined that in the Badajhor nala flows adjoining to the plant
site, the flow of water should be maintained and necessary
measures to be taken to keep water of the nala pollution free.
After detailed discussion the Board approved and recommended for
forwarding the proposal of Thermal Power Plant by M/s KVK Nilachal
Power Pvt. Ltd. in Kandarei GP, Athagarh Tahsil, at Cuttack District
to Standing Committee of National Board for Wildlife with the
conditions suggested by Chief Wildlife Warden, Odisha.”
10.
The conclusion of the State Board for Wildlife based on their field
visit on 25.12.2013 clearly stipulates that the project would not cause any
damage, destruction, exploitation or removal of any wildlife or forest produce
or degradation of habitat in the sanctuary. Further the project also does not
involve any elephant corridor or established path which would adversely
affect the movement of wild animals and has also suggested some
additional conditions and after detailed discussion, the Board approved and
recommended for forwarding the proposal of KVK to the Standing
Committee of National Board for Wildlife with the conditions as suggested
by the Chief Wildlife Warden.
11.
Learned Advocate General submitted that insofar as the buffer zone
to the Kapilash Wildlife Sanctuary is concerned, the State have made its
recommendation to the Union Government and in terms of its
recommendation, the location of the petitioners factory does not fall within
the “buffer zone” as recommended by the State Government, which
obviously awaits the approval thereof by the Union Government.
Submissions of Union of India
12.
. S.D.Das, learned Assistant Solicitor General on behalf of the Union
of India confined his argument to the issues raised under Category-IV alone
[I. MAHANTY, J.]
263
and he submits that while it is a fact that “environment clearance” has been
granted to the KVK, he also submits that the proposal for the buffer zone of
Kapilash Wildlife Sanctuary has been sent to the MOEF for its consideration
but no final decision has been taken thereon and insofar as the
recommendation made by the State Board for Wildlife is concerned, the
same having been made only on 11.02.2014. Such proposal will be duly
considered by the National Board of Wildlife in due course but till date, no
such clearance has been granted.
He further submits that as far as the question of forest land is
concerned, the MOEF has filed an affidavit stating that no forest diversion
proposal has been received either in the Regional Office in the Ministry of
MoEF or by the Ministry itself. He further placed emphasis on the direction
issued by the Ministry in its letter dated 21.03.2011 with regard to the
revision of Para 4.4 of the guidelines on Forest (Conservation) Act, 1980
regarding projects involving Forest as well as Non-forest Lands to the
following effects:
“4.4 Project involving Forest as well as Non-Forest Lands
xxx xxx xxx It has, therefore, been decided that if a project
involves forest as well as non-forest land, work should not be started
on non-forest land till approval of the Central Government for release
of forest land under the Act has been given.”
Submissions of KVK
13.
Mr. Pinaki Mishra, learned Senior Advocate appearing for the KVK
submitted that:
(a)
The Environmental Clearance (“EC”) to the project was granted by the
MoEF on 18.02.2009. The EC clearly states that “no ecologically
sensitive area is reported within 10 Km area of the project; however
there are 5 reserve forests within 5 KM radius”.
(b)
Prior thereto, the letter from the DFO, Athagarh dated 21.07.2008 also
states that “The project area does not form part of any National Park,
Wildlife Sanctuary or Biosphere Reserve, Bird Sanctuary,
Elephant/Tiger Reserve and none of them are present within 10 Km
radius of the proposed site.”
(c)
Upon grant of EC and other necessary clearances/approvals from
authorities as are required for the project, construction activities were
undertaken by the KVK. Undisputedly, till the date of status quo order
264
[2014]
dated 18.05.2012, an investment of Rs.975 crores had been made by
the KVK on the project. Thus the KVK had substantially acted on the
EC.
(d)
On 02.04.2011, Kapilash Wildlife Sanctuary was designated as such
by a notification published by the State Govt. on 29.04.2011. The
notification does not have a retrospective effect as it states “…. the
State government do hereby declare that the aforesaid area to be a
Sanctuary called the KAPILASH WILDLIFE SANCTUARY with effect
from the date of publication of this notification in the Orissa Gazettee.”
The project is admittedly at 3.5 km distance from the boundary of the
sanctuary as ascertained by the DFO.
(e)
W.P.(C) No.9384/2012 was filed in May, 2012 by CKS Sangha
claiming that the KVK should be stopped from constructing the project
as the project of the KVK was within 10 km distance from the
boundary of Kapilash Wildlife Sanctuary and mandatory wildlife
clearance was not obtained.
He submitted that the Petition is based on the followings:-
(i)
Order dated 04.12.2006 passed by the Supreme Court in Goa
foundation Case wherein the Court, inter alia, directed MoEF to refer
those cases to National Board for Wildlife (for Wildlife Clearance)
where ECs had been granted and the project activities were within 10
KM radius of a wildlife Sanctuary/National Parks; and
(ii)
An Office Memo dated 02.12.2009 of MoEF wherein it was clarified
that the projects falling within 10 km radius of a National Park/Wildlife
Sanctuary were required to obtain Wildlife Clearance.
He submitted that the High Court by an interim order dated
18.05.2012 directed that status quo shall be maintained with respect to 10
Km radius of Kapilash. Hence, the issues raised in the petition are devoid of
any merit for the following reasons:(i)
Order dated 04.12.2006 passed by the Hon’ble Supreme Court in
Goa foundation Case
The Hon’ble Supreme Court in the said order had observed that if
State Governments failed to give any proposal then the Court may have to
consider passing orders for implementation of the MoEF’s decision namely
notification of the area within 10 km of the boundaries of sanctuaries and
national parks, as eco-sensitive areas. It further directed that all those cases
[I. MAHANTY, J.]
265
which were falling within 10 km. radius of the existing National Park/Wildlife
Sanctuary and where ECs were issued would also have to obtain clearance
from the Standing Committee of the National Board for Wildlife.
Pursuant to the order dated 04.12.2006 of the Hon’ble Supreme
Court wherein it was indicated that the Court “may have to consider passing
orders of implementation of the MoEF’s decision namely notification of the
areas within 10 km of the boundaries of sanctuaries and national parks, as
eco-sensitive areas”, admittedly no orders were passed by the Hon’ble
Supreme Court.
The above direction namely “all those cases which were falling within
10 km. radius of the existing National Park/wildlife Sanctuary and where
ECs were issued would also have to obtain clearance from the Standing
Committee of the National Board for Wildlife” was applicable to cases where
a declared National Park/Wildlife Sanctuary was existing on the date of
issuance of EC Clearance by the MoEF. In the present case, at the time of
grant of EC on 18.02.2009, there was no sanctuary within 10 km radius of
the project as Kapilash was notified w.e.f. 29.04.2011. Therefore, the KVK
was not required to obtain any Wildlife Clearance from NBWL.
It is submitted that the order passed by the Hon’ble Supreme Court
in the case of Goa Foundation (supra) is not applicable to the KVK and the
KVK was therefore, not required to obtain any wildlife clearance.
Nonetheless, the KVK applied for Wildlife Clearance as a matter of
abundant caution on 30.12.2011. The said Application is being vigorously
pursued by the KVK and is pending at the level of the State Government.
It is further submitted that the Order dated 04.12.2006 passed by the
Hon’ble Apex Court and relied on by the petitioner does not prohibit or even
indicate that there is a prohibition on carrying on construction pending
wildlife clearance, which had already started after grant of EC. The Supreme
Court was fully aware of the fact that there are several projects which have
been granted EC and are within 10 Km radius of a Wildlife
Sanctuary/National Park, yet no orders were passed directing suspension of
their activities.
It is submitted that 10 km is not a thumb rule as sought to be argued
by the Petitioners. In this regard, the present status of notification of “Ecosensitive zones” is around various National Parks and Wildlife Sanctuaries.
It is clear that the MoEF has been made notifications fixing 2.5 kms, 5 Kms
Eco-sensitive zones and in some of the cases, it has fixed 10 km as Eco
Sensitive Zone.
266
[2014]
14.
Insofar as the Office Memo dated 02.12.2009 is concerned, ex-facie
applies prospectively only to those cases where EC is to be granted after
the issuance of Office Memo.
The said Office Memo only provides for a condition to be stipulated
in the Environmental clearance. A condition can be stipulated only in a
clearance which has to be granted after 02.12.2009 and therefore, it does
not apply to cases where Environmental Clearance has been granted prior
to 02.12.2009.
It is further made clear in the said Office Memo that the grant of EC
does not necessarily imply that the investment made in the project, if any,
based on “environmental clearance” so granted, in anticipation of the
clearance from forestry and wildlife angle shall be entirely at the cost and
risk of the project proponent and Ministry of Environment & Forests shall not
be responsible in this regard in any manner.
15.
There is no injunction of any sort whatsoever either by the Hon’ble
Supreme Court or by MoEF directing suspension of activities by the projects
which are within 10 km of a Wildlife Sanctuary/National Park and who have
not yet obtained Wildlife Clearance from the National Board. The only
direction given by the Hon’ble Supreme Court was to refer the matter to the
National Board. The Hon’ble Supreme Court was conscious of the fact that
there are projects that are carrying on activities but do not have Wildlife
Clearance, still the Hon’ble Supreme Court did not pass any Order for
suspension of the activities till the time Wildlife Clearance from NBWL is
obtained.
16.
Reliance is placed on Order dated 21.12.2012 passed by this Court
in the case of Indian Metal & Ferro Alloys Vs. Union of India and Ors.
passed in W.P.(C) No.17693/2012. In the said case, this Court has held that
in the Order dated 04.12.2006 passed by the Hon’ble Supreme Court in
Goa Foundation case, nowhere did the Hon’ble Supreme Court state that
the activities of companies who have obtained clearance earlier, shall be
stopped, till the decision is taken by NBWL. It is also pertinent to note that
the State Govt. has filed an Affidavit dated 26.3.2013 before the Hon’ble
Justice MB Shah Commission, Ahmedabad in the case of M/s. BC Dagara,
Sulaipat Iron Ore Mine stating its position in Para-9 of the affidavit which is
as follows:“9. That though prior clearance from the Standing Committee of the
National Board for Wildlife (NBWL) was mandated for the new
projects at the time of obtaining environmental clearance, there is no
[I. MAHANTY, J.]
267
specific stipulation in any of the above instructions that the ongoing
projects which have already obtained environmental clearance would
be directed to stop their operations until they receive the clearance
from the National Board for Wildlife.”
17.
Learned counsel for the KVK submitted that the KVK had submitted
its application for Wildlife Clearance with the DFO, Athagarh on 30.12.2011
and the same is still pending at the State Govt. level and is yet to be
forwarded to the NBWL.
18.
It is further submitted that the Centrally Empowered Committee
(“CEC”) appointed by the Hon’ble Supreme Court has on 20.09.2012, filed a
Report/Note in WP(C) No.460/2004 in the case of Goa Foundation Vs.
Union of India, regarding Safety Zones (Eco-Sensitive Zones) around
National Parks and Wildlife Sanctuaries. As per the said report the buffer
zone for Kapilash would be 500 meters. The present project is at a distance
of 2.5 km which is well outside the proposed Buffer Zone.
The Hon’ble Supreme Court has prima facie accepted the CEC
recommendations and modifications as suggested by the Amicus Curiae.
The Govt. of Orissa vide their letter dated 17.11.2012 has conveyed
its stand to the MoEF that the CEC report is accepted by the Government in
its entirety. In view of the above, project site falls comfortably outside the
proposed “eco-sensitive zone” area recommended by the CEC/State
Government for the Kapilash Wildlife Sanctuary.
In view of the above submissions, it is submitted that neither the
Order of the Hon’ble Supreme Court in the case of Goa Foundation (supra)
nor the Office Memorandum of MoEF, dated 02.12.2009 even indicate that
the projects cannot carry out activities pending Wildlife Clearance. Thus, the
prayer sought for in WP(C) No.9384/2012 to direct stoppage of construction
activities till the KVK obtains Wildlife Clearance is devoid of any merit and
ought not be granted.
19.
Forest Land
Mr. Mishra, learned Senior Advocate on behalf of the KVK submitted
as follows:
(a)
The Governor of Orissa in exercise of powers under Section 27(1) of
Indian Forest Act, 1927 issued a notification dated 27.10.1953, deserving an
area of 2088 acres inter alia, in Mouza Rahangol and declaring that the
entire area is de-reserved and dis-forested as there was no valuable forest
growth in the area.
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(b)
A PIL (WP No.9384/2012) was filed claiming that the KVK should be
stopped from constructing the project, inter alia, on the ground that the
project involves forest land. It is alleged that the KVK had filed proposal for
diversion of 74.25 ha of forest land to Principal Chief Conservator of Forest
bearing Sl. No.423/2010 dated 04.09.2010. The said diversion proposal was
returned for compliance of certain objections. No revised diversion proposal
has been submitted.
(c)
The KVK had earlier filed a Writ Petition WP(C) No.3926/2010 (part
of the present batch of writ petitions) challenging the notice 17.02.2010
issued by the Tahasildar wherein the Tahasildar had alleged that the KVK
was using the Private Forest Kissam land in violation of Section 2 of the
Forest Conservation Act, 1980. The said Notice was challenged by the KVK
by filing the writ petition on the ground that by virtue of notification dated
27.10.1953 the entire land in Mouza Rahangol was de-reserved and deforested. The High Court vide Order dated 5.3.2010 stayed the operation of
the said notice.
(d)
Realizing that the entire forest land in Mouza Rahangol including the
land forming part of the KVK’s project was dereserved and dis-forested, the
KVK obviously was not required to file any diversion proposal u/s 2 of the
Forest Conservation Act, 1980. As the classification of the land had not
been corrected in line with the 27.10.1953 notification, the KVK filed
petitions u/s.15(b) of the Orissa Survey & Settlement Act, 1958 before the
Court of Additional Commissioner, Settlement & Consolidation, Cuttack,
inter alia, for changing the classification of land privately purchased by it
from ‘Jungle’ to ‘sarad’ or ‘gharbari’ in the Hal ROR, on the strength of
notification dated 27.10.1953 (RP Case Nos. 22/2011 to 43/2011). The said
Petitions were allowed by the Additional Commissioner vide Orders dated
17.3.2011 and the Tahasildar, Athagarh was directed to record the
classification of the land as changed from ‘jungle’ to ‘cultivation/homestead’
in the Hal ROR. No Appeal has been filed against the said Orders and it had
attained finality.
(e)
That in spite of the Orders dated 17.3.2011 passed by the Additional
Commissioner, the Tahasildar, Athagarh was not disposing of the matter by
carrying out the necessary corrections/recording in the Hal ROR, the
petitioner was constrained to file a Writ Petition being WP(c) No.16201/2011
seeking appropriate directions to the Tahasildar. This Hon’ble Court
disposed of the said Petition vide Order dated 08.06.2011 directing the
Tahasildar to dispose of the matter as per the directions contained in the
orders dated 17.03.2011 passed by the Additional Commissioner in RP
Case Nos.22/2011 to 43/2011. The Tahasildar finally complied with the legal
[I. MAHANTY, J.]
269
directions and has carried out the necessary corrections/recording in the Hal
ROR and the land stands recorded as ‘sarad’/’gharabadi’.
(f)
It is also important to note that the Tahasildar, Athagarh (State
Government) has also filed a Revision Petition u/s 15(a) of the Orissa
Survey & Settlement Act, 1958 before the Court of Additional
Commissioner, Settlement & Consolidation, Cuttack for change of
classification of suit plots under Khata No.82 in village Rahangol from
kissam ‘jungle’, ‘chotta jungle’, ‘laika jungle’ to ‘sarad’ or ‘gharbari’ in the Hal
ROR, on the strength of notification dated 27.10.1953. The said petition is
pending. Thus, the stand of the State Government is consistent with the
factual position.
(g)
The DFO, Athagarh thereafter issued a notice dated 02.11.2011 that
the KVK was constructing on forest land. The DFO directed the KVK to stop
the leveling and construction work. The said notice has been challenged in
WP(c) No.30369/2011. In the said petition, the High Court passed an interim
order dated 22.11.2011 that the KVK may carry on leveling work, but no
construction work shall be carried out without leave of the Court.
(h)
Pursuant to the direction issued by the Court to conduct a joint
survey of the land, the same was done by the revenue and forest authorities
namely Tahasildar, Forest Range Officer, Revenue Inspector along with
Amin. The joint verification report was filed along with affidavit dated
16.07.2012 by the State Government. As per the affidavit filed by the Govt.,
the following classification of the land (alleged to be forest land) is given:(i)
Private Forest Kissam land purchased by the KVK – 50.33 Acres
(ii)
Forest Kissam land under acquisition WP(C) No.17476/09-13.38
Acres
Total Forest Kissam Land – 63.71 Acres
It is recorded in the said verification report that no tree growth exists on the
above land and no construction has been carried out on the said land.
(i)
As stated in Paras(d) & (e) above, the classification of the above
Private Forest Kissam land admeasuring 50.33 acres purchased by the KVK
has been changed from private forest to Patit (Homestead) on the basis of
notification dated 27.10.1953 by orders dated 17.03.2011 passed in RP
Case No.22/2011 to 43/2011 filed by the KVK in the Court of Additional
Commissioner, Settlement and Consolidation. It is to be noted that no
Appeal has been filed against the said orders.
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In respect of 13.38 Acres of forest kissam land acquired by the
State, the Court has passed an order of status quo in WP(C)
No.17476/2009 with respect to possession of this land, therefore, the said
land is not in possession of the petitioner.
20.
Revenue Forest Land
It appears that the land included in the list of District Level
Committee is Ac.28.100 dec. and the land shown in the Joint Verification
Report is Ac.30.45 dec (including the above DLC land). It is noted that no
forest growth is found on this land no construction had been undertaken on
this land. As stated in Para(f) above, the application for changing the
classification of this land from forest to non-forest u/s 15(a) of Orissa Survey
& Settlement Act, 1958 filed by Tahasildar, Athagarh Divison is pending in
the Court of Additional Commissioner, Settlement and Consolidation,
Cuttack RP Case No.3/2012 dated 06.01.2012. The said land is not in
possession of the petitioner.
It is submitted that insofar as the private forest land purchased by
the KVK is concerned, the classification of the same has been corrected
from ‘forest’ to ‘cultivation/homestead’. In so far as the Government land is
concerned, which is recorded as forest, the Government has admittedly
applied for correction of ROR, however, has now filed an affidavit before this
Hon’ble Court that 28.100 acres of land is included in the District Level
Committee list. Although the State relied upon the notification dated
27.10.1953 and have filed RP Case No.6/2012, where no order has yet
been passed, if this Hon’ble Court deems fit, the KVK is ready to apply for
clearance in respect of the said 30 acres approx. land. The KVK also
undertakes not to carry out any construction on the said 30 acres land till the
time forest clearance is given.
21.
The petitioner has relied upon the judgment of the Hon’ble Supreme
Court in the case of TN Godavarman Thirumulkpad Vs Union of India
(1997) 2 SCC 267. Specific reliance is placed on the observation of the
Hon’ble Supreme Court in Para-4 that the word “forest” as occurring in
Section 2 of the Forest Conservation Act, 1980 will not only include “forest”
as understood in the dictionary sense, but also any area recorded as forest
in the Government record irrespective of ownership.
It is to be noted that in the case of TN Godavarman (supra), the
Hon’ble Supreme Court considering the meaning of the word “forest”
occurring in the Forest Conservation Act, 1980. It is clearly stated in Para 4
of the judgment that “The word ‘forest’ must be understood according to its
dictionary meaning. This description covers all statutorily recognized forests,
[I. MAHANTY, J.]
271
whether designated as reserved, protected or otherwise for the purpose of
/section 2(i) of the Forest Conservation Act.” In the present case, entire
Mouza Rahangol not only ceased to be reserved forest but was also
disforested (physically as is confirmed by the Triennial Inspection Report of
1960 and Joint Verification Report of 2012) pursuant to the notification dated
27.10.1953 i.e. much before the enactment and coming into operation of the
Forest Conservation Act, 1980. The classification of such land was not
corrected in the ROR, which has been subsequently done.
It is also important to note that in the case of Nature Lovers
Movement Vs. State of Kerala and Ors. (2009) 5 SCC 373, the Hon’ble
Supreme Court held that the regularization of land which was once forest by
the State Govt., prior to the coming into force of FC Act, 1980, did not
require any approval from the Central Govt. under Section of the Forest
Conservation Act, 1980.
22.
The petitioner has placed reliance on Para 4.4 of the guidelines
dated 21.04.2011 on Forest (Conservation) Act, 1980 regarding project
involving Forest as well as Non-forest Lands, issued by MoEF. The said
Para 4.4 is reproduced hereunder:“4.4 Project involving Forest as well as Non-forest Lands
Some projects involve use of forest land as well as non-forest land
State Governments/project authorities sometimes start work on nonforest lands in anticipation of the approval of the Central Government
for release of forest lands required for the projects. Though the
provisions of the Act may not have been technically violated by
starting work on non-forest lands, expenditure incurred on works on
non-forest lands may prove to be infructuous if diversion of forest
land involved is not approved. It has, therefore, been decided that if
a project involves forest as well as non-forest land, work should not
be started on non-forest land till approval of the Central Government
for release of forest land under the Act has been given.”
It is submitted on behalf of KVK:
a.
Firstly the said guidelines do not have any force of law and,
therefore, are not binding on the KVK. There is no provision in either
the Forest Conservation Act, 1980 or the Forest Conservation Rules
or the Indian Forest Act, 1927 regarding use of non-forest land. To
the extent, the guidelines seek to regulate use of non-forest land, a
subject which is not even covered under the Act or the Rules, they
cannot be unenforceable under law. In this regard, reliance is placed
on the judgment of the Hon’ble Supreme Court in the case of Bhim
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Singhji Vs. Union of India-AIR 1981 SC 324- (Paras-75 and 76)
and AIR 1988 SC 1681-J R Raghupathy Vs. State of AP (Para 18S. No.20 and 21) of the List of judgments given by the KVK.
b.
Secondly, on a bare perusal of the guidelines would reveal that the
same does not apply to project being set up by the private parties
and its application is only limited to the project set up by state
authorities. Further, the language of Guidelines conclusively show
that they are not mandatory but are advisory in nature. The
underlying idea of not starting the project, if it involves use of forest
as well as non-forest land till approval of Central Govt. is obtained for
release of forest land is given, is contained in the guidelines itself
namely “expenditure incurred on works on non-forest lands may
prove to be infructuous if diversion of forest land involved is not
approved.” Further the guidelines also admit the position that starting
of work on non-forest land does not result in violation of the
provisions of the Act.
c.
Also important to note is the Order dated 10.01.2012 passed by the
National Green Tribunal in Application No.32/2011-Hussain Saleh
Mahmad Usmain Bhai Kara Vs. Union of India and Ors. by which
the NGT while taking note of the Para 4.4 of the guidelines permitted
the project proponent to go ahead with construction on non-forest
land pending clearance u/s.2 of the Forest Conservation Act, 1980 in
respect of Forest Land.
Thus, it is submitted that no reliance can be placed on the said
Guidelines.
23.
The KVK also brought the following facts to the notice of the Court:
(i)
The cost of the project is Rs.4,990 Crores and the project was
scheduled to be commissioned on or before March, 2013. The KVK
has already made a huge investment of Rs.975.27 crores in the
project as on the date of status quo Order dated 18.5.2012.
(ii)
The major portion of the project cost i.e. approx. Rs.3,810 crores is
being met through loans taken by the KVK from a consortium of
Banks and other Public Financial Institutions. In terms of the Loan
Agreement executed with these Banks/Fls, the KVK is required to
pay an amount of Rs.22.50 lacs per day as interest. Each day of
delay in constructing the project is therefore causing a loss of
Rs.22.50 lacs to the KVK on account of interest alone.
[I. MAHANTY, J.]
273
(iii)
In the event, the project is not commissioned; the KVK is bound to
fail in its time bound obligations to repay the loan amount. In that
eventuality, the Banks/Fls will recall the loan of the KVK and take
action against the project of the petitioner by declaring the loan
account of the KVK as Non-Performing Asset and by taking
consequent action under the provisions of SARFAESI Act, 2002.
(iv)
The KVK is regularly paying wages and salaries to its employees
everyday without any progress in the work of the project. That the
total expenditure being incurred per day by the KVK on the project
including interest on loan is Rs.34 lacs. Thus each day of delay in
construction is causing colossal and irreparable loss to the KVK,
which it will not be able to sustain any further.
(v)
A part of power to be generated from the project of the KVK is
contracted to be sold to third parties with whom the KVK has
executed binding contract. The delay in commissioning the project
and supply of power under the agreement with these third parties
attracts huge penalties in the form of Liquidated Damages. Each day
of delay in supplying the power makes the KVK liable to pay a
penalty of Rs.16 lacs.
(vi)
That the coal linkage and water linkage to the Project also requires
the KVK to commission the project in a time bound manner, failing
which the linkage will be cancelled. In the absence of supply of
linkage coal, the KVK will not be able to commission and operate the
plant.
(vii)
Further the EPC contractors engaged by the KVK for the subject
project, is already threatening to impose huge additional cost for
delay being caused in construction of the project.
(viii)
The MoU with the Govt. of Orissa for commissioning the power
project by the KVK is a time bound one i.e. on or before March,
2013.
That Port Authorities have issued notices to the KVK for lifting
imported equipment/materials for the project, failing which they will
auction the same.
24.
In a supplementary note submitted on behalf of KVK, it is submitted
that the Govt. of Odisha has forwarded the proposal for declaration of EcoSensitive Zone around Kapilash Sanctuary to the MoEF on 12.11.2013. As
per the proposal, the width of Eco-Sensitive Zone around Kapilash ranges
between 500 mtrs. To 13.5 Kms. Project of OP No.6 is well outside the
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proposed zone. This is confirmed in PCCF’s report at pg 78. The MoEF in
its affidavit filed on 14.2.2014 has confirmed the receipt of the said proposal
and has also confirmed that the same is under consideration.
Apart from the above, the Application for Wildlife Clearance of OP
No.6 was forwarded by PCCF (Wildlife) vide its report dated 31.12.2013 to
Forest & Wildlife Dept., Govt. of Odisha. The PCCF in his report has clearly
found that project will not cause any damage, destruction, exploitation or
removal of any Wildlife or forest produce or degradation of habitat in the
sanctuary. He has further confirmed that since the project does not involve
any Elephant Corridor or established path of wild animals, project activities
may not affect movements of wild animals. The proposal of PCCF was
approved by Forest and Environment Dept., Govt. of Odisha on 10.01.2014
with direction to place the proposal before the State Wildlife Board.
Subsequently, the State Wildlife Board in the meeting held on
21.02.2014 has recommended for forwarding the Wildlife clearance
proposal of OP No.6 to the Standing Committee of National Board of
Wildlife. (Minutes of Meeting of State Wildlife Board filed by State Govt. vide
Memo dated 14.03.2014.
25.
The petitioners in response to the supplementary note on behalf of
KVK submitted as follows:
1(a) The Govt. of Odisha has no doubt forwarded the “proposal”. This
confirms that the process of decision making is not completed and no final
decision in the matter has been taken by the competent authority under law.
The justification of variation of 500 mtrs. To 13.5 Kms. and all other alike
matters will be evaluated by the appropriate authority. These facts/matters
are not liable to be adjudicated upon in the present proceedings, as the
same are beyond the scope of this Writ Application. All that can be noticed
is the fact that no final decision as per law has been taken regarding Ecosensitive Zone around Kapilas ranges and in view of the Govt. of India letter
(MoEF) dated 31.7.2013, 10 Kms. will be taken as the Eco-sensitive Zone
till the matter is determined otherwise in accordance with law (which
process is yet to be completed). Admittedly, the statutory process to arrive
at a final decision inter alia as prescribed u/s.5(3) of the Environment
Protection Rules, 1986 is yet to be complied with. No final view can be taken
at the moment and the time period to elapse for a declaration has also to be
complied with.
1(b) The facts stated in paragraph 1(b) of the Supplementary Note
submitted on behalf of KVK Nilachal Power Pvt. Ltd. This being a proposal
at the recommendation/proposal stage and the competent authority having
[I. MAHANTY, J.]
275
not been taken a final decision in accordance with law, there are inherent
contradictions, inter alia, relating to elephant movements, whereas the
reports says the project does not involve any elephant corridor or
established path which would adversely affect the movement of wild animals
and has suggested some additional conditions. The records indicate the
conditions imposed relating to elephant movements and three nos. of
railway underpasses were at least to be built for smooth movement of
elephants. The Barajora Nala (perennial natural water channel) is also liable
for appropriate protection.
1(c)
The matters being in the process of final decision making, it would
be not appropriate to make any comments as the same do not fall for
adjudication in the present writ application. It is, however, humbly pointed
out that the environment clearance has by now elapsed in February, 2014
and the so-called constructions were not being granted and other necessary
clearances and approval from authorities as required. Admittedly, forest
clearance and wildlife clearance have not been obtained. The so-called
construction is limited to (as per order of this Hon’ble Court in WP(C)
No.30369/2011), leveling of some patch of land without putting up any
construction thereupon.
1(d) The submissions of the KVK Nilachal Power Pvt. Ltd. as at 1(d) are
statement of facts. A careful reading of the same affirms that till a final
decision is taken up by the competent authority, the eco-sensitive zone
would continue to be 10 Kms. In the present case, 10 Kms. Restrictions
have been come into existence, it can only be modified by a final notification
by a competent authority in accordance with law after complying with notice
period etc.
3.0
In response to submissions to paragraph 2 of the aforesaid
Supplementary Note, it is humbly submitted that the entire exercise
suggested in this paragraph would be transgression of law. In matters of
environmental law “precautionary” and “preventive” principle is accepted by
the Supreme Court of India in the case of M.C.Mehta onwards. Something
not permissible in law cannot be permitted to continue on an undertaking of
not claiming any equities. The rest of the submissions are not relevant for
the present adjudication.
26.
In the light of the submissions as noted hereinabove raised by the
respective counsels for the parties, the following issues arises for
consideration:
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(i)
If a project involves forest as well as non-forest land, whether
permission can be granted for the project proponent to carry on
construction on non-forest land awaiting clearance on without in any
manner impacting the forest land and awaiting its clearance;
(ii)
Whether the location of the KVK’s thermal power plant requires
wildlife clearance before any construction on the site can be
permitted.
Insofar as first the issue is concerned relating to forest land, the
learned Assistant Solicitor General representing Union of India has placed
reliance on the letter dated 21.03.2011 issued by the Ministry of MoEF and,
in particular, Para 4.4 thereof which is reproduced hereunder:
“Para-4.4-Some projects involve use of forest land as well as nonforest land State Governments/project authorities sometimes start
work on non-forest lands in anticipation of the approval of the Central
Government for release of forest lands required for the projects.
Though the provisions of the Act may not have been technically
violated by starting work on non-forest lands, expenditure incurred
on works on non-forest lands may prove to be infructuous if diversion
of forest land involved is not approved. It has, therefore, been
decided that if a project involves forest as well as non-forest land,
work should not be started on non-forest land till approval of the
Central Government for release of forest land under the Act has
been given.”
27.
The very self-same letter and Para-4.4 of the guidelines issued by
the MoEF was a subject matter of discussion and determination by the
National Green Tribunal, New Delhi in M.A. No.32 of 2011-Hussain Saleh
Mahmad Usmain Bhai Kara vs. Union of India and Ors. and by order
dated 10.01.2012 came to hold as follows:
“3.
xxx xxx xxx Mr. Panjwani submitted that as and when a project
involves use of forest as well as non-forest land, work should not be
started on non-forest land till approval of the Central Government for
release of forest land is granted. In the case in hand a prayer is
made to issue an interim order/ direction restraining Respondent
No.3 from making any construction over the non-forest land, till
necessary permission is obtained from the Central Government.
4.
Respondent No.2 & 3 have entered appearance and have filed a
detailed reply in the main case. So far as this MA is concerned, Mr.
[I. MAHANTY, J.]
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Ramchandran, learned advocate appearing for Respondent No.3
agreed to make oral submissions. Drawing attention to letter dated
21st March, 2011 issued by Assistant Inspection General of Forest to
Chief Secretaries/Administrator of all State and Union Territories
(Annexure-3), learned counsel submitted that the restrictions
imposed in the said guidelines should be confined only to State
Govt./project authorities, and not to projects undertaken by private
entrepreneurs.
Elaborating the said submission, Mr. Ramchandran submitted that
the restrictions have been imposed to avoid loss likely to be caused
to the public exchequer in the event that permission to release the
forest land required for the project is refused and consequently the
project is abandoned. According to Mr. Ramchandran, the said
provision cannot be made applicable to private entrepreneurs who
are willing to take a risk at their own cost, thus the balance of
convenience tilts in their favour, and it is a fit case where the MA
should be dismissed.
5.
Perusal of the records releal that 3.68 ha of forest land out of 300
acres of forest lands, are involved in the aforesaid project. The forest
land, it is submitted would be used only for laying pipelines without
causing any damage to the existing forest.
6.
Mr. Krishnan Venugopal, learned Sr. Counsel, advancing the cause
of the Project Proponent submitted that Para 4.4 of the circular
issued under the Forest (Conservation) Act, 1980 is only a guideline
and it has neither any statutory force nor can it be said to be binding
upon Respondent No.3. Repudiating the submissions advanced by
learned counsel for the Applicant it was argued that if any restraining
order is issued at this stage, the same would cause irreparable loss
to Respondent NO.3 inasmuch as not only the cost of construction
would escalate by afflux of time but also there would be delay in
completion of the project, thereby causing harassment, irreparable
loss and prejudice to the Respondent No.3 which has a prima facie
cause in its favour.
7.
In course of hearing, however, Mr. Ramchandran, learned counsel
for Respondent No.3, fairly submitted that if the said Respondent is
permitted to carry on construction over the non-forest land for which
EC has already been issued, it shall not claim any equity in as much
as the construction undertaken would be purely at its own risk. It is
also submitted that alternative steps are being taken not to use the
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reserve forest land and instead use other land situated in the vicinity
for laying down the pipe lines, and as such, if the construction work
is stalled Respondent No.3 would suffer insurmountable hardship.
In the case of Dalpat Kumar & Anr. Vs Prahlad Singh & Ors. AIR
1993 SC 276, the Supreme Court explained the scope of granting interim
protection and observed as follows:
“The phrases ‘prima facie case’, ‘balance of convenience’ and
‘irreparable loss’ are not rhetoric phrases for incantation, but words
of width and elasticity, to meet myriad situations presented by man’s
ingenuity in given facts and circumstances, but always is hedged
with sound exercise of judicial discretion to meet the ends of justice.”
And thereafter the NGT concluded that the balance of convenience was in
favour of the Project Proponent and consequently permitted the Project
Proponent to carry on construction in connection with its thermal power
plant, over non-forest land but the same was to be at the risk of the said
party and it was further made clear that the Project Proponent shall not
claim any equity with regard to the constructions made thereon.
28.
Apart from the aforesaid facts it appears that from the facts situation
that arises in the present batch of cases that the Governor of Orissa in
exercise of power under Section 27(1) of Indian Forest Act, 1927 issued a
notification dated 27.10.1953, de-reserving an area of 2088 acres in Mouza
Rahangol and declaring that the entire area as “de-reserved” and “disforested”. M/s KVK had earlier filed a writ petition bearing WP(C) No.3926
of 2010 challenging the notice dated 17.02.2010 issued by the Tahasildar,
alleging that the KVK was using private forest kissam land in violation of
Section 2 of the Forest Conservation Act, 1980. The said notice was
challenged by KVK in further writ petition on the ground that by virtue of
notification dated 27.10.1953, the entire land in Mouza Rahangol had been
“de-reserved” and “dis-forested”. As classification of the land had not been
changed in the ROR in line with 1953 notification, the KVK had filed petition
under Section 15(b) of the Orissa Survey & Settlement Act, 1958 for
changing the classification of land privately purchased by it from ‘Jungle’ to
‘sarada’ or ‘gharbari’ in the Hal ROR. RP Case Nos.22 of 2011 to 43 of 2011
were allowed by the Additional Commissioner vide order dated 17.03.2011
and the Tahasildar, Athagarh was directed to record the classification of
land as changed from ‘jungle’ to ‘cultivation/homestead’. It is important to
take note of the fact that no appeal has been filed against the said order.
Although directions had been issued by the Additional Commissioner on
[I. MAHANTY, J.]
279
17.03.2011, since the Tahasildar, Athagarh had not acted in the manner as
directed by making necessary corrections of the ROR, KVK had filed
W.P.(C) No.16201 of 2011 seeking appropriate directions to the Tahasildar
and this writ petition has come to be disposed of vide order dated
08.06.2011 directing the Tahasildar to dispose of the matter as per the
directions contained in the order dated 17.03.2011 passed by the Additional
Commissioner. Finally, the Tahasildar complied with the said direction and
necessary corrected Hal ROR pertaining to the private purchase of the land
made by KVK was corrected and the said land now stands recorded as
‘sarada’/’gharabari’. It is further brought to our notice in course of hearing by
learned counsel for the KVK, that similar to the action taken by the KVK for
getting appropriate correction of the nature of their land in the ROR, certain
land acquired under the L.A. Act for IDCO and to be leased to KVK, though
covered by 1953 notification, the necessary record of rights have not yet
been corrected. It appears that similar to the action as initiated by the KVK
for the land privately purchased by it for correcting the description of land
holding, the Tahasildar, Athagarh also has filed a Revision Petition under
Section 15(a) of the Orissa Survey & Settlement Act, 1958 before the
Additional Commissioner, Settlement & Consolidation, Cuttack for change of
classification of suit plots under Khata No.82 of village Rahangol from
kissam ‘jungle’, ‘chotta jungle’, ‘laika jungle’ to ‘sarada’ and ‘gharbari’ based
on the notification dated 27.10.1953. It appears that the said application by
the Tahasildar, Athagarh remains pending for consideration.
29.
Thereafter, it appears that the DFO, Athagarh issued a further notice
on 02.11.2011 to KVK directing stoppage of leveling and construction work,
inter alia, once again on the ground that such work was being carried out on
“forest land”. This notice is the subject matter of challenge by KVK in
W.P.(C) No.30369 of 2011, whereas interim orders were passed in favour of
the KVK on 22.11.2011, permission was granted to KVK to carry on leveling
work but no construction work shall be carried out without leave of the
Court.
It appears that this Court issued further directions to the State to
conduct joint survey of the land and in process of the said joint survey done
by the revenue and forest authorities, namely, the Tahasildar, Forest Range
Officer, Revenue Inspector along with Amin. A report was submitted on
16.07.2012 along with his affidavit which indicates that private forest kissam
land purchased by KVK was acres 50.33 and private forest kissam land
under acquisition amounted to acres 13.38 and, therefore, it was stated that
private forest kissam land totally amounted to 63.71 acres.
What would be important to note from the enquiry report is that on a
factual verification of the site, the enquiry report indicates that “no tree exists
280
[2014]
on the above land and no construction has been carried out on the said
land”.
In the light of the aforesaid facts, it appears therefrom that the entire
private forest kissam land purchased by the KVK, RORs of which have now
been corrected based on the earlier notification issued by the Governor of
Orissa dated 27.10.1953 and further that the Tahasildar, Athagarh has also
made an application under Section 15(a) of the Orissa Survey & Settlement
Act, 1958 for similar conversion of acres 13.38 recorded as forest kissam
land though “de-reserved” and “dis-forested” by notification dated
07.10.1953 still awaits disposal. In other words, a total of acres 13.38
pertaining to the acquired land, still remains recorded as “forest kissam”.
Apart from the aforesaid private forest land, a further area of land amounting
to Ac.28.100 decimals has been recorded as revenue forest land and has
been mentioned by the State in its affidavit as DLC (District Level
Committee) land before the Hon’ble Supreme Court in the case of TN
Godavarman (supra). Yet the joint verification report observes that “no forest
growth is found on this land and no construction has been undertaken on
this land”. It is further stated on oath by M/s.KVK that neither the forest
kissam land acquired amounting to 13.38 acres nor the DLC land amounting
to Ac.28.100 decimals has yet been handed over by the State to M/s. KVK.
It is stated on behalf of KVK that as the correction has been made in
the ROR of KVK pertaining to private purchase of land, similar applications
by the State i.e. Tahasildar, Athagarh remains pending before the Additional
Commissioner, Settlement and Consolidation, Cuttack. While the stand
taken by the petitioner is that the land has been erroneously recorded as
forest land yet, they have given an undertaking before this Court that, the
KVK is ready to apply for clearance in respect of the said 30 acres
approximate forest land and also further undertake not to carry out any
construction activity on the said 30 acres of land till the time forest clearance
is obtained and/or the Revision Case filed by the Tahasildar, Athagarh,
before the Additional Commissioner, Settlement and Consolidation, Cuttack
is disposed of.
30.
Mr. Pinaki Mishra, learned Senior Advocate appearing for the KVK
placed reliance in the case of Nature Lovers Movement v State of Kerala
and others, (2009) 5 S.C.C. 373.
Considering the fact of the aforesaid case taking into account the
fact that much before enactment of Forest Conservation Act 1980, the State
Government had taken a policy decision to regularize unauthorized
occupation/encroachment of forest land made prior to 01.01.1977 and for
implementing such decision, the State
Government succeeded in
[I. MAHANTY, J.]
281
persuading the Central Government to grant approval for diversion of forest
land by way of assignment to unauthorized occupants/encroachers and the
approval having been granted in accordance with the guidelines framed by
the Central Government. The grievance raised against regularization of
unauthorized occupation/encroachment was held to be premature in the
absence of any decision taken by the State Government in that regard.
31.
It is also relevant herein to take note of the judgment of the Hon’ble
Supreme Court in the case of J.R. Raghupathy and others v State of
Andhra Pradesh, AIR 1988 S.C. 1681, in which the Hon’ble Supreme Court
came to hold that while Article 162 vests executive power of the State and
enables the Government to issue administrative instructions to its servants
how to act in certain circumstances, but that would not make such
instructions statutory rules the breach of which, is justiciable. The guidelines
are merely in the nature of instructions issued by the State Government to
regulate the manner in which to formulate proposals for formation of a
Revenue Mandal or for location of its Headquarters. It is reiterated therein
that the guidelines had no statutory force and are not enforceable in Court of
law though for breach of such instructions the public servant may be held
liable by the State.
32.
Apart from the above, a Constitutional Bench of the Hon’ble Apex
Court in the case of Shri Bhim Singhji & others v Union of India and
others, A.I.R. 1981 S.C. 234 has come to hold that guidelines issued by the
Government cannot supersede or alter any of the provisions of the acts and
rules thereunder. In Conclusion in paragraph-76 of the said judgment Their
Lordships of the Constitutional Bench came to conclude that “guidelines
cannot alter the priorities laid down in the section. The guidelines are
nothing but in the nature of executive instructions and cannot obviously
control the plain meaning of the section. Where the language of the Act is
clear and explicit, we must give effect to it, whatever may be the
consequences, for in that case the words of the statute speak the intention
of the legislature.
On a plain reading of the guideline dated 21.03.2011 of the MoEF
clearly state that if work commences on non-forest land in anticipation of the
approval of the Central Government for release of forest land required for
the project “though the provisions of the Act may not been technically
violated by starting work on non-forest land” expenditure incurred may
become infractuous if diversion is not approved. Considering the nature of
the guidelines since the National Green Tribunal in above referred case
Husain Saleh Mahmad Usmal Bhai Kara v Union of India and others is
282
[2014]
yet to give its final determination thereon while refraining from expressing
any opinion on the same, we record the undertaking of Mr. Pinaki Mishra,
learned Senior Advocate on behalf of KVK that they are ready to apply for
clearance in respect of 30 acres approximately of purported Government
Forest Land and further undertaking not to carry out any construction on the
said land till forest clearance is obtained and/or the Revision Case filed by
the Tahasildar, Athagarh, before the Additional Commissioner, Settlement
and Consolidation, Cuttack is disposed of. We, therefore, dispose of the writ
petitions recording the aforesaid undertaking. Accordingly, the first issue is
answered in favour of the KVK in terms of the directions issued herein.
33.
Though the petitioners have placed a great amount emphasis on the
judgment of the Hon’ble Supreme Court in the case of Goa Foundation v.
Union of India and others and insisted that the Hon’ble Supreme Court,
had held that even in cases where “environmental clearance” was obtained,
before declaration of sanctuary and the activities fall within 10Kms of the
sanctuary boundary, clearance of the National Wildlife Board (NWB) had to
be mandatorily obtained. Union of India also represented by the learned
Assistant Solicitor General relied on the same. Learned counsel for KVK
vehemently objected to the same and stated that the order dated
04.12.2006 of the Hon’ble Supreme Court in the case of Goa Foundation
(supra) merely indicated that the Hon’ble Supreme Court “may have to
consider passing orders of implementation of the MoEF decision namely
notification of the areas within 10 kms of the boundaries of sanctuaries and
national parks, as eco-sensitive zones. He submitted that admittedly, no
subsequent orders have been passed by the Hon’ble Supreme Court giving
effect to the said threat. Although various contentions have been advanced
by the learned counsel for the respective parties, it has been admitted by
the State Government that the project proponent KVK has obtained
environment clearance from the MoEF on 18.02.2009. At that time, the
Environment Clearance Certificate clearly noted that “no ecologically
sensitive area was reported within 10 Kms area of the project; however
there are 5 reserve forests within 5 KMs radius”. But more importantly, the
letter of the DFO, Athagarh dated 21.07.2008 contains the following
declarations “The project area does not form part of any National Park,
Wildlife Sanctuary or Biosphere Reserve, Bird Sanctuary, Elephant/Tiger
Reserve and none of them are present within 10 Kms radius of the
proposed site”. It is only on 02.04.2011 that the Kapilash Wildlife Sanctuary
was designated by way of notification published by the State Govt. on
29.04.2011. The project location is more than 3.5 kms from the boundary of
the sanctuary as determined by the DFO.
[I. MAHANTY, J.]
283
34.
Now, the only issue that remains for consideration purported to the
“buffer zone”. While Mr. J. Das, learned Senior Advocate appearing for the
petitioners has been vehemently arguing that the “buffer zone” must be
deemed to be 10 kms., this issue is no longer res integra. The selfsame
question as to whether any industrial activity can be permitted within 10 kms
zone of a reserved forest/national park/ sanctuary came to be considered by
the Hon’ble Supreme Court in its judgment dated 21.04.2014. The
submission was advanced before the Court that the order dated 04.12.2006
(relied upon by the petitioners) did not finally fixed the “buffer zone” of 10
kms from the boundary of national parks and wildlife sanctuaries but merely
granted a last opportunity to State to submit their recommendations. It was
the further argument advanced that till date, no such notification has yet
been notified till date. The Hon’ble Supreme Court in the case of Goa
Foundation (supra) concluded as follows:
“71. In the result, we declare that:xxx
xxx
xxx
(ii)
until the order dated 04.08.2006 of this Court is modified by this
Court in I.A. No.1000 in T.N. Godavarman Thirumulpad v. Union of
India & Ors., there can be no mining activities within one kilometer
from the boundaries of National Parks and Sanctuaries in Goa;
(iv)
by the order dated 04.12.2006 in Writ Petition (C) No.460 of 2004
(Goa Foundation v. Union of India), this Court has not prohibited
mining activities within 10 kilometers distance from the boundaries of
the National Parks or Wildlife Sanctuaries;”
Apart from the above, it would be relevant that in the meantime, the
State have also forwarded its recommendation of the “buffer zone” for
consideration by the Central Government and in terms of the submission
made by the learned Advocate General, the location of the project
proponent KVK is beyond the “buffer zone” recommended by the State
Government. Therefore, applying the judgment of the Hon’ble Supreme
Court in the case of Goa Foundation as referred hereinabove, we are of the
considered view that the Hon’ble Supreme Court, has not prohibited any
industrial activity within 10 kms. distance from the boundary of the national
park or wildlife sanctuary, but there can be no industrial activity within 1 km.
from the boundary of the national parks and sanctuaries in Goa until any
further orders were passed by the Hon’ble Supreme Court in this regard.
Therefore, we find that whereas the KVK has to approach the appropriate
committee since the location is within 10 kms of the boundary of the
284
[2014]
Kapilash Wildlife Sanctuary, there appears to be no bar in carrying out
construction activity, since the distance between the wildlife sanctuary and
the location of the thermal power plant is more than 1 km beyond the limits
suggested by the State Government in its recommendation made to the
Central Government. But the KVK would have to seek necessary approval
of the Wildlife Board prior to commencing its operations. Accordingly, the
second issue is answered in favour of the KVK in terms of the directions
issued herein.
35.
Therefore, we are of the considered view that there exists no
impediment to allow the petitioner-company (KVK) to proceed with
construction activities keeping in view of the fact that the huge investment of
nearly 1000 (one thousand) crores has already been made and further 4000
(four thousand) crores is required to be further invested, in the interest of not
only the project proponent but the State interest insofar as the preferential
rights to draw power and the urgent necessity of power as an infrastructure
project for the development of the State and the Union of India, cannot be
doubted.
36.
Insofar as W.A. No.321 of 2011 is concerned, after hearing the
learned counsel for the appellant as well as the State, it appears that the
appellants claiming to be encroached the Government land, had come to
challenge an order dated 6.1.2011 passed by the learned Addl.
Commissioner, Settlement and Consolidation, Cuttack in RP Case No.597
of 2010 under Section 15(a) of Orissa Survey and Settlement Act, 1958.
This case had been initiated by the Tahasildar, Athagarh for correction of
the map and ROR in respect of Khata No.84 of Village Rahangol enhancing
the area for acres 4.68 to 34.68 dec. This land was recorded as ‘RakhitAnabadi’ under the State Government and certain persons claiming to be
encroachers on the said land had sought to file intervention application in
the petition filed by the Tahasildar registering the correction of ROR and
map on the claim that they were in the possession of some parts of the case
land and/or government land could not be alienated in favour of any
company. In the present case, the learned Single Judge while dealing with
the issue came to a finding that, enquiry was conducted by the Tahasildar
along with the Revenue Supervisor, Revenue Inspector and Amin and it is
mentioned in the report that the land is free from encroachment and further
that the intervenors had not produced any material to indicate their
occupation or possession or any interest over the case land and
accordingly, their objections regarding alienation of the government land in
favour of the IDCO were rejected and the order passed by the Addl.
Commissioner of Settlement and Consolidation dated 6.1.2011 came to be
affirmed.
[I. MAHANTY, J.]
285
We find no justifiable ground to interfere with the said order since the
learned Single Judge has clearly and categorically came to a conclusion
that in the absence of the material in support of the petitioner/appellants’
case, assertion of any right, interest and possession over the case land and
objection thereof, is wholly misconceived and accordingly, we affirm the
order passed by the learned Single Judge.
37.
In view of the above, the W.P.(C) No.9384 of 2012 & W.A. No.321 of
2011 stand dismissed and W.P.(C) No.30369 of 2011 with the prayer for
quashing the notice issued by the DFO, Athagarh vide letter No.8192
dt.02.11.2011 under Annexure-1 which is consequent upon the letter
No.4954 dt.30.08.2010 under Annexure-9 and letter No.7773 dt.28.12.2010
under Annexure-10 and further declare that the provisions of Forest
Conservation Act would have no application to the lands purchased by the
petitioner which is a part of the area notified as de-forested and de-reserved
in 1953 Notification dt.27.10.1953 under Annexure-8 being the very basis of
correction of the R.O.Rs under Annexures-7 & 14, is allowed. Further,
W.P.(C) No.3926 of 2010 with a prayer for quashing the notice dated
17.02.2010 issued by the Tahasildar, Athagarh under Annexure-2 is also
allowed.
The aforesaid batch of writ applications stand disposed of in terms of
the directions noted hereinabove.
Writ petitions disposed of.
2014 (II) ILR - CUT- 285
INDRAJIT MAHANTY, J.
CRLREV NO.511 OF 2008
I. B. ENTERPRISES
…….Petitioner
.Vrs.
KONARK SUPPLY AGENCY
……..Respondent
NEGOTIABLE INSTRUMENTS ACT, 1881 - Ss. 118 & 138.
286
[2014]
Confirming order of conviction and sentence U/s. 138 N. I. Act –
Order challenged – Complainant supplied materials to the accused by
issuing bills – He handed over the bills to his advocate which was not
filed in the Court – Accused having denied, onus shifted to the
complainant to prove – Although documents were not filed both the
Courts below proceeded on the basis of presumption which is not
correct – Held, impugned orders set aside and matter is remitted back
to the trial Court giving opportunity to the complainant to produce
documentary evidence with an opportunity to the accused to Crossexamine and proceed with the case afresh.
(Paras 4 & 5)
Case laws Referred to:1.(2009) 42 OCR (SC) 217 : (P. Venugopal –V- Madan P. Sarathi)
2.(2006) 35 OCR (SC) 43 : (M. S. Narayana Menon @ Mani-V- State of
Kerala & Anr.)
3.(1999) 3 SCC 35 P-31 : (Bharat Barrel & Drum Manufacturing Co.-VAmin Chand Payrelal)
For Petitioner - M/s. P.K. Nayak & H.B. Dash.
For Opp.Party - M/s. M.K. Pati & M.R. Dash.
Date of judgment: 03.07.2014
JUDGMENT
I. MAHANTY, J.
This revision under Section 401 of the Cr. P.C. has come to be filed by
the petitioner seeking to challenge the judgment dated 05.04.2008 passed
by the learned Additional Sessions Judge, Rourkela in Criminal Appeal
No.15 of 2006 affirming the conviction and sentence passed by the learned
S.D.J.M., Panposh, Rourkela in 1CC No.58 of 2004 directing the petitioner
to undergo S.I. for a period of two years and to pay compensation of
Rs.4,20,000/- to the complainant and in default of compensation amount, to
undergo S.I. for a further period of three months for the offence under
Section 138 of the N.I. Act.
2.
It is asserted on behalf of the petitioner that the court below failed to
appreciate that the cheque that had been issued by the petitioner had been
given by way of advance for supply of materials and without supplying the
materials, the same was utilized by the opposite party-complainant with an
oblique motive and the complainant was, therefore, not entitled to encash
the cheque in question nor was the petitioner liable to the opposite party-
287
I. B. ENTERPRISES -V- KONARK SUPPLY AGENCY
[I. MAHANTY, J.]
complainant in any manner. The complainant and opposite party entered
appearance through counsel and submitted that the complainant-opposite
party was the dealer of L & T cement and carrying on business in Rourkela
for supply of cement. The petitioner purchased cement on credit basis on
different dates, which was supplied on good faith and the complainant made
repeated demands for clearance of the outstanding. The petitioner avoided
discharging his liability on various pretexts and ultimately on 23.02.2004
issued a cheque for Rs.4,00,000/- in favour of the opposite partycomplainant. When the cheque was produced for encashment, the same
was dis-honored due to “insufficiency of fund”. Thereafter, necessary
demand notice was issued to the petitioner through advocate on 28.02.2004
which was duly received by him on 01.03.2004 and in spite of receipt of the
notice since the petitioner did not comply nor reply to the notice, the
opposite party-complainant initiated 1CC case in the court of learned
S.D.J.M., Panposh.
In course of the trial, the complainant examined himself and two
witnesses, whereas the petitioner-accused only examined himself as
defence witness. It is further submitted on behalf of the complainant that the
accused-petitioner in his cross-examination at para-5 admits to have done
business with the complainant for last 15 to 20 years and he admits not
having issued any notice to the banker to stop payment of the cheque. It is,
therefore, submitted that on perusal of the evidence of the accusedpetitioner as well as the complainant, it would become crystal clear that out
of good faith the sale/transaction have been affected between the parties.
3.
Learned counsel for the petitioner placed reliance on a judgment of
the Hon’ble Supreme Court in the case of P. Venugopal V. Madan P.
Sarathi, (2009) 42 O.C.R. (SC) 217, in which the Hon’ble Supreme Court
held that the initial burden of proving that the cheque was issued for
discharge of any debt or liability is on the complainant and the presumption
raised under Section 139 of the Act in favour of the holder of the cheque
“does not extend to the extent that the cheque was issued for the discharge
of any debt or liability which is required to be proved and it is essentially a
question of fact”.
For better appreciation, para-19 of the aforesaid judgment is quoted
hereunder.
“Indisputably, in view of the decisions of this Court in Krushna
Janardhan Bhat (supra), the initial burden was on the complainant.
The presumption raised in favour of the holder of the cheque must
be kept confined to the matters covered thereby. The presumption
raised does not extend to the extent that the cheque was issued for
288
[2014]
the discharge of any debt or liability which is required to be proved
by the complainant. In a case of this nature, however, it is essentially
a question of fact.”
4.
It is asserted on behalf of the petitioner that the stand of the
accused-petitioner taken in defence was that of denial of any existing date
and further that the said amount had been offered by way of an advance
and that no supply had been effected by the complainant. Learned counsel
for the petitioner placed reliance on a judgment of the Hon’ble Supreme
Court in the case of M.S. Narayana Menon @ Mani V. State of Kerala &
another, (2006) 35 O.C.R. (SC) 43, in which the Hon’ble Supreme Court
reaffirmed its views expressed in an earlier judgment in the case of Bharat
Barrel & Drum Manufacturing Company v. Amin Chand Payrelal [(1999)
3 SCC 35] in para-31, which is quoted hereunder:
“Upon consideration of various judgments as noted hereinabove, the
position of law which emerges is that once execution of the promissory note
is admitted, the presumption under Section 118(a) would arise that it is
supported by a consideration. Such a presumption is rebuttable. The
defendant can prove the non-existence of a consideration by raising a
probable defence. If the defendant is proved to have discharged the initial
onus of proof showing that the existence of consideration was improbable or
doubtful or the same was illegal, the onus would shift to the plaintiff who will
be obliged to prove it as a matter of fact and upon its failure to prove would
disentitle him to the grant of relief on the basis of the negotiable instrument.
The burden upon the defendant of proving the non-existence of the
consideration can be either direct or by bringing on record the
preponderance of probabilities by reference to the circumstances upon
which he relies. In such an event, the plaintiff is entitled under law to rely
upon all the evidence led in the case including that of the plaintiff as well. In
case, where the defendant fails to discharge the initial onus of proof by
showing the non-existence of the consideration, the plaintiff would invariably
be held entitled to the benefit of presumption arising under Section 118(a) in
his favour. The Court may not insist upon the defendant to disprove the
existence of consideration by leading direct evidence as the existence of
negative evidence is neither possible nor contemplated and even if led, is to
be seen with a doubt.”
In the aforesaid judgment, it has been categorically noted that a
defendant can prove the non-existence of a consideration by raising a
probable defence and in such a case if the defendant discharges the initial
onus of proof by showing that the existence of consideration was
improbable or doubtful, the onus would shift to the plaintiff who will be
289
I. B. ENTERPRISES -V- KONARK SUPPLY AGENCY
[I. MAHANTY, J.]
obliged to prove it as a matter of fact and upon its failure to prove, would
disentitle him to the grant of relief on the basis of the negotiable instrument.
In the case at hand, from the evidence of the complainant, it appears
that in order to establish the offence under Section 138 of the N.I. Act
against the accused-petitioner, while it is claimed that the material was duly
supplied to the accused by issuing bills in favour of the accused (all those
bills were given to his conducting advocate to be filed in the court of law, if
required). The aforesaid fact by itself would indicate that neither the bills nor
books of accounts were ever produced before the trial court and the court
proceeded on a presumption under Section 118 of the Act which was not
capable of replacing evidence since the petitioner (accused) had discharged
his initial onus by raising his defence of advance payment and non-supply
and thereby discharging the initial onus of proof regarding the existence of
consideration being improbable or doubtful and consequently the onus
stood shifted to the plaintiff to prove it as a matter of fact. In the case at
hand, neither the books of accounts nor the bills were ever produced in
course of the trial and both the trial court as well as appellate court
proceeded merely on the basis of a presumption, which in the fact situation
of the present case was not available to be relied upon.
5.
As a consequence of the aforesaid finding, this revision is allowed
and the judgment dated 05.04.2008 passed by the learned Additional
Sessions Judge, Rourkela in Criminal Appeal No.15 of 2006 and the
judgment dated 24.02.2006 passed by the learned S.D.J.M., Panposh,
Rourkela in 1CC Case No.58 of 2004 are hereby set aside but, in the
peculiar circumstances of the case, the matter stands remitted back to the
trial court with a further direction to afford a further opportunity to the
complainant to produce documentary evidence, if any, and the accused also
be afforded an opportunity of cross-examination and to proceed afresh
strictly in accordance with law and the citation of the Hon’ble Supreme Court
as noted hereinabove.
Revision allowed.
290
2014 (II) ILR - CUT- 290
I.MAHANTY, J & B. N. MAHAPATRA, J.
W.P.(C) NO. 5102 OF 2013
KRUSHNA CHANDRA NAYAK
………Petitioner
.Vrs.
THE RAILWAY BOARD & ORS.
……….Opp.Parties
LAND ACQUISITION – Railway Projects – Notification Dt.
16.07.2010, providing employment for land losers – Petitioner’s land
acquired prior to such notification – Applicability – Notification being
benevolent should not be given a narrow interpretation – Moreover
similarly situated persons already got the benefit of the notification –
Held, petitioner is entitled to get benefit under the notification
Dt.16.07.2010.
(Paras 11 & 12)
For Petitioner
- M/s. Soubhagya S. Das, R. Sahoo,
K.C. Mohapatra & J.K. Swain.
For Opp.Parties - Mr. D.K. Sahu, M/s. B.K. Dash & A. Pal.
Judgment : 14.05.2014
JUDGMENT
B.N. MAHAPATRA, J.
This writ petition has been filed with a prayer to quash the order dated
15.1.2013 passed by the Central Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No. 1032 of 2012 under Annexure-4 and to direct the
opposite party-Railway Authorities to issue necessary appointment order in
favour of the petitioner under Rehabilitation Assistance Scheme as against
any substantive vacancy commensurate with his qualification as his family is
in distress condition.
2.
Petitioner’s case in brief is that when the father of the petitioner
continued to be a recorded tenant under the State Government having
absolute right, title and interest over the properties appertaining to Plot Nos.
2314, 2318, 2319, 2320 and 2325 under Khata No. 754 in Mouza
Godiputmatiapada under Delanga Tahasil in the district of Puri and his
family was earning their livelihood out of usufructs from the said property
through agriculture, the process of acquisition of land was initiated by the
KRUSHNA CHANDRA NAYAK -V- THE RAILWAY BOARD
[B.N. MAHAPATRA, J. ]
291
authorities of the State Government for the purpose of construction of
Khurda Road-Bolangir New B.G. Rail Link Project in the year, 1999 to be
undertaken by the East Coast Railway under the Ministry of Railways.
Consequentially Land Acquisition Case No. 05 of 1999 was registered
before the Land Acquisition Officer pertaining to the landed property of his
family and similar other persons of the locality. In the process of such
acquisition of land, a sum of Rs. 78,292/- was granted as compensation in
favour of his family by the Land Acquisition Officer, Puri, which was received
by his family on 25.5.2001 without prejudice to the rights and contentions, if
any. In view of such acquisition of the land, no other alternative plots were
allotted to his family save and except the amount of compensation. When
the family of the petitioner along with many other similarly situated persons
of the locality enquired about the Rehabilitation Assistance Scheme
providing employment to the family of the land oustees, the authorities
suggested that the said aspect was under active consideration and
necessary notification would come out, once it is finalized. After passage of
several years, ultimately the Railway Authorities decided to grant the benefit
of compassionate appointment to the family of those land oustees whose
lands were acquired and/or to be acquired.
In consequence of such
decision, the Government of India in its Ministry of Railways vide Notification
No. E (NG) 11/2010/RC-5/1 dated 16.7.2010 under Annexure-2 notified a
scheme for providing employment to one of the family members of the land
oustee in deserving cases as against the land acquired by the Railways for
its various projects. Pursuant to the said notification, the petitioner submitted
an application before the opposite party no. 3-Divisional Railway Manager,
East Coast Railway, Khurda Road for consideration of his case for
compassionate appointment under Rehabilitation Assistance Scheme
commensurate with his educational qualification. Along with such
application, the petitioner enclosed a certificate regarding ‘No Objection’
from the family members along with his educational testimonials as per
requirement of the authorities as well as an undertaking expressing his
willingness to work against any available vacancy. The further case of the
petitioner is that though he satisfied all the eligibility criteria coming within the
zone of consideration to avail the benefit of Rehabilitation Assistance
Scheme so far as it relates to grant of employment as a land oustee/loser,
he has not received any communication on his application and pending
consideration of his application, in the recent past, the opposite partyauthorities have gone for recruitment of fresh candidates ignoring his case.
Due to non-consideration of the application of the petitioner for grant of
benefit under Rehabilitation Assistance Scheme for an inordinate period, the
petitioner made a representation to the authorities in this regard. The said
representation having not been considered, he approached the Central
292
[2014]
Administrative Tribunal,Cuttack Bench, Cuttack in O.A. No. 1032 of 2012
seeking a direction to the opposite party-authorities to consider his case for
appointment under Rehabilitation Assistance Scheme (Annexure-2) as a
land loser and for a further direction to issue necessary order of appointment
in his favour against any available vacancy commensurate to his educational
qualification within a stipulated time. The Tribunal after hearing the parties
vide order dated 15.1.2013 dismissed the O.A. Against the said order of
dismissal, the petitioner has approached this Court in the present writ
petition seeking appropriate relief.
3.
Mr. S. Das, learned counsel appearing on behalf of the petitioner
submitted that the Tribunal is not justified in holding that the notification
issued by the Railway Board on 16.7.2010 cannot be made applicable to the
case of the petitioner since the land of petitioner’s family has been acquired
much prior to the date of notification. The notification in question is issued
with regard to appointment of land losers affected by the land acquisition for
Railway Projects. Since the said notification covers up the displaced persons
whose land has been acquired and also whose land are being acquired, the
Tribunal is not correct in holding that the said notification is not applicable
retrospectively.
4.
In Clause-8 of the notification, it has been specifically indicated that
the instructions normally would not be applicable to those cases where land
acquisition process has been concluded by way of possession of land by
Railway. The said clause does necessarily mean and infer that the
notification would not be applicable for those completed projects those which
have been commissioned, otherwise the contents of the said clause runs
contrary to the very provisions of main clause under the screening criteria.
The Clause-8 under the screening criteria needs to be read along with the
notification in its entirety but not disjunctively. In the district of Puri to which
the petitioner belongs a total extent of Ac. 14.08 decimals of private land has
been acquired by the State Government and the process of land acquisition
is going on in other districts. Construction work of the said project is in
progress in three districts, namely, Puri, Khurda and Nayagarh. Thus, the
project is not completed and it can only be stated to be so when it is
commissioned. A notification is normally issued with a purpose of covering
the projects and its applicability apparently ceases when the project attains
its completion. During continuance of the project, if a notification is brought
out, it has to be made applicable to the entire project from its starting point to
the finish line. By the time notification was issued, the petitioner’s family
had lost their land. Therefore, he cannot be deprived of getting the benefit of
the said notification as the persons of neighbouring districts would enjoy the
benefit of the said notification. Non-consideration of the case of the
293
petitioner creates a class within a class and he has been treated as an
unequal among the equals. The scheme itself covers up two sects of
persons, i.e., those who are already affected by the land acquisition process
and those who are going to be affected. As the entire process of land
acquisition has been made in patches and stretches for the on-going project,
the authorities cannot segregate the land oustees, according to their choice,
by taking the plea that Clause-8 of the said scheme cannot be construed as
non obstante one. The petitioner has accrued definite right in his favour for
appointment/engagement under the category of being a land loser. Nonconsideration of the case of the petitioner perpetuates illegal discrimination
and such arbitrary action of opposite parties is in complete violation of
Articles 16 and 21 of the Constitution of India. Concluding his argument, Mr.
Das, learned counsel for the petitioner prays to declare the applicability of
the notification dated 16.7.2010 to the land loser of the entire project from its
starting point to the finish line and the clauses which are found to be
repugnant and contrary to the true intent of the Scheme may be struck down
as against the sanction of law.
5.
Per contra, Mr. B.K. Das, learned counsel appearing on behalf of
opposite parties submitted that for the purpose of construction of Khurda
Road-Bolangir New B.G. Rail Link Project, a notification for land acquisition
was issued by the State Government in the year, 1999. Pursuant to the said
notification, lands were acquired and compensation was paid by the Land
Acquisition Officer to the affected persons including the family of the
petitioner on 25.5.2001. The Railway Board in supersession of all previous
instructions issued a fresh instruction vide No. E(NG) 11/2010/RC-5/1 dated
16.7.2010 for appointment of those land losers who are already affected on
account of land acquisition for Railway Projects with a stipulation that the
said instruction normally will not be applicable in those cases where land
acquisition process has been concluded by way of possession of land by
Railway. The land described in the Original Application was acquired and
compensation amount was paid by the Land Acquisition Authority in the
year, 2001. Accordingly, the Railway Authorities also took the possession of
land much prior to the notification dated 16.7.2010. Placing reliance on
Clause-8, Mr. Das further submitted that the said notification is not
applicable to the displaced persons in a land acquisition process, which has
been concluded by way of possession of land by Railway. The Railway
Board has ample power under Article 309 of the Constitution of India to issue
such notification specifying the time from which it will be applicable and the
person who would be the beneficiary. Concluding his argument, Mr. Das
submitted that the writ petition being devoid of merit is liable to be dismissed.
294
[2014]
6.
On rival contentions of the parties, the following questions arise for
consideration by this Court:
(i)
Whether the notification dated 16.7.2010 issued by
the
Railway Board is applicable to the case of the present petitioner?
(ii)
Whether the petitioner is entitled to get the benefit flowing from the
said notification dated 16.7.2010?
(iii)
Whether the Tribunal is justified in dismissing the petitioner’s O.A. on
the ground that since the land acquisition process has been
concluded much prior to the notification/instruction dated 16.7.2010,
the same shall not be made applicable retrospectively unless and
otherwise specifically provided therein?
7.
The Question Nos. (i) and (ii) being interrelated, they are dealt with
together.
The undisputed facts are that in the year, 1999, the process of
acquisition of land was initiated by the authorities of the State
Government for the purpose of construction of Khurda Road-Bolangir
New B.G. Rail Link Project to be undertaken by the East Coast
Railway under the Ministry of Railways. In the process of such
acquisition, the lands of the petitioner’s family along with other
similarly situated persons of the locality were acquired. An amount of
Rs. 78,292/- was received by the family of the petitioner as
compensation in the year, 2001. When the construction work of the
said project is in progress, the Government of India in its Ministry of
Railways vide notification no. E (NG) 11/2010/RC-5/1 dated
16.7.2010 notified a scheme for providing employment to one of the
family members of the land oustees in deserving cases as against the
land acquired by the Railways for its various projects. Though the
petitioner claims benefit basing on Clause -3 of the screening criteria
of the notification dated 16.7.2010 (Annexure-2), the opposite partiesRailway Authorities have denied such benefit placing reliance on
Clause-8 of the said notification.
8.
At this juncture, it would be appropriate to extract hereunder the
relevant portions of the notification dated 16.7.2010 (Annexure-2) including
Clauses 3 and 8 of the said notification:
“Government of India,
Ministry of Railways,
(Railway Board)
295
RBE No. 99/2010
No. E (NG) II/2010/RC-5/1.
New Delhi,
Dated:16.7.2010
The General Manager (P),
All Zonal Railways/Production Units
(As per standard mailing list)
Sub: Appointment of land losers affected by land
acquisition for railway projects.
In supersession of all previous instructions on the subject, it has
been decided that Railways may call and consider applications for
employment to PB-1 Pay Band of Rs. 5,200-20,200 with grade pay of
Rs. 1,800/- only, from land losers on account of acquisition of land for
the projects on the Railways (excluding those for Deposit works).
Applications shall be invited, by Personnel Branch of Zonal Railways,
from the land losers fulfilling the screening criteria as enumerated in
para 2 below.
xxx
xxx
xxx
3.
Railway administration should request the concerned Competent
Authority/Land Acquisition Officer to issue certificate/s to those
persons whose land has been acquired to facilitate proper verification
of the claims.
xxx
xxx
xxx
8. These instructions normally will not be applicable in those cases
where land acquisition process has been concluded by way of
possession of land by Railway.”
9.
A bare reading of the first paragraph of the notification dated 16.7.2010
extracted above makes it clear that applications for employment were called
for from the land losers on account of acquisition of land “for the projects on
the Railways”. The use of expression “land has been acquired in Clause 3”
of screening criteria unambiguously covers the land losers whose land has
already been acquired for a Project. Therefore, it cannot be said that the
said notification has no retrospective effect and it will apply prospectively.
There is no reason to give a narrow interpretation to a benevolent
circular/notification. Beneficial circular should be liberally interpreted. The
Hon’ble Supreme Court in the case of Commissioner of Customs
(Preventive), Mumbai -v-M. Ambalal and Company, (2011) 2 SCC 74,
296
[2014]
observed that the beneficial notification providing the levy of duty at a
concessional rate should be given a liberal interpretation. It is needless to
say that the object of issuing notification dated 16.7.2010 is a social welfare
measure to rehabilitate the land losers whose land has been acquired for the
Project on the Railways. The primary duty of the Court while interpreting the
provisions of such benevolent notification is to adopt a constructive
approach to achieve the purpose of such notification. Any other
interpretation that would defeat the very purpose of the notification is not
permissible under law. In case of providing employment to the family
members of the land losers under Rehabilitation Assistance Scheme,
technicalities cannot have preference over the substantive justice. Clause-8
of the said notification provides that the instructions contained in the
notification dated 16.7.2010 normally will not be applicable in those cases
where land acquisition process has been concluded by way of possession of
land by Railway. Clause – 3 and Clause- 8 operates in two different sets of
circumstances. When Clause-3 operates for un-going Projects, Clause-8
operates in completed projects where land acquisition process has been
concluded by way of possession of land by Railway. Therefore, Clause-8
cannot restrict/circumvent/block the benefits flowing under Clause-3 to land
losers whose land has been acquired for an ongoing project.
10.
The matter can be looked at from a different angle.
According to the opposite parties-Railway Authorities, the petitioner
is not entitled to get the benefit under the notification in question as by the
time the notification was issued, his land has been acquired. This
contention of opposite parties is not tenable as the same project is going on
and the persons of neighbouring districts will get the benefit under the
notification dated 16.7.2010, the petitioner and similarly situated persons
would be deprived of getting such benefit merely because their lands were
acquired earlier to the date of notification for the self-same project. Such an
act is definitely discriminatory.
It may be noted here that the notification dated 16.7.2010 has been
issued to consider the applications of land losers whose lands have been
acquired on account of acquisition of land for the Project by Railway.
Further, the petitioner sought for information under the R.T.I. Act from the
East Coast Railway with regard to applicability of the notification dated
16.7.2010 for land losers of Khurda Road-Bolangir New B.G. Rail Link
Project. The information supplied to the petitioner reveals that the said
notification pertains to land losers on account of acquisition of land for the
Project of Railways. Thus, the benefit available under the notification dated
16.7.2010 is project based.
297
11.
For the reasons stated above, it is difficult to accept the contention of
the opposite parties-Railway Authorities that under the same project of the
Railway, while some of the land losers are entitled to get the benefit flowing
from the notification dated 16.7.2010, the others will be deprived of getting
the same benefit.
12.
In view of the above, we are of the considered opinion that the
notification dated 16.7.2010 is applicable to the case of the present
petitioner and he is entitled to the benefit flowing from the said notification.
13.
So far as the Question No. (iii) is concerned, in view of the answer to
Question Nos. (i) and (ii), the Tribunal is not justified in dismissing the
petitioner’s O.A. on the ground that the land of petitioner’s family was
acquired much prior to the notification dated 16.7.2010.
14.
In the result, the order dated 15.1.2013 passed by the Tribunal in
O.A. No. 1032 of 2012 under Annexure-4 is set aside and the writ petition is,
accordingly, allowed. No costs.
Writ petition allowed.
2014 (II) ILR - CUT- 297
I. MAHANTY, J & B. N. MAHAPATRA, J.
W.P.(C) NO.11108 OF 2013
EPARI VASUDEVA RAO
…….Petitioner
.Vrs.
STATE OF ODISHA & ANR.
(A).
……..Opp.Parties
ODISHA SUPERIOR JUDICIAL SERVICE & ODISHA JUDICIAL
SERVICE RULES, 2007 - RULE 44
Compulsory retirement – Object is to weed out the dishonest,
corrupt and dead wood in public interest – There is no adverse remark
in the C.C.R. of the petitioner during his 32 years service with regard to
298
[2014]
his honesty and integrity - The adverse remarks given in respect of
two incidents, one relates back to 27 years and the other 15 years from
the date of compulsory retirement are not very serious as in one
incident the petitioner was given warning and in the other he was
censured – On 08.08.2008 the petitioner was appointed to the cadre of
O.S.J.S. (Sr. Branch) and on 19.08.2009 he was permitted to hold
Selection Grade at the age of 55 years – The petitioner earned “very
good” CCR during the years 2009 & 2010 - Considering his merit, the
petitioner was promoted to Super Time Scale on 3.8.2010 before
completing three years as District Judge by relaxing Rule 5 of the
Rules, 2007 – When petitioner was found meritorious in 2009 and 2010,
it is difficult to accept that he became non-meritorious in 2012 – The
Full Court should have considered the entire service record of the
petitioner before taking the decision of compulsory retirement – Held,
the impugned notification giving compulsory retirement to the
petitioner is quashed.
(Paras 51,53,55 & 58)
(B).
SERVICE LAW – Compulsory retirement – Order passed taking
into account two adverse remarks of the remote past which are not
very serious – The Full Court should have considered the entire service
record before taking the decision – Held, the impugned notification
giving compulsory retirement to the petitioner is quashed.
(Para 58)
Case laws Referred to:1. AIR 1999 SC 1018 : Madan Mohan Choudhary –V- The State of Bihar
& Ors.
2. AIR 1979 SC 193 : Chief Justice of Andhra Pradesh -V- L.V.A., Dikshitulu
3. (1992) 2 SCC 299 : Baikuntha Nath Das -V- Chief Dist. Med. Officer
4. AIR 1988 SC 1388 : Registrar, High Court of Madras -V- R.Rajiah
5. 2012(2) OLR 45 : 114 (2012) CLT 577 : Kailash Ch. Padhi -V- State
of Orissa & Anr.
6. (2001) 2 SCC 305 : Bishwanath Prasad Singh -V- State of Bihar
7. (1994) Supp (3) SCC 424 : Ramachandra Raju -V- State of Orissa
8. AIR 1988 SC 2181 : Bharat Singh & Ors. -V- State of Haryana & Ors.
9. (1980) 1 SCC 12 : Swami Saran Saksena -V- State of U.P.
10. (2009) 1 OLR 243 : Purna Ch. Pattnaik -V- State of Orissa & 2 Ors.
For Petitioner - Mr. Budhadev Routray, Sr. Advocate
M/s. D. Routray, S. S. Rao, B.K. Mohanty,
P.K. Sahoo, S. Das, S. Jena & S. Routray.
For Opp.Party - Mr. M. S. Sahoo, Addl. Standing Counsel
299
EPARI VASUDEVA RAO -V- STATE
[B.N.MAHAPATRA, J.]
Date of judgment.15.05.2014
JUDGMENT
B.N.MAHAPATRA, J.
The petitioner, who was a member of the Orissa Superior Judicial
Service has filed the present writ petition challenging the impugned
notification dated 13.03.2013 (Annexure-6) issued by opposite party No.1State of Odisha, represented through its Commissioner-cum-Secretary to
Government, Home Department, who in exercise of power under Rule 44 of
the Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007
(for short, “Rules, 2007”) passed order for compulsory retirement of the
petitioner from Government service giving three months’ pay and
allowances in lieu of three months’ notice as prescribed in the aforesaid
Rules.
In fact, by means of this writ petition, the petitioner invokes
extraordinary jurisdiction of this Court under Articles 226 and 227 of the
Constitution of India to decide correctness of the order/decision of the Full
Court giving him compulsory retirement from service while he was working
as Special Judge (Vigilance), Bhubaneswar on the ground that the order is
arbitrary and unreasonable, as on the basis of materials available on record
an opinion could not have been reasonably formed to retire him from service
prematurely in public interest.
2.
Indeed, it is a very delicate and sensitive task to decide the
reasonableness/correctness of the decision taken by the Full Court giving
compulsory retirement to the petitioner from service in which both of us were
members. It is true that while deciding the matter in administrative side our
role was completely different and now we shall decide the matter on judicial
side in a different capacity. The petitioner reposes highest faith in this Court
with the belief that the Court, which always strikes down anything done
contrary to the rule of law or done in a whimsical manner or arbitrarily, will do
justice if anything wrong done to him. There are instances that orders of the
Full Court giving compulsory retirement to a judicial officer on the
administrative side have been challenged in judicial side and the Judges who
were part of the Full Court have quashed their own administrative
order/decision in exercise of their power of judicial review. That is why people
of this country repose highest faith in judiciary which always maintains its
majesty, dignity and independence. This is a unique feature in our
Constitution.
300
[2014]
3.
At this juncture, it would be appropriate to refer to the observation of
the Hon’ble Supreme Court in the case of Madan Mohan Choudhary vs.
The State of Bihar & Ors., AIR 1999 SC 1018:
“2.
The recommendation of the High Court on the basis of which
the appellant, who held the rank of Addl. District & Sessions Judge,
was compulsorily retired from service, exhibits the tragic fact that the
highest judicial body of the State which abhors anything done
contrary to the rule of law or done in a whimsical manner or
arbitrarily, can itself act in that manner on the administrative side.
Still, the plea that High Court Judges suffer from “split personality”
cannot be accepted for the pleasant fact that though on the
adminis-trative side they might have had acted as ordinary
bureaucrat, once they don the robes they forget all their previous
associations and connections. The transformation is so complete
and real that even though they themselves were part of the decision
making process, they quash their own administrative decisions in
exercise of their power of judicial review and thus maintain the
majesty and independence of the Indian judiciary in which the people
have always reposed tremendous faith.....”
4.
No doubt, there is very limited scope of judicial review of an order of
premature retirement from service, but when an order of compulsory retirement is
challenged in a court of law, the Court has to examine whether any ground or
material germane to the issue exists or not.
5.
Mr. B. Routray, learned Senior Advocate appearing for the petitioner
submitted that the object of compulsory retirement is to weed out the
dishonest, corrupt and deadwood. There is no such allegation against the
petitioner. The two incidents relying upon which the petitioner was
compulsorily retired are stale incidents; one of such incidents was of 27
years ago, wherein it was alleged that in the year 1985, petitioner illegally
refused bail in a bailable offence. However, the said proceeding against the
petitioner was closed in 1987 with a warning to be more cautious in future.
The petitioner did not file any appeal against such warning as warning is not
a punishment as contemplated in OCCA Rules. The second incident is 15
years old, which relates back to the year 1997. The allegation was that the
petitioner inflicted punishment more than what was prescribed under law in
respect of an offence under Section 341, I.P.C. In that case, three months’
sentence was awarded in place of one month which was the maximum
punishment. Considering the show cause reply of the petitioner, he was
cautioned in 2006. At the age of 55 years, i.e., in the year 2009, the
301
[B.N.MAHAPATRA, J.]
petitioner passed the test of review. Three years thereafter, in 2012 at the
age of 58 years, the very self-same incidents were considered which
weighed the Hon’ble Full Court to retire the petitioner from service. If these
two entries are kept out of consideration during the long 33 years of service,
there has been no other incident which could put blame on the unblemished,
sincere and dedicated service career which the petitioner has rendered.
6.
While considering the case of compulsory retirement, all the
materials available on record could have been taken into consideration. In
the case of petitioner, all the entries were taken into consideration and were
overthrown while reviewing his case at the age of 55 years. Therefore, the
self-same materials cannot stand on the way while reviewing again at the
age of 58 years. Performance of the petitioner had been reviewed, as per
Rule 44 of the Rules, 2007 on his attaining the age of 50 years and 55 years
and he was found fit to continue in service and public interest did not require
him to be compulsorily retired from service. The service record of the
petitioner between the age of 50, 55 and 58 is unblemished and the CCRs
have rated him ‘good’, “very good” and “very good” in the later years
respectively. There was no adverse entry against the petitioner after review
in the year 2009. The petitioner was given ‘selection grade’ promotion in the
rank of District Judge in the year 2009 with retrospective effect from the year
2008. Another promotion was given in the year 2010 in the ‘supper time
scale’. Although Rule 5 of the Rules, 2007 requires a District Judge to be in
three years service in the selection grade in order to be granted “super time
scale”, in the case of the petitioner, that rule has been relaxed considering
his merit. As per Rules 4 and 5 of the Rules, 2007, promotions were given
on seniority-cum-merit basis. When the petitioner was meritorious in 2009
and 2010, it is not known how he became less meritorious in 2012, more
particularly on the face of his CCRs, wherein he was rated ‘very good’, ‘very
good’ and ‘good’. This Court further recommended the petitioner’s case for
consideration of his candidature to the post of Member, Central
Administrative Tribunal in 2010. In fact, the Central Government considering
his case had recommended his name for appointment as Judicial Member,
CAT and posted him as such at Bangalore, in view of the promotions and
favourable entries in CCRs after review at the age of 55 years in 2009.
7.
Placing reliance upon the judgments of the Hon’ble Supreme Court
in the cases of State of Gujarat vs. Umedbhai M. Patel, (2001) 3 SCC 314
and Baikuntha Nath Das vs. District Medical Officer, (1992) 2 SCC 299, Mr.
Routray submitted that principles with respect to compulsory retirement
have not been followed in the case of the petitioner.
302
[2014]
8.
Further, placing reliance upon the judgments of the Hon’ble Supreme
Court in the cases of Baldev Raj Chandra vs. Union of India, AIR 1981 SC
70, Swami Saran Saksena vs. State of U.P. AIR 1980 SC 269; J.D.
Srivastava vs. State of M.P., AIR 1984 SC 630; Narasingh Patnaik vs. State
of Orissa, AIR 1996 SC 3223; Chandramouleshwar Prasad Vs. Patna High
Court, AIR 1970 SC 370; Rajasthan SRTC vs. Babu Laljangir, (2013) 10
SCC 551, Mr. Routray submitted that the old adverse entries should not
have been utilized against the petitioner.
Further, placing reliance upon the judgment of the Hon’ble Supreme
Court in the case of M.P. State Cooperative Dairy Federation Limited vs.
Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221, Mr. Routray
submitted that as per the General Administration Department’s instruction in
Circular No.30495 dated 24.11.1987 the importance of the entries of later
years should have been prevailed over the entries of the previous years.
9.
It was also vehemently argued that the Governor is a consulter and
the High Court is the consultee. It is essentially a matter of trust and
confidence between the Governor and the High Court. The High Court
cannot act arbitrarily in giving its opinion to Governor, or else, it will be a
betrayal of that trust. If the advice is not supportable by any material on
record and is arbitrary in character, it may not have any binding value. In
support of his contention, he relied upon the judgments of the Hon’ble
Supreme Court in the cases of Chandramouleshwar Prasad (supra); Madan
Mohan Choudhary vs. State of Bihar & Ors, AIR 1999 SC 1018 : (1999) 3
SCC 396.
10.
Further placing reliance upon the judgment of the Hon’ble Court in
the cases of Union of India vs. Mohan Lal Capoor, AIR 1974 SC 87; A.K.
Kripak vs. Union of India, AIR 1970 SC 150 and U.P. STRC vs. Jagdish
Prasad Gupta, (2009) 12 SCC 609, Mr. Routray submitted that
administrative action must be supported by reasons.
11.
Mr. Routray also submitted that since before taking a decision of
compulsory retirement, the decision of this Court in administrative side was
published in the daily local newspaper, the same is a stigma to the petitioner’s
career. In support of his contention, he relied upon the judgment of the Hon’ble
Supreme Court in the case of Madan Mohan Prasad vs. State of Bihar, AIR 1973
SC 1133. Concluding his argument, Mr. Routray prayed to allow the writ petition
and quash Annexure-6.
12.
Per contra, Mr.M.S.Sahoo, learned Additional Standing Counsel
appearing on behalf of the State vehemently argued that the writ petition is
misconceived both in the facts and the law and there is no cause of action
303
[B.N.MAHAPATRA, J.]
for the present writ petition. The action of the Hon’ble Full Court is not
arbitrary but is in accordance with the law, which was taken in public interest
basing on the entire service records of the petitioner. The decision was
taken after thorough examination and due deliberation by the Hon’ble Full
Court as per applicable rules, established procedure and practice. Placing
reliance upon the judgment of the Hon’ble Supreme Court in the case of
Chief Justice of Andhra Pradesh –v- L.V.A. Dixitulu, AIR 1979 SC 193, Mr.
Sahoo submitted that under Article 235 the control of the High Court over
the subordinate judiciary is very wide and premature and compulsory
retirement is also within the control of the High Court. The views expressed
by His Excellency, the Governor of Odisha were duly considered by the
Hon’ble Full Court and the decision was taken accordingly. Petitioner cannot
take advantage of communication between this Court in administrative side
and the Governor of Odisha. To explain the scope and meaning of
consultation between the Hon’ble High Court and His Excellency Governor,
Mr. Sahoo relied upon the judgments of the Hon’ble Supreme Court in the
cases of S.P. Gupta –v- UOI, AIR 1982 SC 149, Supreme Court Advocates
on Records Association –v- UOI, AIR 1994 SC 268, State of West Bengal –
v- Nripendra Nath Bagchi, AIR 1966 SC 447 and State of Bihar –v- Bal
Mukund Sah, (2000) 4 SCC 640. Name of the petitioner was only
recommended for the post of Judicial Member in the Central Administrative
Tribunal but he was not finally selected. It is not correct that during the entire
service career of 32 years, the petitioner was rated “very good” in the recent
two years, “good” for 29 years and “average” for part of the year 1984.
Petitioner has faced DP No.1/86 on the allegation of misconduct and misuse
of powers, for which he was also divested of criminal power. The Inquiring
Officer had also observed the action of the petitioner to be arbitrary and the
same amounts to gross misuse of power. This Court had disposed of the
matter with a warning “to be more careful in future” and directed the warning
to be entered in his CCR. Petitioner was also cautioned by this Hon’ble
Court in administrative side for awarding more punishment in the criminal
case referred to supra. Therefore, it cannot be said that the petitioner had an
unblemished service record.
Mr. Sahoo further submitted that old entries in the C.C.R. are of
relevant consideration for the purpose of giving compulsory retirement to a
Judicial Officer and it is purely subjective satisfaction of the Hon’ble High
Court. In support of his contention, he relied upon the judgments of the
Hon’ble Supreme Court in the cases of Rajasthan SRTC –v- Babulal Jangir,
(2013) 10 SCC 551, Pyare Mohan Lal –v- State of Jharkhand, (2010) 10
SCC 693, Rajendra Singh Verma –v- Lt. Governor (NCT of Delhi), (2011) 10
SCC 1 and R.C. Chandel –v- High Court of M.P., AIR 2012 SC 2962. The
act or omission of this Court being not the source of information for
304
[2014]
publication of news item, no fault can be attributed to opposite party No.2 for
its impact upon the petitioner. Placing reliance upon the judgment of the
Hon’ble Supreme Court in the cases of Rajendra Singh Verma (supra) and
R.C. Chandel (supra), Mr. Sahoo submitted that compulsory retirement is
neither punitive nor stigmatic. The petitioner could have preferred an appeal
against the decision of not supplying the document as prescribed by law. It
is not at all a fact that the decision of compulsory retirement was taken
without materials and/or good and valid reasons. The decision of the Full
Court does not suffer from any infirmity or illegality as alleged.
13.
Mr.Sahoo, further vehemently argued that the decision of this Court
was in public interest. For the purpose of Rule 44 of Rules, 2007, adverse
remarks entered in the CCRs even after promotion are relevant for
consideration. Subjective satisfaction of the Hon’ble Court cannot be
questioned. There is no bar of invoking Rule-44 of Rules, 2007 even when
only a short period is left for natural superannuation. Review can take place
at any stage. Judicial Officer is completely different from other civil servants.
He stands apart. A single blot on his service career makes him vulnerable.
The entire service record of the petitioner makes it abundantly clear that
further continuance of the petitioner in service is uncalled for. In any view of
the matter, the recommendation of the Review Committee and decision of
the Full Court thereon cannot be faulted and hence is beyond pale of
challenge. Concluding his argument, Mr.Sahoo submitted that the petitioner
is not entitled to any relief and hence the petition is liable to be dismissed.
14.
On rival contentions of the parties, the questions that would fall for
consideration by this Court are as follows:(i)
Whether on the basis of materials available on the service record of
the petitioner an opinion could have been reasonably formed to retire
the petitioner from service prematurely in public interest?
(ii)
Whether the Full Court is justified in passing the order compulsorily
retiring the petitioner from service in public interest?
(iii)
What order?
15.
Since the question nos. (i) and (ii) are interlinked, they are dealt with
together.
16.
Before coming to merits of the case, let us have an idea about the
constitutional provisions and statutory rules relevant for our purpose.
305
[B.N.MAHAPATRA, J.]
Under Article 214 of the Constitution, there shall be a High Court in each
State. Article 233 deals with appointment of district judges, which provides
as follows:
“(i) Appointments of persons to be, and the posting and promotion of,
district judges in any State shall be made by the Governor of the
State in consultation with the High Court exercising jurisdiction in
relation to such State.”
Article 234 deals with recruitment of persons other than District
Judges to the judicial service, which envisages as follows:
“Appointment of persons other than district judges to the judicial
service of a State shall be made by the Governor of the State in
accordance with rules made by him in that behalf after consultation
with the State Public Service Commission and with the High Court
exercising jurisdiction in relation to such State.”
Article 235 deals with control over subordinate Courts, which
provides as under:
“The control over district Courts and Courts subordinate thereto
including the posting and promotion of, and the grant of leave to,
persons belonging to the judicial service of a State and holding any
post inferior to the post of district judge shall be vested in the High
Court, but nothing in this article shall be construed as taking away
from any such person any right of appeal which he may have under
the law regulating the conditions of his service or as authorizing the
High Court to deal with him otherwise than in accordance with the
conditions of his service prescribed under such law.”
17.
Under Article 235, the High Court’s control over the subordinate
judiciary is very wide which includes posting, promotion and grant of leave,
transfers, confirmation and also premature and compulsory retirement.
The Hon’ble Supreme Court in the case of the Chief Justice of
Andhra Pradesh Vs. L.V.A., Dikshitulu AIR 1979 SC 193 held that the
expression ‘control’, in Article 235 of the Constitution, includes “Disciplinary
Control.” Transfers, promotions and confirmations including transfer of
District Judges or the recall of District Judges posted on ex-cadre post or on
deputation or on administrative post etc. is also within the administrative
control of the High Court. Premature and compulsory retirement is also
within the ‘control’ of the High Court.
306
18.
[2014]
Rule 44 of Rules, 2007 reads as follows:“44.Retirement in public interest:- (1) Notwithstanding anything
contained in these rules the Governor shall, in consultation with the
High Court, if he is of the opinion that it is in the public interest so to
do, have absolute right to retire any member of the service who has
attained the age of fifty years, by giving him/her notice of not less
than three months in writing or three months pay and allowances in
lieu of such notice.
(2) Whether any officer of the service should be retired in public
interest under sub-rule (1) shall be considered at least three times,
that is, when he is about to attain the age of fifty years, fifty five
years and fifty eight years.
Provided that nothing in sub-rule (2) shall be construed in public
interest as preventing the Governor to retire a member of the service
at any time after he/she attains the age of fifty years on the
recommendation of High Court under sub-rule (1).”
19.
Thus, though officers of subordinate judiciary are government
servants, their services in fact are placed under the control of the High Court
and His Excellency the Governor only in consultation with the High Court
makes appointment or takes any disciplinary action including action for
removal or compulsory retirement.
20.
At this juncture, it will also be beneficial to refer to the following two
judgments of the Hon’ble Supreme Court. In the case of Baikuntha Nath
Das v. Chief District Medical Officer, (1992) 2 SCC 299, a three Judge
Bench of the Hon’ble Supreme Court had laid down principles regarding
compulsory retirement in public interest, relevant portion of which is
extracted herein below:
“34.
The following principles emerge from the above discussion:
(i)
An order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehaviour.
(ii)
The order has to be passed by the government on forming the
opinion that it is in the public interest to retire a government servant
compulsorily. The order is passed on the subjective satisfaction of
the government.
307
[B.N.MAHAPATRA, J.]
(iii)
Principles of natural justice have no place in the context of an order
of compulsory retirement. This does not mean that judicial scrutiny is
excluded altogether. While the High Court or this Court would not
examine the matter as an appellate court, they may interfere if they
are satisfied that the order is passed (a) mala fide or (b) that it is
based on no evidence or (c) that it is arbitrary — in the sense that no
reasonable person would form the requisite opinion on the given
material; in short, if it is found to be a perverse order.
(iv)
The government (or the Review Committee, as the case may be) shall
have to consider the entire record of service before taking a decision
in the matter — of course attaching more importance to record of
and performance during the later years. The record to be so
considered would naturally include the entries in the confidential
records/character rolls, both favourable and adverse. If a
government servant is promoted to a higher post notwithstanding the
adverse remarks, such remarks lose their sting, more so, if the
promotion is based upon merit (selection) and not upon seniority.
(v)
An order of compulsory retirement is not liable to be quashed by a
Court merely on the showing that while passing it uncommunicated
adverse remarks were also taken into consideration. That
circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii)
above. This aspect has been discussed in paras 30 to 32 above.”
(underlined for emphasis)
21.
The Hon’ble Supreme Court in the case of Registrar, High Court of
Madras Vs. R.Rajiah, AIR 1988 SC 1388 held that though High Court, in its
administrative jurisdiction, has the power to recommend compulsory
retirement of a member of the Judicial Service in accordance with the rules
framed in that regard, it cannot act arbitrarily and there has to be material to
come to a decision that the officer has outlived his utility. It was also pointed
out in that case that the High Court while exercising its power of control over
the subordinate judiciary is under a constitutional obligation to guide and
protect judicial officers from being harassed or annoyed by trifling
complaints relating to judicial orders so that the officers may discharge their
duties honestly independently unconcerned by the ill-conceived or motivated
complaints made by unscrupulous lawyers and litigants.
22.
Now for our purpose, it is very much essential to know the relevant
entries made in the character roll of the petitioner.
308
[2014]
Some of the remarks made in CCRs of the petitioner, relevant for
purpose, are as follows:
For the Period from 1.1.1981 to 1997
(1)
(2)
(3)
(4)
(5)
(6)
Years/
Period
Is he
industrious
and has he
coped
effectually
with heavy
work
Knowledge
of law and
judicial
capacity
Remarks
about
his
promptness
in disposal
of cases
Remarks
about
reputation
of integrity
and
impartiality
01.01.81
to
17.07.81
and
01.10.81
to
31.12.81
Industrious
Good
Improving
gradually
Remarks
about
Supervision
of distribution
of business
among & his
control over
the
subordinate
Courts and
his
administrative
ability
Illegible
Up to
June,
1982
Yes,
industrious
and cope
with heavy
work
Sincere &
hardworking
Fairly good
Prompt
Needs better
administrative
control
Good
Satisfactory
Good
Good
Good
Industrious
but needs
improvement
to deal with
heavy work.
Fair
Needs
improvement
Good
Good
20.06.83
till
30.09.83
02.01.84
to
11.06.84
Good
309
18.06.84
to
31.12.84
Yes
01.01.85
to
31.12.85
Industrious
& giving
better
yardstick
Yes
Average
No
complaint
Very
prompt
Manageable
Good
Good
Good
Yes
Good
Good
Good
Yes
Good
Good
Average
Undoubted
integrity
and
impartiality
Heard
nothing
against him
Heard
nothing
against him
Heard
nothing
against him
31.10.88
and
continuing
1989
Yes
Average
Prompt
Average
Honest and
impartial
Yes
Good
Prompt
Average
1990
Yes
Good
Prompt
Good
01.01.91
to
Sept, 91
30.09.91
to
31.12.92
Up to
Feb, 1994
Yes
Good
Good
He should
improve
Honest and
impartial
Heard
nothing his
reputation,
integrity &
impartiality
Good
Yes
Good
Good
Good
Good
Yes
Good
Good
Good
Good
17.06.87
to
31.12.87
Entire
year of
1987
01.01.88
To
15.10.88
I have
not
seen
much
of his
work
Better
He
should
further
improve
[B.N.MAHAPATRA, J.]
310
08.03.94
to
31.12.94
Yes
01.01.95
to
30.06.95
Yes
21.07.95
to
31.12.95
01.01.96
to
18.11.96
1997
Yes
Knowledge of
law is good. A
capable
judicial officer
Knowledge of
law is good. A
competent
judicial officer
Good
Yes
Good
[2014]
Yes
Has effective control
over subordinates. A
capable administrator
Nothing is heard
against his
integrity
Yes
Has effective control
over subordinates. A
capable administrator
Nothing is heard
against his
integrity
Prompt
Good administrative
ability
Good
Good
Good
Good
CCR pertaining to the year 1997 is not available in the standard format. The
Standing Committee of this Court vide resolution dated 29.09.2005 rated ‘good’.
For the Period from 16.3.1998 to 29.10.2005
(1)
(2)
(3)
(4)
Years/
Period
Quality of
Work(a) conduct
of business
in Court and
office
--------------(b) quality of
judgment/
Order/award
Integrity
Promptness
in
pronouncing
judgments/
orders/
Award
(5)
Punctuality
and
regularity
(6)
(7)
Overall
assessment
of the officers
with
reference to
his/her
judicial
administrative
work and
ability,
reputation
and
character,
strength and
short
comings…
Grading
311
16.03.98
to
31.12.98
Good
-------------Average
27.09.99 to
16.06.2000
Good
-------------Good
judgments
17.7.2000
to
31.12.2000
01.01.01
to
04.09.01
05.09.01
to
31.12.01
Good
------------Good
Good
------------Good
Should be
industrious
-------------Very good
Nothing
has come
to my
knowledge
against his
integrity
Nothing
has come
to my
knowledge
which
casts any
reflection
on the
integrity of
Sri E.V.
Rao. His
general
reputation
and
honesty
are good
and I
certify his
integrity
-do-
Good
[B.N.MAHAPATRA, J.]
Good
Good
Good
Prompt
Prompt
-do-
Prompt
Beyond
doubt
Needs
improvement
Punctual
and
regular
Punctual
and
regular
Punctual
and
regular
Punctual
Good
Good
Good
He writes good
judgments
discussing law
and facts but
disposal is
insufficient
Good
Good
Good
average
312
2002
2003
(1)
01.01.04
to
31.12.04
01.01.05
to
29.10.05
[2014]
CCR
details
are not
available
In
standard
format
CCR
details
are not
available
in
standard
format
(2)
He is rated as “Good” vide Resolution to
Item No.4 in the meeting of the Full Court
dated 29.09.2005.
(3)
(4)
(5)
Good
------------Good
Good
Nothing
heard
against
him
-do-
Prompt
Punctual
and
regular
Good
Promptness
Punctual
Good
He is rated as “Good” vide Resolution to
Item No.4 in the meeting of the Full Court
dated 29.09.2005.
(6)
(7)
313
[B.N.MAHAPATRA, J.]
For the Period from 7.11.2005 to 26.6.2010
Year Report
/Peri on the
od
officer’s
quality
Report
on
Officer’
s
abilities
Report
on
knowled
ge and
performa
nce
Aptitude
and
potential
Integrity
Grad
ing
(1)
(2)
(3)
(4)
(5)
(6)
07.11
.05
to
31.12
.05
Of
high
order
Very
capable
Sound
and very
good
Sharp
legal
brain
Nothing has come to
my knowledge which
casts any reflection on
the integrity of Sri Rao.
His general reputation
and honesty are good
and I certify his
integrity. Shri Rao is an
outstanding officer. He
is sincere, hardworking
and committed.
Professionally he is
very competent
(7)
314
01.01.06 to
31.12.06
Ex
cell
ent
Very
capa
ble
Sound
legal
knowle
dge
and
outsta
nding
perfor
mance
Outs
tand
ing
[2014]
I certify his integrity.
Nothing adverse
come to my
knowledge. His
general reputation
and honesty are very
good. I agree with IG
Vigilance. Shri Rao is
an outstanding
Officer for the
reasons given earlier
315
01.01.07
to
31.12.07
He is very
sincere,
dedicated and
hardworking
Officer. He is
always working
to take
responsibility.
He took keen
interest in
opening
Prosecution
Wing of the
Vigilance
Department
He is
professiona
lly very
competent.
His legal
notes are
of very high
quality. He
is very up
to date in
legal
matters.
His relation
with his
colleges is
very
cordial.
[B.N.MAHAPATRA, J.]
He is
very
prompt in
disposal.
His legal
knowledg
e is very
sound.
His notes
are brief
and
cogent.
He
supervise
s and
monitors
working
of the
Prosecuti
on Wing
very
efficiently
.
He
holds
only
legal
matters
Nothing
has come
to my
knowledge
which
casts
reflection
on the
integrity of
Shri
E.V.Rao.
His general
reputation
and
honesty
are good
and I
certify his
integrity
An
outsta
nding
Officer
for the
qualiti
es
narrat
ed
above.
His
overall
perfor
mance
was
comm
endabl
e. He
is a
very
compe
tent
legal
adviso
r.
Profes
sionall
y he is
superi
or.
316
01.01.08 to
0.03.08
01.01.09 to
7.11.09
04.12.09
to23.03.10
25.03.10
to26.06.10
[2014]
Period is less than 4 months. Hence no comments.
CCR is not available in specified format
,
He is sincere, works
carefully, for example
he
proposes
the
judicial officers for
sending to training to
NJA well in advance
Sincere & dedicated
officer with full of zeal
and drive to work &
taking
responsibility
also.
He
has
knowledge
of
Rules
and
amendment etc.
He also takes
cases regarding
litigation
in
Supreme Court
He has also
knowledge
in
financial
management
Super
vision
work
Inte
grity
certi
fied
Able & capable
officer and very
alert. Noting and
drafting is good.
He is skilled and
able
to
take
decisions
and
maintains
Possess sound
knowledge in
law, rules and
regulations. He
has got good
administrative
capacity to do
his job
implementation
of programmes,
supervisory
capacity good.
Good
Go
od
cordial
relationship with
his
colleagues
and subordinate
officers/
employees
Very
good
Very
good
Minutes of the meeting of Full Court dated 28.02.1997
reveals “that the Disciplinary Proceeding started against
him is disposed of with a warning to him to be more
careful in future. The warning be entered in his CCR.
23.
From records produced before us by opposite party No.2, the CCRs
of the petitioner pertaining to the years 2011 and 2012 is not available.
However, to have an idea about this, it may be relevant to refer to Annexure9 (copy of the Note Sheets obtained by the petitioner under the RTI Act)
which contains the observations and findings of His Excellency the Governor
of Odisha. The said Note Sheets inter alia reads as follows:
317
[B.N.MAHAPATRA, J.]
“Shri E.V.Rao joined the judicial service as JMSC in 1980 and his
service up to date is of 32 years. His confidential reports for these 32
years include Very Good for the last 2 years, Good for 29 years and
Average for part of one year in 1984.”
Thus, for the last two years, i.e., 2011 and 2012, the petitioner has
been rated “very good”. There was no adverse entry regarding his integrity
at any point of time.
24.
Needless to say that the objective of compulsory retirement is to
weed out the dishonest, corrupt and dead wood. Now, we have to examine
whether the petitioner is a dishonest, corrupt and dead wood.
25.
Let us first examine whether the petitioner is a dishonest and corrupt
judicial officer. We have already extracted the entries made in the C.C.R.
During the petitioner’s 32 years of service, there is no adverse remark with
regard to his honesty and integrity in any year. Rather in the year 1985 the
remark about reputation of integrity and impartiality is “undoubted integrity
and impartiality” and for the period September, 1999 to June, 2000 the
remark is “his general reputation and honesty are good and I certify his
integrity”. In all other years the remark is either “good” or “nothing heard
about his honesty or integrity”. Therefore, undisputedly, the petitioner
possesses greatest asset of a judicial officer, i.e., honesty and integrity and
unblemished reputation.
26.
It goes without saying that if an honest and sincere judicial officer will
be given compulsory retirement from Government service, then a bad
message will go to other similarly placed judicial officers and they will be
discouraged and lose their interest in judicial work. This will certainly
jeopardize the smooth functioning of the judiciary, the highly respected
organ of the democracy.
27.
This Court in the case of Kailash Chandra Padhi vs. State of
Orissa and another, 2012(2) OLR 45 : 114 (2012) CLT 577, held as under:
“7. ……Needless to say that for effective administration of justice,
honest, impartial and law knowing Judicial Officers are required.
However, an officer having knowledge in law but without integrity is a
great danger to the smooth functioning of the Judiciary. Withholding
the integrity of a Government employee is a serious matter. As fire
and water don’t agree so also the judiciary and dishonesty cannot
join their hands together.”
318
[2014]
28.
Therefore, we are of the opinion that the petitioner is a judicial
officer, who has unblemished record of maintaining highest level of integrity
and clean reputation which are attributes of a model judicial officer.
29.
Next we have to examine whether the petitioner is a dead wood?
The term ‘dead wood’ as understood in Service Jurisprudence is that people
in organization who are not useful anymore and who need to be removed for
better administration. Thus, for augmenting efficiency in the organization it is
necessary to chop off dead wood.
30.
The Hon’ble Supreme Court in the case of Bishwanath Prasad
Singh vs. State of Bihar, (2001) 2 SCC 305, held as under:
“12.
....The object of such compulsory retirement is not to punish
or penalise the government servant but to weed out the worthless
who have lost their utility for the administration by their insensitive,
unintelligent or dubious conduct impeding the flow of administration
or promoting stagnation. The country needs speed, sensitivity,
probity, non-irritative public relation and enthusiastic creativity which
can be achieved by eliminating the dead wood, the paperlogged and
callous.”
31.
The Hon’ble Supreme Court in the case of Ramachandra Raju vs.
State of Orissa, (1994) Supp (3) SCC 424, held as under:
“Though the order of compulsory retirement is not a punishment and
the government servant on being compulsorily retired is entitled to
draw all retiral benefits, including pension, the Government must
exercise its power in the public interest to effectuate the efficiency of
service. The dead wood needs to be removed to augment efficiency.
Integrity of public service needs to be maintained. The exercise of
power of compulsory retirement must not be a haunt on public
servant but act as a check and reasonable measure to ensure
efficiency in service, and free from corruption and incompetence.
The officer would go by reputation built around him. In appropriate
case, there may not be sufficient evidence to take punitive act of
removal from service. But his conduct and reputation in such that his
continuance in service would be a menace in public service and
injurious to public interest.”
32.
Now, what is to be examined is the overall performance on the basis
of entire service record to come to the conclusion as to whether the
319
[B.N.MAHAPATRA, J.]
petitioner has become a dead wood and it is in public interest to retire him
compulsorily. Perusal of CCR extracted above does not show that at any
point of time the petitioner was found inefficient to discharge his judicial duty
and has become a dead wood. He is in almost all the time rated as an
efficient judicial officer.
In the year 1981 the remark is that he is industrious; in the year 1982
the remark is “he is industrious and cope with heavy work”; in 1983 remark
is, “he is sincere and hard-working”, but for the next six months, i.e., from
2.1.1984 to 11.6.1984 the remark is “industrious but needs improvement to
deal with heavy work”. From 18.6.1984 to 3.12.1984 the remark was, he is
industrious and cope with heavy work; for the year 1985 “he was industrious
and giving better yardstick”; for the years 1987 to 1996 the remarks was he
is industrious and cope with heavy work. For the year 1998 to 2001 his
quality of work has been rated as “good/very good”. For the years 2004 and
2005, his quality of work is rated as “good”. For the period 7.11.2005 to
31.12.2007, the C.C.R. entry shows that he is very capable, competent,
sincere, dedicated and hard working officer. He has very good and sound
legal knowledge and outstanding performance. His general reputation and
honesty is very good, as an outstanding officer. For the period from
4.12.2009 to 23.3.2010 remark is that “he is a sincere worker”. For the
period 25.3.2010 to 26.06.2010 remarks is “he is sincere, dedicated officer
with full of zeal and drive to work and taking responsibility also”.
So far his knowledge of law and judicial capacity, remarks for the
period from 1981 to November, 1996 given is either good, fairly good,
satisfactory, better, a capable judicial officer, a competent judicial officer.
Remarks about his promptness in disposal of cases as given in the
C.C.R. during the period 1981 to November, 1996 in almost all the years is
either prompt, very prompt, good except the year 1981 that he is improving
gradually and in the year 1984 he needs improvement.
His promptness in pronouncing judgment/order/ award the remarks
during the year 1998 to October, 2005 is either good or prompt except for
the period 5.9.2001 to 31.12.2001 he “needs improvement”.
With regard to his punctuality and regularity the remarks given for the
period 1998 to June, 2005 is that he is punctual and regular.
With regard to the petitioner’s ability, the remarks given for the period
4.12.2009 to 23.03.2010 is that “ he has knowledge of rules and
320
[2014]
amendments etc.” and for the period from 25.3.2010 to 26.6.2010 the
remarks is “able and capable officer and very alert, noting and drafting is
good, he is skilled and able to take decision and maintains cordial
relationship with his colleagues and subordinate officers and employees”.
33.
Mr. Sahoo also relied upon the statistical figure of the petitioner for the
period from 2008 to 2012 to justify the action of the Hon’ble Full Court in giving
compulsory retirement to the petitioner. Perusal of the record reveals that while
the petitioner was functioning as District Judge, Balasore Judgeship, he failed to
achieve the target in the 1st and 2nd quarter of the year of his joining, i.e., in the
year 2008, which deficiency he has made good in succeeding quarters by
exceeding the target.
34.
During the course of argument, submission was made on behalf of
the State that the performance of the petitioner during the period of his
incumbency as Special Judge (Special Court), Bhubaneswar was also taken
into consideration while passing the impugned order of compulsory
retirement. To this, the petitioner at the outset, raised objection to the effect
that it was not open to the opposite parties to raise any contention or ground
other than those taken in the counter affidavit. According to the petitioner, in
the counter affidavit, the State having not taken any such ground, it is
estopped from addressing any argument on that score. However,
alternatively, the petitioner in his additional affidavit filed on 25.02.2014 inter
alia clarified the situation with regard to his performance as Special Judge
(Special Court) at Bhubaneswar. In his affidavit, he stated that he joined as
Special Judge, Special Court at Bhubaneswar on 28.06.2010 and continued
as such till 15.03.2013 when he was prematurely retired. At the time of his
joining as Special Judge, Special Court, Bhubaneswar, there were only 38
cases pending. Out of them, 29 cases were not capable of being proceeded
with as stay orders were in operation in different writ applications filed by
different accused persons. In three others, case records were called for by
this Court; three cases were not ready for trial and were posted for
consideration of charges; one case was pending for appearance of accused.
It is thus only two cases were pending for trial. However, during the year
2012-13, some more cases were received on transfer. The petitioner has
disposed of eleven cases, which cannot in any way said to be less in view of
the nature of the trials required to be undertaken, i.e., large number of
witnesses and documents involved in those cases. That is the reason it was
submitted why no yardstick was prescribed for Special Courts after its
establishment.
321
[B.N.MAHAPATRA, J.]
The petitioner further stated that he has gathered information about
disposal of cases in the Special Courts during the periods prior to his joining
as such both at Cuttack and at Bhubaneswar and came to know that the
disposal of cases of the petitioner was much more than that of the other
officers holding the said position. It is stated that his predecessor during his
period from 17.05.2008 to 30.11.2009 could dispose of only one case
whereas his successor who assumed office on 17.06.2013 could dispose of
only four cases till 31.12.2013. It is further stated that disposal of cases in
the Special Court, Cuttack during the period from 17.05.2008 to 18.12.2009
and 18.06.2010 to 31.01.2011 was nil whereas four cases could be
disposed of during the period from 29.06.2011 to 01.04.2012 and four cases
during 03.08.2012 to 31.12.2013.
Further, referring to the information received under the RTI Act, it
was submitted that during the period from 2008 to 2013 judgments were
delivered in 13 cases in Special Court, Cuttack whereas during the same
period judgments were delivered in 21 cases in the Special Court,
Bhubaneswar.
35.
The above statements of the petitioner have not been denied by the
opposite party-State except taking stands that stay orders in respect of 29
cases were vacated within three months from the date of joining of the
petitioner as Special Judge, Special Court, Bhubaneswar and that the
petitioner cannot claim continuation of service beyond the age of 58 on a
comparative assessment with the record of other officers.
36.
Admittedly, in its counter, the opposite party-State has not taken any
specific stand that the performance of the petitioner during his incumbency
as
Special
Judge
(Special
Court),
Bhubaneswar
was
not
satisfactory/adequate which was taken into consideration while giving
compulsory retirement to the petitioner from service.
37.
Needless to say that a party cannot be permitted to argue on an
issue which is not pleaded in the petition/counter.
Law is well settled that a party has to plead the case and
produce/adduce sufficient evidence to substantiate his stand taken in the
petition and, in case the pleadings are not complete, the Court is under no
obligation to entertain the plea. (See Bharat Singh & Ors.Vs.State of
Haryana & Ors, AIR 1988 S.C.2181).
38.
Moreover, the performance of the petitioner during his incumbency as
Special Judge (Special Courts), Bhubaneswar alone cannot be taken into
322
[2014]
consideration to assess the efficiency of the petitioner for the purpose of giving
compulsory retirement from service. The entire service record of the petitioner is
required to be taken into consideration for the purpose of giving compulsory
retirement from service.
Further, although entitlement to continuance of service of a judicial
officer beyond the age of 58 years cannot be considered on a comparative
assessment with record of other officers, yet from comparison of number of
cases in which judgments were delivered in Special Court, Cuttack and
Special Court, Bhubaneswar, no adverse view can be drawn against the
petitioner.
39.
In view of the entries made in the C.C.R. of the petitioner and on
examination of overall performance of the petitioner, it is difficult on our part
to accept the contention of opp. party-State that the petitioner is not an
efficient officer and he is a dead wood who needs to be removed for better
administration.
40.
Mr. Sahoo also emphatically argued that the petitioner was given
compulsory retirement basing on two past incidents; in one case the matter
was disposed of with a warning to him to be more careful in future and in
other incident, the petitioner was cautioned by the Court.
No doubt, compulsory retirement is based on subjective satisfaction
of the concerned authority, but such satisfaction must be based on valid
materials. In the present case, the materials available are the two remarks
as stated above, i.e., (i) warning and (ii) caution.
Therefore, it becomes expedient to know what is the nature and
gravity of the adverse remarks on the basis of which order of petitioner’s
compulsory retirement was passed in public interest.
41.
One adverse remark is given on the basis of D.P. No.01 of 1986
which was initiated against the petitioner on the charges that on 14.02.1985,
while the petitioner was functioning as S.D.J.M., Nawarangpur, tried through
one of his Office Clerks to reserve a three seater against one ticket in ORT
Bus No.2941 for traveling from Nawrangpur to Berhampur which was
refused by the Driver, Sri Narayan Samantray and the Conductor of the said
Bus. He was further charged on the allegation that in course of the day the
said Driver Sri Samantaray was arrested in the execution of an NBW in U.I.
Case No.26/82 under Sections 112, 113(A), 123 of M.V. Act and was
produced before the petitioner and the accused Driver applied for bail. Even
323
[B.N.MAHAPATRA, J.]
though the offences are bailable in nature, the accused was remanded to
custody on a flimsy ground. The matter was enquired into by the then
learned District and Sessions Judge, Bolangir. The Inquiring Officer
observed that the order of the petitioner directing issuance of non-bailable
warrants against the accused driver was grossly irregular and the order was
passed arbitrarily which amounted to gross misuse of power, without
application of judicial mind. It was further observed that refusal of bail in the
circumstances of the case was grossly improper and the said conduct of the
petitioner amounted to misuse of power. After consideration of the inquiry
report and after hearing the petitioner in person the Hon’ble Full Court was
pleased to dispose of the matter with a warning to be more careful in future
with a further direction that the warning to be entered in his CCRs.
42.
The other adverse remark is that during inspection of the Court of the
Addl. District and Sessions Judge, Rayagada by Hon’ble Sri Justice
M.Papanna on 24.01.2004, His Lordship had inspected Criminal Appeal No.5
of 1998 arising out of G.R. Case No.313 of 1994 of the Court of Civil Judge (Sr.
Division)-cum-J.M.F.C., Rayagada presided over by the petitioner. The
accused of that case was convicted under Sections 294/341 and 353 of IPC
and was sentenced to undergo simple imprisonment for three months on each
count. The Hon’ble Judge observed that imposition of S.I. for three months
under Section 341 of IPC by the petitioner was highly irregular and inconsistent
with the statutory provisions of Section 341 of IPC which prescribes maximum
punishment for one month. So a report was called for from the petitioner
through the District and Sessions Judge, Koraput, Jeypore. The petitioner
submitted a report to the Hon’ble Court through the District and Sessions
Judge, Koraput explaining that in anxiety and hurry to dispose of the criminal
case such mistake was committed and he regretted and repented for the same.
He took the plea that it was a bona fide mistake. The Hon’ble Court after careful
consideration of his explanation was pleased to caution the petitioner to be
careful in future while imposing sentence under Section 341, IPC. This was
communicated to the petitioner through the District and Sessions Judge,
Koraput, Jeypore vide Court’s Letter No.7644 dated 16th November, 2006.
43.
The above two incidents give rise to two questions for consideration,
which are dealt with hereinafter.
44.
The first question is if the petitioner was allowed to continue in
service at the age of 50 and 55 years despite the incidents of the above two
adverse remarks whether at the age of 58 years the self-same adverse
reports can form basis for giving compulsory retirement to the petitioner.
324
[2014]
Rule 44 of 2007 Rules extracted above envisages that case of a
judicial officer shall be considered at least three times i.e. when he is about
to attain the age of 50 years, 55 years and 58 years for the purpose of giving
compulsory retirement. In the present case, the petitioner was allowed to
continue in the judicial service at the age of 50 years and 55 years despite
existence of the above two adverse remarks against him.
Records reveal that at the age of 55 years, there is a review in the
year 2009. At that time it was under consideration as to whether the
petitioner shall be allowed to continue in service. The Full Court after
considering the entire period of service which obviously includes two
incidents of the years 1985 and 1998 allowed the petitioner to pass in the
test of review. Needless to say that the standard of consideration for review
at the age of 55 and 58 years is same. Therefore, we are unable to
reconcile how three years thereafter in the year 2012 i.e. in review at the
age of 58 years, the same two incidents weighed the Hon’ble Full Court to
retire the petitioner compulsorily.
45.
In view of the above, we are of the considered opinion that at the age
of 58 years the selfsame two adverse remarks alone cannot form basis for
giving compulsory retirement to the petitioner.
46.
The second question that arises for consideration is whether the
gravity/weight of two adverse remarks is very serious and over-weighed the
record and performance of the petitioner during later years so as to justify
the compulsory retirement.
47.
The Hon’ble Supreme Court in the case of Baikuntha Nath Das
(supra) held that the Government or the Review Committee, as the case
may be, shall have to consider the entire record of service in the matter of
taking decision of compulsory retirement, “of course attaching more
importance to the record and performance during the later years”.
48.
At this juncture, it will be appropriate to refer to the judgment of the
Hon’ble Supreme Court in the case of Swami Saran Saksena Vs. State of
U.P., (1980) 1 SCC 12. In that case, the Hon’ble Supreme Court quashed the
order of compulsory retirement which was found to be in sharp contradiction
with his recent service performance and record. In that case, the Hon’ble
Supreme Court observed as follows:“3.
Ordinarily, the Court does not interfere with the judgment of
the relevant authority on the point whether it is in the public interest
325
[B.N.MAHAPATRA, J.]
to compulsorily retire a government servant. And we have been even
more reluctant to reach the conclusion we have, when the impugned
order of compulsory retirement was made on the recommendation of
the High Court itself. But on the material before us we are unable to
reconcile the apparent contradiction that although for the purpose of
crossing the second efficiency bar the appellant was considered to
have worked with distinct ability and with integrity beyond question,
yet within a few months thereafter he was found so unfit as to
deserve compulsory retirement. The entries in between in the
records pertaining to the appellant need to be examined and
appraised in that context. There is no evidence to show that
suddenly there was such deterioration in the quality of the
appellant’s work or integrity that he deserved to be compulsorily
retired. For all these reasons, we are of the opinion that the order of
compulsory retirement should be quashed. The appellant will be
deemed to have continued in service on the date of the impugned
order.”
(underlined for emphasis)
49.
In the case of High Court of Judicature at Patna, Through R.G.
Vs. Shyam Deo Singh & Ors., [Civil Appeal No.2529 of 2002, disposed of
on March 28, 2004], a three Judges Bench of the Hon’ble Supreme Court,
held as under:
“9.
...The subsequent ACRs of the respondent for the years
1997-1998 and 2000-2001 are sufficiently positive and depicts the
respondent as an efficient judicial officer with a good reputation for
honesty and impartiality. The respondent was promoted to the post
of District and Sessions Judge on 5.9.1998. By Notification dated
17.2.2000 he was promoted to the selection grade of the Bihar
Superior Judicial Service with effect from 1.1.1997. Therefore, not
only the adverse remark dated 15.12.1995 was not acted upon but
subsequent thereto promotion to the highest level in the district
judiciary as well as selection grade in the said cadre was granted to
the respondent. Promotion to the higher post of District Judge and
placement in the selection grade is on an assessment of positive
merit and ability. The said promotion(s), therefore, would have the
effect of wiping out the adverse remark dated 15.12.1995. Such a
view has in fact been expressed in Brij Mohan Singh Chopra Vs.
State of Punjab[4] (Para 10). In the light of the above facts, we do
not see how the High Court, on the administrative side, can be found
to be justified in refusing to continue with the service of the
326
[2014]
respondent beyond the age of 58 years. The order dated 20.2.2001
passed by the High Court setting aside the said decision, therefore,
will have to be affirmed and the present appeal dismissed. We order
accordingly.”
50.
Now, let us see what are the performances of the petitioner during
later years. The above discussed two adverse remarks relate to the years
1985 and 1998.
51.
On 8.8.2008, the petitioner was substantially appointed to the cadre
of OSJS (Sr. Branch). On 19.8.2009 the petitioner was permitted to hold
Selection Grade at the age of 55 years. It is relevant to note here that after
2009 the petitioner earned “very good” CCR for two years i.e. during the
year 2009 and 2010 and “good” CCR for the part of the 2009. On 3.8.2010
the petitioner was granted Super Time Scale. Here it is pertinent to mention
that although Rule 5 of Rules, 2007 requires the District Judges to put three
years service in Selection Grade in order to be granted Super Time Scale, in
the case of the petitioner considering his merit though he did not complete
three years such promotion was given relaxing Rule 5 of Rules, 2007. As
per Rules 4 and 5 the promotions are based on seniority–cum-merit. If the
petitioner was found meritorious in 2009 and 2010, it is difficult on our part to
accept the contention of Mr. Sahoo that the petitioner became nonmeritorious in 2012 more particularly on the face of the C.C.R., wherein he
was rated “very good” during interregnum period, as per the observation of
His Excellency the Governor of Odisha in Note Sheets (Annexure-9).
52.
Moreover, as stated above with regard to the petitioner’s ability, the
remarks given for the period 4.12.2009 to 31.3.2010 is that “he has
knowledge of rules and amendments etc.” and for the period 25.3.2010 to
26.6.2010 the remarks is “able and capable officer and very alert, noting and
drafting is good, he is skilled and able to take decision and maintains cordial
relationship with his colleagues and subordinate officers and employees”.
53.
From the above facts, it is amply clear that the performance of the
petitioner for a considerable period prior to the date of compulsory retirement is
very much satisfactory. Moreover, the gravity of the adverse remarks given in
respect of two incidents of remote past is not very serious as in one incident the
petitioner was given warning only and in other incident he was censured and
warning was directed to be entered into his CCR. Ultimately, it may be case of
error of judgment which happened long back and thereafter there is no
repetition of such instance.
327
[B.N.MAHAPATRA, J.]
54.
For the purpose of considering the gravity/weight of two adverse
reports, it may be relevant to refer to the judgment of this Court in the case
of Purna Chandra Pattnaik vs. State of Orissa and two others, (2009) 1
OLR 243, wherein it has been held that direction “to be cautioned and be
careful in future and shall be kept under observation” is outside the purview
of Rule 13 of the Orissa Civil Services (CCA) Rules, 1962 which provides for
major and minor punishments.
55. Undisputedly, the two remarks are of remote past, one relates back to
27 years and other 15 years back from the date of compulsory retirement.
Despite the same, the petitioner was promoted to the higher post thereafter.
Therefore, such adverse remarks lose their stings. Promotion in the
petitioner’s case is based on merit and selection. The Full Court has to
consider the entire record of service before taking decision in the matter of
compulsory retirement and while doing so more importance should be
attached to record all performance of later years.
If we compare the two adverse remarks with the subsequent
performances of the petitioner certainly the later performance outweighed
the former adverse remarks.
56.
As it appears, the Full Court was selective in taking into
consideration the character roll entries of the petitioner, which is not
permissible under law.
57.
It may not be out of place to note here that this Court further thought
it fit to forward the name of the petitioner for consideration of his candidature
for the post of Member, Central Administrative Tribunal in 2010.
58.
For the reasons stated above, the notification dated 13.03.2013
(Annexure-6) issued by opposite party No.1 giving compulsory retirement to
the petitioner is quashed. The petitioner be treated to be continuing in
service uninterruptedly from the date he was given compulsory retirement.
Consequentially, he shall be paid salary from the date he was given
compulsory retirement till reinstatement in service in accordance with law
and accordingly, on completion of 60 years of age, he shall be entitled to all
retiral benefits including pension.
59.
In the result, the writ petition is allowed but there shall be no order as
to costs.
328
2014 (II) ILR - CUT- 328
I. MAHANTY, J & S. PUJAHARI, J.
O.J.C. NO.9396 OF 1998
RAMA SANTA & ORS.
……...Petitioners
.Vrs.
CHAIRMAN-CUM-M.D ,GRID
CORPORATION OF ORISSA
& ORS.
…….Opp.Parties
ELECTROCUTION DEATH – Umbrella of the deceased came in
contact with the live electric transmission line which was hanging low
between two poles – Poor maintenance on the part of the Opp.Parties –
Deceased was aged about 30 years having monthly income of
Rs.2000/- – When the voltage of electricity transmitted though the wires
is potentially of dangerous dimension the Opp.Parties have the added
duty to take all safety measures to prevent escape of such energy or to
see that the wire snapped would not remain live on the road as users of
such road would be under peril.
In this case since the transmission line came in contact with the
umbrella of the deceased who gets unknowingly trapped into it and
died on the spot, the Opp.Parties, more particularly, the WESCO is
liable to pay an amount of Rs.2,00,000/- as compensation with 6%
interest P.A. to the petitioners.
(Para 10)
Case laws Referred to:1.2006 (Supp-1) OLR 1114 : (Parvati Palai -V- Chairman-cum-Managing
Director, GRID Corporation of Orissa Ltd.
& Anr.)
2.AIR 1970 SC 802
: (Gunwant Kaur -V- Municipal Committee)
3.AIR 1971 SC 1021 : (Century Spinning & Mfg. Co.-V- Uthasnagar
Municipal Council)
4.AIR 1974 SC 2105 : (Babu Bhai -V- Nandalal).
5.AIR 2002 SC 551
: (Madhya Pradesh Electricity Board-V- Shail
Kumari & Ors.)
6.1868 Law Reports(3) HL 330 : (Rylands-V- Fletcher).
For Petitioner - M/s. S. K. Mund, D.P. Das & J.K. Panda.
For Opp.Parties - Mr. B.K. Pattanaik, P. Sinha
& P. Choudhury.
RAMA SANTA -V- CHAIRMAN-CUM-M.D, GRID CORPN.
[S.PUJAHARI,J.]
329
Date of hearing : 16. 04.2014
JUDGMENT
S.PUJAHARI,J.
This writ petition has been filed by the petitioners with a prayer to
issue a writ of mandamus directing the opposite parties to pay compensation
of Rs.2,00,000/- (Rupees Two Lacs) on account of death of one Bhadra
Santa in electrocution arising out of the negligence of the opposite parties in
maintaining the electric transmission line.
2.
Facts relevant for disposal of the writ petition are as under:-
On 22.08.1997, deceased-Bhadra Santa had been to village
Bhanjaguda to work as a daily labourer. After the day’s work, when he was
returning to his village- Jhadabandhaguda in the district of Nabarangpur, on
the way, his umbrella came in contact with the live electric transmission line
which was hanging low between the two poles because of poor maintenance
on the part of the opposite parties, responsible for maintenance of
transmission and supply of electricity in that locality, as a result of which the
deceased got electrocuted and died at the spot. The aforesaid unnatural
death of the deceased is attributable to the negligence of the opposite
parties, inasmuch as due to their poor maintenance the poles tilted during
the rain and storm and live electric wire hanged low which resulted in the
death of the deceased. The deceased was aged about thirty years at the
time of his death and he was the sole bread winner, having a monthly
income of Rs.2000/-, out of which he was contributing Rs.1,500/- to the
maintenance of his family per month. The petitioner no.1 is the wife of the
deceased and the petitioner nos.2, 3 and 4 are his three minor sons.. The
petitioners, as such, claim compensation amount of Rs.2,00,000/-(Rupees
Two Lacs) from the opposite parties which according to them modest and
made the prayer as stated earlier.
3.
In the counter affidavit filed by the opposite parties, it has been
denied that the opposite parties are negligent in maintaining electric
transmission line and the deceased died of electrocution, so also the
deceased was a labourer and the petitioners are being legal heirs as his wife
and sons, entitled to the compensation. A specific plea has also been taken
that even if it is held that the deceased died of electrocution, but the same
being an act of God, inasmuch as the electric poles are tilted on account of
rain and storm, not due to the negligence on the part of the opposite parties,
the opposite parties have no liability to pay the compensation.
330
[2014]
4.
During the course of hearing, it is contended by the learned counsel
for the petitioners, placing reliance on a decision of this Court in the case of
Parvati Palai vrs. Chairman-cum-Managing Director, GRID Corporation
of Orissa Ltd. and another, reported in , 2006 (Supp.-I) OLR 1114 that in
view of averment that the deceased died of electrocution, supported by
ample materials vide Annexures-1, 2 and 3, i.e., the U.D. F.I.R., postmortem
examination report and final report in the U.D. case and alternatively it is
also admitted by the opposite parties that the deceased had died of
electrocution, the petitioners are entitled for compensation, inasmuch as the
death of the deceased is attributable to the negligence of the opposite
parties, which undisputedly maintain the transmission lines and the defence
of act of God is not available to the opposite parties to avoid the liability.
Furthermore, it is also contended that even if the case involves in disputed
question of fact, the same being not involving a complex question of
disputed fact, looking into the affidavit filed and material on record, the Court
can adjudicate on the same, and as such, the contention raised with regard
to maintainability of the writ petition on the ground of disputed question of
fact is devoid of merit. Since due to the negligence of the opposite parties,
the accident occurred and the petitioners lost their sole bread winner, they
are entitled to compensation of Rs.2 lacs, which is modest considering that
he is a labourer, with interest and the opposite parties, as such, be directed
to pay the same, is also the submission made by the learned counsel for the
petitioners.
5. In response, though the factum of death of the deceased in electrocution
has not been disputed by the learned counsel appearing of the opposite
parties, but it has been submitted that the liability being one under tort, the
compensation is payable only in the event of proof of death of the deceased
due to negligence by the petitioners. The said negligence being a disputed
question of facts, the same cannot be adjudicated here in this writ petition.
Therefore, this writ petition claiming compensation is liable to be dismissed,
more particularly when there is no material showing that the death of the
deceased occurred on account of any negligence on the part of the opposite
parties and the petitioners have an alternative forum.
6.
In this case, as revealed from the contention of the writ petition
supported by an affidavit that the deceased died of electrocution. Such
contention of the petitioners is supported by Annexure-1 – U.D. F.I.R.
lodged, Annexure-2 – the postmortem examination report, so also Annexure3 – the final report submitted in the U.D. case disclosing that the matter was
enquired into and the deceased was found to have died of electrocution
when he came in contact with live electric wire. It is not disputed in this case
[S.PUJAHARI,J.]
331
that the opposite parties, more particularly the then Grid Corporation and
now the opposite party no.3 are responsible for transmission of the electricity
and also maintenance of the transmission line in the locality. Furthermore,
though a contention was raised with regard to the death of the deceased, but
the same was not seriously disputed and alternative plea has been taken
that even if the deceased died of electrocution, the opposite parties are not
liable to pay the compensation. From the pleadings of the parties and the
materials placed and also looking into the submission during the time of
hearing, there is no serious dispute in this case that the death of the
deceased has occurred on account of electrocution when his umbrella came
in contact with the electric transmission line maintained by the opposite
parties. The fact that the petitioners are the legal representatives of the
deceased, which is supported by an affidavit, also not disputed and the
deceased was the labourer and the claim of compensation also appears to
be modest, is also not seriously disputed in this case. However, learned
counsel for the petitioners has seriously disputed the payment of the
compensation in a petition under Article 226 of the Constitution in view of the
fact that the liability, if any, being tort, the same can only be saddle with the
opposite parties only on proof of negligence contributing to the death of the
deceased. The said negligence being a disputed question of facts, cannot be
adjudicated in this writ petition, is the submission of the learned counsel for
the opposite parties.
7.
In the case of Gunwant Kaur vrs. Municipal Committee, AIR 1970
SC 802, it has been held by the Hon’ble Apex Court that the High Court is
not deprived of its jurisdiction to entertain a petition merely because in
considering petitioner’s right to relief question of fact may fall to be
determined, inasmuch as under Article 226 the High Court has jurisdiction to
try issues of law and fact. Where, however, the petition raises complex
question of fact, the Court may decline to try a petition under Article 226 of
the Constitution. In the case of Century Spinning & Mfg. Co. vrs.
Ulhasnagar Municipal Council, AIR 1971 SC 1021, the Hon’ble Apex
Court have held that merely because a question of fact is raised, especially
when the same is elementary, the High Court will not be justified in requiring
the party to seek relief by somewhat lengthy, dilatory and expensive process
of civil suit. In the case of Babu Bhai vrs. Nandalal, AIR 1974 SC 2105, the
Hon’ble Apex Court have held that in a petition under Article 226 of the
Constitution, the High Court has jurisdiction to try issues both of fact and law.
But, when the petition raises complex questions of fact which may, for their
determination, require oral evidence to be taken and on that account the
High Court is of the view that the disputed statement may not be
appropriately tried in a writ petition, the High Court may decline to try the
petition. If, however, on consideration of the nature of the controversy, the
332
[2014]
High Court decides that it should go into a disputed question of fact, the
same can be done. Therefore, the contention advanced by the learned
counsel for the opposite parties that in this case since the petitioners are to
prove the negligence on the part of the opposite parties, which is a sine-quanon, to get the compensation and the same is a disputed question of fact
and cannot be decided in the writ petition, appears to be unsustainable,
more particularly when the petitioners in this case are not required to prove
the aforesaid fact to get the compensation, inasmuch as the liability of the
opposite parties to pay the compensation is the strict liability, for which no
negligence on their part is required to be proved by the petitioners. The
aforesaid has also been held by the Hon’ble Apex Court in the case of
Madhya Pradesh Electricity Board vrs. Shail Kumari and others, AIR
2002 SC 551, wherein compensation was claimed for the death of one
workman, who while proceeding on the road died of electrocution when he
came in contact with a live electric wire lying on the road as the transmission
line maintained by the Madhya Pradesh Electricity Board had snapped. The
defence taken by the Board that the same was due to the act of one Hari
Gaikwad who had taken wire from the main supply line in order to siphon the
energy for his own use and the said act of pilferage was done clandestinely
without even the notice of the Board, was not accepted extending the
doctrine “strict liability” laid down in the case of Rylands v. Fletcher, 1868
Law Reports (3) HL 330. In the case of Shail Kumari (supra), the Hon’ble
Apex Court in paragraphs-7, 8, 12 and 14 have held as follows;
“7.
It is an admitted fact that the responsibility to supply electric
energy in the particular locality was statutorily conferred on the
Board. If the energy so transmitted causes injury or death of a
human being, who gets unknowingly trapped into it the primary
liability to compensate the sufferer is that of the supplier of the
electric energy. So long as the voltage of electricity transmitted
through the wires is potentially of dangerous dimension the
managers of its supply have the added duty to take all safety
measures to prevent escape of such energy or to see that the wire
snapped would not remain live on the road as users of such road
would be under peril. It is no defence on the part of the management
of the Board that somebody committed mischief by siphoning such
energy to his private property and that the electrocution was from
such diverted line. It is the look out of the managers of the supply
system to prevent such pilferage by installing necessary devices. At
any rate, if any live wire got snapped and fell on the public road the
electric current thereon should automatically have been disrupted.
Authorities manning such dangerous commodities have extra duty to
chalk out measures to prevent such mishaps.
[S.PUJAHARI,J.]
333
8.
Even assuming that all such measures have been adopted, a
person undertaking an activity involving hazardous or risky exposure
to human life, is liable under law of torts to compensate for the injury
suffered by any other person, irrespective of any negligence or
carelessness on the part of the managers of such undertakings. The
basis of such liability is the foreseeable risk inherent in the very
nature of such activity. The liability cast on such person is known, in
law, as “strict liability”. It differs from the liability which arises on
account of the negligence or fault in this way i.e. the concept of
negligence comprehends that the foreseeable harm could be
avoided by taking reasonable precautions. If the defendant did all
that which could be done for avoiding the harm he cannot be held
liable when the action is based on any negligence attributed. But,
such consideration is not relevant in cases of strict liability where the
defendant is held liable irrespective of whether he could have
avoided the particular harm by taking precautions.
12.
In M.C. Mehta v. Union of India this Court has gone even
beyond the rule of strict liability by holding that “where an enterprise
is engaged in a hazardous or inherently dangerous activity and harm
is caused on any one on account of the accident in the operation of
such activity, the enterprise is strictly and absolutely liable to
compensate those who are affected by the accident; such liability is
not subject to any of the exceptions to the principle of strict liability
under the rule in Rylands v. Fletcher.”
14.
The Privy Council has observed in Quebee Railway, Light
Heat and Power Company Limited v. Vandray and Ors. {1920 Law
Reports Appeal Cases 662} that the company supplying electricity is
liable for the damage without proof that they had been negligent.
Even the defence that the cables were disrupted on account of a
violent wind and high tension current found its way through the low
tension cable into the premise of the respondents was held to be not
a justifiable defence. Thus, merely because the illegal act could be
attributed to a stranger is not enough to absolve the liability of the
Board regarding the live wire lying on the road.”
8.
This Court also in a reported decision in the case of Parvati Palai
(supra), wherein one of us was a party, has also held as follows;
“6.
Almost in similar facts a Division Bench of this Court in the
case of Nirmala Nayak and others v. Chairman-cum-Managing
Director, Grid Corporation of Orissa, Ltd., and another (O.J.C.
334
[2014]
No.6339 of 1997, disposed of on 13.4.2005) granted compensation
to the claimants. In that context, the learned Judges discussed the
relevant legal aspects. In that context, the learned Judges discussed
the relevant legal aspects. Since the legal question is covered by the
decision rendered by a Division Bench of this Court as mentioned
above, following the said ratio, this Court also in this case grants
compensation of Rs.1,50,000/- (Rupees one lakh fifty thousand) to
the petitioner having regard to the fact that the deceased was the
only earning member of the family and there are several dependents
on the deceased………………”
9.
In view of the aforesaid, the opposite parties are liable to pay the
compensation without proof of negligence on their part.
10.
It is not disputed in this case that the amount of compensation
claimed to be modest. In such view of the matter, we allow this writ petition
and direct the opposite parties, more particularly, the WESCO, represented
through the opposite party no.3 to pay an amount of Rs.2,00,000/- (Rupees
two lacs) as compensation with interest at the rate of 6% per annum till the
payment is made. The payment be made within eight weeks’ hence by
depositing an Account Payee cheque in the name of the petitioner no.1.
Needless to say that on payment of the aforesaid compensation amount, the
Registrar (Judicial) shall keep 90% of the compensation amount in a fixed
deposit account in the name of the petitioner no.1 for a period of six years
with quarterly interest being payable to her and handover the rest amount to
the petitioner no.1, on proper identification.
2014 (II) ILR - CUT- 334
I. MAHANTY, J & BISWANATH RATH, J.
W.P.(C) NO. 10214 OF 2014
PANCHANAN BEHERA
……..Petitioner
.Vrs.
STATE OF ODISHA & ORS.
…….Opp.Parties
PANCHANAN BEHERA-V- STATE OF ODISHA
[BISWANATH RATH, J]
335
SERVICE LAW – Promotion to the post of O.F.S. II - O.P. No. 2
selected for the post but wrote letter Dt. 16.3.2009 not to join on health
ground - Petitioner being the next in the list has expectation for the
higher post - However, before acceptance of the letter Dt. 16.3.2009 by
the competent authority O.P.No. 2 made another letter on 17.4.2009
withdrawing his unwillingness to join the post – There is no question
of permanent and un conditional foregoing of promotion since no
office order was issued to that effect and no entry in that respect made
in the Service Book as required under the Government Circular Dt.
20.8.1999 - Held, O.P.No. 2 is well within time to apply for withdrawal of
his unwillingness - Impugned order passed by the Tribunal rejecting
the application of petitioner for promotion is confirmed.
(Paras 8 & 9)
For Petitioner
- M/s. Sameer Ku. Das, S.K. Mishra & P.K. Behera.
For Opp.Parties - Additional Government Advocate
Date of Hearing : 07.07.2014
Date of Judgment : 17.07.2014
JUDGMENT
BISWANATH RATH, J.
By filing the writ petition, the petitioner has sought for quashing of the
order dated 24.04.2014 (Annexure-13) passed by Administrative Tribunal,
Cuttack Bench, Cuttack in O.A. No.326(C) of 2010 for quashing of the orders
dated 21.12.2009 and 12.01.2010 passed by the State Government as
appearing at Annexures-7 and 12 respectively in the writ petition and further
prayed for direction to opposite party no.1-State of Odisha to appoint the
petitioner in the promotional post of O.F.S.-II with all consequential service
benefits within a stipulated period of time.
The background of the case is that the petitioner as applicant vide
O.A. No.326(C) of 2010 before the Orissa Administrative Tribunal, Cuttack
Bench, Cuttack prayed therein to set aside the order dated 21.12.2009 and
the order dated 12.01.2010 available at Annexures-8 & 15 to the Original
Application and also for direction to the respondent no.1, the present
opposite party no.1 to appoint the applicant in the promotional post of
O.F.S.-II, giving him all consequential financial and service benefits within a
stipulated period of time. The grievance of the petitioner before the Tribunal
was that he joined as Auditor Common Cadre Audit (CCA) Finance on
25.01.1988. While continuing as such, he was recommended for
appointment to the post of O.F.S.-II through a duly constitutional selection
336
[2014]
process. The Odisha Public Service Commission in its letter dated
07.11.2008 concurred the proposal of the State Government for appointment
of 54 officers to the rank of O.F.S.-II by way of selection for the year 200607. In the same order the Odisha Public Service Commission also
recommended 14 officers for appointment to the post of O.F.S.-II by way of
selection against anticipated vacancy following provisions of Rule 4(2) of
OCS criteria for selection of appointment. In the select list of 14 officers, the
petitioner’s name found place at Sl.No.6. The further case of the petitioner
before the Tribunal is that the Odisha Public Service Commission also
recommended another group of 13 candidates in its earlier order dated
02.05.2008 (Annexure-2) for the year 2003-04, 2004-05 and 2005-06. On
receipt of the recommendation / concurrence from the Odisha Public Service
Commission, the opposite parties vide their office order dated 08.12.2008 as
appearing at Annexure-3, appointed 67 persons in the post of O.F.S.-II cadre
by way of selection and gave them posting in different offices. The petitioner
further pleaded before the Tribunal that since 5 persons from the General
Category and one from S.C. Category did not join in response to Annexure-3
and some of them have also given option not to join in O.F.S.-II promotion
posts, the Government vide office order dated 28.02.2009 as appearing at
Annexure-4, called upon General Category candidates from the list of 14
officers to be appointed in the anticipated vacancy. As such Sl. No.1, 3 and 5
have been appointed and adjusted in the cadre of O.F.S.-II. Since Sl. No.2
and 4 in the said list though called for but, did not join in the post of O.F.S.-II,
such two posts were remained vacant, required to be filled up by the persons
below the list, i.e Sl. No.6 to 11 from the General Category of those
anticipated vacancy list. The petitioner further claimed before the Tribunal
that in view of the non- joining of the two persons appearing at Sl. No. 2 and
4 and that in view of the recommendation already in his favour by the Odisha
Public Service Commission, a right has been accrued in favour of the
petitioner / applicant for consideration of his case for appointment. The
petitioner further alleged that since persons voluntarily declined to accept
promotion / appointment, the authority could not have insisted them for their
joining rather the vacancy should have been filled up from amongst
remaining candidates. The petitioner waited for about nine months with a
hope that he would be appointed in anticipated vacancies, which was fallen
vacant due to non-joining of the two persons. The petitioner though filed
detailed representation before the opposite party no.1 as it is appearing at
Annexure-5, which remain unattended giving rise the cause of action to the
petitioner to move the Odisha State Administrative Tribunal by filing O.A.
No.294(C) of 2009 for redressal of his grievances, which matter was
disposed of by the Odisha State Administrative Tribunal by order dated
02.12.2009 directing therein to the State to consider the grievance of the
[BISWANATH RATH, J]
337
petitioner within a month from the date of receipt of certified copy of the
order.
2.
As the matter stood thus, in spite of unwillingness by opposite party
no.3 to join the post of O.F.S.-II the authority issued direction to the opposite
party no.3 to join the new post by 08.01.2010 vide order dated 21.12.2009
as appearing at Annexure-7 to the present writ petition. The petitioner further
claimed that in the meanwhile following the conditions in the office
memorandum dated 28.08.1999 as appearing at Annexure-8, the vacancy,
on account of non-joining of the opposite party no.2 should have gone to the
next eligible and suitable employee. He further claimed that the opposite
party no.2 on his volition expressed his unwillingness to join O.F.S.-II cadre
on 16.03.2009. He had foregone the promotion for all time to come and there
was no option left with him to withdraw such undertaking of foregoing
promotion / appointment to O.F.S.-II. The State Government on appearance,
submitted that the Government had decided to give institutional training to
the newly appointed candidates in O.F.S.-II and as the training of 67 newly
appointed O.F.S.-II was going on, there was no scope for imparting training
of the officers appearing from the waiting list. So there has been no
discrimination by giving appointment to respondent nos.2 and 3. It is further
submitted by the opposite party-State before the Tribunal that the name of
the applicant was included in the panel of waiting list as per General
Administrative Department Notification dated 09.07.2003 and under the
circumstances the petitioner had no right for appointment to O.F.S.-II. Since,
there was no vacancy at that point of time Government had no scope to give
appointment to the petitioner. It is the further case of the State, before the
Tribunal that the opposite party no.2 though initially had foregone the
promotion but after one month, he himself represented to join in the
promotional post. The State-opposite party categorically submitted before
the Tribunal that the opposite party no.2 though initially had foregone the
promotion but made a representation for withdrawing his claim for the
foregoing the promotion before the matter was processed by Government for
their order for canceling the promotion. The representation of opposite party
no.2 was considered as per advice of the General Administrative
Department and in view of such advice the opposite party no.2 was allowed
to join in the promotional post. So far as case of opposite party No.3 is
concerned stand of the State was that he had not submitted his
unwillingness to join the post, he had only requested for change of his
posting, which since is permissible was accepted by the Government and as
such there was absolutely no vacancy on account of opposite party No.3.
After hearing the parties, State Administrative Tribunal while considering the
case of the parties, came to observe that there is no discrimination by the
338
[2014]
State Government and that there has been no violation of the General
Administrative Department O.M. dated 20.08.1999, as the consideration of
the representation of opposite party no.2 foregoing his posting for O.F.S.-II
on health and family ground had not reached its logical conclusion of
acceptance by the authorities by issuing an office order to that effect and the
entry in his service book. Since the process following the representation
preferred, was incomplete, the subsequent steps for filling up the vacancy by
the next eligible candidate could not have been taken up. The Tribunal while
disposing the O.A., held that the consideration of the case of the petitioner is
perfectly in order and there is no scope for its interference with the same.
Saying so, the Tribunal further held that since the petitioner being lower to
them in the rank in the waiting list prepared by the State-opposite party, the
petitioner cannot have a better claim over the other except waiting for
consideration of his case when his turn come. On the claim of the petitioner
against respondent no.3 / opposite party no.3 Tribunal based on argument
advanced by State, held there is no vacancy on account of respondent no.3,
it is only a case for change of his posting which has been accepted by State
and the petitioner / applicant has no case sustainable against respondent
no.3 / opposite party no.3
3.
Being aggrieved by the final order of the Tribunal dated 24.04.2014 in
O.A. No.326(C) of 2010, the petitioner, i.e., the applicant before the Tribunal
has preferred the present writ petition, as appears, confining his claim
against opposite party no.2. The petitioner raises the following points for
consideration :That the opposite party no.2 though appointed, did not join the post
and claimed that since the petitioner is the next in the list, he had a
legitimate expectation to join the O.F.S.-II cadre in the event a person
preferred not to join the post. The next submission of the petitioner is that the
office memorandum issued by the General Administrative Department dated
20.08.1999 as annexed Annexure-8 has fixed the criteria with regard to
foregoing promotion. The petitioner claimed that the aforesaid circular of the
Government clearly prescribes that there cannot be any optional promotion
for a temporary period, it rather prescribes, at once an employee does not
accept the higher responsibility in the higher rank / grade, may forego the
promotion once for all claiming the above. The petitioner further submitted
that since the opposite party no.2 on his own volition expressed his
unwillingness to join O.F.S.-II cadre on 18.03.2009, following conditions in
the Government circular (supra), he had foregone the promotion for all time
to come. He had no option to withdraw such pleading for foregoing the
promotion.
[BISWANATH RATH, J]
339
4.
We have heard the parties and perused the pleadings of the parties
available on record. The moot questions to be decided in the present writ
petition are :(1)
Whether the opposite party no.2 had the right to recall his
claim for foregoing the promotion?
(2)
Whether acceptance of withdrawal of opposite party no.2 was
in consonance with the Government Circular dated 20.08.1999 vide
Anenxure-8 ? and
(3)
Whether the State Administrative Tribunal is justified in
dismissing the Original Application.
5.
Coming to answer the question no.1, on perusal of pleadings of the
parties and on consideration of the submissions of the respective parties, it
is made clear that the opposite party no.2, who was due to promotion to
O.F.S.-II by letter dated 16.03.2009 while foregoing to join O.F.S.-II wrote to
Joint Secretary to Government, Parliamentary Affairs Department indicating
therein the following :“To
The Joint Secretary to Govt,
P.A. Department.
Ref:- F.D. OM No.10916/F dt.28.02.2009
Sir,
In inviting a reference to F.D.00 dt.28.2.2009 cited above, I
beg to inform you that I am not willing to join O.F.S. due to illness
and family trouble which may be intimated to F.D.
Yours faithfully
BBSR
16.03.09
Shridhar Mohapatra
S.O. Accounts Section.”
Pending final decision in the above matter, he moved an application
dated 17.04.2009, where the opposite party no.2 while recalling his
340
[2014]
unwillingness to join post of O.F.S.-II by letter dated 17.04.2009
prayed for recalling his letter of unwillingness to join the O.F.S.-II.
The contents of the letter dated 17.04.2009 as available at Annexure9, is reproduced as herein below :“To
The Joint Secretary to Government,
Parliamentary Affairs Department.
Sub:-
Appointment of O.F.S.-II by way of
Selection.
Sir,
In my application dated 16.03.2009, I expressed my
unwillingness to join O.F.S. due to health ground which was
forwarded to Finance Department in this Department letter
No.1908/PAD, dated 18.03.2009. Now I am fit and have set up my
mind to join the new assignment in O.F.S. As I am now on Election
duty I may be allowed to join in the new post after election.
I therefore request you to kindly move Finance Department to
reconsider my case for joining in O.F.S. after being relieved from this
Department.
Bhubaneswar
17.04.2009
Yours faithfully,
(Shridhar Mohapatra)
Section Officer,
P.A. Department.”
6.
On a bare perusal of the letter dated 16.03.2009, disclosed
categorically that the unwillingness of opposite party no.2 was on account of
his illness and family trouble. Similarly, the letter dated 17.04.2009 vide
Annexure-9 indicates that he has become fit in the meanwhile there is no
material forthcoming from either side that the letter of the opposite party no.2
dated 16.03.2009 was being acted upon rather it seems, the request of the
opposite party no.2 dated 16.03.2009 was pending for consideration by the
competent authority. Since the matter was pending for final decision by the
competent authority, he was well within his right to submit the letter dated
17.04.2009 indicating his withdrawing the letter of unwillingness to join
O.F.S.-II. This aspect of the matter has been rightly considered and viewed
[BISWANATH RATH, J]
341
by the Tribunal in the O.A. This Court finds no fault in the findings of the
Tribunal in the said regard.
Thus the question no.1 is answered in favour of the opposite party
no.2 and against the present petitioner.
7.
Now coming to answer question no.2, the Government Circular dated
20.08.1999 at Clause-4(a) and 4 (c) reads as follows:“(a)
it is not desirable to introduce an element of optional
deferment of promotion for temporary periods. To forego is to give
up. An employee, who does not wish to accept the larger
responsibility a higher rank/grade, may forgo the promotion once and
for all;
(c)
in case a Government servant opts for permanent and
unconditional foregoing of promotion, Office Order should be issued
to that effect and an entry should be in the Service Book. The result
vacancy may be filled up by elevating the next eligible and suitable
employee”
8.
The Bare perusal of the office memorandum dated 20.08.1999
makes it clear that there cannot be an element of the deferment of promotion
for temporary period, if foregone, then it is given up and the foregone of
promotion is once for all. It further makes clear that the foregoing of
promotion shall not be conditional. It further makes clear that in case of
permanent and unconditional foregoing for promotion, office order should be
issued to that effect and entry should be made in service book and the result
of vacancy may be filled up by elevating next eligible suitable employee.
In the instant case, as the opposite party no.2 had applied
withdrawing his unwillingness to join the post of O.F.S.-II before the
acceptance of his unwillingness by the competent authority, since no office
order was issued to the said effect and further no entry following any
decision in the above regard was made in the service book, following the
requirement in office memorandum vide Annexure-8 there is no question of
permanent and unconditional foregoing of promotion and, therefore, the
action of the State was in consonance with the office memorandum vide
Annexure-8 and we find no fault in the State’s action.
9.
Now coming to answer the question no.3, it is observed that the State
Administrative Tribunal has vividly considered all the above aspects and has
342
[2014]
rightly come to the conclusion for rejecting the Original Application. Thus,
while upholding the decision vide Annexure-13 rendered by the Tribunal in
O.A. No.326(C) of 2010, we dismiss the writ petition. However, there shall be
no order as to costs
2014 (II) ILR - CUT- 342
S. PANDA, J.
C.M.P. NOS. 384 & 385 OF 2014
M/S. SHOPPERS STOP LTD.
…….Petitioner
.Vrs.
M/S. LALCHAND BUILDERS PVT. LTD.
……..Opp.Party
CIVIL PROCEDDURE CODE, 1908 - O-39, R-1 & 2
Interim injunction – While considering an application for
injunction Courts should consider prima facie case, balance of
convenience and irreparable loss but need not consider the merits of
the case.
In this case both the Courts below have gone into the merits of
the suit instead of hearing the interim applications filed by the
petitioner-Company – Held, impugned orders quashed and the matter
is remitted back to the trial Court for disposal of the Interim
Applications on merit.
(Para 9)
Case laws Referred to:1.(2013) 9 SCC 221
2.AIR 1977 Kant 24
3.AIR 1996 CAL 67
: (Mohd. Mehtab Khan & Ors.-V- Khushnuma Ibrahim
Khan & Ors.)
: (Rama Motal Works & Ors.-V- The National Small
Industries Corporation Ltd.
: (Vijay Minerals Pvt. Ltd.-V- Bikash Chandra Deb).
M/S. SHOPPERS STOP LTD -V- M/S. LALCHAND BUILDERS
[S.PANDA, J.]
343
For Petitioner - M/s. Rajat Kumar Rath, Satyajit Mohanty,
D.P. Sahu & S. Das.
For Opp.Party - M/s. Pratap Ch. Mohapatra, R.C. Pattnaik,
& B.D. Sahu.
JUDGMENT
S.PANDA, J.
As both the Civil Miscellaneous Petitions involve common questions,
parties are same and the dispute arises out of a suit, the matters are taken
up for hearing together and are disposed of by this common judgment.
2.
C.M.P No.384 of 2014 has been filed by the petitioner-Company
challenging the judgment dated 05.12.2013 passed by the learned District
Judge, Bhubaneswar in F.A.O No.134 of 2013 dismissing the appeal thereby
confirming the order dated 28.09.2013 passed by the learned Civil Judge
(Senior Division), Bhubaneswar in I.A No.686 of 2013 arising out of C.S
No.1361 of 2013 rejecting the application filed by the petitioner-Company
under Order 39, Rules 1 and 2 read with Section 151 of C.P.C. for an interim
order of injunction restraining the opposite party-Company from acting upon
the undated termination letter received on 07.8.2013 and for a direction to
the opposite party-Company to act in accordance with the terms and
conditions of the Memorandum of Agreed Terms dated 17.5.2013 in true
letter and spirit and further to restrain the opposite party-Company for
entering into any contract / agreement / Memorandum of Agreed Terms /
Lease Agreement or any other Deed with any third party to create third party
interest in respect of the suit premises.
2.1
Similarly C.M.P No.385 of 2014 has been filed by the petitionerCompany challenging the judgment dated 05.12.2013 passed by the learned
District Judge, Bhubaneswar in F.A.O No.135 of 2013 dismissing the appeal
thereby confirming the order dated 28.9.2013 passed by the learned Civil
Judge (Senior Division), Bhubaneswar in I.A No.740 of 2013 rejecting the
application filed by the petitioner-Company for an interim order of injunction
restraining the opposite party-Company from making any construction over
the suit premises beyond the specification / layout provided by the
petitioner-Company in the Memorandum of Agreed Terms dated 17.5.2013.
3.
The brief facts of the case are that the petitioner-M/s Shoppers Stop
Ltd., is a Company incorporated under the Companies Act, 1965 having its
344
[2014]
Registered Office at Mumbai. The petitioner-Company is represented
through its Vice President (Legal) and Company Secretary. The opposite
party-M/s Lalchand Builders Pvt. Ltd., is also a Company like the petitioner
having its Registered Office at Bhubaneswar. The opposite party-Company
is represented through its Managing Director. The opposite party-Company
was setting up and constructing an interconnected Shopping-cumEntertainment Complex/Mall at Plot No.795, Sahidnagar, Bhubaneswar for
general and commercial user. The petitioner-Company by assessing the
unique location and commercial advantage of the place approached the
opposite party-Company for taking on lease the said Mall and finally the
opposite party-Company agreed to lease out the Mall to the petitionerCompany. Accordingly, both the parties entered into a Memorandum of
Agreed Terms (hereinafter referred to as ‘MOAT’) agreeing to the basic and
essential commercial terms and conditions on a lease of a premise as huge
investments are to be made and each retailer has a specific formant. The
agreement was executed even before completion of the construction so that
the constructions are to be made in accordance with the requirements of the
specific retailer. After several communications made between the parties,
the terms and conditions of the MOAT finally fixed on 15.5.2013. The
petitioner-Company by an email under Annexure-1 sent the draft MOAT
along with other requisites and lay out intimating the opposite partyCompany to comply the requirements. Consequent upon receipt of the said
email communication, the Authorized Signatory of the opposite partyCompany executed the MOAT on 17.5.2013 and sent the same to the
Registered Office of the petitioner-Company at Mumbai, which was received
on 20.5.2013. As the opposite party-Company sent only one copy of the
MOAT, contrary to the instructions given in the email dated 15.5.2013, the
petitioner-Company by further email communication dated 20.5.2013
instructed to the opposite party-Company to send another copy of the MOAT
duly executed on a Rs.100/- Stamp Paper along with two copies of B1/B2
and layout duly signed on each page as per the requirement to make out a
complete set of MOAT for the purpose of executing the same by the
Authorized Signatory of both the parties. Ultimately the opposite partyCompany executed two copies of the MOAT and the layout as agreed and
sent the same to the petitioner-Company, which was received on 04.6.2013.
The petitioner-Company after receiving the same executed the MOAT and
prepared a cheque bearing No.069104 amounting to Rs.25,84,000/- drawn
on IDBI Bank towards first installment of the security deposit in compliance
of Clause No.10 (1) of MOAT. As there was some discrepancy in the
Termination Clause in MOAT, the petitioner-Company by email
communication dated 04.6.2013 requested the opposite party-Company to
correct the Termination Clause in accordance with the original agreement.
[S.PANDA, J.]
345
However, as the opposite party-Company had already sent the executed
copies of the MOAT, it was not possible to make unilateral correction of the
MOAT. The suggestion for correction of the Termination Clause in the
MOAT was considered by the opposite party-Company and ultimately on
10.6.2013 the opposite party-Company through SMS under Annexure-3
intimated the petitioner-Company that the Managing Director of the opposite
party-Company had approved the suggestions made regarding changes in
the Terminal Clause and intimated the petitioner-Company to go ahead with
the changes. In the said SMS, it was clearly mentioned that the approval for
correction of the Termination Clause in the MOAT was made one day before
the SMS was sent by the opposite party-Company. Accordingly, the
petitioner-Company carried out the correction by hand in the MOAT and
returned back the duly executed amended MOAT along with B1/B2 and
layout accompanied by the cheque bearing No.069104 dated 04.6.2013 for
Rs.25,84,000/-, which was received by the opposite party-Company on
18.6.2013. Thus a valid and enforceable contract came into existence in
terms of the Indian Contract Act. The opposite party-Company till date has
not raised any objection with regard to delay in executing the MOAT by the
petitioner-Company or delay in payment of the first installment security
deposit in compliance of Clause No.10 (1) of the MOAT. After receipt of the
MOAT by the opposite party-Company, the petitioner-Company fixed the
meeting to 19.7.2013 to discuss the up to date progress of construction and
other connected matter relating to the building etc. as per the MOAT. During
course of discussion in the said meeting on 19.7.2013 the petitionerCompany found indifferent attitude of the opposite party-Company and could
learn that the opposite party-Company is illegally trying to wriggle out its
obligations. Also the petitioner-Company sent a letter through Speed Post on
01.8.2013 to the opposite party-Company to abstain from indulging in any
such un-contractual activities. The petitioner-Company on 07.8.2013
received an undated letter under Annexure-6 from the opposite partyCompany intimating that the commercial relationship created under the
MOAT had been terminated and the cheque amounting to Rs.25,84,000/was also returned back to the petitioner-Company.
3.1
As the aforesaid termination of contract was illegal and violation of
the terms and conditions of the MOAT, the petitioner-Company filed C.S
No.1361 of 2013 before the learned Civil Judge (Senior Division),
Bhubaneswar with the following prayer:i)
Let a decree be passed declaring that the MOAT dated 17.5.2013
signed by both the parties is still subsisting and the terms and
346
[2014]
conditions embodied in the said MOAT is binding on both the parties
and both the parties are required to abide by the same;
ii)
Let a decree be passed declaring that the undated letter issued by
the opposite party-Company purportedly terminating MOAT dated
17.5.2013 which was received by the petitioner-Company on
07.8.2013 is illegal, invalid, inoperative, unenforceable and void in
law;
iii)
Let a decree for mandatory injunction be passed directing the
opposite party-Company not act upon the aforesaid termination letter
and furthermore the opposite party-Company be directed to act in
accordance with the terms and conditions of MOAT dated 17.5.2013
in true letter and spirit;
iv)
Let a decree for permanent injunction be passed restraining the
opposite party-Company from acting upon the aforesaid termination
letter and from entering into any contract / agreement / MOAT /
Lease Agreement or any other Deed with any third party to create
third party interest in respect of the schedule premises.
Along with the plaint the petitioner-Company also filed an application under
Order 39, Rules 1 and 2 read with Section 151 of C.P.C for ad interim
injunction. In the plaint the petitioner-Company have specifically pleaded
that the literal meaning of ‘on signing of the MOAT’ is that consequent upon
signing of the MOAT by both the parties as stipulated at Clause 10 (1) of the
MOAT regarding disbursement and payment of security deposit. It was also
stated that the agreement was executed on 04.6.2013 and on the same day
the cheque amount was drawn up. Subsequently suggestion was given for
correction of the Termination Clause in MOAT, which was approved by the
opposite party-Company on 10.6.2013. Thereafter, the correction was
carried out in the MOAT and the Authorized Signatory of the petitionerCompany put his initial on the corrections made in the MOAT. The duly
executed MOAT along with cheque was received by the opposite partyCompany on 17.6.2013. The opposite party-Company cannot be allowed to
take advantage of its own wrong regarding unilaterally changing the
termination clause. Therefore, the undated letter under Annexure-6 was
illegal and not enforceable since the contract was completed and duly
executed by the parties. The last paragraph of Clause 41 of the MOAT deals
with closure of MOAT which is only at the discretion / option of the petitionerCompany. The last paragraph of Clause-41 of the MOAT is given
hereunder:-
[S.PANDA, J.]
347
“In case Lessee (petitioner-Company) is unable to go ahead with the
property due to any defect in the title etc. as ascertained in due
diligence and/or technical feasibility, such decision shall be
communicated by the Lessee (petitioner-Company) to the Lessor
(opposite party-Company) in writing and the Lessor agrees to refund
the amounts paid on account of security deposit etc., if any, within
seven days of such notice by the Lessee, and thereafter this MOAT
shall come to an end.”
The aforesaid clause being a negative covenant, the opposite partyCompany has no option to terminate the MOAT unilaterally.
3.2
The opposite party-Company appeared before the court below and
filed his objection to the interim application without filing any written
statement. In the objection it was stated that the petitioner-Company has no
cause of action to file the application against the opposite party-Company,
who is admittedly the true owner, developer of the land and the construction
being carried out by the opposite party-Company. It was further stated that
the petitioner-Company intended to be a tenant under the opposite partyCompany in future after execution of the lease deed as per Clause-6 of the
MOAT dated 17.5.2013. Hence the intending tenant, who has not acquired
monthly tenancy right under any lease and is not in possession of the suit
property cannot seek any relief of temporary injunction against the true
owner, who is in possession, as such the application is liable to be rejected.
It was also stated that the petitioner-Company is not a lessee as yet as the
lease agreement has not been made per Clause-6 of the MOAT. The
petitioner-Company also failed to pay the sum of equivalent one month’s
rent on signing of the MOAT as per Clause-10 (1), hence the MOAT dated
17.5.2013 is void. The opposite party-Company has already entered into a
lease agreement on 28.8.2013 with another incorporated Company and
received payment by cheque dated 21.6.2013. Therefore, the prayer in the
plaint and the prayer in the interlocutory application if read together will
establish that the main relief is sought for in the Interlocutory Application and
the second prayer has been rendered infructuous as the opposite partyCompany has already entered into a lease agreement with another
incorporated Company. The petitioner-Company has no prima-facie case,
and the balance of convenience does not lie in favour of the petitionerCompany. The petitioner-Company has falsely taken a plea that he has paid
the money as required in the MOAT dated 17.5.2013 as the cheque was
received after more than one month from the date the MOAT was executed.
The opposite party-Company has returned the said cheque without
encashing the same. The petitioner-Company has not come to the Court
with clean hands, hence he is not entitled to any relief.
348
[2014]
4.
Considering the above respective plea and after hearing the parties,
the court below by order dated 28.9.2013 rejected the application with the
following findings:
“Adverting back to the matter at hand, it is seen from Clause-4 of the
MOAT under the captioned heading ‘Type of Agreement to be
signed’ that the agreement to lease with attached form of lease deed
as Annexure in lessee’s format with mutual discussion. Further more
Clause-13 of the aforesaid MOAT under the captioned heading
‘Commencement date for rent’ also indicates that the
commencement date for payment of rent shall be immediately the
next day after the expiry of the fit-out period subject to the Lessor
completing construction of the demised premises according to the
specification as confirmed by the lessee, obtaining the occupation
certificate and so also permission from all competent authorities and
so also the execution and registration of the lease deed between the
Lessor and the lessee. On a combined reading of all the aforesaid
clauses and taking note of the material advanced by the rival parties
in toto, in my earnestly considered view, the tone and tenor of the
aforesaid MOAT indicates that the same is not a completed
document in itself which require many other things to be fulfilled
before a lease agreement for letting out the suit schedule premises
on lease can be executed. xx
xx
xx
As per Section
107 of the Transfer of Property Act, 1882, a lease of immovable
property for any term exceeding one year can only be made by a
registered instrument. xx xx xx However, in the matter at hand no
registration of the aforesaid MOAT has been done. Besides it is
harped upon by the petitioner that the aforesaid MOAT was executed
on 17.5.2013. However, by his own admission, for correction of the
said document and for want of certain other aspects, the said
document was completed in all respect on 04.6.2013 and the cheque
was drawn / issued in favour of the opposite party. If the aforesaid
MOAT was allowed to be finally executed on 04.6.2013 on which
date the cheque amount of Rs.25,84,000/- was drawn and sent to the
opposite party, it cannot by any stretch of imagination be stated that
the MOAT was executed on 17.5.2013. If the version of the petitioner
to the effect that on 17.5.2013, the MOAT was executed is given
credence, it goes without saying that the part of the consideration
amount was not paid of that date to the opposite party which was
admittedly drawn/paid on 04.6.2013. In such view of the matter, the
contention raised by learned counsel for the opposite party that such
MOAT has no force of law in view of Section 25 of the
[S.PANDA, J.]
349
Indian Contract Act, 1861 to the effect that any contract without
consideration is void cannot be brushed aside lightly. The court
below has also held that the opposite party has already executed an
agreement with a third party on 28.8.2013 and in pursuance of the
said agreement construction work is going on, which has not
challenged by the petitioner, who has only averred that such deed if
any is illegal. Admittedly, the opposite party being the owner in
respect of the suit demised premises cannot be injuncted as he is
found to be in possession of the suit schedule premises.”
5.
Being aggrieved the petitioner-Company preferred F.A.O No.134 of
2013 before the learned District Judge, Bhubaneswar. The lower Appellate
Court by the impugned judgment dated 05.12.2013 rejected the appeal
thereby confirmed the order of the trial court without going into the merits of
the appeal.
6.
Mr.Rath, learned Senior Counsel appearing for the petitionerCompany submitted that both the courts below in the Interim Application
instead of considering the prima-facie case as pleaded by the petitionerCompany has gone into the merits of the case and given erroneous finding
as if they have concluded the trial in the suit itself, which is perverse and is
liable to be quashed. He further submitted that Clause 32 of the MOAT
stipulates that the Lessee has the option to terminate the Agreement, after
lock-in period of 36 months by providing three months advance written
notice to the Lessor of its intention to terminate the agreement and Lessee
may give this advance any time after the end of 33 months. The Lessor shall
terminate the said lease in case of default by the Lessee in payment of lease
rent or conducting of any illegal activities from the leased premises (not
caused due to any default by the Owner/Developer/Lessor or due to any
force majeure) for a continuous period of two months and the same is not
rectified after the notice period of 30 days. Payment was made by the
petitioner-Company through cheque as stipulated under Clause-10 of the
MOAT, which was received by the opposite party-Company and in absence
of any fact that the cheque was dishonored it must be taken into
consideration that payment had been effected on the date the cheque was
issued. In those circumstances the MOAT was completed in its terms and
conditions. Further at the end of MOAT it was specifically stipulated that in
case the Lessee is unable to go ahead with the property due to any defect in
the title, etc. as ascertained in due diligence and/or technical feasibility, such
decision shall be communicated by the Lessee to the Lessor in writing and
the Lessor agrees to refund the amounts paid on account of Security
Deposit etc., if any, within 7 days of such notice by the Lessee, and
350
[2014]
thereafter this MOAT shall come to an end. He also submitted that both the
courts below have not considered the fact that in view of the aforesaid
specific clause in the MOAT the Lessor has no option to terminate the
MOAT unilaterally it is only the Lessee/petitioner who can only terminate the
agreement, which is a valid one. The plaintiff in the plaint as well as in the
Interim Application has pleaded about the negative covenant as stipulated
under Section 42 of the Specific Relief Act, therefore considering the primafacie case, the court below should have allowed the application of the
petitioner-Company. It is stated that denial of an order of injunction will
almost amount to dismissal of the suit of the plaintiff at the interlocutory
stage and it is the duty of the Court to implement the solemn agreement
between the parties. It is further stated that in view of the negative covenant
in the MOAT the question of balance of convenience and whether damages
would be adequate remedy or not, becomes immaterial. Therefore, the
petitioner-Company has only raised question of prima-facie case.
7.
Learned counsel appearing for opposite party-Company submitted
that the alleged MOAT was executed on 17.5.2013 and as per Clause 10 (1)
of the said MOAT, the amount has to be paid on execution of the MOAT,
which admittedly not being paid the document dated 17.5.2013 is an invalid
one, which was rightly considered by the courts below. He has further
submitted that the opposite party-Company being the owner in possession,
no injunction can be granted against him and the interference of this Court in
exercise of the jurisdiction under Article 227 of the Constitution of India does
not warrant as those are findings of facts.
8.
The Apex Court in the case of Mohd. Mehtab Khan & others Vs.
Khushnuma Ibrahim Khan and others reported in (2013) 9 SCC 221 held
that:
“Ordinarily and in the normal course, by this time, the suit itself
should have been disposed of. Tragically, the logical conclusion to
the suit is nowhere in sight and it is on account of the proverbial
delays that have plagued the system that interim matters are being
contested to the last court with the greatest of vehemence and
fervour. Given the ground realities of the situation it is neither
feasible nor practical to take the view that interim matters, even
though they may be inextricably connected with the merits of the
main suit, should always be answered by maintaining a strict
neutrality, namely, by a refusal to adjudicate. Such a stance by the
courts is neither feasible nor practicable. Courts, therefore, will have
to venture to decide interim matters on consideration of issues that
are best left for adjudication in the full trial of the suit. In view of the
[S.PANDA, J.]
351
inherent risk in performing such an exercise which is bound to
become delicate in most cases the principles that the courts must
follow in this regard are required to be stated in some detail though it
must be made clear that such principles cannot be entrapped within
any straitjacket formula or any precise laid down norms. The courts
must endeavour to find out if interim relief can be granted on
consideration of issues other than those involved in the main suit
and also whether partial interim relief would satisfy the ends of
justice till final disposal of the matter. The consequences of grant of
injunction on the defendant if the plaintiff is to lose the suit along with
the consequences on the plaintiff where injunction is refused but
eventually the suit is decreed has to be carefully weighed and
balanced by the court in every given case. Interim reliefs which
amount to pre-trial decrees must be avoided wherever possible.
Though experience has shown that observations and clarifications to
the effect that the findings recorded are prima facie and tentative,
meant or intended only for deciding the interim entitlement of the
parties have not worked well and interim findings on issues
concerning the main suit has had a telling effect in the process of
final adjudication it is here that strict exercise of judicial discipline will
be of considerable help and assistance. The power of self-correction
and comprehension of the orders of superior forums in the proper
perspective will go a long way in resolving the dangers inherent in
deciding an interim matter on issues that may have a close
connection with those arising in the main suit.
There is yet another dimension to the issues arising in the
present appeal. The interim relief granted to the plaintiffs by the
appellate Bench of the High Court in the present case is a
mandatory direction to hand over possession to the plaintiffs. Grant
of mandatory interim relief requires the highest degree of satisfaction
of the court; much higher than a case involving grant of prohibitory
injunction. It is, indeed, a rare power, the governing principles
whereof would hardly require a reiteration inasmuch as the same
which had been evolved by this Court in Dorab Cawasji Warden v.
Coomi Sorab Warden and others has come to be firmly embedded in
our jurisprudence. Paras 16 and 17 of the judgment in Dorab
Cawasji Warden and others extracted below, may be usefully
remembered in this regard:
“16. The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
352
[2014]
non-contested status which preceded the pending controversy until
the final hearing when full relief may be granted or to compel the
undoing of those acts that have been illegally done or the restoration
of that which was wrongfully taken from the party complaining. But
since the granting of such an injunction to a party who fails or would
fail to establish his right at the trial may cause great injustice or
irreparable harm to the party against whom it was granted or
alternatively not granting of it to a party who succeeds or would
succeed may equally cause great injustice or irreparable harm,
courts have evolved certain guidelines. Generally stated these
guidelines are:
(1)
The plaintiff has a strong case for trial. That is, it shall be
a higher standard than a prima facie case that is
normally
required for a prohibitory injunction.
of
(2)
It is necessary to prevent irreparable or serious
injury which normally cannot be compensated in terms of
money.
(3)
The balance of convenience is in favour of the one
seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an
interlocutory mandatory injunction shall ultimately rest in the sound
judicial discretion of the court to be exercised in the light of the facts
and circumstances in each case. Though the above guidelines are
neither exhaustive nor complete or absolute rules, and there may be
exceptional circumstances needing action, applying them as
prerequisite for the grant or refusal of such injunctions would be a
sound exercise of a judicial discretion.”
8.1
In the case of Rama Metal Works and others Vs. The National
Small Industries Corporation Ltd. reported in AIR 1977 Kant 24 the Court
held that mere expression of the desire of the parties as to the manner in
which the transaction already agreed to will, it was clear implication of
signing of the agreement in due course though desirable was not essential.
The effect of the correspondence and the conduct of the parties are not such
as to lead to the inference that the parties intended to be bound only when a
formal agreement is executed. However, there were ample materials to
show that both the parties intended to make and believed that they had
made a binding agreement.
[S.PANDA, J.]
353
In view of the above settled position of law, the orders passed by the
courts below are perverse as the courts below have not referred to the
similar Clauses of the MOAT. The courts below should have considered the
fact that when a person to whom the proposal is made signifies his assent
thereto, the proposal is said to be accepted and the proposal when
accepted, whether it becomes a promise or not?
8.2
Further in the case of Vijay Minerals Pvt. Ltd. Vs. Bikash Chandra
Deb reported in AIR 1996 CAL 67 the Court held that if there had been a
negative covenant a Court of Equity would have had no discretion to
exercise. If parties for valuable consideration, with their eyes open, contract
that particular thing shall not be done, all that a Court of Equity has to do is
to say, by way of injunction, that which the parties have already said by way
of covenant, that the thing shall not be done, and in such case the injunction
does nothing more than give the sanction of the process of the Court to that
which already is the contract between the parties. It is not then a question of
the balance of convenience or inconvenience or of the amount of damage or
of injury – it is specific performance, by the Court, of that negative bargain
which the parties have made, with their eyes open between themselves.
In view of the aforesaid decision, the court below should have
considered the negative covenant term incorporated in the MOAT also.
9.
Considering the above and as both the courts below have gone into
the merits of the suit itself instead of hearing the Interim Applications filed by
the petitioner-Company, this Court quashes the impugned judgments dated
05.12.2013 passed by the learned District Judge, Bhubaneswar in F.A.O
Nos.134 and 135 of 2013 as well as the order dated 28.09.2013 passed by
the learned Civil Judge (Senior Division), Bhubaneswar in I.A Nos.686 of
2013 and 740 of 2013 arising out of C.S No.1361 of 2013 and remits the
matter back to the trial court for disposal of the Interim Applications on its
own merits, as expeditiously as possible, preferably within a period of three
months from the date of production of certified copy of the judgment.
Accordingly, both the Civil Miscellaneous Petitions are disposed of.
Applications disposed of.
354
2014 (II) ILR - CUT- 354
SANJU PANDA, J & B. P. RAY, J.
JCRLA NO. 65 OF 2004
KABI DAS
……..Appellant
.Vrs.
STATE OF ORISSA
……..Respondent
PENAL CODE, 1860 - Ss. 302, 304, PART-I
Murder – Appellant’s two years old son suffered from fever and
died – He suspected it to be a witchcraft made by the deceased – Being
upset over the death of his son he lost his balance and gave two kati
blows to the deceased who succumbed to the injuries – The assault
made by the appellant was without pre-meditation, due to sudden fight
between the appellant and the deceased under heat of passion – Held,
offence committed does not come U/s.302 IPC but U/s. 304, Part-I I.P.C.
– Conviction of the appellant U/s. 302 I.P.C. is converted to Section 304,
Part-I, I.P.C. and the appellant is sentenced to under go R.I. for 10
years.
(Paras 8 & 9)
For Appellant - Mr. H.B. Dash.
For Respondent - Mr. Sk. Zafarulla, Addl. Standing Counel.
JUDGMENT
B.P.RAY, J.
The appellant has filed this appeal challenging the judgment and order
of conviction and sentence dated 08.04.2004 passed by the learned
Additional Sessions Judge, Fast Track Court, Chhatrapur convicting him
under Section 302 I.P.C. and sentencing him to undergo imprisonment for
life and to pay a fine of Rs.100/-, in default, to undergo imprisonment for six
months in Sessions Case No.27/2003/S.C.No.330/2003(GDC) for having
committed murder intentionally and knowingly caused death of the
deceased.
2.
The prosecution case, in nutshell, is that two years old boy of the
appellant-accused was suffering from fever and he was admitted to the
hospital (P.H.C, Kodala) for treatment. He died on 03.03.2003. The
appellant-accused was under the impression that the deceased Uddhab
355
KABI DAS -V- STATE OF ORISSA
[B.P.RAY, J.]
Nahak had applied black magic against his son and had killed him.
Therefore, the appellant-accused assaulted the deceased by means of a kati
and the deceased succumbed to the injuries on 03.03.2003. The incident
occurred on 03.03.2003 at about 7 P.M. and the F.I.R. was lodged at
Kodala police station on 04.03.2003 and the police registered the case under
Section 302 I.P.C., arrested the appellant-accused and
after due
investigation filed charge-sheet against him.
3.
The plea of the appellant-accused is one of complete denial.
4.
In order to bring home the charge, prosecution has examined as
many as eight witnesses, out of whom, P.Ws 4 and 5 are eye witnesses to
the occurrence and P.W.5 is the informant and son of the deceased. P.W.3
is a post-occurrence witness as well as a witness to the seizure, Ext-5.
P.W.7 is the doctor, who conducted autopsy and P.W.1 is the inquest
witness to the Ext-1. P.W.2 is the Police Constable, who accompanied the
dead body to the Medical Officer and had identified the same at the time of
the post-mortem. P.W.8- Dasarathi Sethi is the Investigating Officer and
P.W.6 is another Investigating Officer, who submitted the charge-sheet.
5.
The prosecution has relied upon the evidence of P.Ws 4 and 5, who
are eye witnesses to the occurrence.
P.W.5 is the informant and son of the deceased. He has stated that
on the date of occurrence at about 7 P.M., he along with his father deceased
and his mother were present in the thrashing floor which is situated just in
front of their house being intervened by road and he and his mother were
engaged in thrashing work of green gram and the father was bringing straw
for the cattle. At that time the appellant-accused suddenly entered in to the
thrashing floor through the main gate holding a kati in his hand and
assaulted his father by giving successive blows, as a result of which, the
deceased sustained injuries on his face and head, fell down and succumbed
to the injuries. After giving successive blows, the appellant-accused fled
away. P.W.5 has further stated that he went to home and brought water and
while administering water to his father-deceased, he succumbed to the
injuries. P.W.5 presented the F.I.R vide Ext-7 before the police station.
P.W.5 has also explained the delay in lodging the F.I.R saying that he was
not in a proper state of mind seeing the assault on his father-deceased.
P.W.4 also arrived at the spot and is an eye witness to the
occurrence. He has corroborated the version of P.W.5 in material particulars.
356
[2014]
6.
We have gone through the evidence of P.Ws,4 and 5 and the doctor
P.W.7, who conducted autopsy on the dead body of the deceased . On close
scrutiny of the evidence of the P.Ws, 4 and 5, nothing has been elicited to
disbelieve the fact that they are not the eye witnesses to the occurrence.
7.
On perusal of the post-mortem report, the following injuries were
found on the dead body of the deceased:
i.
One incised would of size 4” x 1¼” x brain deep running
obliquely through the right occipital bone ½” behind the back of the
ear lobula up-wards. The brain matter was visible through the
wound;
ii.
A stab injury of 1” x 1/4” x brain deep 1” away from outer angle
of right eye.”
Even though the learned counsel for the appellant-accused tried to
assail the ground which is not supported by reliable evidence, we find that
the doctor has opined the death was due to shock and haemorrhage
resulting from injuries on the vital organ, like brain. Since we do not find any
infirmity in the evidence of P.W.7 so as to establish the guilt of the appellant,
the evidence of P.Ws. 4 and 5 cannot be brushed aside as they are eye
witnesses to the occurrence and particularly when, P.W.5 is the son of the
deceased.
8.
On a close scrutiny of the evidence P.W. 5 (Congress Nahak), it
appears that the father (deceased) of P.W.5 was present in the thrashing
floor and was bringing straw and the deceased was unarmed. He was taken
by surprise. The occurrence witness P.W.5 tried to pacify the appellant but
he did not pay any heed thereto. The deceased was given two blows.
Therefore, we are of the considered view that the case would come within
the purview Section 304, Part-I, I.P.C since the appellant was upset over
the death of his son which he suspected to be a witchcraft made by the
deceased. Therefore, he might have lost his balance and even though doctor
has opined that the injuries were sufficient in ordinary course of nature to
cause death, in our considered view without pre-mediation, due to the
sudden fight between the appellant-accused and the deceased under heat of
passion, the deceased was assaulted. Therefore, the offence committed by
the appellant-accused does not come under Section 302, I.P.C, but it comes
within the mischief of Section 304, Part-I, I.P.C and the appellant is liable to
be convicted under Section 304, Part-I, I.P.C.
357
KABI DAS -V- STATE OF ORISSA
[B.P.RAY, J.]
9.
In the result, the impugned judgment and order of conviction dated
08.04.2004 passed by the learned Additional Sessions Judge, Fast Tract
Court, Chhatrapur, in Sessions case No.27/2003/S.C. No.330/2003 (GDC) is
set-aside and we convert it to Section 304, Part-I, I.P.C and sentence the
appellant-accused to undergo R.I for ten years thereunder.
It appears from the order of this Court dated 30.11.2010 that the
appellant-accused had already remained in custody for more than seven
years till that date, when he was allowed to be released on bail. In view of
the above, the bail bond be cancelled and the appellant-accused shall
surrender to the custody to serve the rest part of the sentence imposed.
10.
In the result, the appeal is allowed in part.
Appeal allowed in part.
2014 (II) ILR - CUT- 357
S. C. PARIJA, J.
CRLMC NO.1525 OF 2003
SARAT CHANDRA RATH & ORS.
……..Petitioners
.Vrs.
MALTI TANDI & ANR.
A. CRIMINAL PROCEDURE CODE, 1973 - S. 482
Quashing of cognizance – Offence U/ss. 376, 342, 506 & 34
I.P.C. – F.I.R. lodged one month after the alleged occurrence –
Accused-petitioners were police officers investigating into a murder
case against the husband of the victim – Investigation handed over to
Crime Branch – Final Form submitted showing that the allegations
made in the F.I.R. were false – Prior to the same victim filed a complaint
case on the self same allegations – Magistrate took cognizance ten
years after the alleged occurrence without considering the Final Form
358
[2014]
submitted by the Crime Branch – All the witnesses named in the
complaint petition have not been examined as required U/s. 202 (2) Cr.
P.C. – Magistrate acted in a casual and mechanical manner and failed
to apply his judicial mind while taking cognizance – Allowing
continuance of such proceeding would be an abuse of the process of
the Court – Held, the impugned proceeding initiated against the
petitioners and the order taking cognizance are liable to be quashed.
(Paras 30 & 31)
B. CRIMINAL PROCEDURE CODE, 1973 - S. 197
Sanction – Petitioners-accused persons are police officers –
Allegation of rape against them while investigating in to a murder case
where in the husband of the victim was an accused – Act complained
against the petitioners as public servants in discharge of their official
duty – Protection envisaged U/s. 197 (1) Cr. P.C. is attracted and the
petitioners cannot be prosecuted without previous sanction of the
State Government – Held, the impugned Criminal proceeding against
the petitioners and the order taking cognizance are quashed.
(Paras 39, 40)
2.67(1989) CLT 729
3.AIR 2004 SC 4174
4.AIR 2006 SC 820
: (State of Haryana & Ors.-V- Ch. Bhajan Lal & Ors.)
: (Tribikram Misra-V- State of Orissa & Anr.)
: (S.K. Zutshi & Anr.-V- Bimal Debnath & Anr.)
: (Rakesh Kumar Mishra-V- State of Bihar & Ors.)
For Petitioners - M/s. B. Routray, A.K. Baral, D.K. Mohapatra,
B.N. Satpathy, B.B. Routray, P.K. Dash,
D. Mohapatra & D. Routray.
For Opp.Parties - None (for O.P.1)
Addl. Govt. Advocate (for O.P.No.2)
JUDGMENT
S.C. PARIJA, J.
This application under Section 482 Cr.P.C. has been filed praying for
quashing of the criminal proceeding initiated against the petitioners in
I.C.C.No.08 of 1991, pending before the learned S.D.J.M., Titilagarh and the
order of cognizance dated 06.8.2002 passed therein, taking cognizance of
359
SARAT CHANDRA RATH -V- MALTI TANDI
[S.C. PARIJA, J.]
offences under Sections 376/342/506/34 I.P.C and directing issue of
N.B.W.(A) against the present petitioners.
2.
The brief facts of the case, as detailed in the application is that on
27.11.1990 at about 10 A.M. a written report was lodged at the Tikarpara
Police Out-post disclosing the fact that one Gadi Tandi of village
Phatamunda was murdered in the preceding night. One Agasti Tandi along
with some other persons of the same village were suspected in commission
of the said crime. On the said allegation, Saintala P.S. Case No.107 of 1990
was registered on 28.11.1990 for the offence under Section 302 Indian
Penal Code and the investigation was taken up. The petitioner no.1, Sarat
Chandra Rath, the then O.I.C. of Saintala Police Station coming to know
about the report, arrived at Tikarpara Out-post and took charge of the
investigation from A.S.I., Muralidhar Mishra. Constable Saranga Gahir, who
was watching the dead body at the spot, after inquest over the dead body
was done, was asked by the O.I.C. to take the dead body to Patnagarh
Hospital for post-mortem. The said constable was accompanied by the
Gramrakhi, Gobardhan Nag. After post-mortem was conducted over the
dead body, Gobardhan Nag and the Constable S.Gahir returned from
Patnagarh on 28.11.1990 night.
3.
That on 28.11.1990, the Circle Inspector, S.D.Singh, D.N.Mishra,
S.D.P.O., Titlagarh and Himmath Kumar Pradhan, Scientific Officer,
Sambalpur, along with staff arrived at the spot in village Phatamunda for
supervision. The petitioners along with aforesaid officers and staff after
finishing the work for the day, left for Tikarpara Out-post in the evening. As
per the direction of the S.D.P.O., Titlagarh, petitioner no.2 M.P.Karua took
over the charge of investigation of Saintala P.S. Case No. 107 of 1990 from
O.I.C., S.C.Rath.
4.
That on 28.11.1990 all the suspected persons and witnesses of
village Phatamunda viz. the opposite party Malti Tandi, who is the wife of
accused Agasti Tandi, father and brother of Agasti Tandi, aunt Champa
Tandi, village headman Rudramani Meher, Meheswar Bhoi and others were
called to the Out-post by police Havildar Manglu Bhoi. The suspects were
interrogated and the witnesses were examined by the I.O. M. P. Karua at the
Out-post in the night of 28.11.1990. After finishing the enquiry, the S.D.P.O.,
C.I., Titlagarh, Scientific Officer, Sambalpur and O.I.C., Saintala P.S. in the
late night on 28.11.1990 left the Out-post for their respective destinations.
Petitioner No.2 and Havildar Manglu Bhoi remained in the Out-post to
continue investigation in the next morning of 29.11.1990.
During
investigation, accused Agasti Tandi admitted to have murdered the
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deceased Gadi Tandi in the thrashing floor due to previous enmity. The I.O.,
being satisfied about the complicity of Agasti Tandi in the crime, arrested him
and took him to custody. Accused Agasti Tandi led the I.O. to the spot and
gave recovery of an axe, which was the weapon of offence, in presence of
witnesses. Accused Agasti Tandi was forwarded on 29.11.1990 to the Court
of learned S.D.J.M., Titlagarh, in Saintala P.S. Case No.107 of 1990 and
was remanded to jail custody.
5.
That on 05.12.1990, A.C. Mallik took charge of the office of Circle
Inspector, Titlagarh, from Inspector Sambhu Dayal Singh. On 12.12.1990
C.I., A.C.Mallik went to Saintala P.S. to verify the pending cases on the
direction of S.P., Bolangir, along with his reader A.S.I., Gopal Chandra Sahu,
in his office jeep driven by assistant driver, Prasanna Kumar Sahu. On the
same day in the evening hour C.I., A.C.Mallik left Saintala P.S. for Tikarpara
Out-post for a surprise visit along with the petitioners and his said staff.
They arrived at Tikarpara Out-post at about 7 P.M. and inspected the
records and registers of the Out-post. The C.I. found some omissions and
irregularities committed by A.S.I., Muralidhar Mishra and serious lapses in
discharge of his official duty as In-charge of Tikarpara Out-post, which was
noted in the Station Diary, vide entry no.303, dated 12.12.1990.
6.
Malti Tandi-opposite party no.1 lodged a written report before the
S.P., Bolangir on 31.12.1990, alleging that on 28.11.1990 the petitioners
came to her house in the evening hour and forcibly raped her. It was further
alleged that again in the same night, she was called to Tikarpara Out-post
where she was raped by the petitioners for the second time. It was also
alleged in the said written report that on 12.12.1990 she was called to
Tikarpara Out-post by the C.I., A.C.Mallik and all of them forcibly raped her
inside the said police Out-post. Accordingly, Saintala P.S. Case No. 125 of
1990 was registered on 13.12.19990 against the present petitioners and C.I.,
A.C.Mallik, for the offences under Section 354/376 I.P.C.
7.
As serious allegations were made against the police officers, the
investigation of the case, i.e. Saintala P.S. Case No. 125 of 1990, was
handed over to the C.I.D., Crime Branch of Orissa Police.
While
investigation was in progress by the C.I.D., C.B., Orissa, the informant-Malti
Tandi filed I.C.C.No.08 of 1991 on 08.2.1991, in the Court of the learned
S.D.J.M., Titlagarh, against the petitioners and C.I. A.C.Mallik for the
offences under Section 376/342 read with Section 34 I.P.C. After receiving
the complaint petition, the learned Magistrate called for a report under
Section 210 Cr.P.C. from the I.O. of Saintala P.S. Case No. 125 of 1990,
corresponding to G.R. Case No.377 of 1990. Inspector C.I.D., C.B., after
completion of investigation, on the basis of the materials collected during
investigation, came to the conclusion that the allegations made by the Malti
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[S.C. PARIJA, J.]
Tandi (informant) were false and fabricated and not supported by any
evidence. Accordingly, the Inspector, C.I.D., C.B., after obtaining orders
from the Inspector General of Police, submitted Final Report in Saintala P.S.
Case No.125 of 1990 before the concerned Magistrate on 18.6.1992,
observing that the case is false.
8.
Though the complaint case was filed on 08.2.1991, vide 1CC No.08
of 1991, the initial statement of the complainant-opposite party no.1 was
recorded after a lapse of more than nine years, only on 27.7.2000. She was
examined under Section 202 Cr.P.C. as witness no.1 on 28.7.2000. On the
same day, another witness Champa Tandi was examined as witness no.2.
Thereafter, on 06.4.2001 the ASI of Police, Muralidhar Mishra was examined
under Section 202 Cr.P.C., as witness no.3. The complainant, inspite of
several opportunities, declined to examine other witnesses named in the
complaint.
9.
Learned S.D.J.M., Titlagarh, vide order dated 06.8.2002, took
cognizance of offences under Sections 342/506/376/34 I.P.C. against the
present petitioners and directed issue of process. On appearance, the
petitioners filed an application to recall the order taking cognizance and to
drop the proceeding. Learned Magistrate vide order dated 12.5.2003
rejected the application of the petitioners, hence this application.
10.
It is the case of the petitioners that the allegations made against them
that they committed rape on the informant Malti Tandi on 28.11.1990 and
again on 12.12.1990 are false, fabricated and inherently improbable, in view
of the fact that on 12.12.1990 the C.I., A.C.Mallik went to Tikarpara Out-post
along with the petitioners and other police staff. The official tour diary of the
C.I. will show that he along with other officers of Saintala P.S. left Tikarpara
Out-post and arrived at Saintala P.S. about 11.30 P.M. on 12.12.1990. Soon
after that, the C.I. sent a message to the S.P., Bolangir, about the
misconduct of A.S.I., M.D.Mishra of Tikarpara Out-post. Therefore, the
allegations that the C.I., A.C.Mallik, kept the informant confined inside the
inspection room of Tikarpara Out-post and committed rape on her must be
held as inherently improbable. Moreover, the informant had stated before
the Inspector, Crime Branch, that the C.I., A.C.Mallik along with the present
petitioners had committed rape on her on 12.12.1990 night, although the
F.I.R. lodged by her does not implicate the petitioners for taking part in
commission of the alleged crime on 12.12.1990.
11.
It is the further case of the petitioners that there are inherent
contradictions in the statements of complainant-opposite party no.1 recorded
under Section 200 Cr.P.C. and the statement of the A.S.I., M.D.Mishra,
recorded under Section 202 Cr.P.C. in the complaint case. Relevant
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portions of the statement of the complainant under Section 200 Cr.P.C. is as
follows:
“When I protested accused persons dragged my clothes, the
accused persons attempted rape on me one after another.
xxx
xxx
xxx
After some day Mallik Babu police officer called me through
Gramarakhi, Gobardhan Nag. I went with the Gramarakhi to the
Out-post. Mallik Babu was there. He took me to the quarter and
committed rape on me. The other three accused persons were
present outside.”
12.
However, the informant in her statement made under Section 161
Cr.P.C. before Inspector, C.I.D., Crime Branch, had stated as follows:
“Then on dated 12th afternoon the Gramarakhi told me that I
was called by Mallik Babu to the Out-post. I went along with my
aunt. I was called inside the quarter near the Thana Office where
four police persons were present. Mallik Babu committed rape on
me. I remained in that quarter for the whole night and those police
persons were there in the quarter and then I was raped by four
police persons.”
13.
Relevant portions of statement of Muralidhar Mishra, A.S.I., recorded
by the learned Magistrate under Section 202 Cr.P.C. is as follows:“(1)…Saintala O.I.C., S.C.Rath (petitioner no.1), Mohan Pani Karua
(petitioner no.2), Giridhari Barik (petitioner no.3) had been to village
Phatamunda on 28.11.1990. They asked Malti Tandi about the
case. The husband, the brother-in-law and father-in-law of Malti
Tandi were arrested and kept at Tikarpara Out-post. Malti Tandi the
complainant told me that the above noted police persons dragged
her saree and outraged her modesty.
(2)… On 29.1.1990 Malti Tandi was kept in the Inspection room of
Tikarpara Out-post in the night. The above noted police personnel
also dragged her saree and outraged her modesty in the night, which
was told to me by Dhansingh Pradhan, Constable attached to
Tikarpara Out-post.”
14.
Learned counsel for the petitioners submits that when the self-same
allegations had been investigated into by the Inspector, C.I.D., C.B. and
during investigation, statements of the villagers, relatives of the informant
and other police official were recorded and on conclusion of investigation,
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[S.C. PARIJA, J.]
Final Report was submitted after obtaining approval of the Inspector General
of Police, observing that the case is false under Section 354/376 I.P.C.,
learned Magistrate should have dismissed the complaint, especially when
there were no cogent and credible evidence to support the allegations made
in the complaint.
15.
It is further submitted that as the acts complained of were alleged to
have been committed by the present petitioners while investigating a police
case as public servant in discharge of their public duties, sanctions under
Section 197 Cr.P.C. of the authority concerned was necessary before taking
cognizance of the alleged offences.
16.
It is accordingly submitted that the impugned order of cognizance
dated 06.8.2002, passed in I.C.C.No.08 of 1991, is not sustainable in law
and the same is liable to be quashed.
17.
None appears for the complainant-opposite party no.1 inspite of
service of notice.
18.
The Addl. S.P., C.I.D., C.B., Orissa has filed a counter affidavit
stating therein that I.C.C.No.08 of 1991 was instituted by the complainantopposite party no.1 in the Court of the learned S.D.J.M., Titlagarh, during
pendency of the investigation by the C.I.D., C.B., in Saintala P.S. Case No.
125 of 1990, which had been registered on the basis of the written report of
the complainant dated 31.12.1990, for the self-same incident. It is stated in
the said counter affidavit that during course of investigation in Saintala P.S.
Case No. 125 of 1990, the victim lady (informant) did not agree for her
medical examination and did not produce her wearing apparels and refused
to identify the accused persons. It is further stated that the informant had
alleged that the accused persons (petitioners) came to her house when she
was gossiping with Kandi Tandi. However, during investigation, the said
Kandi Tandi denied about such gossip and arrival of the accused persons. It
is further stated that investigation also revealed that the husband of the
victim lady, namely, Agasti Tandi had been arrested and forwarded to the
Court under Section 302 IPC, in Saintala P.S. Case No.107 of 1990.
19.
It is further stated in the said counter affidavit that investigation in
Saintala P.S. Case No.107 of 1990 disclosed that on 12.12.1990, C.I.
A.C.Mallik paid a surprise visit to Tikarpara Out-Post. On perusals of the
records of the Out-post, the C.I. expressed his dissatisfaction regarding the
maintenance of the records, non-execution of warrants, suppression of
cognizable cases and doubtful integrity of A.S.I. Muralidhar Mishra and
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recorded the same in the Station Diary. Resultantly, A.S.I., Muralidhar
Mishra, being aggrieved, has engineered the allegation of rape against C.I.
A.C.Mallik through Malati Tandi. Other officers who were witnesses to the
inspection of the C.I. and were also investigating the murder case against
the husband of the informant, were also implicated as accused in the said
case.
20.
It is further stated in the said counter affidavit that during supervision
of the case, the Addl. S.P., C.I.D., C.B., Orissa, opined that the allegation of
rape is false and accordingly, on the conclusion of investigation, the
Inspector, C.I.D., C.B., submitted Final Report, indicating that the allegations
made in the F.I.R. are false. It is further stated that after submission of Final
Report, the informant (victim lady) has not filed any protest petition in the
Court. As the victim lady (informant) had filed complaint case i.e. I.C.C.
No.08 of 1991, during pendency of the investigation by the C.I.D., C.B.,
learned Magistrate tagged the same with G.R. Case No.377 of 1990, arising
out of Saintala P.S. Case No.125 of 1990 and after conducting enquiry under
Section 202 Cr.P.C., has taken cognizance of offences under Sections
341/506/376/34 I.P.C. against the present petitioners after a long lapse of
time.
21.
The legal position is well settled that when a prosecution at the initial
stage is asked to be quashed, the tests to be applied by the Court is as to
whether the uncontroverted allegations as made prima facie establish the
offence. Section 482 does not confer any new powers on the High Court. It
only saves the inherent power which the Court possessed before the
enactment of the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give effect to an order
under the Code (ii) to prevent abuse of the process of court, and (iii) to
otherwise secure the ends of justice. It is neither possible nor desirable to lay
down any inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure can provide for
all cases that may possibly arise. Courts therefore, have inherent powers
apart from express provisions of law which are necessary for proper
discharge of functions and duties imposed upon them by law. That is the
doctrine which finds expression in the section which merely recognizes and
preserves inherent powers of the High Courts. All courts, whether civil or
criminal possess, in the absence of any express provision, as inherent in
their constitution, all such powers as are necessary to do the right and to
undo a wrong in course of administration of justice on the principle “quando
lex aliauid alicui concedit, concedere videtur et id sine guo res ipsae esse
non potest” (when the law gives a person anything it gives him that without
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[S.C. PARIJA, J.]
which it cannot exist). While exercising powers under the section, the court
does not function as a court of appeal or revision. Inherent jurisdiction under
the section though wide has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito justitiae to do real
and substantial justice for the administration of which alone courts exist.
Authority of the court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the court has power
to prevent abuse. It would be an abuse of the process of court, to allow any
action which would result in injustice and prevent promotion of justice and in
exercise of such powers, court would be justified to quash any proceeding if
it finds that initiation/continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the report or the complaint, the
court may examine the question of fact. When a report or complaint is
sought to be quashed, it is permissible to look into the materials to assess
what the report has alleged and whether any offence is made out even if the
allegations are accepted in toto.
22.
The scope of exercise of power under Article 226 of the Constitution
and Section 482 of the Code and the categories of cases where the High
Court may exercise its power under it relating to cognizable offences to
prevent abuse of the process of any Court or otherwise to secure the ends of
justice were set out in some detail by the Supreme Court in State of
Harayana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604.
The Hon’ble Court made it clear that it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list to myriad kinds of cases
wherein such power should be exercised:
“(1)
Where the allegations made in the First Information Report or the
complaint, even if they are taken at their face value and accepted in
their entirety do not prima facie constitute any offence or make out a
case against the accused.
(2)
Where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation by police officers
under S. 156(1) of the Code except under an order of a Magistrate
within the purview of S. 155(2) of the Code.
(3)
Where the uncontroverted allegations made in the FIR or complaint
and the evidence collected in support of the same do not disclose
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the commission of any offence and make out a case against the
accused.
(4)
Where, the allegations in the F.I.R. do not constitute a cognizable
offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under S. 155(2) of the Code.
(5)
Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
(6)
Where there is an express legal bar engrafted in any of the provisions
of the Code or the concerned Act (under which a criminal proceeding
is instituted) to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the
aggrieved party.
(7)
Where a criminal proceeding is manifestly attended with mala fide
and/or where the proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
23.
In a earlier decision of this Court, in the case of Tribikram Misra v.
State of Orissa & another, 67 (1989) CLT 729, a Division Bench of this
Court, while dealing with the sustainability of the order of cognizance in
absence of prima-facie satisfaction, has held as follows :
“At the stage of cognizance, however, the court is not required to enter into
a detailed discussion of the merits or demerits of the case so as to find out if
the allegations and the charges are true or not. It is nevertheless desirable
for the court to see that innocent persons are not roped in so as to suffer the
rigour of a trial with the sword of Damocles hanging on his head, merely
because some of the witnesses make bald statements implicating him in
criminal offences. It is also settled law that the Magistrate taking cognizance
of offences should not act as an automation and believe and swallow what a
few witnesses state about a person having been involved in a criminal
offence, but has to apply his judicial mind and test the materials on record
with eagle eyes so as to discern the complicity or otherwise of the person
concerned. For this purpose, he is bound to give free play to his sense of
criticism. Unless this course is adopted at the initial stage of a criminal case,
it is very likely that innocent persons would be involved in criminal cases,
maybe falsely and without any basis. It is also to be borne in mind that
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[S.C. PARIJA, J.]
unless this salutary caution is exercised, crafty litigants will be encouraged
to implicate innocent persons or their rivals in criminal cases by setting up a
few band followers to speak against such persons.”
24.
In the case of Punjab National Bank v. Surendra Prasad Sinha,
AIR 1992 SC 1815, the Supreme Court has observed that judicial process
should not be an instrument of oppression or needless harassment. There
lies the responsibility and duty on the Magistrate to find out whether the
concerned accused should be legally responsible for the offence charged
for. Only on satisfying that the law casts liability or creates offence against
the accused persons impleaded then only process would be issued. At that
stage the Court would be circumspect and judicious in exercising discretion
and should take all the relevant facts and circumstances into consideration
before issuing process lest it would be an instrument in the hands of the
private complaint as vendetta to harass the persons needlessly. Vindication
of majesty of justice and maintenance of law and order in the society are the
prime objects of criminal justice but it would not be the means to wreak
personal vengeance.
25.
From the facts aforestated, it is seen that the husband of the
complainant-opposite party no.1 was arrested in connection with Saintala
P.S. Case No.107 dated 28.11.1990 for commission of offence under
Section 302 IPC. During pendency of the investigation in the said case, the
complainant lodged a written report before the Supdt. of Police, Balangir, on
31.12.1990, which was registered as Saintala P.S. Case No.125 of 1990,
alleging therein that the petitioners, who are police officers of Saintala Police
Station, came to her house in the evening hours on 28.11.1990 and forcibly
raped her. It was further alleged that on the same night she was called to
the Tikarpara Police Out-post and was again raped by the petitioners. She
also alleged in her said written report that on 12.12.1990, she was called to
the Tikarpara Police Out-post by the Circle Inspector, A.C.Mallik, who raped
her inside the said Police Out-post in the presence of the petitioners.
26.
As serious allegations of rape was made against the police officers of
Saintala Police Station, the investigation of the case was handed over to the
CID, Crime Branch. Without waiting for the completion of the investigation
by the Crime Branch, the complainant filed a written complaint before the
learned S.D.J.M., Titlagarh, on 08.2.1991, for the self-same alleged
incidence of rape against the petitioners and Circle Inspector, A.C.Mallik,
which was registered as 1.C.C.No.08 of 1991.
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27.
During the course of investigation by the Crime Branch into the
allegations of rape made against the present petitioners, the Investigating
Officer recorded the statement of the victim lady, her relatives and other
witnesses under Sections 161/164 Cr.P.C.
As no materials were
forthcoming in support the allegations made in the F.I.R. and the victim lady
did not agree for her medical examination and did not also produce her
wearing apparels for chemical examination and even declined to identify the
accused persons, the Investigating Officer submitted Final Report dated
18.6.1992 in the Court of the learned S.D.J.M., Titlagarh, as the allegations
made in the F.I.R. were found to be false, after obtaining necessary orders
from the Inspector General of Police, Crime Branch.
28.
It is further seen that though the complainant had filed the complaint
case, i.e. 1.C.C.No.08 of 1991, before the learned S.D.J.M., Titlagarh on
08.2.1991, her initial statement under Section 200 Cr.P.C. was recorded by
the learned Magistrate only on 27.7.2000. Subsequently, the evidence of
the complainant and two of her witnesses were recorded by the learned
Magistrate under Section 202 Cr.P.C. Considering the materials available
on record, learned magistrate vide order dated 06.8.2002 has proceeded to
take cognizance of the offences under Sections 376/342/506/34 IPC against
the present petitioners. Relevant findings of the learned Magistrate recorded
in the order of cognizance is extracted below:
“xx
xx
xx
Perused the materials on record. It appears that the accused
persons named in the complaint petition has committed rape on the
complainant on three occasions. The statement of the complainant and her
witness Muralidhar Mishra shows that besides the named accused persons,
rape was also committed by Giridhari Barik A.S.I. of police on the
complainant although his full name has not been mentioned in the complaint
petition. The material presented by the complainant clearly show his
complicity with the rape of the complainant. Besides the offence U/s.376/34
I.P.C., the material presented by the complainant also makes out prima
facie case for the offence punishable U/s.342/34, 506/34 I.P.C. against the
accused persons.
Taking into consideration the material available in the record, I am of
the opinion that there are sufficient ground to proceed against the accused
persons, Sarat Rath, M.Karuan, G.Barik for the offence U/s.376/34, 342/34
and 506/34 I.P.C. Similarly, I am of the opinion that there are sufficient
ground to proceed against the accused A.C.Mallik for the offence
U/s.376/342/506 I.P.C. As such cognizance is taken against the Sl.no.2 to
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[S.C. PARIJA, J.]
4, accused persons U/Ss.376/34, 342/34 and 506/34 I.P.C. and
U/S.376/342/506 I.P.C. against Sl.no.1 accused A.C.Mallik.”
29.
On a perusal of the impugned order of cognizance, it is seen that the
same is based solely on the statements of the complainant and two of her
witnesses, recorded under Section 202 Cr.P.C. almost 10 years after the
alleged occurrence. Moreover, learned Magistrate has not taken into
consideration the Final Report submitted by the Crime Branch and the
statement of witnesses recorded by it during investigation. Merely relying
upon the bald statements of the complainant and her two witnesses, learned
Magistrate has proceeded to take cognizance of the offences under Sections
376/342/506/34 IPC against the present petitioners. Moreover, all the
witnesses named in the complaint have not been examined before taking
cognizance and directing issue of process against the accused persons, as
has been prescribed under Section 202(2) Cr.P.C., especially when the
offence alleged is under Section 376 IPC, which is exclusively triable by the
Court of Sessions.
30.
All these goes to show that the learned Magistrate has acted in a
most casual and mechanical manner and has failed to apply his judicial mind
to the very nature and extent of the allegations made in the complaint and
exercise due caution and circumspection in examining the genuineness of
the same, before taking cognizance and issuing process against the present
petitioners.
31.
This appears to be a clear case of malafide and malicious criminal
proceeding initiated by the complainant against the present petitioners, who
are police officers of Saintala Police Station, with an ulterior motive to wreak
vengeance and vendetta on the accused persons, with a view to spite them
due to the arrest of her husband Agasti Tandi on the allegation of murder in
Saintala P.S. Case No.107 of 1990. Moreover, the wild allegations made in
the complaint are absurd, inherently improbable and entirely unbelievable
and in absence of any clear, cogent and credible prima facie evidence in
support of such allegations, I feel, the action of the learned Magistrate in
taking cognizance almost 12 years after the alleged occurrence and directing
issue of process has become an instrument of oppression in the hands of
the complainant as a vendetta to harass the present petitioners needlessly.
Therefore, allowing continuance of such a criminal proceeding would be an
abuse of the process of Court.
32.
Coming to the question regarding requirement of sanction for
prosecution under Section 197(1) Cr.P.C., it is now well settled that the
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protection given under Section 197 of the Code is to protect responsible
public servants against the institution of possibly vexatious criminal
proceedings for offences alleged to have been committed by them while they
are acting or purporting to act as public servants. The policy of the
legislature is to afford adequate protection to public servants to ensure that
they are not prosecuted for anything done by them in the discharge of their
official duties without reasonable cause, and if sanction is granted, to confer
on the Government, if they choose to exercise it, complete control of the
prosecution. This protection has certain limits and is available only when the
alleged act done by the public servant is reasonably connected with the
discharge of his official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted in excess of his duty,
but there is a reasonable connection between the act and the performance
of the official duty, the excess will not be a sufficient ground to deprive the
public servant from the protection. The question is not as to the nature of the
offence such as whether the alleged offence contained an element
necessarily dependent upon the offender being a public servant, but whether
it was committed by a public servant acting or purporting to act as such in
the discharge of his official capacity. Before Section 197 can be invoked, it
must be shown that the official concerned was accused of an offence alleged
to have been committed by him while acting or purporting to act in the
discharge of his official duties. It is not the duty which requires examination
so much as the act, because the official act can be performed both in the
discharge of the official duty as well as in dereliction of it. The act must fall
within the scope and range of the official duties of the public servant
concerned. It is the quality of the act which is important and the protection of
this section is available if the act falls within the scope and range of his
official duty.
33.
Section 197(1) of the Code reads as under:
“197.(1) When any person who is or was a Judge or Magistrate or
a public servant not removable from his office save by or with the
sanction of the Government is accused of any offence alleged to
have been committed by him while acting or purporting to act in the
discharge of his official duty, no Court shall take cognizance of such
offence except with the previous sanction–
(a)
in the case of person who is employed or, as the case may
be, was at the time of commission of the alleged offence employed,
in connection with the affairs of the Union, of the Central
Government:
371
[S.C. PARIJA, J.]
(b)
in the case of a person who is employed or, as the case may
be, was at the time of commission of the alleged offence employed,
in connection with the affairs of a State, of the State Government.”
xx
xx
xx
xx
34.
The section falls in the chapter dealing with conditions requisite for
initiation of proceedings. That is if the conditions mentioned are not made
out or are absent then no prosecution can be set in motion. For instance no
prosecution can be initiated in a Court of sessions under Section 193, as it
cannot take cognizance, as a court of original jurisdiction, of any offence
unless the case has been committed to it by a Magistrate or the Code
expressly provides for it. And the jurisdiction of a Magistrate to take
cognizance of any offence is provided by Section 190 of the Code, either on
receipt of a complaint, or upon a police report or upon information received
from any person other than police officer, or upon his knowledge that such
offence has been committed. So far public servants are concerned the
cognizance of any offence, by any court, is barred by Section 197 of the
Code unless sanction is obtained from the appropriate authority, if the
offence, alleged to have been committed, was in discharge of the official
duty. The section not only specifies the persons to whom the protection is
afforded but it also specifies the conditions and circumstances in which it
shall be available and the effect in law if the conditions are satisfied. The
mandatory character of the protection afforded to a public servant is brought
out by the expression, ‘no court shall take cognizance of such offence except
with the previous sanction. Use of the words, ‘no’ and ‘shall’ make it
abundantly clear that the bar on the exercise of power by the court to take
cognizance of any offence is absolute and complete. Very cognizance is
barred. That is the complaint, cannot be taken notice of. According to Black’s
Law Dictionary the word ‘cognizance means ‘jurisdiction’ or ‘the exercise of
jurisdiction or ‘power to try and determine causes.’ In common parlance it
means ‘taking notice of. A court, therefore, is precluded from entertaining a
complaint or taking notice of it or exercising jurisdiction if it is in respect of a
public servant who is accused of an offence alleged to have committed
during discharge of his official duty.
35.
In P. K. Pradhan v. State of Sikkim, AIR 2001 SC 2547, the
Supreme Court has, inter alia, held as follows:
“The legislative mandate engrafted in sub-section (1) of Section 197
debarring a court from taking cognizance of concerned in a case where the
acts complained of are alleged to have been committed by a public servant
372
[2014]
in discharge of his official duty or purported to be in the discharge of his
official duty and such public servant is not removable from office save by or
with the sanction of the Government, touches the jurisdiction of the court
itself. It is prohibition imposed by the Statute from taking cognizance.
Different tests have been laid down in decided cases to ascertain the scope
and meaning of the relevant words occurring in Section 197 of the Code:
“any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty”. The offence alleged to
have been committed must have something to do, or must be related in
some manner, with the discharge of official duty. No question of sanction
can arise under Section 197, unless the act complained of is an offence: the
only point for determination is whether it was committed in the discharge of
official duty. There must be a reasonable connection between the act and
the official duty. It does not matter even if the act exceeds what is strictly
necessary for the discharge of the duty, as this question will arise only at a
later stage when the trial proceeds on the merits. What a court has to find
out is whether the act and the official duty are so interrelated that one can
postulate reasonably that it was done by the accused in the performance of
official duty, though, possibly in excess of the needs and requirements of
the situation.”
36.
In S. K. Zutshi and another v. Bimal Debnath and another, AIR
2004 SC 4174, while considering to what extent an act or omission
performed by a public servant in discharge of his official duty can be deemed
to be official, the Supreme Court observed:
“Use of the expression, ‘official duty’ implies that the act or omission
must have been done by the public servant in the course of his service and
that it should have been in discharge of his duty. The Section does not
extend its protective cover to every act or omission done by a public servant
in service but restricts its scope of operation to only those acts or omission
which are done by a public servant in discharge of official duty.
It has been widened further by extending protection to even those
acts or omissions which are done in purported exercise of official duty. That
is under the colour of office. Official duty therefore implies that the act or
omission must have been done by the public servant in course of his service
and such act or omission must have been performed as part of duty which
further must have been official in nature. The Section has, thus, to be
construed strictly, while determining its applicability to any act or omission in
course of service. Its operation has to be limited to those duties which are
discharged in course of duty. But once any act or omission has been found
to have been committed by a public servant in discharge of his duty then it
373
[S.C. PARIJA, J.]
must be given liberal and wide construction so far its official nature is
concerned. For instance a public servant is not entitled to indulge in criminal
activities. To that extent the Section has to be construed narrowly and in a
restricted manner. But once it is established that act or omission was done
by the public servant while discharging his duty then the scope of its being
official should be construed so as to advance the objective of the Section in
favour of the public servant. Otherwise the entire purpose of affording
protection to a public servant without sanction shall stand frustrated.”
37.
In Rakesh Kumar Mishra v. State of Bihar & Others, AIR 2006 SC
820, Supreme Court while reiterating the object behind enacting Section 197
of the Code and also the prerequisites for application thereof, held as
follows:
“The protection given under Section 197 is to protect responsible
public servants against the institution of possibly vexatious criminal
proceedings for offences alleged to have been committed by them while
they are acting or purporting to act as public servants. The policy of the
legislature is to afford adequate protection to public servants to ensure that
they are not prosecuted for anything done by them in the discharge of their
official duties without reasonable cause, and if sanction is granted, to confer
on the Government, if it chooses to exercise it, complete control of the
prosecution. This protection has certain limits and is available only when the
alleged act done by the public servant is reasonably connected with the
discharge of his official duty and is not merely a cloak for doing the
objectionable act. If in doing his official duty, he acted in excess of his duty,
but there is a reasonable connection between the act and the performance
of the official duty, the excess will not be a sufficient ground to deprive the
public servant from the protection. The question is not as to the nature of the
offence such as whether the alleged offence contained an element
necessarily dependent upon the offender being a public servant, but
whether it was committed by a public servant acting or purporting to act as
such in the discharge of his official capacity. Before Section 197 can be
invoked, it must be shown that the official concerned was accused of an
offence alleged to have been committed by him while acting or purporting to
act in the discharge of his official duties. It is not the duty which requires
examination so much as the act, because the official act can be performed
both in the discharge of the official duty as well as in dereliction of it. The act
must fall within the scope and range of the official duties of the public
servant concerned. It is the quality of the act which is important and the
protection of this section is available if the act falls within the scope and
range of his official duty. There cannot be any universal rule to determine
374
[2014]
whether there is a reasonable connection between the act done and the
official duty, nor is it possible to lay down any such rule. One safe and sure
test in this regard would be to consider if the omission or neglect on the part
of the public servant to commit the act complained of could have made him
answerable for a charge of dereliction of his official duty : if the answer to
this question is in the affirmative, it may be said that such act was
committed by the public servant while acting in the discharge of his official
duty and there was every connection with the act complained of and the
official duty of the public servant This aspect makes it clear that the concept
of Section 197 does not get immediately attracted on institution of the
complaint case.”
38.
In the present case, learned Magistrate while dealing with the
question regarding requirement of prior sanction for prosecuting the present
petitioners, as required under Section 197(1) Cr.P.C., has come to the
following findings:
“As because the alleged offences committed by the accused persons
do not come under the performance of their official duty, so no
sanction is necessary U/S.197 Cr.P.C. Since the alleged offences
are warrant cases, issue N.B.W.(A) against the accused persons for
their production fixing the case to 5.9.2002.”
39.
In the case at hand, as the acts complained of are alleged to have
been committed by the present petitioners as public servants in discharge of
their official duty, while investigating into Saintala P.S. Case No.107 of 1990
or in dereliction of the same, the protection envisaged under Section 197(1)
Cr.P.C. is attracted. I am therefore of the considered view that the
petitioners, who are police officers of the State and are not removable from
their office save by or with the sanction of the Government, cannot be
prosecuted without previous sanction of the State Government.
40.
For the reasons as aforestated, the criminal proceeding initiated
against the present petitioners in 1CC No.08 of 1991, pending in the Court of
Learned S.D.J.M., Titilagarh, and the order of cognizance passed therein are
hereby quashed. CRLMC is accordingly allowed.
Application allowed.
375
2014 (II) ILR - CUT- 375
B. K. PATEL, J.
W.P.(C) NO.3322 OF 2012
SANTOSH KU. ROUTRAY (DEAD)
AFTER HIMPRASANA KU.
ROUTRAY & ORS.
……..Petitioners
.Vrs.
……..Opp.Parties
REGISTRATION ACT, 1908 - S. 22 (A)
Refusal to register sale deed – Original writ petitioner was all
through in possession of the case land, proportionate to his share – In
view of adoption of Urban Land (Ceiling & Regulation) Act, 1999 by the
State Government, all proceedings under the 1976 Act stands abated
and the case land stands vested in the original writ petitioner - Held,
order passed by O.P.3 refusing registration of sale deed is not
sustainable – Direction issued to the O.P.3-Sub-Registrar, Cuttack to
effect registration of the sale deed forth with.
(Para 9)
: (The Direct Recruit Class-II Engineering Officers
Association & Ors.-V- State of Maharashtra & Ors.)
2.2.2007 (II) OLR-713 : (Manmohan Lal -V- State of Orissa & Ors.).
3.AIR 1992 SC 711
: (Union of India & Ors.-V- Kamlakshi Finance
Corpn. Ltd.)
4.AIR 1961 SC 182
: (Bhopal Sugar Industries Ltd.-V- Income-tax
Officer, Bhopal).
For Petitioners - M/s. Sourya Sundar Das, Sr. Advocate,
Miss. K. Behera, S. Modi, P.K. Ghosh,
S. S. Pradhan & K. Pradhan.
For Opp.Parties Addl. Govt. Advocate.
JUDGMENT
376
[2014]
B.K. PATEL, J.
In this writ petition, prayer has been made to quash the order under
Annexure-5 passed by the opposite party no.3-District Sub-Registrar,Cuttack
refusing to register sale-deed under Annexure-4, and to direct the opposite
party no.3 to admit the sale-deed under Annexure-4 for registration.
2.
Upon death of original writ petitioner late Santosh Kumar Routray,
his legal heirs have been substituted as the writ petitioners.
3.
Facts in brief, for the purpose of adjudication of this writ petition, are
as follows:
Case land, corresponding to a part of Sabik Plot No.495 of mouza
Gandarpur, was the undivided joint family property belonging to the joint
family headed by late Gajendra Prasad Routray, father of late Santosh
Kumar Routray and Sangram Keshari Routray. During the life time of late
Gajendra Routray late Santosh Kumar Routray filed partition suit bearing
Title Suit No.37 of 1982 in the Court of learned Sub-Judge, Cuttack
impleading his father late Gajendra Routray, mother late Susama Devi and
brother Sangram Keshari Routray as defendants. By judgment and
preliminary decree dated 28.1.1987 at Annexure-3 Title Suit No.37 of 1982
was decreed in part holding late Santosh Kumar Routray to be entitled to
1/4th share in the joint family property including case land under Sabik Plot
No.495. In the meanwhile, Urban Land (Ceiling & Regulation) Act, 1976 ( for
short, ‘the Act’) had come into force. No notice was served on late Santosh
Kumar Routray by the competent authority for filing statement/return as
provided under Section 6 of the Act. However, on the basis of returns filed
by Sangram Keshari Routray and late Sushama Devi, U.L.C.Case No.142 of
1976 and U.L.C.Case No.143 of 1976 respectively were registered. Orders
passed by the competent authority under the Act in U.L.C.Case No.142 of
1976 and U.L.C.Case No.143 of 1976 were challenged by Sangram Keshari
Routray and Sushama Devi in U.L.C. Appeal Nos.110 and 111 of 1984
which were dismissed by common order dated 18.4.1987. Thereafter,
notification dated 23.3.1994 containing declaration under section 10(3) of the
Act, copy of which is Annexure-A/2 to the counter-affidavit was issued by the
competent authority. The Urban Land (Ceiling and Regulation) Repeal
Act,1999 came into force with effect from 22.3.1999 and was adopted by the
State Government with effect from 5.4.2002.Late Santosh Kumar Routray
filed W.P.(C) No.10011 of 2004 before this Court with a prayer to quash the
orders passed by the competent authority in U.L.C.Case No.142 of 1976 and
U.L.C.Case No.143 of 1976, common order passed by the appellate
authority in U.L.C. Appeal Case Nos. 110 and 111 of 1984 as well as the
377
SANTOSH KU. ROUTRAY-V- STATE
[B.K. PATEL, J.]
notification under Annexure-A/2. Order dated 21.5.2005 passed by this
Court disposing of W.P.(C) No.10011 of 2004 reads as follows:
“The entire case is covered by our judgment dated 5th of September,
2007 passed in W.P.(C) No.998 of 2006 (Manmohan Lal -v- State of
Orissa and others) reported in 2007(II) OLR 713 in which this Court
has held as follows:
“4. Abatement of legal proceedings-All proceedings relating to any
order made or purported to be made under the principal Act pending
immediately before the commencement of this Act, before any Court,
tribunal or other authority shall abate:
Provided that this section shall not apply to the proceedings
relating to Sections 11,12,13 and 14 of the principal Act in so far as
such proceedings are relatable to the land, possession of which has
been taken over by the State Government or any person duly
authorized by the State Government in this behalf or by the
competent authority.
The aforesaid Act ( i.e. Urban Land (Ceiling and Regulation)
Repeal Act,1999 was adopted by the State Government as
mentioned above, with effect from 5.4.2002. In the said resolution
by the State Government adopting the aforesaid Act of 1999, it was
declared that no compensation should be paid for land, possession
of which has not been taken over by the State Government after
vesting under Section 10(3) of the U.L.C. Act and the legal
processes initiated under the said Act will also be closed.”
Therefore, this writ petition is also disposed of in terms of the said
order and it is directed that as the urban land ceiling stands abated
and the land in question stands vested in the petitioner, the opposite
parties are directed to act accordingly.
xxx
xxx
xxx.”
4.
In the backdrop of the above narrated facts late Santosh Kumar
Routray through his Power of Attorney Holder the substituted writ petitioner
No.1(a) Prasanna Kumar Routray executed sale-deed under Annexure-4
and presented it for registration before opposite party no.3-District SubRegistrar,Cuttack upon which opposite party no.3-District SubRegistrar,Cuttack, in purported exercise of the jurisdiction under section
22(A) of the Registration Act,1908 passed the impugned order at Annexure5 which reads as follows:
378
“
[2014]
DISTRICT REGISTRATION OFFICE, CUTTACK
No.
Date
The transaction of Sabak Plot No.495 of Sabak Mouza
Gandarpur has been acquired and vested in Govt. Revenue(D.M.)
Dept. U/s 10(3) of the Urban Land Ceiling & Registration Act,1976
communicated to his office vide Letter No.1086 dt.31.3.2002 by
Competent Authority Urban Land Ceiling Collectorate,Cuttack.
Hence the document presented for Regn. is denied as it
affects Sec-22(A) of Indian Registration Act.
Sd/District Sub-Registrar,Cuttack
Memo No.53 Dt.06.01.2012
Copy to Sri Prasanna Kumar Routray, At-Susama Bhawan
Building, P.O.College Square,Dist.Cuttack for information.
Sd/District Sub-Registrar,Cuttack”
5.
Petitioners’ case is that the original writ petitioner was all through in
possession of the land proportionate to his share exclusively subject to final
allotment to be made in the final decree proceeding. The order passed by
this Court in W.P.(C) No.10011 of 2004 has become conclusive and binding
having reached its finality between the parties. A copy of the order passed
by this Court was placed before the opposite party no.3-District SubRegistrar,Cuttack in order to convince that the case land has already vested
with the petitioner. It is averred that any order/letter communicated by any
authority to the District Sub-Registrar intimating that the case land being
ceiling surplus land has vested in the State lacks legal authority or
competency to supersede and transgress the order passed by this Court.
However, opposite party no.3 illegally passed the order in purported
exercise of power under section 22(A) of the Registration Act,1908,
adverting to the notification under Annexure-A/2 containing declaration
under section 10(3) of the Act to the effect that land including the case land
shall be deemed to have been acquired by and to have vested absolutely in
the State Government.
379
[B.K. PATEL, J.]
6.
Counter affidavit has been filed on behalf of opposite party no. 1
being authorized by opposite party no.2 also. In resisting the petitioner’s
claim it has been averred in the counter affidavit that orders dated
28.12.1983 were passed by competent authority under the Act declaring the
surplus land, including the case land held by late Susama Devi and
Sangram Keshari Routray on the basis of returns filed by them in U.L.C.
Case Nos. 142 of 1976 and 143 of 1976 which orders were confirmed by
common order passed by Member Board of Revenue in U.L.C. Appeal Nos.
110 and 111 of 1984. The petitioner preferred W.P.(C)No. 10011 of 2004
after lapse of 17 years which was disposed of by order dated 21.5.2009 with
a direction that urban land ceiling stands abated and the case land stands
vested in the petitioner. The only stand on the basis of which opposite
parties appear to defend order under Annexure-5 passed by the District
Sub-Registrar, occurring at paragraph-9 of the counter affidavit, reads as
follows:
“It is pertinent to mention here that instead of the land in question
stands vested in the Government wrongly it has been mentioned that
the land in question stands vested in the petitioner. After the said
fact came to the notice of the present depondent steps has been
taken for modifiction of the order dated 21.5.2009 passed by this
Hon’ble Court in W.P.(C) No. 10011 of 2004.”
According to the opposite parties, after declaration of surplus land
held by the returnee, in accordance with orders passed in U.L.C. Case Nos.
142 of 1976 and 143 of 1976, and U.L.C. Appeal Nos. 110 and 111 of 1984,
notification dated 23.3.1994 under Section 10 (3) of the Act at Annexure-A/2
to the counter-affidavit was issued upon which the case land vested
absolutely in the State. Possession of the case land was taken over by the
Tahasildar,Sadar, Cuttack and reported to the competent officer by letter
dated 8.3.1993 at Annexure-B/2. A land schedule containing description of
lands, including the case land, possession of which were taken over was
communicated by the competent authority under the Act to opposite party
no. 3-District Sub-Registrar, Cuttack under Memo No. 1088 dated 31.5.2002
at Annexure-C/2. In such circumstances, opposite party no. 3 has rightly
refused to register sale-deed at Annexure-4 in exercise of power under
Section 22-A of the Registration Act.
7.
Sri S.S. Das, learned Senior Advocate appearing for the petitioners
contended that opposite parties have failed to show that there was any
notification with regard to the case land in terms of Section 22-A of the
Registration Act indicating prohibition of registration of sale-deed under
380
[2014]
Annexure-4 to be opposed to public policy. It was vehemently contended
that refusal on the part of opposite party no. 3-District Sub-Registrar,
Cuttack to effect registration of sale-deed at Annexure-4, on the face of the
unambiguous direction made by this Court in W.P.(C) No. 10011 of 2004 to
the effect that case land vested in the petitioner is contemptuous and
contrary to settled principles of judicial discipline. Opposite party no. 3
having acted contrary to order passed by this Court, direction in the nature
of writ of mandamus is required to be issued for effecting registration of
sale-deed. It was also contented that order in W.P.(C) No. 10011 of 2004
was passed on contest upon consideration of pleadings made in the writ
petition as well as counter-affidavits filed by opposite party nos. 1Commissioner-Cum-Secretary, Housing & Urban Development Department
and opposite party no. 2-Special Officer & Competent Authority under the
Act, and placing reliance on an earlier decision of this Court. In passing
order in W.P.(C) No. 10011 of 2004, this Court has upheld the claim of the
petitioner to be in physical possession of the case land. The opposite parties
being aware of the legal position have taken an untenable plea that this
Court wrongly mentioned that the case land stands vested in the petitioner
instead of mentioning that it vested in the Government, and have vaguely
averred that step has been taken for modification of the order passed in
W.P.(C) No. 10011 of 2004 without indicating with regard to nature of steps
stated to have been taken. It was argued that so long as order passed in
W.P.(C) No. 10011 of 2004 has not been stayed, modified, altered or
rescinded, registration of sale-deed at Annexure-4 cannot be refused on the
pretext that wrongly in the order passed by this Court it has been mentioned
that the case land vested in the petitioner.
Learned counsel for the petitioner placed reliance on the decision of
the Hon’ble Supreme Court in The Direct Recruit Class-II Enginerring
Officers Association and others vs. State of Maharashtra and
others:AIR 1990 Supreme Court 1607 to urge that order passed by High
Court in a writ petition under Article 226 of the Constitution will operate as
bar against subsequent petition even in the Supreme Court under Article 32
of the Constitution in view of the principle of res judicata. It was argued that
so long as earlier order of this Court in W.P.(C) No. 10011 of 2004 remains
in force, it is not permissible to urge that there is any error in the order. Sri
S.S.Das, learned Senior Advocate also brought to the notice of this Court
decision in Manmohan Lal vs. State of Orissa and others: 2007 (II) OLR713, on which reliance was placed by this Court in passing order in W.P.(C)
No. 10011 of 2004, to urge that the order passed by this Court in W.P.(C)
No. 10011 of 2004 is based on the finding that in spite of notification at
Annexure-A/2 purported to have been is sued under Section 10 (3) of the
381
[B.K. PATEL, J.]
Act, letter of Tahasildar, Sadar, Cuttack at Annexure-B/2 regarding taking
over possession and Memo No. 1088 dated 31.5.2002 at Annexure-C/2 of
the competent authority under the Act to opposite party no. 3-District SubRegistrar, Cuttack containing list of surplus lands including case land, the
original writ petitioner was all along in possession over the case land. Sri
S.S. Das learned Senior Advocate also placed reliance on decision in Union
of India and others vs. Kamlakshi Finance Corporation Ltd.: AIR 1992
Supreme Court 711 wherein it has been laid down that principles of judicial
discipline require that the orders of the higher authorities should be followed
unreservedly by the subordinate authorities. Placing reliance on ratio of the
decision in Bhopal Sugar Industries Ltd. vs. Income-tax Officer, Bhopal:
AIR 1961 Supreme Court 182 it was argued that refusal on the part of
opposite party no. 3 to register the sale-deed amounts to refusal to carry out
the order of this Court in W.P.(C) No. 10011 of 2004, and therefore, a writ is
required to be issued to opposite party no. 3 for effecting registration of saledeed.
8.
In reply, learned counsel for the State appearing for opposite parties
submitted that notification at Annexure-A/2 and letters at Annexures B/2 and
C/2 clearly go to show that possession over the case land was taken over
by the State consequent upon orders passed in U.L.C. Case Nos. 142 of
1976 and 143 of 1976. In such circumstances, the provision of abatement
under the Urban Land (Ceiling and Regulation) Repeal Act, 1999 shall not
apply in view of proviso to Section 4 of the said Act. In W.P.(C) No. 10011
of 2004, therefore, it has been erroneously observed that the case land
stands vested in the petitioner. It was submitted that the opposite parties
have taken steps to get the order reviewed and modified. However, no
particular of such review or modification petition was brought to the notice of
the Court in course of hearing. It was also not disputed that order passed by
this Court in W.P.(C) No. 10011 of 2004 has not been stayed, modified,
altered or rescinded so far.
9.
The only question that arises for determination in the case is as to
whether opposite party no. 3-District Sub-Registrar, Cuttack was justified in
refusing registration of sale-deed at Annexure-4 on the ground that case
land had been acquired and vested in the State under Section 10 (3) of the
Act communicated to the office of the District Sub-Registrar by Memo at
Annexure-C/2 on the face of order passed by this Court in W.P.(C) No.
10011 of 2004. The opposite parties have made an attempt to adopt the
stand that as possession of the case land had been taken over by the State
as communicated by the Tahasildar by letter at Annexure-B/2 consequent
upon notification dated 23.3.1994 by the competent authority at Annexure-
382
[2014]
A/2, provision for abatement under the Urban Land (Ceiling and Regulation)
Repeal Act, 1999 is not applicable to the case land. However, it appears
from the writ petition in W.P.(C) No. 10011 of 2004 that original writ
petitioner late Santosh Kumar Routray had categorically made his claim to
be in possession over the case land all through. It was pleaded at
paragraphs-14 and 17 of the writ petition as follows:
“14. That, the petitioner has been all through in possession of
the aforesaid plots proportionate to his share exclusively subject to
the final allotment to be made in the final decree proceeding.
Surrender of any land purported to be in excess of the ceiling limit
under section 9 of the Act by the competent authority under the said
Act can not affect the right, title and interest of the petitioner ignoring
the decree passed by the Civil Court in Annexure-2.”
“17. That, the opposite parties 1 and 2 claim to have taken
possession of the surrendered plots by a Notification dt.23.3.1994
published in the Extra-ordinary Orissa Gazette dt.29.3.1994, but the
petitioner still continues to be in possession as before. The writ
petitioner further submits that if possession is found to have been
taken by opposite parties 1 and 2, the same is symbolical
possession as distinguished from actual physical possession.”
In their counter affidavits, opposite party nos. 1 and 2 controverted
petitioner’s claim to be in possession and averred that possession of the
case land had been taken over by the Tahasildar as communicated by letter
at Annexure-B/2. Order dated 21.5.2009 was passed in W.P.(C) No. 10011
of 2004 by the Division Bench on contest holding that proceedings under
Urban Land Ceiling Act in respect of case land stands abated and the case
land stands vested in the petitioner. Thereby, the claim of the original writ
petitioner to be in possession of the case land has been judicially upheld. In
such circumstances, at present, there is no scope for the opposite parties to
urge that possession of the case land had been taken over on behalf of the
State. On the contrary, in unequivocal and unambiguous term, this Court
having declared the case land to have vested in the petitioners’
predecessor-in-interest, the original writ petitioner, the order passed by
opposite party no.3-Sub-Registrar, Cuttack refusing registration of the case
is unsustainable being contemptuous and contrary to the order of this Court.
In view of the above, the writ petition is allowed. Order passed by
opposite party no. 3-Sub-Registrar, Cuttack under Annexure-5 is quashed.
Opposite party no.3-Sub-Registrar, Cuttack is directed to effect registration
383
[B.K. PATEL, J.]
of sale-deed under Annexure-4 forthwith not later than two weeks from
today.
2014 (II) ILR - CUT- 383
B. K. NAYAK, J.
W.P.(C) NO.18392 OF 2013
UMESH CHANDRA MISHRA & ORS.
……..Petitioners
.Vrs.
MAYADHAR LENKA & ORS.
ODISHA HINDU RELIGIOUS ENDOWMENTS ACT, 1951 - S. 27
Appointment of non-hereditary trust board – Statutory
requirement U/s. 27 (1) of the Act – Asst. Commissioner Endowments
to enquire and record with reasons about his satisfaction that there is
no-hereditary trustee in respect of the institution in question before
publication of notice inviting objections from public and before
sending letter to the Government for approval of the proposal for
appointment of non-hereditary trust board.
In the present case there is no mention in the report submitted
by the Addl. Asst. Commissioner of Endowments about any enquiry
conducted by him or any reason as to his satisfaction that the
institution in question has no hereditary trustee – Although notice was
published thereafter as required U/s. 27 (1) of the Act, the letter sent to
the Government for approval of the proposal for appointment of nonhereditary trust board, does not indicate that the institution in question
has no hereditary trustee and the Government has mechanically
approved the proposal without looking into the statutory requirement
that there was no hereditary trustee in respect of the Deities in
question – Held, the impugned order passed by the Addl. Asst.
Commissioner Endowments is quashed – The matter is remitted back
384
[2014]
to him who shall fix a date for a preliminary enquiry and issue notice to
the petitioner to take part in such enquiry if they so like and thereafter
pass appropriate order with regard to his prima facie satisfaction about
existence/non-existence of “hereditary trustee” in respect of the
institution within the meaning of the Act and thereafter proceed in
accordance with law.
(Paras 12 & 13)
Case laws Referred to:1. 1992 (II) OLR 330 (FB) : (Khetramohan Rout & Ors.-V- Sri Sri Nageswar
Mahadev & Ors.)
2. AIR 1979 Orissa 169
: (Rajkishore-V- Commissioner of Endowments)
3. 81 (1996) CLT 477 (FB) : (Dhadi Parida (and after him) Sundari Parida &
Ors.-V- Commissioner of Consolidation, Orissa
& Ors.)
4. 2014 (I) CRL 903
: (Shyamsundar Sahoo & Ors.-V- State of
Odisha & Ors.).
For Petitioners - M/s. A.K. Mohapatra, A. K. Dash, B.Panda, S.S.
Mohapatra,S.K. Barik, T. Dash & S.P. Mangaraj
For Opp.Parties - M/s. S.Pr. Das-A, A.K. Nath.
M/s. G.K. Mohanty, P.K. Panda, D. Misra, N.A. Khan
M/s. S. Mohapatra, J. Sahu & K. Raj (Intervenor)
M/s. D. Tripathy & T. Kumar.
Mr. B. R. Sahu (Intervenor)
Mr. Pravat Ku. Dash.
Date of hearing : 12. 05. 2014
Date of judgment : 24 .06.2014
JUDGMENT
B.K.NAYAK, J.
Order dated 09.07.2013 passed by the Additional Assistant
Commissioner of Endowments, Cuttack constituting non-hereditary trust
board in respect of Sri Geleswar Mahadev & Sri Geleswari Thakurani Bije,
Gelpur, Bhadrak under Annexure-8 and order dated 08.07.2013 passed by
the Commissioner of Endowments, Orissa, Bhubaneswar under Annexure-9
approving the resolution dated 25.04.2013 of the interim trust board with
regard to election of interim managing trustee, have been challenged in the
present writ petition.
385
UMESH CHANDRA MISHRA -V- M. LENKA
[B.K.NAYAK, J]
It is the case of the petitioners that Sri Geleswar Mahadev & Sri Geleswari
Thakurani are the family deities of the petitioners’ family and the petitioners
are the hereditary truestees. The deities were established by the forefathers
of the petitioners on their private land since time immemorial. One Harihar
Mishra is the common ancestor of the present petitioners. Admittedly in 1928
settlement R.O.R. all the properties were recorded in the name of the deities
as per Annexures-1 and 2 series under the marfatdarship of Harihar Mishra.
It is stated that at the instance of some of the villagers, who were inimically
disposed towards petitioners’ family, the Divisional Inspector of
Endowments, Baripada submitted a false report dated 11.03.2012
suggesting for constitution of non-hereditary trust board under Section 27 of
Orissa Hindu Religious Endowments Act and until such constitution, interim
trust board under Section 7 of the Act be appointed. The Endowment
Authorities without making any enquiry have passed order for constitution of
interim trust board as well as regular non-hereditary trust board under
Section 27 of the Orissa Hindu Religious Endowments Act with the arbitrary
approval of the Government and without issuing any notice to the majority of
the family members of the petitioners except one or two, who have joined
hands with inimical persons, even though the deities in question are the
private deities of the petitioners’ family and the petitioners are the hereditary
trustees. It is stated that the notices issued by the Additional Assistant
Commissioner of Endowments on 28.06.2012 (Annexure-16) were not
served on the petitioners and elder members of the family of the petitioners
except one or two members of the petitioners’ family.
3.
A counter affidavit has been filed jointly by opposite party nos.1 to 9
contending that the deities in question are not the private deities of the
petitioners’ family nor the petitioners are the hereditary trustees. It is further
stated that the temple of the deities was established some time in 1925 by
the then Zamindar-Rama Krushna Bose and after him Sushila Bala Dasi
donated huge extent of land in favour of the deities for daily seva puja and
brought the family of late Harihar Mishra to Gelpur for performing seva puja
of the deities. It is stated that the deities are the public deities and the
properties are under public endowments. It is also stated that the petitioners,
who were merely to perform the seva puja of the deities, have managed to
get their names recorded as marfatdars of the deities by deleting the names
of the villagers and they have also mismanaged the deities’ properties by
getting them partitioned and have sold away some lands. The matter was
reported to the Endowment Authorities and the Divisional Inspector of
Endowments, Baripada conducted preliminary enquiry and being satisfied
about mismanagement by petitioners, suggested for appointment of trust
board. It I s also stated that Additional Assistant Commissioner of
386
[2014]
Endowments served notice as required under law and such notice was
served on the elder members of the petitioners’ family. Therefore, the
constitution of non-hereditary trust board by the Endowment Authorities is
legal and justified.
4.
A counter affidavit has been filed by opposite party no.11, the ward
member of village-Gelpur, wherein it has been stated that the deities in
question are public deities and were established by the then Zamindar-Ram
Krushna Bose and after him, Zamindar-Sushila Bala Debi had donated huge
cultivable lands to the deities and the temple was being managed by the
local Zamindar. At that time late Harihar Mishra was brought from villageLunia to do seva puja of the deities. After Harihar Mishra, his successors
continued with the seva puja of the deities, but the petitioners did not take
proper care of the temple and the deities and on the contrary, sold away the
deities property without any legal necessity, used the temple premises as
their crematorium and have raised Samadhis, as a result of which, opposite
party no.10 along with other villagers and the Sarpanch filed representation
before the Endowment Authorities to constitute appropriate trust board for
the management of the deities and the temple. The petitioners have also
been able to manipulate the record of rights of the properties and to delete
the name of the villagers from ROR being in connivance with the settlement
authorities.
5.
It was contended by the learned counsel for the petitioners that no
enquiry was conducted at all by the learned Additional Assistant
Commissioner of Endowments before sending the proposal to the State
Government for appointment of non-hereditary trust board, for his
satisfaction that there was no-hereditary trustee in respect of the institution in
question and that there was no material before him to reach such prima facie
satisfaction. It was also submitted that the State Government has also
mechanically approved the proposal of the Additional Assistant
Commissioner of Endowments, even though the Additional Assistant
Commissioner of Endowments was not prima facie satisfied that there was
no-hereditary trustee in respect of the institution.
Mr. Nath, learned counsel appearing for Endowment Authorities
submitted that Additional Assistant Commissioner of Endowments, Cuttack
has recorded in his file that on enquiry he was satisfied that there was no
hereditary trustee.
6.
In order to decide the lis, it is necessary to see the provision of
Section 27 of the OHRE Act,1951 as amended in 2003, which is extracted
hereunder:
387
[B.K.NAYAK, J]
“27. Non-hereditary trustees, their number and appointment-(1)
The Assistant Commissioner shall, in cases where there is no
hereditary trustee, [with the prior approval of the State Government]
appoint non-hereditary trustee in respect of each religious institution
other than maths and specific endowments attached thereto and in
making such appointments, the Assistant Commissioner shall have
due regard to the claims of persons belonging to the religious
denomination for whose benefit the said institution is chiefly
maintained.
[Provided that the Assistant Commissioner shall, before
sending any proposal to the State Government for such prior
approval, publish a notice in the Notice Board of the concerned
religious institution and intimate the general public of the locality by
beat of drum, inviting suggestions and objections on the proposal
from all persons affected, to be made within a period of thirty days
from the date of such publication, and forward to the State
Government the suggestions and objections, if any, received, along
with such proposal.
(1-a) On receipt of a proposal made under Sub-section (1) for
the appointment of a Non-hereditary Trustee, the State Government
may either accord the required approval or reject or modify the
proposal of the Assistant Commissioner as it may deem fit in the
interest of the persons belonging to the religious denomination for
whose benefit, the concerned religious institution is chiefly
maintained.]
[(2) A non-hereditary trustee shall, unless he is sooner removed or
dismissed or otherwise ceases to be a trustee, hold office for a
period of two years form the date of his appointment.
Provided that the Assistant Commissioner may, for sufficient reasons
to be recorded by him, from time to time, extend the aforesaid term
of a trustee, so, however, that the total extension so granted shall in
no case exceed six months in the aggregate.
(3) Every non-hereditary trustee holding office immediately prior to
the date of commencement of the Orissa Hindu Religious
Endowments (Amendment) Act,1978 shall cease to hold office as
such on the completion of a period of two years from the date of this
appointment or on the expiration of three months from the date of
commencement of the said Act, whichever is later.]”
388
[2014]
7.
The scope of Section 27 in the context of initiating and sending
proposal to the Government for appointment of non-hereditary trustee by the
Additional Assistant Commissioner of Endowments, it would be apposite to
refer to the full Bench decision of this Court in the case of Khetramohan
Rout & others v. Sri Sri Nageswar Mahadev and others : 1992 (II) OLR
330 (FB), where it has been held as follows :
“20. …. The absence of a hereditary trustee being a condition
precedent for exercise of the power under Section 27 of the Act, the
Assistant Commissioner shall have to record, while exercising this
power, as to why he is of the opinion that there is no hereditary
trustee of the religious institution. This satisfaction may be arrived at
on the basis of materials placed before the Assistant Commissioner
for which purpose, he may go in for a summary inquiry only, as
indicated in paragraph-27 of Bantala’s case by the Supreme Court.
This may be because of the fact that while exercising power under
Section 27 of the Act, the Assistant Commissioner does not perform
a quashi-judicial function; his action under this section may strictly
speaking, be regarded as an administrative act, as opined in
Rajkishore v. Commissioner of Endowments, AIR 1979 Orissa,
169, to which our attention is invited by Sri Naidu.”
8.
The Full Bench in the aforesaid case was considering the question
whether the Assistant Commissioner of Endowments can appoint nonhereditary trustee in respect of the religious institution other than ‘Math’ in
exercise of power under Section 27 of the OHRE Act,1951 without prior
determination of the fact if there is a hereditary trustee or not in a disputed
case visualized by Section 41 of the said Act, after the act was amended by
inserting Section 8-B. In view of insertion of Section 8-B, the Full Bench
answered the reference holding that before exercising power under Section
27 of the Act prior determination of the question as to the trustee as
hereditary by taking recourse to Section 41 of the Act would not be
necessary.
9.
The observation of the Full Bench of this Court in paragraph-20 in the
case of Khetramohan Rout and others (supra) as seen above has also
been followed by a subsequent Full Bench of this Court in the case of Dhadi
Parida(and after him) Sundari Parida & others v. Commissioner of
Consolidation, Orissa and others: 81 (1996) C.L.T. 477 (FB) where it was
held in paragraphs-10 to 12 as follows :
“10. We have perused the judgment of the Full Bench in the case of
Khetramohan Rout (supra) and carefully considered the rival
contentions raised by learned counsel for the parties. As noted
389
[B.K.NAYAK, J]
earlier, the area of dispute is very limited. It relates to the nature of
inquiry to be held by the Assistant Commissioner for appointing nonhereditary trustee under section 27 of the Act. There is no dispute
that the inquiry contemplated is of summary nature since the
appointment of a non-hereditary trustee for a temporary period
subject to the final determination to be made after detailed enquiry in
the proceeding under section 41 of the Act.
11. The main purpose in investing the power to appoint a nonhereditary trustee is to ensure proper management of the affairs of
religious institution including its properties and to avoid
mismanagement and misappropriation. In the context of things, the
appointment of non-hereditary trustee is to be made with utmost
expedition. Therefore, the Full Bench held that the enquiry in such
proceedings should be of a summary nature.
12. Coming to the nature of enquiry and the procedure to be followed
therefore, it is our considered view that the nature of enquiry will
depend on the facts and circumstances of each case. Therefore, it is
for the Assistant Commissioner to decide the nature of the enquiry to
be held in the case since it is for him to be satisfied whether there is
a hereditary trustee in the institution or not.”
10.
With regard to the specific manner of enquiry to be held by the
Assistant Commissioner for his satisfaction that there is no hereditary
trustee, Khetramohan Rout and others (supra) did not lay down anything.
Therefore, the latter Full Bench in Dhadi Parida (supra) instead of laying
down any specific manner of enquiry to be held by the Assistant
Commissioner of Endowments, only emphasized
that the Assistant
Commissioner is to state the reason for his satisfaction that there is no
hereditary trustee in the institution and the nature of enquiry will depend on
the facts and circumstances of each case. In this regard, the Full Bench in
Dhadi Parida (supra) observed as follows in paragraph-13 of the judgment :
“13. We would like to state here that the Full Bench in the case of
Khetramohan Rout (supra) has not laid down any specific manner
of enquiry to be held by the Assistant Commissioner, and, in our
considered view, in the context of things, it will not be appropriate to
do so. We hasten to add there that in the said Full Bench decision, it
has not been laid down that the Assistant Commissioner will in no
circumstance entertain an objection or give opportunity of hearing to
the objector while deciding appointment of a non-hereditary trustee.
390
[2014]
Rather it has been laid down therein that the Assistant
Commissioner is to state the reason for arriving at the satisfaction
that there is no hereditary trustee in the institution. This, in our view,
sufficiently safeguards against any arbitrary and whimsical action on
the part of the authority. If the order of the Assistant Commissioner is
vitiated on account of arbitrariness, then it is also open to the person
concerned to move the Commissioner in revision. Thus, an
aggrieved party is not without any remedy.”
11.
This Court has also having being confronted with similar question in
the case of Shyamsundar Sahoo & others v. State of Odisha and others
: 2014 (I) CLR 903 held as follows :
“18. In both the aforesaid Full Bench decisions, the Court was
considering the power of Assistant Commissioner of Endowments
under Section 27 of the 1951 Act as it is stood prior to 1992
amendment in which the State Government had no role at all to play
in the matter of appointment of non-hereditary trustee. But, now the
position has changed and particularly after 2003 amendment the
State Government has a greater role to play as because all
objections and suggestions to the proposal of the Assistant
Commissioner of Endowments for appointment of non-hereditary
trustee for an institution are to be considered by the State
Government before it decides to grant approval. That however does
not mean that the Assistant Commissioner of Endowments is not
required to be satisfied that the institution has no hereditary trustee.
Such satisfaction is necessary to be reached for initiation of the
proposal and before publication of notice as required under the
‘proviso’ to Section 27(1) of the Act. The satisfaction can be reached
from any material including the report of an Endowment Inspector or
from documents evidencing prior determination under Section 64 of
1939 Act or under Section 41 of the 1951 Act with regard to the
nature of institution as well as nature of the trustee or from any order
of a competent authority showing that the hereditary trustee has
either been removed or suspended.
His satisfaction shall be based on the materials produced
before him, which has a concrete bearing on the question whether
the institution has or has not a ‘hereditary trustee’ within the meaning
of the 1951 Act. The Assistant Commissioner shall have to record
reasons about his satisfaction for proposing appointment of nonhereditary trustee, which must be before publication of notice as per
391
[B.K.NAYAK, J]
proviso to Section 27(1) of the Act. Once
the
Assistant
Commissioner publishes the notice of his proposal as required under
the proviso to Section 27 (1) of the Act he cannot again enter into
any further enquiry on the basis of any objection that may be
received after publication of notice.”
12.
In order to appreciate the contention raised by the learned counsel
for the parties this Court called for the records from the office of the
Additional Assistant Commissioner of Endowments, Cuttack. Perusal of the
said record reveals that on the basis of allegation petition with regard to
mismanagement of the deities and their properties by the family of the
petitioners, the Divisional Inspector of Endowments, Baripada conducted a
preliminary enquiry on the spot and submitted report dated 11.3.2012 to the
Additional Assistant Commissioner of Endowments, Cuttack. The said report
reveals about the establishment and installation of the deities in question
and the construction of the temple, engagement of Harihar Mishra by the
then Zamindar as Pujak (Priest) to do seva puja of the deities. In the report
there is no mention that the institution has no hereditary trustee. While
dealing with the aforesaid report of the Divisional Inspector of Endowments,
the learned Additional Assistant Commissioner of Endowments has stated in
the note sheet of the file on 28.06.2012 to the following effect :
“from enquiry it is satisfied that there is no hereditary trustee.”
There is however, no mention as to what enquiry was conducted and
how, nor any reason has been recorded as to his satisfaction. Though
notices were published thereafter, as required under the proviso to sub
section (1) of Section 27 of the Act, the letter sent to the Government by the
Additional Assistant Commissioner of Endowments for approval of the
proposal for appointment of non-hereditary trust board, did not indicate that
the institution has no hereditary trustee. Although the petitioners even after
publication of notice did not file any objection, it is apparent that the
Government also mechanically approved the proposal of the Additional
Assistant Commissioner of Endowments being oblivious of basic statutory
requirement that there was no hereditary trustee in respect of the deities in
question.
13.
For the aforesaid reasons, the impugned order dated 09.07.2013
under Annexure-8 passed by the Additional Assistant Commissioner of
Endowments, Cuttack constituting non-hereditary trust board in respect of
the institution in question cannot be sustained. The same is accordingly
quashed.The matter is remitted back to the Additional Assistant
392
[2014]
Commissioner of Endowments, Cuttack, who shall fix a date for a preliminary
enquiry and issue notice to the petitioners to take part in such enquiry if they
so like and thereafter pass appropriate order with regard to his prima facie
satisfaction about existence/non-existence of ‘hereditary trustee’ in respect
of the institution within the meaning of OHRE Act and thereafter proceed in
accordance with law. The enquiry shall be completed by the learned
Additional Assistant Commissioner of Endowments, Cuttack within two
months.
Since the order of appointment of interim trust board by the
learned
Commissioner
of
Endowments
has
not
been
challenged, I am not inclined to interfere with the order passed by the
Commissioner of Endowments, Orissa, Bhubaneswar on 08.07.2013
(Annexure-9) approving the resolution of the interim trust board with regard
to the election of the interim managing trustee.The writ petition is
accordingly disposed of.
A free copy of this order be handed over to Mr. A.K. Nath, learned
counsel for transmission to the Additional Assistant Commissioner of
Endowments, Cuttack for compliance.
Writ petition disposed of.
2014 (II) ILR - CUT- 392
S. K. MISHRA, J
CRLA NO. 498 OF 2007
DHANESWAR SAHOO & ANR.
……..Appellants
.Vrs.
STATE OF ORISSA
……..Respondent
CRIMINAL PROCEDURE CODE, 1973 – S.446(2)
Forfeiture of bail bond with a direction for payment of surety amount
as penalty – No notice calling upon the surety to produce the accused
or to show cause as to why the bail bond should not be forfeited –
Rules of natural justice need be followed before an adverse order is
393
DHANESWAR SAHOO -V- STATE
passed – Held, impugned notice to forfeit the bail bond and order
imposing penalty is not sustainable.
(Paras 8 & 9)
Case laws Relied on:1. AIR (30) 1943 Calcutta 236 : Manindra Kumar Majumdar -V- Emperor
2. 1994 CRL.L.J. 491 : Narata Ram -V- State of Himachal Pradesh
For Appellants : Mr. Himansubhusan Dash
For Respondent : Mr. Anupam Rath (Addl.Standing Counsel)
Date of order : 20.06.2014
ORDER
1.
Heard Mr. Himansubhusan Dash, learned counsel for the appellantspetitioners, and Mr. Aupam Rath, learned Addl. Standing Counsel for the
State.
2.
This is an appeal against the order dated 27.4.2007 passed by the
learned Addl. Sessions Judge-cum-Special Judge (Vigilance), Bhubaneswar
in Crl. Misc. Case No.1/2006 directing each of the appellants-petitioners to
pay Rs.25,000/- only as penalty under Section 446 sub-clause (2) of the
Code of Criminal Procedure, 1973(hereinafter referred to as the “Code” for
brevity).
3.
The facts are not in dispute. The present appellants stood sureties for
accused Sidheswar Mallik, who was charged under the provisions of the
N.D.P.S. Act, in S.T. Case No.17/150 of 1995 of the court of learned Addl.
Sessions Judge-cum-Special Judge (Vigilance), Bhubaneswar. They
executed bail bonds undertaking to produce the aforesaid accused, failing
which they were to remit a sum of Rs.25,000/- to the State. The case was
posted to 02.8.2006 and on that date Sidheswar Mallik was not present.
Reminder was issued to the I.I.C. Airfield P.S. to execute the N.B.W. and
produce the accused. The bail bonds were forfeited on that date. Thereafter
a separate Misc. Case bearing Crl. Misc. Case No.1/2006 was initiated and
notices were issued to the bailors-present appellants to show cause as to
why the bail amount shall not be realized from them. After several
adjournments, the learned Addl. Sessions Judge-cum-Special Judge
(Vigilance), Bhubaneswar held that the petitioners have no cause to show
and, therefore, directed that each of them is to pay Rs.25,000/- as penalty
under Section 446 (2) of the Code and, accordingly, he issued distressed
warrant for realization of the same.
394
[2014]
4.
It is borne out from the record that in the meantime, on 7.3.2007 the
accused surrendered himself in S.T. Case No.17/150 of 1995 and filed a
petition for bail. His petition for bail was allowed on that day and he was
order to be released on bail. On the next date i.e. on 8.3.2007 the accused
furnished bail bonds, the same was accepted and he was released on bail.
5.
Relying upon the reported cases of Manindra Kumar Majumdar V.
Emperor; A.I.R. (30) 1943 Calcutta 236 and Narata Ram v. State of
Himachal Pradesh; 1994 CRL.L.J. 491, learned counsel for the appellants
submits that before forfeiting the bail bond the appellants should have
been issued a notice to produce or to show cause why the accused did not
remain present on date the case was posted.
6.
In the case of Manindra Kumar Majumdar v. Emperor(supra) the
court held that in the absence of any notice calling upon the surety to
produce the accused, it cannot be said that the surety failed to perform the
conditions of the bond. Consequently, there was no justification for forfeiture
of the bond.
7.
In the case of Narata Ram v. State of Himachal Pradesh (supra),
the High Court of Himachal Pradesh held that passing of composite order of
forfeiture and grant of fresh opportunity to surety to produce the accused
was not proper because by passing such composite order the Court neither
gave the surety of an opportunity to produce the accused nor satisfied itself
as to existence of any grounds for directing the forfeiture of surety bonds.
8.
In course of hearing learned Mr. Rath, learned Addl. Standing
Counsel, brought to the notice of this Court to the reported case of
Suryanarayan Mohapatra v. State of Orissa; (1989)2 OCR-168, wherein
this Court has held that it is now far too well settled in law that the principles
of natural justice, i.e. giving opportunity to be heard before an adverse order
is passed, is to be read into a statute even though there is no express
provision therein for complying with the same unless the context of the
statute excluded the rule of audi alteram partem. The Court further held that
in other words, the rule of hearing a person is of universal application and is
to be read as a provision of all statutes except where, because of specific
contingencies, affording such opportunity is rendered impossible or
impracticable.
Holding thus, this Court has categorically held that the
direction to forfeit the bond involves a process of decision making
independent of the notice as to why the amount under the bond shall not be
recovered from the executant. Therefore, it was further held that before
such a decision is taken a hearing to the affected party becomes the
395
DHANESWAR SAHOO -V- STATE
demands of natural justice. Therefore the Court held that the order to forfeit
the bond without notice is illegal and is not sustainable in law.
9.
Admittedly, in this case before the order forfeiting the bond was
passed on 2.8.2006 no notice has been issued to the appellants to show
cause why the bail bonds should not be forfeited.
10.
In that view of the matter, applying the ratio decided in the aforesaid
cases, this Court comes to the conclusion that the order of forfeiture of bail
bonds is illegal and not sustainable and consequently the order imposing
penalty of Rs.25,000/- each on the appellants is not sustainable.
11.
Accordingly, the appeal is allowed. The order dated 27.4.2007
passed by the learned Addl. Sessions Judge-cum-Special Judge (Vigilance),
Bhubaneswar in Crl. Misc. Case No.1/2006 is hereby set aside.
Appeal allowed.
2014 (II) ILR - CUT- 395
C. R. DASH, J.
W.P.(C) NO. 25477 OF 2011
RITA MOHAPATRA
……..Petitioner
.Vrs.
……..Opp.Parties
ODISHA LAND REFORMS ACT, 1960 - S. 2 (14)
Disputed property is a homestead land with a pucca house
within Deogarh Municipality – The house is not “Land” within the
definition of Section 2 (14) of the Act and the Revenue Officer had no
396
[2014]
jurisdiction to deal with the property in the ceiling fixation proceeding
and treat the same as surplus for the purpose of ceiling –
Determination made by the Revenue officer is without jurisdiction and
is a nullity – Learned Member, Board of Revenue Odisha has also lost
sight of the above point – Held, it is a fit case to remand the matter to
the learned Member, Board of Revenue to decide the case afresh in
accordance with law.
(Para 8)
Case law Referred to:43 (1977) CLT 681 : (Mahurilal Agarwalla-V- Dusasan Sahu)
For Petitioner - M/s. Biraja Prasanna Satapathy, B. K. Nayak,
A. K. Sahoo & S. Pradhan
For Opp.Parties- Mr. S. Mishra, Add. Govt. Advocate,
M/s. A. Tripathy & A. K. Beura.
JUDGMENT
C.R. DASH, J.
The petitioner, in this writ petition, impugns the order dated
26.08.2011 passed by the Member, Board of Revenue, Odisha, Cuttack in
O.S.S. Case No.289 of 2003.
2.
Late Pradipta Gangadeb (father of present opposite party no.6) was
the ruler of ex-State of Deogarh. The land appertaining to plot no.254 under
MS Khata No.183 measuring an area of Ac.0.25 decimals is a species of
homestead land with a pucca house on it. The land is situated under
Deogarh Municipality area and aforesaid late Pradipta Gangadeb was the
owner of the land. On 27.01.1990 late Pradipta Gangadeb executed a
Registered Sale Deed in respect of the aforesaid land in favour of the
petitioner and delivered possession of the same with the building to the
petitioner. The petitioner from the date of purchase, remained in peaceful
possession over the same and she is stated to have constructed her
residential house there. The petitioner filed Mutation Case No.781 of 1990
before the Tahsildar, Deogarh to mutate the land in question in her favour.
Learned Tahsildar rejected such Mutation Application, inter alia, on the
ground that the land sold by late Pradipta Gangadeb being a ceiling surplus
land and he being the land owner having received the compensation amount
on 11.10.1991, the land cannot be mutated in favour of the petitioner. The
petitioner moved the Sub-Collector, Deogarh in appeal by filing Appeal No.1
of 1992. Before the appellate forum also she failed, as the appeal was
397
RITA MOHAPATRA -V- STATE OF ORISSA
[C.R. DASH, J.]
rejected on the selfsame ground. The petitioner thereafter filed revision vide
Mutation Revision No.74 of 1994 before the Commissioner, Land Records
and Settlement. Subsequently the revision was transferred to the Member,
Board of Revenue and numbered as O.S.S. Case No.289 of 2003. Before
the Member, Board of Revenue, all the points regarding saleable interest on
the part of late Pradipta Gangadeb were raised. It was specifically averred
before the Revisional Forum that in view of Section 2 (14) of the O.L.R. Act
and the decision of this Court reported in Mahurilal Agarwalla vs. Dusasan
Sahu, 43 (1977) C.L.T. 681 and un-reported decision of this Court in O.J.C.
No.635 of 1977, the land in question having belonged to species of
homestead category, the same is not includible in the ceiling surplus area of
late Pradipta Gangadeb. The Member, Board of Revenue however, without
addressing the points raised before him, held that the land having been
vested to the government absolutely and free from all encumbrances on
26.06.1984 after final order was passed by the Revenue Officer in O.L.R.
Case No.5 of 1974, late Pradipta Gangadeb had no saleable interest on
27.01.1990 and for that reason R.S.D. No.65 dated 27.01.1990 executed in
favour of the petitioner is not sustainable.
3.
It is pertinent to mention here that O.L.R. Case No.5 of 1974 was
initiated against late Pradipta Gangadeb for determination of the ceiling area.
On 10.02.1980 Pradipta Gangadeb had filed a petition before the Revenue
Officer to exclude the land in question from the ceiling proceeding, as the
same is a homestead land with a pucca house on it. Without determining
the said question, ceiling surplus area was determined by the Revenue
Officer holding the land in question to be a ceiling surplus area.
Opposite party no.6, by filing a counter, has admitted receipt of
compensation by late Pradipta Gangadeb in respect of the land in question
on 11.10.1991. He is however ready and willing for refund of the
compensation amount already received.
4.
Learned counsel for the petitioner submits that the land in question
being a homestead land is not includible in the ceiling surplus proceeding in
view of Section 2 (14) of the O.L.R. Act. If wrongly the same has been
included, the order determining the land in question to be a ceiling surplus
area is a nullity and non-est in the eye of law, especially in view of Section 2
(14) of the O.L.R. Act.
Learned Addl. Government Advocate however supports the
impugned order, but he is not in a position to say as to why the aforesaid
question stated to be raised before the revisional forum has not been
addressed by the revisional forum.
398
[2014]
5.
From the rival contentions of the parties, the following question has
got to be examined, namely :(1)
Once under the Orissa Land Reforms Act the Revenue
Officer comes to hold that the property is beyond the ceiling area,
what is the effect of such a decision ?
6.
Under the O.L.R. Act, jurisdiction has been conferred on the
Revenue Officer to determine the ceiling area and elaborate provisions have
been made as to the consequence of such determination. Finality is
attached to the decision of the Revenue Officer in regard to the ceiling area
subject to the result of the appeal or revision. Therefore, when no appeal or
revision is carried, the Revenue Officer’s decision becomes final. As a
consequence of such determination, the surplus lands vests in the State
absolutely and free from all encumbrances. The ownership of the landholder
or raiyat ceases.
7.
While learned counsel for the petitioner and learned counsel for
opposite party no.6 do not dispute this analysis, it is contended that the
property being a homestead land with pucca house standing on it located
within the municipality area of Deogarh town and not being the land which
could be shown to be capable of being used for agricultural purposes, the
land in question does not come within the ambit and purview of the Act, and
the Revenue Officer lack jurisdiction to deal with the property while
proceeding to decide the ceiling and its size. In this view of the matter, the
determination by the Revenue Officer is a nullity, non-est in the eye of law
and therefore the determination has no validity at all, and finality
contemplated in the Act would not attach to the decision and the sale in
favour of the petitioner by late Pradipta Gangadeb is legal and justified.
Decision of this Court in Mahurilal Agarwalla’s case (supra) supports this
contention of the petitioner.
8.
Perusal of the impugned order shows that learned Member, Board of
Revenue has not at all addressed the aforesaid question stated to have
been raised before him by the learned counsel for the petitioner. In such
view of the fact, it is a fit case where the matter is to be remanded to the
learned Member, Board of Revenue for determination of the aforesaid
question at his end. Accordingly, the matter is remanded to the Member,
Board of Revenue, Odisha, Cuttack for disposal afresh in accordance with
law, addressing the question discussed supra. The matter be disposed of
within six months from the date of appearance of the parties before the
Member, Board of Revenue. Learned Member, Board of Revenue is
399
RITA MOHAPATRA-V- STATE OF ORISSA
[C.R. DASH, J.]
directed to act upon on production of a certified copy of this order.The writ
petition is accordingly disposed of.
Writ petition disposed of.
2014 (II) ILR - CUT- 399
R. DASH, J.
F.A.O. NO. 613 OF 2009
SRIDHAR SAHOO & ANR.
……..Appellants
.Vrs.
MALATI SAHOO & ORS.
……...Respondents
SUCCESSION ACT, 1925 - Ss. 63, 276
Will – The Court of probate is only concerned with the question
as to whether the document put forward as the last will and testament
of a deceased person was duly executed and attested in accordance
with law and whether at the time of such execution the testator had
sound disposing mind – The question whether a particular bequest is
good or bad is not within the purview of the probate Court.
In this case although the propounders of the will have proved
that the registered will has been duly executed and attested in
accordance with law and at the time of such execution the testator was
in sound disposing mind, the learned Court below refused to probate
the will solely on the ground that the propounders of the will have
failed to prove title of the testator in respect of some items of the
properties included in the schedule of the registered will – Held, the
impugned judgment is set aside – The application for grant of probate
is allowed.
: (Mrs. Hem Nailini Judah-V- Mrs. Isolyne
Sarojbashini Bose)
2.1995 AIR (Orissa) 131 : (Laxmi Baik-V- A. Chandravati)
3.AIR 1970 Orissa 29 : (Jagojoti Bose-V- Bararuchi Bose)
400
[2014]
For Appellants - M/s. Dibakar Bhuyan.
For Respondents - M/s. Maheswar Mohanty.
Date of order: 17.06.2014
ORDER
Learned counsel for the appellants is present. No one appears on
behalf of the respondent Nos.1 to 6.
2.
Heard learned counsel for the appellants.
3.
This appeal is against the judgment dated 22.9.2009 passed by the
learned District Judge, Keonjhar in Test. Case No.2 of 2008 refusing the
prayer for grant of probate of the registered Will No.1 dated 3.4.2001
executed by late Sendha Patra in favour of the appellants.
4.
The respondents herein are the opposite parties in the probate
proceeding who are the daughters of said Sendha Patra. It is not in dispute
that the appellants who are the petitioners in the probate proceeding are the
sons of respondent No.2. It is also not in dispute that on the very day the Will
was executed and registered the daughters of Sendha Patra had entered
into an agreement that they had no objection if their father executed a Will in
favour of the appellants. The respondents filed joint show cause stating that
they have no objection if the probate is granted in favour of the petitioners.
5.
In the probate proceeding one of the petitioners was examined as
P.W.1 and one of the attesting witnesses was examined as P.W.2. The
learned District Judge after examining the evidence placed before him
observed that the attesting witness testified to the effect that on 3.4.2001 the
deceased Sendha Patra had executed the Will in favour of the petitionersappellants while he was in good state of mind and that he executed the
same without being influenced and pressurized by anyone. It is also
observed that the attesting witness stated in the court that the testator
executed the Will in presence of P.W.2 and the other attesting witness. It is
also stated in the impugned judgment that the attesting witness has proved
that the Will was scribed by one Nirakar Behera as per the instructions of the
testator and after the contents of the Will were read over and explained and
confirming that the contents were correct the testator signed it in presence of
P.W.2 and the other attesting witness and thereafter the Will was presented
before the registering authority, Anandapur for registration. Thus, it is found
that the document put forward as Will of the deceased Sendha Patra is
proved to have been duly executed and attested in accordance with law and
401
SRIDHAR SAHOO -V- MALATI SAHOO
at the time of such execution the testator had a sound disposing mind.
However, the learned court below has refused to probate the Will solely on
the ground that in respect of some items of the properties contained in the
schedule of the registered Will it is not proved that the deceased had title.
On that ground the learned court below has opined that the will is a
suspicious document. It is well settled that the Court of Probate is only
concerned with the question as to whether the document put forward as the
last Will and testament of a deceased person was duly executed and
attested in accordance with law and whether at the time of such execution
the testator had sound disposing mind. The question whether a particular
bequest is good or bad is not within the purview of the Probate Court. In
Mrs. Hem Nailini Judah v. Mrs. Isolyne Sarojbashini Bose, reported in
AIR 1962 SC 1471 which is relied on by this Court in Laxmi Bai v. A.
Chandravati, 1995 AIR (Orissa) 131, it has been held that the questions of
title are not decided in the proceedings for the grant of probate or letters of
administration. In Jagojoti Bose v. Bararuchi Bose; AIR 1970 Orissa 29,
this Court has held that probate or letters of administration are not
concerned with title to the property but are only concerned with the due
execution of the Will.
6.
In view of the aforestated settled position of law, the learned court
below has committed illegality in refusing to probate the Will solely on the
ground that the propounders of the Will have failed to prove title of the
testator in respect of some items of the properties included in the schedule
of the registered Will. Since it is found that the propounders of the Will have
proved that the registered Will Ext.5 has been duly executed and attested in
accordance with law and at the time of such execution the testator was in
sound disposing mind, the petition for probating the Will ought to be allowed.
7.
In the result, the appeal is allowed. The impugned judgment is set
aside. The application for grant of probate is allowed. There shall be no
order as to cost. The Probate Court is directed to take further action in the
matter of grant of probate.
Appeal allowed.
402
2014 (II) ILR - CUT- 402
DR. B.R.SARANGI, J
W.P.(C) NO. 9568 OF 2010
KAMALAKANTA SAHOO & ORS.
……..Petitioners
.Vrs.
……..Opp. Parties
SERVICE LAW – Equal pay for equal work – Petitioners are job
contract Safei Moharirs and they claim equal pay at par with
Munsarims Grade-III as they are discharging the similar nature of work
with that of the Munsarims – Petitioners challenge order under
annexure-14 where in they have denied such benefit without assigning
any reason – Held, the impugned order under annexe-14 is quashed –
Directions issued to the Opp. Party to pay Safei Moharirs the scale of
pay at Rs. 2750/- at par with their counter parts the Munsarims Grade-III
from the date such scale was given to Munsarims Grade-III.
(Paras 16 & 18)
Case Law Referred to:1. AIR 1994 SC 2214 : Babu Lal, Convenor & Anr. -V- New Delhi Municipal
Committee & Anr.
2. AIR 2007 SC 2509 : Nehru Yuva Kendra Sangathan -V- Rajesh Mohan
Shukla &Ors.
3. (2008) 11 SCC 579 : Promotee Telecom Engineers Forum & Ors. -VD.S.Mathur, Secretary, Department of
Telecommunications
4. AIR 1991 SC 311 : M.L.Sachdev -V- Union of India & Anr.
5. (1989) 2 SCC 290 : State of A.P. -V- G.Sreenivasa Rao
6. (2009 2 SCC 606 : Uttar Pradesh State Electricity Board & Anr. -VAziz Ahmad
For Petitioners : M/s. N.C.Panigrahi, Sr. Advocate, S.R.Panigrahi,
N.K.Tripathy & D.Dhal
For Opp. Parties : Mr. B.Senapati (Addl.Govt.Advocate)
Date of hearing
: 14. 03. 2014
Date of judgment : 11. 04. 2014
JUDGMENT
403
KAMALAKANTA SAHOO -V- STATE[DR.
[DR.B.R.SARANGI, J.]
DR. B.R.SARANGI, J.
The petitioners who are the job contract Safei Moharirs have filed
this application seeking for a direction to the opposite parties to pay the
same scale of Rs.2,750/- as is allowed to Munsarims Grade-III and similar
other job contract employees and further to quash the order No.NGE (C)-III26/2009-14705/R and DM dated 13.04.2010 of the Govt. of Orissa,
Revenue and Disaster Management Department rejecting to fix pay of
Rs.2750/- and to consider them as Class-III (Group-C) employees. They
further claim that as they are doing the same type of job like the Munsarims
Grade-III, therefore, they should be declared as Class-III employees instead
of Class-IV employees and to pay equal pay for equal work since they were
originally declared as Class-III employees under the Civil Services
(Classification, Control and Appeal) Rules, 1962, in short OCS (CCA) Rules.
2.
The facts leading to filing of this writ petition are that the petitioners
and many others were appointed as Safei Moharirs as per Rule-588 of Bihar
and Orissa Technical Rules, 1927 and they are discharging their duties and
responsibilities as prescribed under Rule-587 of the aforesaid Rules which
consists of making out fair copies of the Record of Rights and Judgments in
different cases. After the Munsarims prepared the Records of Rights, the
Safei Moharirs prepare the required number of copies for communication to
different Officers. In O.C.S. (C.C.A) Rules, 1962 the Safei Moharirs were
kept under Class-III category but subsequently by an amendment, the same
was deleted and they were classified as Class-IV although their nature of
work continued to be the same. It is stated that since Safei Moharirs
undertake ministerial/clerical work the post could not have been kept in
Class-IV categtory and they could not have been denied the same scale of
pay as is allowed to the similar job contract employees of their counter
parts. It appears that the petitioners and other Safei Moharirs have been
working since more than 25 years in the Settlement organization with a very
low salary without any promotional avenue and at the same time they are
denied the same scale of pay which is being paid to their counter parts. The
duties of the Safei Moharirs is available in the Settlement Manual under
Rules 587 and 588 of the Technical Rules and as such no Safei Moharir will
be appointed until he has been examined and passed in hand writing. Safei
Register of approved candidates will be maintained and the Safei section
will be under the control of Safei Supervisor who will be assisted by one or
more head moharir and a staff of Safei Munsarims and Moharir. Each Safei
Munsarim will be incharge of a Halka of 22 to 25 Moharirs paid at a contract
rate. The Halkas will be divided into three groups, one group of Halka will
write only the copies for the Collector, the 2nd group will write only the copies
404
[2014]
for the land lords (Maliki copies) and the 3rd group will write only the copies
for the Rayat (Rayati copies). The recess Officers or Section Officers will
himself arrange which collotarate Halka shall supply records to each Maliki
Halka and each Maliki Halka shall supply records to each Rayati Halka. He
will note his orders in the order book of the Section. Though the Settlement
Organization is continuing in the State of Orissa, but its employees have
been allowed to continue on adhoc or on job contract basis.
3.
During 1974, the Government intended to create 2000 number of
permanent posts with regard to job contract establishment and on the report
as submitted by the Mathew’s Committee an attempt was made by the State
Government to regularize the job contract employees into regular
establishment. But as it appears Safei Moharir is a Class-III post under the
O.C.S. (CCA) Rules, 1962. The scale of pay as prescribed on 06.07.1949
indicates that the Tarmir Moharirs, Munsarims and Safei Moharirs have
been granted scale of pay Rs.34-1-39-EB-1-44 as found against Serial
Nos.25, 28 and 29 respectively vide Annexure-3. Subsequently, vide order
dated 15.11.1961 the scale of pay of Tarmir Moharirs, Munsarims and Safei
Moharirs have been changed. Amin and Munsarims have been categorized
as Grade-I, Grade-II and Grade-III with scale of pay 95/-, 79/- and 70/- as
mentioned in Serial No.2 respectively whereas Safei Moharir has also been
classified as Grade-I, Grade-II and Grade-III with scale of pay 65/-, 55/- and
50/- respectively as indicated in Serial No.5 in Annesure-4. By issuance of
such letter on 15.11.61 there is a disparity of scale of pay of
Amin/Munsarims vis-à-vis Safei Moharirs. This disparity of pay has been
brought to the notice of the authority and Government after careful
consideration have decided that the existing pay of various categories of job
contract employees under the Revenue and Excise Department was revised
by virtue of which Amin/Munsarim Grade-I, Grade-II and Grade-III who were
getting fixed scale of pay 95/-, 79/- and 70/- revised to 243/-, 240/- and 240/respectively as indicated in Serial No.3 and so far as Safei Moharir/Hukabila
Moharir Grade-I, Grade-II and Grade-III are concerned who were getting
fixed pay of Rs.65/-, 55/- and 50/- respectively, their scale was revised to
fixed pay of Rs.200/-, 200/- and 200/- respectively vide Annexure-5 dated
13.03.1975. The pay disparity continued even though the Safei Moharirs
were discharging the same nature of work with that of the Munsarims. On
24.10.1987 the pay scale of Safei Moharirs was revised to Rs.578/- whereas
the scale of Amin and Munsarims were revised to Rs.649/-, 637/- and 625
respectively for Grade-I, Grade-II and Grade-III. On 21.12.1991 the pay
scale of Safei Moharir was revised to Rs.762/- whereas the pay of Amin and
Munsarim was revised to 830/-, Rs.815/- and 800/- respectively for Grade-I,
Grade-II and Grade-III.
405
KAMALAKANTA SAHOO -V- STATE[DR.
4.
Being aggrieved by such fixation, the Orissa State Safei and
Munsarim Moharir Association, Cuttack filed an appeal on 29.01.1994
before the Government for revision of their pay. On consideration of the
same, on 24.02.1994 the Government directed the Director of Land Records
and Surveys, Orissa to give his views vide Annexure-6. When the Director
was in seisin over the matter on 08.02.1995 the pay scale of Munsarim was
revised from Rs.800-1150 to Rs.825-1200/- vide Annexure-7. The Director
of Land Records and Surveys, Orissa pursuant to annexure-6 dated
24.02.1994 wrote letters to All Settlement Officers/Charge Officers, of
Orissa seeking for their views. On receipt of the said views, he has
furnished a report vide annexure-8 on 26.6.1995. The views of the Director
in Paragraphs-1, 3, 4 and 5 of the said report as follows:
1.
The safei Maharirs of settlement organization copy out the 2nd, 3rd,
and 4th copies of R.O.R.s from the first copy prepared by the
Amins/Munaserims. They also prepared certified copies of orders
passed in appeal cases for supply to parties on copy application.
The out-turns has been fixed at 150 plots per day for preparing
copies of R.C.R. which is about 15 pages. The copyists of
Registration wing copy out the Registered deeds with fixed out turn
of 14 pages per day. Thus, nature of work done by both the
categories i.e. Safei Moharirs and copyists is more or less indentical.
3.
In the Orissa Civil Services (C.C. & A) Rules 1962 the Safei Moharirs
and copyist have been treated as class III employees.
4.
No minimum qualification has been prescribed to hold the post of
Safei Moharirs. But it is ascertained from the settlement officers and
charge officers that graduates, intermediates and matriculates are
working as Safei Moharirs.
5.
The J.C. Safei Moharirs are getting a consolidated pay of Rs.762/per month which is applicable to Class-IV employees viz. Peons,
Choukidars, Chainmen, process servers, etc. whereas the copyist
are enjoying the time scale of pay of Rs.950/-, 1500/-. This appears
to be unjustified and unreasonable in view of the fact that principle of
‘equal pay for equal work’ has not been followed in this case. The
nature of work done by the Safei Moharirs is quite different from
those of class-IV employees.
5.
In Paragraph-6 of such recommendation, it has been suggested that
the pay of the Safei Moharirs needs to be revised and fixed at Rs.800/- at
par with the minimum of the pay fixed for the Munsarims Grade-III. On the
406
[2014]
basis of such suggestion made by the Director, the Government in Revenue
and Excise Department after careful consideration allowed the revised fixed
pay to all job contracts Safei Moharirs with effect from 01.01.1998 revising
existing pay of Rs.762/- to 800/ vide annexure-11. On the basis of such
revision of scale of pay fixing to Rs.800/- the same has been acted upon
and the benefit of the revised pay has been extended to the Safei Moharirs.
When the implementation of the Orissa Revised Scale of Pay Scheme, 1998
was introduced, the Government decided that existing fixed pay of various
job category employees under the Revenue Department both in Settlement
and Consolidation Organisation should be revised with effect from
01.01.1996. Accordingly, the Amin and Munsarim Grade-III employees
those who were getting fixed pay of Rs.825/- were allowed to get fixed pay
of Rs.2750/- whereas Safei Moharirs were allowed to Rs.2605/- which has
been indicated in letter dated 17.05.1999 vide Annexure-12. By virtue of
this, there is again pay disparity created. Vide Annexure-11 dated
18.03.1998, it is decided to grant fixed pay of Rs.800/- at par with minimum
pay fixed for Safei Moharir Grade-III and in effect the same has been
implemented. While revising the scale of pay pursuant to Orissa Revised
Scale of Pay Rules, 1998, the Munsarim Grade-III employees have been
allowed to draw Rs.2750/- while the Safei Moharirs have been allowed to
draw Rs.2605/-. Being aggrieved by such fixation, the petitioners filed
Original Application before the Orissa Administrative Tribunal bearing O.A.
No.34-C/1999 ventilating their grievances and on consideration of the same
the learned Tribunal disallowed the O.A. stating that there is no scope for
grant of relief sought for. Against the said order dated 29.03.2000 passed by
the Orissa Administrative Tribunal, Cuttack Bench, Cuttack in O.A. No.34C/1999, the petitioners filed writ petition bearing no.12443/2004.
Considering the contentions raised by the parties, this Court disposed of the
aforesaid writ petition directing the State Government to consider the claims
of the Safei Moharirs with regard to fixation of their scales of pay at
Rs.2750/- and modified the order passed by the Tribunal and further
directed the State Government to take a decision as early as possible
preferably within a period of four months. The order of this Court on
11.08.2009 passed in W.P.(C) No.12443/2004 having not been complied
with within the time frame, the petitioners filed contempt bearing no. CONTC
No.479/2010 and when this Court issued notice on the contempt application,
opposite party no.1 without considering the fact in proper perspective
mechanically passed an order that the petitioners and other similar job
contract Safei Moharirs are not entitled to fixed pay of Rs.2750/- as
demanded by, or to being considered as Class-III (Group-‘C’) employees
vide impugned order dated 13.04.2010 in Annexure-14. Hence this
application.
407
KAMALAKANTA SAHOO -V- STATE[DR
6.
On being noticed, opposite party no.6 filed its counter affidavit
justifying the order passed by opposite party no.1. Though opposite party
no.1 has been impleaded as party, no counter affidavit has been filed on his
behalf justifying the impugned order in Annexure-14. On the contrary, the
Assistant Settlement Officer, who is opposite party no.6 to the writ petition
has filed counter affidavit with his self appraisal contrary to the records
available and reason assigned in disposal of case of Safei Moharir by the
opposite party no.1 in Annexure-14. In the counter affidavit some new
reasons have been incorporated beyond the reasons assigned in the
impugned order justifying the same and stated that the learned Tribunal is
justified in passing the impugned order, the same should not be interfered
with.
7.
Mr. N.C. Panigrahi, learned Senior Counsel appearing for the
petitioners states that by passing the impugned order depriving the benefit
admissible to the petitioners is hit by principle of equal pay for equal work
and such order has been issued with a haste when the opposite party
received the notice of contempt and order itself is an outcome of biased
mind and more so, the impugned order is also hit by principle of estoppel.
Apart from the same, it is stated that the writ petition is maintainable when
the impugned order emanates from an order passed by this Court in
W.P.(C) No.12443/2004 disposed of on 11.08.2009. For implementation of
this order the learned Tribunal has no jurisdiction. Therefore, this application
has been filed to implement the order of this Court passed earlier. To
substantiate his contention, Mr. N.C. Panigrahi, learned Senior Counsel for
the petitioners relies upon the case of Babu Lal, Convenor and another v.
New Delhi Municipal Committee and another, AIR 1994 SC 2214 and
Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & Ors, AIR
2007 SC 2509. So far as consideration of equal pay for equal work and so
far as maintainability of writ petition is concerned he relies upon the case of
Promotee Telecom engineers Forum and Others v. D.S. Mathur,
Secretary, Department of Telecommunications, (2008) 11 SCC 579 and
so far as contempt is concerned he relies upon M.L. Sachdev v. Union of
India and another, AIR 1991 SC 311.
8.
Mr. B. Senapati, learned Additional Government advocate
vehemently opposes the contentions raised by the learned counsel
appearing for the petitioners and stated that the writ petition is not
maintainable due to availability of alternative remedy to approach the Orissa
Administrative Tribunal against the impugned order. In compliance to the
order passed by this Court when the Secretary to Government has disposed
of the grievance made by the petitioners, it gives a fresh cause of action,
therefore, this Court has no jurisdiction to entertain the writ petition. So far
408
[2014]
as grant of “equal pay for equal work” is concerned, he relies upon the
counter affidavit filed by the Assistant Settlement Officer and states that the
same question has been considered in the earlier application which has
been annexed to the counter in O.A. No.34-C/1999 disposed of on
29.03.2000. Therefore, the benefit is not admissible to the petitioners and
accordingly the authority is justified in rejecting the claim made by the
petitioners.
9.
In view of the above contentions of the parties and after going
through the records now, the questions that arise for consideration are (i)
whether the present writ petition is maintainable in this present form before
this Court and (ii) whether the petitioners are entitled to get “equal pay for
equal work” which they were getting pursuant to the suggestions made by
the Director in Annexure-8 which has been implemented vide Annexure-11.
(i) Maintainability of the writ petition
10.
On the factual matrix available, it is admitted by the parties that on
the basis of the suggestion given by the Director in Annexure-8 the
Government has allowed the revised fixed pay to all job contract Safei
Moharirs under the Revenue and Excise Department in both Settlement and
Consolidation organizations with effect from 01.01.1998 by revising the
existing fixed pay from Rs.762/- to 800/- which is at par with minimum pay
fixed for Munsarim Grade-III and the said benefit granted to the petitioners
has been acted upon and the petitioners were receiving the said benefits
and as such benefit has been extended considering the nature of work
discharged by them which was akin to the batch of Munsarim Grade-III
people when the Orissa Revised Scale of Pay Rules, 1998 came into force
the Munsarim Grade-III scale has been revised from Rs.825/- to Rs.2750/-.
Rs.825/- scale of pay was admitted to the Grade-III Amins whereas
Munsarims Grade-III were getting Rs.800/-, therefore, the suggestion of the
Director for the Safei Moharirs Scale of pay of Rs.762/- needs to be revised
and fixed at Rs.800/- at par with minimum pay fixed by Munsarim Grade-III.
But in Annexure-12 the Safei Munsarims have been allowed to draw
Rs.2605/- fixed salary. Due to such disparity scale which is contrary to the
suggestion given by the Director which has been implemented in Annexufre11 by giving pay parity then the petitioners approached the Tribunal in O.A.
34 (C)/1999, the same has been disallowed against which W.P.(C)
No.12443 of 2004 was filed and after due adjudication, this Court directed
the State Government to consider the claims of Safei Moharir with regard to
fixation of their scale of pay at Rs.2750/- by modifying the order of Tribunal
fixing a time limit to take a decision within a period of four months. Since the
order of this Court dated 11.08.2009 passed in W.P.(C) No.12443 of 2004
has not been complied with, CONTC No.479/2010 was filed and on receipt
409
KAMALAKANTA SAHOO -V- STATE
[DR. B.R.SARANGI, J.]
of the notice from this Court in the matter of contempt, the impugned order
was passed. The impugned order also indicates that in pursuance of the
order dated 11.08.2009 passed by the Orissa High Court in W.P.(C)
No.12443 of 2004, the case of the petitioners and others senior job contract
Safei Moharirs of Consolidation and Settlement Offices were considered.
Therefore, the impugned order under Annexure-14 emanates from the order
of this Court passed in W.P.(C) No.12443 of 2004 on 11.08.2009. Hence,
the Orissa Administrative Tribunal cannot adjudicate of an order which
emanates from the order passed by this Court and more so the contempt
proceeding is still pending for consideration. In Promotee Telecom
engineers Forum and Others (supra), the apex Court referring to
paragraph-14 of the said judgment stated as follows”
“Accordingly, the learned counsel pointed out that the
representations were disposed of and, therefore, there was no
question of any contempt having been committed and if the
petitioners felt aggrieved, they ought to have challenged the orders
passed by the Department disposing of the representations by way
of an original application before the Central administrative Tribunal
as it amounted to a fresh cause of action”.
To the above contention of the parties the apex Court held in
paragraph 20 of the judgment as follows:
“We are not impressed at all by the contention of the learned
counsel appearing on behalf of the respondent that since the
respondent has passed the orders disposing of the representations
of the petitioners, the only way left for the petitioners was to
challenge the same by way of an independent original application
before the Tribunal. Their rights had already been crystallized by
various orders passed by the Tribunals and the courts which fact is
not denied by the respondent. On the top of it, the petitioners were
again required to come before this Court by way of an interim
application being IA No.16 and that has resulted in denial of the fruits
of the orders which were passed in their favour by the Tribunals and
the courts. Under such circumstances, to push them again to file
original application challenging the obviously erroneous orders
passed by the respondent disposing of the representations of the
petitioners would be a travesty of justice.
11.
The case in hand is similar to the case decided by the apex Court in
Promotee Telecom engineers Forum and Others (supra). The petitioners
410
[2014]
are fighting for their rights for the last two decades when their rights have
been considered by the authority and crystallized by revising and allowing
fixed pay of Rs.800/- at par with minimum pay fixed for Munsarim Grade-III
by issuing Annexure-11, the same has been again disturbed vide Annexure12 creating disparity and while issuing impugned order, the issue in question
for consideration has not been taken into account. Passing remark has been
made that the revision of pay Rs.800/- with effect from 01.01.1998 had
become infructuous. The concept of revision of pay granted to the
employees like that of petitioners with effect from 01.01.1998 became
infructuous is absolutely a misconceived notion of the authority while
considering the representation in compliance to the order passed by this
Court on 11.08.2009.
The impugned order has resulted in denial of the fruits of the orders
which were passed in favour of the petitioners in annexure-11 which has
been acted upon. Denial of same at a subsequent stage without any rhyme
and reasons is hit by the principle of estoppel. Therefore, in such
circumstances in the name of fresh cause of action pursuant to impugned
order to push the petitioners again to file O.A. challenging the so-called
order passed by the respondent in disposing of the representation would be
a travesty of justice. Therefore, even though the forum is available to
challenge the impugned order by approaching Tribunal in the name of fresh
cause of action, this Court is not inclined to relegate the petitioners to
approach the Orissa Administrative Tribunal to assail a wrong order while
disposing the representation in compliance to the order passed by this Court
in W.P.(C) No.12443 of 2004 on 11.08.2009. Hence, the writ petition is
maintainable.
(ii) Grant of equal pay for equal work
12.
The real controversy with regard to grant of “equal pay for equal
work” is to be taken into consideration. The Black’s Law Dictionary 6th
Edition states ‘equal’ as follows:
“Federal law which mandates same pay for all persons who do same
work without regard to sex, age, etc. For work to be “equal” within
meaning of Act, it is not necessary that jobs be identical but only that
they be substantially equal. Usery v. Richman, C.A.N.D., 558 F.2d
1318, 1320. 29 U.S.C.A. 206”.
13.
Applying the meaning of “equal” to the principle of equal pay it
means that men and women in the same employment must be paid at the
same rate for like work or work rated as equivalent or of equal value. They
411
are in the same employment, if they work at the same establishment (or if
one works at an establishment that includes the other’s) and they work for
the same or an associated employer. The establishments must also be
those at which the terms and conditions of employment are observed
generally or for employees of the relevant description. “Like work” is work
that is broadly similar, where any differences between the man’s work and
the woman’s are not of practical importance, work is rated as equivalent
when the employer has undertaken a study to evaluate his employee’ jobs
in terms of the skill, effort, and responsibility demanded of them and the
woman’s job is given the same grade as the man’s. Therefore, Pay for all
persons who do same work without regard to sex, age, etc entitled to equal
pay. For work to be “equal” within meaning of Act, it is not necessary that
jobs be identical but only that they be substantially equal.
14.
Now coming to the meaning of “equal pay for equal work”.
The equal pay directive makes clear that equal work embraces work
of equal value as well as work which is the same. Pickstone v. Freemans
Ple, (1987) 3 All ER 756, 761. (CA) (E.E.C. Treaty, Art. 119).
The principle of ‘equal pay for equal work’ is expressly recognized by
all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code,
para 2 of Section 111 of the Czenchoslovak Code, Section 67 of the
Bulgarian Code, Section 40 of the Code of the German Democratic
Republic, para 2 of Section 33 of the Rumanian Code.
The preamble to the Constitution of the International Labour
Organization recognizes the principle of ‘equal remuneration for work of
equal value’ as constituting one of the means of achieving the improvement
of conditions “involving such injustice, hardship and privation to large
numbers of people as to produce unrest so great that the peace and
harmony of the world are imperiled”.
Article 39(d) proclaims ‘equal pay for equal work for both men and
women’ as a Directive Principle of State Policy. ‘Equal pay for equal work for
both men and women’ as a Directive Principle of State Policy, means equal
pay for equal work for everyone and as between the sexes. Randhir Singh
v. Union of India, AIR 1982 SC 879 (para 8) (Constitution of India, Art. 39
(d).
Paying Amins a lesser salary than that of the senior Bailiffs though
both do the same work offends the principle of equal pay for equal work.
(1984) I.MLJ 128.
412
[2014]
“Equal pay for equal work” does not mean that all members of a cadre
must receive the same pay packet irrespective of their seniority, source of
recruitment, educational qualifications and various other incidents of
service. State of A.P. v. G. Sreenivasa Rao, (1989) 2 SCC 290.
The principle of “equal pay for equal work” is a facet of the principle
of equality in the matter of employment guaranteed under Articles 14 and 16
of the Constitution of India. The right to equality can only be claimed when
there is discrimination by the State between two persons who are similarly
situated. The said principle cannot be invoked in cases where discrimination
sought to be shown is between acts of two different authorities functioning
as State under Article 12 of the Constitution. (Para 7). UT, Chandigarh v.
Krishan Bhandari, (1996) 11 SCC 348, 351.
It is the duty of the employees seeking parity of pay under Article
39(d) of the Constitution of India to prove and establish that he had been
discriminated, as the question of parity has to be decided on consideration
of various facts and statutory Rules etc. See Union of India & Anr. Vs.
Mahajabeen Akhtar, (2008) 1 SCC 368; Union of India Vs. Dinesh K.K.,
(2008) 1 SCC 586; and Union of India & Anr. Vs. Hiranmoy Sen & Ors,
(2008) 1 SCC 630).
Doctrine of equal pay for equal work has assumed the status of
fundamental right in service jurisprudence, State of Kerala Vs. B. Ranjith
Kumar, (2008) 12 SCC 219). Therefore, incapacity of an institution to pay
cannot be a ground of denial of equal pay for equal work, vide Haryana
State Minor Irrigation Tubewells Corporation Vs. G.S. Uppal, (2008) 7
SCC 375).
The burden of establishing right and parity in employment is only on
person claiming such right. (see Uttar Pradesh State Electricity Board &
Anr. Vs. Aziz Ahmad, (2009) 2 SCC 606).
15.
Applying the said principle, the apex Court in Nehru Yuva Kendra
Sangathan v. Rajesh Mohan Shukla & Ors (supra) held that “once the
deputationists are discharging the same duties and are being paid salary
and other allowances then there is no reason to deny the same benefits to
those who are discharging the same duties and functions. Those
deputationists now absorbed obtained the order from this Court but the
direct recruits did not approach this Court, they were treated as a class
apart because of their source of recruitment. Once these persons are
already working for more than two decades discharging the same functions
413
and duties then we see no reason why the same benefit should not be given
to the respondents. Looking to the nature and duties of these respondents
we are of opinion that there is no reason to treat them differently”.
16.
Considering on the touch stone of the aforesaid decision, it appears
that Safei Moharirs having been discharging the similar nature of work as
stated above with that of the Munsarims, they have been granted equal pay
in Annexure-3 categorizing them in Class-III under OCS (CCA) Rules, 1962.
Subsequent fixation of pay created disparity under Annexures-4 and 5
resulting in grievance made vide Annexure-6 and on consideration of the
materials available views has been sought for from the Director of Land
Records and Surveys, Orissa, who in Annexure-8 considering various angle
has suggested that the pay of Safei Moharirs to be revised and fixed at
Rs.800/- at par with minimum pay fixed for Amins/Munsarims Grade-III and
on such suggestion, the Government acted upon the same allowing revised
fixed pay of all job contract Safei Moharirs working under the Revenue and
Excise Department both in Settlement and Consolidation Organisation with
effect from 01.01.1998 by giving revised pay scale Rs.800/- with existing
fixed pay 762/- vide Annexure-11. The said revised fixed pay has also been
acted upon and the benefit has been extended to the petitioners. Therefore,
the benefit of “equal pay for equal work” is admissible to the petitioners in
conformity with the nature of work discharged by them at par with Munsarim
Grade-III. Denial of such benefit by impugned order in Annexure-14 without
assigning any cogent reason is not tanable. The observation in the
impugned order that the job requirement of the Safei Moharirs is distinctly
different from that of Munsarim Grade-III and also general Moharir Grade-III
and is not comparable without taking into consideration the nature of work
done by that class of people long since amounts to non-application of mind
by opposite party no.1 and I am of the considered view that this impugned
order has been passed just to wriggle out of the rigorous of contempt
proceeding initiated against the opposite parties due to non-compliance of
the order dated 11.08.2009 passed in W.P.(C) No.12443 of 2004.
17.
Referring to M.L. Sachdev (supra) in which direction given to the
Union of India to constitute Monopolies and Restrictive Trade Practices
Commission was not complied with even by date to which time was
extended and no extension of time sought before expiry of extended date
and even after service of notice in contempt proceeding, the apex Court
held Union of India represented through the Secretary guilt of contempt.
Applying the same analogy in the present context while disposing of the writ
petition this Court fixed a time limit to consider the claims of Safei Moharirs
with regard to fixation of their scale of pay at Rs.2750/- by modifying the
414
[2014]
order of Tribunal within four months. Due to non-compliance thereof
contempt was filed thereby on receipt of notice the impugned order was
passed under Annexure-14, after expiry of four months period without
asking for extension of time for compliance of order for which the opposite
party has already violated the order and committed the contempt of Court.
But Mr. N.C. Panigrahi, learned Senior Counsel appearing for the petitioners
states that he is not keen to pursue the contempt proceeding against the
opposite party in view of the fact that when a question of petitioners’
livelihood is at stake, he only pursues his remedy to grant “equal pay for
equal work” by fixing scale of pay of the Safei Moharirs at Rs.2750/-. It is
further argued that these class of people have been working for long more
than two decades with this consolidated amount without having any future
prospect or the future career. Neither they have been given promotion nor
any financial benefits. Since their counter parts Munsarim Grade-III, who
have been allowed to get the scale at Rs.2750/-, therefore, the petitioners
should not be discriminated.
18.
In view of the aforesaid facts and circumstances, this Court is of
opinion that the impugned order passed under Annexure-14 is devoid of
merit and accordingly, the same is quashed. This Court directs the opposite
party to pay the Safei Moharirs the scale of pay at Rs.2750/- at par with their
counterparts the Munsarim Grade-III from the date such scale was given to
the Munsarim Grade-III within a period of three months from the date of
communication of this order. The writ petition is allowed accordingly.
2014 (II) ILR - CUT- 414
DR. B. R. SARANGI, J.
W.P.(C) NO.6108 OF 2014 (With Batch)
DAVIAN PARENTS ASSOCIATION & ORS.
……..Petitioners
.Vrs.
……..Opp.Parties
415
DAVIAN PARENTS ASSOCIATION-V- STATE
EDUCATION – DAV Public Schools – Admission of pass out
students of Class-X in Class-XI in the same school – Authorities cannot
fix percentage of marks for their admission – They also cannot hand
over T.C. or Migration Certificate to their students securing less
percentage of marks to seek admission else where – Direction issued
to the school authorities to admit the students of the same school first
taking it as promotion but not as fresh admission or readmission –
After accommodating all the students of the same school if any seats
are available in any stream, it is open for the authorities to fill up the
same by issuing advertisement and selecting candidates by any mode,
which will be just and proper.
(Para 29)
Case laws Relied on:1.1995 (5) SCC 512 : (Principal, Cambridge School-V- Payal Gupta & Ors.)
2.(2009) 1 SCC 794 : (Principal, Kendriya Vidyalaya & Ors.-V- Saurabhh
Chaudhary & Ors.).
For Petitioners
- M/s. R.K. Rath, Sr. Counsel along with
Mr. M.K. Sahoo, B.M. Sarangi, R.N.Mishra.
For Opp.Parties - Mr. Ashok Parija, Sr. Counsel
Mr. P. Panda.
Mr. A.K. Pandey, Standing Counsel (SME).
Date of hearing : 07. 07. 2014
Date of judgment : 11.07. 2014
JUDGMENT
DR. B.R.SARANGI, J.
All these writ petitions were heard together as common questions of
law and facts are involved therein and are disposed of by this common ju
dgment.
2.
DAVIAN Parents Association, Unit-VIII, Bhubaneswar and others as
petitioners in W.P.(C) No.6801 of 2014 have espoused the cause of its
wards, who were prosecuting their studies in DAV Public Schools and had
appeared in Class X CBSE Examination of 2014 by assailing the action of
the opposite parties initiating a process of selection by way of Entrance
Examination for admission into Class XI in different DAV Public Schools of
Bhubaneswar before the result of Class X CBSE Examination of 2014 being
published, which was the basis of admission of the passed out students of
their own schools in Class XI of their very schools in contravention of the
416
[2014]
CBSE affiliation norms, the scheme of CCE and also in violation of the
judgment of the Apex Court in Principal, Cambridge School v. Payal
Gupta and others, 1995 (5) SCC 512 and Principal, Kendriya Vidyalaya
and others v.Saurabhhh Chaudhary and others, (2009) 1 SCC 794.
3.
In W.P.(C) Nos. 11590 and 11591 of 2014 the petitioners have
challenged the action of the Principal, DAV Public School, Unit-VIII, opposite
party no.5 in handing over transfer certificate, conduct certificate and
migration certificate to the students so as to debar them from taking
admission in Class XI in the same school by way of class promotion.
4.
In W.P.(C) No.10603 of 2014, the petitioner who passed Class X
Examination securing 93.33% of marks in ICSE Examination, 2014, an
outsider, seeks to get himself admitted in DAV School against the remaining
seats after admission of the students of the same school is over.
5.
The sole point for consideration in these writ petitions is as to whether
after the publication of Class X CBSE results, the passed out students of the
DAV Public Schools are to be admitted in their very schools in Class XI or
the students securing less percentage of marks should be handed over TC
or Migration Certificate to seek admission elsewhere.
6.
DAV Public Schools have been established by getting permission and
recognition from the competent authority and affiliation from the CBSE. Subclause (i) of Clause 2 of the CBSE of the Affiliation Bye-laws defines
“Affiliation”, which means formal enrolment of a school among the list of
approved schools of the Board following prescribed/ approved courses of
studies up to Class VIII as well as those preparing students according to
prescribed courses for the Board’s examinations. Clause 3 of Chapter-II of
the Affiliated Bye Laws of the CBSE deals with “Norms for Affiliation”,
Clause-A deals with provisional affiliation, Clause-B Regular Affiliation, and
Clause-C deals with permanent affiliation. Under sub-clause (iii) of Clause-C
under the heading “Permanent Affiliation”, it states that the school seeking
permanent affiliation must also satisfy the conditions such as (a)
Infrastructure, (b) General,(c) Quality of Education. It is further stated that
unless the school in question satisfies the conditions stipulated under
clauses (a), (b) and (c), no permanent affiliation can be given.
7.
The CBSE authorities while prescribing the guidelines for adherence
to the norms of affiliation have also deprecated the schools giving
preference to the outside students for admission in Class XI and have
specifically instructed on 29.7.2009 in Circular No.1 under the heading
“admission of students”. Sub-clause (b) of the said circular reads as follows :
417
“(b) It is noted that some schools are giving preference to outside
students for admission in Class XI on the basis of higher marks
which should be avoided to prevent unhealthy competition. First
preference for Class XI admission shall be given to own students on
the basis of common admission criteria evolved by the school.”
A perusal of the above provision reveals that the said circular has
issued a mandate that first preference for admission in Class XI shall be
given by a school under CBSE Board to its own students on the basis of
common admission criteria evolved by the school. Some grading system
has been carried for Class IX and Class X from the academic session 200910. Under such system, it is provided that in the schools having status of
Senior Secondary level, the students may get class promotion to Class XI
without appearing in the Board Examination vide Annexure-2. The affiliation
norms under Annexure-1 and the scheme of examination reforms and
continuous and comprehensive evaluation under Annexure-2 state that the
students of a particular school are to be given compulsory preference for
admission into Class-XI of their school and the Apex Court in Payal Gupta
case (supra) has categorically held that admission to Class XI is neither a
fresh admission nor readmission, rather it is a class promotion in the school
having Class XI and XII. It has also been clarified that once a student is
admitted into a school having classes up to Class XII, he/ she ought not to
be ousted before completing the entire available classes from the school
and the Admission Test/ Entrance Test for the purpose of admission into
higher class within the same school has been depricated. Such admission
test or result in a particular class or school for the purpose of admission
would arise only if the student of one institution goes for admission to some
other institution. Therefore, no Entrance Test or Aptitude Test or any kind of
admission/ readmission to Class XI of students of a particular school is
permissible, but without adhering to the same and contrary to the CBSE
affiliation norms and scheme of examination reforms and continuous and
comprehensive evaluation, advertisement was published in daily ‘Samaj’ on
9.3.2014 inviting applications for appearing in the Aptitude Test/ Entrance
Test/Admission Test by paying Rs.1,000.00 vide Annexure-4. Hence, these
writ petitions.
8.
While entertaining W.P.(C) No. 6108 of 2014, this Court by order
dated 25.3.2014 issued notice to the opposite parties and in Misc. Case No.
5652 of 2014 passed interim order that no action would be taken pursuant to
the advertisement dated 9.3.2014 under Annexure-4 till the next date.
9.
Pursuant to the notice issued, the opposite parties have entered
appearance.
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[2014]
Opposite party no.4 has filed counter affidavit stating that the DAV
Public Schools are not governed by the Orissa Education Act, 1969 and
authorities of the said schools have not only designed to admit the students
of their schools in their particular schools, but to provide them seats in
different streams on priority basis and then to allot the remaining seats, if
any, to outside students.
10.
Referring to Saurabh Chaudhary case (supra), it is stated that the
schools having more than one streams can lay down the cut-off marks for
selection to different streams/ courses giving due regard to the aptitude of
the students and further in order to provide additional teaching time to the
students, admission before publication of the results is being considered
and in that context aptitude test was thought to be a better alternative. It is
averred that admission envisaged to be given on the basis of admission test
is only provisional one and that the students are to fulfill the criteria laid
down by CBSE for prosecuting their studies in Class XI since the Apex
Court in Saurabh Chaudhary case (supra) has authorized them to fix cutoff marks in different streams and the schools having multiple streams in
Class XI admission thought of providing teaching of one month before
publication of the Class X CBSE Examination result, in the interest of the
students, as the cut-off marks necessarily had to be on the basis of the
marks secured in the aptitude test. It was further stated that in none of the
judgments, i.e., Saurabh Chaudhary case (supra) and Payal Gupta case
(supra) the Apex Court dealt with the issue of Entrance Test. The issue
involved in Payal Gupta case (supra) and Saurabh Chaudhary case
(supra) was as to whether the cut-off mark fixed by a school for admission
into Class-XI was proper or not. The Apex Court has held that any school
having only one stream in Class XI has to admit the students of Class X in
Class-XI without prescribing any cut-off mark and where there is more than
one stream the school is free to prescribe the cut-off marks for different
streams.
11.
It is stated that in order to maintain transparency in the selection,
advertisement was published in the newspapers and therefore, no illegalities
or irregularities had been committed by doing that and the entire action was
in conformity with the judgment of the Apex Court in Saurabh Chaudhary
case (supra) and Payal Gupta case (supra).
12.
Mr.R.K.Rath, learned Sr.Counsel appearing for the petitioners
submitted that the action of the school authorities was in gross violation of
the judgments of the Apex Court in Payal Gupta case (supra) and
Saurabh Chaudhary case (supra) and further issuance of advertisement
419
inviting application and appearing in aptitude test was contrary to
Annexures-1 and 2. He further submitted that instead of asking the students
to exercise their option for taking admission in any stream they like in Class
XI, inviting application from outside candidates for appearing in Aptitude
Test as well as from their own students, was not proper. According to him, if
the students of a particular school will not be accommodated in the stream
they like, it will amount to non-compliance with the judgments of the Apex
Court in Payal Gupta case (supra) and Saurabh Chaudhary case
(supra). Without following the procedure envisaged under Annexures-1 and
2, the guidelines issued by the CBSE Board and the law laid down by the
Apex Court in the aforesaid judgments, the action of the opposite parties in
publishing the advertisement cannot be sustained.
13.
It is stated that in the year 2012 similar steps were taken by the
school authorities. The very Parents’ Association also had approached this
Court by filing W.P.(C) No. 4050 of 2012 and this Court deprecating fixation
of cut-off marks for giving provisional admission to Class XI in respect of the
students of a particular school who passed Class X examination conducted
by the CBSE Board quashed the notices issued on 27.8.2011 and 1.2.2012
and directed the authorities of the concerned schools to give admission to
their own students in Class XI in Science, Commerce and Humanities
streams and after giving admission to their own students, to adopt Entrance
Test for selection to fill up the remaining vacant seats from amongst the
outside candidates in the respective courses on the basis of merit.
14.
The said judgment of this Court dated 18.4.2012 passed in W.P.(C)
No.4050 of 2012 was assailed in appeal bearing W.A.No. 131 of 2012 and a
Division Bench of this Court by order dated 12.2.204 disposed of the said
appeal observing that in view of the law laid down by the Apex Court in
Saurabh Chaudhary case (supra), there could be no objection to lay down
the cut-off mark for selection in suitable stream giving due regard to the
marks secured in Aptitude Test, where there are more than one stream.
However, the students from the same school could not be thrown out on the
basis of the marks in Class X Examination. Since the petitioners in that case
had already been admitted and in view of the law laid down in Saurabh
Chaudhary (supra), no further order was passed and the Writ Appeal was
disposed of.
15.
Mr.Ashok Parija, learned Sr.counsel appearing for opposite parties 6
to 9, strenuously urged that in view of the law laid down by the Apex Court
in Payal Gupta case (supra) and Saurabh Chaudhary case (supra),
there is no bar for fixation of cut-off mark for admission of the students in
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[2014]
their own school where there are multiple streams available in Class-XI
basing upon the marks secured in Class-X Examination. After fixation of the
cut-off mark and after giving admission to the students of the own school, if
any seat remains vacant, in that case, the authorities are at liberty to fill up
the said seats by inviting fresh applications from the outside students even
though the students from the own school are available to take admission in
respect of the remaining seats. He distinguished the judgment of the Apex
Court in Saurabh Chaudhary case (supra) stating that since there was
only one stream available in Kendriya Vidyalaya, the Apex Court directed to
get the concerned student admitted in the school in Science stream and had
there been multiple streams, then the result would have been different.
16.
Mr.P.Panda, learned counsel appearing for opposite party no.4,
supporting the contention raised by Mr.Parija, learned counsel appearing for
opposite parties 6 to 9 submitted that fixation of cut-off mark is permissible
for admission into Class-XI and no illegality or irregularity is committed by
fixation of such cut-off marks by the authorities.
17.
Though no notice was issued to the CBSE Board, Mr.T.N.Pattnaik,
learned counsel who usually appears for the CBSE was called upon to
assist this Court for a just and proper adjudication of the case and on that
basis, he submitted that the DAV public schools have been given affiliation
for allowing the students to prosecute the studies in Class XI. Since there
are infrastructural facilities available in the said schools, the authorities have
been permitted to admit the students in Class XI and except granting
affiliation, the CBSE authorities have nothing to do with the admission of the
students as it is the prerogative of the institution itself to do that. He has
referred to the Affiliated Bye Laws of the CBSE Board and submitted that
the institutions having satisfied the requirements of sub-clauses (a), (b) and
(c) of Chapter-II, were granted permanent affiliation and also candidly
submitted that while granting permanent affiliation, it has only granted
affiliation to the courses and not the number of seats of a particular stream
of the institution.
18.
With such background of the case, it is now to be considered with
regard to applicability of the judgments of the Apex Court in Payal Gupta
case (supra) and Saurabh Chaudhary case (supra) to the present
context.
19.
So far as the law laid down by the Apex Court in the aforesaid
judgments is concerned, there is no dispute that the Apex Court has framed
a guideline on the treatment of students of their own school. That apart, in
421
Saurabh Chaudhary case (supra), there is a specific observation by the
Apex Court that the school where a student is prosecuting his/her study
cannot deny admission to him/her on the ground that he/ she has failed to
secure the cut-off mark in Class X CBSE Board Examination. In addition to
that it has been specifically observed that it would be quite unreasonable
and unjust to throw out a student from the school because he failed to get
the cut-off marks in the Class X Examination and after all the school must
share at least some responsibility for the poor performance of its student
and should help him in trying to do better in the next higher class. Keeping
in view the judgment of the Apex Court in Payal Gupta case (supra), it has
been specifically observed that the authorities cannot deny to give
admission to their own students as it has been held that on passing the
examination, promotion from one class to the next higher class does not
involve any fresh admission or readmission in the school and whether the
examination is internal or a general examination by an external statutory
agency, it makes no difference in the position. It has also clearly held that a
student of his/her own school cannot be denied admission to higher class as
it does not involve fresh admission or readmission, meaning thereby a
student who was admitted in the school whether the examination is internal
or a general examination by an external statutory agency, the authorities
should automatically give him/her promotion to the higher class and such
right to continue in the higher class cannot be taken away by the school
authorities even though the student concerned has secured less percentage
of marks. In other words, the school authorities are obliged under law to
allow all the students, who are prosecuting their studies in the same school,
to prosecute their studies in the higher class bereft of marks secured in the
last examination.
20.
In paragraph 11 of Saurabh Chaudhary case (supra), the decision
in Payal Gupta case (supra) has been considered in extenso which reads
as follows:
“The submission that the decision in Paya would not apply to Central
Schools is otherwise also quite unsound. It is indeed true that the
case of Payal Gupta arose under the provisions of the Delhi School
Education Rules, but certain observations and findings in the
decision are clearly of general application. In para 5 of the judgment
the Court framed two questions arising for its consideration as
follows:
“5. In view of the facts and circumstances stated above the short
question that arises for our consideration is whether the Head of a
private unaided school has the power to regulate admission by
422
[2014]
prescribing the criterion of cut-off level of marks under Rule 145 and
on that basis may deny admission to the students of its own school
to Class XI who had passed Class X, Central Board of Secondary
Education with marks less than 50% in aggregate. A further question
may arise whether in the aforementioned situation a student who
passes Class X would be entitled to automatic promotion to the next
higher class i.e. XI class or it would be a case of fresh admission or
readmission to the next higher class in the same school.”
As may be seen the second question is in general terms. Answering
the second question, in para 6 of the judgment, the Court observed
as follows:
“6. … It may, however, be pointed out that it is common knowledge
that once a student is given an admission in any educational
institution by making an application in the manner prescribed by Rule
135, he is not required to submit fresh application forms after he
passes a class for his admission to the next higher class. Once a
student is given admission in any educational institution the same
continues class after class until he leaves the school. In these facts
and circumstances it is difficult to accept that after a student passed
his tenth class of a public examination his admission to the next
higher class i.e. eleventh class would be a fresh admission or
readmission.”
Further, in para 7 the Court observed as follows:
“7. … If a student who fails at any public examination could not be
denied readmission in the school or class then it is beyond
comprehension as to how a student who passed the public
examination can be denied admission in a higher class in the same
school from which he had appeared at such examination. That being
so, the right of a student to continue his studies further in the higher
class, in the same school, after passing any public examination,
cannot be worse than the right of a student who fails at any such
public examination.”
In Payal, thus, this Court clearly held that on passing the
examination promotion from one class to the next higher class does
not involve any fresh admission or readmission in the school and
whether the examination is internal or a general examination by an
external statutory agency makes no difference in the position.”
423
21.
Considering the admission guideline of 2004-2007 in Saurabh
Chaudhary case (supra), in paragraphs 17 and 18, the Apex Court held as
follows :
“17. Reading the 2004 and the 2007 provisions together would make
it clear that any preference in favour of the school’s own students
that might have been assumed earlier has now been provided for
expressly. But that alone, as we see in the present case does not
prevent the school from denying admission to one of its own
students on the ground that he/she failed to secure the cut-off marks
in the Class X CBSE examination.
18. One can have no objection to a school laying down cut-off marks
for selection of suitable stream/course for a student giving due
regard to his/her aptitude as reflected from the Class X marks where
there are more than one stream. But it would be quite unreasonable
and unjust to throw out a student from the school because he failed
to get the cut-off marks in the Class X examination. After all the
school must share at least some responsibility for the poor
performance of its student and should help him in trying to do better
in the next higher class. The school may of course give him the
stream/course that may appear to be most suitable for him on the
basis of the prescribed cut-off marks.”
22.
In view of the above position, there is not an iota of doubt that a
student of the same school cannot be denied to prosecute his/her studies in
the higher class in the same school even though he/she has secured less
percentage of marks. So far as allocation of streams is concerned, on the
basis of the admission guidelines of 2004 and 2007, the Apex Court has
also held that any preference to school’s own students that might have been
assumed earlier has now been provided for expressly, but that alone does
not prevent the school from denying admission to one of its own students on
the ground that he/ she failed to secure the cut-off marks in the Class X
CBSE Examination. Though the Apex Court has held that the school
authorities have got power for fixation of cut-off marks, that ipso facto
cannot deny a student of the own school to prosecute his/her studies in the
higher class on the basis of his/her aptitude in a particular stream. That itself
will be unreasonable and unjust to throw away a student from the school
because he/she failed to secure the cut-off mark in Class X examination.
After all, the school must share some responsibility for the poor performance
of its student and should help him/her in trying to do better in the next higher
class. Therefore, if the seats are lying vacant in a particular stream for the
424
[2014]
reasons of fixation of cut-off mark and the students of the same school are
awaiting to prosecute their studies in the very same stream, then they
should have been given opportunity to exercise their option to get
themselves admitted in the said stream. After exhausting the seats meant
for the students of the same school, who exercised their option, if seats are
available, then the school authorities may go for advertisement for filling up
the vacant seats or to follow any other mode, which will be just and proper in
the interest of justice and the same would be in conformity with the
judgments of the Apex Court in Payal Gupta case (supra) and Saurabh
Chaudhary case (supra).
23.
To illustrate the above contention, in compliance with the order
passed by this Court on 20.6.2014, a chart has been furnished by
Mr.P.Panda, learned counsel appearing for opposite party no.4, along with
an affidavit sworn in on 26.6.2014. A detailed information chart in respect of
different DAV public schools of Bhubaneswar and Cuttack has also been
given in a tabular form, which reads as follows:
Sl.
No.
1
425
DETAIL INFORMATION IN RESPECT OF DAV SCHOOLS OF BHUBANESWAR & CUTTACK
No. of seats sanctioned stream
No. of
No. of stream wise vacant
wise
student
No. of
seats
s taken
students
Name of School
T.C.
passed
AS ON Scien Comme
Comm
Class X
Science
Arts
Arts
21.06.
erce
ce
rce
2014
DAV Public School,
Unit-8, BBSR
250(5 X
50)
90
(2X 45)
40
(1X40)
287
86
250
90
40
DAV Public School,
CSPUR, BBSR
264
(6 x 44)
88
(2 x 44)
44
(1x 44)
273
25
264
88
44
DAV Public School.
Pokhariput, BBSR
DAV Public School.
Kalinga Nagar,
BBSR
DAV Public School.
Cuttack
160
(4 X40)
40
(1X40)
40
(1X40)
186
23
160
40
40
48
(1X48)
-
48
(1X48)
82
4
48
-
48
200
(4x50)
80
(2x40)
-
485
114
22
46
-
80
(2x40)
-
-
140
61
2
-
-
2
3
4
5*
6**
24.
LR DAV Public
School, Gandarpur,
Cuttack
Another chart has also been submitted with regard to the admission
status of own students of different DAV Public Schools of Bhubaneswar
and the cut-off CGPA, which is as follows:
[2014]
426
Sl. No
Name of Schools
No. of students
passed
No. of students
offered science
Cut-off CGPA in
Science/%
No. of students
offered Commerce
Cut-off CGPA in
Commerce /%
No. of students
offered Arts
Cut-off CGPA in
Arts/%
No. of Students
admitted in Science
No. of Students
admitted in
Commerce
No. of Students
admitted in Arts
Total No. of students
admitted
ADMISSION STATUS OF OWN STUDENTS IN DIFFERENT
DAV SCHOOLS OF BHUBANESWAR AND CUT-OFF CGPA
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13
)
1
DAV Public
School, Unit8, BBSR
287
217
8.2
(77.9%)
277
6.4
(60.8%)
All
Students
N.A
.
168
33
0
201
273
200
8.6
(81.7%)
268
6.4
(60.8%)
All
Students
N.A
.
164
25
1
190
186
144
8.2
(77.9%)
185
6.2
(58.9%)
All
Students
N.A.
98
10
82
59
8 (76%)
No Commerce
Stream
All
Students
N.A
.
29
NA
2
2
4
DAV Public
School,
CSPUR,
BBSR
DAV Public
School,
Pokhariput,
BBSR
DAV Public
School,
Kalinga
Nagar, BBSR
0
0
108
29
25.
In course of hearing, a query was made by the Court from the
counsel appearing for opposite party nos.4 and 6 to 9 as to how admission
process is being undertaken in the schools and whether the same is in
conformity with the judgments of the Apex Court in Saurabh Chaudhary
case (supra) and Payal Guptacase (supra) and referring to the aforesaid
charts, it was submitted that in respect of DAV Public School, CSPUR, 273
students have passed out in Class X Board Examination, 2014 and in DAV
Public School, CSPUR the total number of seats in Class-XI in Science
stream are 264, in Commerce 88 seats and in Arts 44 seats. It is stated that
out of 273 passed students from Class X, transfer certificate and migration
certificates have been handed over to 25 students, but the reasons of such
handing over those certificates has not been specified in the affidavit filed by
opposite party no.4. On the contrary, learned counsel for the petitioner
submitted that because of securing less percentage of marks, those 25
students have been handed over transfer certificate and migration certificate
etc. to prosecute their studies elsewhere. If this is the reason, then the
consequence will be disastrous. The school authorities cannot deprive a
student of prosecuting his/her studies in his/her own school for having
427
secured less percentage of marks and hand over transfer certificate and
migration and other required documents to allow him/her to prosecute
studies elsewhere, thereby violating the observation of the Apex Court in
Payal Gupta case (supra) and Saurabh Chaudhary case (supra). It is
further stated that so far as Science stream is concerned in DAV Public
School, CSPUR, the cut-off CGPA has been fixed at 8.6 (81.7%). Therefore,
the number of students having secured 81.7% marks and above of the said
school, who were offered Science stream was 200, out of them only 164
students have taken admission in Science stream as against the total
number of 264 seats. So far as Commerce Stream is concerned, the cut-off
CGPA has been fixed at 6.4(60.8%) and though 268 students were offered
to take admission in Commerce stream available in DAV Public School,
CSPUR only 25 candidates have taken admission as against the total
available seats of 88. Therefore, in Science stream, there still exist 100
seats to be filled up by DAV Public School, CSPUR. If 273 students have
passed out in Class X and seats are lying vacant, the school authorities
would have asked all the students of the same school to exercise their
option and according to their option they should have chosen the subject
and got themselves admitted in a particular stream. By fixation of such cutoff marks, the school authorities have deprived the students of their own
school to take admission in Science stream and on the other hand, they
have kept 100 seats for outside students, which is not the purport of the
judgment rendered by the Apex Court in Payal Gupta case (supra) and
Saurabh Chaudhary case (supra).
26.
Even though seats are available in their own school, where the
students can be accommodated, as per their own aptitude in a specific
stream on the plea of cut-off marks the authorities have deprived the
students of their own schools to take admission to a particular stream as per
their aptitude. The Apex Court in Payal Gupta case (supra) and Saurabh
Chaudhary case (supra) never intended to deprive the students of their
own school to prosecute their studies in the same school, rather it is
otherwise, to mean, all efforts should be made by the school authorities to
allow their own students to prosecute in the same school and if any seat is
left out, then it will be open to the school authorities to fill up the same by
issuing advertisement or other methods suitable to them for screening the
students to fill up the said seat in the school in question.
27.
In course of hearing, it was stated that only 20 candidates were
available and the school authorities were interested to get them admitted in
the same school. Considering the greater interest of the students and
different DAV Public Schools of Cuttack and Bhubaneswar, the Parents’
428
[2014]
Association relinquished its contention with regard to furnishing the names
of those 20 candidates instead of wanting that the case be decided on its
own merit.
28.
In view of the above submission, this Court has proceeded with the
matter keeping in view the available materials and the contention raised on
behalf of the parties. Therefore, after hearing the learned counsel for the
parties, this Court has come to a definite conclusion that there is no dispute
with regard to the law laid down by the Apex Court in Payal Gupta case
(supra) and Saurabh Chaudhary case (supra) save and except the only
controversy that remains with regard to their application by the school
authorities.
29.
After analyzing the materials available on record and keeping in view
the judgments of the Apex Court in Payal Gupta case (supra) and
Saurabh Chaudhary case (supra), this Court directs the opposite partiesschool authorities to admit the students of the same school first because it is
a promotion and not a fresh admission or readmission in Class XI. Taking
into account the results of Class X Examination, the students of the same
school have to be admitted in different streams as per their aptitude and
option exercised by them and after accommodating all the students of the
own school, if at all any seats are available in any stream, it is open to the
school authorities to fill up the same by issuing advertisement and selecting
the candidates for admission by any mode, which will be just and proper.
Depriving admission to the students of the same school in the name of
securing less percentage of marks in Class X and handing over transfer
certificates/migration certificates etc. to them being unjust and unfair, is not
appreciated by this Court because by that the school authorities relish to
shirk their responsibility, which is contrary to law laid down in Saurabh
Chaudhary case (supra).
30.
With the aforesaid observation and direction, the writ petitions are
disposed of. No cost.
Writ petitions disposed of.
429
2014 (II) ILR - CUT- 429
D. DASH, J.
GOVT. APPEAL NO.9 OF 1997
STATE OF ORISSA
……..Appellant
.Vrs.
RADHAKANTA BEHERA @ MALHU
………Respondent
PENAL CODE, 1860 - S. 376 (1)
Rape – F.I.R. lodged long after the first sexual assault – Trial
Court found it with consent and it was given a colour of without
consent when pregnancy came to notice – Victim used to stay in the
house of the respondent as a maid servant – It is improbable for the
victim to believe the assurance of marriage given by the respondent
being aware of the fact that the respondent is an aged and married
person having two wives and children – Held, it was a case of
consensual sexual act and the order of acquittal passed by the learned
trial Court does not warrant interference.
(Paras 8 & 9)
For Appellant - Mr. S. K. Nayak, Addl. Govt. Advocate
For Respondent - M/s. D. Nayak, M. Mohanty,
R. K. Pradhan, N.K. Mohanty,
B. K. Das, B. Rout.
JUDGMENT
The State has called in question the order of acquittal passed by the
learned Assistant Sessions Judge-cum-Civil Judge(S.D.), Balasore in
Sessions Trial No.21/82 of 1993 acquitting the respondent the charge under
section 376(I), I.P.C.
2.
The short case of the prosecution is that the victim P.W.7 was
working as a maid servant in the house of the respondent and used to stay
in the house. It is alleged that five months prior to the lodging of the F.I.R.
one night the respondent came near her, squeezed her breasts and
committed sexual intercourse against her will and consent. It is also stated
that when the victim protested, the respondent then had assured that he
430
[2014]
would marry her and keep her as his wife. It is also alleged that in the same
way on three different occasion, the respondent enjoyed the victim sexually.
In this way when she became pregnant, the respondent was requested by
her for marriage and it is stated that the respondent then instead of instantly
backing out of his assurance, went on deferring the matter every time. Since
like this, four months elapsed, the victim could well guess the respondent’s
mind of cheating that the promise was only to fulfil his sexual lust. So, she
informed the matter to her parents. A village meeting was convened where
the respondent although is said to have confessed the guilt as also the
author of such pregnancy caused to the victim, did not agree for marriage.
Therefore, on 10.03.1992 F.I.R was lodged which led to the registration of
the case and commencement of investigation. Finally on completion of
investigation, charge-sheet was placed against the respondent for being
tried in the court of law for the above offence.
3.
The defence took the plea of complete denial and false implication in
view of the land dispute existing between him and the victim’s father and
also his enmity with other villagers.
During trial, prosecution examined eight witnesses. P.W.7 is the
victim, when P.W.2 is her father. P.Ws. 1,5 and 6 are the witnesses said to
have been present in the meeting where the accused is said to have
confessed his guilt with regard to authorship of pregnancy caused upon the
P.W.7. P.Ws.3 and 4 are the doctors, who examined victim and conducted
the ossification test of the respondent. The investigation officer has been
examined as P.W.8. Besides the above, the prosecution has proved the
F.I.R. as Ext.4 and other documents. The defence has examined none
despite of the opportunity being given.
4.
Learned counsel for the State submits that the Trial Court ought to
have believed the evidence of P.W.7 and that would have been found to be
sufficient to convict the respondent. It is also his submission that the finding
of the trial court that P.W.7 was a consenting party to the said incident is
based on improper appreciation of evidence. It is his further submission that
the Trial Court has erred in law by not concluding that the victim was below
16 years of age at the relevant point of time and, as such, her consent, if
any, was immaterial. In view of the above, he urges that the trial court’s
improper appreciation of evidence having formed the foundation for the
acquittal, the same has caused grave miscarriage of justice. So, he urges for
interference with the said order of acquittal in this appeal.
5.
Learned counsel for the respondent submits that in view of the
evidence let in by the prosecution and upon their proper analysis, the trial
431
STATE OF ORISSA -V- RADHAKANTA BEHERA
court has quite reasonably given the finding that it was a consensual sexual
act holding the victim to be more than 16 years of age at the relevant point of
time in view of the medical and other evidence. Therefore, she urges that the
finding is not at all perverse being based on proper appreciation of evidence,
the order of acquittal calls for no interference.
6.
The settled position of law regarding the powers to be exercised by
High Court in an appeal against the order of acquittal is that while High Court
has full powers to appreciate the evidence upon which an order of acquittal
is based and to act on its own thereof, it will not do so lightly and will be slow
to reverse an acquittal, except for strong and compelling reasons when it
differs from that of the trial court. The paramount consideration in the matter
is to avoid miscarriage of justice. Of course where two views are possible
and the trial court has taken a reasonable view and acquitted the accused,
the High Court in appeal cannot interfere with such finding but when there is
perverse finding based on erroneous appreciation of evidence and a serious
miscarriage of justice has been caused, the High Court has ample power to
reverse that finding.
7.
Keeping the aforesaid rival submissions in mind and also the settled
position of law, as stated above, it is necessary to have a look at the
evidence of the victim P.W.7 and other witnesses so as to examine the
sustainability of the order of acquittal.
First of all, with regard to the age of the victim, it is seen that P.W.7
has claimed herself to be aged about 13 or 14 years at the relevant point of
time. The father of the victim has also deposed that the victim was then
aged about 14 years. Radiologist has been examined as P.W.4 and his
ossification test report is Ext.3. He has estimated the bone age of the victim
to be more than 15 years and less than 17 years during the time of
examination. P.W. 3 has also assessed the dental age of the victim to be 14
to 17 years. There is no documentary evidence with regard to the age of the
victim. The only document, i.e., horoscope although shows the age of the
victim to be below 16 years, that horoscope has also not been proved by the
person who had prepared it i.e., the maker. The investigating officer has
seized the admission register of the school containing entry of the admission
of the victim therein. The date of birth has been indicated there as
25.03.1991. But that also has also not been proved in accordance with law.
P.W.7 is silent as to her admission in any school when she appears to be a
literate. The trial court appears to have rightly taken note of, the tendency of
the parents to reduce the age while putting their children in the school.
Cumulatively viewing all these, the trial court has taken the view that the
victim was not below 16 years of age at the relevant point of time. The view,
432
[2014]
in my considered opinion, appears to be based on proper appreciation of
evidence and upon due analysis. Therefore, this Court finds no justification
to accord disagreement to it in the absence of any strong and compelling
reason.
8.
Now, coming to the incident, it is the prosecution case that the victim
was working as a maid servant in the house of the respondent and used to
stay there. P.W.7 has deposed that one night when she was sleeping, the
respondent came and enjoyed her sexually. Her evidence is to the effect that
she shouted when respondent stopped her and immediately promised her to
marry and thereafter in this way continued to sexually exploit her. It is her
evidence that the respondent was having two wives and children and as
stated by P.W. 2, mother of the victim was also serving under the
respondent. But she has never disclosed about the incident to anybody in
the house or outside and it is only after the bulging of her belly, she told to
her mother that too on being asked. She asserts that first she disclosed to
her mother about her pregnancy but the mother has not been examined. She
has stated that altogether five to six times she was sexually enjoyed by the
respondent but on no occasion anybody did get a trace of it. It is also her
evidence that her father’s house and the house of the respondent are just
intervened by a tank. The respondent is aged about 45 to 47 years having
two wives and four to six children who reside under one roof. It is extremely
hard to believe that such sexual relationship between the victim and the
respondent would be continuing in the house having so much number of
inmates but would not even come to be known to any of the family members.
The victim did not disclose it to anybody at any point of time and thus
maintaining total silence till her pregnancy become noticeable rather appears
to be a conduct favouring the case of consent.
The trial court’s conclusion is that the sexual relationship was with
consent and given a colour of without consent as the pregnancy came to the
notice. Taking into consideration the other evidence that the victim was
already aware that the respondent was an aged and married person having
wives and children it is improbable that the promise to marry and assurance
even if was given by the respondent would satisfy the victim in allowing him
to enjoy sex which is her precious treasure and thereby exploit her. The
father of the victim does not say the victim to have ever disclosed that the
respondent first committed sexual intercourse without her will and consent
and that she later allowed the same, believing his promise to marry. His
evidence is simply on the score that it was reported by the victim P.W.7 that
the respondent is the author of such pregnancy and respondent had assured
to marry but refused. In view of all the above, the trial court’s conclusion is
433
STATE OF ORISSA -V- RADHAKANTA BEHERA
not found to be based on improper appreciation of evidence and this Court
finds no such reason so strong and compelling to expressed disagreement.
9.
Next, coming to the extra-judicial confession of the respondent, P.W.
1 is categorical that respondent refused to attend meeting and so also P.W.
6 and in view of above the evidence of P.W. 5 and P.W. 2 appears to have
been rightly doubted. Similarly P.W. 7 says that respondent simply
confessed to be the author of pregnancy and nothing more. In view of above,
the Trial Court appears to have rightly discarded the prosecution evidence
on the above score.
Cumulatively viewing the evidence of the prosecution, in the facts
and circumstances of the case, the finding of the trial court that it was a case
of consensual sexual act does not appear to be based on improper
appreciation of evidence and no such infirmity is noticed therein so as to
stand as strong and compelling reason for being differed with.
.
In view of the aforesaid discussion, this Court finds that the order of
acquittal does not warrant interference.
10.
The Government appeal, thus, merits no acceptance and the same
stands dismissed.
Appeal dismissed.
2014 (II) ILR - CUT- 433
D. DASH, J
FIRST APPEAL NO. 263 OF 2000
JOGESWARI PRADHAN
……..Appellant
.Vrs.
RAJIA @ RAJENDRA PRADHAN
……..Respondent
ADOPTION - Burden of Proof - Person who claims to have been
adopted has to discharge such burden.
In the instant case, there is no acceptable evidence with regard
to performance of giving and taking ceremony - The defendant has not
adduced any evidence that since the time of his adoption he was
having no connection with his paternal parents and he has been
434
[2014]
deprived of his paternal property - No body has come to the witness
box to say that due to his special relationship he has occasion to
watch that Hiradhar and his wife Hema treated the defendant as their
son - Learned trial court adversely viewed the plaintiff’s case for her
non-examination although no burden on her to prove adoption - Held,
finding of the trial court is set aside and it is held that the defendant is
not the adopted son of Hiradhar and Hema and as such he has no right
over their properties.
(Paras 10 & 11)
Case laws Referred to:1. (1987) 2 SCC 338 : Rahasa Pandiari (Dead) by LRs & Ors. -VGokulananda Panda & Ors.
2. AIR 1959 SC 504 : Kishori Lal -V- Mt. Chaltibai
3. 1989 OLR(I) 425 : Prafulla Kumar Biswal -V- Sashi Beura & Ors.
4. AIR 1971 Orissa 299 : Sulei Bewa & Ors. -V- Gurubari Rana
5. AIR 1999 Orissa 32 : Arjun Banchhar -V- Bacchi Banchhar
6. AIR 1970 SC 1286 : L.Debhi Prasad (dead) by LRs -V- Smt. Triveni
Devi & Ors.
For Appellant
- M/s. B.H.Mohanty, D.P.Mohanty, J.K.Bastia,
B.Das, J.K.Mohanty, S.C.Mohanty
For Responden - M/s. S.N.Mohapatra, K.R.Mohapatra,
S.Ghosh, S.Mishra
Date of hearing : 21.03. 2014
JUDGMENT
In the present appeal, the unsuccessful plaintiff as appellant has
challenged the judgment and decree dated 05.08.2000 and 11.08.2000
respectively passed by the learned Civil Judge (Sr. Division), Bargarh in Title
Suit No.43 of 1995 non-suiting the appellant (plaintiff) and refusing to grant
relief as prayed for against the respondent (defendant).
2.
For the sake of convenience, the parties hereinafter have been
referred to as they have been arraigned in the court below
3.
The suit of the plaintiff is one for declaration that the defendant is not
the adopted son of Hiradhar Pradhan, her father with the relief of
confirmation of possession in respect of the suit schedule property and
alternative prayer for recovery of possession.
435
JOGESWARI PRADHAN -V- RAJIA
4.
According to the case of the plaintiff, one Budhu Pradhan was the
common ancestor and he died leaving behind his four sons, namely,
Damodar, Gadadhar, Dwarika and Hiradhar. The plaintiff is claimed to be the
sole legal representative of Hiradhar on the death of her mother Hema in the
year 1991. As per the case of the plaintiff, defendant is the son of late
Dwarika. So, plaintiff claims to be the only daughter and successor-ininterest of late Hiradhar and it is said that the defendant falsely stakes his
claim to be the adopted son of Hiradhar. Accordingly, the plaintiff has
claimed reliefs as stated above. The plaintiff while denying the status of
defendant as the adopted son of her father Hiradhar, claims to be in
possession of the suit schedule properties and stating that the defendant is
in a mood to dispossess her, the suit has been filed.
4.
The defendant by filing the written statement contested the suit.
Admitting himself to be the natural son of late Dwarika Pradhan, he has
specifically pleaded to have been adopted by Hiradhar and his wife Hema,
i.e., by his paternal uncle and aunt, when they had no child. It is the further
case of the defendant that the adoption took place on SRIPANCHAMI day in
the month of Magha in the year 1952. As stated, the ceremony to that effect
was performed in the house of Hiradhar. It is also stated that for all purpose
and in every sphere, he was recognized as the son of Hiradhar when
Hiradhar and his wife Hema had all along given out to that effect. The
defendant claims to have been residing with the adoptive parents all
throughout their life and he further claims to be in occupation of the house
where Hiradhar and Hema were residing. The defendant admits the plaintiff
to be his sister living with her husband, but denies her case with regard to
possession while claiming the possession unto himself. With these
pleadings, he prayed for dismissal of the suit.
5.
On the above rival pleadings, the trial court framed six issues. Out of
which the most important one is the issue relating to adoption as claimed by
the defendant and denied by the plaintiff as the fate of the suit hinges upon
the answer on this particular issue. The parties have adduced the evidence
during the trial of the suit. When plaintiff has examined five witnesses
including her husband P.W.4, the defendant has also examined witnesses of
equal numbers including himself as D.W.2.
The trial court on analysis of evidence, both oral and documentary in
its wisdom, has answered Issue No.2 holding the defendant to be the
adopted son of Hiradhar and Hema, the parents of the plaintiff. The suit of
the plaintiff has accordingly been dismissed. While simultaneously
answering another issue no.5 as regards limitation also against the plaintiff.
436
[2014]
6.
In this appeal, the plaintiff mainly assails the finding on Issue No.2
and next on that issue no.5.
Learned counsel for both the sides also advanced argument and
counter argument at length on above issues.
The learned counsel for the appellant (plaintiff) attacked the finding
on the said issue of adoption as contrary to the evidence on record and
based on improper rather perverse appreciation of evidence. On the
contrary, learned counsel for the respondent (defendant) strenuously
supported the finding on said issue rendered by the trial court against the
plaintiff and in favour to the defendant. According to him, the oral and the
documentary evidence when taken into consideration together with the facts
and circumstances, as they emanate from the evidence, as regards the
conduct of the parties, the recognition of defendant in the society as well,
the finding as rendered by the court below is wholly sustainable and there
arises no justification to hold the contrary.
7.
In the touchstone of the pleadings of the parties, the evidence
adduced by the parties with regard to the factum of adoption, both oral and
documentary, keeping in view the settled position of law concerning the
adoption as well as the appreciation of evidence and looking at the burden of
proof in such case, this Court is now called upon to examine the
sustainability of the finding of the trial court on Issue No.2.
8.
Before going to take up that exercise, it requires consideration and
disposal of an application under Order-41, Rule-27, C.P.C. filed by the
plaintiff for adduction of additional evidence, i.e., the certified copy of an
order passed in Consolidation Revision No.473/1995 and the certified copies
of the corrected R.O.Rs.
8.1
Learned counsel for the appellant (plaintiff) submits that these
documents having coming into being after the disposal of the suit and those
being public documents, whatever may be the evidentiary value as well as
the impact of those in answering the Issue No.2, as it may be, there remains
no justification to refuse to admit those in evidence for a just and proper
decision of the case.
Learned counsel for the defendant, on the other hand, resists the
moves. According to him, these are post litem documents and, therefore,
those are hardly of any significance in addressing the present dispute
between the parties.
The first document is a certified copy of the order passed in
Consolidation Revision. That was filed by the present plaintiff against the
recording of the land of her father in favour of the defendant indicating the
437
defendant to be the son of Hiradhar. The revision was filed in the year 1995
and disposed of on 30.05.2002. So it is prior to the filing of the suit and the
revision was filed challenging the entry of the name of the defendant and
showing him to be the son of Hiradhar. This is just a conduct of the plaintiff
that having come to know about the recording and the reason for the same
instead of sitting silent, she had knocked at the door of the authority as per
law. In that very revision, the pendency of the present appeal was also
submitted. The certified copy of the two Records of Rights, one concerning
land of Mauza-Talmunda and the other one relating to the land of MauzaDekulaba appears to have been prepared on the basis of the aforesaid order
in the Consolidation Revision and in another Revision Case No.119 of 1995.
In both the Records of Rights, mainly the father’s name of the defendant was
changed from Hiradhar to Dwarika. In the above state of the things, I find
that there remains no impediment for acceptance of these documents for
additional evidence to be taken into consideration for the purpose of decision
in this appeal subject to and keeping it open to consider the probative value
of those documents and their impact on the subject matter as would be
available in the eye of law. Thus, the petition filed under Order-41, Rule-27
CPC stands allowed and those documents have been marked as Exts.10, 11
and 12. At this stage, learned counsel for the defendant files the certified
copy of the order passed by this Court in W.P.(C) No.1814 of 2004, wherein
the said order of the Joint Commissioner under Ext.10 was challenged and
the Hon’ble Court while disposing the said writ application has observed that
the recording of the Consolidation Authorities would be subject to final
decision of this appeal. Learned counsel for the defendant, therefore, also
urges for taking that into consideration that it has got direct bearing with the
documents Exts.10,11 and 12, the said order also stands for being admitted
as additional evidence. Learned counsel for the plaintiff has no objection to
the same. Therefore, in the interest of justice and for just decision of the
case, the said order of this Court passed in W.P.(C) No.1814 of 2004 is also
admitted as additional evidence in this appeal and marked as Ext.A-1. With
this, now as stated in Paragraph-7, let the exercise be taken up.
9.
It is the settled position of law that the evidence in support of the
adoption must be sufficient enough to satisfy the very grave and serious
onus that rests upon the person who seeks to displace the natural
succession by alleging adoption. It is equally well settled that when there is a
long lapse of time between the adoption and it’s being questioned, every
allowance for absence of such evidence to prove such fact must be
favourably entertained, the reason being that on expiry of very long term of
years, it is difficult to procure evidence.
438
[2014]
It has been held in the case of Rahasa Pandiari (Dead) by LRs and others
Vrs. Gokulananda Panda and others, (1987) 2 S.C.C. 338 that an
adoption would divert the normal and natural course of succession.
Therefore, the Court has to be extremely alert and vigilant to guard against
being ensnared by shemers, who indulge in unscrupulous practice out of
their lust for property. If these are only suspicious circumstances, just as the
propounding of the will is obliged to dispel the cloud of suspicion, the burden
is on one, who claims to have been adopted to dispel the same beyond
reasonable doubt. It has also been held in the case of Kishori Lal Vrs. Mt.
Chaltibai, AIR 1959 S.C. 504 that as an adoption results in changing the
course of succession depriving wives and daughters of their rights and
transferring properties to comparative stranger or more remote relations, it is
necessary that evidence to support it should be such that, it is free from all
suspicion of fraud and so consistent and probable as to leave no occasion
for doubting its truth.
This Court in cases of Prafulla Kumar Biswal Vrs. Sashi Beura
and others, 1989 OLR (I) 425, Sulei Bewa & others vrs. Gurubari Rana,
AIR 1971 Orissa 299 and Arjun Banchhar vrs. Bacchi Banchhar, AIR
1999 Orissa 32 has also observed that as an adoption displaces natural
succession, the burden to establish the adoption is squarely on the person
who propounds and that burden is heavy.
Law is well settled in plethora of decisions of the apex Court as well
as this Court including one in L.Debhi Prasad (dead) by L.Rs. vrs. Smt.
Tribeni Devi and others, AIR 1970 SC 1286 that giving and receiving are
absolutely necessary to the validity of an adoption and they are the operative
part of the ceremony being that part of it which transfers the boy from one
family to another.
10.
In the case in hand the defendant’s specific case is that the adoption
took place on the day of SARASWATI PUJA in the month of Magha in the
year 1952, which stands denied by the plaintiff. The trial court has discussed
the evidence for answering the said issue in Paragraph-5 of the judgment.
He has relied upon the evidence of D.Ws.4 and 5, who are the witnesses to
the adoption ceremony, giving much emphasis to the evidence of D.W.4,
who is aged about 95 years at the time of examination. For the purpose, the
trial court has also placed reliance upon Exts.A to Z, the documents admitted
in the evidence from the side of the defendant. Here the plaintiff, who is
admittedly the daughter of Hiradhar, has not come to the witness box and
instead it is her husband, who has been examined as P.W.4.
With regard to the ceremony of giving and taking, D.W.4 stating his
age as 95 years at the time he stood in the witness box has deposed that the
439
adoption took place 40 years back. So computing from that, the year of
adoption as per his evidence comes around 1960. This is not of much
significance because the witness coming to the dock after such a long period
and at that failing age is not expected to state the year with such exactitude.
But this witness has stated that the defendant at the time of adoption was 8
years old whereas the age of the defendant in the year 1952 comes to 13
years. This appears to be irreconcilable. A witness even at any distant time if
is not in a position to state the average age of the so called adopted child,
his evidence is certainly pushed into cloud of suspicion more particularly
when the margin remains on higher side like the present case. Such a
mistake is uncondonable and if it is condoned, I am afraid that it may lead to
acceptance of concocted evidence of a got up witness. During crossexamination, the D.W.4 has avoided to state the age of any of his children
and also to state his own age at the time. This certainly creates a doubt in
the veracity and truthfulness of his evidence with regard to the factum of
adoption by giving and taking ceremonies as has been stated by this
witness. Therefore, this Court is of the view that the Trial Court has not acted
in a right manner in placing reliance on the evidence of the witness because
of the aforesaid basic improbability and infirmity which could not have been
so lightly ignored or brushed aside. The performance of obsequies of
Hiradhar and Hema by the defendant is not of much significance as
admittedly Hiradhar and Hema were having no son and the defendant
happens to be the brother’s son of Hiradhar and not a total stronger to the
family. This is ordinarily the practice in many Hindu families that when there
is a daughter and had been given in marriage in another family entering into
a different ‘gotra’, the daughter and the son-in-law being not in a position to
offer the ‘pindas’ a male young member of the family of deceased is chosen
for the purpose of performing the obsequies. Of course, now approach has
changed with changed mindset because of the cry for gender equality when
news are pouring that the daughters are also performing the obsequies of
their parents and so also the son-in-laws are directly taking part in
adherence to the modern day’s trend to curb this evil of gender inequality
accepting that daughter and son makes no such difference in such matter of
performance of duty towards parents. This derives support also from the
common saying that a son is a son till he brings wife whereas a daughter is a
daughter for whole of her life. Therefore, no such importance is required to
be given on this act of performance of obsequies ceremony of Hiradhar and
Hema by the defendant. Even if it has been done by the defendant the same
has got no such bearing. Moreover such type of evidence only provide
corroboration to the evidence otherwise establishing the factum of adoption
by proving the giving and taking ceremony leading clear, cogent and
acceptable evidence subject to certain allowances for long lapse of time.
440
[2014]
Here also fact stands admitted that plaintiff was born after the adoption,
which goes to show that Hiradhar and his wife were young at the time of socalled adoption. In absence of any other evidence, the pleading of the
defendant to the effect that Hiradhar and Hema having lost their hope of
begetting a child had decided and taken the defendant in adoption prima
facie does not appeal to the judicial mind. The trial court in the present case
has adversely viewed the case of the plaintiff in setting up a case negativing
adoption for her non-examination. This approach is completely erroneous. It
is the settled position of law that for non-examination of a party to the suit,
adverse inference to the case of that party can be drawn, if he has the
burden of proof in proving the facts in order to establish the claim or for
shifting the onus of proof to the adversary, which is not the case here as the
plaintiff was not shouldering the burden of proof by leading negative
evidence that there was never any adoption of the defendant by her
parents. The burden of proof here heavily rests on the defendant and it is his
evidence which matters when he cannot take the advantage of the
weakness of the case of plaintiff. Only when the evidence adduced from the
side of the defendant is found to be wholly satisfactory in arriving a
conclusion that he has discharged the burden of proof of the factum of
adoption, non-examination of this plaintiff could have only arisen for
consideration. So, the
oral evidence adduced from the side of the
defendant is not sufficient to establish the proof of the ceremonies and
consequentially the factum of adoption.
Careful reading of the evidence of all the witnesses of the defendant
as well as those of the plaintiff, this Court does not find that those are also to
the effect of proving series of long standing conduct between the parties in
support of adoption. For drawing an inference from the same as regards the
approach of Hiradhar and Hema towards the defendant and vice versa; as to
what common relations and the society were showing the response in the
matter and the recognition of such status of defendant and his relationship
with Hiradhar and Hema. No witness has also come to the witness box to
say that they had the occasion to watch the conduct of Hiradhar and Hema
and this defendant as well as the plaintiff from close quarters in view of their
special relationship with Hiradhar and Hema favouring a case of treatment
by Hiradhar and Hema and the plaintiff towards the defendant as son. No
evidence in the light of the provision of section 50 of the Evidence Act has
also been tendered by the defendant.
11.
Now coming to the documentary evidence, which have also been
placed reliance by the trial court, this Court is not in agreement with the view
of the trial court that those are sufficient to favour adoption or give any
positive indication in that regard. Ext. A is an affidavit said to have been
441
sworn to by Hema. D.W.3’s evidence when taken into consideration for a
moment, it goes to show that the same cannot be taken to be an admission
by Hema, the mother of the plaintiff. If we accept the case of the defendant
for the sake of argument, then defendant can be said to have been in a
position to dominant the will of this woman, who was fairly old by then. Thus,
law obligates him to give such evidence that it was a free and voluntary
act/deed of Hema. D.W.3’s evidence rather favours for outright rejection of
the same. Documents, such as Ext.B and C, are the certificate of the Amin
and for the training said to have been undertaken by the defendant, whereas
Ext. D is the driving license. These are all self-serving documents and they
may only stand for consideration in lending assurance to the factum of
adoption after necessary ceremonies otherwise established by evidence.
Voter lists Exts.E to H and the registered sale deeds Exts.K to P as well as
the loan transaction document Exts.Q and R so also Exts.Y and Z in
absence of acceptable evidence with regard to performance of giving and
taking ceremony bear no such significance so as to stand for being
considered and taken as proof of factum of adoption. The record of rights,
which have been prepared, as already discussed, being subject to the
decision of this Court in this appeal have no such role to play in answering
the issue of adoption. Payment of rent by the defendant being on the basis
of those records of rights does not also stand for consideration for the
purpose.
Now comes the documentary evidence of School Admission Register
and certificates, which have been marked as Exst.1, 2 and 3.Furthermore,
Ext.3 contains an interpolation. The plaintiff banks upon the report of the
handwriting expert marked as Ext.4 and proved through the expert P.W.3.
The trial court committed gross error of law by discarding the report on the
ground that the P.W.3 could not give the time of interpolation and whether
it’s by one hand or not. The report in the circumstances ought not to have
been totally discarded. Most importantly as I found in this case that evidence
on one score as indicated the hereinafter on being let in by the defendant
would have thrown proper light in guiding the court and that has not been
done. The defendant in the case has not adduced evidence that since the
time of his childhood, he was having no connection in relation to the property
of his natural parents and on the score that he was totally cut-off from them.
No evidence has also been adduced as to in whose name those properties
stand recorded which would have shown the claim of the defendant to be
bona fide that he has been deprived of his own paternal property by virtue of
such adoption. So, non-adduction of such type of evidence rather calls for
drawal of adverse inference to the case of adoption as set up by the
defendant.
442
[2014]
In the wake of aforesaid discussion, this Court is unable to subscribe
to the finding rendered by the trial court on this Issue No.2 and, therefore,
while setting aside the same, it is held that the defendant is not the adopted
son of Hiradhar and Hema and, as such, has no right over their properties.
12.
Learned counsel for the defendant has given stress on the issue of
limitation under Issue No.5, which has been answered against the plaintiff in
non-suiting her. It is his submission that the suit is hit under Article-57 of the
Limitation Act as invalidity of the said adoption was not questioned within a
period of three years from the knowledge of the plaintiff. For the purpose
reliance has been placed on Exts. L,M and N jointly executed by the plaintiff
and the defendant describing the defendant as the son of Hiradhar.
Therefore it is stated that knowledge of the plaintiff even if attributed from
that last date of sale deed, the suit has to be held barred by law
of
limitation.
Learned counsel for the plaintiff submits that the plaintiff is not at all
signatory in all these documents and it has not been proved by giving
positive evidence that those documents come into being with the full
knowledge of the plaintiff.
For succeeding on the question of limitation simply proving those
documents are not enough and it has to be proved through positive evidence
that those were within the knowledge of the plaintiff, their contents were read
over and explained to her and she having understood that the same have
been written truly and correctly to her desire and after having got her nod for
giving ahead with it. Such evidence is wholly lacking. Therefore, with least
hesitation this Court is inclined to set aside the finding of the trial court on the
question of limitation i.e. on issue no.5 holding the suit of the plaintiff as
barred by limitation. The answer on Issue No.5 is accordingly rendered in
favour of the plaintiff and the suit is held as not barred by law of limitation.
13.
In the wake of aforesaid discussion and answer to crucial issues, the
impugned judgment and decree passed by the trial court in are hereby set
aside and the suit of the plaintiff is hereby decreed. Parties to bear their
respective costs.
Appeal allowed.
443
2014 (II) ILR - CUT- 443
SATRUGHANA PUJAHARI, J.
JCRLA NO. 149 OF 2004
SANTOSH BHOI
…….Appellant
.Vrs.
STATE OF ORISSA
…….Respondent
PENAL CODE, 1860 - S. 376
Rape – Victim was examined two days after the occurrence –
Doctor found that the victim had recent sexual intercourse and there
was vaginal injury of recent origin – P.Ws.2 & 3 stated to have seen the
wearing apparels of the victim stained with blood – Evidence of the
victim gets corroboration from the medical evidence as well as
independent witnesses – Held, the impugned judgment and order of
conviction and sentence are affirmedll.
(Para 12)
CRIMINAL PROCEDURE CODE, 1973 – S. 154
F.I.R. – Offence U/s. 376 I.P.C. – One day delay in lodging F.I.R. –
Delay explained – In rape cases the victim as well as her parents
loathed in approaching the police immediately for very many reasons Nothing on record to suggest that the victim and her father had any
reason to falsely implicate the appellant in the case - Held, in rape
cases delay of one day in lodging F.I.R. is not fatal to the prosecution
case.
(Para 8)
Case law Referred to:AIR 1983 SC 753 : (Bharwada Bhoginbhai Hirjibhai-V- State of Gujarat).
For Appellant - Mr. Prem Kumar Mohanty
For Respondent – Addl. Standing Cousel.
Date of hearing : 10.01. 2014
JUDGMENT
S.PUJAHARI, J.
This Jail Criminal Appeal is directed against the judgment and order
of conviction and sentence passed by the learned Asst. Sessions Judge,
444
[2014]
Padampur in S.T. No.26 of 2004 / C.T. No.26/6 of 2004. The learned Asst.
Sessions Judge in the impugned judgment and order of conviction and
sentence held the appellant guilty of the charge under Section 376 of the
Indian Penal Code (for short “I.P.C.”) and sentenced him to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.5,000/- and in default to
undergo simple imprisonment for one year more.
2.
Prosecution had placed before the trial court a case that on
24.03.2003 at noon time, when the victim, aged about fourteen years
(P.W.1) had been to her threshing floor to untie their bullocks tied there, the
appellant came and caught hold of her and dragged her towards a heap of
straw there and committed forcible sexual intercourse on her, for which she
sustained bleeding injury on her private part. The victim then came to her
house and reported the matter before her parents and as she had sustained
bleeding injuries, she was taken to Paikmal Government Hospital and
thereafter, the father of the victim reported the matter in writing (Ext.2) at
Jharbandh Police Station in the district of Bargarh on the next day. Police
had investigated the case and found substance in the report, Ext.2 and
submitted charge-sheet against the appellant.
3.
The trial court placing reliance on such allegation of prosecution
supported by the materials collected during investigation, framed charge for
the aforesaid offence against the appellant and as he denied the charge, he
was asked to face the trial.
4.
The trial court basically relying on the evidence of the victim as well
as the medical evidence of P.W.7 and the corroborative evidence of the
victim’s father (P.W.4) and her co- villagers, such as, P.Ws.2 and 3, before
whom the victim stated about the incident contemporaneous to occurrence,
returned the judgment and order of conviction and sentence as stated
earlier.
5.
It has been submitted by the learned counsel for the appellant that
the version of the victim cannot be treated as gospel truth. Since in this case,
there was delay in lodging the report which has not been properly explained,
the same casts a cloud on the version of the victim. Therefore, the
prosecution case is liable to be discarded and the appellant needs to be
acquitted, has also been submitted by the learned counsel for the appellant.
6.
In response, drawing the notice of this Court to the evidence of the
victim, it has been submitted by the learned counsel for the appellant that the
victim in no uncertain terms having deposed that in the threshing floor the
appellant committed rape on her, for which she sustained injuries and such
445
SANTOSH BHOI -V- STATE OF ORISSA
[S.PUJAHARI, J.]
version being corroborated by the medical evidence of the doctor (P.W.7)
examining her as well as the corroborative evidence of her father (P.W.4)
and co-villagers (P.Ws.2 and 3) and there being nothing on the record to
suggest that the victim had any reason to falsely implicate the appellant, the
delay in lodging the F.I.R., Ext.2 which is for one day only in an offence of
this nature, is not fatal to the prosecution case. Therefore, the judgment and
order of conviction and sentence as returned by the trial court needs no
interference, has also been submitted by the learned counsel for the State.
7.
It appears that the prosecution came to the trial court with a case that
the victim being fourteen years of age was ravished by the present appellant.
In the trial court, evidence has been led by the defence to show that the
victim was more than sixteen years of age. The trial court rendering a finding
that since the victim deposed that she was raped, the age of the victim in
such circumstances becomes immaterial. Such finding of the trial court
appears to have sanction of law, inasmuch when a case of consensual
sexual intercourse has not been advanced by the defence in this case and
no evidence has also been brought to record in this regard, the age of the
victim in such circumstances, even if proved by the defence to be sixteen
years then, which is the age of discretion then for a consensual sexual
intercourse, the same becomes immaterial in a case under Section 376 of
I.P.C.
8.
The evidence on record further would go to show that the victim
(P.W.1), in no uncertain terms deposed that while she had been to the
threshing floor to untie the bullocks in the absence of her father, at the noon
time, the appellant dragged her to a heap of straw and committed sexual
intercourse on her, for which she sustained injuries on her private part. Such
evidence of the victim also gets corroboration from the evidence of the
Doctor (P.W.7), who had examined her in this case. Dr. Sabita Bohidar
(P.W.7) deposed that she had examined the victim on 26.03.2003 and found
that the victim had recent sexual intercourse and there was vaginal injury of
recent origin. Such examination of the victim was done two days after the
occurrence by the doctor. So also, the evidence of P.W.8 – Dr. Alekh Prasad
Mohapatra would go to show that the appellant was also capable of doing
sexual intercourse. P.Ws.7 and 8 in this regard are corroborated by the
contemporaneous document, i.e., the examination report prepared by them
vide Exts.4 and 5 respectively. Nothing has been elicited from the victim
during her cross-examination, though the same was lengthy and incisive,
suggesting that she had any reason to falsely implicate the appellant in this
case. Soon after the occurrence, the victim also stated before her parents
that she was subjected to rape by the appellant, as deposed by her father
(P.W.4). Further, the evidence of the victim gets corroboration from the
446
[2014]
evidence of her co-villagers, such as, P.Ws.2 and 3. Both these witnesses
deposed that being called by P.W.4, the father of the victim on the date of
occurrence at about 1.30 p.m., they went to the house of the victim, where
the father of the victim told that his daughter was raped by the appellant and
when they asked the victim, the victim also disclosed before them that the
appellant raped her. They also stated that they had seen the wearing
apparels of the victim to have been stained with blood. In an incisive crossexamination of the aforesaid two witnesses, nothing has been elicited from
them, which can said to have corrode the credibility of their aforesaid
version. No material has been brought to record much less any convincing
material that the aforesaid independent witnesses, who corroborate the
version of the victim, had any reason to falsely implicate the appellant. Their
aforesaid evidence in this regard, as such, lends corroboration to the version
of the victim under Section 157 of the Indian Evidence Act. Furthermore, the
delay in lodging the F.I.R., on which reliance has been placed, has been duly
explained, inasmuch as the father of the victim gave priority to the treatment
by taking her to the hospital, for which delay occurred. Furthermore, it is a
case of sexual assault on a woman. In our Indian setting, the parents or
guardians including victims loathed in approaching the police immediately for
very many reasons in an offence of this nature when committed. The delay,
which has been explained, is also not inordinate. The delay in lodging the
report, therefore, cannot be said to be fatal, especially when there is nothing
on record to suggest that the victim and her father had any reason to falsely
implicate the appellant in this case at the cost of reputation and future of the
victim in the Indian setting.
9.
The defence version of false implication inasmuch as D.W.1 deposed
that the victim sustained an accidental injury by push of bullock in threshing
floor, was stated to him by the father of the victim while making a request to
him to shift the victim to the hospital, found to be untrustworthy. There is no
dispute that D.W.1 shifted the victim along with her brother to hospital in his
motorcycle, but the father of the victim, P.W.4 giving him a disclosure of an
accidental injury requesting him to shift the victim to hospital, found to be
unworthy of credence for lack of foundational facts in support of the same,
more so when the aforesaid has not been suggested to P.W.4 and the
doctor, P.W.7 found recent sign of sexual intercourse on her and injury on
her private part. There is no material in support of such version of D.W.1.
Nothing has been brought on record to suggest that the father of the victim
had any acceptable reason for false implication when her daughter sustained
an injury accidentally on her private part to implicate the appellant that too at
the cost of reputation of his daughter braving the stigma attached to the
victim of rape on a woman, who was unmarried then. The defence version,
as such, does not corrode the credibility to the version of the victim which
447
SANTOSH BHOI -V- STATE OF ORISSA
[S.PUJAHARI, J.]
also gets corroboration from medical evidence and contemporaneous former
statement made by her with regard to the incident before her father, P.W.4
and co-villagers, P.Ws.2 and 3 incriminating the appellant.
10.
In the case of Bharwada Bhoginbhai Hirjibhai vrs. State of
Gujarat, reported in AIR 1983 S.C. 753, their Lordships in the Hon’ble Apex
Court have been pleased to hold that in the Indian setting, refusal to act on
the testimony of the victim of sexual assault in the absence of corroboration
as a rule, is adding insult to injury. Why should the evidence of a girl or the
woman who complains of rape or sexual molestation be viewed with the aid
of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To
do so is to justify the charge of male chauvinism in a male dominated
society” ..... Corroboration may be considered essential to establish a sexual
offence in the backdrop of the social ecology of the western world. It is
wholly unnecessary to import the said concept on a turnkey basis and to
transplant it on the Indian soil regardless of the altogether different
atmosphere, attitudes, mores, responses of the Indian society and its
profile.”. The learned Assistant Sessions Judge has taken note of this
observation of the Hon’ble Apex Court while rendering a finding of guilt
against the appellant. The law, therefore, being well settled that basing on
the sole testimony of the victim, a conviction can safely be recorded in a
case of sexual assault, I see no apparent reason to interfere with the finding
of guilt recorded by the trial court against the appellant in this case,
inasmuch as the evidence of the victim that she was raped by the appellant
found to be clear, cogent and unimpeachable, more so her such evidence
also gets corroboration from the medical evidence of P.W.7 as well as the
statement made by her disclosing the sexual assault on her by the appellant
contemporaneously to her father, P.W.4 and her co-villagers, P.Ws.2 and 3,
as noticed by this Court on reappraisal of the evidence on record.
11.
So far as the sentence imposed under Section 376 of the I.P.C. is
concerned, regard being had to the facts and circumstances of the case and
the gravity of the offence, I am of the considered opinion that the sentence
imposed also appears to be commensurate one, hence needs no
interference.
12.
For the foregoing reasons, I find no merit in this appeal and,
accordingly, dismiss the same. The impugned judgment and order of
conviction and sentence recorded by the learned Asst. Sessions Judge,
Padampur are hereby confirmed.
Appeal dismissed.
448
2014 (II) ILR - CUT- 448
S. K. SAHOO, J.
BLAPL NO.7046 OF 2014
DHARANI PRADHAN & ANR.
…….Petitioners.
.Vrs.
STATE OF ORISSA
……..Opp.Party
SCHEDULED CASTES & SCHEDULED TRIBES (PREVENTION OF
ATROCITIES) ACT,1989 - Ss. 3 & 18
Offence U/s.3 (1) (xii) of the Act – Averments in the complaint do
not make out a prima facie case – Specific bar provided U/s. 18 of the
Act will not apply to consider the prayer for bail U/s. 438 Cr. P.C. –
Held, this Court is inclined to release the petitioner on anticipatory bail.
(Para 7)
Case law Relied on:AIR 2012 SC 3316
: (Vilas Pandurang Pawar & Anr.-V- State of
Maharashtra & Ors.)
Case laws Referred to:1.1995 Crl. L.J. 2076
: (State of Madhya Pradesh & Anr.-VRamakrishna Balothia & Anr.)
2.(2014) 58 OCR 685
: (Chittaranjan Nandy -V- Union of India)
3.(2014) 2 SCC (Crl.) 212 : (Bachhu Das -V- State of Bihar)
4.2013 Crl. L.J. 3070
: (Manjit Singh -V- State of Delhi).
For Petitioners - M/s. A.P. Bose, N. Hota
& Mrs. V. Kar.
For Opp.Party - M/s. J.P. Patra, Addl. Standing Counsel,
S.S. Kanungo, Addl. Standing Counsel.
Date of order: 25.07.2014
ORDER
S.K.SAHOO, J.
This is an application under Section 438 Cr.P.C. for grant of
anticipatory bail to the petitioners in connection with Subalaya P.S. Case
No. 18 of 2014 corresponding to G.R. Case No. 58 of 2014 pending in the
Court of learned SDJM, Birmaharajpur for alleged commission of offences
under Sections 376(2)(h)/294/323/34 of the IPC read with Section 4 of the
449
DHARANI PRADHAN -V- STATE OF ORISSA
[S.K.SAHOO, J.]
Protection of Children from Sexual Offences Act, 2012 and Section 3(1) (xii)
of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (hereinafter referred to as ‘SC/ST Act’).
2.
Learned counsel for the petitioners submits that an F.I.R. was lodged
by the victim alleging therein that she had love affair with one Anil Pradhan,
the son of the present petitioners since last three years and on 15.3.2014,
while she was returning home, the said Anil Pradhan forcibly took her inside
his house and cohabited with her. It is alleged that the present petitioners
came at that point of time, abused her and also assaulted her for which she
became senseless. He further submits that the main accused is Anil
Pradhan as it appears from the case records and the only allegation against
the petitioners is that they abused the informant/victim and assaulted her.
Learned counsel for the petitioners further submits that in view of the
allegations made, neither the ingredients of offence under Section 376(2)(h)
of the IPC nor Section 4 of POCSO Act is made out against the petitioners
and it may at best be a case under Sections 294 and 323 IPC against them.
Learned counsel for the petitioners further submits that the victim
has stated that the petitioner no.2 assaulted her by means of a lathi and
petitioner no.1 gave him a slap and fist blows. He further submits that on
perusal of the injury report of the victim, it is noticed that there is neither any
sign of forcible sexual intercourse nor there is any injury on her private part
of the body or injury on any part of the body and her age is opined to be 17
to 18 years. He further submits that from the nature of allegation levelled
against the petitioners, it is clear that the ingredients of offence under
Section 3(1) (xii) of the SC/ST Act are not made out and as such Section 18
of SC/ST Act is not a bar in entertaining this application under Section 438
Cr.P.C.
3.
Learned counsel for the State, on the other hand, after producing the
case diary, places the statement of the informant recorded under Section
161 Cr.P.C. and submits that though the victim/informant alleged the main
offences against Anil Pradhan, but she has also stated that while she was
inside the house of Anil Pradhan, the petitioners came there and abused her
for spoiling their son and told him that she belongs to a lower caste and thus
anticipatory bail cannot be entertained in view of the bar under Section 18 of
the SC/ST Act.
4.
Section 18 of the SC/ST Act reads as follows:
“18. Section 438 of the Code not to apply to persons
committing an offence under the Act- Nothing in section 438 of
the Code
450
[2014]
shall apply in relation to any case involving the arrest of any persons
on an accusation of having committed an offence under this Act.”
The Constitutional validity of Section18 of the SC/ST Act was
decided in the case of State of Madhya Pradesh and another –vRamakrishna Balothia and another, reported in 1995 Criminal Law
Journal 2076 wherein the Hon’ble Supreme Court held that Section 18 of
SC/ST Act can not be considered as violative of Articles 14 and 21 of the
Constitution of India. In the case of Chittaranjan Nandy –v- Union of
India, reported in (2014) 58 OCR 685, our Hon’ble Court also held that
Section 18 of the SC/ST Act cannot be said to be ultra vires to the
Constitution.
In the case of Vilas Pandurang Pawar and another –v- State of
Maharashtra and others, reported in AIR 2012 SC 3316, it was held as
follows:
“8. Section 18 of the SC/ST Act creates a bar for invoking Section
438 of the Code. However, a duty is cast on the court to verify the
averments in the complaint and to find out whether an offence under
Section 3 (1) of the SC/ST Act has been prima facie made out. In
other words, if there is a specific averment in the complaint, namely,
insult or intimidation with intent to humiliate by calling with caste
name, the accused persons are not entitled to anticipatory bail.
9.
The scope of Section 18 of the SC/ST Act read with Section 438 of
the Code is such that it creates a specific bar in the grant of anticipatory bail.
When an offence is registered against a person under the provisions of the
SC/ST Act, no Court shall entertain application for anticipatory bail, unless it
prima facie finds that such an offence is not made out. Moreover, while
considering the application for bail, scope for appreciation of evidence and
other material on record is limited. Court is not expected to indulge in critical
analysis of the evidence on record. When a provision has been enacted in
the Special Act to protect the persons who belong to the Scheduled Castes
and the Scheduled Tribes and a bar has been imposed in granting bail
under Section 438 of the Code, the provision in the Special Act cannot be
easily brushed aside by elaborate discussion on the evidence.”
The said view was also accepted by the Hon’ble Supreme Court in
the case of Bachhu Das –v- State of Bihar, reported in (2014) 2 Supreme
Court Cases (Crl.) 212.
In the case of Manjit Singh –v- State of Delhi, reported in 2013
Criminal Law Journal 3070, it was held as follows:
451
DHARANI PRADHAN -V- STATE OF ORISSA
“11. xxx
xxx
[S.K.SAHOO, J.]
xxx
The strictly limited exceptions to the bar imposed by Section 18
appear to be where the complaint does not contain any specific averment
about the insult or intimidation with intent to humiliate by calling by the caste
name, absence of a specific averment that it was uttered in public view etc.
If there is a specific averment in the complaint to this effect, Section 18 of
the SC/ST Act is attracted.
xxx
xxx
xxx”
5.
Keeping in view the ratio decided in the aforesaid cases, it is held as
follows:
(i)
Merely because a case is registered under Section 3 of the SC/ ST
Act, there is no bar in entertaining an application 438 Cr.P.C.;
(ii)
Where there is specific averment in the complaint/F.I.R. relating to
violation of the provisions of the SC/ST Act and such offence is
prima facie made out, the bar under Section 18 of the SC/ST Act
would apply.
6.
Coming to the facts and circumstances of the case, let us see
whether there is any prima facie case under Section 3(1)(xii) of the SC/ST
Act against the petitioners.
Section 3 (1) (xii) of SC/ST Act reads as follows:
“3. Punishments for offences of atrocities.—(1)
Whoever, not being a member of a Scheduled Caste or a Scheduled
Tribe, -xxx
xxx
xxx
(xii) being in a position to dominate the will of a woman belonging to
a Scheduled Caste or a Scheduled Tribe and uses that position to exploit
her sexually to which she would not have otherwise agreed;
xxx
xxx
xxx
shall be liable with imprisonment for a term which shall not be less
than six months but which may extend to five years and with fine.
Thus, in order to attract the ingredients of Section 3 (1)(xii) of SC/ST
Act, the following ingredients must be satisfied:
(i)
The accused must not belong to either a member of Scheduled
Caste or a Scheduled Tribe;
452
(ii)
(iii)
(iv)
[2014]
The victim women must belong to a member of Scheduled Caste or
a Scheduled Tribe;
The accused must be in a position to dominate the will of the victim
women;
The accused must use such position to exploit the victim women
sexually to which she would not have otherwise agreed;
“Position to Dominate” means “commanding and controlling
position”. The position of the accused coupled with the use of such position
to exploit the victim women sexually are important criteria apart from the
caste/tribe factor of the victim/accused.
9.
Considering the nature of allegation against the petitioners
and the injury report and the submission made by the parties, I am of the
view there is no prima facie case under Section 3(1) (xii) of SC/ST Act
against the petitioners. Merely because of their relationship with the main
accused, bail can not be refused. Accordingly, I am inclined to release the
petitioners on anticipatory bail. It is directed that in the event of arrest of the
petitioners in connection with the aforesaid case, they shall be released on
bail on furnishing bail bond of Rs.5,000/- (Rupees five thousand) with one
surety each for the like amount to the satisfaction of the arresting officer with
further conditions that they shall make themselves available for interrogation
by the I.O. as and when required and they shall not directly or indirectly
make any inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade them from disclosing any facts to the
courts or to the Investigating Officer.
Violation of any of the above conditions shall entail cancellation of
bail. The BLAPL is accordingly disposed of.
Application allowed.

ILR Cuttack August-2014

Transcription

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