Ilr April 2013 PDF

2013 ( I ) ILR - CUT- 548
V. GOPALA GOWDA, CJ.

M.C. NO. 60/2011 & ARBP NO. 54/2010 (Dt.24.08.2012)
M/S.HINDUSTAN CONSTRUCTION
COMPANY L.T.D.
.Petitioner
.Vrs.
STATE OF ORISSA & ANR.
.Opp.Parties
ARBITRATION & CONCILIATION ACT, 1996 S.11 (6)

Appointment of Arbitrator Procedure Petitioner has not
issued demand notice to the Chief Engineer giving thirty days time for
appointment of an Arbitrator Non compliance of the mandatory
procedure as required U/s.11 (4) (a) of the Act Held, Arbitration
petition is liable to be dismissed.
(Para 19)
Case laws Referred to:1.2008 AIR SCW 2737
2.AIR 1954 SC 340 (P-6)
3.AIR 1971 SC 740
4.AIR 1999 SC 1281
: (Mahipatlal Patel-V- Chief Engineer & anr.)

: (Kiran Singh & Ors.-V-Chaman Paswan & Ors.)
: (Hakam Singh-V- M/s. Gammon (India) Ltd.)
: (Babu Verghese-V- Bar Council of Kerala)
For Petitioner
- M/s. A. Mishra, D.K. Pani,

A.K. Roy & A.Mishra.
For Opp.Parties Government Advocate
V.GOPALA GOWDA,CJ.
In this Arbitration Petition, after hearing the
learned counsel for the parties on merits, the judgment was dictated and
decision was pronounced on 12.8.2011 after adverting to the relevant facts
and the pleadings of the case and relevant Clause 67.3 (i) of the Arbitration
Agreement dated 15.9.1996, relevant provisions of the Arbitration and
Conciliation Act, 1996 (for short, the Act, 1996) and the decisions of the
Apex Court upon which both the learned counsel placed reliance and after
rejecting the legal contentions urged on behalf of the opp.parties by the
learned Government Advocate this Court allowed the Arbitration Petition and
appointed one Mr Justice P. K. Mishra, former Judge of this Court as the
Arbitrator. At the time of correcting the judgment, which was dictated in open
Court on 12.8.2011, and before signing after noticing the provisions of
Sections 21 and 43 of the Arbitration and Conciliation Act, 1996 doubt arose
whether the provision of the Limitation Act, 1963 will be applicable to the
proceedings under the provisions of the Act, 1996. Therefore, the matter was
listed on 9.9.2011 under the heading To be mentioned. On that day,
549
M/S.HINDUSTAN CONSTRUCTION-V- STATE
[V.GOPALA GOWDA,CJ.]
learned Senior Counsel Mr. R.K. Rath on behalf of the petitioner submitted
that Annexure-K the notice dated 15.3.2011 was issued to the Chief
Engineer of the opposite party by the petitioner expressing intention to
commence the arbitration proceedings in respect of the recommendation of
the Dispute Review Board (for short DRB), as the same was not acceptable
to the petitioner for the reason that the recommendation of the DRB is
impugned before the Arbitration Tribunal constituted under the repealed
Arbitration Act, 1940.Therefore, this petition is filed. Under such
circumstances, whether application under Section 14 of the Limitation Act is
applicable or not to the Arbitration proceedings under the Act, 1996 is
required to be considered. At this stage, Mr. Rath sought time to take steps
in this regard. Therefore, the dictated judgment which was not signed was
recalled, transcribed copy of the judgment was kept on record. The matter
was adjourned on the request of the learned Sr. Counsel for the petitioner to
take steps for filing application under Section 14 of the Limitation Act. That is
how this matter got listed again to hear on the Misc. Case No.60 of 2011
filed under Chapter-VI, Rule 27(a) of the Rules of the High Court of Orissa,
1948 and under Section 14 of the limitation Act, 1963 read with Sections 21
and 43 of the Act, 1996. As per Clause 67.1 of the agreement, if any dispute
arises between the parties, the same at the first instance shall be Dispute
Review Board (DRB). If either of the parties is dissatisfied with any
recommendation of the Board then either of the parties may within 14 days
after receipt of the recommendation has to give notice to the other party of
his intention to commence arbitration, as provided in the agreement in
respect of the matter in dispute. Such notice shall establish the entitlement of
the party giving the same to commence arbitration. Under Clause 67.3 of the
agreement both the parties had agreed that any dispute in respect of which
recommendation of DRB does not become final and binding, shall be finally
settled by arbitration in accordance with the Indian Arbitration Act, 1940 in its
application to the State of Orissa with statutory amendments thereof and, in
such respect, procedure of the Orissa Arbitration Tribunal, Bhubaneswar
shall be followed.
2.
After referring to the aforesaid clause, it is stated that petitioner being
aggrieved by the recommendations of the DRB in the matter of nonimplementation of Clauses 69.4 for losses/damages incurred and extension
of time due to default of the employer served a notice on 15.3.2001 on the
opp. party- employer giving out the intention to commence arbitration against
the recommendations of the DRB as per letter No.1795 dated 3.3.2001
received on 13.3.2001 in accordance with clause 67 of the agreement.
Copies of the recommendation of the DRB dated 3.3.2001 and the notice
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INDIAN LAW REPORTS, CUTTACK SERIES
[2013]
dated 15.3.2001 are produced at

Annexures-X and Y respectively.
Thereafter the petitioner approached the learned Orissa Arbitration Tribunal
on 18.4.2001 for adjudication of the dispute and the same was registered as
AAD No.3 of 2001 before the said Tribunal.
3.
Further, it is stated that the Arbitration and Conciliation Act, 1996
came into force with effect from 22.8.1996 and the agreement was entered
between the parties on 25.09.1996, therefore, they are governed by the
provisions of the new Act since the Indian Arbitration Act, 1940 has been
repealed under Section 85 of the new Act. On apprehension of the resultant
decision of the Arbitration Tribunal being a nullity in the eye of law, the
petitioner moved the learned Arbitration Tribunal on 6.6.2008 for dropping
the pending Arbitration Case No. AAD No.3 of 2001 in view of the
observation of the Apex Court in the case of Mahipatlal Patel v. Chief
Engineer & another, reported in 2008 AIR SCW 2737. Since the application
of the petitioner could not be disposed of, finding no other alternative it has
approached this Court in the present Arbitration Petition.
4.
At paragraph-8 of the Misc. Case it is stated that, in the background,
the petitioner had moved the learned Arbitration Tribunal established under
the repealed Indian Arbitration Act, 1940 erroneously, which was bona fide
and under a genuine miscomprehension of jurisdiction of the learned
Tribunal, notwithstanding the fact that the petitioner has been prosecuting
the matter in good faith and with due diligence before the learned Tribunal till
it came to their notice that the specific pronouncement regarding lack of
jurisdiction rendered by the Apex Court in the aforesaid decision. For the
aforesaid reason, the delay in approaching this Court, if any, is genuine,
bona fide and diligent steps and not in any way willful or deliberate. Thus the
provisions of sections 21 and 43 of the Arbitration and Conciliation Act, 1996
read with Section 14 of the Limitation Act, 1963 are applicable to the instant
case. Therefore, the present petition is filed by the petitioner with request to
allow the same by condoning the delay in filing the Arbitration Petition, which
has taken place since 2001 to 2010 in approaching this Court.
5.
As the proceedings are being prosecuted with bona file intention in
view of the Clause 67.3 of the agreement in a wrong forum i.e. the Tribunal
although the said Tribunal is not the forum for resolution of the dispute
between the parties in view of the provisions of the Arbitration & Conciliation
Act, which came into force with effect from 20.2.1996, an arbitration
proceeding which commences on or after the new Act came into force shall
be governed by the new Act, since the 1940 Act is repealed under Section
85 of the new Act. It is contended by the learned Sr. Counsel that having
551
regard to Clause 67 in the agreement between the parties the intention of

the parties is very clear that any dispute arising between the parties in
relation to execution of the contract work shall be decided in the Arbitration
proceedings. No doubt, Clause 67.3 (i) provides for resolution of the dispute
by the Dispute Review Board. If either of the parties is not agreeable to the
recommendation of the DRB, they can approach the Arbitration Tribunal
established under the repealed Arbitration Act, which makes it very clear that
the dispute is required to be resolved in the arbitration proceedings.
Pursuant to Clause 67.3, if jurisdiction is conferred upon the Arbitration
Tribunal constituted under the provisions of the repealed Act contrary to the
provisions of the Arbitration & Conciliation Act, as the provisions of Section
85 of the said Act repealed the Indian Arbitration Act and undisputedly the
agreement was entered subsequent to the coming into force of the
Arbitration & Conciliation Act, the parties to the agreement cannot confer
jurisdiction upon a Court or tribunal is the law laid down by the Supreme
Court in the case of Kiran Singh and others v. Chaman Paswan and
others, AIR 1954 SC 340 (Para-6), and Hakam Singh v. M/s.Gammon
(India) Ltd., AIR 1971 SC 740, and therefore, the learned counsel appearing
on behalf of the petitioner placed reliance upon the observation made by the
Supreme Court in the case of Mahipatlal Patel referred to supra. Hence, he
had requested me to allow the Misc. Case and the Arbitration Petition filed
by the petitioner.
6.
Statement of objection was filed on behalf of the opp. parties by Sri
Pradeep Sagar Duria-in-charge Executive Engineer, Mahanadi Barrage
Division, Gandarpur by traversing all the averments made in the said Misc.
Case.
7.
It is stated in the statement of objection that provisions of the
Limitation Act, 1963 are not applicable to the proceedings under Section
11(6) of the Arbitration and Conciliation Act, 1996. Hence, the Miscellaneous
Petition filed for condonation of delay in filing the Arbitration case merits no
consideration and is liable to be rejected.
8.
Further, it is stated that the Arbitration Petition and the present
Misc.Case are grossly barred by delay and laches. There is complete
negligence on the part of the petitioner in approaching this Court. There is no
explanation for the delay of more than nine years in filing the Arbitration
Petition. Similarly, there is no explanation for the delay of more than ten
months in filing the present Misc. Case. Further, it is stated that Misc.Case
No.60 of 2001 does not contain details of the period of delay, which is
sought to be condoned by filing the present Misc. Case. In the absence of
details of delay and the reasons in support thereof, condonation of the same
552
[2013]
cannot be sought for by the petitioner in vacuum. There is no explanation at

all about the delay of more than nine years i.e. from 2001-2010. Hence, the
learned Government Advocate submits that on this ground alone, the Misc.
Case is liable to be dismissed for the reason that there is no explanation for
delay either from 15.3.2001 to 9.11.2010 or from the date of filing of the
Arbitration Petition i.e. 9.11.2010 to the date of filing the present Misc. case
i.e. 24.9.2011.
9.
On merits, it is reiterated that without the above objections and
without conceding that the provisions of the Act of 1996 are not applicable to
the facts of the present case, it is urged that the present Misc. case filed by
the petitioner to condone the delay is wholly misconceived and not
maintainable either on facts or law.
10.
It is stated that the petitioner vide its letter dated 15.3.2001 intimated
the opp.parties that the recommendations of the DRB is not acceptable to
the petitioner-contractor and the contractor intends to commence arbitration
against the recommendations of the DRB, but the accompanying Arbitration
Petition under Section 11 (6) of the Act, 1996 was filed only on 09.11.2010
i.e. more than nine years of the alleged request to commence arbitration
without giving any notice to the opp. parties demanding appointment of
Arbitrator though, according to the petitioner, the provisions of the Act, 1996
are applicable w.e.f. 20.8.1996. The Arbitration Petition having not been filed
after complying with the mandatory provisions of Section 11 sub-section 4(a)
and bring grossly barred by delay is liable to be dismissed.
11.
Further, it is contended that the mandatory procedure required to be
followed before approaching the Chief Justice for appointment of a sole
Arbitrator in exercise of power under Section 11 (6) of the Act, 1996 having
not been followed by the petitioner, the Arbitration Petition is wholly
misconceived and is liable to be dismissed.
12.
It is also further stated that the petitioner has never requested the
opp. parties for appointment of an Arbitrator by giving thirty days notice as
required under Section 11(4) (a) of the Act, 1996. The Chief Justice of this
Court while exercising his power under Section 11(6) of the Act, 1996 is to
decide as to whether the conditions for exercise of the power have been
fulfilled by the petitioner.
13.
It is stated that the Act, 1996 is a special statute. An arbitrator is to
be appointed in accordance with the procedure provided in the Act, 1996
itself and not otherwise. Since there is no demand by the petitioner for
appointment of an Arbitrator with the opp.parties, the Arbitration Petition for
553
appointment of an Arbitrator in exercise of my power under Section 11(6) of

the Act, 1996 is premature, wholly misconceived, not maintainable and liable
to be rejected being devoid of any merit.
14.
In reply to the averments made in paragraph-1 of the Misc. Case,
the question of maintainability of the Arbitration petition is reiterated.
15.
In view of the factual and legal rival contentions urged on behalf of
both the sides for filing the Arbitration Petition and the Misc. Case for
condonation of delay in filing the Arbitration Petition the following points
would arise for my consideration:
i)
Whether the Arbitration Petition filed under Section 11(6) of the Act,
1996 without following the mandatory provisions under Section
11(4)(a) of the Act, 1996 is maintainable in law?
ii)
If the Arbitration Petition is not maintainable, whether Misc. Case

No.60 of 2011 filed under Section 14 read with Sections 21 and 43 of
the Act, 1996, is required to be considered and answered?
iii)
What order ?
16.
The first point is required to be answered against the petitioner for
the following reasons. It is an undisputed fact that the agreement was
entered between the parties on 25.9.1996 for execution of construction of
Naraj Barrage (civil works) at Naraj, Cuttack vide agreement No.CE-ICB/I of
1996-96 dated 25.9.1996, which is undisputedly after the Act, 1996 came
into force. No doubt, in the agreement there is an arbitration clause 67,3,
which reads as under :
67. 3: Arbitration: Any dispute in respect of which recommendations,
if any, of the Board has not become final and binding shall be finally
settled by arbitration below :
(i)
(xiii)
A dispute with an Indian Contractor shall be finally settled by

arbitration in accordance with Indian Arbitration Act, 1940 in his
application to State of Orissa or statutory amendments thereof.
Procedures of Orissa Arbitration Tribunal, Bhubaneswar shall be
followed.
xx
xx
xx
xx
After the dispute surfaced, the petitioner was constrained to take
recourse to Clause 67.1 above and referred the matter to the Dispute
Review Board on 14.12.2000 along with all supporting documents to
554
[2013]
substantiate its rights under Clause 69.4 of the General Conditions of

Contract in the matter of non-performance of its obligations by the
opp. parties and also claimed for the extra const incurred and for
extension of time.
(xiv) After hearing submissions from both the parties on several occasions,
the Disputes Review Board consisting of 3 members finally gave its
report/recommendation on the said dispute on 13.03.2001,
disallowing the claims of the petitioner with a majority of 2:1.
(xv)
Thereafter as required under Clause 67.1 and 67.3 above, after

receipt of the said recombination/report of the Disputes Review
Board, the petitioner being dissatisfied with the same indicated his
intention to refer the matter to arbitration for final settlement of the
dispute.
Even assuming for the sake of argument that under Clause 67.3 any dispute
in respect of which recommendation, if any, of the Board has not become
final and binding it shall be finally settled by arbitration as set forth. A dispute
with an Indian contractor shall be finally settled by arbitration in accordance
with Indian Arbitration Act, 1940 in its application to State of Orissa or
statutory amendments thereof. Procedures of Orissa Arbitration Tribunal,
Bhubaneswar, shall be followed. If the said clause is construed as the
arbitration clause for resolution of the dispute between the parties, the same
shall be treated as such under the provisions of the clause which is contrary
to the statutory provisions of the Act, 1996, applicable to the parties after the
said Act came into force Section 85 (1) of which has repealed the provisions
of the Indian Arbitration Act, 1940. Further, the agreement between the
parties contrary to the statutory provisions of the Act,1996 is void ab initio in
law. This legal position is very clear in view of the judgment of the Supreme
Court in the case of Kiran Singh and others v. Chaman Paswan and others,
referred to supra.
17.
Apart from the decisions referred to in the aforesaid paragraph,
reliance is also placed on the decisions of the apex Court in Thyssen
Stahluniorn GMBH v. Steel Authority of India reported in AIR 1999 SC 3923,
Delta Mechcons (India) Ltd. v. Marubeni Corporation reported in 2007 (2)
Arb. LR 288 and of this Court in M/s. Bhagheeratha Engineering Ltd. v. State
of Orissa and others, 2007 (Supp.II) OLR 615 and Gayatri Projects Limited
v. State of Orissa reported in 2008 (Supp.I) OLR 876 in support of the
contention. Reliance placed upon the aforesaid decisions do not help the
case of the petitioner for the reason that it has filed arbitration petition under
section 11(6) of the Act, 1996 without following the mandatory procedure as
555
provided under section 11 (4) (a) of Act, 1996. Relevant provision of Section
11 (4) (a) for the purpose of appreciating the rival legal contention urged on
behalf of the parties is extracted as hereunder:
If the appointment procedure in sub-section (3) applies and receipt
of a request to do so from the other party.
As rightly pointed out by the learned Government Advocate on behalf
of the opp. parties, the procedure provided under Section 11 (4)(a) has not
been complied with by the petitioner. Therefore, this Court cannot grant relief
of appointment of Arbitrator in exercise of powers under Section 11(6) of the
Act of 1996 even if the procedure agreed upon by the party has failed to act
as required under the above provision of the Act. In this regard, learned Sr.
Counsel Mr. Rath has placed reliance in compliance with Section 11(4) (a) of
the Act, 1996 on the letter dated 15th March, 2001 addressed to the Chief
Engineer, Naraj & Chitrotpala Project, Gandarpur, Cuttack. It is necessary to
extract the relevant portion of the said letter, which reads thus;
Ref. No.HNB/CT/C-2/Dated 15th March, 2001
The Chief Engineer
Naraj & Chtrotpala Project
Gandarpur, Cuttack-3.
Dear Sir,
Reg: Construction of Naraj Barrage (Civil Works) under
Agreement No.CE-ICB/1 of 1996 dated 25.09.96. In the matter of non
Implementation of Clause 69.4 for Losses/Damages incurred and
extension of time due to default of Employere and in the matter of
Clause 67 of the agreement.
Ref :- Letter No.1795 dt.03.03.01 received on 13.03.01 of Chairman,
Dispute Review Board.
In inviting a reference to the letter cited above, it is to intimate
that the recommendations of the Dispute Review Board is not
acceptable to the Contractor. The Contractor intends to commence
arbitration against the recommendation of the Dispute Review Board.
This notice is given in pursuant to Clause 67 of the said agreement.
This is for your information please.
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Yours faithfully,
For Hindustan Construction Co.Ltd.
Sd/S.P. Sinha Roy
Project Manager
CC:CC:CC:CC:-
The Superintending Engineer, Naraj Barrage Circle, Cuttack-3

The Executive Engineer, Naraj Barrage Division No.1, Cuttack-3
Shri P. Bhargava, DGM (Contacts) @ H.O. Mumbai.
Contracts @ Naraj.
18.
By careful reading of the said letter it is clear that the petitioner has
not made request to the opp. party to appoint an arbitrator other than the
Arbitration Tribunal established under the Indian (Amended) Arbitration Act,
1940. But, on the other hand, he has intimated the Chief Engineer stating
that recommendation of the DRB is not acceptable to the contractor, it
intends to commence arbitration against the recommendation of the DRB
and the said notice is given pursuant to Clause 67 sub-clause (3)(i) of the
said agreement. Accordingly, the petitioner-contractor approached the
Arbitration Tribunal established under Indian (Amended) Arbitration Act,
1940. Therefore, there is no demand with the opp. party-Chief Engineer by
the petitioner demanding appointment of an Arbitrator other than the
Arbitration Tribunal. The said intimation is only disclosing the intention of the
petitioner-contractor that the recommendation of the DRB is not acceptable
to it and it intends to resort to proceeding under Clause 67(3)(i) i.e.
Arbitration Tribunal established by the Orissa State Government.
Accordingly, it has done so in the year 2001 and the matter is pending. It has
approached the Orissa Arbitration Tribunal on 18.4.2001 for adjudication of
the dispute and the same was registered as AAD No.3 of 2001 before the
said Tribunal and the apprehension of the petitioner, in view of the
observations made by the Apex Court in the case of Mahipatlal Patel v. Chief
Engineer & another, referred to supra, the said proceedings could not be
disposed of and he did not find any other alternative but to approach this
Court by filing the present petition. The same must be preceded by issuance
of the demand notice to the opposite party-Chief Engineer demanding for
appointment of Arbitrator even construing entire clause 67.3(i) that the
parties have agreed for resolution of the dispute in arbitration proceedings as
per the Indian Arbitration Act, 1940 on its application to the State of Orissa or
the statutory amendments thereof.
19.
Therefore, if the petitioner has to invoke the jurisdiction of this Court,
he is required to issue a demand notice upon the Chief Engineer- opp. party
557
no.1 and wait till expiry of 30 days statutory period provided under Clause (a)
of sub-section (4) Section 11 of the Act, 1996 and if he does not appoint an
Arbitrator within 30 days, then only there will be a cause of action for him to
approach this Court. That has not been done in the instant case. To file a
petition under Section 11 (6) before the Chief Justice the procedure as laid
down under Clause (a) of sub-section (4) of Section 11 of the Act of 1996 is
required to be performed, as it is mandatory in law which has not been done
by the petitioner. Hence, the arbitration petition is not maintainable in law. It
is well established principle of law as laid down by the Supreme Court in the
case of Babu Verghese v. Bar Council of Kerala, AIR 1999 SC 1281
(paras 31 and 32), that if a statute prescribes a particular procedure to do a
particular thing in a particular manner that should be done in that manner. If
it is not done in that manner, it is not at all done. Paragraphs-31 and 32 of
the said judgment are extracted as hereunder :
31. It is the basic principle of law long settled that if the manner of
doing a particular act is prescribed under any statute, the act must be
done in that manner or not at all. The origin of this rule is traceable to
the decision in Taylor v. Taylor which was followed by the Lord
Roche in Nazir Ahmad v. King Emperor who stated as under:
[W]here a power is given to do a certain thing in a certain way,
the thing must be done in that way or not at all.
32. This rule has since been approved by this Court in Rao Shiv
Bahadur Singh v. State of U.P. and again in Deep Chand v. State of
Rajasthan. These Ncases were considered by a three-Judge Bench
of this Court in State of U.P. v. Singhara Singh and the rule laid down
in Nazir Ahmad case was again upheld. This rule has since been
applied to the exercise of jurisdiction by courts and has also been
recognized as a salutary principle of administrative law.
The aforesaid principle is aptly applicable to the fact situation of the present
case. In view of the procedure laid down under Section 11 (4) (a), before
invoking the power of the Chief Justice of this Court the petitioner should
have complied with the mandatory procedure under Section 11 (4)(a) by
issuing a demand notice to the Chief Engineer for appointment of an
Arbitrator. Construing Clause 67.3.1. as an arbitration clause and the
petitioner having got right to get an arbitrator appointed if he is not satisfied
with the DRB recommendation on the dispute presented before it, he should
have issued demand notice and waited for 30 days and if the Chief Engineer
had not appointed Arbitrator within 30 days then he could have approached
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this Court. The letter referred to supra which was sent to the Chief Engineer
by the petitioner cannot be treated as demand notice in terms of Section 11
(4) (a) of the Act for appointment of an independent arbitrator, but on the
other hand the intention of the petitioner is very clear from reading of the
contents of the letter referred to above that the same was issued intimating
the Chief Engineer that the recommendation of the DRB is not acceptable to
it. It has intended to proceed to the arbitration proceedings as per the
provisions of the Indian Arbitration Act or the statutory provisions to that
amended Act. Therefore, I have to hold that the Arbitration Petition is liable
to be dismissed as not maintainable as it is not preceded by issuance of a
demand notice to the opp.party no.2 demanding for appointment of an
Arbitrator which is mandatory in law.
I have answered point no.1 against the petitioner holding that the
arbitration petition is not maintainable for the reason that it is not preceded
by a demand notice issued and served upon the Chief Engineer seeking for
appointment of an arbitrator. In view of the same, no useful purpose would
be served to consider the Misc.Case filed under Section 14 of the Limitation
Act, 1963 for condonation of delay even if the case pleaded by the petitioner
regarding delay is acceptable. For the reasons stated supra, the arbitration
petition is dismissed. Hence, there is no need to consider the Misc. Case
which is also dismissed.
Application dismissed.
559
2013 ( I ) ILR - CUT- 559
V. GOPALA GOWDA, CJ.
MACA NOS. 120, 635 OF 2006 (Dt.31.08.2012)
ASHA MOHARANA
..Appellant
.Vrs.
PRASANNA KU. SAHOO & ANR.
...Respondents
MOTOR VEHICLES ACT, 1988 S. 168.

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

J.Patnaik & S.Barik (for Res.No.1) M/s.
A.K.Moanty, M.C.Nayak, D.C.Dey.
For Respondents - M/s. G.S.Namtoar, D.K.Mishra, R.N.Singh

(For Res.No.2)
V. GOPALA GPWDA, CJ.
Both the appeals one by the claimant and
the other by the insurance company have been filed questioning the award
dated 6.10.2005 rendered by the Ist Motor Accident Claims Tribunal,
560
[2013]
Keonjhar in M.A.C. Case No.54 of 1994 awarding compensation of

Rs.44,100,00 to be paid within 45 days failing which the same will carry
interest at the rate of 9% per annum from the date of the claim urging
various grounds in support of their respective cases in their appeals. While
the claimant has challenged the compensation as inadequate and prayed for
enhancement of the same, the insurance company has prayed for setting
aside the award on the ground that it is not liable to pay the compensation.
2.
The necessary relevant facts and legal contentions are extracted
herein with a view to find out as to whether the amount of compensation
awarded is on the higher side or inadequate, as contended by the appellants
and whether the appeal of the claimants is required to be allowed by
awarding just and reasonable compensation.
3.
The brief facts are that the claimants daughter Srimati Maharana
was working as a coolie in the truck bearing registration number ORJ 1916.
On 31.1.1994 she was traveling as a coolie in the said truck. While the truck
was moving in a high speed, it capsized as a result of which Srimati, the
daughter of the claimant, sustained injuries and expired at the hospital. The
case of the claimant was that the deceased was earning Rs.900.00 per
month and the vehicle in question was duly insured and the driver of the
offending vehicle had a valid driving license. As the accident occurred due to
the rash and negligent driving of the driver of the vehicle in question resulting
in the death of the daughter of the claimant, the claim was made by her. The
insured-owner of the vehicle did not appear in spite of service of summons
upon him and therefore he was set ex parte. The appellant insurance
company filed its statement of counter urging the plea that the vehicle was
not duly insured and the driver of the offending vehicle had no valid driving
license. Therefore, there was breach of the policy condition. Hence, the
insurance company was not liable to pay the compensation. On the
aforesaid pleadings, the case went for trial. The claimant examined herself
and produced documents Exts. 1 to 7 but neither any witness was examined
by the insurance company nor was any document produced on their behalf.
On the basis of the pleadings, the tribunal framed three issues. The same
were answered in favour of the claimant and after recording a finding that the
accident took place on the fateful day due to the rash and negligent driving
of the driver causing death of the deceased, awarded a sum of Rs.44,100.00
as compensation taking the monthly income of the deceased at Rs.900.00.
Due to non-production of evidence to show her monthly contribution to the
family, the learned Tribunal divided the family into units taking two units per
major member and one unit for minor member. Since the petition revealed
that the deceased died leaving behind the claimant, the total units came to
561
ASHA MOHARANA -V- PRASANNA KU. SAHOO
four. The expenditure per unit came to Rs.225.00 and calculated on that
basis the expenditure towards the deceased came to Rs.450.00 and it was
further considered that she being the earning member was likely to spend
Rs.150.00 more towards her comfort. So the monthly dependency was
determined at Rs.300.00 and accordingly the annual dependency came to
Rs.3,600.00. The claimant being the only dependant and applying the
multiplier of 11, the age of the claimant being 52, the total dependency
worked out to Rs.39,600.00. Holding that the claimant was entitled to
Rs.2000.00 towards funeral expenses and Rs.2500.00 towards loss of
estate, the entitlement of the claimant was fixed at Rs.44,100.00 and the
liability was fastened on the insurance company despite the plea that the
driver of the offending vehicle had no driving license to drive the vehicle and
therefore the liability should have been fastened on the owner.
4.
It is urged on behalf of the insurance company that the Tribunal has
erred in recording a finding that on account of injury sustained in the road
traffic accident while she was traveling in the offending vehicle, the
deceased succumbed to the injury there being no evidence available on
record. There is no injury report or post-mortem report in the corresponding
G.R.Case record. Hence, the death of the deceased was due to some other
reason but not on account of the accident. This aspect of the matter has not
been taken into consideration by the Tribunal while awarding the
compensation in favour of the claimant. Further in col.3 of the claim
application, the age of the deceased is mentioned as 42 years and in col.19
the relationship is mentioned as wife whereas the claimant was described as
wife of late Bhagirathi Moharana. Therefore, the actual relationship of the
deceased remained unknown. Hence, the claim petition filed by the claimant
should not have been entertained and compensation should not have been
awarded. Lastly, it is contended that the provision of the Motor Vehicles Act
does not confer power on the Member of the Tribunal to award interest at the
rate of 9% in the event the compensation awarded is not paid within fortyfive days to the claimant.
5.
In the claimants appeal, the ground of attack is that the
compensation awarded is grossly inadequate. The Tribunal erred in law in
taking into consideration the fact that the deceased was earning Rs.900.00
by working as a coolie in the offending vehicle. In absence of any evidence
the Tribunal ought to have applied Schedule II of the Motor Vehicles Act,
1988 which provides the schedule for compensation for third party fatal
accidents/injury case claims. In absence of evidence in proof of the monthly
income of the deceased it could have taken the monthly income as rupees
three thousand per month and awarded the compensation accordingly as the
562
[2013]
accident in the instant case held taken place on 31.1.1994 after the Motor
Vehicles Act, 1988 had come into force. No doubt as per section 163-A of
the Act, the Second Schedule was inserted subsequently. In absence of the
claimant not having any proof of monthly income, the amount mentioned in
the schedule should be the guiding principle for awarding compensation.
That has not been done by the Tribunal in this case. If the criteria are
followed, then the monthly income should be taken as Rs.3000.00 as it
would represent the minimum wages fixed for unskilled labour during 1994
which should be Rs.100,00 out of which 1/3 should be deducted towards
personal expenses of the deceased. Hence, the dependency per month
would come to Rs.2000.00 and on that basis the annual income would be
Rs.24,000.00. Even if the claim made by the claimant was less, it is the
statutory duty of the Tribunal to assess the just and reasonable
compensation by applying the guiding principles mentioned in the second
schedule to the Motor Vehicles Act and law in this regard is clear by the
decisions of the various High Courts and the Supreme Court that even if the
claimant has claimed less amount, it is the duty of the court to consider and
assess the loss and award just and reasonable compensation even in the
case of death caused on account of road traffic accident. Therefore, the
responsibility of the Tribunal having regard to the object and intendment of
the provisions contained in the M.V. Act is to award just and reasonable
compensation and the insurer is compulsorily liable to indemnify the insured
on the basis of the policy of insurance taken by the insured. Under the
conventional head also, compensation in view of the decision in the case of
General Manager, K.S.R.T.C. v. Sushma Thomas, AIR 1994 SC 1631,
Rs.50,000.00 can be awarded. Further, the Tribunal has ordered that the
insurance company shall pay the amount awarded by him within 45 days
failing which interest at the rate of 9% will be charged from the date of
application. It is submitted that the Tribunal in exercise of the power under
the Motor Vehicles Act is required to grant interest on the compensation
amount. Learned counsel for the appellant submits that it is a fit case where
this Court should exercise its power to interfere with the judgment and award
of the Tribunal and having regard to the relevant pleadings and materials on
record, grant just and reasonable compensation of Rs.3,00,000.00 with
interest at the rate of 6% from the date of claim petition till realization.
6.
With reference to the above said rival contentions, the following
points would arise for consideration:
(a) Whether the fastening of the liability on the insurance company
despite its allegation of violation of the terms and conditions of the policy as
the driver of the vehicle had no valid license is legal and valid? (b) Whether
563
the claimant is entitled for enhancement of compensation as claimed during

the course of argument to Rs.6,00,000.00 and interest at 6 per cent? (c)
What order ?
7.
The first point is required to be answered against the insurer for the
following reasons. It is an undisputed fact that the deceased Srimati
Moharana Travelled in the offending vehicle bearing registration number
ORJ.1916 on 31.1.1994 and she was working as a collie in that truck is also
an undisputed fact. The plea taken by the insurer was that the driver who
was driving the vehicle did not possess valid driving license. Therefore, there
was violation of the terms and conditions of the policy. The said plea cannot
be accepted in the absence of evidence. Mere pleading that the driver who
drove the truck did not possess valid license thereby there was violation of
the terms and conditions of the policy itself does not amount to proof. The
pleading must be substantiated by cogent evidence. Having regard to the
undisputed fact that the insurance company has not examined any witness
nor called upon either the driver or the insured to produce the license which
was valid on the date of accident, it could have taken necessary steps to
obtain the authenticated copy of the license from the licensing authority. No
such steps have been taken. Therefore, as held by the Supreme Court in
catena of cases, particularly in the case of National Insurance Company Ltd.
v. Swaran Singh and others, (2004)3 SCC 297 the award must be satisfied
by the insurer and if it is proved that breach of policy condition has been
committed by the insured, the amount can be recovered from the insured by
establishing the fact that there is violation of terms and conditions of the
policy as the driver of the offending vehicle did not possess effective and
valid license. In the case at hand, since the insurance company did not
prove the violation of the terms and conditions of the insurance policy on
account of the driver not possessing valid driving license to drive the vehicle,
the tribunal was justified in fastening the liability of paying the compensation
on the insurance company which has been quantified at Rs.44,100.00 to be
paid within forty five days failing which the same shall carry interest at the
rate of 9 per cent per annum. Therefore, there is no merit in the appeal of the
insurance company which is liable to be rejected and is accordingly rejected.
8.
The second and third points are required to be answered in favour of
the appellant-claimant. It is well established principle of law that the M.V. Act
is a social piece of legislation enacted by the Parliament keeping in view the
laudable object of Article 15 of the Directive Principles of State Policy
enshrined in Part IV of the Constitution. The provisions of the Motor Vehicles
Act has been interpreted in number of cases by the High Courts and the
564
[2013]
Supreme Court that even if, the claimant has not claimed just and
reasonable compensation by producing material evidence on record, it is the
duty of the tribunal to award just and reasonable compensation in favour of
the claimant. No doubt, the claimants have raised a claim of Rs.1,00,000.00.
The claim was that the deceased was earning Rs.900.00 per month by
working as a collie in the offending truck. Except contending that the
quantum awarded is baseless, no acceptable evidence has been produced
on behalf of the appellant to accept the contention. To repel the contention of
the claimant that the deceased was earning Rs.900.00 at the time of
accident, no evidence to the contrary has been produced nor what was the
minimum wages at the relevant time is either stated or proved. In absence of
the same, the second schedule to the Motor Vehicles Act under section 163A of the Act is required to be applied to determine the just and reasonable
compensation. The second schedule provides that in case of any fatal
accidents/injury cases claims income ranging from Rs.3,000.00 to the
maximum of Rs.40,000.00 per annum can be taken in absence of proof to be
produced by the claimant regarding the income of the deceased. In the
instant case, it would be just and proper for this Court to determine the
income at Rs.3,000.00 per month and after deducting 1/3rd towards personal
expenses, Rs.2000.00 would be the monthly dependency and accordingly
the annual dependency would be Rs.24,000.00. I find that having regard to
the age of the claimant, the Tribunal has rightly applied 11 multiplier.
Therefore, the compensation would come to Rs.2,64,000.00. In addition to
the above, the claimant would be entitled to Rs.50,000.00 under the
conventional heads like loss of happiness, consortium, loss of estate and
loss of love and affection as held by the Supreme Court in the case of
General Manager, K.S.R.T.C. v. Sushama Thomas upon which decision
reliance is rightly placed by the learned counsel on behalf of the claimant.
The approach of the Tribunal in arriving at the figure at Rs.44,100.00 in the
absence of evidence of monthly income of the deceased taking the monthly
income as Rs.450.00 and deducting Rs.150.00 towards personal expenses
and arriving at the annual dependency at Rs.3600.00 and applying the
multiplier 11 arrived at the total dependency at Rs.39,600.00 and adding
Rs.2000.00 towards funeral expenses and Rs.2500.00 towards loss of
estate to the same awarded compensation of Rs.44,100.00 is totally
erroneous in law. The approach of the Tribunal is contrary to the provisions
of the Motor Vehicles Act and the law laid down by the Apex Court and
various High Courts in catena of cases regarding the criteria to be followed
to award just and reasonable compensation. The contention of the insurance
company that in the claim petition the claimant has been described as wife of
late Bhagirathi Mohapatra and her relationship with the deceased is
unknown and therefore no compensation could be granted cannot be
565
accepted. It is the statutory duty of the Tribunal and of this Court to see that
in a matter of this nature, just and reasonable compensation is awarded
even if the claim made is less. For the aforesaid reasons, I am of the view
that this is a fit case to award just and reasonable compensation of
Rs.3,00,000.00. Accordingly, the insurance company-appellant in MACA
No.635 of 2006 is directed to pay compensation of Rs.3,00,000.00 (Rupees
three lakhs) to the claimant with interest at the rate of 6% per annum from
the date of claim till the date of payment.
In the result, MACA No.635 of 2006 is dismissed and MACA No.120
of 2006 is allowed to the extent indicated above. There would be no order as
to costs.
MACA No.635/06 dismissed.
MACA No.120/06 allowed.
566
2013 ( I ) ILR - CUT-566
V. GOPALA GOWDA, CJ & S.K.MISHRA, J.
W.P.(C) NO. 9169 OF 2012 (Dt.20.12.2012)
YUDHISTHIRA SAHOO & ORS.
.Petitioners
.Vrs.
GOVERNMENT OF ORISSA & ORS.
.Opp.Parties
A.
P.I.L. Decision taken by NALCO to construct Ash Pond-IV,
adjacent to petitioners hamlet Ash ponds discharge west ashes of
the power plant causing air and water pollution, prone to serious
diseases It would also affect the ecology of the area in question
State Pollution Control Board made statutory violation in issuing
consent order Held, direction issued not to construct such Ash Pond
and if already constructed the same shall not be used as Ash Pond.
(Para 43)
B. CONSTITUTION OF INDIA, 1950 ART.226
Writ petition Petitioners challenge the decision of NALCO to
construct Ash pond-IV adjacent to their hamlet - Hazardous to human
life Violation of human, fundamental and statutory rights Held, writ
petition is maintainable Matter need not be transferred to the Green
Tribunal as prayed by the Opp.Parties.
(Para 35)
Case law Relied on :AIR 2000 SC 1997
: (M.C. Meheta-V- Kamal Nath & Ors.).
Case laws Referred to:1.(1996)5 SCC647
2.AIR 1996 SC 1446
: (Citizen Welfare Forum-V- Union of India(

: (Indian Council for Enviro-Legal Action-V- Union of
India).
3.AIR 1954 SC 403
: (Himatlal Harilal Meheta-V- State of M.P.)
4.(1998) 8 SCC 1
: (Harpal-V- State of U.P. & Anr.).
5.AIR 1999 SC 812 p-35,36,37 : (A.P. Pollution Control Board-V- Prof. M.V.
Nayudu (Retd.) & Ors.)
6.(1996) 5 SCC 647 p-11 : (Vellore Citizen Welfare Forum-V- Union of
India)
7.(2004)12 SCC 185
: (M.C. Meheta-V- Union of India)
8.AIR 2010 SC 2050
: (State of Uttaranchal-V- Balwant Singh Chaufal).
567
YUDHISTHIRA SAHOO-V- GOVT. OF ORISSA
For Petitioners
- M/s. Dayanidhi Mohanty, K.P.Mishra, A.K.Jena,

R.C.Ojha, I.N.Choudhury, M.R. Padhi,
S.K.Parida.
For Opp.Parties - M/s. R.K.Rath (O.Ps.Nos.6,7 & 8)
M/s. N.R.Rout, Pami Rath (O.Ps.Nos.6,7,8)
M/s. S.P.Mohanty, P. Lenka & M. Barik (O.P.9).
V.GOPALA GOWDA, C.J.
The petitioners who claim to be the
representatives of a class of villagers of Badataila Sahi of mouza Balaram
Prasad in the district of Angul challenge the inaction and illegal action of the
opposite parties 6 to 8 and oppose the construction work of the Stage-IV
Ash Pond undertaken by the management of the National Aluminium
Company (for short, NALCO), at Balaram Prasad, Nalco Nagar in the
district of Angul adjacent to the petitioners hamlet village, although three
ash ponds are already in existence to discharge the waste ashes of the
power plant of NALCO through pipe line which causes inconvenience and
pollution of the air and water of the area endangering the lives, health and
properties of the petitioners by creating hazardous pollution in the locality
and spreading diseases like T.B. and leprosy and also causes orthopaedic
diseases due to fluoride contents in discharged effluents polluting the air
and water in the locality.
2.
It is the case of the petitioners that even though the management of
NALCO authority acquired the land measuring an area of Ac.46.90 dec. in
the said mouza through land acquisition proceeding in exercise of emergent
power of acquisition of land under the provision of Section 17(4) of the Land
Acquisition Act, 1894 (for short, the L.A. Act) due to breakage of side
walling of old ash ponds with the specific remark that the opposite party
management of NALCO imploring upon the Pollution Control Board is
making surreptitious attempt for construction of a new Stage-IV ash pond
adjacent to petitioners hamlet village violating the purpose and
endorsement in the Land Acquisition Act.
3.
It is submitted that petitioner no.6 is an educational institution
established Punyashrama under the name of Nakula Chandra Special
School for Blind, Deaf and Dumb since 2002 in mouza Balaram Prasad,
which is registered under the Societies Registration Act, 1860 and also
under the provisions of the Persons with Disabilities (Equal Opportunities
Protection of Rights and Full Participation) Act, 1995 by the Government of
Odisha, Women and Child Development Department vide Registration
No.56/WCD of 2005, BBSR dated 10.03.2005.
568
[2013]
4.
It is submitted that NALCO is a public limited company and
Government of India Enterprise established in 1981 for production of
aluminium from alumina ore and has constructed one separate captive
power plant for generation of power. The ashes that come out from such
power plant are sent through pipe line in slurry to ash pond for which three
separate ash ponds are already there for dumping of the power plant
wastes. Due to huge deposit of ashes in slurry form beyond control the ash
ponds embankments collapsed on 31st December, 2000, as a result of which
the slurry ashes dumped up to 50 meters level in the west-northern side of
the ash pond flows to fields convey 20KMs. and ultimately came to Nandira
River causing hazardous pollution in the entire environment. This has been
published through media in almost all the local dailies. In this connection,
the local people had also lodged FIR against the Chairman and the
Managing Director and the Executive Direction of NALCO for not taking
preventive measure to avoid air and water pollution in the locality causing
damage to the common citizen of the area, which case is since pending.
Thereafter the management proposed to acquire more land for dumping the
ashes and accordingly on the request of the NALCO management, the
Government of Odisha acquired Ac.46.90 decimals of land in mouza
Balaram Prasad vide notification dated 25.9.2001 notified under Section 4(1)
of the Land Acquisition Act, 1894. However, since the emergent situation
arose in order to avoid Section 5(A) of the L.A. Act, the said land of Ac.46.90
dec. was acquired under Section 17(4) of the L.A. Act including some lands
belonging to some private owners on payment of compensation. Thereafter
opp. parties 6, 7 and 8 decided to construct another new ash pond in StageIV adjacent to the petitioners hamlet village Badatalia Sahi in mouza
Balaram Prasad, wherein more than fifty family members including the
petitioners are residing over their own homestead land from the time
immemorial.
5.
Despite all this, the NALCO floated tender for taking of the
construction work of Stage-IV Ash pond, against which the villagers staged
a hunger strike.
6.
It is stated that though the Pollution Control Board suggested for
certain precautionary measures for the purpose, opp. party no.1 has
directed the NALCO management to proceed with the construction work and
opp. party nos.6, 7 and 8 started the construction work over the land in
question at the cost of the lives of common villagers in violation of Article 21
of the Constitution of India, which has been fortified in catena of decision
delivered by this Court as well as the Apex Court. The Apex Court in the
case of Vellore Citizen Welfare Forum v. Union of India, (1996) 5 SCC
569
647, it has categorically observed that industries which are essential for
economic development may have to be set up but measures should be
taken to reduce the risk of hazardous nature to the community by taking
necessary steps or locating such industries in a manner that would pose the
least risk or danger to the community and maximizing safety requirement on
such industries. Similarly, in the case of M.C. Mehta v. Kamal Nath and
others, AIR 2000 SC 1997, the Apex Court has held that any disturbance of
basic requirement element namely air, water and soil which are necessary
for life would be hazardous to life. Further, the Apex Court in the case of
Indian Council for Enviro-Legal Action v Union of India, AIR 1996 SC
1446, held that if an industry is established without requisite permission
and/or violating the basic norm and in blatant disregard and violation of law
to the detriment of citizen right to life the court can interfere and rule of
absolute liability applies in such cases being violative of Article 21 of the
Constitution of India.
7.
Further, it is urged by the petitioner that right to life in the
community does not mean to live being affected with diseases and live in a
disadvantageous position like animal, but such living in the community is to
live with human dignity. The right to life has been guaranteed by the
constitutional provision which has received the widest possible interpretation
made by the Apex Court under the canopy of Article 21 of the Constitution of
India and such right is enforceable against the State also.
8.
Notwithstanding the aforesaid reason, it is needless to mention that
the Green Tribunal Forum is not an alternative remedy for the petitioners to
get redressal of public interest involved in this case as it is the case of the
petitioners that on account of the illegal action on the part of the NALCO in
constructing the Stage-IV Ash Pond in the lands which are acquired by the
company though the said lands do not come within the purview of industrial
area for which a notification under Section 14(1)(a) of the Act and under the
IDCO Act is required to be issued by the State Government. Construction of
such Ash Pond amounts to industrial activity which will not only cause air
and water pollution but also ecology and environment will be adversely
affected and thereby create health hazards to the residents of the locality
and their agricultural occupation of the agriculturists of the locality will be
affected and thereby the agricultural livelihood of the labourer will be
deprived. Therefore, the action of the NALCO will be in blatant violation of
the fundamental rights of the people residing nearby the proposed Ash Pond
location. Therefore, the learned counsel for the petitioners submits that the
PIL is maintainable. Hence, the contention raised on behalf of NALCO that
570
[2013]
the matter should be transferred to the Green Tribunal or the alternative

forum is not tenable in law.
9.
Further, it is stated by the petitioners that keeping in view the basic
legal principles laid down by the Apex Court in catena of decisions,
construction of Stage-IV ash pond by the NALCO over the land in question
which would make hazardous pollution of air, water and soil. The action of
NALCO to construct the proposed Ashn Pond is in utter contravention of the
terms of acquisition of land and also with willful disregard of the report of the
Pollution Control Board, which action is highly illegal and the same is
violative of Article 21 of the Constitution and therefore required to be
stopped in the interest of the petitioners and the public at large and therefore
writ petition should be allowed.
10.
The writ petition is opposed by opp. parties 6, 7 and 8 by filing
counter statements by way of affidavit sworn to by Duryodhan Samal, at
present working as Manager H.R.D., Captive Power Plant, National
Aluminium Company Limited, Nalconagar, Angul denying the averments
made in the writ petition and justifying the construction of the proposed Ash
Pond Stage-IV in the area in question alleging that the petitioners are guilty
of suppression of material facts and they have resorted to deliberate
distortion and as such the writ petition is liable to be dismissed.
11.
It is further stated that this is not a case where ash slurry would be
moved through sealed pipeline to be dumped in the ash pond. The
petitioners are either ignorant of the actual facts or have deliberately
resorted to distortion of facts. A scientific method has been adopted to move
the ash and not the ash slurry in a semisolid form like paste though the
sealed pipeline and would be discharged in to the ash pond in the semisolid
form. The same would immediately be totally solid within a period of one or
two hours. Therefore, there is no question of ash slurry getting deposited in
the ash pond and as such there cannot be any apprehension for the
petitioners and other residents of any breach of the ash pond embankment
or seepage of the ash slurry to the adjacent ground.
12.
It is further stated that the present system of dumping ash in the ash
pond either in the shape of ash slurry or in the shape of high concentrated
mode is going to be totally phased out gradually after disposal the coal voids
of MCL would start through pipelines, which is the subject matter in W.P.(C)
Nos.9772 and 9773 of 2012. The present high concentration mode which is
going to be adopted does not have any problem relating to seepage/leakage
through the embankment or overflowing the embankment. In the said high
571
concentrated mode of disposal, as the disposed of material would

immediately become totally solid within a period of one or two hours, there
will be absolutely no content of water left for any percolation. Therefore,
there cannot be of any apprehension of flying or flowing ash for the
petitioners and residents of the locality where the proposed Ash pond will be
constructed by the NALCO.
13.
It is further stated that the writ petitioner-Yudhistir Sahu has not
correctly stated about his own residence. He is a permanent resident of
Kurudol and does not reside in Badataila Sahi. The village Kurudol is at a
distance of 3KMs from the construction site of ash pond-IV, which is evident
from the Khatian filed by petitioners themselves.
14.
It is their case that the averments made in paragraph-1 that three
ash ponds are existing in the area in question are incorrect. In fact, there
exist only two ash ponds. In between the two ash ponds there is a
decantation channel to drain out the excess water and that is referred to as
ash pond-III.
15.
It is stated that in the year 2000 when there was a breach in the ash
pond, the ash slurry slipped into the nearby areas. The said nearby areas
were immediately acquired by NALCO on the request of the villagers. In fact
the present ash pond, i.e., ash pond-IV is being constructed in that area
only. The record containing the notes of discussion dated 4.4.2001 has been
filed therewith as Annexure-A/6, which would indicate that the villagers
requested for expeditious acquisition of land which got damaged on account
of breach in the ash pond and also for payment of compensation.
Consequent upon acquisition of the said land not only compensation was
paid to the villagers who lost their lands but also 52 numbers of villagers
were given employment in lieu of the same. Therefore, Ac.46.90 decimal of
land, which is now being used for the purpose of construction of the ash
pond-IV, was acquired in the aforesaid process. Annexure-B/6 is the
notification issued by the Government in Revenue Department, which would
indicate that for the purpose of ash pond the lands were acquired.
16.
It is also stated that on account of breach in the year 2000,
alternative methods have also been planned and adopted by the NALCO
Co. One of the major steps taken by NALCO is to construct pipelines for
about 22 KMs from NALCO area to Mahanadi Coalfields Limited to fill up the
coal voids created by extraction of coal by MCL. In the said pipelines ash
slurry will be flown and will be buried deep inside the ground from which coal
has already been extracted and voids have been created. This is one of the
572
[2013]
safest methods for which construction work is speedily going on. It is

expected to be over by December, 2012. Once the said operation would
start gradually the dumping of ash would be phased out. Another scientific
method of disposal in the high concentrated mode in the ash pond-IV has
been adopted and there will be no fear of flying ash or ash flowing to area
adjacent.
17.
In response to the averments made in paragraph-15 of the writ
petition that the ash ponds could not accommodate the ash slurry beyond its
capacity and would cause breach and would ultimately come to Nandira
river causing hazardous pollution, it is stated that the present step taken to
construct the ash pond-IV is to safe guard against any such eventuality and
to accommodate the ash in lump form.
18.
It is stated that the ash ponds were constructed in the year 1986 and
are in existence since then. Once there was a breach in the year 2000. In
the last 12 years there has been no breach, as adequate safety measures
have been taken to prevent such occurrence. Therefore, the apprehension
of breach is unfounded.
19.
With regard to the averments made in rest of the paragraphs, it is
stated that at no point of time the Pollution Control Board has prevented the
construction of ash pond-IV.
20.
It is further stated that if the ash pond-IV is directed to be closed
down, it would not only cause irreparable injury to such a huge organization
in terms of National wealth as production, etc. will be affected, but also it
would cause heavy load on the existing ash ponds which are about to be
filled up. Therefore as NALCO has already undertaken the alternative
method of disposal through pipelines in MCL coal voids and which is likely to
be over by 2012 December and which would be a step towards phasing out
dumpimng in ash pond system, NALCO should be allowed to go ahead with
the ash pond-IV programme without any interruption.
21.
It is further stated that ash in the form of semisolid paste would be
discharged through sealed pipelines by pumping through costly pumps. It
would be discharged in the dumping yard like toothpaste being discharged
from a tube. It would be solid within a couple of hours once it comes in
contact with air and sunlight. A pump to discharge the same costs around
seven crores and NALCO has already installed three such pumps costing
more than twenty-one crores to discharge the same in the aforesaid form.
573
The apprehension of the petitioners that ash slurry is going to be discharged

and that would cause breach in the embankment is totally ruled out.
22.
It is also stated that the contents of Annexure-D/6 dated 18th April,
2012 would clearly show that a direction has been issued by the
Government of Odisha in the Department of Forest & Environment to
complete the construction of ash pond-IV on war footing. The contents
further would indicate that NALCO has also deposited necessary amount
with the RWSS Department of the Government for supply of water to the
nearby villages. Besides, direction has also been given to NALCO to
complete the disposal through pipeline system expeditiously. Therefore,
steps have been taken expeditiously to complete not only the pipeline
disposal system but also the construction of ash pond-IV in order to release
pressure on the existing ash ponds.
23.
It is further stated that Annexure-E/6 series contains the reports of
the State Pollution Control Board in regard to disposal in existing ash ponds
for different years, which would indicate that the standard as prescribed by
the State Pollution Control Board is being strictly maintained.
24.
It is also stated that most of the petitioners are aspirants for job in the
NALCO. In the recent past Sisir Kanta Pradhan, son of Dibakar Pradhan
(now deceased and petitioner), Bhagyashree Swapnanjali (petitioner), Rohit
Sahu, son of Tirtha Sahu (petitioner), Lipan Kumar Dehuri, son of Trinath
Dehuri and Rupa Sahu who after marriage has become Rupa Dehuri
(petitioner) have applied for job under NALCO. Annexure-G/6 series are the
applications filed by the above named petitioners.
25.
It is also further stated that petitioner no.6, the school referred supra,
from time to time has been applying for different kinds of help from NALCO
in terms of finance. Annexure-H/6 series are the copies of some applications
filed by petitioner no.6. On various occasions NALCO has given financial
help to petitioner no.6, which would be more than Rs.5.00 lakhs.
26.
It is stated that the present litigation has been filed by the people
those who are substantially interested in getting benefits from NALCO.
Therefore, the allegations made in the writ petition are totally denied and it is
prayed that the writ petition is liable to be dismissed.
27.
With reference to the above rival, factual and legal contentions, the
points that would arise for consideration by this Court are as follows:
574
[2013]
i)
Whether the writ petition is required to be transmitted to the Tribunal

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

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

the area of Ac.46.90 dec. of land causes environmental problem in
the locality?
iv)
Whether the petitioners are entitled for relief of directing opp. parties 6,
7 and 8 to stop further construction of the Stage-IV Ash Pond
adjacent to the petitioners hamlet village?
28.
The first point is required to be answered in the negative for the
following reasons. Learned counsel for the petitioners Mr K.P. Mishra placed
strong reliance upon Sections 14, 15 and 29 of the National Green Tribunal
Act, 2010 in support of his contentions. He submitted that the National
Green Tribunal will exercise its jurisdiction in places of civil courts, where
civil cases will be instituted in case of enforcement of the legal rights by
public litigants relating to environment hazards claiming compensation and
Section 15 confers power upon the Tribunal to grant relief for compensation
to the victims of the pollution and other environmental damages arising out
of breach of the environmental laws specified in Schedule-1 of the Act. He
further contended that the petitioners have approached this Court with the
grievance of violation of their fundamental right of peaceful residence and
livelihood guaranteed under Articles 19(1)(e) and 21 of the Constitution of
India. They have got every constitutional right to approach this Court
seeking redressal of their grievance by filing this writ petition. In support of
the said contention, he placed reliance upon two judgments of the Supreme
Court viz. AIR 1954 SC 403 (Himatlal Harilal Meheta v. State of M.P.); and
(1998) 8 SCC 1 ( Harpal v. State of U.P. and another). (para 14 & 15)
contended that assuming that after the direction contained in Bhopal Gas
Peedith Mahila Udoyg Sangathans case referred to supra the Green
Tribunal is the alternative forum for the petitioners, there is no bar for this
Court to exercise its extraordinary jurisdiction under Article 226 to protect
575
the fundamental and statutory rights of the residents whose rights are
espoused through this public interest litigation.
29.
Further learned counsel for the petitioners has relied upon the
Doctrine of Precautionary Principle placing reliance upon the judgments of
the Supreme Court in the case of A.P.Pollution Control Board v. Prof.
M.V. Nayudu (Retd.) and others, AIR 1999 SC 812 (paras-35, 36 and 37);
Vellore Citizen Welfare Forum v. Union of India, (1996) 5 SCC 647
(para-11); M.C. Meheta v. Union of India, (2004) 12 SCC 185 and
submitted that the first point is required to be answered against the NALCO
and in favour of the petitioners.
30.
The said legal submission is strongly rebutted by the learned Senior
Counsel Mr R.K. Rath who appeared on behalf of NALCO relying upon
Bhopal Gas Peedith Mahila Udoyg Sangathans case referred to supra,
wherein the Supreme Court after examining the provisions of the National
Green Tribunal Act and Rules made thereunder has directed all the High
Courts to transfer the cases relating to the environmental aspects to the
Green Tribunal established at New Delhi under the provisions of the Green
Tribunal Act and Rules. He submitted that the writ petition cannot be
entertained and this Court cannot grant relief in favour of the petitioners and
requested this Court to transfer this case to the Green Tribunal at New Delhi
for its consideration.
31.
With reference to the above legal contention urged on behalf of the
NALCO, this Court after examining the same is of the view that the said
contention is wholly untenable in law, as the learned Senior Counsels
interpretation of the said decision is not legally correct for the following
reasons. For better appreciation, it would be necessary to extract the
relevant provisions of Sections 14, 15 and 29 of the said Act.
14(1) The Tribunal shall have the jurisdiction over all civil cases where a
substantial question relating to environment (including enforcement
of any legal right relating to environment), is involved and such
question arises out of the implementation of the enactments
specified in Schedule-I.
(2)
The Tribunal shall hear the disputes arising from the questions
referred to in sub-section (1) and settle such disputes and pass order
thereon.
(3)
No application for adjudication of dispute under this section shall be

entertained by the Tribunal unless it is made within a period of six
576
[2013]
months from the date on which the cause of action for such dispute
first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the
application within the said period, allow it to be filed within a further
period not exceeding sixty days.
15. (1) The Tribunal may, by an order, provide
(a)
relief and compensation to the victims of pollution and other

environmental damage arising under the enactments specified in the
Schedule I (including accident occurring while handling any
hazardous substance);
(b)
for restitution of property damaged;
(c)
for restitution of the environment for such area or areas, as the

Tribunal may think fit.
(2)
The relief and compensation and restitution of property and

environment referred to in clauses (a), (b) and (c) of sub-section (1)
shall be in addition to the relief paid or payable under the Public
Liability Insurance Act, 1991.
(3)
No application for grant of any compensation or relief or restitution of

property or environment under this section shall be entertained by
the Tribunal unless it is made within a period of five years from the
date on which the cause for such compensation or relief first arose:
Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the
application within the said period, allow it to be filed within a further
period not exceeding sixty days.
(4)
The Tribunal may, having regard to the damage to public health,

property and environment, divide the compensation or relief payable
under separate heads specified in Schedule II so as to provide
compensation or relief to the claimants and for restitution of the
damaged property or environment, as it may think fit.
(5)
Every claimant of the compensation or relief under this Actshall

intimate to the Tribunal about the application filed to, or, as the case
may be, compensation or relief received from, any other court or
authority.
577
29.
(1)
With effect from the date of establishment of the Tribunal
under this Act, no civil court shall have jurisdiction to entertain any
appeal in respect of any matter, which the Tribunal is empowered to
determine under its appellate jurisdiction.
(2)
No civil court shall have jurisdiction to settle dispute or
entertain any question relating to any claim for granting any relief or
compensation or restitution of property damaged or environment
damaged which may be adjudicated upon by the Tribunal, and no
injunction in respect of any action taken or to be taken by or before
the Tribunal in respect of the settlement of such dispute or any such
claim for granting any relief or compensation or restitution of property
damaged or environment damaged shall be granted by the civil
court.
32.
It is crystal clear that the Green tribunal has been established by
virtue of the enactment made by the Parliament to exercise its jurisdiction in
place of civil courts, where civil cases will be instituted in case of
enforcement of legal rights of the people of the locality relating to
environment and claiming compensation. Further, Section 15 of the said Act
confers power upon the Tribunal to grant relief of compensation to the
victims of the pollution and other environmental damages, arising out of
breach of environmental laws specified in Schedule-I. Apart from the said
reasoning, the allegations made by the petitioners in this writ petition is that
on account of construction of Stage-IV Ash Pond adjacent to the petitioners
hamlet village over the newly acquired land measuring an area Ac.46.90
dec. is in gross violation of the terms and conditions of acquisition of land
and there is strong opposition in the locality and protest by the local people,
which has been published in the local newspapers The Sambad dated
28.3.2012, which newspaper cutting is produced at Annexure-8 to the writ
petition. Further, it is stated that the right to life guaranteed to the residents
of the locality under Article 21 and right to peaceful residence guaranteed
under Article 19(1)(e) of the Constitution have been affected on account of
the proposed construction of the Stage-IV Ash Pond by the NALCO and the
same is in contravention of the Water (Prevention & Control of Pollution)
Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981.
Therefore, to enforce the fundamental and statutory rights of the residents of
the locality the petitioners have got every right to approach the constitutional
Court under Article 226 of the Constitution in exercise of their constitutional
right to espouse the cause of the residents by filing the public interest
litigation petition. The Constitutional Court has been conferred with the
power to interfere and protect the fundamental rights and the statutory rights
578
[2013]
of the people as the conferment of such power upon this Court is for issuing
certain writs. Notwithstanding anything contained in Article 32, every High
Court shall have power through out the territory in relation to which it
exercises jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government a writ of prohibition, mandamus or
certiorari for enforcement of the fundamental rights. This legal position is
very clear from the judgment of the Supreme Court in Himatlal Harilal
Mehetas case referred to supra.
33.
Further, the learned counsel for the petitioners placed reliance upon
Harpals case (supra) and submitted that even assuming that in view of the
direction issued by the Apex Court in the case of Bhopal Gas Peedith Mahila
Udoyg Sangathan referred to supra that Green Tribunal is the appropriate
forum, there is no bar for the petitioners to approach this Court and this
Court is not precluded from examining the case sought to be made out by
the petitioners for grant of reliefs as prayed in this writ petition. Apart from
the said reasoning, the Green Tribunal is not situated within the Odisha
State, the petitioners have to move to Delhi where it is at present
functioning. Petitioners being rustic villagers will have no access to justice
and will be affected adversely, if the arbitrary and illegal action on the part of
the NALCO is allowed to continue. Therefore, the petitioners cannot be
asked to go to the Green Tribunal situated at Delhi, which will cause
economic hardships on them. Besides, it is relevant to accept the contention
urged on behalf of the petitioners that this writ petition is maintainable and
this Court is required to adjudicate rights of the parties in this PIL as public
interest litigation jurisdiction is conferred upon this Court by the Apex Court
in catena of judgments rendered by the Constitution Bench judgments of the
Supreme Court, the latest judgment on the point is AIR 2010 SC 2050
(State of Uttaranchan v. Balwant Singh Chaufal), wherein the Apex Court
after referring to various Constitution Bench judgment has held that the bona
fide and genuine PIL is required to be entertained by this Court being the
Constitutional Court for protection of the fundamental, constitutional and
human rights of large number of people who have no access to justice, if it is
shown that public interest is affected and there is violation of the Rule of
Law.
34.
In view of the Constitution Bench judgments of the Supreme Court
referred to in the case of State of Uttaranchan v. Balwant Singh Chaufal, the
contention urged by the learned counsel for the petitioners that this petition
is maintainable and the same need not be transferred to the Green Tribunal
at Delhi as the said decision has no application to the fact situation of the
579
case on hand has substance. Accordingly, the first point is answered in

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

Authority must anticipate and prevent and attack the cases of
environmental degradation;
(ii)
Where there are threats of serious and irresponsible damages, lack

of scientific certainty should not be used as a reason to postponing
measure to prevent environmental degradation;
(iii)
The onus proof is one the actor or developer/industrialist to show

that his action is environmentally benign
37.
The aforesaid principle has been rightly relied upon by the learned
counsel for the petitioners. It is also worthwhile to extract certain paragraph
from the judgment in A.P. Pollution Control Boards case (paras-35, 36, 37)
580
[2013]
and Vellore Citizen Welfare Forums case (para-11) and also in M.C.
Mehetas case (para-9). The Apex Court at paragraphs-35, 36 and 37 in
A.P. Pollution Control Boards case has observed as follows:
Para-35: It is to be noticed that while the inadequacies of science
have led to the precautionary principle in its turn, has led to the
special principle of burden of proof in environmental cases where
burden as to the absence of injuries effect of the actions proposed
is placed on those who want to change the status quo (Wynne,
Uncertainty and Environmental Learning, 1 Global Envtl. Change
111 (1992) at p. 123). This is often termed as a reversal of the
burden of proof, because otherwise in environmental cases, those
opposing the change would be compelled to shoulder the
evidentiary burden, a procedure which is not fair. Therefore, it is
necessary that the party attempting to preserve the status quo by
maintaining a less-polluted State should not carry the burden of
proof and the party who wants to alter it, must bear this burden
(See James M. Olson, Shifting the Burden of Proof. 20 Envtl. Law
p.891 at 898 (1990). (Quoted in Vol.22 (1998) Harv. Env. Law
Review p.509 at 519, 550).
Para-36: The precautionary principle suggests that where there is
an identifiable risk of serious or irreversible harm, including, for
example, extinction of species, widespread toxic pollution in major
threats to essential ecological processes, it may be appropriate to
place the burden of proof on the person or entity proposing the
activity that is potentially harmful to the environment. (See Report
of Dr. Sreenivbasa Rao Pemmaraju, Special Rapporteur,
International Law Commission, dated 3-4-1998. para 61).
Para-37: It is also explained that if the environmental risks being
run by regulatory inaction are in some way uncertain but nonnegligible, then regulatory action is justified. This will lead to the
question as to what is the non-negligible risk. In such a situation,
the burden of proof is to be placed on those attempting to alter the
status quo. They are to discharge this burden by showing the
absence of a reasonable ecological or medical concern. That is
the required standard of proof. The result would be that if
insufficient evidence is presented by them to alleviate concern
about the level of uncertainty, then the presumption should b
operate in favour of environmental protection. Such a presumption
has been applied in Ashburton Acclimatisation Society v.
581
Federated Farmers of New Zealand, (1988) 1NZLR 78. The

required standard now is that the risk of harm to the environmentl
or to human health is to be decided in public interest, according to
a reasonable person test. (See Precautionary Principle in
Australia by Charmian Barton) (Vol.22) (1998) Harv Env. L.
Rev.509 at 549).
The Apex Court at paragraphs-11 in Vellore Citizen Welfare Forums
case has observed as follows:
Para-11: Some of the salient principles of Sustainable
Development, as culled out from Brundtland Report and other
documents, are Inter-Generational Equity, Use and Conservation of
Natural Resources, Environmental Protraction, the Precautionary
Principle, Polluter Pays Principle, Obligation to Assist and
Cooperate, Eradication of Poverty and Financial Assistance to the
developing countries. We are, however, of the view that The
Precautionary Principle and The Polluter Pays Principle are
essential features of Sustainable Development. The Precautionary
Principle in the context of the municipal law means:
(i)
Environmental measures by the State Government and the
statutory authorities must anticipate, prevent and attack the causes
of environmental degradation.
(ii)
Where there are threats of serious and irreversible damage,
lack of scientific certainty should not be used as a reason for
postponing measures to prevent environmental degradation.
(iii)
The onus of Proof is on the actor or the
developer/industrialist to show that his action is environmentally
benign.
(Emphasis laid)
38.
It is also an undisputed fact that the construction of the proposed of
Ash Pond Stage-IV for the purpose of filling the ash by the NALCO is
without obtaining the consent from the State Pollution Control Board as
required under the notification dated 14.9.2006 referred to supra issued
under sub-section (2) of Section 3 of the Environmental (Projection) Act,
1986 read with Clause (o) of Sub-rule 3 of Rule 5 of the rules framed
thereunder and there is violation of the Environmental (Projection) Act,
1986. Therefore, the petitioners are justified in approaching this Court
582
[2013]
complaining that there is a statutory violation on the part of the NALCO. The
Pollution Control Board as well as the NALCO has not acted as per the
notification. The condition imposed by the Board upon the NALCO has not
been complied with by it and it has started construction of Stage-IV Ash
Pond and the Board has not taken any step to stop it. The NALCO has
violated the terms and conditions of the notification particularly the general
conditions. Further, before issuing the Annexure-A to the Additional Affidavit,
the State Pollution Control Board, Odisha has not conducted public hearing
giving opportunity to the residents of the nearby villagers of the proposed
construction Ash Pond Stage-IV thereby their right of opportunity of hearing
as provided under the provisions of the Water (Prevention & Control of
Pollution) Act, 1974 and the Air (Prevention & Control of Pollution) Act, 1981
and the Environmental (Protection) Act of 1986 has been affected.
39.
Apart from the said reasoning, the petitioners have rightly placed
reliance upon the judgment of the Supreme Court in the case in the case of
Vellore Citizen Welfare Forus case, wherein it is held by the Apex Court that
the industries are essential for economical development, but measure
should be taken to reduce the risk to the community by taking necessary
steps or locating such industries in a manner that would pose the least risk
or danger to the community and maximizing safety requirement on such
industries. (Emphasis laid by this Court)
40.
Similarly, in the case of M.C. Meheta v. Kamal Nath and others,
AIR 2000 SC 1997, the Apex Court has held that any disturbance of basic
required elements namely air, water and soil which are necessary for life, if
hazardous to life of the citizens, precautionary measures are required to be
taken by the State in anticipation to prevent the attack on the cause of
environmental degradation. Further, the Apex Court in the case of Indian
Council for Enviro-Legal Action v Union of India (supra), has taken the
same view holding that if an industry is established without requisite
permission and/or violating the basic norm and in blatant disregard of law to
the detriment of citizens right to life, the court can interfere and rule of
absolute liabilities applies in such cases being violative of Article 21 of the
41.
The aforesaid principles laid down by the Supreme Court in the
above referred cases with all fours are applicable to the fact situation of the
present case for the reason that, according to the inspection report of the
State Pollution Control Board, the land in question is situated 50 meters
away from the boundary of the proposed Ash Pond Badataila Sahi of mouza
Balaram Prasad in the district of Angul, where 15 to 20 families reside. In
583
respect of land in question the notification under Section 14(1)(a) of the

IDCO Act has not been issued by the State Government declaring the area
as an industrial area for establishment of industries. Therefore, there is
statutory violation on the part of the State Pollution Control Board in issuing
the consent order for construction of Ash Pond IV. The action of the State
Pollution Control Board permitting the NALCO for construction of the
proposed Ash Pond Stage-IV and issuing the consent order dated
23.12.2011 produced at Annexure-A to the Additional Affidavit filed on
behalf of the State Pollution Control Board is bad in law. That apart, learned
counsel for the petitioners placed reliance upon certain materials available
on the Internet, wherein physicians have opined under the heading
Physicians for Social Responsibility that coal ash is hazardous to human
health. It also opined therein that most coal ash comes from coal-fired
electric power plants. The coal ash also can cause heart damage, lung
disease, respiratory distress, kidney disease, reproductive, gastrointestinal
illness, birth defects and impaired bone growth in children. Further, 1 in 50
has the chance of getting cancer from drinking arsenic-contaminated water.
Arsenic is one of the most common and most dangerous pollutants from
coal ash. The EPA also found that living near ash ponds increases the risk
of damage from cadmium, lead, and other toxic metals. Further, it is opined
that coal ash recycling poses health risk, especially where the ash is
exposed to weather for example when sprinkled as cinders on snowy roads,
spread as agricultural fertilizer or used as a landfill or to fill abandoned
mines.
42.
Further, another newsletter i.e. ENVIS NEWSLETTER published by
the Centre for Environmental Studies (Forest & Environment Department,
Government Orissa) on Flyash Management available on the internet
website reveals that the problem with fly ash lies in the fact that not only
does its disposal requires large quantities of land but also water and energy.
Its fine particles, if not managed well, can become airborne. Such a huge
quantity does pose challenging problems, in the form of land used, health
hazards and environmental damages.
43.
In view of the aforesaid hazards to human health as extracted above
from the internet materials uploaded on the website by the physician for
social responsibility, we have to come to the conclusion that the construction
of the fly-ahs pond near the village in question is not only harmful for human
health, fertility but also develop various other ailments which will create
health hazard and water and air will be polluted and the occupation of
agriculture of the villagers will be adversely affected. Hence, the proposed
construction of Stage-IV Ash Pond on the basis of consent produced at
584
[2013]
Annexure-A along with the affidavit of the Pollution Control Board is in

contravention of the fundamental and statutory rights of the residents of the
area in question and contrary to the judgments of the Supreme Court on the
aspects of the doctrine of precautionary principle required to be taken by the
State Pollution Control Board. Instead of taking such pollution control
measures, the State Pollution Control Board has granted consent order
without public hearing and examining the danger which will be encountered
by the residents of the village in question near the proposed construction of
Stage-IV Ash Pond thereby it has acted arbitrarily and the action of the
NALCO for construction of the Ash Pond will affect the ecology of the area in
question. Hence, we answer point nos.2, 3 and 4 in favour of the petitioners
and against the NALCO. Therefore, the petitioners are entitled for the relief
as prayed for in the writ petition.
Accordingly the writ petition is allowed. Rule issued. We direct the
NALCO not to construct the Ash Pond IV in the land in question. If already
constructed, the same shall not be used as Ash Pond by the NALCO. The
other opposite parties in this case particularly, the State Pollution Control
Board shall see that this order is implemented by the NALCO.
Writ petition allowed.
585
2013 ( I ) ILR - CUT-585
V. GOPALA GOWDA, CJ & B. N. MAHAPATRA, J.
W.P.(C) NO. 28343 OF 2011(Dt.08.10.2012)
COAL MINES OFFICERS ASSOCIATION
.Petitioner
.Vrs.
CHAIRMAN-CUM-MANAGING
DIRECTOR & ORS.
. Opp.Parties
NATURAL JUSTICE Civil consequence Infraction of not

merely property of personal rights but of Civil liberties, material
deprivations and non-pecuniary damages Unless a statutory
provision either specifically or by necessary implication excludes the
application of principles of natural justice, because in that event the
Court would not ignore the legislative mandate, the requirement of
giving reasonable opportunity of being heard before an order is made
is generally read in to the provisions of a statute, particularly when the
order has adverse Civil consequences for the party affected.
(Case laws Referred to:1.(2002)2 SCC 388
2.(1978)1 SCC 248
3.2007(1)SCC 732
4.1960 AC 376 (HL)
5.(1980)4 SCC 379
6.(1994)1 WLR 521
: (Rupa Ashoka Huraa-V- Ashok Hurra & Anr.)

: (Maneka Gandhi-V- Union of India)
: (Arun Kumar-V-Union of India & Ors.)
: (Hochstrasser-V- Mayes)
: (S.L. Kapoor-V- Jagmohan)
: (Mercury Energy Ltd.-V- Electricity Corporation
Newzealand)
7.AIR 1965 SC 1767 :(Bhagawati-V- Ramchand)
8.AIR 1967 SC 1269 : (State of Orissa-V- Binaparni)
9.AIR 1971 SC 1190 : (SDO-V- Gopal Chandra)
10.(1988)4 SCC 66 : (State -V- Mahadevan)
11.(2008)14 SCC 151 P.157 : (Sahara India(Firm) Lucknow-VCommissioner of Income Tax, Central-I & Anr.)
12. (2007)2 SCC 181 : (Rajes Kumar-V- Dy. C.L.T.).
For Petitioner -
Mr. B.K.Mahanti, Sr, Advocate

M/s. Bibek A. Mohanti, S.K.Mishra,
A.R.Mohanty, M.Raul & M. Wright.
For Opp.Parties - M/s. S.Ray & A.C.Rath (Caveator).
586
[2013]
B.N.MAHAPATRA,J.
This writ petition has been filed with a prayer to
quash the order dated 29.9.2011 passed by opp. Party no.1-Chairman-cumManaging Director, Coal India Limited under Annexure-1 wherein opp. Party
no.1 held that no scope is found to exist to pay Up-keep Allowance to
executive cadre employees of Coal India Ltd. and of its subsidiary
companies over and above perquisites already implemented. Further prayer
of the petitioner is to issue a writ of mandamus or any other appropriate
order directing opp. Party no.1 not to discriminate between the members of
petitioner-Association and Non-executive members of the same company.
2.
Petitioners case in a nutshell is that it is an Association of executives
employed by opp. Party no.2-Coal India Limited and opp. Party no.3 Mahanadi Coal Fields Limited (subsidiary of Coal India Limited) and it is
registered under the Trade Union Act, 1926. By order of opp. Party nos. 2
and 3, they are working at Talcher and opp. Party no.3 allots residential
accommodation and provides other amenities without any discrimination to
all employees irrespective of class they belong to. From the salary of the
employees, Opp. Party nos. 2 and 3 deduct income tax U/s.192 and deposit
the same with the Central Government. The opp. Parties by an
unreasonable classification, discriminate the members of the petitionerAssociation in taking decision not to reimburse the tax deducted and paid on
that part of the house rent allowance
(hereinafter mentioned as
perquisites), while it is reimbursing same to the non-executives by paying
an equivalent amount known as up-keep allowance.
3.
Clause 9(a) of the Coal Mines Regulation, 1957 provides for suitable
residential accommodation for the Manager and the under-Manager or
Assistant Manager within a distance of five kilometers from all mine
openings, and every Manager, under-Manager and Assistant Manager shall
reside in the accommodation so provided. Accordingly, opp. Party nos. 2
and 3 have provided residential accommodation in the colonies for every
employee, whether executive or non-executive near about the place of work
of the Coal Fields, which are mostly at remote places and alternative
accommodations are not available.
4.
Providing of quarters is a perquisite under the I.T. Act and each of
the employees who enjoys the benefits is taxed under the head salary
under the I.T. Act, 1961. Opp. Party nos. 2 and 3 as employers are obliged
to deduct tax at source U/s. 192 of the I.T. Act and deposit it in time with the
Central Government. For the Assessment Years 2008-09 and 2009-10 the
opposite parties 2 and 3 deposited the tax, but did not make any deduction
from the salary of non-executives and kept in abeyance till further orders.
587
COAL MINES -V- CHAIRMAN-CUM-MANAGING
[B.N.MAHAPATRA,J.]
But the perquisites tax was sought to be deducted from the salary of
executives. The petitioner-Association made representation to the Honble
Minister of Coal, requesting him not to deduct the perquisite tax. Since no
action was taken by the opposite parties, the petitioner filed writ petition
bearing W.P.(C) No.1533 of 2011 and this Court by order dated 01.02.2011
directed that no recovery of perquisite tax on house allotted to the petitioner
be made till the next date. In the said writ petition opposite party no.3 filed a
counter inter alia relying upon the office order dated 12.5.2011 of the Board
of Directors of opp. Party no.2 approved for payment of up-keep allowance
to the wage board employees (non-executives) who are residing in
companys quarters and come under the purview of perquisite tax. After
hearing the parties, the petitioner was directed to file representations which
was directed to be disposed of within a period of one month from the date of
filing of the said representations. Pursuant to such order, the petitioner filed
representations under Annexure-4. Opp. Party no.1 without giving any
opportunity of hearing to the petitioner and taking into consideration some ex
parte documents refused to grant upkeep allowance to the members of the
petitioner-Association for the reason that Central Public Sector Undertakings
are guided by DPE under the Ministry of Heavy Industries. Hence, the
present writ petition.
5.
Mr.B.K. Mahanti, learned Senior Advocate appearing for the
petitioner submitted that the order passed under Annexure-1 is hit by Articles
14 and 19 of the Constitution of India by making a hostile discrimination
between the non-executive and executive employees. An arbitrary decision
has been taken under Annexure-1 relying on un-tested materials and without
hearing the members of the petitioner-Association. Opp. Party no.1 passed
the impugned order taking into consideration the ex parte materials, like the
restraint on it not to pay more than 50% allowance.
6.
Further, placing reliance upon the cases in Rupa Ashoka Hurra v.
Ashok Hurra and another, (2002) 2 SCC 388 and Maneka Gandhi v. Union
of Inida (1978) 1 SCC 248, Mr. Mohanti submitted that the decision rendered
in violation of audi altaram partem is null and void. In support of his above
contention, he also relied upon some other judgments of the Honble
Supreme Court.
7.
Placing reliance on the decision of the Honble Supreme Court in
Arun Kumar V. Union of India and others, 2007 (1) SCC 732, Mr. Mohanti
submitted that though Rule 3 is intra vires, valid, but it is always open to the
assessee to contend that there is no concession in the matter of
accommodation provided by the employer to the employee and hence the
case did not fall within the mischief of Sec. 17(2)(ii) of the Act. If the
588
[2013]
accommodation is provided by the employer as a part and parcel of his duty

as agent to live in the bank house, such an income could not be regarded as
part of income. It is further submitted that providing of quarters by all
employers, as a part and parcel of the employees duty, is not perquisite and
not an income. Placing reliance in the case of Hochstrasser v. Mayes, 1960
AC 376 (HL), it was submitted that the Court must be satisfied that the
service agreement was the causa causans and not merely the causa sine
qua non of the receipt of the profit. Mr. Mohanti further submitted that the
object of Rule 3 is to extend relief to employees and keeping in view the said
purpose, it has to be interpreted liberally. In support of his submission
reliance was also placed on the decision of the Supreme Court in CIT,
Bombay v. British Bank of Middle East MANU/SC/0510/2001. It is submitted
that Rule 3 would apply to those cases where concession has been shown
by an employer in favour of an employee in the matter of rent respecting
accommodation. Charging provision is found in the Act of Parliament
[Section 17(2)(ii)], machinery component is in the subordinate legislation
(Rule 3). The latter will apply only after liability is created under the former.
Unless the liability arises under Section 17(2)(ii) of the Act, Rule-3 has no
application and the method of valuation for calculating concessional benefits
cannot be resorted to. Placing reliance on ILM Cadija Umma v. S. Don
Manis Appu; AIR 1939 PC 63, Mr. Mohanti submitted that if literal reading
of a prima facie definition leads to absurdity, a restricted meaning may have
to be given to avoid the absurdity.
8.
Mr. S. Ray, learned counsel appearing for opposite parties submitted
that facts stated in the writ petition are not correct. It is not correct to say that
though both executive and non-executive even taken from different source,
but for the purpose of their pay, service condition, discipline and other
perquisites like provision of quarters, education to the children of the
employees, facility of medical treatment for the employees and their
dependents, recreation etc. are the same. Mahanadi Coal Fields Ltd.
provides quarters and where the quarters are not provided, it is paying
house rent to its employees.
9.
Mr.Ray further submitted that the impugned order passed under
Annexure-1 is a reasoned order. If the petitioner-Associations claim for upkeep allowance will be accepted, it will exceed the ceiling of their basic pay
and therefore, it will be in violation of Presidential directive and service
conditions. It is also submitted that there is no hostile discrimination as
alleged since executive and non-executive are two different classes and are
totally different right from entering into their services with regard to the
nature of duties rendered, pay scale, perquisite. Hence, the allegation made
589
[B.N.MAHAPATRA,J.]
by the petitioner is totally false, frivolous and liable to be rejected. Opp. Party
no.1 after considering all aspects and with due application of mind disposed
of the representation rejecting the petitioners claim for granting up-keep
allowance with a well reasoned order and therefore, the petitioner has no
justifiable reason to allege that they have been subjected to hostile
discrimination by refusing to grant up-keep allowance. There is huge
disparity between the pay scale of the executives and non-executives and
the executives are paid up to 50% of the basic salary as perquisites which
includes House up-keep Allowances of 5%, whereas non-executives are not
getting any similar monetary perquisites. The executives cannot seek parity
with the non-executives by claiming grant of up-keep allowance.
10.
It is further submitted by Mr. Ray that as per Section 192 of the I.T.
Act, it is the liability of the employer to recover income tax from the monthly
salary of the employees and deposit the same in time with the Central
Government. This is a statutory obligation and failure to comply with it
attracts interest u/s.201 and penalty u/s.221 and 271 C of the Act. Salary
includes perquisites under Section 17(1) and the value of rent free
accommodation provided to an employee by his employer is a taxable
perquisite. Therefore, for the calculation of recoverable amount of income
tax from the salary of an employee, the value of the perquisite (rent-free
accommodation in this case) also has to be considered. Valuation of rentfree accommodation is done according to Rule 3(1) of the Rules.
11.
On the rival contentions of the parties, the questions that fall for
consideration by this Court are:
(i)
Whether the impugned order passed under Annexure-1 by opposite

party No.1 rejecting the claim of the petitioner that members of the
executive and non-executive belong to same class, without affording
opportunity of hearing to the petitioner, is valid in law?
(ii)
Whether accommodation provided to the Executives working under

opposite party nos.1 and 2 could be regarded as part of their income
on which tax could be deducted at source under Section 192 of the
I.T. Act from the salary paid to the Executives?
(iii)
What order?
12.
Question No.(i) is as to whether the impugned order passed under
Annexure-1 by opposite party No.1 rejecting the claim of the petitioner that
members of the executive and non-executive belong to same class, without
affording opportunity of hearing to the petitioner, is valid in law?
590
[2013]
13.
Specific stand of the petitioner is that the impugned order under
Annexure-1 is hit by Articles 14 and 19 of the Constitution of India by making
a hostile discrimination between the Non-executive and Executive employee.
Mr. Mahanti, learned Senior Advocate submitted that every classification
shall be legal, valid and permissible if that classification is founded on an
intelligible differentia which must distinguish persons or things that are
grouped together from others leaving out or left out and such a difference
must have rational nexus to the object sought to be achieved by the statute
or legislation in question. 14. Petitioners further case is that both Executive
and Non-Executive even taken from different sources, but for the purpose of
their pay, service condition, discipline and other perquisites like provision of
quarters, education to the children of the employees, facility of medical
treatment for the employees and their dependents, recreation etc. are same.
15.
The case of opposite parties is that there are two categories of
employees working in Mahanadi Coalfields Ltd. One is Executive and the
other is Non-executive (Workmen). The entry of executives and nonexecutives are from two different sources. The executives are posted as
Executive Management Trainees in E1 grade, whereas normally the nonexecutives are posted as general mazdoors Cat-1 which is the lowest nonexecutive pay scale. In so far as Executives are concerned, the pay and
allowances are fixed as per guidelines issued by Department of Public
Enterprises, Government of India and so far as non-executives are
concerned, their pay and allowances are fixed by way of agreement which is
called as National Coal Wages Agreement and is finalized after discussion
with five Central Trade Unions like INTUC, CITU, Bharatiya Majdoor Sangha
etc. There is difference between two classes basically in service condition,
career growth, recruitment done, Leave Rules, House Rent accommodation,
duration of wages revision of executives and non-executives. In the official
revision pay scale order, it is provided that board level and below board level
executives of Coal India Ltd. and its subsidiary companies w.e.f. 1.1.2007
are entitled to get 5% of basic pay towards house up-keep allowance per
month for purchase of curtains, wall paintings, hangings, carpets, decorative
materials, cutlery and other household appliances etc.
16.
According to Mr. B. Mahanti, learned Senior Advocate, since no
opportunity of hearing was provided to the petitioner before passing the
impugned order under Annexure-1, which has civil consequence, the same
is violative of the principles of natural justice and therefore, the same is not
sustainable in law.
17.
In Maneka Gandhi vs. Union of India, (1978) 1 SCC 248, the
Honble Supreme Court held that the decision rendered in violation of audi
591
[B.N.MAHAPATRA,J.]
altarem partem is null and void. In S.L. Kapoor vs. Jagmohan, (1980) 4
SCC 379, it was extended to orders passed by quasi judicial authorities. In
Mercury Energy Ltd. vs. Electricity Corporation, Newzealand, (1994) 1
WLR 521, the court declared an order of the Minister to be a nullity, if it was
passed without hearing. [Also See Bhagawati vs. Ramchand, AIR 1965 SC
1767, State of Orissa vs. Binaparni, AIR 1967 SC 1269, SDO vs. Gopal
Chandra, AIR 1971 SC 1190, State vs. Mahadevan, (1988) 4 SCC 669].
In Sahara India (Firm) Lucknow Vs. Commissioner of Income
Tax, Central-I and another, (2008) 14 SCC 151 at page 157 and Rajesh
Kumar vs. Dy. C.I.T., (2007) 2 SCC 181, the Honble Supreme Court held
that giving an opportunity of hearing is a must, where the Assessing Officer
asks for special audit having regard to the nature and complexity of the
accounts of the assessee and the interest of the revenue. The Honble
Supreme Court in some other cases held that administrative order, if it
operates to the prejudice of assessee and entails civil consequences,
opportunity of hearing should be given to the assessee. The court further
held that natural justice implies to a duty to act fairly, i.e., fair-play in action.
18.
The expression civil consequence encompasses infraction of not
merely property of personal rights but of civil liberties, material deprivations
and non-pecuniary damages. Under its wide umbrella comes everything that
affects a citizen in his civil life. Unless a statutory provision either specifically
or by necessary implication excludes the application of principles of natural
justice, because in that event the court would not ignore the legislative
mandate, the requirement of giving reasonable opportunity of being heard
before an order is made, is generally read into the provisions of a statute,
particularly when the order has adverse civil consequences for the party
affected. The two fundamental maxims of natural justice are (i) audi altarem
partem and (ii) nemo judex in causa sua. Thus, the observance of principles
of natural justice is the pragmatic requirement of fair play in action.
19.
Petitioners specific case is that the employer provides residential
accommodation to the employees. Opposite Party Nos. 2 and 3 deduct tax
at source under Section 192 of the Act and deposit it with the Central
Government and do not reimburse to the employees, who are executive. The
opposite parties, by an unreasonable clarification discriminate the members
of the petitioner-Association in taking a decision not to reimburse the tax
paid on that part of the house rent allowance (for short perquisites) to
members of the petitioner-Association while they are reimbursing it to the
non-executives by paying equivalent amount known as Up-keep
Allowances. Further, both the members of executive and non-executive
592
[2013]
belong to same class, i.e., I.T. assessee. Therefore, opposite party No.1
before rejecting the petitioners claim that the members of the executive and
non-executives belong to the same class and the members of the petitionerAssociation are not entitled to get Up-keep Allowance of 5% is required to
give an opportunity of personal hearing to the members of the petitionerAssociation in view of the settled position of law mentioned above.
20.
In view of the above, the impugned order passed under Annexure-1
by opposite party No.1 rejecting the claim of the petitioner that members of
the executive and non-executive belong to same class without affording
opportunity of hearing to the petitioner is not valid in law.
21.
Question No.(ii) is as to whether accommodation provided to the
Executives working under Opposite party no.1 could be regarded as part of
their income on which tax could be deducted at source under Section 192 of
the I.T. Act from the salary paid to the Executives.
22.
Petitioners specific case is that since accommodation is provided by
the employer as part and parcel of his duty as agent to live in the
accommodation, such an income could not be regarded as part of the
income of the members of the petitioner. Therefore, no tax at source is
deductible from the income under Section 192 of the Act.
23.
Whether the accommodation provided by the employer is part and
parcel of his duty as agent to live in the accommodation and therefore such
an income could not be regarded as part of the income of the members of
the petitioner-Association would depend upon the factual scenario and
nature of evidence produced. Without examining the evidence it cannot be
definitely said whether the quarters provided by the employer to the
members of the petitioner-Association is not perquisite and therefore not an
income. The nature of the income in respect of accommodation provided by
the employer cannot be decided in the writ petition because the relevant
material can be more factually examined by the Assessing Authority. This
Court cannot examine the materials as an original forum.
24.
At this juncture, it is necessary to extract here the relevant portion of
Section 192 of the Act:
192.(1) Any person responsible for paying any income chargable
under the head Salaries shall, at the time of payment, deduct
income-tax on the amount payable at the average of income tax
computed on the basis of the [rates in force] for the financial year in
593
[B.N.MAHAPATRA,J.]
which the payment is made, on the estimated income of the

assessee under this head for that financial year.
25.
Salary includes perquisites as provided under Section 17(1) of the
I.T. Act and under Section 17(2)(i) perquisite includes the value of rent free
accommodation provided to the assessee by his employer. Valuation of the
rent free accommodation is done according to Rule 3 of the I.T. Rules, 1962.
26.
It is further necessary to extract the relevant portion of Section 197 of
the Act:
197. Certificate for deduction at lower rate
(1)
Subject to rules made under sub-section (2A), where, in the
case of any income of any person or sum payable to any person,
income-tax is required to be deducted at the time of credit or, as the
case may be, at the time of payment at the rates in force under the
provisions of section 192, 193, 194, 194A, 194C, 194D, 194G, 194H,
194-I, 194J, 194K, 194LA and 195, the Assessing Officer is satisfied
that the total income of the recipient justifies the deduction of
income-tax at any lower rates or no deduction of income-tax, as the
case may be, the Assessing Officer shall, on an application made by
the assessee in this behalf, give to him such certificate as may be
appropriate.
(2)
Where any such certificate is given, the person responsible for

paying the income shall, until such certificate is cancelled by the
Assessing Officer, deduct income-tax at the rates specified in such
certificate or deduct no tax, as the case may be.
(3)
(2A) The Board may, having regard to the convenience of assesses

and the interests of revenue, by notification in the Official Gazette,
make rules specifying the cases in which, and the circumstances
under which, an application may be made for the grant of a
certificate under sub-section (1) and the conditions subject to which
such certificate may be granted and providing for all other matters
connected therewith.
27.
Therefore, in view of the above statutory provision, it is open to the
members of the petitioner-Association to make an application as provided
under sub-section (1) of Section 197 to the Assessing Officer and satisfy him
that no tax is deductible from the salary on account of the accommodation
provided by the employer to them. In such event, the Assessing Officer has
to examine the case of the petitioner and if he is satisfied that the members
594
[2013]
of the petitioner-Association are entitled to be issued with certificate of No

deduction of Income Tax he shall issue such certificate and on production of
such certificate before opposite party No.1, opposite party No.1 is bound not
to deduct tax until such certificate is cancelled. Thus, a statutory remedy is
available to the petitioner under Section 197 of the Act. Section 197 is a
complete provision so far as deduction of tax at source is concerned.
28.
In the result, the impugned order under Annexure-1 is set aside with
a direction to opposite party No.1 to decide the claim of the petitioner as to
whether the members of the petitioner-Association and non-executives
belong to the same class and the executives are entitled to 5% Up-keep
Allowance as the non-executives are getting after giving an opportunity of
hearing to the petitioner, within a period of one month from the date of
production of certified copy of this judgment.
29.
With the aforesaid observation and direction, the writ petition is
disposed of.
Writ petition disposed of.
595
2013 ( I ) ILR - CUT-595
V. GOPALA GOWDA, CJ & B. N. MAHAPATRA, J.
W.P.(C) NOS.1597 & 1686 OF 2012 (Dt.09.10.2012)
M/S. NATIONAL ALUMINUM CO. LTD.
..Petitioner
.Vrs.
DY. COMMISSIONER OF
COMMERCIAL TAXES.
..Opp.Party
A. ODISHA VAT ACT, 2004 S.2 (25), 2 (27)

Input Whether coal, alum, caustic soda and other
consumables used for generation of electricity is to be treated as an
input U/s.2 (25) of the OVAT Act and the tax which has been paid on
purchase of coal, alum, caustic soda and other consumables etc. can
be claimed as input tax credit U/s.2 (27) of the OVAT Act against the tax
payable on sale of finished product i.e. aluminum, aluminum ingots
and sheets etc.
Held, coal, alum, caustic soda and other consumables
purchased from market on payment of tax and used for generation of
electrical energy in the Captive Thermal Plant of the petitioner which is
used in the process of manufacture of finished product i.e. aluminum,
aluminum ingots and sheets etc. taxable under the OVAT Act are
inputs as defined U/s.2 (25) of the OVAT Act and the tax which has
been paid on such purchases can be claimed as input tax credit U/s.2
(27) of the OVAT Act against the tax payable on sale of finished
products i.e. aluminum, aluminum ingots and sheets etc. Hence, the
demand raised in the assessment orders Dt.31.10.2011 passed under
Annexure-1 in both the writ petitions disallowing the input tax credit in
respect of tax paid on coal, alum, soda and other consumables used
for generation of electrical energy is quashed.
(Para 35)
B. ODISHA VAT ACT, 2004 S.43 (2)
Whether imposition of penalty U/s.43 (2) of the OVAT Act can
only be levied if the escapement is without any reasonable cause ?
Held, once the Assessing Officer comes to the conclusion that
the dealer is indulged in fraudulent activities and assesses him under
Section 43 of the OVAT Act, there is no need for the Assessing Officer
to make further investigation to find out whether the escapement is
without reasonable cause for the purpose of imposition of penalty
U/s.43 (2) of the OVAT Act.
(Paras 36,39)
596
[2013]
Case laws Referred to:1.(2008)15 VST 228
:(Reliance Industries Ltd.-V- Asst. Commissioner

of Sales Tax)
2.(1965) 16 STC 563(SC) : (J.K. Cotton Spinning & Weaving Mills Co. Ltd.V- Sales Tax Officer)
3.Vol.77 STC 282 (SC)
: (Collector of Central Excise-V-M/s. Ballarpur
Industries Ltd.)
4.25 STC 211 (SC)
: (Hindustan Steels Ltd.-V- State of Orissa)
5.45 STC 197 (SC)
: (Cement Marketing Co of India Ltd.-V-Asst.
Commissioner of Sales Tax, Indore & Ors.)
6.(2007)7 SCC 347
: (Collector of Central Excise & Ors.-V-Solarish
Chemtech Ltd. & Ors.)
7.(1988)69 STC 320 (SC) : (Deputy Commissioner of Sales Tax (Law)-VThomas Stephen & Co. Ltd.)
8.(2008)18 VST 180 (SC) : (Union of India & Ors.-V- Dharamendra Textile
Processors & Ors.)
9.(2009)9 SCC 193
: (Maruti Suzuki Ltd.-V- Commissioner of
Central Excise, Delhi III).
10.(2009)22 VST 615(SC) : (State of Gujarat & Anr.-V-AMI Pigments
Pvt.:Ltd.& Ors.)
11.(1990)77 STC 282
: (Collector of Central Excise-V- Ballarpur
Industries Ltd.)
12.(2000)117 STC 12
: (Coastal Chemicals Ltd.-V-Commercial Tax
Officer, A.P. & Ors.)
13.(2010)32 VST 97
: (AMI Pigments Pvt. Ltd. & Ors.-V-State of

Gujarat & Anr.)
For Petitioner
Dr. Devi Pal, Sr. Advocate,

M/s. S.Kanungo, CH. S. Mishra, R.N. Pattnaik,
N.R. Mohanty & N.K.Nanda.
For Opp.Party
Mr. R.P. Kar,

Standing Counsel (Revenue).
B.N.MAHAPATRA,J.
The above two writ petitions have been filed
with a prayer to quash the assessment order dated 31.10.2011 (Annexure-1)
passed by the sole opposite party-Deputy Commissioner of Commercial
Taxes, Bhubaneswar-III Circle, Bhubaneswar, Dist: Khurda and to issue a
direction to the said opposite party to treat coal, alum, caustic soda, and
other consumables as input for manufacturing of aluminum, aluminum ingots
597
M/S. NATIONAL ALUMINUM-V- DY. COMMISSIONER
[B.N.MAHAPATRA,J.]
and sheets etc. and to allow the petitioner to take input tax credit on such
inputs.
2.
Annexure-1 attached to W.P.(C) No.1597 of 2012 is an order of
assessment passed by the opposite party-Deputy Commissioner of
Commercial Taxes, Bhubaneswar Circle-III, Bhubaneswar, Khurda under
Section 43 of the Orissa Value Added Tax Act, 2004 (for short, OVAT Act)
for the period 01.04.2011 to 30.06.2011
raising a demand of
Rs.11,32,49,874/- which includes penalty of Rs.7,54,99,916/- levided under
Section 43(2) of the OVAT Act.
Similarly, Annexure-1 attached to W.P.(C) No.1686 of 2012 is the
assessment order passed by the opposite party-Deputy Commissioner of
Commercial Taxes, Bhubaneswar Circle-III, Bhubaneswar, Khurda under
Section 43 of the OVAT Act for the period 01.07.2011 to 30.09.2011 raising
a demand of Rs.14,68,62,843/- which includes penalty of Rs.9,79,08,562/levied under Section 43(2) of the OVAT Act.
3.
Since the issues involved in both the writ petitions are identical, they
are dealt with together.
4.
Petitioners case is that the petitioner-company is a Central
Government Public Sector Undertaking under the Administrative Control of
the Ministry of Mines, Government of India, having its Corporate Office at
NALCO, Plot No.P/1, NALCO Bhawan, Nayapalli, Bhubaneswar, Dist:
Khurda. It is an integrated establishment consisting of the following three
units, namely,
(a)
Aluminium Refinery Plant at Damanjodi in the district of Koraput,

having (8.00 lakh Tons per annum). Presently, enhanced to 21.0
lakhs MT per annum.
(b)
Aluminium Smelter Plant at Angul in the district of Angul having (2.15

lakhs MT per annum). Presently enhanced to 4.60 MT per annum.
(c)
Captive Thermal Power Plant of 720 Mega Watt meant for Smelter
Plant at Angul. Presently, enhanced to 1200 Megawatt.
5.
For the aforesaid activities, the petitioner is registered under the
Central Sales Tax Act, 1956 vide Registration Certificate No. BHC-1113
dated 16.09.1981 whereas separate and individual Registration Number had
been allowed under Orissa Sales Tax Act, subsequently replaced with the
OVAT Act in respect of the aforesaid three manufacturing units of the
598
[2013]
petitioner. Thereafter the petitioner has been granted the centralized

registration certificate under the OVAT Act w.e.f. 01.04.2011 by declaring its
Corporate Office at Bhubaneswar as the principal place of business. It has
filed its statutory monthly returns for the impugned tax period, by claiming
Input Tax Credit in respect of inputs, namely coal, alum, caustic soda,
consumables (lubricants, gas) used for generation of electricity in its Captive
Power Plant which in turn used in the continuous process of manufacturing
of aluminum. After scrutiny of the returns, the sole opposite party issued a
notice in Form VAT-307 on 16.08.2011 by initiating assessment proceeding
under Section 43 of the OVAT Act and completed the assessment raising
aforesaid demands. Hence the writ petition.
6.
Dr. Devi Pal, learned Senior Advocate appearing for the petitioners
submitted that the opposite party without communicating the reasons as
asked for by the petitioner has reopened the assessment proceeding and
passed the order of assessment disallowing the input tax credit in respect of
purchase of coal, alum, caustic soda, consumables (lubricants, gas) used for
its Captive Power Plant for generation of electricity which in turn is used in
continuous process of manufacturing of aluminum by treating the electricity
so generated by the petitioner in its Captive Power Plant as its finished
product which is exempted from tax under Schedule-A of the OVAT Act. It
was submitted that the impugned orders of assessment were passed under
Section 43 of the OVAT Act without informing/communicating the information
to the petitioner which was in the possession of Assessing Officer. The said
information was also not indicated on the body of the order while completing
the assessment proceeding under Section 43 of the OVAT Act.
7.
Dr. Pal, learned Senior Advocate emphatically submitted that the
input tax credit on the purchase of coal etc. is to be set off and/or adjusted
against the output tax under the OVAT Act on the final products, i.e.,
aluminum, aluminum ingot etc., which are sold in the market. Referring to
Section 2(25) of the OVAT Act, it was submitted that input means any
goods purchased by a dealer in the course of his business for resale or for
use in the execution of the works contracts or in the processing or
manufacturing where such goods directly goes into composition of finished
product or packing of goods for sale and includes consumables directly used
in such processing or manufacturing. Further referring to Sections 20(1) and
20(8)(k) of the OVAT Act, Dr. Pal, submitted that no input tax credit shall be
claimed by or be allowed to a registered dealer in respect of input or capital
goods other than those covered under Schedules A, C and D in
manufacturing of goods where the finished products are exempted from tax
either in whole or in part under the OVAT Act or under the CST Act, 1956.
599
[B.N.MAHAPATRA,J.]
8.
Dr. Pal, further submitted that the contentions of opposite party that
since the materials like coal, alum, caustic soda, etc. which are purchased
from market on payment of tax and used as input in the manufacture of
electrical energy in the Captive Power Plant of the petitioner and the said
electrical energy being the finished product exempted from tax under Item
No.13 of Schedule A, input tax credit on such materials cannot be allowed as
a set off is totally misconceived and not sustainable in law. It is further
submitted that coal along with other materials are used for generation of
electrical energy which is subsequently used in continuous process of
manufacturing of finished products viz. aluminum, aluminum ingots and
sheets etc. After coal is being purchased from Mahanadi Coalfields Limited
on payment of tax, the said goods are being fed into a boiler where it is burnt
with the help of thermal heat and water is being converted into Super
Saturated Steam and after attending at a particular temperature and
pressure, steam enters into a turbine which in turn rotates the shaft of turbogenerator from where electricity is being generated. Aluminum metal is
produced in smelter plant by adopting the hall-heroult process in a large
carbon lined steel container called a reduction pot. Such pots lined up in long
rows, are called pot lines. The key to the chemical reaction necessary to
convert the alumina to metallic aluminum is by running high magnitude of
electricity current through the cryollite/alumina mixture in the pot. This
process requires huge quantity of electricity. This electrolysis process takes
place in electrolytic cells (or pots), where carbon cathodes from the bottom
of the pot act as the negative electrode. The smelting of aluminum in a pot is
a continuous process and therefore, the potline is kept in operation for 24
hours a day without any interruption of power supply. A smelter plant cannot
be easily stopped and restarted. If the production is interrupted by a power
failure of more than 4 hours, the aluminum metal in the pots will be solidified
which requires an expensive rebuilding process.
9.
Dr. Pal, submitted that without electric energy the pot lines cannot
function. Huge quantity of electrical energy is required during electrolysis
process and then only the aluminum which is a commercial product saleable
in the market is produced. Therefore, the electrical energy generated in the
captive power plant is not the final product which is sold in the market.
Aluminum, aluminum ingots and other aluminum products are sold @ 4% as
provided under Sl.No.9 of Part-II of Schedule B under the OVAT Act and
input tax credit can be allowed only against the sale of aluminum, aluminum
ingots etc. which are taxable under the OVAT Act. Generation of electrical
energy in its own captive power plant is neither meant for sale in the market
and necessarily are not sold in the market but are used ranging from 95 to
600
[2013]
99% only in the process of manufacture of aluminum, aluminum ingots etc.

by using such energy in the smelter plant through electrolysis process.
10.
Placing reliance on the judgment of this Court in the case of Reliance
Industries Limited vs. Assistant Commissioner of Sales Tax, (2008) 15 VST
228, Dr. Pal submitted that disallowance of input tax credit as made by the
Assessing Officer is not correct.
Placing reliance on the judgment of the Honble Supreme Court in the
case of J.K. Cotton Spinning & Weaving Mills Co. Ltd. Vs. Sales Tax Officer,
(1965) 16 STC 563 (SC), it is submitted that the expression in the
manufacture of goods should normally encompass the entire process
carried on by the dealer of converting raw materials into finished goods.
In support of the contention, Dr. Pal, has also relied upon the
judgment of the Honble Supreme Court in the case of Collector of Central
Excise vrs. M/s. Ballarpur Industries Ltd., Vol. 77 STC 282 and submitted
that the opposite party while granting registration certificate under the OVAT
Act has treated coal under the heading of fuel.
Further, placing reliance upon the judgment of the Honble Supreme
Court in the case of Commercial Taxation Officer vs. Rajasthan Taxchem
Ltd., 5 VST 529 (SC), Dr. Pal, submitted that diesel in that case was termed
as raw material and not otherwise and the benefit of deduction had been
allowed.
11.
It is further submitted that if the test of essentiality or the test of
dependency will be applied in the present case, it would be appreciated that
without the use of coal and other goods, the electricity cannot be generated
in the Captive Power Plant of the petitioner. Therefore, it will come under the
definition of input as provided under Section 2(25) of the OVAT Act.
Dr. Pal submitted that where a question involved is pure
interpretation of law, that question should be decided and settled by the High
Court.
12.
It was further submitted by Dr. Pal that penalty can be levied only if
the escapement is without any reasonable cause. In support of the
contention, Dr. Pal, further relied upon the decisions of the Honble Supreme
Court in the cases of Hindustan Steels Ltd. vs. State of Orissa, 25 STC 211
(SC), Cement Marketing Co of India Ltd. vs. Assistant Commissioner of
Sales Tax, Indore and other, 45 STC 197 (SC) and the decision of this Court
601
[B.N.MAHAPATRA,J.]
in the case of National Aluminium Co. Ltd. vs. State of Orissa and others, 93
STC 529 (Orissa).
13.
Dr. Pal also submitted that the decision of the Honble Supreme
Court in the case of Collector of Central Excise and others vs. Solarish
Chemtech Ltd. and others, (2007) 7 SCC 347 relied upon by the opposite
party supports the case of the petitioner as the petitioner adopts electrolysis
process for manufacture of aluminum which requires huge quantity of
electricity and therefore, the potline is kept in operation for 24 hours a day
without any interruption of power supply. It is further submitted that the
decision of the Honble Supreme Court in the case of Deputy Commissioner
of Sales Tax (Laws), Board of Revenue (Taxes) Ernakulam vs. Thomas
Stephen & Co. Ltd., 69 STC 320 has no application in the present case as
the definition of input appearing in Section 2(25) of the OVAT Act includes
consumables directly used in such processing or manufacturing.
14.
Mr. R.P. Kar, learned Standing Counsel appearing for the Revenue
submitted that there is no infirmity or illegality in the order passed by the sole
opposite party-Deputy Commissioner of Commercial Taxes, Bhubaneswar
Circle-III, Bhubaneswar in disallowing input tax credit under the OVAT Act in
respect of purchase of coal, alum, caustic soda, and other consumables etc.
used for manufacture of electrical energy in Captive Power Plant.
Placing reliance upon the judgment of the Honble Supreme Court in
the case of Solaris Chemtech Ltd., (Supra), Mr. Kar submitted that any
operation in course of manufacture, only if integrally connected with the
operation which results in the emergence of manufactured goods, would
come within the term manufacture. But in the case at hand, electricity
generated is a finished product itself and it is not integrally connected with
manufacturing of aluminum and aluminum ingots. Mr. Kar, further placing
reliance on the decisions of the Honble Supreme Court in the case of
Deputy Commissioner of Sales Tax (Law) vs. Thomas Stephen & Co. Ltd.,
(1988) 69 STC 320 (SC), submitted that consumption as contemplated by
Section 2(25) of the OVAT Act must be in the manufacture as raw material
or of other components which go into the making of the end-product. Goods
used for ancillary purposes, like fuel, in the process of manufacture, do not
fall within section 2(25) of the OVAT Act. Further placing reliance upon the
judgment of the Honble Supreme Court in the case of Union of India and
others vs. Dharamendra Textile Processors and others, (2008) 18 VST 180
(SC), Mr. Kar, submitted that wilful concealment is not an essential
ingredient for attracting civil liability or penalty.
602
[2013]
15.
On the rival contentions advanced by the parties, the following
questions fall for consideration by this Court:
(i)
Whether coal, alum, caustic soda, and other consumables used for
generation of electricity is to be treated as an input as defined under
Section 2(25) of the OVAT Act and the tax which has been paid on
purchase of coal, alum, caustic soda and other consumables etc.
can be claimed as input tax credit under Section 2(27) of the OVAT
Act against the tax payable on sale of finished product i.e. aluminum,
aluminum ingots and sheets etc.
(ii)
Whether imposition of penalty under Section 43(2) of the OVAT Act

can only be levied if the escapement is without any reasonable
cause?
16.
So far as question No.(i) is concerned, the case of the opposite partyRevenue is that the finished product of Captive Power Plant is electrical
power or electrical energy which finds place at Sl.No.13 of Schedule A of the
OVAT Act. As per Section 17 of the OVAT Act, the goods specified in
Schedule-A are exempted from levy of tax and as such the electrical energy
is exempted from tax under the OVAT Act. Coal is used for manufacturing of
electrical energy, which is a finished product. Therefore, no input tax credit
could be allowed in terms of Section 20(8)(k) of the OVAT Act.
17.
On the other hand, petitioners case is that it has set up an integrated
establishment consisting of three units, namely, (a) Aluminum Refinery
Plant, (b) Aluminum Smelter Plant, and (c) Captive Thermal Power Plant.
These three plants have been set up to manufacture the finished product i.e.
aluminum, aluminum ingots and sheets etc.
18.
The opposite party-Deputy Commissioner of Commercial Taxes in
the assessment order has observed as follows:
In the instant case the assessee company is carrying business in
manufacturing and selling of alumina and aluminum ingots & sheets
etc. This assessee company has three nos. of units in the State of
Odisha, they are involved in mining and refining of the mineral from
which alumina is produced at Damanjodi units and transferred to
second unit i.e. smelting plant at Angul. The third unit is captive
power plant, power generating unit at Angul, which supplies
electricity power to smelting plant for manufacturing aluminum
ingots, wires and sheets for sale
603
[B.N.MAHAPATRA,J.]
19.
It is nobodys case that the petitioner is engaged in producing and
selling of electricity. The admitted case is that the petitioner is carrying on
business in manufacturing and selling of aluminum, aluminum ingot and
sheet etc and to manufacture the finished products the power plant has been
set up to manufacture/ generate electrical energy.
20.
The relevant portion of Section 20(8)(k) of the OVAT Act, reads thus:
20.(8) No input tax credit shall be claimed by or be
allowed to a registered dealer
xx
xx
xx
(k) in respect of input or capital goods other than those covered

under Schedules A, C and D used in manufacture of goods where
the finished products are exempted from tax either in whole or in part
under this Act or under the Central Sales Tax Act, 1956 (74 of 1956)
21.
Section 17 of the OVAT Act envisages that the sale of all goods
specified in Schedule A shall be exempted from tax subject to conditions and
exceptions set out therein. Therefore, sale of electrical energy which
appears under Item No.13 of Schedule A is exempted from levy of value
added tax under OVAT Act. Consequently, no input tax credit shall be
claimed by or allowed to a registered dealer in respect of tax paid on input of
purchases by a dealer in course of his business for use in producing or
manufacturing of electrical energy in terms of Section 20(8)(k) of the OAVT
Act. It is the admitted fact that the petitioner-company is carrying on
business of manufacturing and selling of aluminum, aluminum ingot and
sheet etc. It is not the case of opposite party-Revenue that the petitioner is
carrying on business of generating/producing electrical energy for sale.
22.
The next question arises whether the tax paid on the inputs for
generating power can be set off against the tax payable on sale of
aluminum, aluminum ingot and sheet etc. Undisputedly, electrical energy is
necessary to produce/manufacture and sale of aluminum, aluminum ingot
and sheet etc.
23.
Input has been defined in Section 2(25) to mean that any goods
purchased by a dealer in the course of his business for resale or for use in
the execution of works contract, in processing or manufacturing, where such
goods directly goes into composition of finished products or packing of
goods for sale, and includes consumables directly used in such processing
604
[2013]
or manufacturing. Section 2(26) defines input tax to mean tax collected and
payable under this Act in respect of sale to a registered dealer of any taxable
goods for use in the course of his business, but does not include tax
collected on the sale of goods made to a commission agent purchasing such
goods on behalf of such dealer. Input tax credit as defined under Section
2(27) of the OVAT Act means the setting off of the amount of input tax or
part thereof under Section 20 against the output tax, by a registered dealer
other than a registered dealer paying turnover tax under Section 16.
24.
On a conjoint reading of Section 2(25), Section 2(26) and Section
2(27) of the OVAT Act, it is amply clear that a registered dealer under the
OVAT Act shall be entitled to set off the tax paid on the purchase of goods
effected by such dealer either for resale or for use in execution of works
contract or for manufacture and processing against the output tax, that is the
tax payable on sale of any taxable goods.
25.
In the present case, the petitioner is engaged in manufacturing of
aluminum, aluminum ingot and sheet etc. and in order to manufacture the
above goods the electrical energy is required. The process of manufacturing
of aluminum reveals that energy is required in such process of
manufacturing. To generate energy/power, coal, alum, caustic soda and
other consumables etc. are necessary which the petitioner purchases on
payment of tax.
26.
It is not disputed that huge quantity of electrical energy is required
during electrolysis process to produce aluminum which is a commercial
product. Thus, the electrical energy generated in the Captive Power Plant of
the petitioner is not the final product which is sold in the market. Electrical
energy which is generated with the use of coal and other materials is only an
intermediate product which is used in the process of manufacturing of final
product viz. aluminum, aluminum ingots and sheets etc.
27.
The Honble Supreme Court in the case of J.K. Cotton Spinning
and Weaving Mills Co. Ltd. (supra), held that the expression in the
manufacture of goods should normally encompass the entire process
carried on by the dealer of converting raw materials into finished goods.
Where any particular process is so integrally connected with the ultimate
production of goods but for that process, manufacture or processing of
goods would be commercially inexpedient, goods required in that process
would fall within the expression in the manufacture of goods. Undisputedly,
in the present case, the generation of electrical energy in the Captive Power
Plant is integrally connected with the ultimate production of finished goods.
605
[B.N.MAHAPATRA,J.]
Therefore, the goods required in the process of generation of electrical

energy would fall within the expression in the process of manufacturing.
28.
Power/energy is one of the primary and essential commodities which
has a direct relation in the manufacturing process. Direct relation means
without which manufacture of any product is not possible at all. In that view
of the matter, we are of the considered view that coal, alum, caustic soda
and other consumables etc. used by the petitioner in the process of
manufacture of power/energy without which production of the finished
products viz., aluminum, aluminum ingots and sheets etc. is not feasible
which is nothing but an input in terms of Section 2(25) of the OVAT Act.
29.
It is not at all necessary that coal, alum, caustic soda and other
consumables etc. purchased on payment of tax and used in manufacturing
of electrical energy in order to qualify as input should directly go into
composition of the finished products, what is required is that those goods
should be directly used in manufacturing and processing for production of
finished goods. The expression directly go into composition of finished
product and directly used for manufacturing or processing of finished
products are not one and the same thing. There is a clear distinction
between the two. In the former, while the goods directly go into the
composition of finished products, in the latter the goods are directly used in
manufacturing/processing of the finished products. Therefore, coal, alum,
caustic soda and other consumables etc. which are used for
manufacturing/generating of electrical energy, are inextricably connected
with the manufacturing process of aluminum and aluminum ingots; they are
nothing but input and tax paid on purchase of such input shall qualify for set
off against output tax paid/payable on sale of finished products. There is no
dispute that coal, alum, caustic soda and other consumables etc. are used to
generate electricity through Captive Power Plant which is admittedly used for
the purpose of manufacturing the end/finished products viz. aluminum,
aluminum ingots and sheets etc. Therefore, coal, alum, caustic soda and
other consumables etc. can only be termed as input in terms of Section
2(25) of the OVAT Act.
30.
In the case of Reliance Industries Ltd. (supra), this Court held as
under:
18.Now the question that arises for consideration iwhether the furnace oil
is a consumable within the meaning of Section 2(25) of the OVAT Act.
The expression consumable has not been defined in the OVAT Act. In
the absence of any such statutory definition the expression has to be
understood in the meaning assigned to it by various dictionaries and how it
606
[2013]
is understood in trade and commerce. Consumable, according to

Webster Dictionary means that which can be consumed, a consumable
commodity. Consume means to eat, use up, and destroy. According to
Shorter Oxford Dictionary consumable means capable of being
consumed by fire. The term fuel according to Webster Dictionary means
any material as coal, oil, gas, wood, etc. which is burnt to supply heat or
power. According to Shorter Oxford Dictionary fuel means material for
burning combustible matter for fires. According Micropaedia Britannica Vol.
5, oil is also called fuel oil and it is used primarily for steam boilers in power
plants, on board ship, and in industrial plants.
xx
xx
xx
36.
In view of the proposition of law laid down by the Honble Apex
Court, different High Courts and the views taken by Taxation Tribunals,
the contention of the opposite parties that furnace oil used by the dealer
is to produce flame and therefore it is fuel and not consumable which is
directly used in processing or manufacturing of finished product is totally
misconceived and not sustainable in law. On the other hand, it boils down
to an irresistible conclusion that furnace oil is one of the primary and
essential commodities which has a direct relation in the manufacturing
process and direct relation means without which the manufacturing of
end-product is not possible at all. In that view of the matter, we are of the
considered view that furnace oil used by the petitioner in the process of
manufacture without which production of PSF is not feasible is nothing
but consumable.
37.
Now it is to be examined whether Section 2(25) requires that
furnace oil in order to be treated as input should directly go into the
composition of finished product. In the definition of input under
Section 2 (25), the legislature has included various types of articles.
Input has been defined to mean any goods purchased by a dealer
in the course of his business for resale or for use in the execution of
works contract, in processing or manufacturing, where, such goods
directly goes into composition of finished products and includes
consumables directly used in such processing or manufacturing. It
will appear therefore that the definition of input comprises four
different types of articles viz. articles or goods for resale, goods used
in the execution of works contract, goods used in processing or
manufacturing, where such goods directly goes into composition of
finished products and consumables directly used in such processing
or manufacturing. Separately, by an inclusive definition consumables
which are directly used in such processing or manufacturing have
607
[B.N.MAHAPATRA,J.]
been included. Therefore, the inclusive definition does not refer to

any goods which must be used in processing or manufacturing
where such goods directly go into composition of finished products.
As per inclusive definition, the only requirement is that the
consumables are directly used in such processing or manufacturing.
Consumables need not be required to directly go into composition
of finished products. The very expression consumables postulates
that such articles are destroyed or used upon the processing or
manufacturing of goods. It is because of this reason that while
consumable by an inclusive definition are included in the definition of
input under Section 2 (25) of the VAT Act the legislature did not
insist upon the requirement which appears in the earlier clauses that
such goods must go into composition of finished products. When the
legislature does not insist upon such requirement, the insistence by
opposite party no.1 that consumables must go directly into
composition of finished products is totally misconceived and runs
contrary to the very definition of input under Section 2 (25) of the
VAT Act.
31.
In the case of Commercial Taxation Officer (supra), the question
was whether diesel can be called raw material in the manufacture of polyster
yarn. In that case the assessee is engaged in he business of manufacture of
polyster yarn and for the said purpose it purchased diesel and used it for
manufacturing of electricity by G.D. Sets. The assessee in that case claimed
the benefit of sales tax on the ground that diesel purchased is a raw material
for the manufacture of the ultimate final product viz. polyster yarn although
diesel was used for generation of electrical energy by D.G. Sets. The
Honble Supreme Court observed that there is no dispute in the instant case
that diesel and lubricant is used to generate electricity through DG sets
which is admittedly used for the purpose of manufacturing yarn. In view of
the above facts diesel is being used for the purpose of running the generator
set for the production of the ultimate product which is also required for the
purpose of manufacturing the end product. The diesel therefore can only be
termed as raw material and not otherwise and the benefits of deduction have
been allowed.
32.
In the case of Maruti Suzuki Ltd. vs. Commissioner of Central
Excise, Delhi III, (2009) 9 SCC 193, the Honble Supreme Court held that
electricity generation is more of a process having its own economics. When
the electricity generation is a captive arrangement and the requirement is for
carrying out the manufacturing activity, the electricity generation also forms
608
[2013]
part of the manufacturing activity and the input used in that electricity
generation is an input used in the manufacture of final product.
33.
Further in the case of State of Gujarat and Another vs. AMI
Pigments Pvt. Ltd. and others, (2009) 22 VST 615 (SC), the issue before
the Honble Supreme Court was, whether the fuel such as natural gas,
furnance oil, diesel oil and naphtha to generate electricity which was then
used in the manufacturing process of the finished products like caustic soda,
industrial chemicals, etc would come under meaning of the expressions raw
materials, processing materials or consumables stores for the purpose of
section 15 B of the Gujarat Sales Tax Act, 1969 and while remanding back
the said batch of cases to the Honble High Court of Gujarat, the Honble
Supreme Court further observed that whether for determining this question
the test to be applied would be the test of essentiality or the test of
dependency laid down by the Honble Supreme Court in the case of
Collector of Central Excise vs. Ballarpur Industries Ltd (1990) 77 STC
282 and in J.K. Cotton Spinning & Weaving Mills Co. Ltd. (supra), or the
test laid down by the Honble Supreme Court in Coastal Chemicals Ltd. vs.
Commercial Tax Officer, A.P. and others, (2000) 117 STC 12.
34.
The High Court of Gujarat in the case of AMI Pigments Pvt. Ltd.
and others vs. State of Gujarat and another, [2010] 32 VST 97 (Guj) by
applying the test of essentiality and the test of dependency as laid down
by the Honble Supreme court in the case of Ballarpur Industries (supra)
and J.K. Cotton (supra) has come to the conclusion that goods like natural
gas, furnace oil, diesel oil and naphtha when used as fuel for generation of
electricity which was then used in the manufacturing process of the finished
products like caustic soda, industrial chemicals, etc will come under the
meaning of the expression raw materials, processing materials or
consumables stores.
35.
In view of the above, we are of the considered view that coal, alum,
caustic soda and other consumables purchased from market on payment of
tax and used for generation of electrical energy in the Captive Thermal Plant
of the petitioner which is used in the process of manufacture of finished
product viz. aluminum, aluminum ingots and sheets etc. taxable under the
OVAT Act. are input as defined under Section 2(25) of the OVAT Act and the
tax which has been paid on such purchases can be claimed as input tax
credit under Section 2(27) of the OVAT Act against the tax payable on sale
of finished products i.e. aluminum, aluminum ingots and sheets etc. Hence,
the demand raised in the assessment orders dated 31.10.2011 passed
under Annexure-1 in both the writ petitions disallowing the input tax credit in
609
[B.N.MAHAPATRA,J.]
respect of tax paid on coal, alum, soda, and other consumables used for
generation of electrical energy is quashed.
36.
Question No.(ii) is as to whether imposition of penalty under Section
43(2) of the OVAT Act can only be levied if the escapement is without any
reasonable cause.
VAT is indirect tax on consumption of goods. It is the form of
collecting sales tax under which tax is collected in each stage on the value
added to the goods. The basic object of VAT Scheme is to provide voluntary
and self compliance. It goes without saying that to plug the leakage of
revenue, the Legislature enacted law authorizing imposition of penalty for
infraction of any statutory provision. We are conscious that generally penalty
proceedings are quasi judicial in nature. Quantification of penalty under
Section 43 of the OVAT Act is dependent upon the tax assessed under that
Section. For the purpose of assessing tax, opportunity of hearing was
afforded to the assessee, the explanation of the assessee and its books of
account were examined and considered. Penalty is only quantified on the
basis of the tax assessed. No discretion is left with the Assessing Officer
for levying any lesser amount of penalty. Penalty is not independent of the
tax assessed. If the tax is assessed, imposition of penalty under 42(5) is
warranted.
37
The matter may be looked at from different angle. Section 43 of the
OVAT Act deals with escaped assessment. As stated above, imposition of
penalty is dependent upon the quantum of tax assessed under Section 42
of OVAT Act. If such a penal provision is not provided then fraudulent
dealers would seriously venture to evade tax and whenever they will be
caught hold of they will simply pay the tax and escape. Therefore, the
provision for imposing penalty twice the amount of tax assessed, under
Section 43 of the OVAT Act has been made so that a dealer-assessee
would refrain himself from taking any step to avoid payment of legitimate
tax. If, however, any dealer indulges himself in any fraudulent activities to
evade tax, then in addition to tax assessed he would pay penalty which is
twice the amount of tax assessed.
38.
Against the assessment of tax and penalty, there is a provision for
appeal. In appeal, if the amount of tax assessed under Section 43 of the
OVAT Act is reduced, the quantum of penalty will also be reduced
automatically.
39.
In view of the above, once the Assessing Officer comes to the
conclusion that the dealer is indulged in fraudulent activities and
610
[2013]
assesses him under Section 43 of the OVAT Act, there is no need for the
Assessing Officer to make further investigation to find out whether the
escapement is without reasonable cause for the purpose of imposition of
penalty under Section 43(2) of the OVAT Act.
The Honble Supreme Court in the case of Dharamendra Textile
Processors (supra), held that wilful concealment is not an essential
ingredient for attracting civil liability or penalty.
40.
In the result, the writ petitions are allowed to the extent indicated
above.
611
2013 ( I ) ILR - CUT- 611
V. GOPALA GOWDA, CJ & B.K. MISRA, J.
W.P.(C) NO. 15779 OF 2012 (Dt.26.11.2012)
PRABIR KUMAR DAS
..Petitioner
.Vrs.
STATE OF ODISHA & ORS.
.Opp.Parties
COMPENSATION Railway accident near an unmanned level

crossing Death of 14 persons Writ petition for compensation
Opp.Parties took the plea of alternative remedy before the Railway
Claims Tribunal Negligence on the part of the railway authorities
Held, it would be just and proper to award Rs.5,00,000/- each to the
keen of the persons who have lost their life.
Case laws Referred to:1.AIR 2012 Orissa 38
: (Shyam Nayak & Ors.-V-General Manager, East

Coast Railway)
2.2011(II) ILR CTC.540 : (Phulan Nayak & Ors.-V-G.M.,East Coast
Railway & Ors.)
3.2004(Supp.)OLR 914 : (Sajeeda Begum & Ors.-V- Divisional Railway
Manager (Safety), S.E.Railways & Anr.)
4.1997(II) OLR 69
: (Parikhita Behera & Anr.-V- The Divisional Railway
Manager South Eastern Railway, Khurda Division
& Ors.)
5.(2001)8 SCC 151
: (M.S. Grewal & Ors.-V- Deep Chand Sood &
Ors.).
For Petitioner In person
For- Opp.Parties - Addl. Govt. Advocate (for O.P.Nos.1,5,6,7)
M/s. P.K.Mishra, A. Sahu, S.Bhanja, B.K.Dash
& Mr. Piyush Mishra (for O.P.Nos.2,3,4).
B.K.MISRA, J .
The petitioner, who is a practicing advocate and
human rights activist has approached this Court under Article 226 of the
Constitution of India for exercising extra-ordinary jurisdiction in granting
compensation of Rs.10,00,000/- to the families of each one of the deceased
persons and to adequately compensate the injured persons, who were the
victims of the railway accident i.e. the collusion of a speeding Express Train
with a trolley auto rickshaw on 24.8.2012 morning i.e. at 8.40 A.M. at
Khairpali unmanned level crossing in the district of Sambalpur resulting in
the death of 14 persons in all. Besides payment of compensation to the
612
[2013]
victims of such accident the petitioner has also prayed that direction to be
issued to the Railway Authorities of East Coast Railways as well as the
Railway Board to convert all the unmanned level crossing in the district of
Sambalpur to manned level crossing and to construct over bridges/under
bridges for preventing such accidents especially in unmanned level
crossings for ensuring public safety. It is also prayed that direction may be
issued to the State Government to extend all cooperation to the Railway
Authorities in such construction of over bridges/under bridges at such
unmanned level crossings etc.
2.
The factual matrix reveals that on 24.8.2012 at 8.40 A.M. female
agricultural labourers including some minor girls were proceeding to
Sindurapank from village Ainapali for working in paddy fields in a trolley
Auto Rickshaw bearing Registration No.OR-15-3-3034. It is alleged that the
ill fated trolley auto rickshaw while crossing the unmanned level crossing at
Khairapali was rammed by the Rourkela-Bhubaneswar intercity Express
causing instantaneous death to 12 ladies and leaving many women injured
who were in that Cargo Auto. Later on two ladies succumbed to the injuries
while undergoing treatment in the hospital and therefore the death toll rose
to 14. It is further alleged that all the victims of the accident belong to the
below poverty line category. The driver of the ill fated trolley auto rickshaw,
Satyaranjan Nath, besides agricultural labourers, namely, Champa Bhoi,
Pooja, Gouri Sahu,Medam Sahu, Anu Bhoi, Arati Bhoi, Bharati Bhoi, Buli
Bhoi, Khatkuri Bhoi, Jayanti Bag, Ahalya Badhei, Dukhi Pradhan and
Sanjukta Rout died because of the accident whereas Nirupama Bhoi,
Hemalata Bhoi, Subasini Rana, Chandini Rout, Mohini Bhoi and Brundabati
Bhoi had sustained injuries because of the aforementioned accident.
According to the petitioner, the accident took place because of the
indifferent and callous attitude of the railway administration and failure to
discharge the obligation to ensure public safety especially at all unmanned
level crossings. According to the petitioner the District Administration after
the accident in question granted a paltry sum of Rs.5,000/- to each of the
family of the deceased and the Railway Administration assured payment of
only Rs.2,000/- which are grossly inadequate by all standards. Accordingly,
the petitioner decided to take up the cause of the poor and hapless persons
belonging to the marginalized sections of the society for grant of
compensation to the next of kith and kin of each of the deceased person to
the tune of Rs.10,00,000/- and also to compensate injured persons
adequately etc.
3.
The opposite party nos.2, 3 and 4 have filed their counter affidavit
wherein while admitting the accident in question it is their case that the
613
PRABIR KUMAR DAS -V - STATE
[B.K.MISRA,J.]
accident in question took place solely because of the careless and negligent
driving of the Mahindra Alfa Cargo Auto by its driver which is not a
passenger vehicle. Besides that it is the case of the opposite parties that the
driver of the Train no.18105 Rourkela-Bhubaneswar Intercity Express while
approaching the level crossing no.ST-7 between Sambalpur City
Maneswar the Loco pilot, observed one Cargo Three Wheeler Auto
Mahindra Alfa suddenly crossing the unmanned level crossing and on
seeing that he applied the emergency brake, but since the train was very
close to the level crossing it could not be stopped short of the level crossing
and rammed into the Cargo Auto which had already entered the level
crossing and trying to cross the same resulting in the death of 12
passengers of the Cargo Auto at the spot and injuring seven persons who
were in the said Auto. Out of the said seven injured, one of them died on the
way to the hospital and another person succumbed to the injuries in the
hospital. Out of the five injured persons, two had sustained grievous injuries
while three had simple injuries. It is the specific case of the opposite party
nos.2, 3 and 4 that though the train driver was blowing horn but
unfortunately the deceased driver of the Auto was listening to music by
using the head phone attached to his mobile phone and the said driver of
the Auto did not bother to look both sides of the track before crossing the
unmanned level crossing in question for which the accident took place.
According to the opposite parties, 19 persons were travelling in the Cargo
Auto at the time of the accident including the driver though the same was
registered as a goods vehicle and had no permission for carrying
passengers and the letter of the R.T.O., Sambalpur to that effect has been
annexed as Annexure-A/1 series. It is also their case that at all unmanned
level crossings warning boards have been provided at a distance of 40
meters from the crossing and stop boards are provided at 05 meters
besides speed breakers have also been provided at a distance of 20 meters
to ensure that the vehicle drivers do not approach the rail crossing at a high
speed.
4.
Opposite party No.5 namely, the Superintendent of Police,
Sambalpur filed the counter affidavit wherein it is his stand that for the
alleged collusion between the train and the Autorickshaw U.D. Case No. 15
of 2012 was initially registered at Dhanupali Police Station which was
subsequently registered as Dhanupali P.S. Case No. 154 of 2012 dated
26.8.2012 under Sections 337, 338 and 304-A of the Indian Penal Code and
the investigation of the case is on. It is the specific stand of the opposite
party No.5 that the present writ petition is not maintainable in view of the
availability of alternative remedy before the Railway Claims Tribunal.
614
[2013]
5.
We have heard the learned counsel appearing for the respective
parties and also perused the materials placed before us. There is no
controversy about the accident which took place at the unmanned level
crossing at Khairpali i.e. in between Sambalpur City and Maneswar on
24.8.2012 at 8.40 A.M. resulting in loss of 14 lives and injuring five ladies
some of whom had grievous injuries. The only controversy is with regard to
the cause of the accident that is to say as to whether the accident in
question took place because of the deliberate negligence on the part of the
Railway Authorities or because of the careless and negligent deceased
driver of the ill fated Cargo Auto which was carrying the unfortunate poor
victims who were on their way to eke out their living by working in the paddy
fields in village Sindurapank.
6.
There is no controversy at all about the extra-ordinary jurisdiction of
this Court under Article 226 of the Constitution for awarding compensation
to a victim consequent upon deprivation of fundamental rights to the life and
liberty as they suffered due to negligence of the State or its functionaries.
The aforesaid principle has been laid down by the Apex Court as well as by
this Court and it has become the trite law.
7.
Section 18 of the Railways Act, 1989 makes it obligatory on the
Railway Administration in providing sufficient safeguards like suitable gates,
chains, bars, styles and handrails and to employ persons to open and shut
gates, chains or bar. In the instant case, admittedly the accident took place
at an unmanned railway level crossing, namely, Khairpali which falls in
between village Ainapali and Sindurapank. As we see from the counter
affidavit of the opposite party nos.2, 3 and 4, unmanned level crossings do
not require any signal gate as per Indian Railway standards. But, however
other sign boards for the road users like speed breaker board, stop board as
well as whistle boards for train drivers were available on both side of
unmanned level crossing and the visibility for the road users at the level
crossing in question was 850 meters minimum from any direction which
meets the minimum requirement of visibility of 800 meters. While meeting
the allegation of the petitioner that the driver of the Autorickshaw could not
see the approaching train because of the trees and bushes, in their counter
opposite party Nos. 2, 3 and 4 have stated that the last jungle cutting was
done on 29.6.2012. The learned counsel appearing for the railway
authorities have produced some photographs before us which clearly shows
the existence of big trees and wild bushes near the stop signal. Thus, it
appears that there is substance in the allegation of the petitioner that the
view of the approaching train from the road was obstructed because of
existence of trees and wild bushes. Even if we accept the contention of the
615
PRABIRKUMAR DAS -V - STATE
[B.K.MISRA,J.]
learned counsel for the railway authorities that the last bush cutting was
done on 29.6.2012 but at the same time this Court cannot loose sight of the
fact that the accident took place on 24th August, 2012 i.e. about two months
after the alleged bush cutting. It is an admitted fact that the occurrence took
place during rainy season and during that period, trees and wild bushes
have very luxurious growth.
8.
Mr.B.K.Dash and Mr.Piyush Mishra, learned counsel appearing for
opposite party Nos. 2, 3 and 4 in course of his argument contended that the
accident took place only because of the carelessness of the driver of the
Cargo Auto vehicle in question as the driver was listening to music by using
head phone and he did not care to stop the vehicle to see if any Loco is
coming on the railway track and, therefore, when the accident in question
took place solely because of the negligent crossing of the unmanned level
crossing, under Section 161 of the Railways Act, the driver of the said Cargo
Auto vehicle is responsible and not the railways. Similarly, it was also urged
before us that when the driver of the Autorickshaw did not perform the duty
while approaching the unguarded railway level crossing within the meaning
of Section 131 of the Motor Vehicles Act, 1988, it is the driver of the Cargo
Auto for whose negligence the unfortunate accident in question took place
and the Railway authorities cannot be fastened with any liability. But this
contention of the learned counsel for the opposite party Nos. 2, 3 and 4 falls
to the ground because of the fact that the driver of the Cargo Auto namely,
Satya Narayan Nath also has died in the said accident and therefore cannot
be prosecuted. But the fact remains that the innocent ladies and minor girls
who were travelling in the Cargo Auto at the time of accident for no fault,
met with the horrific accident for which thirteen of them died and some
others sustained grievous and simple injuries. It is the settled position of law
that the railway authorities are bound to take steps from time to time by
considering the increase in the rail and road traffic at the level crossing and
they cannot wash of their hands by saying that their proposal for having over
bridges/under bridges at all unmanned level crossing is pending with the
Collector, Sambalpur. The failure of the Railway authorities in our humble
view, is an act of negligence on their part in not providing adequate safety
measures in unmanned level crossing to avoid any mishap of the magnitude
that happened on the morning of 24th August, 2012.
9.
The stand taken by the Railway authorities are not acceptable to us
as this Court in several decisions on similar matters i.e. in the case of
Shyam Nayak and others V. General Manager, East Coast Railway,
reported in A.I.R. 2012, Orissa 38, Phula Nayak and others V. G.M. East
Coast Railway and others reported in 2011(II) Indian Law Reports-
616
[2013]
Cuttack 540, Sajeeda Begum and others V. Divisional Railway Manager

(Safety), S.E. Railways and another, 2004 (Supp.) OLR 914 and
Parikhita Behera and another V. the Divisional Railway Manager, South
Eastern Railway, Khurda Division and others, 1997 (II) OLR 69 is of the
consistent view that where a railway line crosses highway path, reasonable
precaution must be taken by the Railway authorities to reduce the damage
to the public to the minimum. The Railway authorities cannot shut their eyes
nor they can ignore the recurring accidents taking place at unmanned level
crossings. The Railway authorities cannot simply abdicate their
responsibilities on the pretext that the concerned State Government or the
departments of the State Government is sitting over their proposal for
construction of the over bridges or under bridges at unmanned level
crossing spots. The human aspect cannot be overlooked. The bureaucratic
apathy in dealing with the life and liberty of the human being which is well
protected by the Constitution of this country is definitely condemnable
especially when 80% of our population live in villages and belong to the
marginalised sections of the society suffering from all forms of deprivation.
The poor Scheduled Caste women labourers who are also illiterate cannot
be expected to have the luxury of having a Cell phone and to decipher the
SMS messages sent through cell phones by the railway authorities as to
how to cross the unmanned level crossing. The plea of the opposite party
Nos. 2, 3 and 4 that to educate people about crossing of unmanned level
crossing, SMS messages are being sent can tantamount to an apology. The
facts scenario of this case convinces us that the Railway authorities were
negligent in keeping the unmanned level crossing in question vulnerable to
pedestrians and people in the locality and they have failed to discharge their
statutory and moral obligations.
10.
Even if it is admitted that the Cargo Auto being driven by its driver
did not listen to the advice of the labourers as he had put on head phones
and was listening to music and therefore, the accident took place but what
was the fault of the innocent persons who were travelling in the said Cargo
Auto? Some of them died instantaneously at the spot and some others
received grievous or other form of injuries. They were in no way involved in
the driving of the Cargo Auto nor they were a part in taking the decision in
crossing the level crossing at the time of accident. Therefore, the theory of
contributory negligence cannot be applied to the innocent passengers who
were travelling in the Cargo Auto.
11.
A level crossing is on the other hand a danger spot in view of the
possible movement of trains and on the other is an invitation to the
passerby. The road which crosses the railway track at Khairpali is a public
617
[B.K.MISRA,J.]
road and therefore it is the legal duty of the railway to assure reasonable
safety by way of providing gates or chain barriers and to post a watchman
who should close them shortly before the trains pass. In the instant case,
existence of wild bushes having luxurious growth and trees might have
caused hindrance to the driver of the ill fated Auto to see the approaching
train before crossing the railway track. It is an admitted fact that in the PuriSambalpur line many passenger and goods train are running and volume of
passenger traffic and introduction of many long distance trains in that route
have made it a busy one. Therefore, it is the bounden duty of the Railway to
take all precautions which will reduce the danger to the minimum and they
are duty bound to take steps from time to time by considering the increase
in the rail and road traffic at the level crossing.
12.
So far as the quantum of damages is concerned, the Apex Court in
the case of M.S. Grewal and others V. Deep Chand Sood & Others,
(2001) 8 S.C.C. 151 have held that the placement in the society or the
financial status of the victim can be good guide for determining the quantum
of compensation. Under Section 124 of the Railways Act read with the
Railway Accidents and Untowards Incidents (Compensation) Rules, 1990,
no fault liability of the passenger who died in a railway accident has been
fixed at rupees four lakhs. In the instant case, it is alleged that the
authorities immediately paid Rs.5,000/- to the family members of each of the
person who died in the said accident and railways also assured to pay
Rs.2,000/- which according to us is grossly inadequate by all standards.
13.
Admittedly in this case Champa Bhoi, Pooja, Gouri Sahu, Medam
Sahu, Anu Bhoi, Arati Bhoi, Bharati Bhoi, Buli Bhoi, Khatkuri Bhoi, Jayanti
Bag, Ahalya Badhei, Dukhi Pradhan and Sanjukta Rout so also the driver of
the ill fated Auto Satya Narayan Nath died because of the accident. Thus, it
would be just and proper to award compensation of Rs.5,00,000/- (Rupees
five lakhs) each to the aforementioned persons who have lost their life in the
accident. They are also entitled to get interest at the rate of 6% per annum
on the compensation amount from the date of presentation of this writ
petition i.e. 28.8.2012. But with regard to payment of compensation to the
injured Subashini Rana, it is seen from the photocopy of the injury report
produced by the Railway authorities before that she had two lacerated
wounds i.e. over the iliac crest and on upper thigh on the anterior part.
Besides that she had another lacerated injury over the anterior aspect of
right leg with fractures of tibia and fibula and there was a swelling with
tenderness with abnormal mobility of left arm with fracture of Humerous.
The later two injuries were reportedly grievous whereas the former two
injuries were simple. Thus, taking into consideration the pain and suffering
618
[2013]
of the injured Subashini Rana, it would be just and proper to direct the
railway authorities to pay her a sum of Rs.1,00,000/- (Rupees one lakh) as
compensation from the date of filing of the writ petition. The said Subashini
Rana is also entitled to get interest at the rate of 6% per annum on the said
compensation amount from the date of filing of writ petition i.e. 28.8.2012 till
the actual payment is made. Injury report of Hemalata Bhoi aged 37 years
shows that she had no external injuries and C.T. scan of head appeared
normal but there was injury to hip joint for which she was referred to
Dr.S.K.Mishra, who is an Orthopedician for further opinion but the opposite
party Nos. 2 to 4 have not produced any other material to show if the injury
to hip joint was grievous or simple one. Thus, taking into consideration the
injury sustained by injured Hemalata Bhoi, it would be just and proper to
direct the railway authorities to pay a sum of Rs.25,000/- (Rupees twenty
five thousands) from the date of filing of the writ petition. The said Hemalata
Bhoi is also entitled to get interest at the rate of 6% per annum of the said
compensation amount from the date of filing of writ petition i.e. 28.8.2012 till
the actual payment is made. Injury report of Nirupama Bhoi the girl aged
about 16 years simply reveals that she complained of pain over right
shoulder and flap but there was no external injury. Thus, it would be just and
proper to direct the railway authorities to pay a sum of Rs.5,000/- (Rupees
five thousand) towards compensation to the injured Nirupama Bhoi. The
said Nirupama Bhoi is also entitled to get interest at the rate of 6% per
annum on the said compensation amount from the date of filing of writ
petition i.e. 28.8.2012 till the actual payment is made. Injury report of Mohini
Bhoi aged about 40 years simply reveals that she had a lacerated wound
over the right forehead which was reportedly simple and the C.T. scan of
brain was found normal. Thus, it would be just and proper to direct the
railway authorities to pay compensation of Rs.5,000/- (Rupees five
thousand) to the injured Mohini Bhoi. The said Mohini Bhoi is also entitled to
get interest at the rate of 6% per annum of the said compensation amount
from the date of filing of the writ petition i.e. 28.8.2012 till the actual payment
is made. Coming to Brundabati Bhoi the other girl aged about 17 years, the
doctor found an abrasion over left temple which was simple in nature and
the C.T. scan of head shows contusion on the left side of brain. Thus, in
view of the head injury it would be just and proper to direct the railway
authorities to pay compensation of amount Rs.25,000/- (Rupees twenty five
thousands) to the injured Brundabati Bhoi. The said Brundabati Bhoi is also
entitled to get interest at the rate of 6% per annum from the date of filing of
the writ petition i.e. 28.8.2012 till the actual payment is made.
14.
Let the payments be made within a period of two months from the
date of receipt of the copy of this udgment. The family members of the
619
[B.K.MISRA,J.]
deceased persons must keep 50% of the awarded amount in any one of the
Nationalized Banks for a period a period of five years and the interest
accrues on such deposit can be withdrawn by them. In this regard they have
to file compliance report in this Court.
15.
Now coming to the other prayer of the petitioner for a direction to the
State Government for extending its cooperation to the Railway Authorities
for construction of over bridges/under bridges at such posts of unmanned
level crossings in the State, we are to observe that where Railway
Administration has laid lines of rails across a public road at the same level,
in the interest of the public safety the Railway Administration as well as the
State Government or the local authority maintaining the road are to take the
road either under or over the railway lines by means of a bridge or arch with
convenient ascents or descents and other convenient approaches instead of
crossing the road on the level or to execute such other works as may in the
circumstances of the case appear to the State Government or the local
authority maintaining the road to be best adopted for removing or
diminishing the danger arising from the unmanned level crossing. To avert
any accident involving loss of life, injury to the public, the Union Government
and the Administration of Railways have to take appropriate remedial
measures. It is brought to our notice that the Railway Authorities at the
highest level have taken a decision to eliminate all unmanned level
crossings on Indian Railways within a time frame of 5 years by construction
of road over bridges, road under bridges, Limited Height Subway, Diversion,
Closure/Manning and to continue as manned and the East Coast Railways
in the Sambalpur Railway Division has adopted an action plan to eliminate
all of its 263 numbers of unmanned level crossings in a phased manner and
those proposals are pending at various stages of approval and execution at
the level of Railway Authorities and the District Administration. We direct the
appropriate authorities to act in right earnest in accomplishing the job in
construction of road over bridges/road under bridges and to eliminate all
unmanned level crossings in the country within a reasonable time frame of
six months so that precious human lives and properties can be saved.
Priority should be given to such type of projects without resorting to the
bureaucratic wranglings. Till such construction of road over bridges/under
bridges, the Railway Authorities are to take the following appropriate steps
to avert any accident:(i)
Posting Home Guards with red flag so that like manned level crossings
they can also caution the pedestrian/cyclist/scoorterist/Biker or any
four wheeler which approaches the unmanned level crossing when a
train be it passenger or goods is to cross such level crossings,
620
[2013]
(ii)
Extensive campaigning in the adjoining villages and areas near the

unmanned level crossings are to be carried out by the Railway
Authorities as well as the Public Relation Department of the State
Government about the danger of crossing a railway line when a train
is about to pass over that track,
(iii)
The Law Enforcing Agency including the officers of the Motor Vehicles
Department so also the Transport Commissioner is to take effective
steps for banning use of mobile phone by a person while driving a
two wheeler or three wheeler or a four wheeler. Use of Head phones
while driving is to be banned forthwith. Such persons who would be
violating the provisions of the Motor Vehicles Act and Rules should
be visited with exemplary and stringent penalty and the driving
licence should be impounded, in this regard Rules may also be
amended
(iv)
All wild bushes and creepers by the side of railway track and the
approach road to the unmanned level crossing should be regularly
cut and pruning should be done regularly so that the people in
general and drivers of the vehicles can have a view of any
approaching Loco which is about to cross the unmanned level
crossing,
(v)
Any structure be it dilapidated or abandoned found near the unmanned

level crossings should be demolished and,
(vi)
All sign posts on both sides of the unmanned level crossing must be
in bold letter i.e. in the vernacular language as well as in Hindi and
English and clearly readable from a distance. The rumbler strips
must have Thermoplastic paints fitted with Cats eye system.
16.
We trust and believe that the directions/suggestions which we are
making are not exhaustive in nature and we leave it to the Railway
Authorities and the District Administration as well as the Law Enforcing
Agency to ponder over the matter and take appropriate remedial measures
in the right direction as early as possible and periodical report of compliance
be furnished to the Registrar General of the Court, preferably once in every
quarter. We know our limitations that the Courts are not there to legislate but
these are some of our pious wishes for the betterment of the society and
humanity at large.
621
[B.K.MISRA,J.]
Accordingly, the writ petition stands allowed in the above terms. Rule
issued.
Let a copy of this judgment be sent to the Chairman, Railway Board,
Ministry of Railways, Government of India, New Delhi, Chief Secretary,
Government of Odisha, Bhubaneswar/Principal Secretary, Home/Director
General of Police for information.
622
2013 ( I ) ILR - CUT- 622
V. GOAPALA GOWDA, CJ & B.K. MISRA, J.
W.P.(C) NO. 4757 OF 2012 (Dt.14.11.2012)
THE DEAN AND PRINCIPAL,
M.K.C.G. MEDICAL
COLLEGE & HOSPITAL,
BERHAMPUR & ANR.
..Petitioners
.Vrs.
BIJAY KUMAR PATNAIK
..Opp.Party
LEGAL SERVICES AUTHORITIES ACT, 1987 S.22-A (b).

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

- M/s. G.C. Acharya, K.M.Patra, P.K.Das,
S.K.Behera, J.K.Mohapatra, K.Ghadei,
R. Nayak.
B.K.MISRA,J.
The petitioners namely, the Dean and Principal as well
as the Superintendent of M.K.C.G., Medical College and Hospital,
Berhampur being aggrieved with the order of the Permanent Lok Adalat for
Public Utility Services Ganjam, Berhampur in P.L.A. Case No. 24 of 2011
dated 7th February, 2012 directing the petitioners to keep open at least one
flap of the twin western gate allowing patients, ambulance and other light
motor vehicles to reach the hospital hassle free for enabling persons who
623
THE DEAN AND PRINCIPAL -V- B. K.
[B.K.MISRA,J.]
are in need of medical care have approached this Court by invoking the
extra-ordinary jurisdiction under Article 226 and 227.
2.
One Sri Bijaya Kumar Patnaik of Berhampur belonging to the legal
profession filed an application under Section 22C(1) of the Legal Services
Authorities Act, 1987 praying for a direction to the Superintendent as well as
Dean and Principal of M.K.C.G. Medical College and Hospital, Berhampur to
reopen the western gate of the Hospital which was abruptly locked on 7th
September, 2011 on the pretext of prohibiting entry of heavy vehicles and to
curb antisocial activities in the college campus by undesirable elements and
ensure security to the patients and students of the Medical College.
3.
According to the applicant there exists two gates leading to the
M.K.C.G. Medical College and Hospital i.e. eastern gate which is said to be
the main gate facing the eastern part of Berhampur city. The rear gate i.e.
the western gate faces the new bus stand of the city on Gate Bazar-Goilundi
road which also touches National Highway number 59. According to the
applicant people from various parts of Ganjam district and also from other
southern districts come to Berhampur for receiving best of medical treatment
as M.K.C.G. Medical College and Hospital, Berhampur caters to the health
problem of the people in the absence of any other good hospital in the area.
The people who come by bus and by other modes to Berhampur have easy
accessibility to the hospital through the western gate but by its closure they
have to traverse almost two kilometers that too a busy and congested road
for coming to the Medical College Hospital. It is the further case of the
petitioner that when the State Government has spent huge amount of money
by erecting the western gate with pedestrian passages and security check
post there is no justifiable reason for closure of the western gate. It is alleged
that the said action of the authorities has affected the fundamental rights of
the patients in getting medical services. Thus, the petitioner approached the
permanent Lok Adalat for Public Utility Services for redressal of his
grievance.
4.
The present petitioners who were the respondents in P.L.A. Case
No.24 of 2011 filed their joint written statement before the Permanent Lok
Adalat for Public Utility Services Ganjam-Berhampur wherein it is their case
that the western gate in question has been closed as per the policy decision
and for the welfare of the patients and also to maintain peace and tranquility
and healthy hospital atmosphere since for the last 40 years. Besides that it is
their case that when there are other ways to enter the medical college in
question, the applicant cannot claim entry into the Hospital premises through
a particular gate. Accordingly, they prayed for dismissal of the application.
624
[2013]
5.
The Permanent Lok Adalat for Public Utility Services Ganjam,
Berhampur attempted to settle the dispute in between the parties by
resorting to the provisions of Section 22C(7) of the Legal Services
Authorities Act, 1987 but since the learned Addl. Government Pleader did
not agree and stuck to the point that closure of the gate in question does not
amount to deficiency in service rendered by the hospital, such attempt failed.
Therefore, the Permanent Lok Adalat decided to deal with the dispute on
merit under sub-section (8) of Section 22C of the Legal Services Act, 1987
and the impugned order at Annexure-1 was passed which has been
challenged in this writ petition.
6.
We have heard learned Government Advocate appearing for the
petitioners as well as the learned counsel for the opposite party. The learned
Government Advocate very vociferously attacked the impugned order
passed by the Permanent Lok Adalat for Public Utility Services, GanjamBerhampur and contended that the said order is nonest in the eye of law as
the authorities concerned traversed beyond its competence and usurped a
jurisdiction which is not vested on it. Mr.Mohapatra, learned Government
Advocate also challenged the impugned order on the ground that the
impugned order was passed with undue haste and speed and that shows
that the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur
tried to over reach the highest court of the State i.e. this Court and did not
observe the judicial discipline and propriety even though it was brought to its
notice about the pendency of W.P.(C) No. 27309 of 2011 filed by one Sri
Pitabash Panda an Advocate of Ganjam Bar Association on 12.10.2011
praying therein for a direction to the authorities of M.K.C.G. Medical College
and Hospital, Berhampur for opening of the gate over looking the new bus
stand Berhampur which has been closed by the authorities. It is contended
that despite the said information furnished to the Permanent Lok Adalat, the
authorities proceeded to adjudicate the P.L.A. Case No. 24 of 2011 and
passed the impugned order and therefore the same needs to be quashed.
7.
With the avowed object of providing speedy and inexpensive justice
to the people of this country the Legal Services Authorities Act, 1987 has
been enacted by the Parliament. The further object is to ensure that
opportunities for securing justice are not denied to any citizen and to
organize Lok Adalats to secure that the operation of the legal system
promote justice on a basis of equal opportunity. In view of the growing
popularity there has been an ever increasing demand for establishing
Permanent Lok Adalats and the same has been inserted in Chapter 6A of
the Legal Services Authorities Act, 1987. Section 22 A(a) speaks for
establishment of Permanent Lok Adalat and Section 22B empowers the
625
[B.K.MISRA,J.]
State authority to establish Permanent Lok Adalats in respect of one or more

Public Utility Services for such areas as would be notified in the notification.
What is Public Utility Service that has been defined in Clause (b) of Section
22A of the Legal Services Authorities Act, 1987 and the same reads as
follows:(b) public utility service means any(i) transport service for the carriage or passengers or goods by air,
road or water; or
(ii) postal, telegraph or telephone service; or
(iii) supply of power, light or water to the public by any establishment;
or
(iv) system of public conservancy or sanitation; or
(v) service in hospital or dispensary; or
(vi) insurance service, and includes any service which the Central
Government or the State Government, as the case may be, in the
public interest, by notification, declare to be a public utility service for
the purposes of this Chapter.
8.
Thus, Permanent Lok Adalats for Public Utility Services have been
established to decide disputes relating to deficiency of service pertaining to
Public Utility Services as mentioned in Section 22A(b) of the Legal Services
Authorities Act, 1987. Service in hospital or dispensary means the system
that provides medical care facilities and treatment to the patients i.e.,
treatment by doctors, nursing staff and attendants attached to a Hospital or
Dispensary.
9.
The Permanent Lok Adalat for Public Utility Services GanjamBerhampur in para five of its impugned order has observed that by virtue of
sub-section (2) of Section 22 of the Legal Services Authorities Act, the
Permanent Lok Adalat is to adopt its own procedure for determination of the
dispute as it is a special tribunal and therefore, when conciliation initiated by
it for opening of the western gate of M.K.C.G. Medical College and Hospital,
Berhampur failed, it cannot sit helpless and therefore assumed jurisdiction to
adjudicate the dispute under sub-section 8 of Section 22C of the Legal
Services Authorities Act.
10.
Sub-section 8 of Section 22C of the Orissa Legal Services Authorities
Act, 1987 says that where the parties fail to reach at an agreement under
626
[2013]
Section 7, the Permanent Lok Adalat shall, if the dispute does not relate to
any offence, decide the dispute.
11.
Sub-section 7 of Section 22C reads as follows:(7) When a Permanent Lok Adalat, in the aforesaid conciliation
proceedings, is of opinion that there exist elements of settlement in
such proceedings which may be acceptable to the parties, it may
formulate the terms of a possible settlement of the dispute and give
to the parties concerned for their observations and in case the
parties reach at an agreement on the settlement of the dispute, they
shall sign the settlement agreement and the Permanent Lok Adalat
shall pass an award in terms thereof and furnish a copy of the same
to each of the parties concerned.
Sub-sections 7 and 8 of Section 22C cannot be read in isolation as it

has reference to Section 22B of the Legal Services Authorities Act, 1987.
Section 22B speaks of establishment of Permanent Lok Adalats in respect of
one or more public utility services which the state authority shall notify
through a notification. What constitute Public Utility Service has been defined
in clause (b) of Section 22A of the Legal Services Authorities Act, 1987.
12.
Upon examining the various provisions of the Legal Services
Authorities Act, we are of the view that closure of one gate of a hospital by
the authorities cannot come under the purview of service in hospital or
dispensary. At the cost of repetition, we may reiterate here that service in
hospital or dispensary means the services provided with regard to the
treatment of the patients and nothing else. There is no allegation any where
that the people of Berhampur city or adjoining areas have been denied
medical service or treatment in M.K.C.G. Medical College and Hospital or
there is any health hazard because of such deficiency in rendering or
providing medical assistance to the patients in the hospital. When subsection 8 of Section 22C is read harmoniously with Section 22B of Legal
Services Authorities Act, 1987, we have no hesitation in our mind to hold that
the Permanent Lok Adalat for Public Utility Services Ganjam-Berhampur
could not have entertained the application filed by Sri Bijaya Kumar Patnaik,
Advocate. We are constrained to observe that the Chairman and its two
members exceeded their jurisdiction in holding that they can decide the
dispute as because the conciliation failed with regard to the opening of the
western gate of M.K.C.G. Medical College and Hospital. Reasoning
assigned by the Permanent Lok Adalat for Public Utility Services GanjamBerhampur in our considered view shows that they traded on a wrong path
and took upon themselves a jurisdiction which is not vested on them under
627
[B.K.MISRA,J.]
the statute. When the authorities proclaimed them to be a special tribunal it

is equally expected of them that they should function in a manner which the
law of the land prescribes. Judicial discipline and propriety has to be
maintained especially when the Chairperson of the Permanent Lok Adalat in
question is a retired Senior Judicial Officer in the cadre of District Judge.
When the authorities are called upon to adjudicate the dispute they must
perform their duties in accordance with law and they shall not be swayed
away by emotions and feelings of the people. The higher the responsibility
the greater is the restraint. One should circumspect while passing any order
as public functionaries. We should always remember that we are functioning
under public gaze. Let not people loose confidence on our system. Let us
preserve the sanctity of the institution. Let majesty of law prevail not
personal feelings and emotions. All must function within the Laxman Rekha
so that no one can point an accusing finger at our system.
13.
Thus, in the instant case when the Permanent Lok Adalat for Public
Utility Services Ganjam-Berhampur passed the impugned order at
Annexure-1 without jurisdiction, the same is nonest and cannot be allowed to
stand for a moment even. In the premises, we have no hesitation to quash
the impugned order at Annexure-1 and the order passed for opening of the
western gate of M.K.C.G. Medical College and Hospital, Berhampur is
resultantly quashed.
14.
Accordingly, the writ petition stands allowed. We direct the Registry
to send copies of this judgment to all the Courts, Tribunals, Permanent Lok
Adalats for Public Utility Services except State Administrative Tribunal and
Central Administrative Tribunal for their information and guidance.
Writ petitomn allowed.
628
2013 ( I ) ILR - CUT-628
B.P.DAS,J. & B. K. NAYAK, J.
W.P.(C) NO. 9295 OF 2007 (Dt.09.11.2012)
DR. PRIYATAMA SINGH
.Petitioner
.Vrs.
STATE OF ORISSA & ORS.
.Opp.Parties
A. CONSTITUTION OF INDIA, 1950 ART.226.

Vires of Regulation 4(b) (i) of Odisha Public Service Commission
(Conditions of Service) Regulations, 1952, challenged.
Constitutionally two categories of persons appointed as
Members in the Public Service Commission i.e. Government Servants
and other persons who are not Government servants Persons not
Government servants shall have to receive the pay as provided under
Regulation 4(a) In view of Regulation 4(b) (i) while fixing pay for
members who were Government servants the amount of pension they
get must be deducted from the pay stipulated under Regulation 4(a) so
that their total pay inclusive of pension does not exceed the pay under
Regulation 4(a) with a view that both categories of members get equal
pay In other words fixation of pay may cause hardship to a person
who is appointed as a Member O.P.S.C. while continuing in
Government service and had he been continued in service till
superannuation would have received a pay more than what has been
provided for a member OPSC under Regulation 4(a) The above
hardship cannot be said to be a variation of the service conditions after
appointment of the person as Member of the commission as provided
in the proviso to Article 318 (b) of the Constitution Held, the
impugned regulation cannot be said to be ultra vires the Constitution.
(Para 13)
B. ODISHA PUBLIC SERVICE COMMISSION (CONDITIONS
SERVICE) REGULATION, 1952 - REGULATION 4 (a), (b) (i).
OF
Petitioner appointed as Member OPSC in 2002 In ordinary

course she would have retired on superannuation in Government
service in 2006 As per the State Government Resolution her scale
has been revised w.e.f. January 2006 Regulation 4(a) not
revised/amended after 1994 Despite such non-revision the pay of one
Mr. Pratip Mohanty, Chairman OPSC was refixed by reducing the gross
amount of revised pension Such benefit is not extended to the
629
DR. PRIYATAMA SINGH -V- STATE
[B.K. NAYAK, J.]
petitioner by OPSC Discrimination Held, petitioner entitled to

proportionate revision of her pay and her pay be fixed by deducting
such revised pension from her revised pay with effect from 1.1.2006
and the same be paid to her.
(Paras 14,15)
For Petitioner
- M/s. Budhadev Routray,(Sr.Adv.),

D.K.Mohapatra, B.N. Satpathy,
B.B. Routray, P.K.Sahoo, R.P. Dalai.
For Opp.Parties -
Addl. Standing Counsel (for O.p 1 & 3)

Mr. B.K. Dash, (for O.P2).
B.K. NAYAK, J.
The petitioner, who was a Member of the Orissa
Public Service Commission (in short the OPSC), has filed this writ
application challenging the vires of Regulation 4 (b) (i) of Orissa Public
Service Commission (Conditions of Service) Regulations,1952 (hereinafter
referred to as Orissa Regulation,1952) and also prays for quashing the
order dated 17.03.2007 under Annexure-7 passed by the Government and
further to direct the opposite parties, particularly, the State Government to
re-determine the salary payable to the petitioner calculating the same @
Rs.19,500/- per month from the date of her assumption of office as Member
of the Commission.
2.
While working as Principal, M.K.C.G. Medical College, Berhampur
the petitioner was appointed as a Member of the OPSC vide Government
Notification dated 3.12.2002 under Annexure-1. Prior to her appointment as
a Member of the OPSC, the petitioner was drawing a salary of Rs.18,650/with other allowances. On her assumption of office as a Member of OPSC
she was provisionally placed in the pay of Rs.19,500/- (fixed basic pay) with
other allowances as per office order dated 18.01.2003 (Annexure-2) in terms
of Regulation 2 (e) of the Orissa Regulation,1952, which was made final by
order dated 29.01.2005 under Annexure-4. With regard to pay of the
Chairman and the Members of the OPSC Regulation 4 (a) & (b) of the
Orissa Regulation,1952 as amended in 1994, provides as under :
4. (a) The Chairman shall receive a pay of Rs.20,450 (fixed) a
month and each of the members shall receive a pay of Rs.19,500
(fixed) a month.
(b) Notwithstanding anything contained in clause (a)(i)If a person is appointed as Chairman or Member while in
Government service, he shall have to retire from Government
630
[2013]
service, before assuming the office of the Chairman or Member of

the Commission, as the case may be, and in such case, he shall be
entitled to receive the pay last drawn by him from Government
service minus the gross amount of pension including any portion
thereof which might have been commuted:
Provided that in a case where such person was in receipt of
pay less than the pay specified under clause (a) he shall be entitled
to receive the pay so specified reduced by gross amount of pension
including any portion thereof which might have been commuted, or
(ii)
If a person, after retirement from service under the
Government, is appointed as the Chairman or a Member, he shall
also be entitled to receive the pay as specified in sub-clause (i).
In terms of the aforesaid Regulation 4 the pay of the petitioner as a
Member of the OPSC was fixed at Rs.19,500 (fixed pay) minus pension of
Rs.9,325 = Rs.10,175 net pay per month.
3.
It is stated by the petitioner that in the State of Punjab, the Service
Conditions of the Members of Punjab Public Service Commission are
governed by the Punjab State Public Service Commission (Conditions of
Service) Regulations, 1958 (in short 1958 Regulation of Punjab) and the
proviso to Regulation 5 (1) of the said Regulation is parimateria to the
provision of Regulation 4 (b) (i) of the Orissa Regulation,1952. It is stated
that one M.P. Pandove, who was working as Chief Auditor, Co-operative
Societies, Punjab Government and was drawing salary of Rs.20,100/- was
appointed as Member of the Punjab Public Service Commission vide
Notification dated 8.12.2002 and was placed in the scale of pay of
Rs.18,400-500-22,400/- and his pay was fixed at Rs.9,093 after deducting
his pension of Rs.9,307/- as per order dated 07.12.2004 under Annexure-5.
Mr.Pandove filed Civil Writ Petition No.85 of 2005 in the High Court of
Punjab and Haryana for declaring the proviso to Regulation 5 (1) of the 1958
Regulations of Punjab as ultravires the Constitution being violative of Articles
14 and 16 and for quashing the pay fixation order dated 07.12.2004. The
High Court of Punjab and Haryana by judgment dated 26.02.2005 allowed
the writ application and quashed the pay fixation of M.P. Pandove. For
passing the said judgment the High Court relied upon the judgment in the
case of Ram Phal Singh v. State of Haryana in Civil Writ Petition No.15159
of 1996, which had reached finality without being challenged in the apex
Court. It is stated that the judgment passed in the case of M.P. Pandove in
Civil Writ Petition No.85 of 2005 was challenged by the State of Punjab
631
[B.K. NAYAK, J.]
before the apex Court in Special Leave to Appeal (Civil) No.12336 of 2005
and the apex Court by their order dated 13.07.2005 dismissed the Special
Leave petition and upheld the judgment passed by the Punjab and Haryana
High Court.
4.
It is stated by the petitioner that the aforesaid judgment of the Punjab
and Haryana High Court, which was confirmed by the apex Court is squarely
applicable to the case of the petitioner inasmuch as Regulation 4 (b) (i) of
the Orissa Regulation,1952, is parimateria to the provision of Regulation 5
(1) of the 1958 Regulations of Punjab. Therefore, the petitioner made a
representation to opposite party nos.1 and 2 for implementing the decision
of the Honble apex Court in Special Leave to Appeal (Civil) No.(S) 12336 of
2005 in the case of M.P. Pandove and accordingly to re-fix and pay the
salary of the petitioner without deducting the pension. Considering the
representation of the petitioner, opposite party no.2 (OPSC) requested the
Government to effect suitable amendment to Regulation 4 of the Orissa
Regulation,1952 and furnished a copy of such request dated 24.10.2006 to
the petitioner which is at Anexure-6. However, by letter dated 17.03.2007
(Annexure-7) opposite party no.1 turned down the request of opposite party
no.2 stating that the judgment of the Supreme Court is not applicable to the
State of Orissa and therefore, there was no need to amend Regulation 4 of
Orissa Regulation,1952.
5.
In the aforesaid scenario, it is submitted on behalf of the petitioner
that the provision of Regulation 4 (b) (i) of the Orissa Regulation,1952 with
regard to fixation of pay of a Member of the State Public Service
Commission being in parimateria to the provision of Regulation 5 (1) of the
1958 Regulations of Punjab, opposite party no.1 was not correct in saying
that the decision of the apex Court in M.P. Pandoves case will have no
application to Orissa. It is also submitted that the Regulation 4 (b) (i) is
ultravires the Constitution as it is repugnant to Articles,14, 16 and Article
318, which provides that the condition of service of a Member of a Public
Service Commission shall not be varied to his disadvantage after his
appointment. It is stated that the Regulation having provided for deducting
the pension of the petitioner which she is entitled on retirement from past
service rendered to the Government prior to her appointment as a Member
of the OPSC amounts to making a provision which is to the disadvantage of
the petitioner after her appointment as a Member of the OPSC. It is also
submitted that though the petitioner retired as Member of OPSC during the
pendency of the writ application, so far she has not received her pay and the
differential benefit in the revised scale of pay as per recommendation of 6th
Pay Commission with effect from 01.01.2006, though one Sri Partip
Mohanty, who was appointed as Chairman of the OPSC after his retirement
632
[2013]
as the Chief Secretary of the Government of Orissa, has already been given
the benefit of pay revision in the revised scale of pay with effect from
01.01.2006 and as such petitioner has been discriminated. It is also stated
that one Mr.Sujit Das, who was also appointed as Chairman of OPSC after
his retirement under the State Government has already received the benefit
of pay revision with effect from 01.01.2006, but the petitioners case is not
being considered in spite of representations sent to the opposite parties time
and again.
6.
Opposite party no.1-State of Orissa has filed a counter affidavit
wherein it is stated that the decision in the case of Ram Phal Singh v. State
of Haryana has no application as because Regulation 6 (1) with its first
proviso of the Haryana Regulation 1973, which was the subject matter of
interpretation in the said case, did not provide for deduction of pension for
fixation of remuneration of a Member of the Haryana Public Service
Commission and as such the regulation not being in parimateria to
Regulation 4 (b) (i) of the Orissa Regulation,1952, which provides for
deduction of pension in the matter of fixation of pay. It is further stated that
the decision of the Punjab and Haryana High Court in the case of M.P.
Pandove which was disposed of in terms of the decision in Ram Phal
Singhs case was confirmed by the Honble Supreme Court in SLP (C)
No.12336 of 2005 on the ground that the impugned judgment of the High
Court was based on concession and, therefore such order of the Honble
Supreme Court cannot be said to have laid down the law under Article 141
of the Constitution so as to be binding on the opposite parties. It is further
stated that the petitioner prior to her appointment as Member of OPSC was
drawing a pay of Rs.18,650/- per month with other allowances and on her
joining as a Member of the OPSC her pay was fixed at Rs.19,500/- per
month and as per Regulation 4 (b) (i) of the Orissa Regulation, 1952 her net
pay came to Rs.10,175/- after deduction of the amount of pension of
Rs.9,325/-. It is, therefore, contended on behalf of opposite party no.1 that
Regulation 4 (b) (i) does not violate Article 318 or Articles, 14 and 16 of the
7.
The order dated 26.02.2005 of Punjab and Haryana High Court in the
case of M.P. Pandove v. State of Punjab and others (Civil Writ Petition
No.85 of 2005), copy whereof is produced before us, is extracted
hereunder:
Learned counsel for the parties are agreed that the controversy in
hand is squarely covered by the decision rendered in Ram Phal
Singh v. State of Haryana & others (Civil Writ Petition no.15159 of
1996, decided on 08.09.2004).
633
[B.K. NAYAK, J.]
In view of the above, the instant writ petition is allowed in

terms of the order passed by this Court in Ram Phal Singhs case
(supra). Accordingly, the impugned order dated 07.12.2004
(Annexure-P-6) is hereby quashed. The remuneration payable to the
petitioner in furtherance of the instant order be calculated and
released to the petitioner within a period of two months from today.
Annexure-P-6 to the said writ application was the pay fixation
order of Mr.M.P. Pandove, petitioner therein, as Member of Punjab
Public Service Commission, whereby his pay had been reduced by
the amount of pension admissible to him as a Government Servant
prior to his joining as Member of the Public Service Commission. As
is apparent from the order of the Punjab and Haryana High Court, the
writ application was allowed because of the concession made by the
State Government. The order was passed in terms of the decision in
Ram Phal Singhs case, which otherwise means that the reasoning
given by the High Court in the judgment in Ram Phal Singhs case
with respect to the relevant provision of Haryana Regulation of 1973
have been accepted as the grounds for the order.
8.
It is, therefore, necessary to see the decision of the Punjab and
Haryana High Court in the case of Ram Phal Singh v. State of Haryana &
others in Civil Writ Petition No.15159 of 1996.
As it appears from the judgment the vires of first proviso to
Regulation 6 (2) of the Haryana Public Service Commission
(Conditions of Service) Regulation 1973 fell for consideration. It is
apposite at this stage to see the provisions of Regulation 5 (1) with
the proviso of Punjab Regulation 1958 and Regulation 6 (1), (2) and
(3) with provisos of the Haryana Regulation 1973.
Punjab Rule 5 (1) of the Punjab Regulation 1958 provides as
under :
5 (1) The Chairman shall receive pay in scale of Rs.22,400-525-24,500/and other members in the pay scale of Rs.18,400-500-22,400/- and
in addition thereto they shall also be entitled to get such other
allowances as may be admissible from time to time to Government
employees getting similar pay. Provided that(i)
If the Chairman or a Member at the time of appointment as such is a

person, who has retired from service under the Central Government,
a State Govt., a local authority, a University, a privately managed
634
[2013]
recognized school or an affiliated college or any other body wholly or

substantially owned or controlled by the Punjab Govt., and who is in
receipt of or has received or has become entitled to receive and
retirement by way of pension, gratuity, contributory provident fund or
otherwise, the pay specified in this regulation shall be reduced by
the gross amount of any kind of pension including any portion of the
pensions which may have been commuted.
Provided that the amount of pension not exceeding Rs.500/- per
mensem, shall not be taken into consideration for fixing the pay.
Regulation 6 (1), (2) and (3) of the Haryana Regulation,1973 is
extracted herein below :
6.
Pay (1) The Chairman shall receive a remuneration of seven
thousand rupees in a month and each of the other members a
remuneration of Six thousand rupees a month. They shall also be
entitled to such other allowance as may be admissible in future from
time to time to government employees drawing the same pay in
addition to four hundred rupees a month as car allowance, provided
a car is maintained.
2.
Chairman or the Member, if at the time of his appointment as
such, is a retired Government employee, he will be entitled to the
remuneration in sub-regulation (1) in addition to the pension
sanctioned to him.
Provided that the amount of remuneration plus the gross amount of
pension or the pension equivalent to other forms of retirement
benefits does not exceed the pay last drawn by him before his
retirement or the remuneration mentioned in sub-regulation (1)
whichever is higher.
Provided further that the total remuneration plus the gross of pension
and the pension equivalent to other forms of retirement benefits,
excluding the allowances, shall in no case exceed eight thousand
rupees per month.
3.
The Chairman or the member who at the time of his
appointment as such is in the service of the central or State
Government and does not exercise option under sub-regulation (1)
of regulation 9 shall be paid the remuneration drawing by him
immediately before his appointment as Chairman or member as the
case may be or the remuneration mentioned in sub regulation (1)
635
[B.K. NAYAK, J.]
whichever is higher, till the date of his retirement from Government

service in the normal course and thereafter his remuneration shall be
regulated as provided in sub regulation (2).
9.
In Ram Phal Singhs case fixation of remuneration was made by
deduction of pension payable to him on account of service rendered by him
under the Government in terms of first proviso to Regulation 6 (2) of the
Haryana Regulation 1973. Regulation 6 (1) stipulated a fixed remuneration
of Rs.6,000/- for the Member of the Haryana Public Service Commission and
also allowed such other allowances as may be admissible from time to time
to the Government employees drawing the same pay. The word
remuneration used in the said Regulation apparently refers to the fixed
basic pay. Sub regulation (2) of Regulation 6 has been enacted apparently
keeping in view the Constitutional provision contained in the proviso under
Article 316 (1) of the Constitution of India which stipulates that as nearly as
may be onehalf of the Members of every Public Service Commission shall be
persons who at the dates of their respective appointment have held office for
at least ten years either under the Government of India or under the
Government of a State. In order to clarify the position as to the entitlement to
remuneration by a retired Government servant entitled to pension for such
service, who was appointed as a Member of the Public Service Commission,
Sub regulation (2) read with its first proviso makes it clear that such retired
Government servant subsequently becoming a Member of the Public Service
Commission will be entitled to the fixed remuneration of Rs.6,000/- along
with the pension but this provision is subject to the first proviso which is in
the nature of an exception. Sub Regulation (2) of Regulation 6 read with the
first proviso would only mean that the remuneration plus pension of such a
Member would not exceed the last pay drawn from the Government by the
person at the time of his appointment as a Member or Rs.6,000/-, i.e., the
remuneration specified in Regulation 6 (1), whichever is higher. Of course
the proviso contemplates two categories of Government employees
becoming Members of the Public Service Commission. The first category
comprises of those who prior to their appointment were drawing wages in
excess of the remuneration (Rs.6,000/-) stipulated under Regulation 6 (1) of
the Regulation. The second category is referable to Members of the Public
Service Commission, who prior to their appointment as members were
drawing wages as Government servants at a level lower than Rs.6,000/-,
i.e., the remuneration prescribed under Article 6 (1) of the Regulations.
10.
While holding proviso to Regulation 6 (2) of the Haryana
Regulation,1973 as ultra vires the Constitution and quashing the order fixing
636
[2013]
the remuneration of the petitioner therein by deducting pension, the High

Court of Punjab and Haryana held as under :
The petitioner in the instant case was drawing a wage under the
government which was less than the remuneration stipulated under
Regulations 6 (1) of the 1973 Regulations. It is not a matter of
dispute that the duties and responsibilities discharged by the
members of the commission in respect of their source of
appointment are the same. It is also not a matter of dispute that
duties assigned to the members of the Commission recruited from
the two broad sources expressed in Article 316 (1) of the
Constitution of India are inter changeable. It is, therefore, inevitable
to conclude that the members of the Public Service Commission
cannot be justifiably classified on the basis of the duties and
responsibilities assigned to them. The Apex Court in Marvyn
Continhos case (supra), Roshan Lal Tandons case (supra); S.M.
Pandits case (supra) and in Ramchandra Shankar Doodhars case
(supra) has repeatedly concluded that the source of recruitment of
an incumbent cannot be basis of a valid classification. The written
statement filed on behalf of the respondents does not disclose any
justification on the basis of which different members of the Public
Service Commission can be paid different levels of remuneration.
Thus viewed, it is imperative to conclude that the impugned order
which required the petitioner in the instant case Ram Phal Singh to
be paid remuneration less than the one stipulated under Regulation
6(1) of the 1973 Regulations violates the principles of equal pay and
equal work. In this behalf it would be pertinent to mention that while
calculating the emoluments payable to the petitioner, deduction of
pension payable to him (on account of service rendered by him
under the government) as well as deduction of pension equivalent to
Death-cum-Retirement Gratuity paid to him (for service rendered by
him under the Government) are being made from the stipulated
remuneration of Rs.6000/- under Regulation 6(1) of the 1973
Regulations. The aforesaid deductions comprising of pension, as
well as pension equivalent to Death-cum-Retirement Gratuity,
constitute earnings of the petitioner in lieu of the service rendered by
him under the government. The action of making the instant
deductions amounts to depriving the petitioner of his existing rights,
prior to his appointment as a member of the Public Service
Commission. The aforesaid earnings are not relatable to the duties
and responsibilities which a member of the Public Service
Commission discharge as a member of the Public Service
637
[B.K. NAYAK, J.]
Commission. It is wholly unreasonable to make the aforesaid

deductions from the remuneration of the petitioner because the
aforesaid payments have no nexus to the duties and responsibilities
of the petitioner as a member of the Public Service Commission. The
only issue relevant for determining the emoluments payable to the
members of the Public Service Commission is the duties and
responsibilities discharged by them as members of the Public
Service Commission. All the members of the Public Service
Commission discharge the same duties collectively as a unified body
and the duties and responsibilities of the members of the Public
Service Commission are inter-changeable, there can, therefore, be
no justification to pay them differently for the duties discharged by
them. In view of the above, it is natural to conclude that the first
proviso under Regulation 6(2) of the 1973 Regulations which
envisages a stipulation wherein a number of the Public Service
Commission fixed under Regulation 6(1) of the 1973 Regulations, is
clearly ultra vires the provision of the Constitution of India and is
therefore liable to be set aside and is accordingly set aside. The
petitioners and others who were drawing wages under the
government at a level less than the remuneration under Regulation
6(1) of the 1973 Regulations (Prior to their appointment as members
of the Public Service Commission), are hereby held to be entitled to
the remuneration fixed under Regulation 6(1) of the 1973
Regulations, without any deduction therefrom.
11.
With respect we are unable to accept all the reasonings given by the
Punjab and Haryana High Court in Ram Phal Singhs case as seen above
because while deciding the vires of first proviso to Sub regulation (2) of
Regulation 6 of Haryan Regulation, 1973, the High Court has not taken into
consideration the second proviso to sub Regulation (2) and also sub
Regulation (3) of Regulation 6 of the Haryana Regulation, 1973.
The dismissal of the SLP by the Honble Supreme Court in M.P.
Pandoves case on the ground that the judgment of the High Court was
based on concession cannot be said to have laid down the law under Article
141 of the Constitution of India, as because it was a dismissal in limine and
the High Court Judgment being an outcome of concession the Honble
Supreme Court was not inclined to entertain the SLP to consider the legality
and propriety of the order of the High Court.
12.
Regulation 4 (a) of the Orissa Regulation, 1952 prescribes fixed
basic pay of Rs.19,500/- for the Member of the OPSC. Clause (b) of
638
[2013]
Regulation 4 of the said Regulation which starts with a non-abstante clause

is referable to Government Servants, who are made Members of the OPSC.
Sub clause (i) of Clause (b) provides the manner for fixation of pay of a
Member, who was continuing in Government Service on the date of his
appointment as a Member of OPSC. However, the proviso to the said sub
Clause envisages that before assuming office of Member the person shall
have to retire from Government Service and on assumption of office of
Member he has to receive the last pay drawn by him where such pay was
more than as stipulated in Clause (a) of Regulation 4, i.e., Rs.19,500/- minus
the gross amount of pension. The proviso under Clause (i) also makes it
clear that where on the date of assumption of office as Member the
Government servant was in receipt of pay less than the pay specified under
Clause (a) he shall be entitled to receive the pay specified under Clause (a)
minus the gross amount of pension. Sub Clause (ii) of Clause (b) of
Regulation 4 refers to the second category of Government Servants, who on
the date of their appointment as Member of OPSC had already retired. Such
retirement may be either on superannuation or voluntary retirement by the
person concerned before he was appointed as a Member of the OPSC. Such
a Member is entitled for pay to be fixed in the same manner as mentioned in
Clause (i) which means that his pay as a Member of OPSC has also to be
fixed by deduction of gross amount of pension from his basic pay. So far as
the appointment of a Member of the Public Service Commission from
amongst Government servants or retired Government servants is concerned,
it is post retiral appointment or engagement in respect of which the policy of
the Governments, Central as well as State, has always been to give salary
to such an appointee in a manner which does not confer on him dual
financial benefit. Therefore, salary in respect of all such post retrial
appointments whether in Tribunals or in other bodies, are fixed as per the
last pay drawn by them or the pay stipulated for the post in the concerned
Rules or Regulations by deducting the pension.
13.
Constitutionally two categories of persons are appointed as Members
in the Public Service Commission as per proviso to Article 316(1), i.e.,
Government servants and other persons, who are not Government Servants.
Persons who are not Government Servants shall have to receive the pay
stipulated for the post of Member in Regulation 4 (a). Members who were
Government Servants and are entitled to pension in respect of service
rendered by them as such Government Servants, the Regulation stipulated
for fixation of their pay by deducting the amount of pension from the pay
stipulated under Regulation 4 (a) so that the total pay inclusive of pension
does not exceed the pay prescribed in the Regulation. That way both
categories of Members get equal pay and are treated equally and the
639
[B.K. NAYAK, J.]
Government servants are not doubly benefited by way of getting the full pay
for the post of Member as well as the amount of pension which is admissible
to them as Government Servants. Deduction of pension in fixation of pay can
not therefore be said to be violative of Articles 14 and 16 of the Constitution.
The fixation of pay, however, may cause hardship to a person, who
is appointed as a Member of the OPSC while continuing in Government
Service in case where had the person concerned continued in service till
superannuation would have received a pay more than what has been
stipulated for a Member of OPSC under Regulation 4 (a), i.e. Rs.19,500/-.
The Regulation which does not make a provision to take care of such a
situation would be detrimental to his interest. A Government Servant in
service, who accepts the appointment of office of the Member of the OPSC
does so consciously knowing well that he has to continue in the post carrying
a fixed basic pay of Rs.19,500/- till he completes the tenure of six years or till
he attains the age of 62 years whichever is earlier unless before attaining
such age or completing the tenure the pay for the post gets revised. This
hardship cannot be said to be a variation of the service condition after
appointment of the person as Member of the Commission as provided in the
proviso to Article 318 (b) of the Constitution. In such view of the matter, the
impugned regulation cannot be said to be ultra vires the Constitution.
14.
Admittedly, on the date of appointment as Member of OPSC in 2002
the petitioner was drawing a pay of Rs.18,650/- in the scale of pay of
Rs.16,400-450-20,000/-. In ordinary course she would have retired on
superannuation in Government service in 2006. However, with effect from
January,2006 as per the State Government Resolution No.1/2012-5505WH
dated 03.03.2010 under Annexure-10 of the Health and Family Welfare
Department the aforesaid scale has been revised
to Rs.37,400/- Rs.67,000/- with AGP of Rs.10,000/-. It has been brought to the notice of this
Court by the petitioner that one Sri Pratip Mohanty, IAS, who after his
retirement as Chief Secretary was appointed as the Chairman of OPSC was
allowed a pay of Rs.26,000/- (pay last drawn in Govt.) minus the gross
amount of pension of Rs.13,000/-. As per pay revision of IAS Officers w.e.f.
01.01.2006 the pay of Rs.26,000/- was revised to Rs.80,000/- and, therefore,
pay of Mr. Mohanty as Chairman of OPSC has been fixed at Rs.80,000/reduced by the gross amount of pension of Rs.40,000/- with effect from
01.01.2006 vide Government of Orissa, G.A. Department office order dated
26.06.2009 under Anenxure-9. It is the grievance of the petitioner that
though there is revision of pay scale which the petitioner was drawing as a
Government Servant on the date of her assumption of office as the Member
640
[2013]
of the OPSC, her pay as such Member has not been fixed in the revised
scale as has been done in the case of Mr. Pratip Mohanty.
15.
The pay stipulated for the Chairman and the Member of the OPSC
under Regulation 4 (a) of the Orissa Regulation 1952 as amended in 1994
has apparently not been revised or amended thereafter even though pay of
Government employees under the Centre as well as State has already been
revised with effect from 01.01.2006. Despite such non-revision the pay of Mr.
Pratip Mohanty, the Chairman of the OPSC was re-fixed/revised as per order
under Annexure-9 at Rs.80,000/- (fixed) per month reduced by the gross
amount revised pension. The petitioner, however, being a Member of the
OPSC has not been extended such benefit even though there is a revision of
her previous pay scale as per Resolution of Health and Family Welfare
Department dated 03.03.2010. Her pension also has not been revised as per
the revised scale. This definitely amounts to discrimination. We are
therefore, of the view that the petitioner is entitled to the proportionate
revision of her pay of Rs.19,500/- as per revision of pay scale under
resolution at Annexure-10 and also revision of her pension in accordance
with such revision of pay should also be done and her pay be fixed by
deducting such revised pension from her revised pay with effect from
01.01.2006 and be paid to her. The whole exercise shall be completed within
a period of three months from today.
The writ application is accordingly allowed partly to the extent
indicated above.
Writ petition partly allowed.
641
2013 ( I ) ILR - CUT- 641
L. MOHAPATRA, J & B.K.PATEL, J.
W.P.(C) NO. 7753 OF 2009 (With Batch) (Dt.23.12.2011)
AKSHAYA KU. SWAIN & ORS.
..Petitioners
.Vrs.
ORISSA LEGISLATIVE
ASSEMBLY & ORS.
..Opp.Parties
ODISHA LEGISLATIVE ASSEMBLY SECRETARIAT (RECRUITMENT &

CONDITIONS OF SERVICE) RULES, 1983 R-10.
Appointment in three posts of watch and ward in the Odisha
Legislative Assembly - Favouritism in appointment Action challenged.
As per Rule 10 Speaker shall Constitute a Selection Committee
to advise the Secretary for appointment to Class-III and Class-IV posts
Initially the committee was constituted as per rules but after one of
its members was allowed to officiate as Secretary Orissa Legislative
Assembly, continuance of such committee was in contravention of
Rule 10 Secondly though office note shows that only 32 candidates
appeared in the interview preparation of a panel of 36 selected
candidates creates serious doubt in the process of selection Held,
entire selection process is vitiated, hence quashed It is open for the
Orissa Legislative Assembly to fill up the posts through a fresh
selection.
(Paras 6,7)
For Petitioner
- M/s. Budhadev Routray, D. Routray, D.Mohapatra,

S.Das, S.Jena, D.K.Mohapatra & P.K.Sahoo.
Miss Deepali Mohapatra.
For Opp.Parties - M/s.
Milan Kanungo, M. Verma & S.K.Mishra,

(for Opp.Party No.1)
M/s. J.Sengupta, D.K.Panda, G.Sinha, A. Mishra &
S. Mishra (for Intervenors).
M/s. S.N.Das M/s. B.B. Routray, R.P. Dalai (for

Intervenors) M/s. M. Verma &
L.N.Rayatsingh
L.MOHAPATRA, J.
All the three writ petitions relate to selection of
candidates for appointment to the post of Watch and Ward in the Orissa
Legislative Assembly. W.P.(C) No.7753 of 2009 and W.P.(C) No.3229 of
642
[2013]
2004 have been filed by the unsuccessful candidates challenging the

selection whereas W.P.(C) No.4744 of 2009 has been filed by the
successful candidates praying for issuance of appointment letters.
2.
The Orissa Legislative Assembly Secretariat issued an
advertisement inviting applications for appointment to different posts
including three posts of Watch and Ward. Out of the said three posts meant
for Watch and Ward, one was for unreserved male candidate, one for SEBC
male candidate and one for SEBC woman candidate. In pursuance of the
said advertisement, the petitioners in all the three writ petitions and others
submitted their applications for such appointment. A written test was
conducted and the selected candidates were also subjected to a viva voce
test. In relation to selection of candidates to different posts as advertised,
there were serious allegations of favouritism covered by Media for which the
Honble Speaker of the Assembly appointed a retired Honble Judge of this
Court as Commission of Enquiry in exercise of powers conferred under
Section 3, sub-Section (1) of Section 5 of the Commission of Enquiry Act,
1952 and a notification was issued in the gazette. On the basis of an opinion
given by the Advocate General questioning the legality of the aforesaid
notification, the State Government in exercise of the same power appointed
Honble Shri Justice Chitta Ranjan Pal, a retired Judge of this Court as
Commission of Enquiry with effect from 22.7.2004 to enquire into and report.
The said decision of the State Government was notified and published in the
extraordinary gazette dated 15.9.2004. Some of the unsuccessful
candidates including the petitioners sent affidavits to the Commission for
necessary verification/ scrutiny of all the Examination records relating to
appointment to the posts of Receptionist Clerk, Watch and Ward. When the
matter stood thus, the Honble Speaker filed W.P.(C) No.905 of 2007
questioning the jurisdiction of the State Government in appointing a
Commission of Enquiry to enquire into the affairs of the Orissa Legislative
Assembly and prayed for quashing the order dated 10.1.2007 passed by the
Commission to the effect that the allegation of favouritism shall be decided
in the final report. The aforesaid writ petition was allowed by this Court
holding that the notification dated 15.9.2004 appointing the Commission with
retrospective effect from 22.7.2004 is illegal. The unsuccessful petitioners,
therefore, had no other option except filing the above two writ petitions.
3.
Shri Budhadev Routray, the learned Senior Counsel appearing for
the petitioner in W.P.(C) No.7753 of 2009 and Miss Dipali Mohapatra, the
learned counsel appearing for the petitioner in W.P.(C) No.3229 of 2004
challenged the selection of candidates to the post of Watch and Ward
basically on two grounds.
643
A K. SWAIN -V- ORISSA LEGISLATIVE ASSEMBLY
[L.MOHAPATRA, J]
(1) The constitution of the Selection Committee was in contravention

of the relevant rules.
(2) Manipulations have been made in the answer sheets in order to
show favour to the selected candidates.
4.
So far as the first ground is concerned, the learned counsel
appearing for the petitioners in the above two writ petitions drew attention of
the Court to the Orissa Legislative Assembly Secretariat (Recruitment and
Conditions of Service) Rules, 1983 and referring to Rule 10, it was
submitted by the learned counsel for the petitioners in the said two writ
petitions that under the said Rule, the Speaker shall constitute a Selection
Committee to advise Secretary in the matter of appointment to be made to
the Class III and Class IV posts of the service by direct recruitment and by
promotion. The Committee shall consist of more than one senior Officer of
the Secretariat, other than the Secretary. Rule 10 of the aforesaid Rules is
quoted below for convenience:
10. (1) The Speaker shall constitute a Selection Committee to
advise Secretary in the matter of appointment to be made to the
Class III and Class IV posts of the service by direct recruitment and
by promotion.
(2) The Committee shall consist of more than one senior officer of
the Secretariat, other than Secretary.
Provided that the services of an expert to aid to the committee in the
matter of selection of candidates for appointment may be
requisitioned as and when directed by the Speaker.
(3) The Selection Committee may conduct tests and prepare list of
candidates as per merit for direct recruitment to the post in the
service.
(4) The Selection Committee for recommending persons for
appointment by promotion shall consider the C.C.Rs. of all eligible
persons and prepare a list of candidates on the basis of merit and
suitability with due regard to seniority.
The learned counsel further referred to Annexure-15 series attached
to the rejoinder affidavit filed in W.P.(C) No.7753 of 2009 and submitted with
reference to the office note that initially a Selection Committee had been
constituted on 30.6.2003 and Shri K. Samal who was earlier working as
644
[2013]
Joint Secretary was included as one of the members of the Selection

Committee but he had been promoted to officiate as Secretary on
12.11.2002 and therefore, in terms of Rule 10 of the Orissa Legislative
Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1983,
he could not have been a member of the Selection Committee. The
Selection Committee having been constituted in contravention of the
aforesaid Rules, the entire selection process is vitiated.
So far as manipulation in the answer sheet is concerned, this Court
had called upon the learned counsel appearing for the Orissa Legislative
Assembly to produce the records but it was submitted before the Court that
the said records have been submitted before Justice C.R. Pal Commission.
The learned counsel for the State intimated the Court that records have
been received from the Orissa Legislative Assembly by the Commission but
the answer sheets are not available in the record. We, therefore, called
upon the learned counsel to produce the records and on verification of
records we also did not find the answer sheets. Under these circumstances
whether an adverse inference can be drawn against the Orissa Legislative
Assembly or not has to be taken note of at the time of dealing with this
submission of the learned counsel for the petitioners appearing for the
unsuccessful candidates.
5.
The learned counsel appearing for the Orissa Legislative Assembly
and the learned counsel appearing for the successful candidates submitted
that though Shri K. Samal had been promoted to officiate as the Secretary
by the time the Selection Committee was constituted, he had expressed his
unwillingness to participate in the selection process and therefore, his
inclusion in the Selection Committee has not materially affected the
selection process. It was also contended by the learned counsel appearing
for the said parties that the answer sheets had been submitted before the
Commission and if the same are not available in the record of the
Commission, no adverse inference can be drawn against the Orissa
Legislative Assembly for non-production of the answer sheets.
6.
Out of the two grounds taken by the learned counsel appearing for
the unsuccessful candidates, if the petitioners succeed in the first ground
taken in the writ petition, it may not be necessary to consider the second
ground. As quoted earlier Rule 10 of the aforesaid Rules clearly provides
that the Selection Committee shall consist of more than one senior officer of
the Secretariat, other than the Secretary. From Annexure-15 series attached
to the rejoinder filed in W.P.(C) No.7753 of 2009 dated 6.9.2010 it appears
645
[L.MOHAPATRA, J]
that initially a Selection Committee had been constituted with the following
officers as its members:
1.
Shri K. Samal, Joint Secretary
2.
Shri B.K. Khadenga, Deputy Secretary
3.
Shri B.N. Bhoi, Under Secretary
4.
Shri A.K. Sarangi, Advisor to Speaker
Shri K. Samal, Joint Secretary having been allowed to officiate as

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

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

Orissa Legislative Assembly.
18.5.2003
The written test was conducted.
2.7.2003
The constitution of the new Selection Committee was

approved by the Honble Speaker.
28.1.2004
The interview was conducted.
It is, therefore, clear that on the date the written test was conducted
Shri K. Samal, who was a member of the Selection Committee was working
as the Secretary of the Orissa Legislative Assembly and accordingly
646
[2013]
constitution of the said Selection Committee and continuance thereof even

after Shri K. Samal was allowed to officiate as Secretary was in
contravention of Rule 10 of the aforesaid Rules. The question as to whether
he participated in the selection process or not is immaterial as the
constitution of the Selection Committee though initially was in accordance
with the Rules had become invalid after Shri K. Samal was allowed to
officiate as the Secretary of the Orissa Legislative Assembly. Written test
had been completed by the time the new Selection Committee was
constituted. Therefore, on this ground alone, both the writ petitions, i.e.,
W.P. (C) No.7754 of 2009 and W.P.(C) No.3229 of 2004 have to succeed.
Apart from the above illegality, another interesting feature has also
come to our notice. From Annexure-8 series attached to the writ petition in
W.P.(C) No.7753 of 2009 it appears that for three posts of Watch and Ward,
850 number of candidates were called for written test and 36 number of
candidates were called for viva voce test. 32 number of candidates
appeared at the viva voce test held on 28.1.2004. Though 32 candidates
appeared in the viva voce test, the list of selected candidates shows that 36
candidates had been selected on the basis of the marks secured in the
written test and the interview. Annexure-9 series indicates names, roll
numbers and the marks secured by the said 36 candidates both in written
test and interview. When the office note clearly shows that 36 numbers of
candidates were called for viva voce test out of whom 32 only appeared in
the viva voce test, it is not understood as to how a panel of 36 selected
candidates was prepared on the basis of the marks obtained in the written
test and the interview. If the office note is correct, 4 candidates who had not
appeared in the interview have been included in the list of selected
candidates. Names of both the petitioners in W.P.(C) No.4744 of 2009 find
place in the list of selected candidates. The learned counsel for the Orissa
Legislative Assembly could not offer any explanation as to how a panel of
36 candidates had been prepared on the basis of marks obtained in the
written test and interview when it is the case of the Orissa Legislative
Assembly that only 32 candidates appeared in the interview. For the
reasons stated above, the writ petition has to succeed on the following two
grounds:
(1) Though the Selection Committee had initially been constituted in
terms of Rule 10 of the Orissa Legislative Assembly Secretariat
(Recruitment and Conditions of Service) Rules, after one of its
members Shri K. Samal was allowed to officiate as Secretary of the
Orissa Legislative Assembly, the Selection Committee should have
been
reconstituted. The same Selection Committee having
647
[L.MOHAPATRA, J]
continued till the written examination was over, continuance of such

Selection Committee is in contravention of Rule 10 of the aforesaid
Rules.
(2) Though the office note clearly shows that only 32 candidates
appeared in the interview, a panel of 36 selected candidates has
been prepared on the basis of marks obtained in the written test and
the interview.
We, therefore, do not feel it necessary to go into the second ground
taken by the learned counsel appearing for the unsuccessful candidates.
7.
For the reasons stated above, we hold that the entire selection
process for selection of three candidates to be appointed against the three
posts advertised for Watch and Ward is vitiated and accordingly quashed. It
is open for the Orissa Legislative Assembly to fill up the posts through a
fresh selection. W.P.(C) No.7753 of 2009 and W.P.(C) No.3229 of 2004 are
consequently allowed and W.P.(C) No.4744 of 2009 is dismissed. The
records produced by the learned counsel for the State be immediately
returned to the office of the Justice C.R. Pal Commission.
WP(C) No.7753/09 & 3229/04 allowed.
WP(C) No.4744/09 dismissed.
648
2013 ( I ) ILR - CUT- 648
L. MOHAPATRA, J & C.R.DASH, J.
W.P.(C) NO.9810 OF 2012 (Dt.10.10.2012)
UMA SANKAR MISHRA & ANR.
.Petitioners
.Vrs.
CHIEF MANAGER, BANK OF INDIA & ANR.
.Opp.Parties
SECURITIZATION & RECONSTRUCTION OF FINANCIAL ASSETS AND

ENFORCEMENT OF SECURITY INTEREST ACT, 2002 (in shortSARFAESI ACT,2002) S.17 (3)
Appeal Jurisdiction Held, Tribunal has power to adjudicate
whether steps taken by the secured creditor U/s.13 (4) of the SARFAESI
Act is in accordance with provisions in the Act and the Rules and the
action taken under the said provision is valid or not It has also power
to pass any stay/interim order subject to the conditions as it may deem
fit and proper.
In this case petitioners case is that they had paid the entire
dues to the Op-Bank prior to sale of the mortgaged property and they
entitled to get refund of Rs.3 lakhs If the petitioners case is accepted
sale of the mortgaged property becomes invalid in the eye of law and
the Bank had no authority to sale the mortgaged property Held,
observation of the Tribunal that it can only examine the steps taken by
the secured creditor U/s.13(4) of the SARFAESI Act is not correct.
(Para 10)
Case laws Referred to:1.AIR 2004 SC 2371
2.AIR 2012 SC 1727
: (Mardia Chemicals Ltd.-V- Union of India & Ors.)

: (Maria Margarida Sequeria Fernandes & Ors.-VErasmo Jack De Sequeria)
For Petitioners - M/s. Mihir Kumar Mallick, B.K. Mohanty, J. Sahu,

B.M.Mohapatra, N. Das & D. Solanki.
For Opp.Parties - M/s. L.Dash, J.P.Behera & A.K.Dash,
(for O.P.1)
M/s. K.N. Parida, B. Mohanty & N.K.Mohanty,
(for O.P.2).
649
U. S. MISHRA -V- CHIEF MANAGER, BANK OF INDIA
[L.MOHAPATRA, J]
L. MOHAPATRA.J.
This writ application is directed against the order
dated 30.4.2011 passed by the Debts Recovery Tribunal, Cuttack in
S.A.No.37 of 2011 as well as the order dated 30.4.2012 passed by the
Tribunal in O.A.No.224 of 2010.
2.
Case of petitioners is that they had taken loan from different Banks
and all these loans were taken over by the opposite party-Bank and an
amount of Rs.1,46,17,562.00 was the only debit at one time but the account
was treated as C.C. Account. The petitioners had already paid
Rs.2,05,81,750.25 by 9.9.2011. In spite of the same, the opposite partyBank had made a demand of Rs.39,87,933.25 in the notice under Section
13(2) of the SARFAESI Act and the petitioners had paid a sum of Rs.30.75
lakhs against the payment made inclusive in Rs.2,05,81,750.25. However,
the Bank without taking the note of the same took step under Section 13(4)
of the SARFAESI Act showing a demand of Rs.9,12,933.25. According to
the petitioners, the aforesaid amount of Rs.9,12,933.25 was to be adjusted
against Rs.13,11,734.75 already paid and the balance amount of
Rs.3,98,801.11 should have been returned by the Bank to the petitioners.
However, when the Bank filed Original Application No.224 of 2010 for
recovery of its dues before Debts Recovery Tribunal, petitioners filed written
statement taking all these grounds. Had the Original Application been
adjudicated with reference to the records of the Bank, it could have been
found that all the dues of the Bank had been paid and the petitioners were
entitled to get return of Rs.3,98,801.00. Without proceeding in the Original
Application, the Bank took step under Section 13(4) of the SARFAESI Act,
sold the mortgaged property in public auction, realized the so-called dues
and ultimately approached the Tribunal praying for withdrawal of the
Original Application on the ground that the entire dues of the Bank have
been recovered through auction sale. Challenging the action taken by the
Bank under Section 13(4) of the SARFAESI Act, the petitioners had filed
S.A.No.37 of 2011. The said SARFAESI Appeal was dismissed on
30.4.2011 on the ground that the grounds taken by the petitioners in the said
appeal did not come within the scope of Section 17 of the SARFAESI Act
and no illegality having been found in the procedure adopted by the opposite
party-Bank, the Tribunal cannot adjudicate the dispute raised before it by the
petitioners
The opposite party-Bank appeared in the SARFAESI Appeal and
filed counter affidavit stating therein that the account of the petitioners was
declared N.P.A. on 30.11.2008 and notice under Section 13(2) of the
SARFAESI Act was issued on 4.12.2008 demanding a sum of
Rs.39,87,933.25 as on 3.12.2008. The petitioners did not file any objection
650
[2013]
nor paid the demanded amount and, accordingly, notice under Section 13(4)
of the SARFAESI Act, was published on 11.8.2009. After publication of the
said notice, the petitioners requested the Bank not to proceed under the
SARFAESI Act as they were willing to pay the dues of the Bank and,
accordingly, time was granted to them. Petitioners having failed to pay the
amount, the Bank intimated them that it would proceed under Section 13(4)
of the SARFAESI Act. In compliance of the said letter, petitioners requested
the Bank on 21.9.2010 for settlement of account at Rs.20.00 lakhs under
O.T.S. Scheme and grant three months time, but the demand made by the
Bank was not disputed. The petitioners also filed W.P.(C) No.16394 of 2010
with a prayer to direct the Bank to consider their O.T.S. proposal and not to
proceed under the SARFAESI Act. By order dated 24.9.2010, this Court
directed the petitioners to deposit a sum of Rs.9.00 lakhs within one month,
but due to non-compliance of the said order, the writ application was
dismissed on 9.11.2010 and the interim order of stay was vacated. After
dismissal of the writ application, the Bank proceeded under the SARFAESI
Act and took over possession of the mortgaged property on 29.1.2011. At
that stage, the petitioners again submitted a proposal for settlement of the
account on payment of Rs.30.00 lakhs, but the Bank did not accept the
same. The petitioners again enhanced their offer to Rs.45.00 lakhs and
thereafter to Rs.51.00 lakhs in March, 2011. Though they promised to pay
the said amount within fifteen days, after acceptance of the said offer by the
Bank, they failed to deposit the amount, as a result of which, the Bank
revoked the compromise and sale notice was published in September, 2011.
The property was sold to the highest bidder in public auction and after
adjustment of the dues of the Bank, the balance amount was paid to the
petitioners. Therefore, nothing remained to be decided in the Original
Application filed by the Bank and, accordingly, permission was sought for
withdrawal of the same.
3.
The question raised before the Tribunal was as to whether the
defence of the petitioners taken in the Original Application filed by the Bank
for recovery of its dues could be considered in the appeal filed by them
under Section 17 of the SARFAESI Act. The Tribunal in the impugned order
held that under Section 17 of the SARFAESI Act, the Tribunal is only called
upon to examine as to whether the provisions contained in the SARFAESI
Act and Rules made therein have been followed by the Bank or not. The
Tribunal cannot go beyond the scope of section and adjudicate the dispute
raised by petitioners in appeal filed under Section 17 of the SARFAESI Act.
4.
Shri M.K.Mallick, learned Senior Counsel appearing for the
petitioners drew attention of the Court to Section 17 of the SARFAESI Act
651
[L.MOHAPATRA, J]
and submitted that in an appeal filed under the said provision the Tribunal is
not only required to see as to whether the provisions contained in the Act
and Rules made therein have been followed by the Bank or not, it has to
also see as to whether sale of the mortgaged property was justified or not. In
the event, the Tribunal comes to a conclusion that sale of the mortgaged
property was not justified, it can direct restoration of the mortgaged property
to the borrower or the guarantor, as the case may be. It was further
submitted by Shri Mallick, learned Senior Counsel appearing for the
petitioners that had the Original Application been adjudicated on contest, the
petitioners could have proved that the entire dues of the Bank had already
been paid by them and on the other hand, they are entitled to refund of more
than Rs.3,00,000/- which had been paid in excess.
5.
Learned counsel appearing for the Bank submitted that jurisdiction of
the Tribunal under Section 17 of the SARFAESI Act is limited and it cannot
adjudicate the present dispute raised by the petitioners. The petitioners
having failed to deposit the compromise amount, there was no option left for
the Bank except taking recourse to Section 13(4) of the SARFAESI Act and
selling the property in public auction. The total outstanding dues of the Bank
having been recovered from the auction purchaser, nothing remained to be
decided in the Original Application filed by the Bank and, accordingly, the
Tribunal was justified in granting permission for withdrawal of the Original
Application.
6.
The question to be adjudicated in this writ application is the extent of
jurisdiction of the D.R.T. under sub-section 3 of Section 17 of the SARFAESI
Act, 2002. The said provision for convenience is quoted below:If, the Debts Recovery Tribunal, after examining the facts
and circumstances of the case and evidence produced by the parties,
comes to the conclusion that any of the measures referred to in subsection (4) of Section 13, taken by the secured creditor are not in
accordance with the provisions of this Act and the rules made
thereunder, and require restoration of the management of the
secured assets to the borrower or restoration of possession of the
secured assets to the borrower, it may by order, declare the recourse
to any one or more measures referred to in-sub-section (4) of Section
13 taken by the secured assets as invalid and restore the possession
of the secured assets to the borrower or restore the management of
the secured assets to the borrower, as the case may be, and pass
such order as it may consider appropriate and necessary in relation
652
[2013]
to any of the recourse taken by the secured creditor under subsection (4) of section 13.
7.
A bare reading of the provision shows that in an appeal filed under
Section 17 of the SARFAESI Act, the Tribunal has to adjudicate as to
whether steps taken by the secured creditor under sub-section 4 of Section
13 of the SARFAESI Act are in accordance with provisions contained in Act
and Rules made therein or not. In addition to, the Tribunal can also examine
as to whether the action taken under Section 13(4) of the SARFAESI Act by
the secured creditor against the secured assets is valid or not. Therefore, the
observation of the Tribunal that in the said provision it can only examine the
steps taken by the secured creditor under Section 13(4) of the SARFAESI
Act in terms of the provisions contained in the Act and Rules made therein or
not, does not appear to be correct.
8.
In this connection, reference may be made to a decision of the
Honble Supreme Court in the case of Mardia Chemicals Ltd. Vrs. Union
of India and others reported in AIR 2004 SC 2371. Analyzing Sections
13(2), 13(4) and Section 17 of the SARFAESI Act, 2002, the Court made the
following observation in paragraphs 80 and 81 of the judgment. The said
observations are quoted below:Under the Act in consideration, we find that before taking
action a notice of 60 days is required to be given and after the
measures under Section 13(4) of the Act have been taken, a
mechanism has been provided under Section 17 of the Act to
approach the Debt Recovery Tribunal. The above noted provisions
are for the purposes of giving some reasonable protection to the
borrower. Viewing the matter in the above perspective, we find what
emerges from different provisions of the Act, is as follows:1.
Under sub-section (2) of Section 13, it is incumbent upon the secured

creditor to serve 60 days notice before proceeding to take any of the
measures as provided under sub-section (4) of Section 13 of the Act.
After service of notice, if the borrower raises any objection or places
facts for consideration of the secured creditor, such reply to the
notice must be considered with due application of mind and the
reasons for not accepting the objections, howsoever brief they may
be, must be communicated to the borrower. In connection with this
conclusion we have already held a discussion in the earlier part of
the judgment. The reasons so communicated shall only be for the
purposes of the information/knowledge of the borrower without giving
653
[L.MOHAPATRA, J]
rise to any right to approach the Debt Recovery Tribunal under

Section 17 of the Act, at that stage.
2.
As already discussed earlier, on measures having been taken under

sub-section (4) of Section 13 and before the date of sale/auction of
the property it would be open for the borrower to file an
appeal(petition) under Section 17 of the Act before the Debt
Recovery Tribunal.
3.
That the Tribunal in exercise of its ancillary powers shall have

jurisdiction to pass any stay/interim order subject to the condition as it
may deem fit and proper to impose.
4.
In view of the discussion already held on this behalf, we find that the
requirement of deposit of 75% of amount claimed before entertaining
an appeal (petition) under Section 17 of the Act is an oppressive,
onerous and arbitrary condition against all the canons of
reasonableness. Such a condition is invalid and it is liable to be
struck down.
5.
As discussed earlier in this judgment, we find that it will be open to

maintain a civil suit in civil court, within the narrow scope and on the
limited grounds on which they are permissible, in the matters relating
to an English mortgage enforceable without intervention of the Court.
In view of the discussion held in the judgment and the findings and
directions contained in the preceding paragraphs, we hold that the borrowers
would get a reasonably fair deal and opportunity to get the matter
adjudicated upon before the Debt Recovery Tribunal. The effect of some of
the provisions may be a bit harsh for some of the borrowers but on that
ground the impugned provisions of the Act cannot be said to be
unconstitutional in view of the fact that the object of the Act is to achieve
speedier recovery of the dues declared as NPAs and better availability of
capital liquidity and resources to help in growth of economy of the country
and welfare of the people in general which would sub-serve the public
interest.
9.
It is the specific case of the petitioners that they had paid the entire
dues of the opposite party-Bank and on the other hand, they were entitled to
be refund of more than Rs.3,00,000/-. If such contention of the petitioner is
correct, sale of the mortgaged property was neither justified nor valid and
validity of such sale at the instance of the Bank was required to be looked
into by the Tribunal in the appeal filed under Section 17 of the SARFAESI
654
[2013]
Act. Though the Bank has disputed the same, in our view, such dispute
could be adjudicated by the Tribunal in order to find out the validity of the
sale effected in a public auction. From the reading of the entire appeal filed
before the Tribunal, it appears that the following three issues were raised
before the Tribunal for adjudication in the appeal:i)
Whether Rs.2,10,81,750.25( actually Rs.2,14,98,647.25) discharged

the Loan of Rs.1,46,17,562.25 at the Banks dues of Rs.1,92,70,005,
ii)
Whether Rs.18,11,745/- was/is excess paid to be returned to the

petitioners or otherwise adjustable,
iii)
Whether 9% interest was chargeable by the Bank on the outstanding

of Rs.39,87,933.25 of the Sec.13(2) Demand or the OA Demand of
Rs.49,93,364/- to reduce Rs.1,92,70,005/- as per AIR 2001 SC 3095,
which could have been done by the DRT Cuttack, but was not done,
on the contrary the learned DRT has ignored to decide OA No.224/10
on the plea of withdrawn by the Bank and has held as per the Madras
Full Bench Decision that it has no powers to determine u/s 17(3) in
the SA.
10.
The Tribunal has not addressed any one of the issues solely on the
ground that under Section 17 of the SARFAESI Act, it can only examine as
to whether the opposite party-Bank has followed the procedure laid down in
the Act and the Rules made thereunder. As stated earlier, if the petitioners
case that they had paid the entire dues of the Bank prior to sale of the
mortgaged property is accepted, such sale of the mortgaged property
becomes invalid in the eye of law and the Bank had no authority to sale the
mortgaged property having received its entire dues. In order to examine the
above, it was necessary on the part of the Tribunal to adjudicate the three
issues raised before it in the appeal and it is well within the competency of
the Tribunal to adjudicate such issues. These issues were also raised in the
written statement filed in the Original Application by the Bank before the
Tribunal, but could not be adjudicated as the Bank withdrew the Original
Application having realized its dues by putting the mortgaged property in a
public auction. Accordingly the issues raised by the petitioners remained
unanswered in both the proceedings. In this connection, though a decision of
the Honble Supreme Court in the case of Maria Margarida Sequeria
Fernandes and others Vrs. Erasmo Jack de Sequeria reported in AIR
2012 Supreme Court 1727 may not have any direct nexus not being a
decision on Securitization Act, the principles laid down relating to the
655
[L.MOHAPATRA, J]
administration of justice has relevance. Accordingly, the Tribunal shall also

take note of the said decision while deciding the appeal.
Since the Tribunal is also competent to pass interim orders in terms
of the decision in the case of Mardia Chemicals Ltd.(Supra), if an
application for any interim order is filed by the petitioners, the same shall
also be considered on its own merit.
11.
We, therefore set aside the order in Annexure-1 passed by the
Tribunal and remit the matter back to the Tribunal to decide the appeal
afresh and answer the three issues raised by the petitioners with a reasoned
order.The writ application is accordingly disposed of.
656
2013 ( I ) ILR - CUT- 656
M. M. DAS, J.
CRLMC. NOS. 1045 & 1647 OF 2008 (Dt.14.11.2012)
BHAKTA HARI MOHANTY & ANR.
.Petitioners
.Vrs.
BISHNU CHARAN SWAIN & ANR.
.Opp.Parties
A. PENAL CODE, 1860 S.499

Defamation Exception Accusations and Imputations made in
good faith is not defamatory in view of 8th & 9th exceptions to Section
499 I.P.C. Held, statement made by an advocate in different pleadings
in course of a judicial proceeding even if alleged to have been made
maliciously, can not be held to be defamatory.
In this case accused No.1 being an advocate of accused Nos.2 &
3 filed pleadings with regard to the subject matter of dispute
Complainant-O.P. filed complaint case alleging derogatory words used
in the pleadings causing injury to his prestige Magistrate took
cognizance Order challenged Held, Magistrate has not applied his
mind to the facts of the case and the law applicable there to Order
taking cognizance is quashed.
(Para 12,14,17)
B. CRIMINAL PROCEDURE CODE, 1973 S.482
Magistrate took cognizance of the offences U/ss. 500, 203, 205
I.P.C. without applying his judicial mind to the facts of the case and
materials before him No case is made out with regard to the
commission of the above offences by the accused persons If the
impugned order stands it will amount to abuse of the process of the
Court Held, impugned order as well as the complaint case are
quashed.
(Para 17 )
Case laws Referred to:1.(1892) 1 QB 43, 451
2.(1883)11 QBD 588
3.(1855)5 1r CLR 171
4.(1992)ILR 1 Pat 371
: (Royal Aquarium etc.-V- Parkinson)

: (Munster-V- Lamb)
: (The Queen-V- Kierman)
: (Maharaj Kumar Jagat Mohan Nath Sah Deo-VKalipada Ghosh).
657
BHAKTA HARI MOHANTY-V- BISHNU CH. SWAIN
5.ILR (1945) All 702
6.AIR 1998 SC 128
[M. M. DAS, J.]
: (Sheodatt Sharma-V- Ram Swarup Sastry)

: (M/s. PEPSI Foods Ltd.-V- Special Judicial
Magistrate & Ors.)
For Petitioner - M/s. R.K.Mohanty, D.Mohanty, S.K.Sahoo, A.P.Bose,

D.P.Pattnaik, D.Varadwaja & P.Jena.
For Opp.Party - M/s. B.Baug, S.Dash, P.C.P.Das.
For Petitioner - M/s. S.K.Sahoo, G.Sahoo, M.K.Mallick & D.Pattnaik
For Opp.Parties-M/s. S.Rath Addl. Govt. Advocate (for O.P.1)
M. M. DAS, J.
Both the aforesaid criminal misc. cases are
applications under Section 482 Cr.P.C. arising out of one complaint case,
being I.C.C. No. 2985 of 2007 pending before the learned S.D.J.M.,
Bhubaneswar. In both the criminal misc. cases, the petitioners haveprayed
for quashing the order dated 27.3.2008 passed in the complaint case taking
cognizance of the offences under Sections 500/203/205 I.P.C. and issuing
process to the accused persons. The petitioners in both the cases are two of
the accused persons in the said complaint case.
2.
To appreciate the rival contentions raised by the learned counsel for
the respective parties, it is felt appropriate to state the facts giving rise to
these cases, in brief, which are as follows:
The dispute started with regard to assertion of title over a piece of
land situated in village Damana under Chandrasekharpur P.S.,which stood
recorded in the name of Tilotama Samal belonging to the said village, who is
dead. A group of persons from village Damana claiming to be the legal heirs
of Tilotama Samal have transferred some portions of the property to different
persons. Similarly, a group persons from village Dihabalarampur under
Patkura P.S. in the district of Kendrapada claiming to be the successor of
late Tilottama Samal have also transferred the very same property to
different persons. In course of mutation in the names of the alleged
successors of late Tilottama Samal and their respective purchasers, when
the matter was pending before the Board of Revenue, persons belonging to
the village Damana engaged the petitioner, Shri Bhaktahari Mohanty, in
CRLMC No. 1045 of 2008 as their Advocate, who argued their cases before
the Board of Revenue. Being unsuccessful, the matter was carried to this
Court in W.P.(C) No. 14783 of 2005. In the meantime, persons claiming to
be the successors of late Tilottama Samal belonging to the 2village
Dihabalarampur filed T.S. No. 349 of 2001 before the learned Civil Judge
(Junior Division), Bhubaneswar for establishing their right as legal heirs of
658
[2013]
recorded tenant Tilottama Samal. The writ petition was disposed of by this
Court by order dated 27.3.2006 with the observation that the order passed in
the mutation case by the Board of Revenue shall be subject to the decision
of the civil suit. After disposal of the writ petition, a number of purchasers,
who purchased the property from the alleged legal heirs of late Tilottama
Samal belonging to the village Damana, got themselves impleaded as
parties in the pending title suit. After being impleaded as defendants, they
have filed their written statements along with their respective counter claims.
Shri Bishnu Charan Swain, Advocate, who is the complainant in I.C.C. No.
2985 of 2007, appeared for the alleged legal heirs of late Tilottama Samal
belonging to the village Dihabalarampur and the purchasers from them. Shri
Swain holds a Power of Attorney on behalf of the said alleged legal heirs of
village Dihabalarampur and the transfers on their behalf were made by Shri
Swain as the Power of Attorney Holder. One Sudhansubala Sahoo had
purchased a piece of land which belonged to the recorded tenant Tilottama
Samal. Purchasers from the alleged legal heirs of late Tilottama Samal
belonging to the village Dihabalarampur who purchased the property through
the Power of Attorney Holder, Shri Bishnu Charan Swain, disputed the title of
the said Sudhansubala Sahoo for which she had filed C.S. No. 29 of 2002
before the learned Civil Judge (Senior Division), First Court, Bhubaneswar
for declaration of her title. After the suit proceeded for some time, the
plaintiff- 3Sudhansubala Sahoo engaged the petitioner, Shri Bhaktahari
Mohanty as her Advocate. An application was filed by the plaintiff in the said
suit to implead Shri Bishnu Charan Swain as defendant wherein several
instances of transfer made by Shri Swain as the Power of Attorney Holder
was cited. The learned Civil Judge (Senior Division), Bhubaneswar allowed
the plaintiffs prayer and impleaded Shri Swain as a defendant in the suit.
The original defendant being one Soubhagya Kumar Mishra prayed for
injunction in the suit upon which an order of status quo was passed. In the
interregnum, the plaintiff coming to know that one M/s. Z. Engineers, a
company, was the real contestant, impleaded the said company and its
Managing Director as defendant nos. 2 and 3 in the said suit and Shri Bishnu
Charan Swain continued to be defendant no. 4. Shri Swain has filed his
written statement, who was also appearing as an Advocate for the original
defendant no. 1 and also supported the case of defendant nos. 2 and 3. The
said Bishnu Charan Swain is a practising Advocate of this Bar and also a
partydefendant in the suit filed by Sudhansubala Sahoo i.e. C.S. No. 29 of
2002. I.C.C. No. 2985 of 2007 has been filed by the said Shri Bishnu Charan
Swain, Advocate, who in the meantime on an application being filed by him
has disengaged himself as an advocate for the original defendant no. 1 in
the above suit. Allegation has been made in the complaint petition that the
accused persons 2 and 3, who are ladies, namely, Smt. Basanti Manjari
659
[M. M. DAS, J.]
Satpathy and Smt. Sudhansubala Sahu, have filed false affidavit and the
accused no. 1, namely, Shri Bhakta Hari Mohanty has prepared the appeal
memo, written statement and 4amendment petition, which were filed in
different courts including this Court, defaming the complainant knowing fully
well that those are false in content but to vilify the character, honour and
prestige of the complainant and lower his prestige in the society. In those
pleadings and affidavits, certain derogatory words have been used
deliberately knowing the same to be false, thereby causing irreparable loss
to the complainant. All the accused persons are guilty of being authors and
propagators of those incriminating materials in open courts and before the
litigant public at large. The accused no. 1 (Shri Mohanty) who prepared the
appeal petition in Misc. Appeal No. 299 of 2001 stated and read over the
contents before this Court by which the complainant has been defamed. A
copy of the said appeal memo was annexed to the complaint petition. The
alleged defamatory statements made by the complainant were quoted in the
complaint petition. With regard to the other two accused persons, it has been
stated in the complaint petition that they are two ladies, who have filed their
affidavits through the accused no. 1-Shri Mohanty as their Advocate and
those affidavits were duly placed by the accused no. 1 in open Court with a
motive to harass the complainant and strengthen his stand, thereby lowering
the prestige of the complainant on such false statements. Allegation was
also made that derogatory statement has been made in the amendment
petition filed in the civil suit (C.S. No. 29 of 2002) on behalf of the plaintiff by
the accused no. 1, who is the Advocate for the plaintiff. The alleged
statements made in the misc. appeal as well as the amendment petition and
affidavits are as follows:
5Para-5 - That it further appears from the records that this Bishnu
Charan Swain had also obtained a Power of Attorney from Tilottama Samal
in 1982 by which time Tilottama was already dead. Obviously a false person
was set up as Tilotama Samal and from her as Power of Attorney was
obtained..
Para-6 ..More interestingly the death certificate filed to show that
Tilottama died in 19.3.92 dislcoses that Tilottama died at Tala Telengabazar,
Cuttack. Tala Telengabazar Cuttack is resident of the Power of Attorney
Holder and Advocate Sri Bishnu Charan Swain. As indicated above,
Tilottama of Chandrasekharpur, Bhubaneswar died on 5.6.67.
Para-7 ..There is no such record in favour of the other Tilottama
Samal of Dihabalarampur. Tilottama Samal of Chandrasekharpur
having died in 1967 could not have executed a Power of Attorney in 1982.
660
[2013]
Para-8 - It might be that Sri Bishnu Charan Swain misusing his

authority as an Advocate is trying to take advantage of the (illegible). It may
also be that there was actually no such person in Dihabalarampur in the
name of Tilottama Samal and the name has been invented for oblique ends.
There was no reason why Tilottama Samal of Dihabalarampur in the district
of Kendrapara shall die at Tala Telengabazar in the town of Cuttack ...
3.
The alleged statements made in the affidavit filed in W.P.(C) No.
14783 of 2005 are as follows:
Para-2 As a matter of fact, it is Sri Bishnu Charan nSwain who is
at the root of all the manipulationsIf Sri Bishnu Charan Swain was really
the son of Tilottama it is not understood why he did not appear for Tilottama
in the settlement camp, before the Settlement Commissioner and before the
Mutation Court. It is also worth noting that in none of these cases, the village
Dihabalarampur finds mention as the address of Tilottama.. The rest of
the materials in para-4, 5, 6 are also false evidence tendered before the
court and derogatory to the prestige of the complainant and intentionally
used as imputations and conveyed obliquely or indirectly, by way of question
and irony.
4.
The alleged statements made in the amendment petition filed by the
plaintiff in C.S. No. 29 of 2002, which are alleged to be defamatory, are as
follows:
(b)
The defendant no. 2, Tapan Kumar Mohanty, who appears to
be the Director of Z Engineer and Construction Pvt. Ltd. claims to
have purchased the property from one Siprarani Jena who had
purchased the same from Bishnu Charan Swain, Power of Attorney
Holder of one Tilottama Samal of Diba Balarampur in the District of
Kendrapara. It is, however, submitted that Tilottama Samal of Diba
Balarampur was not the owner of the suit property, which is situated
in village Damana (locally known as Chandrasekharpur) in the
District of Khurda. It appears that the above named Bishnu Charan
Swain taking advantage of his status as an Advocate, who was
appearing the Revenue Courts for the other co-sharer Uchhab Sahoo
has manipulated documents for an un-lawful gain.
(c)
That the plaintiff apprehends that in fact there is no Tilottama
Samal in village Diha Balarampur of Kendrapara District who could
have died on 19.3.1992 at Tala Telenga Bazar in the Town of
Cuttack. At any rate, Tilottama Samal of Damana not having sold the
661
[M. M. DAS, J.]
suit property to Siprarani Jena, the purchaser from her Tapan Kumar
Mohanty can not legitimately defeat the claim of the plaintiff. It now
appears that this Bishnu Charan Swain claiming to be the Power of
Attorney Holder of so called sons of Tilottama Samal of Diha
Balarampur has fought many cases against the purchasers from
Tilottama Samal or her heirs of Damana. No where the Record of
Right reflecting Tilottama Samal, wife of Dhanurdhar Samal of
Damana as owner of the suit property has been challenged as
incorrect. Tilottama Samal of Diha Balarampur or her so called sons
have never come to village Damana to possess the suit property or to
fight cases in the Revenue Courts. It is Sri Bishnu Charan Swain,
who has been running the show and the plaintiff apprehends that Sri
Swain has been the master of all manipulations and fraud. Many
official records also appear to have been manipulated. In view of all
this it is necessary that the suit should be decided in presence of Sri
Swain. He is, therefore, impleaded as a defendant in this suit.
(e)
That it is also appears that after procuring the fraudulent
deeds of sale Tapan Kumar Mohanty and many other purchasers of
the type with the active connivance of Sri Bishnu Charan Swain have
created many documents. 7All these being on the basis of the
registered documents, their validity will depend upon the
sustainability of the original transaction which again depends upon
the title of the vendors. Defendant No. 2, therefore, has not moved in
clean hands in as much as he is guilty of fraud and manipulation. He,
therefore, cannot defeat the title and possession of the plaintiff. It is
asserted here again that Tilottama Samal of Damana was the real
owner of the property and she has not sold it to Sipra Rani Jena, who
is the vendor of defendant no. 2.
(f)
That one Uchhab Sahoo of Damana is distant agent of
Tilottama Samal. He was assisting Tilottama Samal in the matter of
mutation and fixation of rent after abolition of the Zamindari. There
also Sri Bishnu Charan Swain as Advocate was appearing for
Uchhab Charan Sahoo who was claiming to be co-lessee and not for
Tilottama Samal. In this process the said Uchhab Sahoo produced a
copy of the order passed in M.C. Case No. 75 of 59-60 showing
fixation of rent in favour of both Uchhab Charan Sahoo and Tilottama
Samal. Now the plaintiff has come to learn that this certified copy is
also a fake one and in fact there is no such order. The forged copy
was produced only to satisfy the illiterate Tilottama Samal. At any
rate, Tilottama Samal of Damana being a tenant under the Zamindar
662
[2013]
her tenancy is protected u/s 8 of the O.E.A. Act, especially where her
name has been mutated in Tahasil Jamabandi and rent has been
accepted for her.
5.
The initial deposition given by the complainant before the learned
S.D.J.M., Bhubaneswar is as follows:
Initial statement of Sri Bishnu Charan Swain, aged about 74 yrs. S/o.
Lunjanath Swain of village Talatelanga Bazar, P.S. Purighat, Dist Cuttack
on S/A.
-----------I am the complainant of this case. I know all the three
accused persons. The alleged incident was a continuous one. The
accused persons used to publish affidavits & materials in diff. court of
law defaming me. Accused nos. 2 & 3 are the clients of accused no.
1. Accused no. 1 appeared for accused nos. 2 & 3 in different
litigations pending in different courts as I appeared against accused
nos. 2 & 3. In misc. appeal no. 299/2001 filed before Honble High
Court of Orissa, accused no. 1 has attacked my character, without
any affidavit of the parties. In para-4, he has given false informations
regarding agreement made with Aradhana Property Development
Pvt. 8Ltd.. Similarly the facts mentioned in para-5, 6, 7 & 8 are all
false which are derogatory to my character as a practicing Advocate
of the Bar. Accused no. 2 also has filed an affidavit before Board of
Revenue in OSS Case No. 1836/03 along with 28 other cases and
the said affidavit has been marked as Annexure 4 before the
Honble H.C. in W.P.(C) No. 14783/05. The para-3 of that petition is
blatantly false, fabricated and designed which clearly reveals my
name. The damaging paras are from para 3 to 7. All the relevant
documents have been filed (xerox copies) in this court today. The
accused no. 3 filed a petition u/o 6 R 17, before CJ(S.D.), BBSR in
Title Suit no. 29/02 using derogatory words against me in para 13 (b)
to (e) in proposed amendment. It is stated that for my illegal gain, I
have falsely manipulated the documents being the mastermind in
connivance with one Tapan Kr. Mohanty. All these are drafted by
accused no. 1. I enrolled in 1961. By this publication, I lost my
prestige, dignity and unable to maintain prestige against the public.
My family members were also shocked and ashamed. I am now
working as President of All Orissa Revenue Court Bar.
6.
Basing on the averments made in the complaint petition and the
initial deposition as well as the enquiry conducted under Section 202
663
[M. M. DAS, J.]
Cr.P.C., the learned S.D.J.M., Bhubaneswar has passed the impugned order
taking cognizance of the offences against the petitioners in both the Crl.
Misc. Cases and the other accused persons and issuing process.
7.
Mr. R.K. Mohanty, learned counsel appearing on behalf of the
petitioner (Shri Bhakta Hari Mohanty, Advocate) in CRLMC No. 1045 of 2008
contended that from the above scenario, it is apparent that the petitioner
(Shri Bhakta Hari Mohanty, Advocate) appeared in several cases on behalf
of the plaintiff in C.S. No. 29 of 2002 as a legal practitioner and the
statements made in the affidavits and the pleadings of the parties concerned
have been supported by verifications/affidavits by the concerned party. Thus,
the petitioner 9has not exposed any thing, which can be imputed personally
upon him. He further submitted that the alleged statements stated to be
defamatory have been made in the pleadings and affidavits, which are part
of the judicial records and the same cannot come under the definition of
Defamation. As the petitioner appeared as an Advocate, no personal
liability can be attributed to him from the statements made in the
pleadings/affidavits of the parties. He further urged that the complainant
except citing different portions of the pleadings and affidavits has made no
prima facie allegation with regard to the personal involvement of the
petitioner-Shri Bhakta Hari Mohanty, Advocate and such step has been
taken by the complainant to dissuade Shri Bhakta Hari Mohanty from
appearing in the litigation between the parties as an Advocate and no
offence whatsoever is made out in the complaint petition against the
petitioner Shri Bhakta Hari Mohanty.
8.
Learned counsel for the opp. parties in these Crl. Misc. Cases, on the
contrary, contended that after recording the initial statement of the
complainant, the learned S.D.J.M., Bhubaneswar conducted an enquiry
under Section 202 Cr.P.C. and only thereafter being satisfied about the
existence of a prima facie case with regard to commission of the offences
under Sections 500/203/205 I.P.C. has taken cognizance of the said
offences and directed issuance of process to the accused persons. Learned
counsel for the opp. parties also brought to the notice of this Court the
averments made in various pleadings and affidavits, which have been stated
in the complaint petition, as quoted above, in support of his contentions that
the 10petitioner (Shri Bhakta Hari Mohanty) in course of argument of the
misc. appeal as well as hearing of the other applications made derogatory
and defamatory submission against the complainant. Such defamatory
submission has been recorded in paragraph-6 of the judgment passed in
Misc. Appeal No. 299 of 2001 which has been reported in 2002 (I) OLR 52,
the relevant portion of which is as follows:
664
[2013]
.. On the other hand, Shri Mohanty argued with vehemence that

Sri Swain, learned counsel for the defendantrespondent nos. 1 and 2
was the brain behind to fabricate the documents with a view to grab
the suit property inasmuch as he has executed the sale deeds as
power-of-attorney holder of late Tilotama Samal stated to be his
natural mother and had obtained the death certificate of Tilotama
Samal from Cuttack Municipality after a long lapse of time. It was
also alleged that orders of some authorities have been interpolated to
show that Tilotama Samal was resident of Diha Balarampur under
Patkura police station and not a resident of village Damana or
Chandrasekharpur under Chandrasekharpur police station
9.
On the other hand, Shri Mohanty argued that Shri Bishnu Charan
Swain, the counsel who was appearing for the defendantsrespondents 1 and
2 was the brain behind the fabricated documentswith a view to grab the suit
property. Various case laws have been relied upon by Mr. R.K. Mohanty,
learned counsel appearing for the petitioner as well as Mr. Baug, learned
counsel appearing for the opp. parties. .
10.
Before considering the rival contentions of the learned counsel for
the respective parties, it would be appropriate to refer to the relevant
exceptions to the definition of defamation as given in Section 499 IPC. 8th
and 9th exceptions to Section 499 IPC refer to accusation made in good faith
against any person, to any of those, who have lawful authority over that
person with respect to the subject matter of 11accusation and with respect to
imputation on the character of another, provided that the imputation is made
in good faith for the protection of interests of the person making it, or of any
other person, or for the public good. No action of libel or slander lies whether
against the Judges, counsel, witnesses or parties, for words written or
spoken in the course of any proceedings, before any court recognized by
law, and this though the words written or spoken were written or spoken
maliciously, without any justification or excuse, and from personal illwill and
anger against the person defamed. As such words written or spoken in the
course of any proceeding are in good faith. (See Royal Aquarium etc. v.
Parkinson (1892) 1 QB 43, 451).
11.
The English Law with regard to a criminal action against the
Advocate for defamatory words spoken during the course of a judicial
proceeding is well settled that no action lies against an Advocate for
defamatory words spoken with reference to and in course of an inquiry
before a judicial Tribunal, although they are uttered by the Advocate
maliciously, and not with the object of supporting the case of his client and
665
[M. M. DAS, J.]
are uttered without any justification or even excuse and from personal ill-will
and anger towards the person defamed, arising out of a previously existing
cause and are irrelevant to every issue of fact which is contested before the
said judicial Tribunal. This was held in the case of Munster v. Lamb, (1883)
11 QBD 588. Counsels words are absolutely privileged, although he may
have exceeded his instructions. This was held in the case of The Queen v.
Kierman, (1855) 5 lr CLR 171. The Madras High Court and the Bombay
High Court are of the view that an Advocate cannot be proceeded against
either civilly or criminally for words uttered in his office as Advocate. He has
fullest liberty of speech in the course of a trial before a judicial Tribunal so
long as his language is justified by his instructions or by the evidence or by
the proceedings on the record. Mere fact that his words are defamatory or
that they ultimately turn out to be absolutely devoid of all solid foundation
would not make him responsible nor render him liable in any civil or criminal
proceedings. (See (1886) ILR 10 Mad 28 (FB) and (1899) 2 Bom. LR 3 (FB).
The Patna High Court in the case of Maharaj Kumar Jagat Mohan Nath
Sah Deo v. Kalipada Ghosh, (1992) ILR 1 Pat 371 has expressed similar
view asthe Madras and Bombay High Courts. The Allahabad High Court also
was of the same view in Sheodatt Sharma v. Ram Swarup Sastry, ILR
(1945) All 702.
12.
With regard to pleadings and affidavits also, it has been expressed in
several decisions in no uncertain terms, that, no action lies against a man for
a statement made in a pleadings or affidavit in course of a judicial
proceeding, of defamation, even if such statements are alleged to have been
made maliciously and without any reasonable or probable cause. However,
where affidavits contain scandalous matter, the court has jurisdiction to
direct for expunging the same.
13.
Keeping the above in view, this Court, proceeding to examine the
relevant portions of the averments made in the appeal memo, affidavit and
amendment petition which are alleged in the complaint petition to be
defamatory, finds that all the said averments, 13which are alleged to be
defamatory by the complainant have been stated in connection with the
claim of the party making such averments in the pleadings, more so, when
the complainant has been impleaded as a party in the said case, i.e., C.S.
No.29 of 2002.
14.
Over and above the fact that the said statements have been made in
various pleadings filed on behalf of the accused Nos.2 and 3 in different
proceedings, who were represented by the accused No.1 as their advocate,
a perusal of the said pleadings and statements do not prima facie show that
the same is defamatory and appears to have been made in good faith with
666
[2013]
regard to the subject matter of dispute in the said proceedings. It further

appears that except the vague allegation of the complainant and the
witnesses that when the accused No.1 was putting forth the case of his client
before this Court or the civil court or revenue court in course of argument,
uttered such words, by which the prestige of the complainant has been
lowered in the estimation of the public, no case of defamation prima facie
appears to have been made out against the petitioners in the above two
Criminal Misc. Cases, who are the accused persons in the complaint case.
15.
With regard to exercise of inherent power of this Court under Section
482 Cr. P.C., it is now well settled that an order taking cognizance of any
offence or issuing process, where absolutely no prima facie case is made
out against the accused persons, amounts to abuse of the process of law
and should be nipped at the bud, as otherwise the same would tantamount
to abuse of the process of the court.
16.
The Supreme Court, in the case of M/s. PEPSI Foods Limited v.
Special Judicial Magistrate and others, AIR 1998 SC 128 has expressed
its view that summoning of an accused in a criminal case is a serious matter.
Criminal law cannot be set into motion, as a matter of course. It is not that
the complainant has to bring only two witnesses to support his allegation in
the complaint to have the criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that he has applied his mind
to the facts of the case and the law applicable thereto. He has to examine
the nature of the allegation made in the complaint and the evidence both oral
and documentary in support thereof and would that be sufficient for the
complainant to succeed in bringing the charge home against the accused.
(emphasis supplied)
17.
Applying the above principle to the facts of the present case, this
Court is of the view that the learned court below, while passing the order in
the complaint petition on 27.03.2008 taking cognizance of the offences
under Sections 500/203/205 IPC and issuing process to the accused
persons (petitioners in the above Criminal Misc. Cases) has not applied his
judicial mind to the facts of the case and materials before him. Even if the
said materials are considered, this Court finds that there is absolutely no
case made out by the complainant with regard to commission of the above
offences by the accused persons and if the impugned order dated
27.03.2008 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No.2985
of 152007 is not quashed, the same will amount to abuse of the process of
law as well as process of the Court.
667
[M. M. DAS, J.]
18.
In the result, therefore, the order dated 27.03.2008 passed in the
aforesaid complaint case filed by the opposite party, taking cognizance of
the offence as stated above and issuing process against the petitioners
stands quashed. As a consequence, I.C.C. No.2985 of 2007 also stands
quashed. The Criminal Misc. Cases are accordingly allowed
Applications allowed.
668
2013 ( I ) ILR - CUT- 668
M. M. DAS, J.
R.S.A. NO. 462 OF 2006 (Dt.11.12.2012)
NARAYAN KEDIA
..Appellant
.Vrs.
PRASANTA KUMAR PATTNAIK
..Respondent
A. TRANSFER OF PROPERTY ACT, 1882 S.106

Tenancy Suit for eviction of a tenant by a Co-owner without
impeading other co-owners Maintainability Held, one of the
successors to the property while in jointness can maintain a suit
against the tenant for eviction from out of the joint property unless a
conflict between the Co-sharers is brought out on evidence.
In this case plaintiff-respondent filed the suit for eviction in the
absence of his four sisters who have joint interest in the property
Jurisprudentially it is not correct to say that a co-owner of a property is
not its owner He owns every part of the composite property along
with others and it cannot be said that he is only a part owner of the
property The position can be changed only when partition takes
place - The defendant has also not established through evidence any
conflict between the plaintiff and his sisters Held, Courts below are
correct in holding that the suit for eviction is maintainable at the behest
of the sole respondent-Plaintiff.
Paras 8,9)
(B. TRANSFER OF PROPERTY ACT, 1882 S.106
Tenancy Death of Original tenant - Plaintiff filed suit for
eviction impleading one of the co-tenants succeeded to the tenancy
and served notice on such co-tenant U/s.106 T.P. Act Validity of the
notice Held, it is construed to be a valid service in respect of all the
co-tenants No requirement to implead all the co-tenants as parties to
the suit.
(Para 11)
C. TRANSFER OF PROPERTY ACT, 1882 S.106
Tenancy Succession Plaintiff-respondent filed suit for
eviction in the absence of his co-owner sisters Whether he is
competent to issue
notice U/s.106 T.P.Act Held, the plaintiffrespondent having
669
NARAYAN KEDIA -V- P. KUMAR PATTNAIK
[M.M. DAS, J.]
assumed the character of the sole landlord was competent to issue

notice U/s.106 T.P. Act.
(Para 9)
2.AIR 1989 SC 1470
: (Sri Ram Pasricha-V- Jagannath & Ors.)

: (H.C. Pandey-V- G. C. Pal)
3.1995 Supp.(3) SCC 403 : (Karayadathil Kunhimoosa Manjerintha &

Anr.-V- Valiaparambath M.T. Kalliani (SMT) & Ors.)
For Appellant
- M/s. S.P. Mishra, S. Mishra, S.Dash, S. Nanda,

B. Mohanty & B. Prakash.
For Respondent - M/s. R.K. Mohanty, D.K. Mohanty, A.P. Bose,
S.N. Biswal, S.Mohanty, S.K. Mohanty,
P. Jena.
M.M. DAS, J.
This second appeal has been preferred against the
judgment and decree passed by the learned Addl. Civil Judge (Senior
Division), Dhenkanal in C.S. No. 123/106 of 2003 which was confirmed by
the learned District Judge, Dhenkanal in his judgment dated 21.11.2006
passed in R.F.A. No. 10 of 2004 with certain modifications in regard to the
quantum of damages decreed by the lower appellatecourt. The substantial
questions of law on which the second appeal has been admitted are as
follows:
1. Whether the suit for eviction is defective and not maintainable in the
absence of the four sisters of the respondent as parties when they have got
common/joint interest in the property, which is conflicting with that of the
respondent?
2.
Whether non-impletion of other co-tenants of the appellant renders
the decree in-executable and ineffective?
3.
Whether the notice under Section 106 of the T.P. Act terminating the
tenancy is defective for want of 15 clear days notice ending in a month?
4.
Whether the plaintiff alone was competent to issue notice under
Section 106 of the T.P. Act when the other co-owners and co-sharers have
not given
consent either expressly or impliedly and have conflict of interest?
2.
In order to decide the above questions, it would be appropriate to
state the facts of the case in gist, which are as follows:
670
[2013]
The sole respondent filed a suit for eviction of the appellant from the
suit premises and for damages. It was the case of the plaintiff-respondent
that the deceased father of the plaintiff-respondent, namely, Ananta, let out
the ancestral house consisting of two rooms with a Verandha in its rear side
to late Hariram Kedia, father of the present appellant who was the efendant,
in the year, 1965. The said house appertained to Holding No. 80 in Ward No.
2 of Dhenkanal Municipality corresponding to present Holding No. 158 in
Ward No. 10. 2After death of the original tenant, the appellant-defendant
came into possession of the suit house as the sole tenant. The original
Landlord i.e. the father of the plaintiff, expired in the year 1982 whereas his
mother has expired on 2.12.1997 at Kolkata. The plaintiff in December, 2001
requested the defendant to vacate the suit house within six months as he
required the premises for use of his son. Previously an amount of Rs.
1,20,000/- was paid by the defendantappellant to the plaintiff as well as his
mother for sale of the suit house in favour of the defendant. The said
amount, however, was returned to the defendant on 18.11.2002. On
9.4.2003, the defendant sent an amount of Rs. 2100/- by way of draft along
with a registered letter requesting him to accept the same towards rent of 15
months of his 7/15 share. As per the said letter, rest portion of the rent at the
rate of Rs. 300/- per month was due to his four sisters. The plaintiff refused
to receive the demand draft and also served a pleaders notice on 8.5.2003
seeking the defendant to vacate the suit premises within 15 days of receipt
of the same. As per the said notice, the plaintiff being the only son of his
father badly needed the suit premises and failure to vacate the said
premises within the stipulated period would make the defendant liable for
payment of Rs. 200/- per day towards damages as trespasser. The notice
also revealed that the rent of the suit premises was Rs. 300/- per month. It
was further alleged by the plaintiff that in spite of the said notice, the
appellant-defendant instead of vacating the 3premises replied through his
Advocate revealing his intention not to vacate the suit premises as
requirement of the plaintiff is not genuine. It was asserted by the plaintiff that
the defendant is to be treated as trespasser.
3.
The appellant-defendant in his written statement while pleading that
the suit in the present form is not maintainable due to want of cause of action
and bad for non-joinder of necessary parties and for indefiniteness, inter alia,
stated that the plaintiff has suppressed that he has four sisters, namely, Dr.
Jayashree Patnaik, Smt. Manjushree Das, Smt. Subhrasi Choudhury and
Smt. Suvra Basu. The defendant admitted that his father was a tenant under
the father of the present plaintiff in respect of the suit house, but disputed
that the suit house consists of two rooms with Verandha to its rear side. He
further pleaded that the house in question was taken on lease by his father
671
[M.M. DAS, J.]
for commercial purpose situated in Ward No. 11 under Holding No. 158. He
did not admit that the plaintiff expressed his intention in the month of
December, 2001 that his son would settle in the suit house to look after the
ancestral property as pleaded in the plaint. He further contended that the suit
house cannot be used for residential purpose. He also pleaded that Rs.
1,20,000/- was paid towards part consideration to the plaintiff and his mother
to alienate the suit premises in his favour, who instead of executing the sale
deed in his favour returned the advance amount on which he is entitled for
4damages at the rate of 18% per annum. He further contended that the
sisters of the plaintiff intimated him in writing for sale of the suit land as per
the terms of the agreement dated 27.3.1991 and further intimated him in
letters dated 15.12.2002 and 5.1.2003 claiming their shares from out of the
house rent. He asserted that sending the amount of Rs. 2100/- towards
share of the plaintiff for 15 months rent was legal and proper. It was further
asserted by him that the plaintiff cannot claim to be the sole owner of the suit
property and he is not a trespasser. He denied the claim for damages as
made out by the plaintiff.
4.
The trial court on the pleadings of the parties framed as many as
eight issues and came to the following findings on scrutinizing the evidence
on record:
1.
The suit property is the ancestral residential housecum-commercial
shop house of the plaintiff.
2.
The suit is not bad for non-joinder of necessary parties.
3.
The plaintiff is entitled to evict the defendant from the suit house.
4.
The plaintiff is entitled for damages as claimed for andis entitled to
get such damages till the actual date of recovery of possession of the suit
house from the defendant.
5.
The suit is not bad for indefiniteness of the suit property.
6. There is a cause of action for the plaintiff to institute the suit and the
plaintiff is entitled for eviction of the defendant as well as for damages along
with cost.
5.
With the above findings, the trial court decreed the suit on contest
against the defendant with cost directing the defendant to give vacant
possession of the suit premises to the plaintiff within one month hence and
pay damages at the rate of Rs. 200/- per day from 20.6.2003 till the actual
672
[2013]
date of recovery failing which the plaintiff is to recover the vacant possession
of the suit house along with damages through process of law.
6.
The defendant being aggrieved by the judgment of the trial court
preferred RFA No. 10 of 2004 before the learned District Judge,Dhenkanal.
The learned District Judge, Dhenkanal by his judgment, referring to various
case laws confirmed the findings of the trial court, but, however, with regard
to the quantum of damages, he held that the trial court has adopted a course
of its own in assessing the damages per day which is not permissible under
law. The house rent per month being Rs. 300/- in the absence of any cogent
evidence relating to the present market rent for such house in that particular
area, the damages decreed by the trial court is disproportionate and
excessive and as such, he reduced the damages to Rs. 20/- per day. With
the above modification with regard to the quantum of damages decreed by
the trial court, the lower appellate court confirmed the said decree for
6eviction and damages. Being aggrieved, the appellant-defendant has
preferred the present second appeal, which has been admitted on the
substantial questions of law as enumerated above.
7.
Upon hearing learned counsel for the respective parties, this Court
finds that learned counsel for the appellant has not raised any contention
with regard to the substantial question of law as to whether the notice under
Section 106 of the T.P. Act terminating the tenancy is defective for want of
15 clear days notice ending in a month inasmuch as Section 106 of the T.P.
Act has been amended in the meanwhile and in view of the amended
provision, the above question no more survives determination in the second
appeal.
8.
With regard to the first substantial question of law whether the suit
for eviction is defective and not maintainable in the absence of the four
sisters of the plaintiff being impleaded as parties?, it is seen that the said
question was raised before the lower appellate court and was negatived. It is
not disputed that Ananta Charan Patnaik, father of the appellant-defendant,
let out the suit house to the father of the respondent. After his death, his
widow (since deceased), the respondent (son) and his four sisters
succeeded to the said property. It is a well settled proposition of law that a
suit for eviction of a tenant by a co-owner without impleading the other coowners will not be maintainable, is not an universal rule but it is to be
decided in the facts and circumstances of each case and the evidence led by
the 7parties as to whether the co-owner filing the suit can be said to have
assumed the character of the sole Landlord. In the case of Sri Ram
Pasricha v- Jagannath and others, AIR 1976 SC 2335, the Supreme
Court dealing with a case under West Bengal Premises Tenancy Act
673
[M.M. DAS, J.]
(12 of 1956) laid down that jurisprudentially it is not correct to say that a coowner of a property is not its owner. He owns every part of the composite
property along with others and it cannot be said that he is only a part-owner
or a fractional owner of the property. The position will change only when
partition takes place. It is, therefore, not possible to accept the submission
that the plaintiff who is admittedly the landlord and co-owner of the premises
is not the owner of the premises within the provisions of the aforesaid Act. It
is not necessary for him to establish that he is the only owner of the property
for the purpose of the said Act so long as he is a co-owner of the property
being at the same time the acknowledged landlord of the defendants.
(Emphasis supplied). At this juncture, it may be stated that as a finding of
fact, the courts below found that the appellant after death of the father of the
respondent has accepted the respondent and his mother as his landlord and
has admitted to be paying rent to either the respondent or his mother when
she was alive for the suit premises.
9.
It is a well settled proposition of law that one of the successors to the
property while in jointness can always maintain a suit against the tenant for
eviction from out of the joint property unless 8a conflict between the cosharers is brought out on evidence. Such a case has not been established
by the appellant. This Court, therefore, while answering the above
substantial question of law finds that the courts below are right in holding
that the suit for eviction is maintainable at the behest of the sole respondentplaintiff. Further, the substantial question of law whether the respondent
was competent to issue notice under Section 106 of the T.P. Act without
consent of the co-owners/co-sharers?, no more remains to be decided as it
being already held above that the suit was maintainable by the sole plaintiff
who was one of the co-owners/co-sharers of the suit property. There can be
no doubt that he having assumed the character of the sole landlord was
ompetent to issue notice under Section 106 of the T.P. Act.
10.
The only other substantial question of law remains to be dealt with
whether non-impletion of the other co-tenants of the appellant renders the
decree in-executable and ineffective. With regard to the above substantial
question of law, it would be profitable to refer to the decisions in the case of
H.C. Pandey v- G.C. Pal, AIR 1989 SC 1470 and Karayadathil
Kunhimoosa Manjerintha and another vValiaparambath M.T. Kalliani
(SMT) and others, 1995 Supp. (3) SCC 403, which were referred to by the
lower appellate court in his judgment. In the case of H.C. Pandey (supra),
the Supreme Court dealt with the question as to whether the notice
addressed to the respondent 9alone in the said case is a valid notice or not.
674
[2013]
With regard to the same, the Supreme Court in para-4 of the judgment held
as follows:
It is now well settled that on the death of the original tenant, subject
to any provision to the contrary either negativing or limiting the
succession, the tenancy rights devolve on the heirs of the deceased
tenant. The incidence of the tenancy are the same as those enjoyed
by the original tenant. It is a single tenancy which devolves on the
heirs. There is no division of the premises or of the rent payable
therefor. That is the position as between the landlord and the heirs of
the deceased tenant. In other words, the heirs succeed to the
tenancy as joint tenants. In the present case, it appears that the
respondent acted on behalf of the tenants, that he paid rent on behalf
of all and he accepted notice also on behalf of all. In the
circumstances, the notice served on the respondent was sufficient. It
seems to us that the view taken in Ramesh Chand Bose (AIR 1977
All 38) (supra) is erroneous where the High Court lays down that the
heirs of the deceased tenant succeed as tenants in common. In our
opinion, the notice under S. 106 of the Transfer of Property Act
served by the appellant on the respondent is a valid notice and
therefore the suit must succeed.
This view has again reiterated in the case of Karayadathil
kunhimoosa Manjerintha and another v- Valiaparambath M.T. Kalliani
(SMT) and others, 1995 Supp. (3) SCC 403 by the Apex Court.
11.
In view of such position of law, it can be safely concluded that as
notice to one of the co-tenants who succeeded to the tenancy after death of
the original tenant, Section 106 of the Transfer of Property Act is to be
construed as a valid notice in respect of all the cotenants. There was no
requirement for impleading all the co-tenants as parties to the suit.
12.
In view of the above, this Court finds that the second appeal holds no
merit. The second appeal is accordingly dismissed, but in the circumstances,
without cost.
Appeal dismissed.
675
2013 ( I ) ILR - CUT- 675
M. M. DAS, J & C. R. DASH, J.
CRLA NO. 328 OF 2003 (Dt.21.11.2012)
SANKAR LENKA
..Appellant
.Vrs.
STATE OF ORISSA
..Respondent
PENAL CODE, 1860 S.304- PART-II

Appellant found his daughter (aged about 18 years) in naked
condition in the arms of the deceased, shouting Marigali, Marigali
Finding a crowbar lying near the spot he mounted assault on the
deceased Such a sight undoubtedly grave and the appellant
assaulted the deceased due to sudden provocation Held, this Case
squarely falls under Exception-1 to Section 300 I.P.C. Conviction
U/s.302 I.P.C. is modified to one U/s.304-Part-II I.P.C.
(Paras 9, 10)
Case law Referred to:AIR 1977 SC 1801
: (Hansa Singh -V- State of Punjab).
For Appellant
- M/s. U. C. Mishra, A. Mishra, B.P. Chhualsingh

D.R.Sendha & S.Panda.
For Respondent Addl. Govt. Advocate.
C.R. DASH, J.
This appeal is directed against the judgment and order
of sentence dated 26.04.2002 passed by learned Sessions Judge,
Dhenkanal in S.T. No.24 of 2001, convicting the appellant under Section
302, I.P.C. and sentencing him to suffer imprisonment for life.
2.
Sullav Naik is the deceased. He was done to death in the courtyard
of co-accused Sambhua Pradhan (since acquitted). As found from the
evidence on record, the deceased had come to the courtyard of aforesaid
co-accused Sambhua Pradhan in the early morning when there was still
darkness. Usha Naik (P.W.1), who happens to be the widow of the
deceased, lodged the F.I.R. On the basis of the F.I.R. so lodged,
investigation was taken up by P.W.8 Sarat Kumar Rout, A.S.I. of Police
attached to Rasol P.S. From him, P.W.7 Pradeep Kumar Mishra, C.I. of
Police, Sadar Circle, Dhenkanal took charge of the investigation and tested
some witnesses. Ultimately charge-sheet was filed by P.W.5 Mandardhar
Sahu, C.I. of Police, Sadar Circle, Dhenkanal, who took charge of the
676
[2013]
investigation from P.W.7 on his transfer. On completion of investigation,

altogether 13 accused persons were sent up for trial, out of whom 12 were
acquitted and the present appellant Sankar Lenka was convicted for offence
under Section 302, I.P.C.
3.
Prosecution has examined eight witnesses to prove the charge.
P.Ws.1 and 2, wife and daughter respectively of the deceased are the eyewitnesses to the occurrence. P.W.3, who is a eye-witness, has turned
hostile, P.W.4, who is a seizure witness, has also turned hostile, P.W.6 is the
Medical Officer, who conducted autopsy over the dead body of the
deceased. P.Ws.5, 7 and 8, as introduced earlier, are the Investigating
Officers.
Defence plea of the appellant is to the effect that hearing the shout of
his daughter, he woke up and saw the deceased embracing his (appellants)
daughter, who had no clothes on her body and, thus, being enraged, he
gave four to five blows by a crowbar and while the deceased fell down, he
gave two to four further blows, for which the deceased succumbed to the
injuries.
4.
Learned Trial Court, taking into consideration the discrepancies in the
evidence of P.Ws.1 and 2 and especially the medical evidence relating to the
injuries sustained by the deceased, disbelieved P.Ws.1 and 2 so far as
participation of other co-accused persons in commission of the alleged
offence is concerned, and acquitted them of the charge. So far as the
present appellant is concerned, learned Trial Court found as follows :12. .But, however, the person being provoked suddenly should
not have assaulted while a man after sustaining injuries fell down
powerless. The very intention of assaulting after the deceased fell
down sustaining injuries indicates that the accused Sankar had
exceeded the right of private defence having an intention to take
away the life of the deceased. The manner in which the injuries
have been caused on the person of the deceased is so brutal that all
will lead to a conclusion that the accused Sankar had the intention to
kill the deceased even if the deceased became powerless after
sustaining the injuries.
Holding thus, learned Trial Court found the appellant guilty under
Section 302, I.P.C. and sentenced him to suffer imprisonment for life.
5.
Learned counsel for the appellant does not question the homicidal
death of the deceased and evidence of P.Ws.1 and 2 so far as implication of
677
SANKAR LENKA -V- STATE OF ORISSA
[C.R. DASH, J.]
the appellant is concerned. It is submitted by learned counsel for the

appellant that the appellant having remained in custody for about 12 years
by now, he intends to confine his argument to conviction of the appellant
under Section 302, I.P.C. and the sentence recorded thereunder. He further
submits that the offence committed by the appellant falls under Exception
1 to Section 300, I.P.C. and whatever the appellant had done was done
under grave and sudden provocation seeing his daughter naked in the arms
of the deceased. Such a fact being the specific plea of the appellant, the
appellant should have been convicted under Section 304, Part-II, I.P.C. and
not under Section 302, I.P.C.
Learned Additional Government Advocate on the other hand
supports the impugned judgment.
6.
It is found from the statement of the appellant recorded under Section
313, Cr.P.C. that the appellant has clearly stated that at the relevant time he
was sleeping in the Pinda of his house. He woke up hearing the shout of
her daughter as MARIGALIMARIGALI and he saw that the deceased
had embraced his daughter and his daughter was stripped naked. He found
a crowbar lying near the spot, and catching hold of the crowbar he gave four
/ five blows to the deceased. After the deceased fell down, he gave two /
four blows more to the deceased and the deceased died at the spot. In the
morning, wife of the deceased came and saw her husband lying dead. Such
a plea by the appellant cannot be dismissed as after-thought in view of the
evidence of P.W.1 in paragraph-11 of her cross-examination and P.W.2 in
paragraph-4 of her cross-examination. Both P.Ws.1 and 2 have testified that
the appellant had stated such fact during his examination by the police. The
I.O. has also admitted to such statement of the witnesses and the appellant
before him.
7.
The test of grave and sudden provocation is whether a
reasonable man, belonging to the same class of the society as the accused,
placed in the situation in which the accused was placed, would be so
provoked as to loss his self-control. Before Exception 1 to Section 300,
I.P.C. can be invoked, the accused must establish the following
circumstances :(i)
There was a provocation, which was both grave and sudden;
(ii)
Such provocation had deprived the accused of his power of selfcontrol; and
(iii)
While the accused so deprived of his power of self-control, he had

caused death of the victim.
678
[2013]
In view of the ingredients of Exception 1 to Section 300, I.P.C., the

fatal blow should be clearly traced to the influence of passion arising from
that provocation and not after the passion had cooled down by lapse of time
or otherwise, giving room and scope for premeditation and calculation.
8.
Learned counsel for the appellant relies on the case of Hansa Singh
vs. State of Punjab, A.I.R. 1977 SC 1801. In that case, the accused
appellant on seeing the deceased committing the act of sodomy on his son,
lost his power of self-control and it was held to be undoubtedly a grave and
sudden provocation for the accused appellant, which led him to commit the
murder of assault on the deceased. Honble Supreme Court convicted the
appellant under Section 304, Part-II, I.P.C. by reversing the judgment of the
Punjab and Haryana High Court.
9.
In the present case, the daughter of the appellant is found to be aged
about 18 years old. She was seen in naked condition in the arms of the
deceased by the appellant, who woke up by hearing the alarming shout of
MARIGALIMARIGALI by his daughter. Finding a crowbar lying near the
spot, the appellant immediately mounted assault on being influenced by the
grave and sudden provocation on seeing his daughter in naked condition in
the arms of the deceased. Such a sight itself is undoubtedly grave and
sudden provocation for the appellant to commit murderous assault on the
deceased. On such a situation, it cannot be expected for him to gauge and
scale as to whether the deceased had fallen down or his daughter was free
of danger.
10.
Regard being had to all the aforesaid facts and circumstances, we
feel inclined to modify the conviction of the appellant to one under Section
304, Part-II, I.P.C. instead of Section 302, I.P.C., as the case squarely falls
under Exception 1 to Section 300, I.P.C. The appellant is accordingly
sentenced to suffer rigorous imprisonment for seven years for the offence
under Section 304, Part-II, I.P.C.
It is stated at the Bar that the appellant is there in custody for about
twelve years. If that be so, the appellant be released from custody forthwith,
as he has already served the sentence imposed on him under Section 304,
Part-II, I.P.C., if his detention is not required in any other case.The Criminal
Appeal is accordingly allowed in part.
Appeal allowed in part.
679
2013 ( I ) ILR - CUT- 679
INDRAJIT MAHANTY, J & RAGHUBIR DASH, J.
W.P.(C) NO. 1417 OF 2013 (Dt.20.02.2013)
SIBA PRASAD NAYAK
..Petitioner
.Vrs.
THE DIRECTOR, HEALTH

SERVICE & ORS.
..Opp.Parties
CONSTITUTION OF INDIA, 1950 ART.21

Right to life Petitioners Son suffered from a debilitating
disease Duty of the Government to provide necessary medical
assistance to its citizens and employees.
In this case petitioners Son suffered from the disease
Muscular Dystrophy and his application for referral certificate was
rejected on the ground that the disease is not curable and Stem-celltherapy or muscular disease is still a research initiative not ethically
approved method for treatment and experimental or researched
initiative does not fall within the meaning of the term treatment and
the institution to which the reference has been sought was not duly
approved by the State Government.
Treatment cannot be deemed to apply only to cure but also it
includes all steps taken in order to cure an injury or disease and would
include all steps which would arrest the disease from further
deterioration Held, direction issued to O.P.1 to 5 to issue referral
certificate to the son of the petitioner within three days and O.P.6 is
directed to sanction maximum limit of medical advance in favour of the
petitioner for the treatment of his son at Chaitanya Hospital,
Chinchwad, Pune (Maharashtra) which is an approved referral hospital
permitted by the Government of India.
(Paras 8 to 17)
Case laws Referred to:1.1977 Cri. L.J. 312
2.AIR 1996 SC 2426
For Petitioner
: (Himansu Sekhar Nandy-V- Magistrate & Anr.)

: (Paschim Banga Khet Mazdoor Samity & Ors.-VState of West Bengal & Anr.)
-
M/s. B.K.Routray, S.K. Nayak-2.

K. Jena & S.S. Nayak.
For Opp.Parties - Addl. Govt. Advocate.
680
[2013]
I. MAHANTY, J.
The petitioner-Sri Siba Prasad Nayak who is a
Government employee working as S.A. in the office of the D.P.S. & P,
Madhupatana, Cuttack has filed the present writ application seeking
direction to the opposite parties and in particular, Opposite Party No.1 (The
Director, Health Service and Chairman of Technical Committee of Muscular
Dystrophy Patients in the State of Odisha) to issue a referral certificate for
his son, namely, Sarada Prasad Nayak to go for treatment of Muscular
Dystrophy disease (Stem-cell therapy) at Chaitanya Hospital, Chinchwad,
Pune (Maharashtra) or the State Muscular Dystrophy disease at Madurai
Tamilnadu or any such place where immediate treatment may be available
for the patient; as well as to opposite party no.6 to sanction the necessary
medical advance to the petitioner for treatment of his ailing son immediately
after receiving the referral certificate.
2.
It is averred by the petitioner that his son, namely, Sarada Prasad
Nayak is a good student and after completing +2 Science he is now
studying in B.Tech Course. While he was continuing his study, suddenly he
felt pain on his two legs and was unable to move. He, thereafter, went to the
S.C.B. Medical College & Hospital, Cuttack for treatment and thereafter, he
was referred to various doctors of various departments like Medicine,
Neurology and Orthopedic. While the doctors at the S.C.B. Medical College
and Hospital at Cuttack were unable to diagnose the disease, they referred
the petitioners son to the National Institute of Mental Health and
Neurosciences (NIMHANS), Bangalore for better evaluation. The petitioners
son thereafter was taken for evaluation of the disease to Bangalore and the
doctors at NIMHANS evaluated the petitioners ailing son to be suffering
from the disease known as Muscular Dystrophy under Annexure-2.
Thereafter, the petitioner sent the blood samples of the petitioners son to
the JAIN Foundation, USA for better analysis and the said JAIN Foundation
submitted their opinion confirming the fact that the petitioners son is
suffering from the disease scientifically known as Dysferlinopathy and was
further informed that the research for the disease is going on and the
Foundation was in the process of research to try and invent medicine for the
cure of such disease under Annexure-3.
3.
The petitioner thereafter made representation to the Honble Prime
Minister of India for encouraging research in order to enhance the possible
discovery of medicine for treatment of Muscular Dystrophy disease and
similar representations also addressed to the Government of India in the
Ministry of Heath and Family Welfare as well as to the Ministry of Science
and Technology and the Director General, Indian Council of Medical
Research.
681
S. P. NAYAK-V- THE DIRECTOR, HEALTH SERVICE
[I. MAHANTY, J.]
The Director General, ICMR responded the petitioners

communication vide letter dated 22.5.2012 advising the petitioner to contact
Dr.B.R.Laxmi, Coimbatore and Dr.S.Khadilkar of Mumbai. Accordingly, the
petitioner contacted the doctors named above and in turn, they advised the
petitioner to contact certain research centers where treatment for Muscular
Dystrophy disease was being researched.
4.
On 17.10.2012 while the petitioner was desperately researching on
the internet, he learnt that there are two Foundations i.e. Muscular
Dystrophy Foundation of India at Madurai, Tamilnadu and Chaitanya StemCell Centre, Pune in India where the patients of Muscular Dystrophy are
being benefited by way of Stem-Cell Therapy, though such treatment was
experimental and by way of research.
Accordingly, the petitioner wrote to such organizations seeking their
assistance for treating his son and sought for information regarding
approximate charge for such treatment. The response from the aforesaid
centers as well as the expenses involved was intimated to the petitioner
through e-mail under Annexures-6 and 7 respectively.
Since the amount required for treatment was beyond the financial
means of the petitioner, he sought for necessary assistance from the State
Government by addressing a representation to the Commissioner-cumSecretary, Heath and Family Welfare Department praying for sanction of
Rs.4,00,000/- for treatment of his son.
5.
It is further averred that upon receipt of the representation of the
petitioner, the Deputy Secretary to Government issued a letter to the
Director, printing Stationary & Publication Odisha, Cuttack for sanction of
medical advance in favour of the petitioner for treatment of his son where
the petitioner was working. The Director called upon the petitioner to provide
necessary supporting documents and also sought for permission of the
D.M.E.T., Odisha for sanction of medical advance.
6.
Thereafter, the petitioner went to the S.C.B. Medical College and
Hospital, Cuttack and approached the Opposite Party No.4 (Professor and
H.O.D., Neurology) for issuing the necessary referral certificate for which
purpose, the petitioners son had to be admitted once again in S.C.B.
Medical College on 27.12.2012 and discharged on 2.1.2013. Thereafter a
Committee was formed and a meeting was convened for such a committee
on 7.1.2013, took a decision on the issue of referral. The said Committee
which consisted of the H.O.Ds of Medicine, Neurology and Orthopedics
682
[2013]
ultimately turned down the request for referral on the basis of the following
conclusions :
The Committee discussed about the treatment of the Muscular
Dystrophy as the Stem-Cell therapy for muscular dystrophy is still a
research initiative not ethically approved method for treatment and
therefore, cannot be approved.
The Committee after threadbare discussion was of the opinion that
we cannot refer a human being for an experimental studies.
7.
In the light of the facts as noted herein above, the petitioner was left
no alternative other than to approach this Court by way of filing the writ
application seeking the relief as noted herein above. This Court considering
the emergent need for treatment of the petitioners son directed issue of
notice to the State vide order dated 31.1.2013 and listing of the matter on
7.2.2013. Thereafter, the matter was adjourned from time to time at the
request of the State and on 8.2.2013, written instructions were received by
the office of the Advocate General for producing the same before this Court.
8.
The letter of the Superintendent, S.C.B. Medical College & Hospital,
Cuttack No.3036 dated 5.2.2013 addressed to the Advocate General,
Odisha Cuttack along with the enclosures for producing the same before
this Court. The relevant portion of the said communication is extracted
herein below :
xx xx With reference to above, I am to say that a referral
committee was formed on 07.01.2013 consisting of Prof. & HODs of
Medicine, Neurology and Orthopaedics under the chairmanship of
Superintendent, SCB Medical College & Hospital, Cuttack wherein a
decision was taken that since the disease Muscular Dystrophy is not
curable and Stem Cell therapy for Muscular Dystrophy is still a
research initiative not ethically approved method for treatment.
Further, the committee after due discussion was of the opinion that
the patient cannot be referred being a human being for an
experimental study. Therefore, the referral could not be approved xx
xx.
While directions were issued to the State counsel to serve copies of
the said document on the petitioners counsel, the matter was next posted to
11.2.2013. On the said date the members of the Committee who were the
H.O.Ds of Medicine, Neurology and Orthopedics appeared before the court
to assist the Court in understanding the nature of the disease and the
grounds for refusal of referral. In course of such submission, the Members
683
[I. MAHANTY, J.]
of the Committee who were confronted by the Court to the letter of the
Superintendent dated 5.2.2013, while reiterating the contents of the said
communication, it was stated that certain guidelines for assistance under the
Odisha State Treatment Fund has been formulated by the State and
placing reliance on the same it was submitted that there are mainly four
grounds on which the Committee has rejected the application of the
petitioner, is as follows:
i)
The disease of Muscular Dystrophy is not curable.
ii)
Stem-Cell therapy for Muscular disease is still a research initiative

not ethically approved method for treatment.
iii)
Experimental or researched initiative does not fall within the meaning

of the term treatment.
iv)
The institution to which the reference has been sought was not duly
approved by the State Government.
9.
In course of hearing of the case with regard to the grounds raised
hereinabove, the Court sought for assistance of Shri S.D.Das, learned Asst.
Solicitor General, Shri B.K.Mohanty, learned Sr. Counsel, Shri Biswajit
Mohanty, learned counsel as well as Shri G.Mishra, learned counsel to
assist the Court.
10.
In the light of the facts and contentions as noted hereinabove, now it
becomes necessary to deal with Issue No.(iv) i.e., the issue as to whether
the institute to which the petitioner has sought reference is recognized and
whether the petitioners son could be referred to such an institute? In this
respect, Shri Routray, learned counsel for the petitioner drew our attention
to the Government of India, Ministry of Health and Family Welfare Office
Memorandum dated 7th November, 2012, in terms of which, Chaitanya
Hospital, Chinchwad, Pune (Maharashtra) has been duly approved by the
Central Government for treatment of their employees under CS(MA) Rules,
1994. Shri S.D.Das, learned Asst. Solicitor General duly confirmed the
aforesaid fact by submitting a copy of the said Notification during hearing of
the matter. Mr. Routray, learned counsel for the petitioner stated that the
Government of Odisha in the Health and Family Welfare Department vide
Resolution dated 17th May, 2002, published in the Orissa Gazette dated
July, 12 2002 on the subject of Concession regarding treatment of State
Government servants and their families and other entitled persons, outside
the State and approved Private referral hospitals within the State provided a
copy of the said Gazette and in particular drew our attention to the last
paragraph of the said notification which reads as thus:
684
[2013]
The practice of declaring certain hospitals as approved

referral hospitals shall be discontinued. A Government employee, or
his/her family member, or other entitled person, if referred for a
particular kind of treatment by any of the Referral Medical
Committees consisting of Senior Professors in each of the three
Medical Colleges in the State, may undergo that treatment at any
hospital in the country which is either a State or a Central
Government hospital, or a private hospital recognized as a referral
hospital by the Government of India or the concerned State
Government where the hospital is located. Reimbursement of cost of
treatment will be limited to the celling fixed for that kind of treatment.
11.
Placing reliance on the above, it is submitted by the learned counsel
for the petitioner that amongst the various institutions to which the petitioner
sought referral, the Chaitanya Hospital, Chinchwad, Pune, having been
recognized by the Central Government has a referral hospital by the
Government of India, there exists no legal bar to deny the petitioners son
referral to the said hospital. In course of argument, both learned Addl.
Government Advocate for the State as well as the learned Asst. Solicitor
General confirmed to the fact that Chaitanya Hospital at Chinchwad, Pune
was approved by the Central Government as referral hospital and, therefore,
there exists no legal bar for such a referral. Therefore, the Issue No.4 as
noted hereinabove is answered accordingly.
Insofar as Issue No.3 is concerned, Mr.Biswajit Mohanty, learned
amicus curiae brought to the Courts notice the judgment rendered by this
Court in the case of Himansu Sekhar Nandy v. Magistrate and another,
1977 CriLJ 312. In the said case Honble Justice S.K.Ray (the then Acting
Chief Justice) dealt with the word treatment as available in the Jail Manual
and applicable to a detenues and came to hold at Parasgraph-6 thereof
which is as follows:
6. xx xx The word treatment must be understood in its
fullest [amplitude and not in the narrow sense of palliative treatment
treatment; required to deal with casual illnesses. Treatment in the
Chamberss Twentieth Century Dictionary means, way of applying
remedies. In Websters Dictionary treatment means manner of
applying remedies to cure; mode or course pursued for remedial
ends; as, the treatment of a disease; the treatment of a patient. In
Corpus Juris Secundum, Volume 87 at page 949, the word
treatment is said to be also employed to indicate all the steps taken
in order to effect a cure of an injury or disease. Cure as the end
would include arresting the disease from further worsening as a step
685
[I. MAHANTY, J.]
towards that end. Treatment would include taking such steps as

would not only tend to effect a cure of a disease but also steps which
would prevent further deterioration of the disease.
12.
This Court while being in respectful agreement with the views
expressed in the aforesaid judgment, is also of the clear view that
treatment cannot be deemed to apply only to cure but also includes within
its widest meaning, all steps taken in order to cure an injury or disease and
would include all steps which would arrest the disease from further
deterioration. Therefore, the word treatment would not only include within
its ambit the cure of the disease but also would include the steps that
could be taken to prevent further deterioration of the disease. We are also of
the considered views that the word treatment brings within the ambit and
scope all steps that may have to be taken, even in a case of an incurable
disease taken to ameliorate pain or suffering even in a case of patient who
has no known medical chance of survival. Easing of pain of a patient at
death door, obviously should also be treated within the scope of ambit of
treatment. We are constrained to note that the attempt at giving a
restrictive meaning to the term treatment to only such disease for which
there are already known/accepted measures of treatment, would in our
considered view be wholly frustrative of legislative intent behind framing the
guidelines and policy resolution of the State and also be violative of Article
21 of the Constitution of India.
13.
Honble Supreme Court in the case of Paschim Banga Khet
Mazdoor Samity and others v. State of West Bengal and another, AIR
1996 SC 2426 dealt with the scope of Article 21 of the Constitution of India
and came to hold that, the failure on the part of Government to provide
medical treatment to a person in need of such treatment would result in
violation of his right to life guaranteed under Article 21. While there cannot
be two opinions on this issue yet the Court cannot loose sight of the fact that
no State or any county can have unlimited resources to spend on any of its
project, which includes providing medical assistance to the citizens including
its employees. While such provision of facilities cannot be unlimited, finance
has to be given to the extent permitted. In the present case, the guidelines
for assistance provided under the Odisha State Treatment Fund provides
in paragraph-2.1 that Financial aid so granted shall be one-time grant only
with an upper limit of Rs.3.00 lakhs for treatment within or outside the
State, whereas, such a limit is purely within the competence of the State
and may be wholly justified.
686
[2013]
This Court requests the State to render the maximum help possible
in order to try and assist the petitioners son in fight such a debilitating
disease.
14.
The second issue has been substantially dealt with in Issue No.(iii)
but, we may add that, merely because at the present juncture in the history
of development of medicine, no medically accepted treatment for Muscular
Dystrophy exists and does not mean that no treatment can be given to the
petitioners ailing son, when both the petitioner and his son are willing to
give their consent for such experimental treatment. Of course, for the
purpose of experimental treatment, the consent of the petitioner as well as
his son may be mandatory and also the institute which conducts Stem-Cell
research may obviously require the necessary clearances of the appropriate
authority. But, we find no justifiable ground to deny referring the son of the
petitioner to Chaitanya Hospital, Chinchwad, Pune (Maharashtra) (which is
a approved referral hospital), specifically permitted by the Government of
India, Ministry of Health & Family Welfare. We are of the further view that
though it is claimed that the research and/or experiment cannot be permitted
on a patient being a human being, is clearly beyond the scope and ambit of
the jurisdiction of the referral committee. Such ethical issues and/or
permissions for experimental research are not matters within the scope and
ambit of the referral committee constituted by the State to refer the
petitioners son who is suffering from Muscular Dystrophy for treatment at
the Chaitanya Hospital, Chinchwad, Pune (Maharashtra). Once the
petitioner and his son go there, their consent will have to be obtained and
the necessary permissions from the appropriate authorities, including the
ICMR and any other authorities may have to be obtained. But, such issues
we repeat cannot be permitted to come in the way of reffering the
petitioners son to Chaitanya Hospital for treatment.
15.
Insofar as Issue No.(i) is concerned, the fact that as on date, no
known medicine or cure for Muscular Dystrophy is presently available. The
world of science and research therein is in a continuous process of
evaluation and what is not known today, may be known tomorrow only
through research. Insofar as incurable diseases are concerned, we are of
the considered view that even if certain diseases are medically termed as
incurable, if any facility exists where such patients pain and suffering is of
amelioration or reduced, such an act or treatment may not be a cure in the
classical sense but, even then has to be treated as part of treatment. From
the various reports of research on Muscular Dystrophy is concerned, as
annexed under Annexure-6, it is stated by the research foundation that
while a person cannot be cured and while in research, the ambit of such
687
[I. MAHANTY, J.]
research and trials would reduce the speed of deterioration and maintain
status quo/prolong the livability of a patient. The effects of Stemcell Therapy
would be much better with young words with walking abilities and who does
not have other problems.
16.
We are of the considered view that if such Stem-Cell Therapy is
made available to the petitioners son for such disease and if through such
research or trial on the petitioners son such treatment reduces the speed of
deterioration and maintain the status-quo/prolong the livability of a patient,
we believe that the same itself would be a great advancement and would
most definitely come within the scope and ambit of the term treatment.
17.
In the light of the findings arrived herein, we are of the considered
view that the present writ application ought to be allowed with the following
directions:
(i)
Opposite Parties 1 to 5 are directed to issue a referral certificate to

the petitioners ailing son, namely, Sarada Prasad Nayak for going to
the Chaitanya Hospital, Chinchwad, Pune (Maharashtra) for
immediate treatment within three days from today.
(ii)
Opposite Party No.6 (The Director, Printing Stationary & Publication,

Odisha) is directed to sanction the maximum limit of medical
advance available under the guidelines published in the Orissa
Gazette in favour of the petitioner to enable him to proceed to
Chaitanya Hospital, Chinchwad, Pune (Maharashtra) for treatment
within a further period of one week thereafter.
18.
In terms of the aforesaid observations and directions, the writ
application is allowed.
This Court also records its appreciation for the invaluable assistance
given by the learned counsel appeared as amicus who are named
hereinabove.
Free copy of this judgment be handed over to the learned Addl.
Government Advocate for the State as well as to the petitioner for necessary
communication and compliance.
688
2013 ( I ) ILR - CUT- 688
SANJU PANDA, J.
W.P.(C) NO. 16218 OF 2012 (Dt.30.11.2012)
RAJASHREE NAYAK
..Petitioner
.Vrs.
STATE OF ORISSA & ORS.
..Opp.Parties
EDUCATION Admission into MBBS Course 2012 Held,

prioritization procedure adopted by O.P.2 & 3 for admission, ignoring
the merit list is illegal and violative of the rules of merit.
In this Case out of total seats of 450 in Government Colleges 3%
reserved for Ex-service men category (in short ESM Category ) which
comes to 14 Petitioner secured 15 rank under ESM category
Candidates placed at Sl.Nos.1,2 & 3 took admission under General
category and Sl.No.14 was found unsuitable to take admission so
petitioners position comes to Sl.No.11 in ESM Category When
Opp.Parties allowed candidates to take admission whose positions
were below the rank of the petitioner on the basis of prioritization
procedure ignoring the case of the petitioner, he filed this writ petition Held, Direction issued to Op.2 & 3 to give admission to the petitioner in
MBBS course as per her rank under ESM quota.
(Para 11,12)
Case laws Referred to:1.2012 (8) SCC 71
: (Rajan Purohit -V- Rajasthan University of Health

Sciences)
2.(2002)7 SCC 258 : (Medical Council of India -V- Madhu Singh & Ors.)
3.(2012)7 SCC 389 : (Asha-V- Pt. B.D.Sharma University of Health
Sciences & Ors.)
For Petitioners
- M/s. D.Routray, P.K.Sahoo, S.Das, S.

Jena, S.K.Samal, S.P.Nath & S.Rout.
For Opp.Parties - Mr. R.C.Mohanty, K.C. Swain & S.Mohanty,
(for O.P.No.4)
Mr. S.Palit, A.K.Mahana, A. Mishra,
A.Kegerwala, & Miss R. Tripathy
(for O.P.No.2).
SANJU PANDA,J.
In this writ petition, the petitioner challenges the
action of the Chairman, Joint Entrance Examination, Odisha, 2012-opposite
689
RAJASHREE NAYAK -V- STATE
[SANJU PANDA,J.]
party no.2, in not giving her admission in MBBS course in Government

Medical Colleges under Ex-Servicemen category (in short ESM category).
2.
The facts leading to the present writ petition are as follows:
The petitioner, as per the Information Brochure for admission into

MBBS Course, 2012, applied under the heading of seats meant for ExServicemen category. In three Government Medical Colleges of the State,
3% of total seats has been ear-marked and reserved for the aforesaid
category. There are total 450 seats available in the Government Medical
Colleges, out of that only 14 seats meant under the said reservation
category. The petitioner filed her application along with the certificate issued
by Rajya Sainik Board, Odisha in the prescribed format, appeared the
examination and also secured rank in the merit list. As per the merit list, the
petitioner secured 897 rank under General Category and 15 under ESM
category. The petitioner, on verification of the rank list found that the
candidate, whose name was found place at Sl.No.14 of ESM category was
not eligible to take admission, since his father is in service and erroneously
his name was reflected in the merit list under Ex-Servicemen category. One
Rakesh Mohanty, whose position was at Sl.1 under Ex-Servicemen
category, preferred to join in the General Category.Similarly, one Lipsa
Tripathy and Ajaya Moharana, whose names were found place at Sl.Nos.2
and 3 respectively have also taken admission in General category.
Accordingly, the petitioner position came to Sl.No.11 of the Ex-Servicemen
category. Therefore, the opposite parties should have allowed the petitioner
to take admission in the MBBS Course as per her rank in the merit list.
However, the opposite parties have permitted the candidates, whose
positions were below the petitioner to take admission under the aforesaid
category ignoring the rank of the petitioner. Being aggrieved by such
elimination to take admission in MBBS Course, the petitioner made a
representation to the concerned authorities ventilating her grievance and
since no action was taken thereon, she has approached this Court in the
3.
It is submitted by the learned counsel for the petitioner that the action
of the opposite parties is erroneous, illegal for not allowing her to take
admission in MBBS Course under Ex-Servicemen Category. It was learnt
from reliable source that the opposite parties have given priority to others
while considering allotment of seats under the aforesaid reserved category,
though the allotment should have been made on the basis of merit list only.
Therefore, the action of the opposite parties is not legal and liable to be
interfered with.
690
[2013]
4.
A counter affidavit has been filed by the Medical Council of Indiaopposite party no.4 taking a stand that as per the Regulation formed on
Graduate Medical Education, 1997, the methodology of selection of
candidates and determination of merit for admission to MBBS Course
amongst the candidates, who are otherwise eligible for admission to the
course, is prescribed under Regulation-5. Regulation-5 is quoted hereunder
as follows:
5.Selection to Students:
(5) Procedure for selection to MBBS course shall be as
follows:
(i)
In case of admission on the basis of qualifying examination under

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

examination under clause (2) and (4) of this regulation, a candidate
must have passed in the subjects of physics, chemistry, biology/Biotechnology and English individually and must have obtained a
minimum of 50% marks taken together in physics, chemistry and
biology/Bio-technology at the qualifying examination as mentioned in
clause (2) of regulation 4 and in addition must have come in the
merit list prepared as a result of such competitive entrance
examination by securing not less than 50% marks in physics,
chemistry and biology/Bio-technology taken together in the
competitive examination. In respect of candidates belonging to
schedule castes, scheduled tribes or other backwards classes the
marks obtained in physics, chemistry and biology/Bio-technology
taken together in qualification examination and competitive entrance
examination be 40% instead of 50% as stated above.
Provided that a candidate who has appeared in the qualifying
examination the result of which has not been declared he may be
provisionally permitted to take up the competitive entrance
691
[SANJU PANDA,J.]
examination and in case of selection for admission to the MBBS

course, he shall not be admitted to that course until he fulfils the
eligibility criteria under regulation 4.
5.
In view of the aforesaid regulation, the merit of a candidate shall not
be ignored in respective category and admission shall be made as per the
position in the merit list in the common entrance test conducted by the
authority. Further also, it was stated that the apex court in the case of
Rajan Purohit v. Rajasthan University of Health Sciences, 2012 (8) SCC
71 held that admission in violation of Regulation of Medical Council of India
is not permissible. The opposite party no.4 has also taken a stand that the
apex court has also fixed the time schedule for admission to the respective
Medical Courses. In the case of Medical Council of India v. Madhu Singh
& Others, (2002) 7 SCC 258, the time schedule has been fixed to 30th
September as the last date for admission to MBBS/BDS courses. Therefore,
the admission in all the Medical courses in the colleges/institutions of the
Country are to be made within the said stipulated time within the annual
intake capacity sanctioned for each Medical Colleges and no direction is
permissible to be passed for admission of the student after the last date of
admission for MBBS courses. So far as intake sanctioned capacity of the
College is concerned, the same is contrary to Section 10 of the Act and
Regulation as per the Indian Medical Council Act, 1956. In view of the
principle laid down by the apex court, the prayer of the petitioner being
contrary to the statutory provision, the writ petition is not maintainable.
However, admission has to be done on merit basis and if admission has
been granted in violation of principle of merit, action against the authority
may be taken.
6.
Opposite party no.2, Chairman, Joint Entrance Examination,
2012,Odisha filed a counter affidavit admitting the fact that the petitioner
was placed at Sl.No.15 of the merit list and the candidates, who have placed
in Sl.Nos.1,2,3 and 14 though were selected under Ex-Servicemen reserve
quota, but they preferred to take admission as against general category
seats. Under the Ex-Servicemen reservation quota seat, only 13 numbers
of seats are available and the petitioners position came to 11. From the list
furnished by the Rajya Sainik Board, Odisha on 27.6.2012 giving
prioritization in respect of Ex-Servicemen category candidates of
OJEE,2012, it is found that out of 45 number of candidates attended the
Board for medical stream and two candidates have been given priority-III,
four candidates have been given priority-IV and 39 number of candidates
have been given priority-VI. The said prioritization was made as per the
procedure prescribed by the Ministry of Defence, Government of India for
692
[2013]
Ex-Servicemen which was communicated vide their D.O.No.3547 AS (R) 94

dated 3.6.1994. Accordingly, the Government of Odisha, Industry
Department vide order dated 8.7.2009 circulated the order regarding
reservation of seats for children/widows of Ex-Servicemen who are the
natives of Odisha. In the said order, it has been categorically mentioned
that Prioritization Policy is to be adopted for admission to the seats reserved
for the children of Ex-Servicemen as prescribed by the Ministry of Defence,
Government of India in their letter dated 3.6.1994. The chart of prioritization
is quoted below as under:
Priority-I
Priority-II
Priority-III
Children/widows of Ex-Servicemen killed in action.

Children of Ex-Servicemen disabled in action.
Children/widows of Ex-Servicemen who died in peace
time with death attributable to military service.
Priority-IV
Children of Ex-Servicemen disabled in peace time

with disability attributable to military service.
Children of Ex-Servicemen who are in receipt of
Nerve
Gallantry Awards.
Priority-V
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
11)
Param Vir Chakra

Ashok Chakra
Sarvottam Yudh Seva Medal
Maha Vir Chakra
Kirti Chakra
Uttam Yudh Seva Medal
Vir Chakra
Shaurya Chakra
Yudh Seva Medal
Sena, Nau Sena, Vayu Sena Medal
Mention-in-Des
Priority-VI
Children of Ex-Servicemen.
7.
In view of that prioritization, the present petitioners rank is 12
amongst the candidates of Priority-VI and admission has been given as per
the priority basis and above the petitioner. More than four candidates in
priority-VI are waiting for admission. Therefore, the allegation made by the
petitioner is not correct. The candidates, who got higher priority, have been
admitted first as per the procedure prescribed by the Ministry of Defence
and the Government order dated 8.7.2009. Petitioner is very much aware
693
[SANJU PANDA,J. ]
about that and has also not impleaded the Rajya Sainik Board, Odisha,
which is the necessary party and as such the writ petition has no merit.
8.
Learned counsel for the opposite party no.2 submitted that as per
the Information Brochure, in Clause-2.1.5 under the heading of General
Information it was categorically stipulated that the candidates applying under
Ex-Serviceman reserved category shall furnish a certificate in the prescribed
format provided in this brochure as Appendix-IV at the time of document
verification. The candidates have to report to Rajya Sainik Board on the
scheduled date for prioritization. The priorities will be notified in the OJEE2012 website. The decision of this Board will be final and binding. In view of
said information brochure, the petitioner is not entitled to take admission.
9.
Learned counsel for the petitioner in reply to the stand taken by the
opposite parties submitted that the apex court in the case of ASHA V. PT.
B.D.SHARMA UNIVERSITY OF HEALTH SCIENCES AND OTHERS,
(2012) 7 Supreme Court Cases 389, while considering the admission into
Medical Colleges/ Education held that the criteria for selection has to be
merit alone. Merit, fairness and transparency are the ethos of the process
for admission to such courses. It will be travesty of the scheme formulated
by the Supreme Court and duly notified by the States, if the Rule of Merit is
defeated by inefficiency, inaccuracy or improper methods of admission.
There cannot be any circumstance where the rule of merit can be
compromised. From the facts of the present case, it is evident that merit has
been a casualty. It is one of their primary obligations to see that a candidate
of higher merit is not denied seat to the appropriate curse and college, as
per his preference. No doubt the process of admissions is a cumbersome
task for the authorities but that per se cannot be a ground for compromising
merit. The authorities concerned are expected to perform certain functions,
which must be performed in a fair and proper manner i.e. strictly in
consonance with the relevant rules and regulations. Further, it was also
held that admission after cut-off date of 30th September, the exceptional
relief of, only in rarest of rare case and after 30th September can be given if
(a) no fault is attributable to candidate in respect of the admission,(b) there
is fault on the part of authorities and,(c) there is violation of the principles of
equality and rule of merit. All these conditions are satisfied in present case
except that candidate was at fault to a limited extent in the sense that she
did not have required attendance in first year of non-preferred course (to
which she was admitted), benefit of which she wanted transferred.
Therefore, due to said default in attending required number of classes in her
non-preferred course, candidate, held, is not entitled to admission in same
academic year in her preferred course. The court has allowed her to take
694
[2013]
admission in preferred course in the succeeding academic year, as she was

wrongly denied admission under MBBS course.
10.
Taking into consideration the facts and circumstances of the case,
as narrated, it appears that the petitioner is the meritorious student and her
rank is much higher than the candidates, who have taken admission in the
MBBS course. On the ground of prioritization, the Act and Regulation and
the stand of the Medical Council of India reveals that admission to
MBBS/BDS courses, the authority has to strictly adhere to rule of merit.
Inaccuracy, inefficiency and improper admissions process defeating Rule of
Merit, the candidate is only to prove illegal denial of admission. It is enough
to prove that there has been an error (intentional or otherwise) and that
consequently a candidate of merit has been denied admission. It is not
necessary to prove mala fides, misconduct and favouritism as is strictly
required in criminal cases. The apex Court further reclarified that admission
after closing date of 15th September are not permissible and only courts of
contempt jurisdiction in rare and exceptional circumstances can permit the
same by stating the reasons thereof. Where admissions are arbitrary,
contrary to judgments and illegal, disciplinary action should be initiated
against erring officers. Students resorting to malpractice should pay
compensation to students of merit, who were denied admission and
students not entitled to such admission cannot continue on mere ground
that they have put in a year or so. Such students cannot claim equity just
because they have admitted on basis of interim orders of court. Therefore,
in case of admission dispute High Court directed to avoid giving interim
orders.
11.
In view of the above principle as settled by the apex Court, the
present case is coming squarely under the said principle. The petitioners
rank was 11 in the merit list under the Ex-Servicemen category. However,
ignoring such merit list, the authorities have adopted a policy on the basis of
prioritization procedure prescribed by the Ministry of Defence, Government
of India for Ex-Servicemen, which was communicated vide D.O.No.3547
AS(R) 94 dated 3.6.1994. The opposite parties have not produced the
aforesaid D.O.No. No.3547 AS(R) 94 dated 3.6.1994 which prescribed the
procedure to be adopted in admission to Medical Courses ignoring the merit
list. Since the Medical Council of India Act and Regulation and the decision
of the apex Court strictly directed the Authoritative to follow up and adhere
the merit list while giving admission into MBBS/BDS Courses only and
reservation within the reserved seat are also not permissible. Therefore,
adopting another procedure ignoring the merit list by the opposite party
nos.2 and 3 is illegal and violative of the rules of merit for admission into
MBBS Course.
695
[SANJU PANDA,J. ]
12.
Accordingly, the writ petition is allowed. The Chairman, Joint
Entrance Examination, 2012, Odisha and Director, Medical, Education and
Training, Odisha-opposite party nos.2 and 3 respectively are directed to give
admission to the petitioner in MBBS course as per her rank under the
category of Ex-Serviceman quota seat forthwith.
696
2013 ( I ) ILR - CUT- 696
B. N. MAHAPATRA, J.
W.P.(C) NO. 17656 OF 2012 (With Batch) (Dt.19.10.2012)
M/S. MAA LAXMI STEELS PVT.
LTD. & ORS.
..Petitioners
.Vrs.
ODISHA ELECTRICITY
REGULATORY COMMISSION
(OERC) & ANR.
.Opp.Parties.
A. OERC (CONDUCT OF BUSINESS) REGULATIONS,2004 R-70(I)

Power of Suo motu review Power vested with OERC to
exercise such power Held, OERC-O.P.1 has inherent jurisdiction to
exercise the power of suo motu review.
(Para 13)
B. CONSTITUTION OF INDIA, 1950 ART.226
Writ petition Petitioners have neither pleaded in the writ
petitions nor made prayer to the effect that Regulation 70(1) of the
OERC (Conduct of Business) Regulations 2004 is ultra vires the
Electricity Act,2003 Law is well settled that a party has to plead the
case and produce/adduce sufficient evidence to substantiate his
statement made in the petition and in case pleadings are not complete,
the Court is under no obligation to entertain the pleas.
Held, since there is no pleading or any prayer to the effect that
Regulation 70 is ultra vires Section 94(1) (f) of the Act, 2003 the
argument advanced to that effect cannot be entertained hence rejected.
(Para 12)
C. ELECTRICITY ACT, 2003 S.111
Appellate Tribunal Tribunal consisting of Judicial Member and
Technical Member having adequate knowledge and experience in
dealing with the matters relating to electricity generation, transmission
and distribution and regulation or economics, commerce, law and
management The Tribunal is an expert body and determination of
tariff made by the commission involves a very highly technical
procedure requiring knowledge of law, engineering, finance,
commerce, economics and management which can be effectively
adjudicated by the Tribunal for electricity.
697
M/S. MAA LAXMI STEELS -V- ODISHA ELECTRICITY
[B.N.MAHAPATRA,J]
Held, this Court is not inclined to entertain these writ petitions

It is open for the petitioners to approach the appellate Tribunal for
electricity challenging the legality and validity of the impugned order.
(Paras 15 & 20)
Case laws Referred to:1170 (25) STC 171 : (TISCO-V- State of Orissa)
2. (2012)2 SCC 108 : (Executive Engineer, Southern Electricity Supply
Company of Orissa Ltd.(Southco) & Anr.-V-Sri
Seetaram Rice Mill)
3. (2011) 5 SCC 697 : (Union of India & Ors.-V-Tantia Construction Pvt.
Ltd.).
4. (1998)8 SCC-1
: (Whirlpool Corporation-V-Registrar of Trade
Marks, Mumbai & Ors.).
5. 2003(8) SCC 715 : (West Bengal State Electricity Regulatory
Commission-V- CESC Ltd.)
6.AIR 2010 SC 2061 : (Chhatisgarh State Electricity Board-V-Central
Electricity Regulatory Commission & Ors.).
7.AIR 2002 SC 3588 : (W.B. Electricity Regulatory Commission-VCESC. Ltd. etc. Etc.)
For Petitioners
- Mr. J. Patnaik, Sr.Advocate

M/s. B. Mohanty, T.K. Patnaik, R.P. Roy,
A.Patnaik, S. Patnaik & M.S. Rozvi.
For Opp.Parties - M/s. Pradipta Ku. Mohanty, D.N. Mohapatra.

Smt. J. Mohantyt, P.K.Nayak & S.N. Das,
(for O.P. No.2)
Mr. B.K. Nayak (for O.P.No.1).
B.N.MAHAPATRA,J.
In all these writ petitions the common prayer is
to quash the order dated 23.8.2012 passed under Annexure-1 by opposite
party No.1-Odisha Electricity Regulatory Commission (for short, OERC) on
the ground that the same is void ab initio. Except W.P.(c) No.16195 of 2012
in all other writ petitions further prayer is made to quash the take or pay
tariff in reducing the special rebate i.e., 50 paisa to 30 paisa per unit and
restrain opp. Party no.2 from recovering the special rebate from the bill of the
petitioners showing it as arrear. In W.P.(c) No. 16195 of 2012, a further
prayer is made to quash the letter dated 27.8.2012 passed under Annexure3 issued by the Executive Engineer (Electrical), RED, WESCO, Rajgangpur
requesting the petitioner to submit his consent along with the undertaking to
opt for the revised take or pay Tariff Scheme latest by 30.8.2012.
698
[2013]
2.
Since the relief claimed in all these writ petitions is similar in nature
they are dealt with together by this common order.
3.
Mr. Jagannath Patnaik, learned Senior Advocate appearing on behalf
of the petitioners submits that the suo motu review order dated 23.8.2012
passed in Case No. 48/2012 under Annexure-1 is not sustainable in law.
Suo motu review power is not available to the Commission under the statute.
Section 94 of the Electricity Act, 2003 (for short, the Act, 2003) provides
that the appropriate Commission shall, for the purpose of any enquiry or
proceeding under the Act, 2003, have the same power as are vested in a
Civil Court under the Code of Civil Procedure, 1908 in respect of matters
enumerated in Section 94 of the Act. Under clause (f) of sub-section (1) of
Section 94, the Commission has the power of reviewing its decisions,
directions and orders. According to Mr. Patnaik, Section 94 (1)(f) does not
authorize suo motu review of decisions/directions or orders. Power of review
is a creature of statute. It is confined to the four corners of Sec.94(1)(f) of the
Act, 2003. The provision imports the Code of Civil Procedure, 1908 in
respect of review. The relevant provisions of the said Code are Sec.114 and
Order47, Rule 1. None of these provisions admit of suo motu review. A
review by a Civil Court can only be moved by an application by an aggrieved
party. Therefore, to the extent that Regulation 70 of Business Regulations
provides for suo motu review, the said Regulation is ultra vires Sec. 94(1)(f)
of the Act, 2003. Consequently, the suo motu revision order passed under
Annexure-1 is void. Moreover, the order under Annexure-1 which
retrospectively takes away the petitioners right and benefits under its
subsisting scheme formulated in paragraph 262 of the Retail Supply Tariff
Order dated 23.3.2012 in Case No.93-96 of 2011 for financial year of 201213 in regard to take or pay tariff for HT and EHT industries with guaranteed
load factor, five months after such promulgation is entirely arbitrary and mala
fide. The tariff proceedings of opp. Party no.1 are governed by Sections 61,
62, 63, 64 and 65 and 86 (1) (a) and (b) of the Act, 2003. Nothing in these
provisions or any other provision of the Act, 2003 authorizes a suo motu
proceeding in relation to tariff. A proceeding for determination of tariff can
only be initiated by an application by a licensee or generating company, vide
Sec. 64(1) and that being so, a proceeding for amendment of a tariff order
must also be moved by an application for the purpose and facts
necessitating amendment must be established before opp. Party no.1. The
petitioners come under HT/EHT category in the current tariff for financial
year 2012-13 and subject to a special take or pay scheme optionally
available to it. The petitioners shall be liable to pay slab rate of energy
charges as per the tariff notified in order dated 23.3.2012. The Commission
after due consideration of suggestions of DISCOMs and views of the
699
[B.N.MAHAPATRA,J]
HT/EHT industries decided to implement the take or pay scheme for

financial year 2012-13 with certain stipulations. Neither any of the DISCOMs
nor the petitioners or any other HT/EHT consumer has appealed against the
said tariff order. Thus the said part of the tariff order has become final.
Therefore, the suo motu review order dated 23.8.2012 is contrary to law.
Finality of a tariff order at least for whole financial year is a salutary policy of
the law. It promotes stability in cost of production of goods and services and
conduces to rational economic growth of industrial and other large
consumers through proper planning, and this leads to increase in demand
for electricity in the long run. This is the rationale behind Section 62(4) which
permits no more than a single amendment to the tariff in a financial year and
that amendment should be demonstrably necessary and not fanciful or
whimsical. Without stability there can be no development of the market as
enjoined in Sec. 66 of the Act, 2003.
4.
Opposite Party No.1 passed the impugned order on 23.8.2012 under
Annexure-1 completely abolishing the existing load factor formula for the
take or pay scheme of concessional tariff for HT and EHT consumers
replacing it by a novel, untried formula by a cryptic, arbitrary order without
discussing and having inputs from any stakeholder regarding its nature,
efficacy and impact and without showing how it better serves the purpose of
the scheme. Opp. Party no.1 has taken everyone by surprise by introducing
a novel formula in two cryptic and unspeaking paragraphs. Such tariff has
been passed specially for HT and EHT consumers. In paragraph 22 of
Annexure-1, it has been directed that those consumers who opt for revised
take or pay as earlier ordered shall avail a special rebate of 30 paisa per
unit for the entire consumption of energy. Thus the rebate has been reduced
from 50 paisa to 30 paisa per unit without explaining why and without
determining whether 30 paisa per unit is good enough incentive. The
appellate Tribunal for Electricity has no jurisdiction to deal with and
determine these issues as it is a creature of the Electricity Act, 2003.
Therefore, the petitioners invoke the extraordinary jurisdiction of this Court
under Articles 226 & 227 of the Constitution of India.
5.
Mr. Patnaik, learned Senior Advocate submits that introduction of
concept of assured energy is unknown to the Statute. Under Section 181,
the Commission has to make regulation in consistent with the Act, 2003.
Placing reliance on the decision of this Court in the case of TISCO v. State
of Orissa, 170 (25) STC 171, it is submitted that alternative remedy is not a
bar to invoke the writ jurisdiction of the High Court. Mr. Pattnaik also relied
upon the judgment of Honble Supreme Court in the case of Executive
Engineer, Southern Electricity Supply Company of Orissa Limited (Southco)
700
[2013]
and another v. Sri Seetaram Rice Mill, (2012) 2 SCC 108, Union of India and
others. Vs. Tantia Construction Private Limited; (2011) 5 SCC 697, and
Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others,
(1998) 8 SCC-1. Opposite party No.1 lacks inherent jurisdiction to redesign
the take or pay tariff scheme 2012-13 in midway by introducing a concept of
assured energy which is very much patent to the statute and the regulation
at large. Opposite parties committed gross illegalities by effectuating revised
pay tariff retrospectively with effect from 1st July, 2012. Since there is no
error in the RST order dated 23.3.2012 passed by the Commission for which
the review proceeding of the order dated 23.3.2012 by opp. Party no.1 is not
maintainable and liable to be quashed. Regulation 70(1) postulates that the
Commission may on its own motion, or on the application of any of the
person or parties concerned, within 90 days of the making of any decision,
direction or order, review such decision, directions or orders and pass such
appropriate orders as the Commission thinks fit. But in the instant case, the
Commission has not reviewed the order dated 23.3.2012 within 90 days.
6.
In the bill for the month of July, 2012 issued by opposite party No.2 to
the petitioner there was a concept of rebate, but in the bill for the month of
August, 2012 there was no concept of rebate and now opposite party No.2 in
a whimsical manner is trying to recover the special rebate from the petitioner
showing it as arrear which is illegal, unreasonable and thus the same is
liable to be set aside. The action of opposite parties to recover the special
rebate from the bill of the petitioner-company showing it as arrear is per se
unreasonable, illegal in the eye of law. In the bill issued for the month of
August, 2012, there is no rebate of 30 paisa which speaks about the
whimsical attitude of the opposite parties and therefore, the same is liable to
be set aside. Mr. Patnaik further submitted that in the interest of justice the
recovery of rebate from the bill of the petitioners-Companies and 30% of the
bill amount be stayed till disposal of the writ petition.
7.
Mr. P.K. Mohanty, learned counsel appearing for opp. Party no.2WESCO filed a memo enclosing copy of letter No.7729(3) dated 27.8.2012
issued by opp. Party no.2-WESCO to the petitioner asking as to whether it
opts to continue in Take or Pay Tariff Scheme and also so revised as per
impugned order under Annexure-1. Petitioners industry in replying to the
above letter, declined and said not to continue any further the Take or Pay
Tariff Scheme.
8.
Mr. Mohanty, learned counsel for opposite party No.2 submits that as
per the special agreement executed between the petitioner and opp. Party
no.2, the previous take or pay tariff will operate as per Clause No.1 until
expiry of the present RST Order, i.e., order dated 23.3.2012. As per Clauses
701
[B.N.MAHAPATRA,J]
2.2 and 2.3 of the said special agreement it has been accepted by the
parties that the OERC can review the initial take or pay scheme after three
months. Thus, the impugned review order is wholly justified and binding on
the parties and the petitioner is estopped by law of estoppel to challenge the
same. If the industrial consumer does not agree or opt to continue in the
scheme, it can pay as per the general tariff for its category which have also
been provided in the RST Order dated 23.3.2012 for the financial year 201213. Implication of the terms of the Special Agreement for take or pay
privilege has already expired as its duration was till the passing of the
impugned review and/or amended order. The main tariff order dated
23.3.2012 involves highly technical, financial and commercial aspects which
can also be amended even normally once in a year as per Sec. 62(4) of the
Act, 2003. Any Order passed by the appropriate Commission i.e. OERC is
appealable to the Appellate Tribunal for Electricity under Sec. 111 and
ultimately against order of the Appellate Tribunal appeal is to be preferred
under Section 125 of the Act, 2003 to the Honble Supreme Court. Mr. P.K.
Mohanty further submitted that WESCO has filed appeal before the
Appellate Tribunal of Electricity challenging RST order dated 23.03.2012
passed by the OERC wherein amongst other issues, the issue of Take or
Pay Tariff scheme has also been challenged and the matter is pending
before the learned Tribunal. No interim order can be given like final order.
9.
Placing reliance upon the decision of the Honble Supreme Court in
the case of West Bengal State Electricity Regulatory Commission v. CESC
Ltd. in 2003 (8) SCC 715, it was submitted that the writ petition is not
maintainable and proper remedy available to the petitioner is appeal. In
support of his contention, Mr. Mohanty also relied upon the judgment dated
14.09.2011 of the Honble apex Court in Civil Appeal Nos.5775/5780 of
2007, U.P. Power Corporation Ltd. V. NTPC Ltd. and others with C.A. Nos.
725-730/2008.
10.
Mr. B.K. Nayak, learned counsel appearing for OERC submitted that
the present writ petitions are not maintainable as alternative remedy is
available under the statute. Further, referring to Rule 9 of the General Rules
Concerning the Proceeding before the Commission, Mr. Nayak submitted
that while issuing the notice, the Commission may, in suo motu proceedings
and in appropriate cases, designate an Officer of the Commission or any
other person whom the Commission considers to be appropriate to present
the matter in the capacity of the petitioner in the case. It is further submitted
that under Rule 70(1), the Commission may on his own motion, or on the
application of any of the persons or parties concerned, review such decision,
directions or orders and pass such appropriate orders as the Commission
thinks fit. Therefore, there is no illegality in passing the impugned order.
702
[2013]
11.
On the rival contentions of both parties, the following questions fall
for consideration by this Court:
(i)
Whether Regulation 70(1) is ultra vires Sec. 94(1)(f) of the Act, 2003 ?
(ii)
Whether the present writ petition is maintainable on the ground of

availability of statutory alternative remedy?
(iii)
Whether the order passed by opp. Party no.1-OERC under Annexure1 dated 23.8.2012 is sustainable in law?
12.
Question No.(i) is whether Regulation 70(1) is ultra vires Sec. 94(1)(f)
of the Act, 2003. The petitioners have neither pleaded in the writ petitions
nor made a prayer to the effect that Regulation 70 (1) is ultra vires the Act,
2003. Law is well settled that a party has to plead the case and
produce/adduce sufficient evidence to substantiate his statement made in
the petition and in case the pleadings are not complete, the Court is under
no obligation to entertain the pleas. (See Bharat Singh and others v. State of
Haryana and others, AIR 1988 SC 2181.)
As stated above, since there is no pleading or any prayer to the
effect that Regulation 70 is ultra vires Section 94(1)(f) of the Act, 2003, the
argument advanced in that regard to declare Regulation 70 of Business
Regulations ultra vires Sec. 94(1)(f) of Act, 2003 is not entertained and
rejected.
13.
So far question no.(ii) is concerned, the petitioners are consumers
under the Electricity Act, 2003 and Rules made thereunder. They also come
under HT/EHT category. They are challenging the legality and validity of the
suo motu review order dated 23.8.2012 passed by opp. Party no.1-OERC
under Regulation 70 (1) of the OERC (Conduct of Business) Regulations,
2004. Under Regulation 70(1) power is vested with OERC to exercise power
of suo motu review. Therefore, it cannot be said that OERC opp. Party no.1
lacks inherent jurisdiction to exercise the power of suo motu review. It is
contended by the petitioners that such suo motu review has been exercised
after 90 days from the date of original tariff order dated 23.3.2012. The stand
of opposite party Nos. 1 and 2 is that in the original tariff order 23.3.2012 a
condition was stipulated to review the order after three months and that tariff
order has been accepted and acted upon by the petitioners. In any event, it
cannot be said that OERC lacks inherent jurisdiction to pass such order as
contended by the petitioners.
14.
Section 110 provides establishment of Appellate Tribunal. The said
section envisages that any person aggrieved by an order made by an
703
[B.N.MAHAPATRA,J]
adjudicating officer under the Act, 2003, (except under Section 127) or an
order made by the appropriate Commission under the Act may prefer an
appeal to the Appellate Tribunal for Electricity. Section 112 provides
composition of Appellate Tribunal which envisages that the Appellate
Tribunal shall consist of a Chairperson and three other Members. Section
113 provides qualification for appointment of Chairperson and Members of
Appellate Tribunal as under:
A person shall not be qualified for appointment as the Chairperson
of the Appellate Tribunal or a Member of the Appellate Tribunal
unless he
(a)
in the case of the Chairperson of the Appellate Tribunal, is, or has

been, a judge of the Supreme Court or the Chief Justice of a High
Court; and
(b)
in the case of a Member of the Appellate Tribunal;
(i)
is, or has been, or is qualified to be, a Judge of a High Court, or
(ii)
is, or has been, a Secretary for at least one year in the Ministry or
Department of the Central Government dealing with economic affairs
or matters or infrastructure; or
(iii)
is, or has been, a person of ability and standing having adequate

knowledge or experience in dealing with the matters relating to
electricity generation, transmission and distribution and regulation or
economics, commerce, law or management.
15.
The above provisions clearly demonstrate that the Tribunal is
consisting of Judicial Member and Technical Member having adequate
knowledge or experience in dealing with the matters relating to electricity
generation, transmission and distribution and regulation or economics,
commerce, law or management or is, or has been, a Secretary for at least
one year in the Ministry or Department of the Central Government dealing
with economic affairs or matters or infrastructure. Thus, the Tribunal is an
expert body and determination of tariff made by the Commission involves a
very highly technical procedure requiring knowledge of law, engineering,
finance, commerce, economics and management which can be effectively
adjudicated by the Tribunal for electricity.
16.
The Honble Supreme Court in the case of Chhatisgarh State
Electricity Board v. Central Electricity Regulatory Commission and
others, AIR 2010 SC 2061, held as under :
704
[2013]
11. The brief analysis of the scheme of the Electricity Act shows that
it is a self-contained comprehensive legislation, which not only
regulates generation, transmission and distribution of electricity by
public bodies and encourages public sector participation in the
process but also ensures creation of special adjudicatory mechanism
to deal with the grievance of any person aggrieved by an order made
by an adjudicating officer under the Act except under Section 127 or
an order made by the appropriate commission. Section 110 provides
for establishment of a Tribunal to hear such appeals. Section 111(1)
and (2) lays down that any person aggrieved by an order made by
an adjudicating officer or an appropriate commission under this Act
may prefer an appeal to the Tribunal within a period of 45 days from
the date on which a copy of the order made by an adjudicating
officer or the appropriate commission is received by him. Section
111(5) mandates that the Tribunal shall deal with the appeal as
expeditiously as possible and endeavour to dispose of the same
finally within 180 days from the date of receipt thereof. If the appeal
is not disposed of within 180 days, the Tribunal is required to record
reasons in writing for not doing so. Section 125 lays down that any
person aggrieved by any decision or order of the Tribunal can file an
appeal to this Court within 60 days from the date of communication
of the decision or order of the Tribunal. ..
17.
The Honble Supreme Court in the case of W. B. Electricity
Regulatory Commission v. C.E.S.C. Ltd. etc. etc, AIR 2002 SC 3588, held
as under:
101. We notice that the Commission constituted under Section 17 of
the 1998 Act is an expert body and the determination of tariff which
has to be made by the Commission involves a very highly technical
procedure, requiring working knowledge of law, engineering, finance,
commerce, economics and management. A perusal of the report of
the ASCI as well as that of the Commission abundantly proves this
fact. Therefore, we think it would be more appropriate and effective if
a statutory appeal is provided to a similar expert body, so that the
various questions which are factual and technical that arise in such
an appeal, get appropriate consideration in the first appellate stage
also. From Section 4 of the 1998 Act, we notice that the Central
Electricity Regulatory Commission which has a Judicial Member as
also a number of other Members having varied qualifications, is
better equipped to appreciate the technical and factual questions
involved in the appeals arising from the orders of the
Commission.
705
[B.N.MAHAPATRA,J]
18.
A Division Bench of this Court vide judgment dated 30.03.2012 in the
case of Keonjhar Navanirman Parisad and others vs. State of Odisha and
others (in W.P.(C) No.8409 of 2011, held as under:
5.
We are of the view that in a matter of fixation of tariff, this
Court should not exercise its jurisdiction under Articles 226 and 227
of the Constitution of India, and, therefore, we are not inclined to
entertain the writ application, so far as the correctness of the fixation
of tariff is concerned and it is open to the petitioners to raise the
same before the appropriate statutory forum.
19.
Mr. P.K. Mohanty, learned counsel also submitted that WESCO has
filed appeal before the Appellate Tribunal for electricity (I.A. No.274 of 2012
in DPR No.1078 of 2012) challenging the RST Order dated 23.03.2012
passed by the OERC wherein amongst other issues, the issue of Take or
Pay Tariff Scheme has also been challenged.
20.
In view of the above, this Court is not inclined to entertain these writ
petitions. It is open to the petitioners to approach the Appellate Tribunal for
electricity challenging the legality and validity of the impugned order passed
under Annexure-1 dated 23.8.2012.
21.
In view of the answer to question nos.(i) and (ii) as stated above,
there is no need to answer question no.(iii).
22.
The writ petitions are accordingly disposed of. There shall be no
order as to cost.
706
2013 ( I ) ILR - CUT-706
B. N. MAHAPATRA, J.
W.P.(C) NO. 7429 OF 2012 (Dt.23.11.2012)
NABIN CHANDRA MAJHI
...Petitioner
.Vrs.
STATE OF ODISHA & ORS.
..Opp.Parties
ODISHA GRAMA PANCHAYATS ACT, 1964 S.122 (3)

Petitioner working under Gram Panchayat Appointed as
Election Officer Rajpur G.P. Allegation of irregularity against him
Collector passed order of suspension Action taken by the Collector
affects the spirit of self Governance of Gram Panchayats as provided
Under Article 243-G of the Constitution of India Held, Gram
Panchayat has jurisdiction to initiate disciplinary proceeding but not
the Collector Order of suspension passed by the Collector, Kalahandi
and article of charges framed by him are quashed.
(Para 13 to 17)
Case laws Referred to:1.2008 (II) OLR 530
2.2009(I) OLR 1020
: (Fakir Mohan Das & Ors.-V- Government of Orissa

& Ors.)
: (Nabakishore Mishra-V- Collctor, Dhenkanal & Ors.)
For Petitioner - Mr. Sukanta Kumar Dalai.

For Opp.Parties - Mr. Somanath Mishra,
Addl. Govt. Advocate.
B.N. MAHAPATRA, J.
This writ petition has been filed with a prayer to
quash the order of suspension dated 09.04.2012 passed by the Collector,
Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges
framed by the Disciplinary Authority-cum-Collector, Kalahandi vide order
dated 09.04.2012 in D.P. Case No.111 under Rule-15 of OCS (CCA) Rules,
1962 and Orissa Grama Panchayat Act, 1964.
2.
Petitioners case in a nutshell is that the petitioner was appointed as
Grama Panchayat Secretary in Dashigaon Grama Panchayat. Thereafter,
the petitioner was promoted to the post of V.L.W. vide letter No.760/GP
dated 26.06.2009 of Collector, Kalahandi. On 05.01.2011, he was appointed
as Election Officer for Rajpur Grama Panchayat by the B.D.O.-cum-Election
Officer, Junagarh as per programme schedule communicated by the State
707
NABIN CHANDRA MAJHI -V- STATE
[B.N. MAHAPATRA, J.]
Election Commission of Odisha. The petitioner was directed to accept

nomination papers for the Office of Sarpanch and Ward member of Rajpur
Grama Panchayat from 07.01.2012 to 12.01.2012. It has been alleged that
the petitioner during the aforesaid period acted in a very careless manner
and committed gross error in contravention of Election Rules of the State.
According to such allegation, one Smt. Bilash Majhi, wife of Narendra Majhi
of Village Rajpur was issued with nomination papers by the petitioner in the
capacity of Election Officer on 11.01.2012 for the post of Sarapanch of
Rajpur Grama Panchayat and on the same day she submitted her
nomination for the post of Sarapanch in Form-IV and it was received by the
petitioner at 2.55 PM. Said Smt. Majhi was again issued nomination paper
for the post of Ward member of Ward No.9 of the Grama Panchyat on the
next day, i.e., 12.01.2012 and the same was submitted by her on the same
day which was received by the petitioner in the capacity of Election Officer at
1.35 PM. It is alleged that multiple nomination is restricted under Section
11(a)(i) of the Orissa Grama Panchayats Act, 1964. Therefore, it is alleged
that the petitioner allowed Smt. Bilasha Majhi to submit nomination papers
for both the posts, i.e., Sarapanch and Ward Member and also declared both
the nomination papers valid. As Smt. Majhi was only candidate for the post
of Ward Member of Ward No.9 she was declared uncontested. Had the
petitioner reported the matter to B.D.O., Junagarh, he would not have
allowed Smt. Majhi to contest in the election for the post of Sarapanch. But
the petitioner deliberately concealed the matter as a result of which Smt.
Majhi was allowed to contest both for the post of Sarapanch and Ward
Member and she also own the election to the post of Sarapanch by securing
maximum of 1025 votes as per result declared by the Election Officer in
Form No.8(B). Thus, it is alleged that the petitioner kept the Election Officercum-B.D.O., Junagarh Block in darkness till the notification of result by the
Election Officer for the post of Ward Member and Sarapanch was declared
on 24.02.2012. It is only on that day vide Notification No.505 dated
24.02.2012 it was disclosed that such type of irregularities has occurred in
the election of Junagarh which is attributed to the petitioner. The Election
Officer, Junagarh Block as well as District Administration was put to an
embarrassing situation due to winning of one candidate for both the posts of
Ward Member and Sarapanch. Thus the petitioner acted carelessly and
rendered undue help to the concerned candidate and committed irregularity
deliberately in connivance with the candidate to ensure that she would retain
the post of Ward Member even if she would be defeated in the election of
Sarapanch. With these allegations, the order of suspension dated
09.04.2012 and the article of charges of even date were issued. Hence, the
708
[2013]
3.
Mr. Dalai, learned counsel appearing for the petitioner submitted that
Smt. Bilash Majhi was the only member of Ward No.9. Therefore, she was
declared elected uncontested. Subsequently, the election for the office of
Sarapanch was held on the scheduled date and Smt. Majhi secured 1025
votes and declared elected as Sarapanch by Notification in Form-8(B). Mr.
Dalai further submitted that while framing charges against the petitioner on
09.04.2012 the Collector, Kalahandi in the capacity of Disciplinary Authority
has issued the suspension order under Annexure-2. Opposite party No.3,
who was the Election Officer for Junagarh Block, after the election period
was over, with a malafide intention and giving a false identification stating
himself as Election Officer has signed in the charge paper which shows the
misconduct and malafide intention of the authority while framing charges
against the present petitioner. So entire framing of charge is defective. It is
further submitted that there is no prohibition for issue of nomination papers
to different persons who intended to participate in the election process.
Petitioner was appointed as Election Officer for the limited purpose by
opposite party No.3 for accepting nomination papers. Rule-29 speaks that
the Election Officer shall at the appointed time, date and place receive
nomination papers separately for the Office of the members and Sarapanch
in Form No.4 and scrutinize them in presence of the candidates, their
proposers and seconders, if any. If he finds that the candidates are duly
qualified in accordance with the provisions of Section-11 and not disqualified
under any of the clauses of Section 25 of the Act, he shall approve their
candidature. Objections, if any, filed in the course of scrutiny shall be
enquired into summarily by the Election Officer and his decision accepting or
rejecting nomination papers shall be endorsed on the body of the nomination
papers with reasons for the decision. In the instant case, there was no
objection from any corner and accordingly after acceptance of the
nomination papers, it was duly communicated to opposite party No.3. The
petitioner has carefully scrutinized the nomination papers. Section 29 deals
with penalty for misconduct of elections, but in the aforesaid Section there is
no observation regarding the improper acceptance of the nomination papers.
Section 30 provides that no election of a person as a member of a Grama
Panchayat or as Sarapanch or Naib Sarapanch held under the Act shall be
called in question except by an Election Petition presented in accordance
with the provision of Chapter-V. Section 38 deals with decision of competent
Court to declare another candidate to have been duly elected and all orders
of the competent Court shall subject to the provisions of Sub-section (4) be
final and conclusive or to declare a casual vacancy to have been created.
Therefore, while the election petition is pending before the Election Tribunal
issuance of suspension order and framing of charges gives very bad taste
and is contrary to the statute.
709
4.
Mr.Dalai submitted that opposite party No.3 has the sole
responsibility and he is the person to be punished. Only to shift the
responsibility, the impugned orders have been issued which are not
permissible under law. Issuance of order of suspension and framing of
charge by opposite party No.2 is not only arbitrary, but also malafide and
discriminatory in nature. In the district of Kalahandi, in other Grama
Panchayats also the same mistake has been pointed out and it has been
rectified by the State Election Commission and there is no punishment or
any sort of charge has been framed against the officers concerned and no
order of suspension also has been issued against them, but the petitioner
has been victimized due to ill intention of the authorities. It is further
submitted that the authorities have exceeded their jurisdiction and in a
whimsical manner issued the order of suspension. Mr. Dalai further
submitted that had the State Election Commission taken a decision against
the present petitioner due to misconduct and non-compliance of the
direction, the matter would have been different. Since the petitioner was on
deputation, at a belated stage when the petitioner is neither working under
the State Election Commission nor under the Collector, Kalahandi action has
been taken, which is per se illegal.
5.
It was further argued that the order of suspension and framing of
charges have been issued on 09.04.2012 when the petitioner was working
as Panchayat Executive Officer under Dashigaon Grama Panchayat. It is not
correct that the petitioner while working as VLW has committed gross
irregularity. While the petitioner was working as Panchayat Executive Officer
under Dashigaon Grama Panchayat, he was appointed as Election Officer
for the said period. In view of Section-9 of the said Act, superintendence,
direction and control of the preparation of electoral roles for conduct of all
election of Grama Panchayats shall be vested in the Election Commission
and all the officers from the date of notification till declaration of the election
result are under the control of the Election Officer and in view of the
aforesaid provision the petitioner was working under the State Election
Commission as Election Officer and not as VLW. So the entire observation
and statement is misleading.
6.
It is further argued that while the petitioner working as Panchayat
Executive Officer under Junagarh Block he was completely under the control
of the Grama Panchayat and neither the State Government nor the Collector
has any authority to initiate disciplinary action against the petitioner as per
Section-122(3) of the Act, 1964 which has been declared by this Court ultra
vires the Constitution. Therefore, the proceeding initiated by opposite party
No.2 is illegal. The entire allegation has been made against the petitioner
while he was working as Panchayat Executive Officer. As per the decision of
710
[2013]
this Court, the Secretary who is working under the Grama Panchayat is not
holding a Civil Post. The Grama Panchayat is the master of the Secretary
and the State Government has no authority at all to take any disciplinary
action against the Secretary. After amendment of Section 122, power of
superintendence and supervision was vested with the Collector, but in view
of the judgment of this Court in the case of Fakir Mohan Vrs. Government,
2008 (II) OLR 530 such amendment has been declared as ultra vires.
Subsequently, in case of Nabakishore Mishra Vrs. Collector, Dhenkanal,
2009(I) OLR 1020, it has been observed that the Collector cannot have any
control over the services of VLWs posted as Panchayat Executive Officers in
the Grama Panchayats. Their services are under the control of Grama
Panchayat. Thus, the Collector has no authority to initiate disciplinary
proceeding against the petitioner who was working as Panchayat Executive
Officer.
7.
Mr. Dalai referring to Section 122(2) of the Act, 1964 submitted that
VLWs and VAWs working in a district, for the purposes of Sub-section (1),
act as Executive Officers within the local area of such Grama or Gramas as
may respectively be assigned to them by the Collector. Referring to affidavit
of the petitioner dated 26.04.2012, Mr. Dalai submitted that the petitioner
was placed under suspension while working as Panchayat Executive Officer
under Dashigaon Grama Panchayat. Referring to Notification dated 10th
February, 2009 in which (Orissa Act 7 of 2009) the Orissa Grama
Panchayats (Amendment) Act, 2008 has been published, Mr. Dalai
submitted that as per Section 3 of the said Amended Act, 2008 subject to
the provision of Sub-section (1), the Executive Officer shall function under
the control and supervision of the Grama Panchayat. Mr. Dalai further
placing reliance on Rule 216(b) of Orissa Grama Panchayat Rules, 1968
submitted that Grama Panchayat may suspend the petitioner from office of
the Secretary of the Grama Sasan pending disposal of the proceedings
against him or if he has been detained in prison during trial, under the
provisions of any law for the time being in force. It was submitted that in any
event, Collector has no power to initiate proceeding and suspend the
petitioner.
8.
Mr. Somanath Mishra, learned Additional Government Advocate
appearing for opposite party-State Authorities submitted that law is wellsettled that authority competent to appoint a public servant would be entitled
to suspend him during pendency of the departmental enquiry. In the instant
case, the petitioner while working as Grama Panchayat Secretary has been
promoted to the post of VLW temporarily, which is a Civil Post. The
suspension order has been passed against the petitioner, who has been
711
posted as VLW, which has been issued by the order of the Collector,
Kalahandi. According to Mr.Mishra, post of VLW is a Civil Post. Therefore,
the Collector is competent to place the petitioner under suspension.
Mr.Mishra submitted that the two judgments relied upon by learned counsel
for the petitioner are not applicable in case of VLW. The petitioner was
appointed as Grama Panchayat Secretary and duly approved by the District
Panchayat Officer. During the year 2004 further recruitment of G.P.
Secretary was stopped vide letter No.16017 dated 18.10.2004 of
Panchayatiraj Department, Odisha, Bhubaneswar. Therefore, vide
Resolution No.47214 dated 11.12.2008 of P.R. Department, Government of
Odisha framed Rules for promotion of G.P. Secretary to the post of VLW.
Accordingly, the petitioner was promoted to the post of VLW vide letter
No.760/GP dated 26.06.2009 of Collector, Kalahandi. Petitioner while
working as VLW his services was placed under Election Commission and he
was discharging duties as Election Officer of Rajpur Grama Panchayat.
During discharge of his duties as Election Officer, he committed grave
irregularity in election work. Hence, he was placed under suspension.
Charges framed against the petitioner are not at belated stage. Clarification
was sought for from the State Election Commission, Odisha and the
Commission has instructed to deal with the matter as per provision under
Section 26 of the Act, 1964 and initiate disciplinary proceeding against the
designated Election Officer vide letter No.3678/SEC dated 01.03.2012
(Annexure-D/2 to the counter) and according to such instruction, the
petitioner has been placed under suspension and also draft charges framed
against him under Rule-15 of O.C.S. (CCA) Rules, 1962. The period of
charges is relating to General Election to P.R.Is., 2012. Therefore, the
charges framed against the petitioner are not defective.
9.
As per the provisions of Section 11(a)(i) of the Act, 1964 no member
of a Gram Sasan shall be eligible to stand for election as a Sarapanch if he
is a candidate for election as a Member of the Grama Panchayat in respect
of any Ward. Petitioner is a responsible Government servant who neglected
in government duty and suppressed the fact while discharging the duty of
Election Officer of Rajpur Grama Panchayat. Therefore, he has rightly been
placed under suspension. The post of Grama Panchayat Secretary is not a
civil post as per the provision of Rules 4 and 8 of Odisha Village Level
Workers (Recruitment and Conditions of Service) Rules, 2008 read with
Resolution No.4947/PR dated 07.04.2009. The District Level Selection
Committee have selected 97 numbers of eligible G.P. Secretary for
promotion to the rank of VLWs which is a civil post wherein the petitioner as
G.P. Secretary has been selected and promoted to the rank of VLW vide Sl.
No.62 of Order No.760/G.P. dated 26.06.2009 of the Collector, Kalahandi.
712
[2013]
Therefore, his services is under the control of Collector, Kalahandi. The

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

initiate the disciplinary action against the petitioner, who was
appointed and functioned as VLW of Dashigaon Grama Panchayat
in the year 2009 for the alleged irregularity committed by him, which
amounts to gross mis-conduct while appointed as designated
Election Officer for the purpose of issue, receipt, scrutiny of
nomination paper for the posts of Sarpanch and Ward Member of
Rajpur G.P.?
(ii)
Whether the order of suspension dated 09.04.2012 passed by the

Collector, Kalahandi under Rule-12 of O.C.S. (CCA) Rules, 1962
713
and article of charges framed by the Collector, Kalahandi as

Disciplinary Authority vide order dated 09.04.2012 in D.P. Case
No.111 under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama
Panchayat Act, 1964 are sustainable in law ?
11.
Since both the questions are interlinked, they are dealt with together.
12.
Facts which are not in dispute are that initially the petitioner was
appointed as Grama Panchayat Secretary and such appointment was duly
approved by the District Panchayat Officer. During the year 2004, further
recruitment of G.P. Secretary was stopped vide letter No.16017 dated
18.10.2004 of Panchayatiraj Department, Odisha, Bhubaneswar. Therefore,
vide Resolution No.47214 dated 11.12.2008 of P.R. Department
Government of Odisha framed Rules for promotion of G.P. Secretary to the
post of VLW. Accordingly, the petitioner was promoted to the post of VLW
vide letter No.760/GP dated 26.06.2009 of the Collector, Kalahandi. While
the petitioner was working as Grama Panchayat Executive Officer under
Dashigaon Grama Panchayat, on 05.01.2011, he was appointed as Election
Officer for Rajpur G.P. by the B.D.O.-cum-Election Officer, Junagada. As per
the programme schedule communicated by the State Election Commission
of Odisha, the petitioner was directed to accept nomination paper for the
Office of Sarapanch and Ward Member of Rajpur G.P. from 07.01.2011 to
12.01.2012. It has been alleged that the petitioner during the aforesaid
period has acted in a very careless manner and committed gross error in
contravention of the Election Rules of the State for which the aforesaid order
of suspension has been passed and article of charges has been framed by
the Collector, Kalahandi. The sole contention of the petitioner is that the
Collector, Kalahandi, has no jurisdiction to take disciplinary action against
the petitioner for which the order of suspension and framing of charges are
not sustainable in law. According to the petitioner, since the petitioner is
working under the Grama Panchayat, the Grama Panchayat has the
jurisdiction to initiate disciplinary action, if any, irregularity has been
committed.
13.
This Court in the case of Fakirmohan Das and others vs.
Government of Orissa and others, 2008 (II) OLR 530, held that Section
122(3) of the G.P. Act which provides that subject to general
superintendence and overall control of the Grama Panchayats, the Executive
Officer shall function under the control and supervision of the Director,
Collector and District Panchayat Officers are ultra vires the Constitution and
the Collector cannot have any control over the service of VLW/VLWs posted
as Executive Officer in Grama Panchayats. Relevant portion of the said
judgment is reproduced below:
714
[2013]
15.
Pre-amended Section 123 mentioned about the power, duties
and function of the Secretaries. After the amendment, the impugned
Section 122 provides that there shall be an Executive Officer for
every Grama Sasan and their duties have been described therein. It
has also been stated in Sub-section (2) that V.L.Ws. and V.A.Ws.
working in a district shall be the Executive Officer within the local
area of such Grama or Grama Panchayat as would be assigned to
them by the Collector. In Sub-section (3) thereof, it has been
provided that subject to the general superintendence and over all
control of the Grama Panchayats, the Executive Officers shall
function under the control and supervision of the Director, Collector
and District Panchayat Officers. Though generally petitioners
challenge each of the aspects relating to bringing into the system,
the Executive Officers, but they specifically attack this Sub-section
(3) calling it guillotining of self-governance.
xx
xx
xx
17.
When the matter stands thus, the criticism by the petitioners
on Sub-section (3) of Section 122 still remains to be considered.
Answer of the State Government on the aforesaid point is flimsy.
According to the counter affidavit of the opposite parties-State, the
workload in the Panchayats has increased and still likely to increase
many fold in view of different development schemes introduced by
both the Central Government and the State Government and huge
flow of money for development and therefore, additional staffs are
necessary to cope with that pressure of work and to properly monitor
and utilize of the funds allocated and allotted. This part of the logic of
the State also run consistent with the provision of law and the
competency of the State to create post and to assign/entrust work on
the new employees of the Panchayats. But the further logic of the
State that the V.A.Ws. and V.L.Ws. remaining in the duel charge are
to remain under the specific control and supervision of Director,
Collectors and District Panchayat Officers, as stated above is
unacceptable, inasmuch as, if the Executive Officers of the
Panchayats who have been bestowed with all responsibilities
relating to maintenance of records, registers and cash be kept under
the control of bureaucrats relating to their service conditions and
function, then the Panchayats cannot function within independence
and that is how that would interfere with the constitutional mandate
of self-government. For the reasons assigned by the State, if V.A.Ws
and V.L.Ws. are to function as Executive Officers, then their duties
and responsibilities with respect to the duties in the Panchayat and
their respective services should be within the control of the Grama
715
Panchayats, or else the Grama Panchayats may suffer for any

indiscipline or refusal or negligence to carry out the lawful order of
the Sarpanch or Panchayat, as the case may be. Apart from that
their may be clash of priority to carry out specific orders issued by
the two authorities (Panchayat and State).
xx
xx
xx
19.
For the aforesaid reasons, we dispose of these writ petitions
with the conclusion that the provisions in Section 122(3) of the Act
ultra vires the Constitution and in view of that the amended provision
in Sections 122 and 123 of the Act relating to appointment and
functioning of the Executive Officers cannot be done validly and
legally. As a consequence thereof, the Circulars at Annexures-1 and
3 are also quashed.
14.
Apart from the above, Orissa Act 7 of 2009, the Orissa Grama
Panchayats (Amendment) Act, 2008 published in Notification dated 10th
February, 2009 of the Orissa Gazettee amended sub-section(3) of Section
122 to the effect that subject to the provision of Sub-section (1), the
Executive Officer shall function under the control and supervision of the
Grama Panchayat.
15.
This Court in the case of Naba Kishore Mishra vs. Collector,
Dhenkanal and two others, 2009(I) OLR 1020 referring to the judgment of
this Court in the case of Fakirmohan Das and others (supra), quashed the
order of suspension issued by the Collector, Dhenkanal holding that the
Collector has no jurisdiction to suspend the Executive Officer of
Bangurusingh Grama Panchayat.
16.
In view of the above judgment of this Court in the case of
Fakirmohan Das and others (supra) and amendment of sub-section (3) of
Section 122 of the Orissa Grama Panchayats Act by Orissa Grama
Panchayats (Amendment) Act, 2008 published in the Notification dated 10th
February, 2009 of Orissa Gazette, this Court is of the view that the order of
suspension dated 09.04.2012 passed by the Collector, Kalahandi under
Rule-12 of O.C.S. (CCA) Rules, 1962 and article of charges framed by the
Collector, Kalahandi vide order dated 09.04.2012 in D.P. Case No.111
under Rule-15 of OCS (CCA) Rules, 1962 and Orissa Grama Panchayat
Act, 1964 issued are wholly without jurisdiction and accordingly, they are
quashed.
17.
Before parting with the judgment, it is felt necessary to observe that
while the petitioner was appointed as Election Officer for Rajpur G.P. by the
716
[2013]
B.D.O.-cum-Election Officer, Junagarh as per the programme schedule

communicated by the State Election Commission, Odisha, it is alleged that
he during the aforesaid period has acted in a very careless manner and
committed gross error in contravention of the Election Rules of the State. As
held above, the Executive Officer functions under the control and
supervision of the Grama Panchayat. Apart from that Sub-section (4) of
Section 27 of the G.P. Act provides that the Election Officers, Presiding
Officers and other officers appointed or designated for the time being for the
conduct of elections under the Grama Panchayat Act shall be deemed to be
on deputation to the Election Commission for the period commencing on the
date of the notification calling for such election and ending with the date of
declaration of the results of such election and, accordingly, such officers
shall, during that period, be subject to the control, superintendence and
discipline of the Election Commission.
9.
Therefore, it is open to the competent authority to initiate disciplinary
action against the petitioner for the alleged irregularity and mis-conduct
committed by him in accordance with law.
18.
In the result, the writ petition is allowed with the aforesaid
observation.
717
2013 ( I ) ILR - CUT- 717
B. N. MAHAPATRA, J.
W.P.(C) NO. 20648 OF 2012 (Dt.06.12.2012)
KIRANBALA ROUT
. Petitioner
.Vrs.
RASNAMAYEE ROY
..Opp.Party
ODISHA GRAMA PANCHAYAT ACT, 1964 S.31

Election Petition Petition shall be presented within 15 days
from the date of declaration of result Result of election declared on
21.02.2012 Election petition filed on 02.03.2012 without depositing
security for costs Security money deposited on 05.03.2012 No
provision in the Act that non-deposit of security money with the
election petition would result in dismissal of the election petition
Held, both filing of election petition and payment of security deposit
having made within the period of limitation i.e. 15 days, there is
substantial compliance of Section 31 of the Act No error in the
impugned order calling for interference of this Court.
(Para 22)
Case laws Referred to:1.2008(4) ALD 71, 2008(3) ALT 332 : (Maddipatla Jagan Mohan Rao, S/o.
Nagaiah -V-Akula Nagamalleswari,
W/o.Venkata Ramaiah & Ors.)
2.1991 RD 439
: (Shamsher Singh-V-VIIth Addl. District Judge,
Varanasi & Ors.)
3.AIR 1959 SC 827 : (Chandrika Prasad Tripathi-V-Shiv Prasad Chanpuria
& Ors.)
4.AIR 1958 SC 687 : (K. Kamaraja Nadar-V- Kunju Thevar & Ors.).
5.AIR 1978 SC 1583 : (Shiv Chand-V- Ujagar Singh & Anr.)
6.AIR 2002 SC 3105 : (M. Y. Ghorpade-V- Shivaji Rao M. Poal & Ors.)
7.AIR 1983 SC 558 : (M. Karunanidhi-V- H.V. Handa & Ors.)
For Petitioner - M/s. Anupam Rath & M. Panda.
For Opp.Party - M/s. Gautam Mishra & D.K.Patra.
B.N. MAHAPATRA, J.
The present writ petition has been filed with a
prayer to quash the impugned order dated 24.9.2012 passed by the learned
Civil Judge (Jr. Divn.), Jajpur (hereinafter referred to as Election ibunal) in
Election Misc. Case No.6 of 2012 wherein the Election Tribunal rejected
718
[2013]
petitioners prayer to dismiss the election petition as the same was not
presented together with the security deposit.
2.
Petitioners case in a nutshell is that the petitioner along with Election
Petitioner-opposite party contested to the post of Sarpanch, Kalamatia
Grama Panchayat in Bari Block, District-Jajpur in the year 2012. In the G.P.
Election, the petitioner was declared elected by the Election Officer-cumB.D.O., Bari. Opposite party challenges the election of the petitioner in
Election Misc. Case No.6/2012 before the Election Tribunal on the ground
that the petitioner is disqualified to be a candidate for the post of Sarpanch
as she has given birth to three children after 1995 i.e. after the cut-off date.
The result of election was declared on 21.2.2012 and the election petition
was filed on 02.03.2012 without being accompanied by deposit of Security
for costs as required under Section 31 of the Grama Panchayats Act. The
said amount of security money was deposited on 05.03.2012 that is after
three days of filing of the election petition. The Election Tribunal while
admitting the election petition issued show-cause notice to the petitioner and
on appearance before the Election Tribunal, an objection was filed by the
petitioner with a prayer to dismiss the election petition on the ground of noncompliance of statutory provision as laid down under Section 31 of the G.P.
Act. The said objection of the petitioner was rejected by the Election Tribunal
on the ground that though the security deposit was paid on a later date, the
same being paid within the period of limitation, election petition cannot be
dismissed. Hence, the present writ petition.
3.
Mr. A. Rath, learned counsel appearing for the petitioner submits that
the impugned order passed by the Election Tribunal is not 2sustainable as
the same has been passed whimsically without application of judicial mind
coupled with colourable exercise of powers.
A bare reading of Section-31 of the G.P. Act makes it clear that an
Election Petition is to be presented together with the deposit of the security
for costs. The word together signifies that an election petition whether filed
within the period of limitation or beyond the same has to be accompanied by
the prescribed deposit towards security for costs which has not been
complied with in the present case. Under Section 31 of the G.P. Act, there is
no scope for Election Tribunal to exercise any concession/discretion in case
of non-compliance of the statutory requirement of deposit of security
together with the Election Petition. The decision of the Election Tribunal
defeats the object behind the statutory requirement and thereby makes the
word together redundant. Such an interpretation by the learned Election
Tribunal is impermissible under law.
719
KIRANBALA ROUT-V- RASNAMAYEE ROY
4.
Learned Election Tribunal has passed a cryptic order without dealing
with arguments raised by the petitioner with respect to the judgment of the
Honble Supreme Court in the case of M.Y. Ghorpade Vs. Shivaji Rao M.
Poal and others, reported in AIR 2002 SC 3105 wherein the Honble
Supreme Court held that the requirement of making security deposit is
mandatory and the same has to be made while presenting an Election
Petition. If the statute provides a particular thing to be done in a particular
manner then it should be done in that manner alone and in no other way or
should not be done at all. The impugned order causes prejudice to the
petitioner, hence liable to be quashed. In 3support of his contention, he
relied upon the judgment of Honble Supreme Court in the case of Sarif-udDin vs. Abdul Gani Lone, AIR 1980 SC 303
5.
Mr. G. Mishra, learned counsel for opp. party submits that under
Section 31 of Orissa Grama Panchayats Act, 1965, power has been given to
the Election Tribunal to condone delay in presentation of election petition.
Similar power has also been given to condone delay in presentation of
election petition under Section 44-B of Panchayat Samiti Act. Under Section
10 of the Orissa Municipal Act, no such power has been given for condoning
the delay. Similarly under Section 81 of Representation of the People Act,
1950, no power is vested with the High Court to condone the delay. The
provisions contained in Section 81 of Representation of the People Act, 1950
are not available in G.P. Act or the Panchayat Samiti Act. The Division
Bench by its judgment dated 25.4.2003 passed in W.P.(c) No.1277 of 2003
held that there is no provision in the Panchayat Samiti Act to indicate that
non-deposit of Rs.200/- as security together with the election petition would
result in dismissal of election petition.
Referring to the judgments in the cases of Maddipatla Jagan Mohan
Rao vs. Akula Nagamalleswari, 2008(3) ALT 332 and Arun Kumar son of Sri
Ram Sharan vs. The Presiding Authority, 2007 (3) ADJ 442, Mr. Mishra
submitted that the security deposit can be made subsequent to filing of the
election petition.
Mr. Mishra also placed reliance upon the judgment of Honble
Supreme Court in the case of Shiv Chand V. Ujagar Singh and another, AIR
1978 SC 1583 in support of his contention.
6.
On the rival contentions advanced by the parties, the following
questions fall for consideration by this Court:
(i)
Whether the learned Civil Judge (Jr. Divn.), Jajpur is justified to hold
that the Election Petition presented within the period of limitation
without deposit of the security amount as required under Section 31
720
[2013]
of the G.P. Act is maintainable as the security amount was

subsequently paid within the period of limitation ?
(ii)
7.
Whether the learned Civil Judge (Jr. Divn.), Jajpur is justified to reject
the petition of the returned candidate challenging maintainability of
the election petition which was not presented together with security
amount as required under Section 31 of the G.P.Act ?
Since both the questions are interlinked, they are dealt with together.
To deal with the above questions, it is necessary to quote Section

31(1) of the Orissa Grama Panchayats Act, 1964 and Rule 88 of the Orissa
Grama Panchayats Election Rules, 1965 (for short, Election Rules)
Section 31 of Grama Panchayats Act:
The petition shall be presented on one or more of the grounds
specified in Section 39 before the [Civil Judge (Junior Division)]
having jurisdiction over the place at which the office of the Grama
Sasan is situated together with a deposit of such amount, if any, as
may be prescribed in that behalf as security for costs 5within fifteen
days after the date on which the name of the person elected is
published under Section 15:
Rule 88 of the Election Rules :
88. Election Petitioners The following amounts shall be
deposited as security for costs along with an election petition filed
under Chapter-V of the Act:
Election petition relating to election of Sarpanch - 150.00
Election Petition relating to election of Naib-Sarpanch- 50.00
Election Petition relating to election of a Member - 40.00
8.
A conjoint reading of Section 31 of G.P. Act read with Rule 88 of
Election Rules postulates that an election petition should be presented on
one or more of the grounds specified in Section 39 before the Election
Tribunal together with Rs.150.00/Rs.50.00/ Rs.40.00, as the case may be as
security for costs within fifteen days after the date on which the name of the
person elected is published under Section 15 of the G.P. Act. There is
nothing in Section 31 of the G.P. Act and Rule 88 of Election Rules which
precludes the election petitioner from complying with the condition stipulated
721
under Section 31 of the G.P. Act and Rule 88 of Election Rules on two
different dates within the period of limitation, i.e., within 15 days from the
date on which the name of the person elected is published under Section 15
of the G.P. Act. Therefore, the requirement of Section 31 is that presentation
of Election Petition as well as deposit of security for cost has to be made
within the period of limitation prescribed under Section 31 of the G.P. Act
read with Rule 88 of the Election Rules. Hence, in case the deposit of
security amount is made before expiration of period of limitation prescribed
under Section 31 of the G.P. Act for presentation of Election Petition though
not paid together with the 6election petition filed earlier it would amount to
substantial compliance of Section 31 of the G.P. Act.
9.
In the present case, it is nobodys case that the security deposit
required to be made together with the election petition under Section 31 of
the G.P. Act, which is mandatory, has not been paid within the period of
limitation. The only dispute is that the security amount has not been
deposited on the very day of filing of election petition on 02.03.2012, but
subsequently paid on 05.03.2012 i.e. after three days of filing of election
petition, which is undisputedly within the period of limitation.
10.
There is no provision in the Orissa Grama Panchayats Act to indicate
that non-deposit of Rs.150.00/ Rs.50.00/Rs.40.00, as the case may be as
security for cost together with election petition would result in dismissal of
Election Petition.
11.
The Andhra Pradesh High Court in the case of Maddipatla Jagan
Mohan Rao, S/o-Nagaiah V. Akula Nagamalleswari, W/oVenkata
Ramaiah and Ors., 2008(4) ALD 71, 2008(3) ALT 332 held as under:Having regard to the combined effect of Rules 3 and 5 of the Rules,
1995, the deposit of Rs.100/- is concerned, there are no two
standards. On the other hand, both the filing of the election petition
coupled with the deposit of Rs.100/- shall be within 30 days from the
date of the declaration of the result of the election, as contemplated
under Rule 3 of the Rules, 1995. But, the election petitioner is not
precluded from complying with the conditions stipulated under Rules
3 and 5 of the Rules, 1995 on two different dates, provided if those
two postulates are complied with within the prescribed period of 30
days from the date of7the declaration of the result of the election for
filing the election petition.
12.
The Allahabad High Court in the case of Yashwant Singh Yadav V.
Prescribed Authority/Sub-Divisional Officer and Another, (C.M.W.P.
722
[2013]
No.13732 of 1997 decided on 30.4.1997) held that Rule 24 of the U.P.

Panchayat Raj Rules which has since been omitted by Rule 6 of the U.P.
Panchayat Raj (Settlement of Election Disputes) Rules, 1994, came up for
consideration in the case of Shamsher Singh V. VIIth Addl. District Judge,
Varanasi and Ors., 1991 RD 439. It has been held therein that in case the
deposit of security amount is made before expiration of the period of
limitation prescribed for filing of election petition, it would amount to
substantial compliance of the related provisions. Accordingly, the Court
found no force in the arguments that the election petition would be defective
merely because, it was not accompanied with a treasury challan testifying to
the deposit of Rs.5 towards security.
13.
The Honble Supreme Court in the case of Chandrika Prasad
Tripathi V. Shiv Prasad Chanpuria and others, AIR 1959 SC 827
following the earlier decision in the case of K. Kamaraja Nadar V. Kunju
Thevar and others, AIR 1958 SC 687 held that Section 117 of the
Representation of the People Act should not be strictly or technically
construed. Wherever it is shown that there has been a substantial
compliance with its requirements, the Tribunal should not dismiss the
election petition under Section 90, sub-Section (3) on technical grounds.
14.
The Honble Supreme Court in the case of Shiv Chand V. Ujagar
Singh and another, reported in AIR 1978 SC 1583 held as under:We are satisfied that if he is impleaded as a respondent the election
petition cannot be dismissed under S. 86(1) of the Act. That provision
states that the High Court shall dismiss an election petition which
does not comply with the provisions of S. 82. The test is whether the
election petition complies with S. 82, not whether the election
petitioner has failed to comply with Section 82. The substance of the
matter must govern because hyper-technicality, when the public
policy of the statute is fulfilled, cannot be permitted to play the
procedural tyrant to defeat a vital judicial process, namely,
investigation into the merits of the election petition.
15.
In the instant case, since presentation of election petition and the
security deposit has been made within the period of limitation prescribed
under Section 31 of the G.P. Act, this Court is of the view that there is
substantial compliance of Section 31 of the G.P. Act and a literal and
mechanical interpretation of Section 31 of G.P. Act and Rule 88 of the
Election Rules would lead to manifest absurdity. The substance of the matter
must govern because hyper-technicality would defeat a vital judicial process.
723
16.
Learned counsel for the petitioner putting emphasis on the
expression together with appearing in Section 31 of the G.P. Act submitted
that if the election petition is filed without deposit of the security amount,
such petition is liable to be dismissed. It has not satisfied the requirement of
Section 31 of the G.P. Act. To substantiate his case, Mr. Rath relied upon
the judgment of the Supreme Court in the case of M.Y. Ghorpade V. Shivaji
Rao M. Poal and others, reported in AIR 92002 SC 3105 wherein the apex
Court held that the requirement of making of security deposit is mandatory
and the same has to be made while presenting an Election Petition. In that
case, the question that arose for consideration before the Honble Supreme
Court was whether there has been non-compliance of Section 117 of the
Representation of the People Act, 1951 (hereinafter referred as Act, 1951).
Section 86 of the Act, 1951 in Chapter III deals with the trial of Election
Petition and Section 86(1) states, the High Court shall dismiss Election
Petition which does not comply with the provisions of Section 81 or Section
82 or Section 117. Section 117 (1) of the Act, 1951 provides that at the time
of presenting an election petition, the petitioner shall deposit in the High
Court, in accordance with the Rules of the High Court, a sum of two
thousand rupees as security for the costs of the petition. In that case, the
allegation of the appellant was that a sum of Rs.2000/- had been deposited
in the High Court of Karnataka by one Heroji Lad, Respondent No.5, and not
by Shivaji Rao Poal, the election petitioner and, therefore, there has been
non-compliance of Section 117 of the Act, 1951. The Honble Supreme Court
held that the evidence of the election petitioner as well as the evidence of
respondent No.5 unequivocally pointed out that it was the election petitioner
who deposited the amount of Rs.2000/-. Therefore, it was held that there
was no infirmity with the conclusion of the High Court that there has been
compliance of Section 117 of the Act and consequently election petition has
been held to be maintainable and could not have been dismissed under
Section 86 of the Act on the ground of non-compliance of Section 117 of the
Act. While looking at the 10provision of Section 117 of the Act, the Honble
Supreme Court held that the requirement of making a security deposit of
Rs.2000/- is mandatory and the same has to be made while presenting an
Election Petition, but the mode of deposit as well as the person who could
make a deposit has to be complied with in accordance with the rules of the
High Court in question and the same has been held to be directory.
17.
Undoubtedly in that case, the question was not before the Supreme
Court, if the election petition was filed within the period of limitation and the
amount of security was paid thereafter on some other day, but within the
period of limitation, whether the said election petition was maintainable or
not? Apart from that, the Honble Supreme Court took into consideration, the
724
[2013]
provisions of Section 86(1) of the Act which provides that the High Court
shall dismiss Election Petition which does not comply with the provisions of
Section 81 or Section 82 or Section 117 of the Act, 1951. In the Grama
Panchayats Act, there is no such provision as to whether; if the election
petition is filed within the period of limitation and the security deposit is made
thereafter within the period of limitation, such election petition shall be
dismissed ? Therefore, the judgment of the Honble Supreme Court in the
case of M.Y. Ghorpade (supra) is of no help to the election petitioner.
18.
On the other hand, the Honble Supreme Court in the case of M.
Karunanidhi V. H.V. Handa and others and in connected cases, AIR 1983
SC 558, held that Sub-section (1) of Section 117 of the Act is in two parts.
The first part of sub-sec. (1) of S.117 provides that at the time of presenting
an election petition, the petitioner shall deposit in the High 11Court a sum of
Rs.2000/- as security for the costs of the petition, and the second part is that
such deposit shall be made in the High Court in accordance with the Rules
of the High Court. The requirement regarding the making of a security
deposit of Rs.2000/- in the High Court is mandatory, the non-compliance of
which must entail dismissal in limine of the election petition under subsec.(1) of S. 86 of the Act. But the requirement of its deposit in the High
Court in accordance with the rules of the High Court is clearly directory.
Where the amount of Rs.2000/- as security for costs was not
deposited in cash in the High Court by the petitioner filing election petition
but was deposited by pre-receipted challan in the Reserve Bank of India to
the credit of the Registrar, High Court at the instance of the High Court, and
in accordance with the procedure followed for deposit of amounts in Court, it
was held that there was due compliance with the requirements of sub-sec.(1)
of S.117 of the Act read with R.8 of the Election Petitions Rules.
Rule 8 of the Election Petitions Rules does not contemplate that the
money should be deposited in the High Court in cash. A literal and
mechanical interpretation of R.8 would lead to manifest absurdity.
19.
The decision of this Court in the case of Dr. Nirmal Chandra
Satpathy V. Jitu Patnaik @ Jitendranath Patnaik and others (OJC
No.4025 of 1993 decided on 6.9.1993) relied upon by Mr. A. Rath, learned
counsel for the petitioner is also of no help to the petitioner. In that case, the
last date of limitation in terms of Section 19 of the Orissa Municipal Act, 1950
was 16.3.1992. On that day, an 12election petition was filed without deposit
of Rs.200/- as security as required under sub-section (1) of Section 19 of the
Orissa Municipal Act. On the date of filing of the election petition, a petition
725
was filed on that date to permit the petitioner to deposit the security by way
of challan. he District Judge while directing to register the petition, ordered to
put up the same on 24.3.1992 with office note. The case was put up and on
that day and after seeing the office note, the District Judge noted that the
advocate for the petitioner filed challan to deposit the security money and
asked the office to check and report. Later the learned District Judge ordered
the Nazir to receive the amount, which was done. On an objection being
taken that the petition had not been presented in accordance with law, the
plea has been accepted and the election petition has been dismissed on the
ground that since the petition was not in terms of Section 19 of the Orissa
Municipal Act which is mandatory in nature, the petition was not
maintainable. In that case, this Court held that the District Judge under the
law has no power to grant extension of time to pay the security amount.
Section 5 of the Limitation Act cannot apply to a petition filed under Section
19 of the Orissa Municipal Act. This Court further held that on examination of
the relevant provision of the special law, it becomes clear that the provisions
of the Limitation Act are necessarily excluded, then the benefits conferred
therein cannot be called in aid to supplement the provisions of the Special
Act. It was further held that the special provision, namely, Section 19 of the
Orissa Municipal Act did exclude by necessary implication the provision of
Section 5 of the Limitation Act inasmuch as 13if application of this section
were to be conceded, the limitation provided by Section 19 of the Orissa
Municipal Act would virtually be set at naught because it would then become
open to the District Judge to extend the period of limitation on sufficient
cause being shown. Accordingly, the election petition was held to be invalid.
20.
The facts of the case at hand are completely different from the facts
of Dr. Nirmal Chandra Satpathys case (supra). In that case the election
petition was filed on the last date of limitation i.e. 16.3.1992 and the District
Judge extended the time beyond the period of limitation for deposit of the
security amount which was held by this Court not permissible. Under Section
19 of the Orissa Municipal Act, 1950, no power is vested with the District
Judge to extend the period of limitation. In the instant case, the amount of
security has been paid within the period of limitation and not beyond the
period of limitation. Under Section 31 of the G.P. Act, there is a provision for
extending the period of limitation for sufficient ground to present the election
petition. Thus, Dr. Nirmal Chandra Satpathys case (supra) has no
application to the present case.
21.
The matter may be looked at from another angle. Election petitioner
instead of filing the election petition on 02.03.2012 could have filed the same
on 05.03.2012 when the security deposit was made. In such situation, it
would not have been anybodys case that the election petition is not
726
[2013]
maintainable for non-compliance of requirement of Section 31 of the G.P.

Act. Therefore, merely because the election petition was filed on 2.3.2012
and the security deposit was made on 1 the election petition was filed and
the security deposit was made within the period of limitation.
22.
In view of the above, this Court is of the opinion that since the
election petition was presented on 2.3.2012 without security deposit which
was paid on 5.3.2012 i.e. after three days of the filing of the election petition
and both filing of election petition and payment of security deposit were
made within the period of limitation, there is substantial compliance of
Section 31 of the Orissa Grama Panchayats Act and therefore, the Election
Tribunal is justified to entertain the election petition and reject the objection
filed by the returned candidate.
23.
In the result, the writ petition is dismissed.

Writ petition dismissed.
727
2013 ( I ) ILR - CUT- 727
B. K. PATEL, J.
R.S.A. NO. 153 OF 2010 (Dt.14.12.2012)
DILLIP KUMAR SAHOO
.. Appellant
.Vrs.
MALATI ROUT & ORS.
.Respondents
SPECIFIC RELIEF ACT, 1963 Ss.31, 34

Registered document Presumption is, it is validly executed
and prima facie it is valid in law Onus lies on the person who wants
to rebut such presumption.
In this case plaintiffs plead that fraud practiced on them while
executing General Power of Attorney Ext-1 in favour of Defendant No.2
and the impugned sale deeds Exts-B & C executed by Defendant No.2
in favour of Defendant No.1 are the outcome of such fraud No prayer
in the suit to declare G.P.A. Ext.1 void Both the Courts below failed to
take note of the evidence of plaintiff No.3, examined as P.W.1, that they
were present in the office of the Sub-Registrar on the date of sale of the
suit land and raised no objection against such registration Held,
G.P.A. Ext.1 is a valid document so also the sale deeds Exts. B & C
Defendant No.1 has acquired title over the suit property on the strength
of the above sale deeds as true owner and acquired right to enforce the
right, title and interest over the suit property.
(Paras 43, 44)
: (Janak Dulari Devi-V- Kapildeo Rai & Anr.)
2.(2009)4 SCC 193
: (Kaliaperumal-V- Rajagopal & Anr.)
3.1995(1)CCC 368(Ori) : (Durgamani Behera & Ors.-V-Ghasiram
Mohanta & Ors.)
4.2012(2) CCC 339 (Alah. : (Bhartu-V- Nawal @ Chhote(Dead)through LRs.
& Ors.)
5.AIR 2007 A.P 50
: (Muddasani Sarojana-V- Muddasani Venkat
Narsaiah & Ors.)
6.AIR 2007 Patna 59
: (Dhanbarti Koerin-V- Shyam Narain Mahton &
Ors.)
7.AIR 1997 SC 1411
: (M/s. John Tinson & Co.Pvt. Ltd. & Ors. Etc
.-V-Mrs. Surjeet Malhan & Anr. Etc.)
8.38(1972)CLT 1244
: (Gangadhar Mallik & Anr.-V-Kahnu Sethi & Ors.)
728
[2013]
9. 2009(4) CCC 259 (SC) : (Ramdas-V- Sitabai & Ors.)

10. AIR 2001 SC 965
: (Santosh Hazari-V- Purushottam Tiwari(Dead)
by Lrs.)
11. 2008 AIR SCW6476 : (Ranganayakamma & Anr.-V-K.S.Prakash (D)
by L.Rs.& Ors.)
12. (1996)7 SCC 767
: (Md.Noorul Hoda-V- Bibi Raifunnisa & Ors.)
13. (2010)1SCC 756
: (Edukanti Kistamma(dead)thorugh L.Rs.& Ors.
-V- S.Venkatareddy(dead)through L.Rs. & Ors.)
14. AIR 2003 SC 4548
: (R.V.E.Venkatachala Gounder-V-Arulmigu
iswesaraswami & V.P. Temple & Anr.)
15.AIR 1993 Ori.103
: (Life Insurance Coporation of India-V-Narmada

Agarwalla & Ors.)
16.AIR 1968 SC 956
: (Ningawwa-V- Byrappa Shiddappa Hireknrabar &
Ors.).
17.AIR 1987 SC 1242
: (Ram Sarup Gupta(dead) by L.Rs. V- Bishun
Narain Inter College & Ors.)
18.AIR 1998 SC 3006 : (Bisundeo Narain Rai (dead) by L.Rs. & Ors.-VAnmol Devi)
19.AIR 1993 Orissa 59 : (Dulana Dei @ Dolena Dei-V- Balaram Sahu)
20.34(1992) OJD.137 : (Gourhari Das-V- Kalpataru Das & Ors.)
21.2009(1) CLR 560
: (Harekrushna Mahakud-V- Radhanath Mahakud &
Ors.)
22.(2008)7 SCC 46
: (Hardeo Rai-V- Sakuntala Devi & Ors.)
23.106(2008) CLT 330 : (Smt. Bina Sukla-V- Smt. Meena Devi Panch &
Ors.).
For Appellant - M/s. Bansidhar Baug & S. Rath.
For Respondents - M/s. Rama Chandra Sarangi, Siba Sankar
Mohanty, (for Res.No.1 to 3)
M/s. Millan Kanungo, S.K. Mishra, Y. Mohanty,
D. Pradhan & S. N. Das (for Res.No.5).
B.K. PATEL, J.
This second appeal is directed against the judgment
and decree dated 7.4.2010 passed by the learned Adhoc Additional District
Judge, F.T.C.No.3, Bhubaneswar dismissing R.F.A. No.19/22 of 2006/2003
and confirming the judgment and decree dated 21.4.2003 passed by the
Civil Judge (Senior Division), Bhubaneswar in T.S. No.258 of 1990 by which
the suit was decreed. Appellant was defendant no.1, respondent nos.1 to 3
were the plaintiffs and respondent no.4 was defendant no.2 in the suit.
Respondent no.5 was impleaded in this appeal on consent of the parties on
the basis of claim as a lis pendent purchaser.
729
DILLIP KUMAR SAHOO -V- MALATI ROUT
[B.K. PATEL, J.]
2.
In the suit, plaintiffs sought for the following reliefs:
(a)
That their joint title to the suit land described in Schedules A & B of
the plaint be declared and their exclusive possession over the same
be confirmed.
(b)
Alternatively if it be held that the sale deed in favour of defendant

no.1 covering the suit land to the extent of share of Defendant no.2
therein is valid as the suit land is the undivided homestead of the
plaintiffs and defendant no.2 and as defendant no.1 being a stranger
to the family of the plaintiffs is not be entitled to joint possession of
the suit land with plaintiffs, defendant no.1 be permanently restrained
not to interfere with the possession of the plaintiffs over the suit land
described in Schedule A & B shown in red colour in the sketch map
marked as A B attached to the plaint.
(c)
It be declared that the sale deeds dtd.28.6.89 and30.6.89 executed

by Defendant No.2 in favour of Defendant no.1 in respect of the suit
land(90 dec)are invalid, inoperative, and not binding on the plaintiffs
and those have been brought into existence as a result of fraud and
collusion practised by Defendant No.1 and 2.
(d)
Cost of the suit be decreed in favour of the plaintiffs and against the
defendants.
(e)
Plaintiffs be given such relief/reliefs which they are deemed entitled

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

power of attorney Ext.1 void was very much available to the plaintiffs
and/or whether without nullifying the registered general power of
attorney Ext.1, the suit for declaration to nullify the sale deeds
executed and registered by the general power of attorney defendant
no.2 will be maintainable ignoring the bar under Section 31 and
provision of Section 34 of the Specific Relief Act?
(b)
Whether the defendant no.1 who is not a party to the general power
of attorney Ext.1 and when the said general of attorney Ext.1 is
proved by producing a true attested copies of the certified copy
730
[2013]
thereof by the plaintiffs themselves, was bound to prove the original

GPA or certified copy thereof in Court. When there is no relief
claimed in the suit challenging the genuineness of the said GPA?
(c)
Whether the Ext.1(the general power of attorney),the execution and

registration of which is admitted by the executants thereof (plaintiff
Nos.2 and 3) is a voidable document or void ab initio?
(d)
Whether the courts below can ignore the Ext.1(the GPA) in absence
of declaration to declare the same as void? It is humbly stated that
the learned trial court in paragraph-7 of its judgment towards last has
observed that no judicial observations can be given basing upon
such documents in Ext.1. The learned trial court has not returned
any finding as to whether the Ext.1 is a void document or voidable
document and the said findings was not challenged by the plaintiffs.
But the lower appellate court by ignoring the aforesaid findings of the
trial court has ignored the Ext.1 as if the same is a void document.
(e)
Whether the registered sale deed vide Exts. B and C executed by

defendant no.2 in favour of defendant no.1(present appellant) for self
and for on behalf of the plaintiff nos.2 and 3 by virtue of the GPA
(Ext.1) can be altogether held or declared invalid/ void documents if
it is found that the GPA Ext.1 is invalid or the sale deed will be valid
to the extent of the share of defendant no.2, who has sold the lands
wherein he has admittedly either 1/3rd or 1/4th share.
In course of hearing by order dated 3.10.2012 leave was granted to

the appellant to urge the following additional substantial question of law
also:Whether without pleading and proof of the ingredients of the
existence of dwelling house over the suit land and even if there
exists a house over the suit land whether the transferee on purchase
gets a right and title thereon or his sale deed is ab initio void the
same being a portion from the joint homestead land?
4.
Plaintiff nos.2 and 3 as well as defendant no.2 are sons of plaintiff
no.1, wife of late Ram Chandra Rout who died in the year 1985 leaving
behind the plaintiffs and defendant no.2 as his legal heirs. The suit land
appertains to an area of Ac.0.90 decimals of land out of suit plot measuring
Ac.4.075 decimals in total recorded under Hal Khata no.611/10 of mouza
Chandrasekharpur (Ext.A). The suit plot was originally ex-intermediary
731
[B.K. PATEL, J.]
property of Madhusudan Dev who inducted late Ram Chandra Rout as an

occupancy raiyat thereof in the year 1942-43. Subsequently, the estate was
purchased by Raja of Kanika but late Ram Chandra Rout continued to be in
possession of the suit plot on payment of rent to Raja of Kanika and,
thereafter, in the Anchal office upon abolition of estate. In 1973 settlement,
suit plot was recorded in the name of Government of Orissa. During 1988
settlement operation plaintiffs and defendant no.2 took steps to get their
names recorded but failed and suit plot was recorded in the name of G.A.
Department. However, suit plot was recorded in the names of plaintiff nos.2
and 3 and defendant no.2 on the strength of order passed by the
Commissioner of Land Records in Revision Case No.398 of 1989 under
Ext.A, the R.O.R. These facts are not in dispute.
5.
It is also not disputed that plaintiff nos. 2 and 3 have executed Ext. 1
registered General Power of Attorney (for short, GPA Ext. 1) dated
3.5.1989 in respect of suit plot in favour of defendant no.2. Defendant no.2
executed two registered sale deeds dated 28.6.89 (Ext.B) and 30.6.89
(Ext.C) in respect of the suit land in favour of defendant no.1.
6.
Plaintiffs case is that plaintiffs are illiterate persons. Plaintiff no.2
was born blind whereas plaintiff no.1 is an old and pardanasin woman.
Defendant no.2 being more literate than the plaintiffs took up the task of
filing revision before the Commissioner of Land Records for getting the suit
plot recorded in their names. While filing the revision defendant no.2 with an
ulterior motive omitted plaintiff no.1 from the revision case though plaintiff
no.1 as one of the successors of late Ram Chandra Rout has got right, title
and interest over the suit plot. While the revision was pending defendant
no.2 got GPA Ext.1 executed by plaintiff nos.2 and 3 for the purpose of
contesting the revision. However, plaintiff nos. 2 and 3 subsequently learnt
that defendant no.2 obtained the GPA Ext.1 by practising fraud in collusion
with some other persons. Contents of the GPA was not read over and
explained to them and they were asked to answer in affirmative to the
questions put by the Sub-Registrar.
Thereafter, defendant no.2 by
practising fraud on the plaintiffs executed registered sale deeds in respect
of suit land under Exts.B and C for an area of Ac.0.40 decimals and Ac.0.50
decimals respectively in favour of defendant no.1 without knowledge of the
plaintiffs. No consideration amount was received for the transactions nor
delivery of possession was handed over in favour of defendant no.1. On
the strength of the sale deeds Exts. B and C defendant no.1 filed mutation
case to get the suit plot recorded in his name. However, plaintiffs filed
objection in the mutation case.
732
[2013]
7.
Defendant no.2 was set ex parte. Defendant no.1 filed written
statement denying plaint allegations. It is pleaded that plaintiff no.1 is not a
pardanasin woman, plaintiff no.2 is not born blind and plaintiff no.3 is not
illiterate.
As plaintiff no.1 did not apply before the Commissioner of
Settlements of Land Records, her name was not recorded in the R.O.R.
Rather, plaintiff nos. 2 and 3 along with defendant no.2 filed revision with
the consent of plaintiff no.1. Plaintiff no.1 has no right, title and interest over
the suit plot. Sale deeds Exts.B and C have been validly executed by
defendant no.2 on the strength of GPA Ext.1. Delivery of possession of the
suit land was made upon receipt of consideration amount and execution of
sale deeds. There was no fraud or collusion in execution of GPA or sale
deeds.
8.
Considering rival pleadings the following issues were settled:-
(1)
Is the suit as laid maintainable in the eye of law?
(2)
Have the plaintiffs any cause of action to
(3)
bring this suit?
Have the plaintiffs valued the suit properly and have paid necessary
court fees thereon?
(4)
Is the suit barred by law of limitation?
(5)
Have the plaintiffs right, title and interest over the suit lands?
(6)
Are the plaintiffs entitled for declaration that the impugned

registered sale deeds dt.28.6.89 and 30.6.89 are invalid
documents and are the result of fraud & collusion?
(7)
Are the plaintiffs entitled for alternative declaration that the suit
properties being undivided homestead property and the
defendant no.1 being a stranger, is not entitled for joint
possession of the suit lands along with the plaintiffs.
(8)
Are the plaintiffs entitled for a decree of permanent injunction as

prayed for ?
(9)
Are the plaintiffs entitled for a decree of confirmation of possession?
(10) To what other relief, if any, the plaintiffs are entitled ?

9.
In order to substantiate their case plaintiffs examined six witnesses
including plaintiff no.3 as P.W.1 and plaintiff no.2 as P.W.2 and also placed
reliance on documents marked Exts.1 to 9. Defendants examined two
733
[B.K. PATEL, J.]
witnesses of whom D.W.1 is defendant no.1 and D.W.2 is defendant no.2.

Defendants also placed reliance on documents marked Exts. A to D.
10.
It is pertinent to observe that defendant no.2 while deposing as
D.W.2 was put leading questions on behalf of defendant no.1 as he
supported the case of the plaintiffs.
11.
Salient findings of the trial court in its judgment and decree are as
follows:(i) by order passed in R.P. Case No.398 of 1989 under Ext.4, the
suit plot was directed to be recorded in the names of plaintiff nos.2
and 3 and defendant no.2, and pursuant to the said order the suit
plot was mutated in their favour in the ROR, Ext.A;
(ii) it is the boundain duty of defendant no.1 to prove the GPA and
contents thereof which the defendant has failed to do as he has not
examined the scribe or any other witness to the GPA. As GPA
Ext.1, proved by the plaintiffs, is a Xerox copy, no judicial
observation can be made with regard to the GPA Ext.1;
(iii) as plaintiff no.1 being one of the legal heirs of late Rama Ch.
Rout has a substantive interest in the suit property, in absence of
partition among all the legal heirs of late Rama Ch. Rout, sale
deeds Exts.B and C executed by defendant no.2 are not valid
instruments for want of written consent of plaintiff no.1;
(iv) plaintiff no.3, examined as P.W.1, deposed in his examinationin-chief that power of attorney was given to defendant no.2 to look
after their case, but in his cross-examination he has stated that he
had given power to defendant no.2 to sell the joint family property
and that on the date of sale of suit land they were present in the
office of Sub-Registrar and had not raised any objection against
such sale;
(v) as defendant no.1 had not examined the scribe or any of the
witnesses to Exts.B and C to prove contents thereof, evidence of
P.Ws.1 and 2 as well as D.W.2 that there was no passing of
consideration cannot be ignored and that defendant no.1 has not
proved the legal necessity of plaintiff nos.2 and 3 to alienate the
suit lands;
734
[2013]
(vi) even if evidence of P.W.1 in his cross-examination to the effect

that he was present at the time of execution of sale deeds on
28.6.1990 and he gave power to defendant no.2 to sell the joint
family property is accepted as genuine and voluntary, and even if
defendant no.2 admitted that execution of Exts.B and C is valid to
the extent of the share of defendant no.2, defendant no.1 cannot
acquire any interest through these impugned sale deeds because
he has not adduced any evidence to disprove plaintiffs case that
the suit land is their joint homestead property and defendant no.1 is
an outsider to their family;
(vii) as P.Ws.3, 4 and 5 have failed to describe length and breadth
of the suit property even on approximation, their evidence relating
to possession is not acceptable;
(viii) sale deeds Exts.B and C being not valid instruments, said
sale deeds cannot be held to be impeccable instruments by placing
reliance on orders passed in mutation cases under Exts.6 and 7 as
well as sale deed Ext.D; and
(ix) the fact that plaintiff nos.2 and 3 had not cancelled the GPA is
not a ground to ignore the case of the plaintiffs.
12.
On the basis of above said findings the trial court decreed the suit in
terms of main reliefs sought for by the plaintiffs declaring that plaintiffs have
right, title and interest over the suit land and the impugned sale deeds
Exts.B and C are invalid, and confirming plaintiffs possession over the suit
land as well as restraining defendant no.1 by way of permanent injunction
from interfering with possession of the plaintiffs in respect of the suit land.
13.
While upholding the trial court judgment and decree the lower
appellate court further held:
(i) the GPA has not been proved or filed in the suit;
(ii) defendant no.1 has failed to prove due execution of the impugned
sale deeds Exts.B and C;
(iii) onus lies on defendant no.1 to prove the due execution of
impugned sale deeds Exts.B and C by adducing cogent and reliable
evidence;
735
[B.K. PATEL, J.]
(iv) defendant no.2 sold the suit land to defendant no.1 by virtue of
sale deeds Exts.B and C without the consent and knowledge of other
co-sharers;
(v) GPA Ext.1 is not considered as a valid document and it does not
empower defendant no.2 to sell any portion of the suit plot without
consent and knowledge of other co-sharers; and
(vi) defendant no.1 has purchased the suit land from defendant no.2
on the strength of a fake and invalid GPA.
14.
In support of the second appeal it was submitted by the learned
counsel for the appellant that substantial questions of law (a) to (d) relate to
legality of GPA Ext.1 whereas substantial question of law (e) relates to
legality of validity of sale deeds Exts. B and C and additional substantial
question of law formulated subsequently relates to legal effect of sale of suit
land under the two impugned sale deeds. It was further submitted that the
plaintiffs have squarely admitted execution of GPA Ext.1 by plaintiff nos. 2
and 3 and sale deeds Exts. B and C by defendant no.2. Execution of other
sale deeds in respect of other portion of the land out of the suit plot by
defendant no.2 on the strength of GPA Ext.1 under sale deeds Ext.D series
is also not disputed.
15.
It was argued that law being well settled that admitted facts are not
required to be proved, in the present case formal proof of GPA Ext.1 and
sale deeds Exts. B and C was not necessary. Moreover, copy of GPA Ext.1
was admitted to evidence on behalf of the plaintiffs. Clause 7 of GPA Ext.1
confers authority on Defendant no.2 to transfer by way of sale or otherwise
land out of suit plot.
16.
It was also argued by the learned counsel for the appellant that in
spite of the fact that the entire case of the plaintiffs in assailing the
impugned sale deeds is based on their tirade against GPA Ext.1, no relief
was sought for in the suit to declare GPA Ext.1 to be void or to cancel Ext.1.
Also, admittedly, no step has yet been taken by the plaintiff nos. 2 and 3 for
revocation of the GPA Ext.1. Considering all the circumstances, trial court
was constrained to hold that no judicial observation can be given on GPA
Ext.1. Therefore, there was no scope for the lower appellate court to hold or
observe that GPA Ext.1 was not proved or that the same cannot be
considered as a valid document conferring power on defendant no.2 to sell
any portion of the suit plot.
736
[2013]
17.
It was contended that in the plaint it was vaguely alleged that fraud
was practised to get the GPA Ext.1 executed by plaintiff nos. 2 and 3.
Neither any particular of alleged fraud was pleaded nor any evidence was
adduced to support the plea of fraud. Therefore, on this score also there is
no scope for the plaintiffs to assail validity or legality of the GPA Ext.1.
18.
It was strenuously contended that the plaintiffs having not sought for
the relief of cancellation of GPA Ext.1 which is the very basis of their
challenge to the sale deeds, they are precluded from assailing the validity of
the impugned sale deeds Exts. B and C in view of the provision under
section 31 as well as under the proviso to section 34 of the Specific Relief
Act.
19.
It was argued that both the courts below not only failed to take note
of the above said vital legal aspects in considering materials on record but
also both the courts below committed gross illegality in not taking note of
the fact that plaintiff no.3, in his evidence, while deposing as P.W.1, stated
that they were present in the office of the Sub-Registrar on the date of sale
of the suit land and had raised no objection against the registration. It was
contended that such admission on the part of the plaintiff no.3 by itself leads
to the only inference that the suit property was sold to defendant no.1 by
defendant no.2 with the knowledge and consent of the plaintiffs and
plaintiffs have filed the suit in collusion with defendant no.2 who supported
the plaintiffs by not filing written statement and by deposing in their favour.
Defendant no.1 being a bona fide purchaser of the suit land recorded in the
names of plaintiff nos.2 and 3, and defendant no.2, has legally acquired title
over the suit land.
20.
It was also contended that validity of GPA Ext.1 is assailed by the
plaintiffs on the ground that though no authority to sell the land out of the
suit plot was given, fraudulently such authority was inserted into it.
Therefore, it is not the case of the plaintiffs that GPA Ext.1 is void ab initio.
Therefore, in the absence of any prayer to declare GPA Ext.1 to be void and
in absence of any declaration by the courts below to that effect, GPA Ext.1
remains valid and binding on the executants.
21.
It was further argued that plaintiffs have neither pleaded nor
adduced evidence to the effect that the dwelling houses of plaintiffs and
defendant no.2 stand on the suit property. On their own admission plaintiffs
and defendant no.2 reside in village Patia whereas the suit plot situates in
village Chandrasekharpur. Therefore, right of defendant no.2 as a cosharer to transfer his share in the suit property out of the entire suit plot
737
[B.K. PATEL, J.]
cannot be questioned in view of provision under section 44 of the Transfer

of Property Act. It was argued that the suit land comprising of area
Ac.0.900 decimals is well below the extent of share which defendant no.2 is
entitled to, as he is entitled to at least 1/4th of suit property left behind by his
late father Rama Chandra Rout. In such circumstances, there is absolutely
no scope to declare sale deeds Exts. B and C to be void or invalid.
22.
In course of his argument it was urged by the learned counsel for the
appellant that though plea of non-payment of consideration for sale of the
suit lands by defendant no.1 to defendant no.2 was taken, such assertion
does not hold good in view of specific recitals in the sale deeds regarding
payment of consideration and in view of absence of admissible evidence to
rebut such recital in the sale deeds.
23.
In reply, though at the initial stage of argument it was contended and
conceded on behalf of the contesting respondent nos.1 to 3 that nonpayment of consideration amount by defendant no.1 is not pressed as a
ground for assailing the sale deeds Exts.B and C, at a later stage learned
counsel for the contesting respondents sought to argue that both the sale
deeds are vitiated by non-payment of consideration amount. Placing
reliance on the decisions in Janak Dulari Devi vrs.- Kapildeo Rai and
Anr. : AIR 2011 SC 2521, Kaliaperumal vrs.-. Rajagopal and another :
(2009) 4 SCC 193, Durgamani Behera & Ors. vrs.- Ghasiram Mohanta
& Ors. : 1995 (I) CCC 368 (Orissa), Bhartu vrs.- Nawal @ Chhote
(Dead) through LRs. & Ors.: 2012(2) CCC 339 (Allahabad), Muddasani
Sarojana vrs.- Muddasani Venkat Narsaiah & Ors.: AIR 2007 Andhra
Pradesh 50, Dhanbarti Koerin vrs.- Shyam Narain Mahton & Ors.: AIR
2007 Patna 59 and M/s. John Tinson and Co. Pvt. Ltd. and others etc.
vrs.- Mrs. Surjeet Malhan and another etc. : AIR 1997 SC 1411, and
upon reference to observations made in the judgments of both the courts
below it was contended by the learned counsel for the appellant that though
there can be a valid sale even in the absence of payment of consideration
and actual delivery of possession, each transaction is required to be
examined in order to find out the intention of the parties as to whether
payment of consideration was a condition precedent for effecting transfer of
immovable property. It was contended that though in the sale deeds Exts. B
and C there is recital that consideration was paid by defendant no.1, both
the courts below recorded the finding that defendant no.1 failed to prove
payment of consideration and delivery of possession of the suit land. It was
argued that though even in the absence of delivery of possession and
payment of consideration, title to immovable property passes on registration
of sale deed, both are strong circumstances to indicate that the vendor had
738
[2013]
got no intention to transfer the immovable property without receipt of

consideration and delivery of possession. It was strenuously contended that
in view of such finding of the courts below there is no scope to entertain
substantial questions of law relating to validity or otherwise of the GPA Ext.1
and sale deeds Exts. B and C as formulated in this second appeal. That
apart, neither GPA Ext.1 nor any of the sale deeds Exts. B and C has been
duly proved by defendant no.1 inasmuch as neither the scribe nor any of the
witnesses thereto has been examined.
24.
On the basis of above contentions it was further argued that in the
absence of due proof of suit documents GPA Ext.1 and sale deeds Exts.B
and C, the impugned sale deeds cannot be held to be valid even to the
extent of share out of the suit plot to which defendant no.2 is entitled.
25.
Learned counsel for the contesting respondents also argued that
there being admittedly no partition of the suit plot among the co-sharers
comprising of plaintiffs and defendant no.2, and the suit plot being a piece
of homestead land, sale deeds executed by defendant no.2 alone without
the consent of all other co-sharers is void. In this connection, reliance was
placed by the learned counsel on the provisions under Section 44 of the
Transfer of Property Act and Section 4 of the Partition Act as well as on the
decisions in Gangadhar Mallik and another vrs.- Kahnu Sethi and
others : 38 (1972) CLT 1244 and Ramdas vrs.- Sitabai & Ors. : 2009(4)
CCC 259(SC).
26.
It was further contended on behalf of contesting respondents that
even if execution of GPA Ext.1 as well as sale deeds Exts. B and C are held
to have been proved on admission, it was incumbent upon defendant no.1
to adduce evidence to prove contents thereof. It was pointed out that formal
proof of document does not amount to the truth of the contents thereof.
27.
With regard to omission of making any prayer in the suit for
declaring GPA Ext.1 to be invalid or void, it was contended that neither
Section 31 nor Section 34 of the Transfer of Property Act is applicable to the
facts of the present case inasmuch as relief of such declaration is not a
relief consequential to other reliefs sought for in the suit and decreed by the
courts below. It was argued that plaintiffs suit is not a suit for declaration
simplicitor but the plaintiffs prayed for consequential relief of permanent
injunction also. Therefore, omission to make the the prayer for relief of
declaration that GPA Ext.1 is invalid or void, is inconsequential.
739
[B.K. PATEL, J.]
28.
It was further argued that though no specific prayer was made for
declaring GPA Ext.1 to be invalid or void, in the plaint it was elaborately
pleaded that power of attorney was got executed by defendant no.2 from
plaintiff nos.2 and 3, who were illiterate and one of whom was blind, by
practising fraud and both the courts below having rendered findings on such
pleading, lower appellate court was not precluded from holding the GPA
Ext.1 to be an invalid document.
29.
I have heard the contentions raised by learned counsel for the
parties and perused the materials on record upon reference to substantial
questions of law formulated for adjudication in this second appeal.
Substantial questions of law (b) to (d) as well as parts of substantial
questions of law (a) and (e) relate to validity and legal implications of GPA
Ext.1 whereas other parts of substantial questions of law (a) and (e) and the
additional substantial question of law formulated during the hearing of the
appeal relate to legality of impugned sale deeds Exts. B and C. Thus,
legality of these three vital documents GPA Ext.1 and sale deeds Exts.B
and C has to be determined on the basis of findings of fact arrived at by the
courts below. All the substantial questions of law formulated in the present
appeal involve examination of the legality of findings of the courts below
with regard to validity of GPA Ext.1 and sale deeds Exts. B and C, and
adjudication thereof has to be made on the basis of, as has been held by
the Honble Supreme Court in Santosh Hazari vrs.- Purushottam Tiwari
(Dead) by Lrs. : AIR 2001 SC 965, legal questions arising out of pleadings
of the parties and sustainable findings of fact arrived at by the courts below
which are necessary for a just and proper decision of the case. It has been
laid down in Santosh Hazari vrs.- Purushottam Tiwari (Dead) by Lrs.
(supra), relied upon by the learned counsel for the contesting respondents,
that it will depend on the facts and circumstance of each case whether a
question of law is a substantial one and involved in the case, or not; the
paramount overall consideration being the need for striking a judicious
balance between the indispensable obligation to do justice at all stages and
impelling necessity of avoiding prolongation in the life of any lis.
30.
It is to be borne in mind that execution of GPA Ext.1 by plaintiff
nos.2 and 3 in favour of defendant no.2 in respect of entire suit plot as well
as execution of sale deeds Exts.B and C by defendant no.2 in favour of
defendant no.1 in respect of the suit land are admitted by the plaintiffs.
Plaintiffs, however, dispute to have authorized defendant no.2 under GPA
Ext.1 for sale of any part of the suit plot. They alleged defendant no.2 to
have practised fraud in obtaining authority to sell the land out of the suit plot
under GPA Ext.1. It is not disputed that GPA Ext.1 authorises defendant
740
[2013]
no.2 to deal with the suit plot for the purpose of signing and executing
deeds of conveyance. Clause 7 of GPA Ext.1 reads as follows:
That he shall purchase stamp papers, sign and execute any deed of
conveyance, present the same and appear before the Registering
Authority, admit execution thereof in our name and on our behalf.
Not only plaintiffs do not dispute execution of GPA Ext.1 but also a copy of
GPA Ext.1 was admitted into evidence on behalf of plaintiffs themselves. It
is too fundamental to reiterate that admitted facts need not be proved.
Therefore, there is absolutely no scope in the present case to raise any
technical objection regarding admissibility of GPA Ext.1 or sale deeds Exts.
B and C. Plaintiffs having admitted execution as well as contents thereof,
decisions relied upon by the learned counsel for the contesting respondents
in order to assail admissibility and proof thereof are of no relevance under
the facts of the case. In view of circumstances of existence of endorsement
in the GPA Ext. 1 that the same was read over and explained in Oriya to the
executants, of absence of particulars of fraud and prayer to declare GPA
Ext. 1 to be void in the plaint and of admission of GPA Ext. 1 into evidence
on behalf of plaintiffs, decisions relied upon by the learned counsel for the
contesting respondents relating to onus and manner of proof of a document
executed by paradanashin woman are also not applicable to the facts of the
present case due to want of factual foundation.
31.
Plaintiffs pleaded that fraud was practised on plaintiff nos.2 and 3 to
get GPA Ext.1 executed by them. However, plaintiffs are altogether silent
regarding particulars of fraud. There is an endorsement in GPA Ext.1 to the
effect that the same was explained in Oriya to the executants. Though fraud
was pleaded to assail GPA Ext.1, no evidence was adduced in support of
the allegation. Plaintiffs also did not make any prayer in the suit for
declaring GPA Ext.1 to be invalid or void document. There being no dispute
regarding execution of GPA Ext.1 by plaintiff nos.2 and 3, there is no scope
for the plaintiffs to assail the GPA Ext.1 to be void ab initio. A voidable
document in order to be avoided requires an action in law and declaration to
that effect on the basis of cogent evidence. There is a presumption that a
registered document is validly executed, and is prima facie valid in law. The
onus of proof would be on the person who alleges to rebut the presumption.
In this connection decision of the Supreme Court in Ranganayakamma
and another vs. K.S.Prakash (D) by L.Rs. & Ors.: 2008 AIR SCW 6476,
cited by the learned counsel for the respondents may be referred to.
However, plaintiffs have chosen not to make any prayer to declare GPA
Ext.1 to be a void document. Under the circumstances, as was contended
741
[B.K. PATEL, J.]
on behalf of the appellant it may not be unreasonable to assume that

plaintiffs have consciously not made any prayer for declaring GPA Ext.1 to
be a void document and, rather, bound themselves to the contents thereof
so far as it related to transaction with defendant no.1 under sale deeds
Exts.B and C and laid emphasis on alternative relief of injunction only.
32.
Entire case of the plaintiffs in assailing the transaction under sale
deeds Exts.B and C is based on the validity of GPA Ext.1. Under Section
31 of the Specific Relief Act it was open for the plaintiffs to seek avoidance
of GPA Ext.1 by making a prayer to that effect. Sub-section (1) of Section
31 provides that any person against whom a written instrument is void or
voidable, and who has reasonable apprehension that such instrument, if left
outstanding may cause him serious injury, may sue to have it adjudged void
or voidable; and the Court may, in its discretion, so adjudge it and order it to
be delivered up and cancelled. Proviso to Section 34 of the Specific Relief
Act provides for consequence of not making prayer for further relief which
flows out of a declaration sought for in a suit and to which plaintiff seeking
declaration is entitled to. Section 34 of the Specific Relief Act reads as
follows:
Discretion of Court as to declaration of status or right.- Any
person entitled to any legal character, or to any right as to any
property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the Court
may in its discretion make therein a declaration that he is to entitled,
and the plaintiff need not in such suit ask for any further relief:
Provided that no Court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere declaration
of title, omits to do so.
Thus, even though plaintiffs plead that GPA Ext.1 was got executed by
practising fraud and the sale deeds Exts. B and C are challenged on the
basis of such pleadings, no prayer was made for cancelling or declaring
GPA Ext.1 as void as provided under Section 31 of the Specific Relief Act.
Proviso to Section 34 of the Specific Relief Act prohibits making of any
declaration when a party entitled to seek further relief than a mere
declaration of title omits to do so.
33.
In Md. Noorul Hoda vrs.- Bibi Raifunnisa and others : (1996) 7
SCC 767 it has been held by the Honble Supreme Court as follows:
742
[2013]
xx xx xx When the plaintiff seeks to establish his title to the property

which cannot be established without avoiding the decree or an
instrument that stands as an insurmountable obstacle in his way
which otherwise binds him, though not a party, the plaintiff
necessarily has to seek a declaration and have that decree,
instrument or contract cancelled or set aside or rescinded. Section
31 of the Specific Relief Act, 1963 regulates suits for cancellation of
an instrument which lays down that any person against whom a
written instrument is void or voidable and who has a reasonable
apprehension that such instrument, if left outstanding, may cause
him serious injury, can sue to have it adjudged void or voidable and
the court may in its discretion so adjudge it and order it to be
delivered or cancelled. xx xx xx xx
34.
in Edukanti Kistamma (dead) through L.Rs. and others
vrs.- S. Venkatareddy (dead) through L.Rs. and others : (2010) 1 SCC

756 it has been held that it is a settled legal proposition that challenge to
consequential order without challenging the basic order/statutory provision
on the basis of which the order has been passed cannot be entertained.
Therefore, it is a legal obligation on the part of the party to challenge the
basic order and only if the same is found to be wrong, consequential order
may be examined.
35.
Not only GPA Ext.1 has been admitted without objection but also
GPA Ext.1 has been admitted into evidence on behalf of the plaintiffs. There
is no dispute regarding execution of sale deeds Exts. B and C. In
R.V.E.Venkatachala Gounder vrs.- Arulmigu Viswesaraswami and
V.P. Temple and another : AIR 2003 SC 4548 it has been held that when a
document is admitted into evidence without objection, it cannot be said to
be inadmissible being a photo copy. In Life Insurance Corporation of
India vrs.- Narmada Agarwalla and others : AIR 1993 Orissa 103 this
Court has held that once a document is marked on admission, contents
thereof are also treated to be admitted though truth of correctness of the
contents of the document is required to be ascertained from evidence on
record.
36.
Learned counsel for the appellant also placed reliance on the
decision of the Honble Supreme Court in Ningawwa vrs.- Byrappa
Shiddappa Hireknrabar and others : AIR 1968 SC 956 to contend that
when a contract or other transaction is assailed on the ground of fraud, such
transaction cannot be assailed to be void ab initio, but it becomes voidable
at the option of the party alleging fraud. Until it is avoided, the transaction is
743
[B.K. PATEL, J.]
valid, so that third parties without notice of the fraud may in the meantime
acquire rights and interests in the matter which they may enforce against
the party alleging fraud. The legal position will be otherwise if there is
fraudulent misrepresentation not merely as to the contents of the document
but as to its character. With reference to the former, the transaction is void,
while in the case of the latter, it is merely voidable.
37.
In view of the above, the trial court is found to have correctly
refrained from rendering any finding or observation with regard to GPA
Ext.1. The trial court has taken note of the fact that plaintiff no.3, who was
examined as P.W.1, categorically admitted at paragraph 7 of his crossexamination that he had given power of attorney to defendant no.2 to sell
their joint family land. Also, at paragraph 10 of his cross-examination this
witness admitted that on the date of sale of the suit land they were present
in the Sub-Registrar office. It is also worthwhile to note that contesting
defendant no.1 has brought on record registration copies of sale deeds
Exts.D and D/1, execution of which by defendant no.2 in favour of other
transferees in respect of other land out of the suit plot on the basis of
authority derived from GPA Ext.1 has not been assailed. In such
circumstances, the lower appellate court had no basis to render a finding
that GPA Ext.1 cannot be considered to be a valid document empowering
defendant no.2 to sell the land out of the suit plot. Conclusion of the lower
appellate court with regard to GPA Ext.1 to be an invalid and fake document
is not sustainable in law.
38.
Extent of suit land in respect of which impugned sale deeds have
been executed comprises of an area measuring Ac.0.900 decimals. It is not
disputed that the extent of suit property is well within 1/4th share of the suit
plot measuring Ac.4.750 decimals to which defendant no.2 is entitled. As
has been adverted to earlier, initially it was conceded on behalf of the
contesting respondents that plaintiffs do not assail validity of sale deeds
Exts. B and C on the ground of non-payment of consideration amount.
However, at a later stage, attempt was made to assail the impugned sale
deeds on the ground also of non-payment of consideration amount.
Execution of sale deeds Exts. B and C is an admitted fact. P.W.1 admits
that they were present in the office of the Sub-Registrar on the date of
execution of the sale deeds. There are explicit recitals in the sale deeds
regarding receipt of consideration amount by defendant no.2. Defendant
no.2 was the most competent person who could have adduced evidence
regarding non-payment of consideration amount on the face of pleading and
evidence of defendant no.1 that consideration amount was paid. However,
defendant no.2 did not choose to file any written statement and while
744
[2013]
deposing in court supported the plaintiffs. In the absence of any pleading by

defendant no.2 with regard to non-payment of consideration amount,
assertion made by defendant no.2 in court while deposing as witness is of
no consequence and is to be ignored. In Ram Sarup Gupta (dead) by
L.Rs. vs. Bishun Narain Inter College and others: AIR 1987 SC 1242,
cited by the learned counsel for the respondents, it has been pointed out
that it is well settled that in the absence of pleading, evidence, if any,
produced by the parties cannot be considered. It is also equally settled that
no party should be permitted to travel beyond its pleading and that all
necessary and material facts should be pleaded by the party in support of
the case set up by it. In such circumstances, there is no scope for the
plaintiffs to assail the sale deeds on the ground that there is no passing of
consideration amount. Consequently, under the facts and circumstances of
the case, sale deeds Exts. B and C have the effect of passing of title of the
suit property to the purchaser upon execution and registration thereof.
39.
It is well-settled that on execution and registration of a sale deed, the
ownership, title and all interests in the property pass to the purchaser unless
a different intention is either expressed or necessarily implied which has to
be proved by the party asserting that title has not passed on registration of
the sale deed. Such intention can be gathered from the evidence, recital of
the sale deed and other circumstances. In this context, decision in
Bishundeo Narain Rai (dead) by L.Rs. and others vrs.- Anmol Devi :
AIR 1998 SC 3006 may be referred to. In Dulana Dei alias Dolena Dei
vrs.- Balaram Sahu : AIR 1993 Orissa 59 this Court has pointed out that
when the immovable property was sold by a registered sale deed and recital
in sale deed admitted that the vendor intended to transfer the title in favour
of vendee on the very date of execution of sale deed, it cannot be said that
for non-payment of consideration there was no passing of title. In Janak
Dulari Devi vrs.- Kapildeo Rai and Anr. (supra) and other decisions
relied upon by the learned counsel for the contesting respondents also it
has been pointed out that normally ownership and title to the property will
pass to the purchaser on registration of the sale deed with effect from the
date of execution of the sale deed. However, this is not an invariable rule,
as the true test of passing of property is the intention of parties. Learned
counsel for the appellant has not raised any dispute with such settled
principles of law.
40.
Reliance was placed on the provisions under Section 4 of the
Partition Act and under Section 44 of the Transfer of Property Act by the
plaintiffs for assailing the sale deeds executed by defendant no.2 as a cosharer in respect of the suit property. Neither Section 4 of the Partition Act
745
[B.K. PATEL, J.]
nor Section 44 of the Transfer of Property Act prohibits the sale of undivided
interest by a co-owner. However, where the sale is in respect of the
dwelling house belonging to undivided family, the purchaser cannot claim
separate possession. In the decision in Gourhari Das vrs. Kalpataru Das
and others : 34 (1992) O.J.D. 137 (Civil) it has been pointed out by this
Court that when there is no proof of the fact that the disputed properties are
parts of the dwelling house, protection under Section 4 of the Partition Act is
not available. In Harekrushna Mahakud vrs.- Radhanath Mahakud &
Ors. : 2009 (1) CLR 560 also this Court with reference to Section 44 of
Transfer of Property Act has pointed out that transfer by one of the coowners remains valid to the extent of the share of the transferor.
41.
Learned counsel for the appellant has also placed reliance on the
decisions of the Honble Supreme Court in Hardeo Rai vs. Sakuntala Devi
and others: (2008) 7 SCC 46 and of this Court in Smt. Bina Sukla vrs.Smt. Meena Devi Panch and others : 106 (2008) CLT 330 to urge that a
co-owner can transfer his undivided interest in a joint property and the
transferee acquires right to enforce the sale.
42.
In the present case plaintiffs have not pleaded that they have their
dwelling house on the suit property. On the contrary, in the cause title and
verification in the plaint the plaintiffs and while deposing in court P.Ws.1 and
2 described themselves to be the residents of village Patia which locality is
admittedly different from village Chandrasekharpur where the suit property
is situated. Evidence of P.Ws.1 and 2 also is altogether silent regarding
existence of their dwelling house over the suit property. In fact, they have
not stated regarding existence of any dwelling house on the same.
Considering the nature of evidence adduced by plaintiffs, the trial court has
rendered a positive finding to the effect that evidence of P.Ws.3, 4 and 5
with regard to possession of the plaintiffs over the suit property is not
acceptable. The finding remains un-assailed. No doubt in the record of
rights the suit plot has been described to be of Gharbari kissam which
means that the nature of the suit plot is homestead, but in absence of any
evidence with regard to existence of dwelling house or even house on the
suit property, provisions relating to transfer of undivided property, i.e.,
dwelling house under Section 4 of the Partition Act or under the proviso to
Section 44 of the Transfer of Property Act are not attracted in the present
case.
43.
Thus, in view of the above discussions, not only GPA Ext.1 remains
a valid document but also there is no scope to declare the sale deeds Exts.
B and C to be void or invalid documents. Defendant no. 1 has acquired title
746
[2013]
over the suit property on the strength of sale deeds Exts. B and C. As a true
owner, he has acquired the right to enforce the right, title and interest over
the suit property. In the absence of case for declaration of their right, title
and interest over the suit property against defendant no. 1, plaintiffs are not
entitled to any relief in the suit.
44.
Before parting with the judgment, it is observed that it is evident from
the fact of impletion of respondent no. 5 in this appeal on the basis of claim
of being a lis pendent purchaser that there has been successive sale of suit
property. The present suit is one of the instances of the impact of high price
rise of land in Bhubaneswar. Scramble for land is leading to unscrupulous
transactions even if the owner has already sold the land to bona fide
purchaser. As a result, litigations of the present nature are on the rise.
Plaintiff nos.2 and 3 along with defendant no.2 got the record of rights in
respect of the suit plot prepared exclusively in their names to the exclusion
of plaintiff no.1. Plaintiff nos.2 and 3 executed GPA Ext.1 in respect of the
suit plot in favour of defendant no.2. Thereafter, plaintiffs combined with
defendant no.2 in instituting the present suit which is evident from the fact
that defendant no.2 not only did not file written statement but also supported
the plaintiffs while deposing in court making a somersault with regard to
execution of GPA Ext.1 and sale deeds Exts. B and C thereby leaving
defendant no.1 a bona fide purchaser in the lurch. In such circumstances,
defendant no.1 is entitled to protection not only under law as stated above
but also in equity.
45.
In the result, the second appeal is allowed. Judgments passed by
both the courts below are set aside. Plaintiffs suit is dismissed. Parties shall
bear their own cost.
Appeal allowed.
747
2013 ( I ) ILR - CUT- 747
B. K. NAYAK, J.
CRLMC. NO. 2267 OF 2006 (Dt.17.10.2012)
PINTU @ SUJIT KUMAR GIRI & ORS.
.Petitioners
.Vrs.
STATE OF ORISSA
..Opp.Party
CRIMINAL PROCEDURE CODE, 1973 S.155 (4)

Complaint Case If a complaint contains the allegation about
commission of offences both U/s.498-A and U/s.494 I.P.C., the Court
can take cognizance there of even on a police report.
In this case there are clear allegations in the F.I.R. that during
the course of torture, cruelty meted out to the Opp.Party-informant
The petitioners threatened to drive her away and solemnize a second
marriage of the husband of the informant which is an integral part of
the offence U/s.498-A I.P.C. Held, there is no infirmity in the
impugned order Dt.21.8.2004 passed by the learned SDJM, Balasore
taking cognizance U/ss.498-A, 494, 323/34 I.P.C. and Section 4 of the
D.P. Act.
Case laws Referred to:1.2006 (1) OLR 777
2.AIR 1984 SC 1108
3.1996 (6) SCC 435
4.(2012)6 SCC 353
: (Ashok Kumar Mohanty-V- State of Orissa)

: (State of U.P.-V- Suresh Chandra Srivastava & Ors.)
: (State of Orissa-V- Sarat Ch. Sahu & Anr.)
: (Ushaben-V- Kishorbhai Chunilal Talpada & Ors.).
For Petitioner - M/s. Smira ku. Mishra

For Opp.Party - M/s. Sabita Tola
Heard learned counsel for the petitioner, learned counsel for the
State and the learned counsel for the informant.
Perused the records.
In this application under Section 482 of the Code of Criminal
procedure the petitioners challenge the order dated 21.08.2004 passed by
the learned S.D.J.M., Balasore in Crl.Trial No.679 of 2004 taking cognizance
of the offences under Sections 498-A, 494, 323/34 of the Indian Penal Code
and Section 4 of the Dowry Prohibition Act against the petitioners.
748
[2013]
The only contention raised by the learned counsel for the petitioners
that the offence under Section 494 of the Indian Penal Code is a noncognizable offence, cognizance of which can be taken by the magistrate only
on the basis of a complaint as required under Section 198, Cr.P.C. and that
no cognizance in respect of that can be taken on the basis of a police report
along with offences under sections 498-A and 323 of the Indian Penal Code
inasmuch as the FIR does not disclose that the offence under section 494 of
the Indian Penal Code is an integral part of offence under sections 498-A of
the Indian Penal Code. In this respect he relies on a decision of this Court
reported in 2006 (1) OLR 777; Ashok Kumar Mohanty-v- State of Orissa
wherein similar circumstances, cognizance having been taken for offences
under Sections 498-A, 494, 506/34 of the Indian Penal Code and Section 4
of the Dowry Prohibition Act, this Court quashed the cognizance under
section 494 of the Indian Penal Code in the absence of a complaint in that
respect. For passing such order this Court took note of the provisions under
Section 198 Cr.P.C. which curtails the power of the Court to take cognizance
of the offences punishable under Chapter XX of the Indian Penal Code
except upon a complaint made by some person aggrieved by the offence.
This Court also took into consideration the dictum of the apex Court in AIR
1984 S.C. 1108; State of U.P. v. Suresh Chandra Srivastava & others
wherein it has been held as under :
6. In these circumstances, therefore, it is not necessary for us
to go into the broader question as to whether if offences under
Sections 467, 471 and 120-B, I.P.C. are committed, the complaint
could proceed or not. The law is now well settled that where an
accused commits some offences which are separate and distinct
from those contained in Section 195, Section 195 will affect only the
offences mentioned therein unless such offences form an integral
part so as to amount to offences committed as a part of the same
transaction, in which case the other offences also would fall within
the ambit of S.195 of the Code.
However the aforesaid decisions have not taken note of the
provision of Section 155 (4), Cr.P.C. which was taken note of by the apex
Court in the subsequent decision in the case of State of Orissa v. Sarat
Ch. Sahu and another 1996 (6) SCC 435; wherein it is held as follows:
11. Sub-section (4) creates a legal fiction and provides that
although a case may comprise of several offences of which some are
cognizable and others are not it would not be open to the police to
investigate the cognizable offences only and omit the non-
749
PINTU @ SUJIT KUMAR GIRI -V- STATE
cognizable offences. Since the whole case (comprising of cognizable
and non-cognizable offences) is to be treated as cognizable, the
police had no option but to investigate the whole of the case and to
submit a charge-sheet in respect of all the offences, cognizable or
non-cognizable both, provided it is found by the police during
investigation that the offences appear, prima facie, to have been
committed.
Similarly in the case of Ushaben vrs- Kishorbhai Chunilal
Talpada and others; (2012) 6 Supreme Court Cases 353 taking note of
sub-Section (4) of Section 155 Cr.P.C. the apex Court held that if a
complaint contains the allegation about commission of offences both under
section 498-A of the Indian Penal Code as well as Section 494 of the Indian
Penal Code, the Court can take cognizance thereof even on a police report.
In view of such pronouncement of the Supreme Court, the decision of this
Court in the case of Ashok Kumar Mohanty (supra) cannot be said to have
laid down the correct position of law. The contention raised by the learned
counsel of the petitioners has no force.
Apart from the above, on going through the copy of the F.I.R., it is
found that there are clear allegations that during the course of torture and
cruelty meted out to the opposite party-informant the petitioners threatened
to drive her away and solemnize a second marriage of the husband of the
informant, which is definitely an integral part of the offence under section
498-A of the Indian Penal code.
In the aforesaid circumstances I find no infirmity in the impugned
order of cognizance. The CRLMC is accordingly dismissed as being devoid
of merit. Interim order of stay of the Criminal Trial No.679 of 2004 stands
vacated.
Application dismissed.

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2013 ( I ) ILR - CUT- 548

V. GOPALA GOWDA, CJ.

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

: (Mahipatlal Patel-V- Chief Engineer & anr.)

- M/s. A. Mishra, D.K. Pani,

dated 15.3.2001 are produced at

regard to Clause 67 in the agreement between the parties the intention of

cannot be sought for by the petitioner in vacuum. There is no explanation at

appointment of an Arbitrator in exercise of my power under Section 11(6) of

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

A dispute with an Indian Contractor shall be finally settled by

substantiate its rights under Clause 69.4 of the General Conditions of

Thereafter as required under Clause 67.1 and 67.3 above, after

The Superintending Engineer, Naraj Barrage Circle, Cuttack-3

PRASANNA KU. SAHOO & ANR.

MOTOR VEHICLES ACT, 1988 S. 168.

M/s. S.K.Mohanty, S.Dei, S.Mohanty,

For Respondents - M/s. G.S.Namtoar, D.K.Mishra, R.N.Singh

Keonjhar in M.A.C. Case No.54 of 1994 awarding compensation of

the claimant is entitled for enhancement of compensation as claimed during

GOVERNMENT OF ORISSA & ORS.

: (Citizen Welfare Forum-V- Union of India(

- M/s. Dayanidhi Mohanty, K.P.Mishra, A.K.Jena,

the matter should be transferred to the Green Tribunal or the alternative

concentrated mode of disposal, as the disposed of material would

safest methods for which construction work is speedily going on. It is

The apprehension of the petitioners that ash slurry is going to be discharged

Whether the writ petition is required to be transmitted to the Tribunal

Whether construction of the Ash Pond Stage-IV by the NALCO is in

Whether construction of the Ash Pond Stage-IV by the NALCO over

No application for adjudication of dispute under this section shall be

relief and compensation to the victims of pollution and other

for restitution of property damaged;

for restitution of the environment for such area or areas, as the

The relief and compensation and restitution of property and

No application for grant of any compensation or relief or restitution of

The Tribunal may, having regard to the damage to public health,

Every claimant of the compensation or relief under this Actshall

case on hand has substance. Accordingly, the first point is answered in

Environmental measure by the State Government & the Statutory

Where there are threats of serious and irresponsible damages, lack

The onus proof is one the actor or developer/industrialist to show

Federated Farmers of New Zealand, (1988) 1NZLR 78. The

respect of land in question the notification under Section 14(1)(a) of the

Annexure-A along with the affidavit of the Pollution Control Board is in

NATURAL JUSTICE Civil consequence Infraction of not

: (Rupa Ashoka Huraa-V- Ashok Hurra & Anr.)

Mr. B.K.Mahanti, Sr, Advocate

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

accommodation is provided by the employer as a part and parcel of his duty

Whether the impugned order passed under Annexure-1 by opposite

Whether accommodation provided to the Executives working under

which the payment is made, on the estimated income of the

Where any such certificate is given, the person responsible for

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

of the petitioner-Association are entitled to be issued with certificate of No

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

Case laws Referred to:1.(2008)15 VST 228

:(Reliance Industries Ltd.-V- Asst. Commissioner

: (AMI Pigments Pvt. Ltd. & Ors.-V-State of

Dr. Devi Pal, Sr. Advocate,

Mr. R.P. Kar,