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Orissa High Court Monthly Digest: August 2022 [Citations 117-129]
Jyoti Prakash Dutta
24 Sep 2022 8:17 AM GMT
Nominal Index:Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors., 2022 LiveLaw (Ori) 117 Dr. Satya Narayan Bhujabala & Anr. v. Veer Surendra Sai Institute of Medical Science and Research, Burla and Ors., 2022 LiveLaw (Ori) 118 State of Odisha represented by Commissioner of Sales Tax, Cuttack v. M/s. Geetashree Industries & Ors., 2022 LiveLaw (Ori) 119 Abhisek...
Nominal Index:
Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors., 2022 LiveLaw (Ori) 117
Dr. Satya Narayan Bhujabala & Anr. v. Veer Surendra Sai Institute of Medical Science and Research, Burla and Ors., 2022 LiveLaw (Ori) 118
State of Odisha represented by Commissioner of Sales Tax, Cuttack v. M/s. Geetashree Industries & Ors., 2022 LiveLaw (Ori) 119
Abhisek Acharya & Ors. v. State of Odisha, 2022 LiveLaw (Ori) 120
Smrutikant Rath & Ors. v. State of Odisha & Anr., 2022 LiveLaw (Ori) 121
Faridabad Gurgaon Minerals v. Orissa Mining Corporation Ltd., 2022 LiveLaw (Ori) 122
Tapan Kumar Pradhan v. State of Odisha, 2022 LiveLaw (Ori) 123
Reckitt Benckiser (India) Ltd. versus State of Odisha and Others, 2022 LiveLaw (Ori) 124
Hansmina Kumari Das & Ors. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 125
Nilakantha Tripathy v. State of Odisha & Ors., 2022 LiveLaw (Ori) 126
Madhav Soren v. State of Odisha and Others, 2022 LiveLaw (Ori) 127
Birla Institute of Management v. Fiberfill Interiors & Constructions, 2022 LiveLaw (Ori) 128
Narayan Muduli v. State of Odisha & Ors., 2022 LiveLaw (Ori) 129
Cases Reported In The Month:
Case Title: Babita Satpathy @ Mishra v. Sitanshu Kumar Dash & Ors.
Citation: 2022 LiveLaw (Ori) 117
The High Court held that objections raised as to "mode of admissibility" of secondary evidence can be adjudicated upon by Trial Courts at the stage of judgment and there is no strict rule that it must be decided as and when objection is raised or before the commencement of arguments. A Single Judge Bench of Justice Krushna Ram Mohapatra observed,
"It appears that the objection with regard to mode of admission of the document was raised, which is marked as exhibits by filing the instant petition. Since the learned trial Court has kept the objection open to be decided at the time of argument no prejudice will be caused to the Petitioners. Further, once a document has been exhibited with objection the same cannot be expunged from the evidence of the party unless circumstances thereto are established."
Case Title: Dr. Satya Narayan Bhujabala & Anr. v. Veer Surendra Sai Institute of Medical Science and Research, Burla and Ors.
Citation: 2022 LiveLaw (Ori) 118
The Orissa High Court reiterated that Courts should be extremely reluctant in imposing their own views disregarding the statutes or rules governing appointment in the field of academics. The Court declined to interfere in a petition, which sough intervention against denial of candidature for the want of 'chance certificate'. A Single Judge Bench of Dr. Justice Sanjeeb Kumar Panigrahi relied on the following observation from Maharashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupesh Kumar Sheth & Ors.,
"…the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them. It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass-root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded."
Case Title: State of Odisha represented by Commissioner of Sales Tax, Cuttack v. M/s. Geetashree Industries & Ors.
Citation: 2022 LiveLaw (Ori) 119
The Orissa High Court held that the approach which is employed to exempt a commodity from the purview of taxation is not the same which is used to bring a good under the umbrella of taxation. While applying this principle, a Division Bench of Chief Justice Dr. S. Muralidhar and Dr. Justice Sanjeeb Kumar Panigrahi held that 'Chuni' is different from 'Cattle feed' under entry 66 of para-I of the Schedule attached to the Odisha Entry Tax Act, 1999 ('OET Act') and thus, the former is not amenable to entry tax under the statute.
"It is one thing to say that a certain product was exempted for the purposes of taxation by virtue of interpretation of an exemption notification, it is another to say that it is amenable to tax by bringing it within the ambit of another product shown in the Schedule to the OET Act and, therefore, bringing it within the fold of taxation. The approach to both cannot be the same."
Case Title: Abhisek Acharya & Ors. v. State of Odisha
Citation: 2022 LiveLaw (Ori) 120
The Orissa High Court denied to discharge a number of persons accused of forcefully entering and causing damage to properties at the official residence of Mr. V.K. Pandian, IAS & Private Secretary to the Chief Minister of Odisha Mr. Naveen Pattnaik. While upholding the order of the Trial Court, a Single Judge Bench of Justice Sangam Kumar Sahoo observed,
"After going through the case records minutely particularly the statements of the witnesses, the seizures in the case, it cannot be said that there is absence of prima facie material against the petitioners. The learned trial Court has also found that there are materials available in the case record that on 10.02.2018 at about 10.00 a.m., the petitioners entered into the official residential quarters of Mr. V.K. Pandian raising hulla and assaulted the security guard, abused the informant in filthy language, damaged the flower pots so also glass pans of the quarters and the motorcycle and seizure of those damaged articles were made."
Case Title: Smrutikant Rath & Ors. v. State of Odisha & Anr.
Citation: 2022 LiveLaw (Ori) 121
The Orissa High Court held that an order taking cognizance and issuing summons for offences alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is an 'appealable order' in terms of Section 14-A(1) of the Act. A Single Judge Bench of Justice Aditya Kumar Mohapatra further held that such order cannot be classified as 'interlocutory order' as the same qualifies to be an 'intermediate order'.
"…this Court has no hesitation to hold that the order taking cognizance and issuing summons to the accused person is not clearly an interlocutory order, but an intermediate order. Therefore, the same is appealable in view of the provisions contained under Section 14-A(1) of the S.C. and S.T. (PoA) Act."
Case Title: Faridabad Gurgaon Minerals v. Orissa Mining Corporation Ltd.
Citation: 2022 LiveLaw (Ori) 122
The Orissa High Court ruled that there is no requirement under Section 34(3) of the Arbitration and Conciliation Act, 1996 (A&C Act) to file a separate application for condonation of delay in filing an application to set aside an arbitral award under Section 34 of the A&C Act, since the prescribed and the extended periods are both provided under Section 34 of the A&C Act.
A Single Bench of Justice Arindam Sinha held that the Supreme Court in the case of State of Bihar v. Bihar Rajya Bhumi Vikas Bank Samiti (2018) has declared the law and has interpreted the provisions of Section 34(5) of the A&C Act, which requires a party to issue a prior notice to the opposite party before filing an application to set aside an arbitral award, as being 'directory' in nature and not mandatory. Therefore, the High Court ruled that the law thus stated by the Supreme Court applies retrospectively since it is a declaration on the discovery of the correct principle.
Orissa High Court Upholds 'Life Term' Of Murder Convict 18 Yrs After Enlarging Him On Bail
Case Title: Tapan Kumar Pradhan v. State of Odisha
Citation: 2022 LiveLaw (Ori) 123
The Orissa High Court upheld the conviction and resultant life imprisonment awarded to a person in a 2001 murder case. Notably, after the conviction by the Trial Court in 2003, he was enlarged on bail in 2004 by the High Court. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,
"The Court is satisfied that the prosecution in the present case has been able to establish convincingly each of the links in the chain of circumstances and further prove that the circumstances are so complete and incapable of an explanation of any other hypothesis than that of the guilt of the Appellant. The evidence is not only consistent with his guilt but is also inconsistent with his innocence."
12% Sales Tax Applicable On Robinson Barley And Purity Barley: Orissa High Court
Case Title: Reckitt Benckiser (India) Ltd. versus State of Odisha and Others
Citation: 2022 LiveLaw (Ori) 124
The Orissa High Court held that 12% sales tax is applicable on Robinson Barley and Purity Barley. The distinct commercial product "Robinson Barley" cannot be classified as "cereal". The Division Bench of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik further held that Robinson Barley and Purity Barley manufactured by the petitioner should be taxed under the residual Entry 189 of List C of the Rate Chart appended to the OST Act and not Entry 25 relating to "cereals".
PIL Can't Be Entertained In Disputes Relating To Service Matters: Orissa High Court
Case Title: Hansmina Kumari Das & Ors. v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 125
The Orissa High Court held that Public Interest Litigation (PIL) cannot be entertained in disputes pertaining to 'service matters'. While adjudicating a matter relating to alleged irregularities in the appointment of primary school teachers, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik followed the above principle as has been laid down and reiterated by the Supreme Court in a number of cases.
Case Title: Nilakantha Tripathy v. State of Odisha & Ors.
Citation: 2022 LiveLaw (Ori) 126
The Orissa High Court upheld a notification issued by the Government of Odisha, which compulsorily retired a Chief Judicial Magistrate ('CJM') from his service, citing the step to have been taken 'in public interest'. While affirming such notification, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik also held that compulsory retirement is not a punishment; thus, there is no need to give prior hearing to the concerned officer before notifying such retirement. It observed,
"It is now well settled that compulsory retirement is not a punishment and the necessity of giving a hearing to the Petitioner prior to such decision being taken does not arise. This has been explained in a large number of cases including Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299…"
Case Title: Madhav Soren v. State of Odisha and Others
Citation: 2022 LiveLaw (Ori) 127
The Orissa High Court ordered to pay a compensation of Rs. 10 Lakhs to the father of a 7-year-old daughter who died after a kitchen side wall within the school premises collapsed. The Single Bench of Chief Justice S. Muralidhar observed that the death of the girl was totally unnecessary and avoidable and it would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed.
"...the negligence of the State authorities in using defective materials to construct a kitchen in the school premises has already been established during the enquiry. The death of the young child was totally unnecessary and avoidable. The responsibility for death definitely rests with the State. The death would not have occurred if all the safety measures, that were instructed to be put in place by the State, had been strictly followed", the Court noted.
Case Title: Birla Institute of Management v. Fiberfill Interiors & Constructions
Citation: 2022 LiveLaw (Ori) 128
The Orissa High Court held that a mere reply to the notice of arbitration would not save the period of limitation for filing the counter-claim(s). A Single Judge Bench of Justice Arindam Sinha also held that the date on which the counterclaim is filed before the arbitrator would be the relevant date for determining the date of stopping of the period of limitation unless the respondent had issued a separate notice of arbitration raising the counter-claims, then the limitation would be computed as on the date of that notice.
Case Title: Narayan Muduli v. State of Odisha & Ors.
Citation :2022 LiveLaw (Ori) 129
The Orissa High Court declined to entertain a Public Interest Litigation (PIL) filed by a sculptor against alleged police actions in preventing him from making and selling certain types of idols of Lord Ganesha. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Chittaranjan Dash, while backing police actions, apprehended a law-and-order situation if such idols are permitted to be made and sold. It observed,
"In matters of this nature where there is a genuine apprehension of untoward incidents being created which might lead to a law-and-order situation, the Court would not like to sit in judgment over the assessment of the Police."
Other Important Developments:
Orissa High Court Pulls Up Utkal University For Delay In Publication Of LLB Results
Case Title: Deep Kumar Mohanty v. State of Odisha & Ors.
Case No.: W.P.(C) No. 28906 of 2021
The Orissa High Court came down heavily on the authorities of Utkal University for delay in publication of results of B.A. LL.B. semester examinations. A Division Bench of Dr. Justice Bidyut Ranjan Sarangi and Justice Sanjay Kumar Mishra was hearing a writ petition filed by a final year student of University Law College, Utkal University, Bhubaneswar. The petitioner had approached the Court with a prayer to get the semester results published in a time-bound manner. He relied on an order of Odisha Higher Education Department which required the University to end the final (10th) semester exams and publish results thereof latest by 15th August 2022.
At a point of hearing, counsel for Utkal University submitted that the inadvertent delay is owing to the unavailability of sufficient number of staffs in the University. This irked Justice Sarangi, who orally observed,
"You are not filling-up the posts (of faculties) and paying meagre salaries to guest faculties and relying on them for teaching. Stop that University. You are only concerned about how to get TA, vehicles, houses. You are not concerned about the education of students. Students are paying fees. The institution is running through the students' money."
Two Judicial Officers Sworn In As Judges Of Orissa High Court
Two senior judicial officers were sworn-in as Judges of the Orissa High Court by Chief Justice Dr. S. Muralidhar on Saturday (13th August) afternoon after their warrants of appointment were issued by the President of India on Friday. Justices Gourishankar Satapathy and Chittaranjan Dash served as the Director, Odisha Judicial Academy and Registrar General of the Orissa High Court respectively, immediately before their elevation.
Case Title: Binayak Subudhi v. Union of India & Ors.
Case No.: W.P.(C) No. 11144 of 2022
A Division Bench of the Orissa High Court, comprising Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik, granted four weeks' time to the Odisha State Bar Council ('OSBC') as a last opportunity to file its reply rejoinder in a petition filed by Advocate Binayak Subudhi, wherein he has challenged the 'exorbitant fees' charged by the Council to enrol law graduates in the State Bar Roll as advocates. Notably, the OSBC charges around Rs. 42,100/- to enrol general category law graduates, who are below the age of 25 years. The amount was shown to be the 'highest' among all the State Bar Councils of the nation.