Nominal Index:

1. Uma Charan Mishra v. Union of India, 2022 LiveLaw (Ori) 56

2. Zobeda Khatun v. Md. Habibullah Khan & Ors., 2022 LiveLaw (Ori) 57

3. Anjari Rout v. State of Odisha, 2022 LiveLaw (Ori) 58

4. M/s. Central Mine Planning & Design Institute Ltd. v. The Presiding Officer, Central Government Industrial Tribunal, Bhubaneswar & Anr., 2022 LiveLaw (Ori) 59

5. Sanjay Kumar Mohanty & Anr. v. State of Odisha & Ors., 2022 LiveLaw (Ori) 60

6. State of Odisha v. M/s. Nayagarh Sugar Complex Ltd., 2022 LiveLaw (Ori) 61

7. Jayaram Panda v. Project Director, M/s. National Highway Authority of India & Ors., 2022 LiveLaw (Ori) 62

8. Tengunu Sahoo & Anr. v. State of Orissa, 2022 LiveLaw (Ori) 63

9. Amitav Tripathy v. Orissa High Court, represented by the Registrar General, 2022 LiveLaw (Ori) 64

10. Sabyasachi Mohanty v. State of Odisha & Ors., 2022 LiveLaw (Ori) 65

11. Suryakanta Parida v. Odisha Public Service Commission & Ors., 2022 LiveLaw (Ori) 66

12. Golapi Pradhan v. D.V. Swami, Collector Gajapati & Anr., 2022 LiveLaw (Ori) 67

13. Roshni Meher v. State of Odisha, 2022 LiveLaw (Ori) 68

14. M/s. Oripol Industries Ltd., Balasore v. Joint Commissioner of Income Tax, Balasore and Ors., 2022 LiveLaw (Ori) 69

15. Amitav Tripathy v. Orissa High Court, represented by the Registrar General, 2022 LiveLaw (Ori) 70

16. Emcure Pharmaceuticals Ltd v. The Managing Director, Odisha State Medical Corporation & Ors., 2022 LiveLaw (Ori) 71

17. Baisakhu Sethy @ Behera v. State of Odisha, 2022 LiveLaw (Ori) 72

18. Sambara Sabar v. State of Odisha & Ors., 2022 LiveLaw (Ori) 73

19. State of Odisha & Ors. v. Larsen and Toubro Ltd., 2022 LiveLaw (Ori) 74

20. State of Odisha, represented by the Asst. District Veterinary Officer (Disease Control), Balasore v. Kailash Chandra Mallick & Ors., 2022 LiveLaw (Ori) 75

21. Mita Das v. State of Odisha & Ors., 2022 LiveLaw (Ori) 76

22. Prasant Kumar Jagdev v. State of Odisha, 2022 LiveLaw (Ori) 77

23. Daku @ Dasarathi Dehury v. State of Odisha, 2022 LiveLaw (Ori) 78

24. Bimalendu Pradhan v. State of Odisha & Ors., 2022 LiveLaw (Ori) 79

25. Milan @ Makardhwaja Khadia v. State of Odisha, 2022 LiveLaw (Ori) 80

26. Dr. Minaketan Pani v. State of Orissa, 2022 LiveLaw (Ori) 81

27. Krushna Prasad Sahoo v. State of Orissa & Ors., 2022 LiveLaw (Ori) 82

28. Chittaranjan Mohanty v. State of Odisha & Ors., 2022 LiveLaw (Ori) 83

29. Lasyamayee Mohanta v. Union of India & Ors., 2022 LiveLaw (Ori) 84

30. Rabindra Panigrahi v. State of Odisha & Ors., 2022 LiveLaw (Ori) 85

31. Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr., 2022 LiveLaw (Ori) 86

32. M/s. JSW Steel Ltd. Versus Union of India, 2022 LiveLaw (Ori) 87

33. Ugrasen Sahu v. State of Odisha & Ors., 2022 LiveLaw (Ori) 88

34. Sovakar Guru v. State of Odisha & Ors., 2022 LiveLaw (Ori) 89

35. Kantaro Kondagari @ Kajol v. State of Odisha & Ors., 2022 LiveLaw (Ori) 90

36. Dulamani Patel v. State of Odisha & Ors., 2022 LiveLaw (Ori) 91

37. Varsha Priyadarshini v. Government of India & Ors., 2022 LiveLaw (Ori) 92

38. Dr. Pabitra Mohan Mallik v. State of Odisha & Ors., 2022 LiveLaw (Ori) 93

Judgments/Orders Reported This Month:

1. Serious Candidate Will Find Resources To Make Deposit For Contesting In Election: Orissa High Court Upholds Constitutional Validity Of Section 34 Of Representation People Act

Case Title: Uma Charan Mishra v. Union of India

Citation: 2022 LiveLaw (Ori) 56

The Orissa High Court upheld the constitutional validity of Section 34 of the Representation of the People Act, 1951 which stipulates that eligible citizens can contest the election for being a Member of the Legislative Assembly (MLA) of the State, only if each of them deposits Rs. 10,000/- and for being a Member of Parliament (MP) only if they deposit Rs.25,000/. "A serious candidate for an election, who is keen on contesting will be able to find the resources to make the deposit of Rs.10,000/- for an election to the Legislative Assembly or Rs.25,000/- for the Parliament" the bench comprising the Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik observed.

2. CPC | No Prohibition On Third Party To Proceed Under Order 21 Rules 97, 99 & 101 Even After Rejection Of Impleadment Under Order 1 Rule 10: Orissa High Court

Case Title: Zobeda Khatun v. Md. Habibullah Khan & Ors.

Citation: 2022 LiveLaw (Ori) 57

The Court held that there is 'no prohibition' to bring an application under Order 21 Rules 97, 99 and 101 even after rejection of a similar application under Order 1 Rule 10, CPC. In view of these provisions, a Single Judge Bench of Justice Biswanath Rath observed,

"So far as the ground assailing the impugned order that once such Appeal is rejected in exercise of power under Order 1 Rule 10 of C.P.C., there is no further scope to bring the Application under Order 21 Rules 97, 99 & 101 of C.PC., this Court observes, exercise of power involving the Application under Order 1 Rule 10 of C.P.C. and exercise of power under the provision of Order 21 Rules 97, 99 & 101 of C.P.C. are completely different. Further scope under Order 21 Rules 97, 99 & 101 of C.P.C. is even much wider. In the circumstance, this Court finds, there is no prohibition in bringing such Application even after rejection of such endeavor in exercise of power under Order 1 Rule 10 of C.P.C."

3. Dying Declaration Made To Doctor Can't Be Discarded Only Because Certificate Of Fit Mental State Not Appended: Orissa High Court

Case Title: Anjari Rout v. State of Odisha

Citation: 2022 LiveLaw (Ori) 58

The High Court held that 'dying declaration' made to a doctor can neither be called to question nor should be doubted only because a certificate with regard to mental state of the deceased at the time of recording the declaration was not appended to it. While holding doctor to be 'the best person' to assess mental state of a victim, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"…P.W.10 was able to understand the language of the victim and being a doctor, he was the best person to assess her mental state. It is not that somebody else recorded the dying declaration of the victim and its acceptance is hence suspected for want of certificate of a doctor. Absence of a certificate on Ext.4 with regard to the mental state of the deceased, according to the Court, is not of much concern, when it was recorded by none other than a doctor himself."

4. S. 7-B, Industrial Disputes Act | Government Is Not Mandated To Refer Matters Of National Importance To National Tribunal: Orissa High Court

Case Title: M/s. Central Mine Planning & Design Institute Ltd. v. The Presiding Officer, Central Government Industrial Tribunal, Bhubaneswar & Anr.

Citation: 2022 LiveLaw (Ori) 59

The Court held that it is not mandatory for the Central Government to refer a matter of national importance to the National Industrial Tribunal for adjudication even if it satisfies the twin conditions mentioned under Section 7-B of the Industrial Disputes Act, 1947. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed, "It is not mandatory for the Central Government, even if the twin conditionalities are satisfied, to refer the disputes for adjudication to a National Tribunal. It may so happen that because of the placement of the parties, the dispute can well be adjudicated by a geographically proximate Tribunal."

5. Orissa High Court Directs State To Pay Rupees 10 Lakhs Compensation To Parents Of Boy Who Died By Falling In Drain During School Hours

Case Title: Sanjay Kumar Mohanty & Anr. v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 60

The Court ordered compensation of rupees ten lakhs to parents of a boy who died by falling into a drain during school hours while excreting. A Single Judge Bench of Justice Arindam Sinha observed, "The students coming from rural background were used to defecate in the open. In spite of toilet being available in the school premises, the teacher allowed the students to go outside the school premises, to relieve themselves. As such, contributory negligence in preventing the death is the inference."

6. Refusal To Delete Name Of A Party From The Arbitral Proceedings Is Not The Rarest Of Rare Case To Invoke Writ Jurisdiction: Orissa High Court

Case Title: State of Odisha v. M/s. Nayagarh Sugar Complex Ltd.

Citation: 2022 LiveLaw (Ori) 61

The Court held that a writ petition is not maintainable against an order of the arbitral tribunal refusing to delete the name of a party from the arbitration. The Single Bench of Justice Arindam Sinha held that to invoke the writ jurisdiction in an arbitration matter, the aggrieved party has to show that it is a 'rare of the rarest cases' and the interference of the Court is required and the order of the tribunal wherein it has refused to delete the name of a party does not fall within the rubric of rare of the rarest cases.

7. An Unreasoned Arbitration Award Is Against The Public Policy: Orissa High Court

Case Title: Jayaram Panda v. Project Director, M/s. National Highway Authority of India & Ors.

Citation: 2022 LiveLaw (Ori) 62

The High Court held that an unreasoned arbitral award would be against the public policy. The Court set aside the award as the arbitrator failed to give any reasons for reaching the conclusion in the award. The Single Bench of Justice Arindam Sinha held that an award bereft of reasons, goes against the mandate of the Act and therefore is against the public policy. The Court further held the reasons given by a Court while adjudicating a challenge under Section 34 of the Arbitration and Conciliation Act would not suffice the requirement of reasons in the award. The challenge is not akin to a first appeal being in continuation of the suit.

8. Orissa High Court Sets Aside Conviction Of Food Seller For Not Possessing 'Food Licence' In 28 Years Old Case

Case Title: Tengunu Sahoo & Anr. v. State of Orissa

Citation: 2022 LiveLaw (Ori) 63

A Single Judge Bench of Chief Justice Dr. S. Muralidhar acquitted a 'food seller' after 25 years of his conviction for not possessing 'food licence'. The Court set aside the order of the appellate court which convicted the petitioner under Section 7(iii) of the Prevention of Food Adulteration Act, 1954, which provides that any person selling article or food for which licence is prescribed, if sells without a licence would be committing an offence which is punishable under Section 16(1)(a)(ii) of the Act.

9. "Rare & Exceptional Case": Orissa HC Orders 'Re-valuation' Of Two Answers Of Candidate In Direct District Judge Recruitment Exam

Case Title: Amitav Tripathy v. Orissa High Court, represented by the Registrar General

Citation: 2022 LiveLaw (Ori) 64

The High Court ordered 're-valuation' of two answers given by a candidate who appeared in the examination for direct recruitment in the cadre of District Judge from the Bar. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held that the wide power under Article 226 may continue to be available even though there is no provision for revaluation in a situation where a candidate despite having given the correct answer and about which there cannot be even slightest manner of doubt, he is treated as having given the wrong answer and consequently the candidate is found disentitled to any marks.

10. Law Universities Should Set Exemplary Principles, Not Indulge In Diluting Tactics: Orissa HC Raps NLUO For Not Adhering To Uniform Service Conditions For Employees

Case Title: Sabyasachi Mohanty v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 65

The Court came down heavily on National Law University of Odisha (NLUO) for applying different principles in case of different employees without having a codified service condition. It was adjudicating a plea by an ex-Assistant Finance Officer Mr. Sabyasachi Mohanty, who moved the Court against his arbitrary termination by the University. Expressing displeasure at the conduct of the University for setting different service standards for different employees, the Single Judge Bench of Justice Biswanath Rath remarked,

".. it also makes it clear that the University in the guise of no permanent service conditions on its own employee, is applying different standards in case of different employees which cannot get approval of law. Once you set a principle that should be followed till it is replaced only by a better principle, if any. The attitude of the University in the circumstance makes it clear that the University applies different principles in case of different employees, which ought to be prohibited."

11. Govt. Employee Has No 'Vested Right' To Seek Transfer/ Posting To A Particular Position Even If That Is Vacant: Orissa High Court

Case Title: Suryakanta Parida v. Odisha Public Service Commission & Ors.

Citation: 2022 LiveLaw (Ori) 66

A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi held that a government employee has no 'vested right' to seek posting to a particular position even if the desired position is lying vacant. It observed, "Even if vacancies are there, the petitioner does not have any vested right to claim for such posts since it is under the absolute domain of the Government."

12. Orissa High Court Dismisses Contempt Petition Instituted By Govt. School Cook Against Former Gajapati Collector D.V. Swamy

Case Title: Golapi Pradhan v. D.V. Swami, Collector Gajapati & Anr.

Citation: 2022 LiveLaw (Ori) 67

The High Court dismissed a contempt petition filed by a Cook-cum-Attendant of a Government High School, against the former Collector-cum-District Magistrate, Gajapati Mr. D.V. Swamy. While rejecting contentions made by the petitioner, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held, "Merely because the decision rendered by the Collector pursuant to the order of this Court went against the Petitioner, would not mean that the Collector wilfully disobeyed the order of this Court. The Court is, therefore, not satisfied that there has been any wilful disobedience of the order passed by it."

13. Child In Conflict With Law Gets Bail After 3 Yrs Custody; Orissa High Court Raps Police For 'Lackadaisical Attitude'

Case Title: Roshni Meher v. State of Odisha

Citation: 2022 LiveLaw (Ori) 68

The Court granted bail to a child in conflict with law after she remained in custody for over 'three years'. A Single Judge Bench of Justice V. Narasingh came down heavily on the police for its apathetic approach and observed, "Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis."

Further, the Court hoped that necessary corrective action shall be taken so as to make the Police machinery more responsive to the needs of administration of justice.

14. Commission Paid To Persons Who Are Not Beneficial To Business Of Assessee Is Taxable: Orissa High Court

Case Title: M/s. Oripol Industries Ltd., Balasore v. Joint Commissioner of Income Tax, Balasore and Ors.

Citation: 2022 LiveLaw (Ori) 69

The High Court dismissed a challenge against an order of the Income Tax Appellate Tribunal, Cuttack (ITAT) which disallowed commission expenses as claimed by the appellant. It held that the appellant was not able to prove the expertise of persons to help him in business to whom the said commission was paid. Denying the arguments of the appellant, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"In the present case, all the persons to whom commission was paid were either Directors of the Company or their relatives. None of them is shown to have any expertise in procuring IOF from the Indian markets for enabling the Appellant to meet the purchase order placed on it for IOF. The amounts paid as commission were also not insubstantial."

15. Candidate In 'Direct District Judge Recruitment Exam' Fails To Qualify For Interview By 1 Mark After Revaluation; Orissa HC Dismisses Case

Case Title: Amitav Tripathy v. Orissa High Court, represented by the Registrar General

Citation: 2022 LiveLaw (Ori) 70

The High Court dismissed the writ petition filed by Mr. Amitav Tripathy, who had challenged marks assigned to him in the examination conducted for direct recruitment from the Bar in the cadre of District Judge. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik, in its order passed on 11^th May 2022, had observed the case to be "rare and exceptional" and had ordered the Registrar (Examinations) to send two questions for revaluation by a 'Law Expert'. The revaluated answer-sheet was produced before the Court. After such revaluation, the petitioner got only additional 0.5 mark, which was 1 mark less than the qualifying marks for the interview. Thus, the Court dismissed the petition and observed, "The net result is that the candidate gets just 0.5 mark additional for the answer to Question No.1 in Group-D. In all, therefore, the Petitioner secures 45.5 + 0.5 i.e. 46 marks. Since he does not secure 47% in paper II, there is no scope for calling him for interview."

16. Invocation Of Arbitration Clause In Tender Document Is Possible Only If Purchase Order Is Placed: Orissa High Court

Case Title: Emcure Pharmaceuticals Ltd v. The Managing Director, Odisha State Medical Corporation & Ors.

Citation: 2022 LiveLaw (Ori) 71

The High Court ruled that till a purchase order is issued by the tenderee pursuant to the acceptance of an offer to supply, no completed 'contract' arises between the parties and thus, the arbitration clause contained in the tender document is not attracted. A Single Judge Bench of Chief Justice Dr. S. Muralidhar reiterated that the arbitration clause contained in the tender document was not an arbitration agreement in praesenti, but a provision that was to come into existence in the future, if a purchase order was placed.

17. "No Reason For Close Relatives To Falsely Accuse": Orissa High Court Upholds Life Sentence Awarded To Man For Murder Of Cousin Brother

Case Title: Baisakhu Sethy @ Behera v. State of Odisha

Citation: 2022 LiveLaw (Ori) 72

The High Court upheld the conviction of a person, who was sentenced to life for committing murder of his cousin-brother. While dismissing the appeal, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"This is not a case of mistaken identity since all the witnesses are close relations of both the accused and the deceased. The fact that the accused hits the deceased with Bala on the head clearly reveals his intention to cause the death of the deceased. This was not on the spur of the moment. The quarrel happened in the evening whereas the incident happened in the night when the deceased was sleeping and wholly unarmed. There was no need for the close relations of the accused to falsely implicate him in the homicidal death of the deceased."

18. Orissa High Court Orders Probe Into Death Of Woman & Her Baby Due To Alleged Medical Negligence In 2015

Case Title: Sambara Sabar v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 73

The High Court ordered a probe into the alleged death of a woman and her baby in 2015, who died allegedly due to 'medical negligence'. A petition was filed by the father-in-law of the woman, who not only lost her baby due to an intra-uterine death but herself died while receiving treatment on 25^th March, 2015. The petitioner submitted that the death of the baby as well as the woman was due to medical negligence and was avoidable.

The Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik noted that the pleadings in the petition presented disputed questions of fact with the opposite parties claiming that there was no medical negligence. With a view to obtain an objective assessment of the materials on record, the Court requested the State Commission for Women, Odisha (SCWO) to assist it in the task. It required the SCWO to constitute an appropriate enquiry team to examine the papers and also visit and record statements of the Petitioner and his family members, the concerned treating doctors, the place of treatment, the medical case record and make an assessment as to the veracity of the claims of either party on the basis of the materials gathered. It also ordered that the report of the SCWO pursuant to the above directions be made available to the Court not later than 1st July 2022.

19. Mere Filing Of Curative Petition Is Not A Ground To Stay Proceedings Of Execution Petition: Orissa High Court Affirms

Case Title: State of Odisha & Ors. v. Larsen and Toubro Ltd.

Citation: 2022 LiveLaw (Ori) 74

The High Court confirmed the judgment of an Executing Court, which held that mere filing of curative petition does not constitute a ground to put a stay on the proceedings of execution petition. In light of the dispute between the parties in the present case, the Petitioners (State) had challenged the award and, thereafter filed an appeal in the Supreme Court. When the civil appeal went against them in the Supreme Court, the petitioners preferred review. That also went against them. Subsequently, they have filed a curative petition. The Court highlighted that the Executing Court said in impugned order that merely filing of curative petition is not a ground to stay the further proceeding of the execution petition and rejected petitioners' prayer for stay. In aforesaid circumstances, Single Bench of Justice Arindam Sinha did not find that the executing Court proceeded illegally in exercise of its jurisdiction, or there is material irregularity in impugned order.

20. Industrial Disputes Act | "Last Come First Go" Principle Can Be Departed By Employer Only After Recording Reasons In Writing: Orissa High Court

Case Title: State of Odisha, represented by the Asst. District Veterinary Officer (Disease Control), Balasore v. Kailash Chandra Mallick & Ors.

Citation: 2022 LiveLaw (Ori) 75

The High Court held that the principle of "last come first go" cannot ordinarily be departed from by employers while retrenching labourers under the Industrial Disputes Act, 1947 (ID Act). While departing from the principle, it is a pre-condition that the employer has to record 'reasons in writing'. While dismissing writ petition by the employer (State), a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik observed,

"The fact that the workmen were engaged for more than 240 continuous days and had worked for more than 5 to 7 years on a continuous basis which the Management was unable to dispute factually. In fact, MW 1 supported of the case of the workmen to that extent. The further fact that a person junior to the workmen had been retained while the workmen had been retrenched was also unable to be disputed by the Management."

21. Orissa High Court Orders Tahasildar To Plant At Least 50 Trees As Penalty For 'Bizarre' Disposal Of Land Encroachment Case

Case Title: Mita Das v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 76

The Court ordered the Tahalisdar, Kakatpur to plant 'at least 50 trees' as a penalty for passing a 'bizarre' order in a land encroachment case. While observing that the Tahasildar did not grant sufficient opportunity to the petitioner before passing order against her, a Single Judge Bench of Justice Biswanath Rath observed, "Looking to the nature of the case and for involvement of eviction of a person from his residence the Tahasildar has a responsibility to find whether the encroacher is an educated and law knowing person or not. Further, the Tahasildar has to see the encroacher if belongs to weaker section or person downtrodden in the society having not even sufficient income to take aid of counsel."

22. Orissa High Court Denies Bail To MLA Prasant Jagdev Accused Of Driving Car Over A Crowd During Panchayat Elections

Case Title: Prasant Kumar Jagdev v. State of Odisha

Citation: 2022 LiveLaw (Ori) 77

The High Court denied bail to Chillika MLA Prasant Jagdev, who is accused of driving a four-wheeler over a crowd during the last Panchayat elections in Odisha. While dismissing the bail petition, a Single Judge Bench of Justice Satrughana Pujahari observed,

"As it reveals, while giving threat to run the vehicle over the protesters, he drove the vehicle into the crowd that too using the registration number of a different vehicle. Such indulgence and overt act can never be treated as becoming of a public representative. That apart, the series of criminal cases attached to his antecedent speak against his credibility to abide by condition, if any, imposed in case of his bail, more so when he has also not abided by the conditions not to indulge in any criminal activities while allowing him to be released on bail in connection with Balugaon P.S. Case No. 156 of 2021 thereafter, but still involved in two such criminal cases during the Panchayat election including the present one."

23. Orissa High Court Upholds Life Term Of Man Accused Of Killing Cousin-Brother After State Govt Remitted His Sentence

Case Title: Daku @ Dasarathi Dehury v. State of Odisha

Citation: 2022 LiveLaw (Ori) 78

The High Court confirmed the conviction and the ensuing life term imposed on a man for committing murder of his cousin-brother. While dismissing the appeal filed by the accused against his conviction, a Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik found no reason to interfere with the reasoned order of the Trial Court. However, it was brought to the notice of the Court that during the pendency of the appeal, the Government of Odisha in exercise of the powers conferred by Section 432 of the Code of Criminal Procedure, 1973 remitted the unexpired portion of the sentence passed against the accused and ordered his premature release. Pursuant thereto, the appellant had already been set free. Hence, the Court held that no further steps are required to be taken against the appellant and accordingly, disposed of the appeal.

24. Ensure Strict Compliance With RERA On Transfer Of Apartment Common Areas: Orissa High Court Directs Inspector General Of Registration

Case Title: Bimalendu Pradhan v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 79

The High Court directed the Inspector General of Registration (IGR) to ensure strict compliance with the provisions of the Real Estate Regulatory Authority Act (RERA) and Rules made thereunder, until the apparent conflict between certain provisions of the RERA and the Odisha Apartment Ownership (Amendment) Rules, 2021 is reconciled. The Division Bench comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held, "With the RERA Act mandating that the transfer of common areas should only be effected in favour of an Association of Apartment Owners, sale deeds presented for registration which contain clauses contrary thereto cannot be allowed to be registered by the IGR."

25. Homicidal Nature Of Death Need Not Always Be Proved Through Direct Evidence: Orissa High Court Upholds Man's Conviction For Wife's Murder

Case Title: Milan @ Makardhwaja Khadia v. State of Odisha

Citation: 2022 LiveLaw (Ori) 80

The High Court held that the homicidal nature of death need not always be proved through direct evidence. A Division Bench of Chief Justice S. Muralidhar and Justice B.P. Routray noted that a homicidal death must be inferred from the circumstances and the nature of injuries noticed on the dead body. The observation was made in an appeal preferred by a man convicted for the murder of his wife and sentenced to life imprisonment. He had argued that in the absence of specific opinion concerning the exact time of death and nature of injuries homicidal nature of the deceased is not proved.

26. Honourable Exoneration In Departmental Proceedings Would Warrant Quashing Of Criminal Prosecution Arising From Same Set Of Facts: Orissa High Court

Case Title: Dr. Minaketan Pani v. State of Orissa

Citation: 2022 LiveLaw (Ori) 81

In a landmark decision, the Orissa High Court held that honourable exoneration in departmental proceedings would warrant quashment of criminal prosecution which emanated from the same set of facts. While quashing criminal charges against the petitioner, a Single Judge Bench of Chief Justice Dr. S. Muralidhar held,

"…in the facts and circumstances of the present case where on the same charges on which the Petitioner is facing criminal trial he has been honourably exonerated in the departmental proceedings, the Court adopts the reasoning of the decisions in Radheyshyam Kejriwal v. State of West Bengal (supra) and Ashoo Surendranath Tewari v. Deputy Superintendent of Police, EOW, CBI (supra) and sets aside the impugned order dated 15th January 2009, passed by the Sub-Divisional Judicial Magistrate (S) Cuttack in G.R. Case No.1057 of 2007."

27. Just One Psychiatrist For All Prisoners With Mental Illnesses; Not Sustainable: Orissa High Court Expresses Concern On Prison Conditions

Case Title: Krushna Prasad Sahoo v. State of Orissa & Ors.

Citation: 2022 LiveLaw (Ori) 82

The Orissa High Court expressed deep concerns on the issue of the mental health of prisoners. On knowing that there exists only one psychiatrist to attend all prisoners in the state with mental illness, a Division Bench of Chief Justice S. Muralidhar and Justice R.K. Pattanaik noted, "This situation is unsustainable considering that it is physically impossible for just one psychiatrist to attend to all prisoners with mental illnesses."

The development came in an ongoing case in which the High Court had previously directed the Director-General, Prisons, to ensure food, hygiene, and health facilities in all the jails/sub-jails of the State. It had also directed all the District Legal Services Authorities (DLSAs) to inspect the above-noted basic amenities in all the prisons and sub-jails of Odisha. In an earlier order, the District Magistrates were directed to visit the jails using the prison inspection format prepared by Commonwealth Human Rights Initiative, New Delhi (CHRI). Based on the reports of these visits, the OSLSA submitted that there are at least 286 prisoners with mental illnesses in the various jails and sub-jails. The Director General, Prisons anticipated that this number may be even higher and around 500 prisoners. The Court expressed deep concern on the submission that there is just one psychiatrist who caters to the needs of all prisoners in the State. The Court also touched on the issues of overcrowding, Prison Development Board, segregation of prisoners, and other concerns.

28. Orissa High Court Issues Directions To Govt For Improving Public Healthcare Facilities In State

Case Title: Chittaranjan Mohanty v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 83

The Orissa High Court held hearing on a holiday (21^st May 2022) to review the lacunae in the Public Healthcare Facilities of the State. It also issued a slew of directions to the State Government for improvement of conditions in the government hospitals. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik expresses serious disappointment over unavailability of basic medical facilities and observed,

"Nearly six months have been elapsed since the visits were undertaken by the teams of the DLSAs. The Court finds from the reports submitted by them that in many of the districts urgent corrective action requires to be taken. In many DHHs, CHCs and PHCs not all the doctors shown on the rolls of the facility were present; in many no nurses were found and staff were absent. Lack of cleanliness is a major issue as are lack of functional, clean toilets. Even the availability of clean drinking water is a big problem. In many places the registers for stocks of drugs were either not available or not properly maintained. It is a matter of concern that, in many of the DHHs, CHCs and PHCs ambulances were not available."

29. "Country's Prestige Involved": Orissa HC Orders Centre To Make All Arrangements For Participation Of Women U-18 Volleyball Team In Asian Championship

Case Title: Lasyamayee Mohanta v. Union of India & Ors.

Citation: 2022 LiveLaw (Ori) 84

The High Court directed the Union of India to make all arrangements, including financial and travelling provisions, for the Indian Under-18 Women's Volleyball Team to participate in the 14^th Asian Women's Volleyball Championship, which is scheduled to be held in June at Nakhon Pathom city of Thailand. While expressing serious dismay at the inaction of the Union of India in this respect, a Single Judge Bench of Justice Biswanath Rath observed,

"It is at this stage, this Court also considers the prestige of the Country involved herein. A Country having 175 crores of people even and at its position, if it fails in sending the contingency already selected to participate in the prestigious event like the 14th Asian Women's U-18 Volleyball Championship, will not send a good signal. This Court finds, the Union of India is even not coming to assist the Court for involving a contest at their level. This Court records the bizarre affair in the cooperation of O.Ps. 1 & 2 in such serious matter in spite of two adjournments already granted."

30. "May Seem Plausible On Grounds Of Natural Justice, May Not Be Possible Legally": Orissa HC Rejects Challenge To Evaluation In Teachers Recruitment Exam

Case Title: Rabindra Panigrahi v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 85

The Court rejected the plea of a candidate who challenged the evaluation process of the examination conducted for appointment of contractual Hindi teachers in government secondary schools. While dismissing the writ petition, the Single Bench of Justice Sanjeeb Kumar Panigrahi observed,

"The court needs to see what is legally possible and not what possibly dehors the legal process. A thing that may seem plausible on the grounds of natural justice, may not be possible legally. As succinctly put by Mathew, J. in his judgment in the Union of India v. M.L. Kapur, "it is not expedient to extend the horizon of natural justice involved in the Audi alteram partem rule to the twilight zone of mere expectations, however great they might be."

31. Unlawful Possession Can't Be Defended On The Ground That Eviction Clause In Statute Is Prospective In Nature: Orissa High Court

Case Title: Sashibhusan Das v. Lord Lingaraj Mahaprabhu & Anr.

Citation: 2022 LiveLaw (Ori) 86

The Orissa High Court clarified that an unlawful possession of a property, which does not bestow any right, cannot be defended only on the ground that the legislation, which authorises eviction, is prospective in nature. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik held,

"A lawful right is always protected and cannot be taken away by an amendment brought into force at a later point of time. However, it does not mean that an unlawful possession which does not convey any right can still be defended on the ground that the Act to be prospective in nature. Unless, a possession is shown to be lawful, it has to be treated as unlawful as on the date when the amended Act came into force. Furthermore, it has to be treated as continuous wrong so long as the possession is unauthorized."

32. ITC Transfer From One State To Another Is Not An Inward Supply: Orissa High Court

Case Title: M/s. JSW Steel Ltd. Versus Union of India

Citation: 2022 LiveLaw (Ori) 87

The Orissa High Court bench of Justice Jaswant Singh and Justice M.S. Raman ruled that an input service distributor (ISD) can claim ITC only in the case of an inward supply, and an ITC transfer from one state to another is not an inward supply. "Since no such supply being shown to have been made by JSW Steel Ltd. of Odisha to JSW Steel Ltd. of Maharashtra, no prima facie case is made out by the Petitioner. The transactions in question prima facie amount case are made out by the Petitioner. Thus, transactions in question prima facie amount to syphoning of tax amounts, therefore, apparently warrant invocation of proceeding under Section 74 of the OGST/CGST Act", the court observed.

33. Employees Should Not Be Permitted To Change Date Of Birth At The Fag End Of Their Service Career: Orissa High Court

Case Title: Ugrasen Sahu v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 88

The Orissa High Court held that applications of employees to change their date of birth should not be entertained when they apply for the same at the fag end of their service career. A Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed, "Apart from the notification and the said guidelines, the Hon'ble Supreme Court in a series of cases have categorically laid down that the employees should not be permitted to change the date of birth at the fag end of their service career. In the instant case the application of alteration has been filed at the fag end of the Petitioner's service career."

34. Entitlement Of Employee To Salary/ Pension Is Intrinsic Part Of His Rights To Life & Property Under Articles 21 & 300A: Orissa High Court

Case Title: Sovakar Guru v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 89

The Orissa High Court held that entitlement of an employee or an ex-employee to his salary or pension, as the case may be, is an intrinsic part of his right to life under Article 21 and right to property under Article 300A of the Constitution. While allowing payment of interest on the arrears of a retired government employee, a Single Bench of Justice Sanjeeb Kumar Panigrahi observed,

"Moreover, the employees cannot be allowed to suffer because of inaction on the part of the employer for no fault of the employees. The employee is definitely entitled to get the payment as per the service conditions on due dates and/or in a given case within reasonable time. The employees, had the payment received within time and/or on due dates, could have utilised the same for various purposes."

35. "Transgender Has Every Right To Choose Gender": Orissa High Court Orders Family Pension To Transwoman

Case Title: Kantaro Kondagari @ Kajol v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 90

The Orissa High Court ordered grant of family pension to a transwoman, who was allegedly discriminated on the basis of her gender while allowing pensionary benefits after the death of her parents. A Single Bench of Justice Aditya Kumar Mohapatra held,

"…this Court is of the considered view that the petitioner as a transgender has every right to choose her gender and accordingly, she has submitted her application for grant of family pension under Section 56(1) of Odisha Civil Services (Pension) Rules, 1992. Further such right has been recognized and legalized by judgment of the Hon'ble Apex Court in NALSA's Case (supra) and as such, the law laid down by the Hon'ble Supreme Court is binding on all."

36. Govt. Employee Has No Legal/Statutory Right To Insist For Being Posted At A Particular Place: Orissa High Court

Case Title: Dulamani Patel v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 91

The Orissa High Court denied the prayer made by a government employee who insisted to get promoted to a post situated at a particular place. It held that no government employee has a legal or statutory right to claim a post of one particular place and thereby avoiding transfers. While, dismissing the writ petition, a Single Judge Bench of Justice Sanjeeb Kumar Panigrahi observed,

"The Petitioner's prayer insofar as promoting and repositioning him in the school where he was continuing or at a nearby place, is unsustainable as the Petitioner was holding a transferable post and under the conditions of service applicable to him, he was liable to be transferred and posted at any place within the State of Odisha. The Petitioner had no legal or statutory right to insist for being posted at one particular place."

37. Orissa High Court Restrains MP Anubhav Mohanty, Wife Varsha Priyadarshini From Commenting Against Each Other During Pendency Of Divorce Case

Case Title: Varsha Priyadarshini v. Government of India & Ors.

Citation: 2022 LiveLaw (Ori) 92

A Vacation Division Bench of the High Court comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo recently ordered Member of Parliament (MP) from Kendrapara and Odia actor Anubhav Mohanty to refrain from making any video/comment against his wife and actor Varsha Priyadarshini in any media, including social media during the pendency of their divorce proceedings. A similar direction has been passed against his wife. Varsha Priyadarshini had recently approached the High Court against her husband, alleging that he is maligning her image by making a series of videos and releasing them on YouTube.

38. Election Cannot Be Said To Have Commenced If Notified By A Body Not Empowered To Do So: Orissa High Court

Case Title: Dr. Pabitra Mohan Mallik v. State of Odisha & Ors.

Citation: 2022 LiveLaw (Ori) 93

The Court quashed a notification issued by an appealing body of the Odisha Medical Services Association ('OMSA'), which notified election for the Association. A Single Bench of Justice Arindam Sinha, while concluding that the notification was issued without any authority as it was done in violation of the body's constitution, observed, "This Bench is in respectful agreement with views expressed in Dillip Kumar Nayak (supra) on authority to conduct elections, as must be on basis of law so far as the association is concerned. Basis of law is its constitution. There is clear indication that the provisions therein were not complied with and followed in issuance of impugned notification."

After going through the facts and laws, the Court noted that the process of election was commenced by a committee not duly constituted under the association's constitution. In the circumstances, the Court held, it cannot be said that the process of election had commenced.

Other Developments:

• No Valid Permission Granted For Puri Jagannath Temple Corridor Project: ASI Tells Orissa High Court

In a significant development to the controversy regarding Puri Jagannath Temple Corridor project, the Archaeological Survey of India (ASI) submitted that it has not granted any valid permission for construction at the holy shrine. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik of Orissa High Court was hearing the matter on 9th May. An affidavit dated 8^th May, 2022 was filed by the ASI in which inter alia it was stated that a joint inspection was carried out on 1^st May, 2022 and an onsite discussion was held with the Odisha Bridge & Construction Corporation (OBCC) and Shree Jagannath Temple Administration. It was stated that "no valid permission has been given for the Shree Mandira Parikrama Project". A report of the inspection was also enclosed to the affidavit.

• "Justice Muralidhar Is Not Only A Dreamer; He Is An Achiever": Justice L. Nageswara Rao

Justice L. Nageswara Rao, Judge, Supreme Court of India participated in an event organised by the Orissa High Court on 14^th May to inaugurate Vulnerable Witness Deposition Centres (VWDCs), virtual court-rooms and e-filing stations in District Court complexes of Odisha. A one-day training workshop was also inaugurated to train the stake-holders about the functioning of VWDCs. The event, which was conducted at the Odisha Judicial Academy, Cuttack, also saw the participation of Justice Gita Mittal, former Chief Justice, Jammu & Kashmir High Court and Chairperson, Vulnerable Witness Committee constituted by the Supreme Court and Dr. Justice S. Muraliadhar, Chief Justice, Orissa High Court. While praising Justice Muralidhar for his incessant initiatives for developing judicial infrastructure in Odisha, Justice Rao said,

"I was interacting with him (Justice Muralidhar). We were discussing about the use of ICT in courts. Delhi High Court is much more advanced in terms of e-filing in comparison to the Supreme Court also. The good works that he has learnt in the Delhi High Court, I think he started doing it here in Odisha and all of you are fortunate to have Justice Muralidhar as your Chief Justice. He is not only a dreamer; he is an achiever."

• Orissa High Court Notifies CPC (Odisha Amendment) Rules, 2022 As Introduced By Court Under Sections 122 R/W 127 CPC

The Court, by using its power under Section 122 of the Code of Civil Procedure, 1908, had published the draft of the Code of Civil Procedure (Odisha Amendment) Rules, 2022, on 20^th April 2022, after obtaining due approval from the State Government. Such publication invited objections and suggestions from all persons who were likely to be affected thereby. After expiration of 30 days of the publication of the same, it disposed of the suggestions and objections those were received and thereafter, in exercise of the power conferred by Section 127 of the Code, the High Court published the Rules in the official Gazette to amend the Code of Civil Procedure, 1908, which will be known as the Code of Civil Procedure (Odisha Amendment) Rules, 2022. It brought about 'nine changes' in the provisions of the Code.

• Orissa High Court Stays Single Judge Order Reinstating NLU-O Finance Officer Engaged On Contractual Basis

A vacation Bench comprising of Justice Bibhu Prasad Routray and Justice Mruganka Sekhar Sahoo, has 'stayed' the operation of judgment dated 10^th May 2022, rendered by a Single Bench of Justice Biswanath Rath, reinstating services of an ex-Assistant Finance Officer, who was terminated by the National Law University, Odisha ('NLUO'). While issuing notice to the opposite parties, the Division Bench ordered, "As an interim, it is directed that there shall be stay operation of the impugned judgment dated 10th May, 2022 in W.P.(C) No.33209 of 2020 under Annexure-1 till 27th June, 2022."