Rfa1994 16 20 02 2018
Rfa1994 16 20 02 2018
For Appellants : M/s. P. N. Puri, Shri A.S. Nadkarni (ASG), Shri V.V. Giri, Sr. Adv.,
Vaibhav Manu Srivastava [P-2] Ms. Uttara Babbar,
Ms. Pragya Baghel & Ms. Svadha Shanker.
For Respondents :
Date of judgment : 27.07. 2017
JUDGMENT
ADARSH KUMAR GOEL, J.
1. Leave granted.
2. The question which has arisen in this appeal is whether any directions
are called for to prevent the misuse of Section 498A, as acknowledged in
certain studies and decisions. The Court requested Shri A.S. Nadkarni,
learned ASG and Shri V.V. Giri, learned senior counsel to assist the Court as
amicus. We place on record our gratitude for the assistance rendered by
learned ASG Shri Nadkarni and learned senior counsel Shri Giri who in turn
was ably assisted by advocates Ms. Uttara Babbar, Ms. Pragya Baghel and
Ms. Svadha Shanker.
3. Proceedings have arisen from complaint dated 2nd December, 2013
filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the
parents and siblings of appellant No.1. The complainant alleged that she was
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married to appellant No.1 on 28th November, 2012. Her father gave dowry as
per his capacity but the appellants were not happy with the extent of the
dowry. They started abusing the complainant. They made a demand of dowry
of Rs.3,00,000/- and a car which the family could not arrange. On 10th
November, 2013, appellant No.1 dropped the complainant at her matrimonial
home. She was pregnant and suffered pain in the process and her pregnancy
was terminated. On the said version, and further version that her Stri dhan
was retained, appellant No.1 was summoned under Section 498A and Section
323 IPC. Appellants 2 to 5 were not summoned. Order dated 14th July, 2014
read as follows:
“After perusal of the file and the document brought on record. It is
clear that the husband Shri Rajesh Sharma demanded car and three
lacs rupees and in not meeting the demand. It appears that he has
tortured the complainant. So far as torture and retaining of the stri
dhan and demanding 50,000 and a gold chain and in not meeting the
demand the torture is attributable against Shri Rajesh Sharma.
Rajesh Sharma appears to be main accused. In the circumstances,
rest of the accused Vijay Sharma, Jaywati Sharma, Praveen Sharma
and Priyanka Sharma have not committed any crime and they have
not participated in commission of the crime. Whereas, it appears that
Rajesh Sharma has committed an offence under Section 498A, 323
IPC and read with section 3 / 4 DP act appears to have prima facie
made out. Therefore, a summon be issued against him.”
4. Against the above order, respondent No.2 preferred a revision petition
and submitted that appellants 2 to 5 should also have been summoned. The
said petition was accepted by the Additional Sessions Judge, Jaunpur vide
order dated 3rd July, 2015. The trial court was directed to take a fresh
decision in the matter. Thereafter, the trial court vide order dated 18th
August, 2015 summoned appellants 2 to 5 also. The appellants approached
the High Court under Section 482 CrPC against the order of summoning.
Though the matter was referred to the mediation centre, the mediation failed.
Thereafter, the High Court found no ground to interfere with the order of
summoning and dismissed the petition. Hence this appeal.
5. Main contention raised in support of this appeal is that there is need to
check the tendency to rope in all family members to settle a matrimonial
dispute. Omnibus allegations against all relatives of the husband cannot be
taken at face value when in normal course it may only be the husband or at
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best his parents who may be accused of demanding dowry or causing cruelty.
To check abuse of over implication, clear supporting material is needed to
proceed against other relatives of a husband. It is stated that respondent No.2
herself left the matrimonial home. Appellant No.2, father of appellant No.1,
is a retired government employee. Appellant No.3 is a house wife. Appellant
No.4 is unmarried brother and appellant No.5 is unmarried sister who is a
government employee. Appellants 2 to 5 had no interest in making any
demand of dowry.
6. Learned counsel for respondent No.2 supported the impugned order
and the averments in the complaint.
7. Learned ASG submitted that Section 498A was enacted to check
unconscionable demands by greedy husbands and their families which at
times result in cruelty to women and also suicides. He, however, accepted
that there is a growing tendency to abuse the said provision to rope in all the
relatives including parents of advanced age, minor children, siblings, grand-
parents and uncles on the strength of vague and exaggerated allegations
without there being any verifiable evidence of physical or mental harm or
injury. At times, this results in harassment and even arrest of innocent family
members, including women and senior citizens. This may hamper any
possible reconciliation and reunion of a couple. Reference has been made to
the statistics from the Crime Records Bureau (CRB) as follows:
“9. That according to Reports of National Crime Record Bureau in
2005, for a total 58,319 cases reported under Section 498A IPC, a
total of 1,27,560 people were arrested, and 6,141 cases were declared
false on account of mistake of fact or law. While in 2009 for a total
89,546 cases reported, a total of 1,74,395 people were arrested and
8,352 cases were declared false on account of mistake of fact or law.
10. That according to Report of Crime in India, 2012 Statistics,
National Crime Records Bureau, Ministry of Home Affairs showed
that for the year of 2012, a total of 197,762 people all across India
were arrested under Section 498A, Indian Penal Code. The Report
further shows that approximately a quarter of those arrested were
women that is 47,951 of the total were perhaps mother or sisters of
the husband. However most surprisingly the rate of charge-sheet
filing for the year 2012, under Section 498A IPC was at an
exponential height of 93.6% while the conviction rate was at a
staggering low at 14.4% only. The Report stated that as many as
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under the parameters laid down above flowing from Section 41,
Cr.PC;
11.2 All police officers be provided with a check list containing
specified sub-clauses under Section 41(1)(b)(ii);
11.3 The police officer shall forward the check list duly filed and
furnish the reasons and materials which necessitated the arrest, while
forwarding/producing the accused before the Magistrate for further
detention;
11.4 The Magistrate while authorizing detention of the accused shall
peruse the report furnished by the police officer in terms aforesaid
and only after recording its satisfaction, the Magistrate will authorize
detention;
11.5 The decision not to arrest an accused, be forwarded to the
Magistrate within two weeks from the date of the institution of the
case with a copy to the Magistrate which may be extended by the
Superintendent of police of the district for the reasons to be recorded
in writing;
11.6 Notice of appearance in terms of Section 41A of Cr.PC be served
on the accused within two weeks from the date of institution of the
case, which may be extended by the Superintendent of Police of the
District for the reasons to be recorded in writing;
11.7 Failure to comply with the directions aforesaid shall apart from
rendering the police officers concerned liable for departmental
action, they shall also be liable to be punished for contempt of court
to be instituted before High Court having territorial jurisdiction.
11.8 Authorising detention without recording reasons as aforesaid by
the judicial Magistrate concerned shall be liable for departmental
action by the appropriate High Court.”
11. Learned ASG suggested that there must be some preliminary inquiry
on the lines of observations in Lalita Kumari versus Government of Uttar
Pradesh7. Arrest of a relative other than husband could only be after
permission from the concerned Magistrate. There should be no arrest of
relatives aged above 70 years. Power of the police to straight away arrest
must be prohibited. While granting permission, the court must ascertain that
there is prima facie material of the accused having done some overt and
7(2014) 2 SCC 1
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covert act. The offence should be made compoundable and bailable. The role
of each accused must be specified in the complaint and the complaint must be
accompanied by a signed affidavit. The copy of the preliminary enquiry
report should be furnished to the accused.
12. Shri V. Giri, learned senior counsel assisted by advocates Ms. Uttara
Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker submitted that arrest in
an offence under Section 498A should be only after recording reasons and
express approval from the Superintendent of Police. In respect of relatives
who are ordinarily residing outside India, the matter should proceed only if
the IO is convinced that arrest is necessary for fair investigation.
In such cases impounding of passport or issuance of red corner notice
should be avoided. Procedure under Section 14 of the Protection of Women
from Domestic Violence Act, 2005, of counseling should be made mandatory
before registration of a case under Section 498A.
13. We have given serious consideration to the rival submissions as well
as suggestions made by learned ASG and Shri V. Giri, Senior Advocate
assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms.
Svadha Shanker. We have also perused 243rd Law Commission Report
(August, 2012), 140th Report of the Rajya Sabha Committee on Petition
(September, 2011) as well as several decisions to which our attention has
been invited.
14. Section 498A was inserted in the statute with the laudable object of
punishing cruelty at the hands of husband or his relatives against a wife
particularly when such cruelty had potential to result in suicide or murder of a
woman as mentioned in the Statement of Objects and Reasons of the Act 46
of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may
drive the women to commit suicide or cause grave injury (mental or physical)
or danger to life or harassment with a view to coerce her to meet unlawful
demand.8 It is a matter of serious concern that large number of cases
continue to be filed under Section 498A alleging harassment of married
women. We have already referred to some of the statistics from the Crime
Records Bureau. This Court had earlier noticed the fact that most of such
complaints are filed in the heat of the moment over trivial issues. Many of
such complaints are not bona fide. At the time of filing of the complaint,
implications and consequences are not visualized. At times such complaints
lead to uncalled for harassment not only to the accused but also to the
complainant. Uncalled for arrest may ruin the chances of settlement. This
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Court had earlier observed that a serious review of the provision was
warranted. The matter also appears to have been considered by the Law
Commission, the Malimath Committee, the Committee on Petitions in the
Rajya Sabha, the Home Ministry, which have been referred to in the earlier
part of the Judgment. The abuse of the provision was also noted in the
judgments of this Court referred to earlier. Some High Courts have issued
directions to check such abuse. In Arnesh Kumar (supra) this Court gave
directions to safeguard uncalled for arrests. Recommendation has also been
made by the Law Commission to make the offence compoundable.
15. Following areas appear to require remedial steps :-
i) Uncalled for implication of husband and his relatives and arrest.
ii) Continuation of proceedings in spite of settlement between the parties
since the offence is non-compoundable and uncalled for hardship to
parties on that account.
16. Function of this Court is not to legislate but only to interpret the law.
No doubt in doing so laying down of norms is sometimes unavoidable.10 Just
and fair procedure being part of fundamental right to life,11 interpretation is
required to be placed on a penal provision so that its working is not unjust,
unfair or unreasonable.The court has incidental power to quash even a non-
compoundable case of private nature, if continuing the proceedings is found
to be oppressive.12 While stifling a legitimate prosecution is against public
policy, if the proceedings in an offence of private nature are found to be
oppressive, power of quashing is exercised.
17. We have considered the background of the issue and also taken into
account the 243rd Report of the Law Commission dated 30th August, 2012,
140th Report of the Rajya Sabha Committee on Petitions (September, 2011)
and earlier decisions of this Court.We are conscious of the object for which
the provision was brought into the statute. At the same time, violation of
human rights of innocent cannot be brushed aside. Certain safeguards against
uncalled for arrest or insensitive investigation have been addressed by this
Court. Still, the problem continues to a great extent.
18. To remedy the situation, we are of the view that involvement of civil
society in the aid of administration of justice can be one of the steps, apart
from the investigating officers and the concerned trial courts being sensitized.
It is also necessary to facilitate closure of proceedings where a genuine
10 12
(2012) 10 SCC 603, 11 (2012) 3 SCC & (2012) 10 SCC
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settlement has been reached instead of parties being required to move High
Court only for that purpose.
19. Thus, after careful consideration of the whole issue, we consider it fit
to give following directions :-
i) (a) In every district one or more Family Welfare Committees be
constituted by the District Legal Services Authorities preferably
comprising of three members. The constitution and working of such
committees may be reviewed from time to time and at least once in a
year by the District and Sessions Judge of the district who is also the
Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal
volunteers/social workers/retired persons/wives of working
officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or
the Magistrate be referred to and looked into by such committee. Such
committee may have interaction with the parties personally or by
means of telephone or any other mode of communication including
electronic communication.
(e) Report of such committee be given to the Authority by whom the
complaint is referred to it latest within one month from the date of
receipt of complaint.
(f) The committee may give its brief report about the factual aspects
and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally
be effected.
(h) The report may be then considered by the Investigating Officer or
the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum
training as may be considered necessary by the Legal Services
Authority from time to time.
(j) The Members of the committee may be given such honorarium as
may be considered viable.
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(k) It will be open to the District and Sessions Judge to utilize the
cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences may be
investigated only by a designated Investigating Officer of the area.
Such designations may be made within one month from today. Such
designated officer may be required to undergo training for such
duration (not less than one week) as may be considered appropriate.
The training may be completed within four months from today;
iii) In cases where a settlement is reached, it will be open to the District
and Sessions Judge or any other senior Judicial Officer nominated by
him in the district to dispose of the proceedings including closing of
the criminal case if dispute primarily relates to matrimonial discord;
iv) If a bail application is filed with at least one clear day’s notice to the
Public Prosecutor/complainant, the same may be decided as far as
possible on the same day. Recovery of disputed dowry items may not
by itself be a ground for denial of bail if maintenance or other rights
of wife/minor children can otherwise be protected. Needless to say
that in dealing with bail matters, individual roles, prima facie truth of
the allegations, requirement of further arrest/ custody and interest of
justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of
passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial
officer nominated by the District Judge to club all connected cases
between the parties arising out of matrimonial disputes so that a
holistic view is taken by the Court to whom all such cases are
entrusted; and
vii) Personal appearance of all family members and particularly outstation
members may not be required and the trial court ought to grant
exemption from personal appearance or permit appearance by video
conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the offences involving tangible
physical injuries or death.
20. After seeing the working of the above arrangement for six months but
latest by March 31, 2018, National Legal Services Authority may give a
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report about need for any change in above directions or for any further
directions. The matter may be listed for consideration by the Court in April,
2018.
21. Copies of this order be sent to National Legal Services Authority,
Director General of Police of all the States and the Registrars of all the High
Courts for further appropriate action.
22. It will be open to the parties in the present case to approach the
concerned trial or other court for further orders in the light of the above
directions.
3) Brief facts:
(a) On 29.09.2008, at around 9:35 p.m., a bomb explosion took place at
Malegaon, District Nasik, opposite Shakil Goods Transport Company
between Anjuman Chowk and Bhiku Chowk. The said blast was caused by
explosive device fitted in LML Freedom Motor Cycle bearing Registration
No. MH-15-P-4572. As a result of the said explosion, six persons were killed
and about 100 persons had received injuries of various nature. Damage to the
property was also caused.
(b) The offence came to be registered under CR No. 130/2008 in Azad
Nagar Police Station, Malegaon under Sections 302, 307, 326, 324, 427, 153-
A and 120-B of the Indian Penal Code, 1860 (in short ‘the IPC’) read with
Sections 3, 4, 5 and 6 of the Explosive Substances Act read with Sections 3, 5
and 25 of the Arms Act, 1959.
(c) During the course of investigation, the samples collected from the
place of offence were sent to the Forensic Science Laboratory at Nasik and
the same were found to be containing Cyclonite (RDX) and Ammonium
Nitrate. On 18.10.2008, the provisions of Sections 15, 16, 17, 18, 20 and 23
of the Unlawful Activities (Prevention) Act, 1967 (Amended) 2004, (in short
‘the UAP Act’) were invoked and the case was entrusted to Deputy
Superintendent of Police, (HQ), Nasik Rural. On 26.10.2008, the Anti-
Terrorist Squad (ATS), Mumbai took charge of the investigation and on
29.11.2008, the provisions of Maharashtra Control of Organized Crime Act,
1999 (in short ‘the MCOC Act) were added.
(d) During investigation, it was found that the appellant herein, along
with other co-accused in the case, entered into a criminal conspiracy between
January, 2008 to October, 2008 with a common object and intention to strike
terror in the minds of people caused bomb blast at Malegaon by using
explosive substances to cause damage to life and property and to create
communal rift. According to ATS, the appellant herein had brought RDX
with him from Kashmir for the purpose of Bomb Blast at Malegaon.
(e) During investigation, it has been further revealed by the ATS that the
appellant herein was a serving Army Officer and was associated with
Military Intelligence and Interior Terrorism (Insurgency Activities). The
appellant herein floated ‘Abhinav Bharat’ organization in the year 2007
inspite of being serving as a Commissioned Officer in Armed Forces. The
other co-accused in the case were also the members of the said organization.
The object of the Organization was to turn India into a Hindu Rashtra called
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LT. COL. P. S. PUROHIT-V- STATE OF MAHARASHTRA [R.K. AGRAWAL, J.]
as ‘Aryavrat’. They had planned to train persons for guerrilla war and had
also decided to kill the persons opposing their object of formation of a Hindu
Rashtra. As per the investigation, it has also come out that the appellant
herein along with other persons had participated in various meetings of the
said Organization to discuss various aspects for achieving their goals.
Further, it is the case of the ATS that the organization, viz., ‘Abhinav Bharat’
is an Organized Crime Syndicate and its members including the appellant
herein were active since 2003. In one of the meetings at Bhopal, on 11/12
April, 2008, the criminal conspiracy to cause bomb blast at Malegaon was
hatched. In the said meeting, the appellant herein took the responsibility of
providing explosives for the common object in order to take revenge of
‘Jihadi’ activities by Muslim community.
(f) After completion of the investigation, on 20.01.2009, the ATS,
Mumbai, filed charge sheet under Sections 302, 307, 326, 324, 427, 153A
read with Section 120B of the IPC and Sections 3, 5 and 25 of the Arms Act
and Sections 15, 16, 17, 18, 20 and 23 of the UAP Act, Sections 3(1)(i),
3(1)(ii), 3(2), 3(3), 3(5) of the MCOC Act, Sections 3, 4, 5 and 6 of the
Explosive Substances Act.
(g) The appellant came to be arrested on 05.11.2008 in connection to the
said offence. he appellant herein preferred a Bail Application being No. 42 of
2008 before the SpecialJudge under MCOCA for Greater Mumbai. By order
dated 31.07.2009, the Special Judge discharged the appellant and other co-
accused from the offences under MCOC Act and directed to transfer the case
to the regular court at Nasik. The State Government, being aggrieved by the
order dated 31.07.2009, filed an appeal being 866 of 2009 before the High
Court. A Division Bench of the High Court, vide order dated 19.07.2010, set
aside the order dated 31.07.2009 and restored the bail application filed by the
appellant herein for hearing on merits. The appellant herein went in appeal
before this Court and filed Criminal Appeal Nos. 1969-1970 of 2010. It
would be appropriate to mention here that after filing of the charge sheet by
ATS, Mumbai, the investigation of the same was started by the National
Investigation Agency, (NIA), New Delhi as per the order of the Government
of India dated 01.04.2011 and on 13.04.2011, the NIA re-registered the
offence in respect of the said incident as CR No. 5/11.
(h) This Court, in Prasad Shrikant Purohit vs. State of Maharashtra
and Another (2015) 7 SCC 440, dismissed the criminal appeals filed by the
appellant herein while restoring the Bail Application No. 42 of 2008 to the
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file of the Special Judge for passing orders on merits. On the question of
applicability of the MCOC Act, this Court has observed as under:-
“95. In the light of our above conclusions on the various submissions,
we are convinced that in respect of the appellant in Criminal Appeal
No. 1971 of 2010, namely, A-7, there is no scope even for the limited
purpose of Section 21(4)(b) to hold that application of MCOCA is
doubtful. We have held that the said appellant A-7 had every nexus
with all the three crimes, namely, Parbhani, Jalna and Malegaon and,
therefore, the bar for grant of bail under Section 21 would clearly
operate against him and there is no scope for granting any bail.
Insofar as the rest of the appellants are concerned, for the purpose of
invoking Section 21(4)(b), namely, to consider their claim for bail, it
can be held that for the present juncture with the available materials
on record, it is not possible to show any nexus of the appellants who
have been proceeded against for their involvement in Malegaon blast
with the two earlier cases, namely, Parbhani and Jalna. There is
considerable doubt about their involvement in Parbhani and Jalna and,
therefore, they are entitled for their bail applications to be considered
on merits.”
Vide order dated 12.10.2015, the Special Judge, rejected the bail application
of the appellant herein. Aggrieved by the decision dated 12.10.2015, the
appellant herein preferred a Criminal Appeal being No. 138 of 2016 before
the High Court. During the pendency of the aforesaid appeal before the High
Court, the NIA submitted supplementary charge sheet dropping the charges
under MCOCA against all the accused persons including the appellant herein.
In view of the supplementary charge sheet by the NIA, the High Court
permitted the appellant herein to file fresh bail application.
(i) The appellant herein filed a fresh bail application before the Court of
Special Judge under MCOC Act, 1999 and NIA Act, 2008 for Greater
Mumbai. The Special Judge, vide order dated 26.09.2016, denied the bail to
the appellant herein. Being aggrieved by the order dated 26.09.2016, the
appellant herein went in appeal before the High Court and filed Criminal
Appeal No. 664 of 2016. The NIA resisted the bail application of the
appellant herein on various grounds before the High Court. On 25.04.2017, a
Division Bench of the High Court, dismissed the bail application of the
appellant herein. Aggrieved by the order dated 25.04.2017, the appellant has
filed this appeal before this Court by way of special leave.
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LT. COL. P. S. PUROHIT-V- STATE OF MAHARASHTRA [R.K. AGRAWAL, J.]
4) Heard Mr. Harish Salve, learned senior counsel for the appellant
herein and Mr. Maninder Singh, learned Additional Solicitor General for the
respondent-State and Mr. Amarendra Sharan, learned senior counsel for the
intervenor-Nisar Ahmed Haji Sayed Bilal, who is the father of one of the
deceased.
Point(s) for consideration:-
5) The only point for consideration before this Court is whether in the
present facts and circumstances of the case, the appellant has made out a case
for grant of bail or not?
Rival contentions:-
6) Mr. Harish Salve, learned senior counsel for the appellant herein
contended before this Court that in view of the supplementary report filed by
the NIA, dropping the charges in respect of the offences under the MCOC
Act, it has to be held that there is no prima facie case against the appellant
herein. Learned senior counsel further contended that earlier, the bail
applications were rejected mainly on the basis of the confessional statements
of the co-accused under the MCOC Act and now, as the charges under the
MCOC Act have been dropped, the confessional statements of the co-accused
are required to be excluded from consideration and in their absence thereof,
there is no incriminating material against the appellant herein so as to deny
him the benefit of bail. Learned senior counsel further contended that during
investigation by NIA, PW-79, PW-112 and PW-55 have retracted their
previous statements made before the ATS. The fact that the material
witnesses have retracted from their statements while complaining about the
harassment and torture meted out by the officers of the ATS, clearly indicate
that the investigation carried out by the ATS was not fair but it was tainted.
The statements and confessions have been extracted subjecting the witness
and co-accused to the torture and duress, under the threats of implicating
them falsely. Learned senior counsel contended that in view of the
withdrawal of those statements and confessions, there remains nothing on
record to implicate the appellant herein with the alleged offence.
7) Learned senior counsel further contended that the appellant was a
Military Intelligence Officer at the relevant time and had participated in the
meetings held at various places like Faridabad, Bhopal etc. in discharge of his
duties as such for collecting intelligence and creating new sources and the
said fact has also been revealed in the Report of Court of Inquiry (CoI)
conducted by the Army Officers against him as well as in the reply filed by
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the Ministry of Defence and the documents filed by the said Ministry in the
Special Court. Learned senior counsel further contended that there was no
sufficient material to show that in the said meetings, any conspiracy was
hatched to commit the bomb blast at Malegaon.
8) Learned senior counsel vehemently contended the statement of PW-
21 that immediately after the alleged conspiracy meeting, he found the
appellant herein disclosing the details of the said meeting to his superior
officers in Military Intelligence in order to suggest that no conspirator will
ever divulge the details of the conspiracy to the superior officers in Military
Intelligence. Even the appellant herein also informed that it was a ‘covert
operation’ of Military Intelligence.
9) Learned senior counsel further contended that the Report of Inquiry
(RoI) also reveals that the RDX was planted by the ATS officer in the house
of Sudhakarn Chaturvedi (A-11). The statements of PW-180 and PW-183
also indicate the same but the courts below disbelieved the version of NIA in
this regard.
10) Further, learned senior counsel strenuously contended that whether
the amended provision of Section 43(D)(5) of the UAP Act be applied
retrospectively to the appellant herein. The said provision had been amended
on 31.12.2008 while the incident had taken place on 29.09.2008. He further
contended that the High Court was not right in holding that the right of bail of
the accused is a procedural right and cannot be considered as a substantive
right for retrospective applicability of the provision. Further, the sanction
granted for prosecution of the appellant under Section 45(1) of the UAP Act
was not valid. He further stressed upon the point that the High Court erred in
ignoring the Doctrine of Parity while granting bail to Pragya Singh Thakur
(A-1) wherein the court has taken into account the changed circumstances in
the charge sheet filed by the NIA but the very same facts have been ignored
in the case of the appellant herein. Learned senior counsel finally submitted
that the appellant is in jail since last about eight years and eight months and
the delay is on account of the prolonged time taken by the investigation
agencies and the appellant herein has a good prima facie case to succeed for
grant of bail before this Court.
11) Learned Additional Solicitor General (ASG) for the respondent-State
strongly controverted the contentions raised by learned senior counsel for the
appellant herein by submitting that he was the main conspirator and prima
facie there is sufficient material on record to prove his involvement in the
alleged offence. Merely because the charges have been dropped under the
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LT. COL. P. S. PUROHIT-V- STATE OF MAHARASHTRA [R.K. AGRAWAL, J.]
MCOC Act, it does not mean that there is no material against the appellant
herein in respect of other charges. The NIA has given clean chit to Pragya
Singh Thakur (A-1) and some other accused person but it has not exonerated
the appellant herein from the charges leveled against him which clearly
proves that the NIA has also found sufficient material to implicate the
appellant.
12) Learned ASG finally submitted that the conclusions about
involvement of the appellant herein in the offences alleged against him as
drawn by the ATS are supplemented and supported by the NIA officers in
their detailed investigation. Having regard to the gravity and seriousness of
the offence, which were in the nature of waging war against the unity and
integrity of the Nation, and, that too, by violent means, the bail application of
the appellant could not have been allowed and it has rightly been rejected by
the courts below and no interference is sought for by this Court.
13) Mr. Amarendra Saran, learned senior counsel for the intervenor
submitted that there are sufficient material and evidence on record to
establish a prima facie case of the involvement of the appellant herein in the
criminal offence and the report of the Court of Inquiry (CoI) submitted by the
Military authorities cannot be taken into consideration for deciding the
question of grant of bail.
Discussion:-
14) In order to prove the prima facie case against the appellant, the
prosecution has relied upon the transcription of the conversations of the
meetings obtained from the laptop of Swami Amrutanand (A-10), statement
of prosecution witnesses recorded under Sections 161 and 164(5) of the Code
of Criminal Procedure, 1973 (in short ‘the Code’), intercepted telephonic
conversations between the appellant herein and co-accused persons and lastly
the finding of traces of RDX in the house of co-accused Sudhakar Chaturvedi
(A-11). With regard to the transcription of the conversations of the meetings,
it was urged from the side of the appellant that there was no such conspiracy
hatched between the persons present in the meeting to commit bomb blasts at
Malegaon and the persons present have expressed their general opinion about
the then prevailing political and social situation. In this backdrop, it is
relevant to note that the appellant herein was a serving Army Officer and was
associated with Military Intelligence and Interior Terrorism (Insurgency
Activities). In the statement of PW-21, it has been revealed that immediately
after the alleged conspiracy meeting, he found the appellant herein disclosing
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the details of the said meeting to his superior officers in Military Intelligence.
Even the appellant herein also informed that it was a ‘covert operation’ of
Military Intelligence and he attended the said meetings to create the counter
intelligence and no conspirator will ever divulge the details of the conspiracy
to the superior officers in Military Intelligence. Besides this, the documents
filed by the Ministry of Defence and the papers of the Court of Inquiry also
substantiate the claim of the appellant herein. Similarly, intercepted
telephonic conversations between the co-accused and the appellant herein
were supported as part of duty.
15) The NIA started the investigation on the basis of the facts stated in the
FIR and the evidence collected by the ATS, Mumbai. During investigation, it
was found that there were contradictions with regard to the evidence led in
the charge sheet by the ATS. On the basis of the specific points covered
during the investigation conducted by the NIA, it was concluded that no
offence under the MCOC Act was attracted and the confessional statements
recorded under the provisions of the said Act by ATS Mumbai were not
being relied upon by the NIA in the charge sheet against the accused persons.
In fact, on evaluation of the evidence against Pragya Singh Thakur (A-1), the
evidence on record were not found sufficient by the NIA to prosecute her as
all the witnesses had retracted from their statements and thus no case was
made out against her.
16) As regards the other parameters to be considered while deciding the
application of bail, like, reasonable apprehension of the witnesses being
tampered with and danger, of-course, of justice being thwarted by grant of
bail, needless to state that already some of the witnesses have retracted their
statements made before the ATS. A perusal of the statements of various
prosecution witness recorded under Section 164 of the Code by the NIA, it
was revealed that the ATS, Mumbai forced them to make the statements
under the aforesaid Section by threatening them to falsely implicate them in
the case. In other words, witnesses retracted from their statements recorded
by the ATS, Mumbai at Mumbai. Even during re-examination of PW-79
recorded under Section 164 of the Code, he deposed that he did not attend
any meeting of ‘Abhinav Bharat’ held at Bhopal and he had never visited
Bhopal until ATS took him to Ram Mandir, Bhopal in the month of May,
2009. The very same statement was again recorded at Delhi by learned
Metropolitan Magistrate, where he confirmed the same.
17) In view of the above, it would be relevant to quote the retracted
statement of PW-55, mentioned in the charge sheet filed by the NIA, wherein
517
LT. COL. P. S. PUROHIT-V- STATE OF MAHARASHTRA [R.K. AGRAWAL, J.]
he stated that he did not retract in front of the Magistrate while his statement
was being recorded under Section 164 of the Code due to threat and pressure
of the ATS. However, he sent one complaint to Maharashtra State Human
Rights Commission, Mumbai on 05.10.2009 stating that he was forced to
give the confessional statement as dictated to him by the ATS Mumbai that
too before transfer of the investigation of the case to the NIA. He further
alleged that the following lies were dictated to him to depose before the
Magistrate by the ATS which he also incorporated in the complaint sent to
State Human Rights Commission which are as under:-
(1) That Lt. Col. Prasad Purohit gave him 3 weapons and ammunition
to be kept in his house for a month sometime in 2006. The description
of the weapons was also dictated to him.
(2) That he saw RDX in the house of Lt. Col. Prasad Purohit in a
green sack at Devlali.
(3) That Lt. Col. Purohit confessed to him about having supplied
RDX for Samjhauta Express Blast.
(4) That Lt. Col. Purohit told him in the early 2008 that something
was planned to be done soon. He further told him that an action was
planned in Nashik District in Oct/Nov. 2008.
(5) That he was asked to say that Lt. Col. Purohit had confessed to
him about planning and executing the Malegaon blast along with his
accomplices.
18) Apart from the above, during the investigation by the NIA, it was
revealed that the Army authorities had conducted a Court of Inquiry (CoI)
against the appellant herein. During scrutiny of the proceedings of the CoI, a
different story of assembling of IED in the House of Sudhakar Chaturvedi
(A-11) came to light. During re-examination of the witnesses by the NIA who
deposed before the Court of Inquiry (CoI), it was revealed that they
suspiciously found API Bagde of ATS in the house of A-11 when A-11 was
not present in the house. On considering the facts narrated by the witnesses,
the question arises here as to why API Bagde visited the house of A-11 in his
absence. It is also pertinent to mention her that the ATS conducted the search
of the house of A-11 on 25.11.2008 wherefrom they had taken the swab of
RDX which creates a doubt on the recovery of RDX keeping in view the
examination of the witnesses. Even in the charge sheet filed by the ATS, it
has been very specifically mentioned that the recovery itself becomes suspect
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
on the ground that the ATS Mumbai may have planted the RDX traces to
implicate him and the other accused persons in the case.
19) Further, with regard to the contention of learned senior counsel as to
the non-applicability of Section 43-D(5) of the UAP Act or want of valid
sanction for the prosecution, it was rightly suggested by the learned ASG that
it can be considered at the time of trial and not at this stage.
Conclusion:-
20) In our considered opinion, there are material contradictions in the
charge sheets filed by the ATS Mumbai and the NIA which are required to be
tested at the time of trial and this Court cannot pick or choose one version
over the other. Liberty of a citizen is undoubtedly important but this is to
balance with the security of the community. A balance is required to be
maintained between the personal liberty of the accused and the
investigational rights of the agency. It must result in minimum interference
with the personal liberty of the accused and the right of the agency to
investigate the case.
21) The law in regard to grant or refusal of bail is very well settled. The
court granting bail should exercise its discretion in a judicious manner and
not as a matter of course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation of the merit of the case
need not be undertaken, there is a need to indicate in such orders reasons for
prima facie concluding why bail was being granted particularly where the
accused is charged of having committed a serious offence. Any order devoid
of such reasons would suffer from non-application of mind. It is also
necessary for the court granting bail to consider, among other circumstances,
the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of
conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
22) Before concluding, we must note that though an accused has a right to
make successive applications for grant of bail, the court entertaining such
subsequent bail applications has a duty to consider the reasons and grounds
on which the earlier bail applications were rejected. In such cases, the court
also has a duty to record the fresh grounds which persuade it to take a view
different from the one taken in the earlier applications.
519
LT. COL. P. S. PUROHIT-V- STATE OF MAHARASHTRA [R.K. AGRAWAL, J.]
works. The tenders were invited for total 13 items. The cost of the tender
paper for each item was Rs.10,500/-. The estimated cost of the work for each
item, as well as the EMD/security amounting to 1% of the estimated cost,
was also specified. Besides other conditions, condition no.6 required that a
bidder was to provide Additional Performance Security at the time of
submitting its bid. The relevant clause 6 is reproduced below:
“Additional performance security shall be obtained from the bidder,
when the bid amount is less than the estimated cost put to tender. In
such an event, the bidder who have quoted less bid price than the
estimated cost put to tender shall have to furnish the exact amount of
differential cost i.e. estimated cost put to tender minus the quoted
amount as additional performance security in shape of Demand
Draft/Term Deposit Receipt pledged in favour of the Executive
Engineer, Lower Indra Canal Division, Khariar from work serial
no.01 to 09 and office of the Executive Engineer, Lower Indra Dam
Division, Damsite, Tikhali from work serial no.10 to 13 in the sealed
envelope along with the price bid at the time of submission of bids.
The bids of the technically qualified bidders will be opened for
evaluation of the price bid in case of the bidders quoted less bid
price/rate than the estimated cost put to tender and have not
furnished the exact amount of differential cost (i.e. estimated cost put
to tender minus the quoted amount) as Additional Performance
Security in shape of Demand Draft/Term Deposit Receipt, their price
bid will not be taken into consideration for evaluation even if they
have qualified in the technical bid evaluation.”
(emphasis supplied)
4. The petitioner in this writ petition, being the ‘B’ Class licensed
contractor duly registered under the Registration Rules, 1967, claims to be
qualified to participate in the tender for each of the 13 works, but is
aggrieved by the pre-condition imposed by Clause 6 of the tender call notice
requiring him to provide APS for each of the items at the time of submission
of the bid, which was in terms of the Office Memorandum dated 04.05.2016
issued by the Works Department of the Government of Odisha. The
petitioner has thus prayed for quashing of the tender call notice dated
30.03.2017, as well as the Office Memorandum dated 04.05.2016. Besides
this, the petitioner has also prayed for quashing of an earlier Office
Memorandum dated 08.11.2013. In the leading writ petition bearing W.P.(C)
No.7120 of 2017 as well as in certain other writ petitions, the prayer for
523
AJAY KUMAR JAIN -V- STATE OF ODISHA [VINEET SARAN, CJ]
same is less than the estimated cost, which otherwise the bidder would be
required to furnish only if his bid is accepted and he is a successful bidder.
9. As an example, Sri P.C.Nayak, learned counsel for the petitioner in
the leading writ petition has submitted, that if the petitioner wants to bid for
all the 13 works for which the tender call notice has been issued on
30.3.2017, the petitioner would have to furnish APS for the differential
amount in each of the 13 works, whereas earlier he would have to furnish
APS only for the works for which his bid was successful. As a result of this,
only financially very sound or moneyed contractor would be benefitted, even
though the petitioner may be able to perform the work contract for lesser
price, if he is allowed to participate in all the 13 works and required to
furnish the APS at the time of entering into the contract for such items where
he is declared to be successful bidder. The submission is that the purpose of
furnishing APS is to ensure that the successful bidder entering into a
contract/agreement with the Department, gives additional security for the
performance of the contract for the differential price between the estimated
cost and the bid price, where it is lesser than the estimated cost. The interest
of the Government Department is to be secured only where the contract is
awarded and not prior to it. The apprehension of the State that the contractor,
after submitting his bid at a price below the estimated cost may not thereafter
enter into the agreement, is misconceived, as the Government Department
issuing the tender call notice can always forfeit the EMD/Security Deposit
furnished by the bidder, and also further initiate proceedings for blacklisting
the contractor, and a further provision is there that the concerned
Government Department shall inform all other Government Departments for
blacklisting of such contractor, so that he may not be awarded contracts by
other Government Departments. Besides this, it is submitted that the bidders
have to also deposit the tender cost for each work separately, which is not
refundable.
10. Learned counsel for the petitioners have also submitted that there is a
distinction between the bid security and performance security. Performance
security is to be furnished at the stage of performance of work, which is only
after the contract is to be awarded in favour of the successful bidder and not
earlier; whereas bid security is to be furnished at the stage of submitting the
bid. Thus, the submission is that the bid security of 1% of the estimated cost
is rightly required to be deposited at the stage of submission of bid, and the
performance security by way of APS can be asked to be furnished only when
the successful bidder is required to perform the contract. The contention,
525
AJAY KUMAR JAIN -V- STATE OF ODISHA [VINEET SARAN, CJ]
thus, is that no prejudice would be caused to the Government Departments if
APS is provided at the time of execution of contract in favour of the
successful bidder, as the interest of the Government Departments would be
fully safeguarded. The apprehension that the successful bidder delays the
execution of the agreement by not furnishing the APS is ill-founded, as terms
of the tender call notice can always require the successful bidder to furnish
APS within a stipulated time after acceptance of his bid, failing which his bid
would be cancelled and security deposit forfeited and the contractor be
blacklisted, plus provision can also be made for recovering liquidated
damages. It is thus contended that there is no reasonable nexus between the
object of furnishing APS at the stage of submitting the bid, and there is also
no reason given for imposing such pre-condition.
11. The other contention of the learned counsel for the petitioner is that
such restriction as has been imposed by Office Memorandum dated 4.5.2016,
cannot be considered to be classified as a law within the meaning of Article
13(3)(a) of the Constitution of India. It also restricts the scope of level
playing field, which is being deprecated by judicial pronouncements. In the
end, it was submitted that the restriction so imposed is not derived from any
law or backed by any Government Rules, and thus cannot be imposed.
12. Per Contra, Sri R.K.Mohapatra, learned Government Advocate
appearing for the opposite parties has submitted that furnishing of APS is not
an alien concept, as the same was already there in terms of the Office
Memorandum dated 8.11.2013, and the provision of furnishing APS at the
time of submission of bid was introduced as the Government had
experienced that contractors were quoting unreasonably lesser price than the
estimated cost, on which they could not work and thus, either they do not
come forward to enter into agreement or leave the work unfinished in
between. It is contended that because of the same, the Government suffered
huge financial loss, as well as delay in completion of projects and as such,
the condition was imposed in public interest, so that the public does not
suffer, and money as well as time is also not wasted. It is contended that
cancellation of the bids, where APS is not furnished, delays the entire
process and at times, fresh tender call notice has to be issued, which is
against public interest, which is paramount. He has thus contended that the
condition so imposed by the Office Memorandum dated 4.5.2016 is fully
justified in law and cannot be said to be contrary to the provisions of the
OPWD Code or the Constitution, as the same is neither discriminatory nor
does it impose any unreasonable restriction. Learned Government Advocate
has thus prayed that the writ petition deserves to be dismissed.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
13. In support of their submissions, learned counsel for the parties have
relied on certain decisions, which shall be considered while dealing with
their arguments.
14. We have carefully considered the submissions advanced by the
learned counsel for the parties and perused the records.
15. The brief background of the case is that contractors, who are licensed
and registered under the relevant Rules, are eligible to participate in the
tender process in response to tender call notice issued by various
Departments of the Government of Odisha for carrying out the work
contracts for the respective Government Departments.
16. In Office Memorandum dated 08.11.2013, it was provided that where
the bid amount offered by a bidder was more than 10% less than the
estimated cost, the successful bidder was required to provide APS by way of
bank draft or other specified modes. By Office Memorandum dated
04.05.2016, the earlier Office Memorandum dated 08.11.2013 has been
modified to the effect that the APS should be obtained from the bidder at the
stage of submission of his bids, when the bid amount is less than the
estimated cost put to tender. It is such pre-condition of furnishing APS at the
stage of submission of the bid (and not by the successful bidder alone after
his bid is accepted as provided earlier) which is under challenge in these
present writ petitions.
17. For record, it may be noted at this stage that just prior to issuance of
Office Memorandum dated 08.11.2013, another decision was taken on
26.10.2013 to the effect that the estimated cost be calculated after taking into
account 7.5% as profit of the contractor and another 7.5% as overhead
charges, and thus the State Government had come to the conclusion that the
minimum viable cost at which a contractor could successfully perform the
contract, should not be less than 15% of the estimated cost. Thus, a provision
was incorporated in the Office Memorandum dated 08.11.2013 that those
tenders in which the price quoted was below 15% of the estimated cost
would not be considered.
18. For proper appraisal of the relevant clauses relating to the APS in the
Office Memorandums dated 08.11.2013 and 04.05.2016 are reproduced
below:
“OFFICE MEMORANDUM DATED 08.11.2013
(2) Amendment to Para-3.5.14 of Note-I of OPWD Code, Vol-
527
AJAY KUMAR JAIN -V- STATE OF ODISHA [VINEET SARAN, CJ]
I by inclusion:
Note-I – If L-1 bidder does not turn up for agreement after
finalization of the tender, then he shall be debarred from
participation in bidding for three years and action will be taken to
blacklist the contractor. In that case, the L-2 bidder, if fulfils, other
required criteria would be called for drawing agreement for
execution of work subject to the condition that L-2 bidder negotiates
at par with the rate quoted by the L-1 bidder otherwise the tender
will be cancelled. In case a contractor is blacklisted, it will be widely
publicised and intimated to all departments of Government and also
to Government of India agencies working in the state.
(3) Amendment to Appendix-IX, Clause 36 of OPWD Code,
Vol-II by inclusion:
Clause No.36 – If the rate quoted by the bidder is less than 15% of
the tendered amount, then such a bid shall be rejected and the tender
shall be finalized basing on merits of rest bids. But if more than one
bid is quoted at 14.99% (Decimals upto two numbers will be taken
for all practical purposes) less than the estimated cost. The tender
accepting authority will finalize the tender through a transparent
lottery system, where all bidders/their authorized representatives the
concerned Executive Engineer and DAO will remain present.
4.(A) Amendment to Para-3.5.5 (V) of Note-II of OPWD Code,
Vol-I by substitution:
Note-(II) – When the bid amount is up to 10% less than the estimated
cost, no additional performance security is required to be deposited.
When the bid amount is less than the estimated cost by more than
10% and within 15%, in such an event, the successful bidder will
deposit the additional performance security to the extent of 1.5 times
of the differential cost of the bid amount and 90% of the estimated
cost.”
OFFICE MEMORANDUM DATED 04.05.2016
(1)(A) Amendment to Para-3.5.5 (V) of Note- II of OPWD Code,
Vol-I by modification:
Note-(II) – Additional Performance Security shall be obtained from
the bidder when the bid amount is less than the estimated cost put to
tender. In such an event, the bidders who have quoted less bid
528
INDIAN LAW REPORTS, CUTTACK SERIES [2017]
price/rates than the estimated cost put to tender shall have to furnish
the exact amount of differential cost i.e. estimated cost put to tender
minus the quoted amount as Additional Performance Security in
shape of Demand Draft/Term Deposit Receipt pledged in favour of
the Divisional Officer in the sealed envelope along with the price bid
at the time of submission of bids.
The bid of the technically qualified bidders will be opened for
evaluation of the price bid. In case of the bidders quoting less bid
price/rate than the estimated cost put to tender and have not
furnished the exact amount of differential cost (i.e. estimated cost put
to tender minus the quoted amount) as Additional Performance
Security in shape of Demand Draft/Term Deposit Receipt, their price
bid will not be taken into consideration for evaluation even if they
have qualified in the technical bid evaluation.”
(emphasis supplied )
19. It is clear from a plain reading of Office Memorandum dated
08.11.2013 quoted supra, that when the bid amount offered by a bidder is
more than 10% less than the estimated cost, the successful bidder is required
to provide APS by way of bank draft or by other specified mode as a security
for performance of the contract. Subsequently, vide Office Memorandum
dated 04.05.2016, the earlier memorandum dated 08.11.2013 was modified
to the effect that APS should be obtained from the bidder at the stage of
submission of the bid, when the bid amount is less than the estimated cost
put to tender. Taking into consideration the rival contentions of the parties, it
appears that in order to secure the performance of the contract awarded in
favour of the successful bidder, the APS is being imposed, which is in
addition to the other mode of security measure, in order to ensure timely
performance of the contract. Sufficient measures are being taken under the
provisions of the OPWD Code to ensure fair play in the evaluation process
as well as performance of contract. A bidder is required to submit bid
security @1% of the estimated cost at the time of submission of the bid.
Thus, the bidder would lose EMD if he backs out during the evaluation
process. There are also other penal provisions in the OPWD Code to prevent
any foul play by the bidder. Thus, there is no justification requiring the
bidders to deposit APS at the time of bid, which in the nature of a
performance security.
20. By the very nomenclature of “Additional Performance Security”, it is
clear that the same is meant as security for performance of the contract, and
529
AJAY KUMAR JAIN -V- STATE OF ODISHA [VINEET SARAN, CJ]
unless the contract is entered into, there cannot be any occasion of furnishing
Additional Performance Security. The performance security can thus be
required to be deposited only by the successful bidder. It cannot be imposed
upon the bidders for each of the items at the time of submission of their
respective bid.
21. The submission of Mr.Nayak is that Article 19 (1)(g) of the
Constitution provides all citizens a right to practise any profession, or to
carry on any occupation, trade or business. Sub-clause (6) of Article-19
provides for restrictions on the right conferred under Article 19 (1)(g), to the
effect that nothing in Article 19(1) shall affect the operation of any existing
law insofar as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred under sub-clause (g). Thus, the right conferred
under Article 19(1) (g) is always subject to the restriction made under any
law for the time being in force. No enactment having been brought in the
relevant law to put a condition of APS at the pre-bid stage, which, in other
words, would prevent potential bidders from participating in the tender
process, cannot sustain in the eyes of law by way of an enactment by the
State Legislature.
22. Mr.R.K.Mohapatra, learned Government Advocate vehemently
objected to the submissions of learned counsel for the petitioners, and
submitted that APS at the pre-bid stage is being imposed for the public
interest. Individual interest should also always pave way for the public
interest. Thus, the requirement of submission of APS at the pre-bid stage
cannot be faulted with. It is his submission that if the lowest bidder does not
turn up and second lowest bidder does not match with the price of the lowest
bidder, then the authority has to invite fresh tender by making wide
publication. In that process, it not only causes huge loss to the public
exchequer, but also possibility of not completing the project within the
stipulated period cannot be ruled out, which is definitely against the public
interest. The submission of Mr.Mohapatra, learned GA cannot hold good for
the reason, that the question of backing out from contract or leaving the job
in the midway would arise in course of performance of a contract. It does not
arise at the pre-bid stage. Submission of Mr.Mohapatra is essentially with
regard to performance of contract awarded in favour of the successful bidder,
so it does not stand to reason as to why APS should be imposed at the pre-
bid stage. There is no reasonable nexus between the condition of imposition
of APS at pre-bid stage and the object to be achieved by such imposition.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
their brochure and web site the number of NRI seats available in
Course/division.
c. Competent Authority for admission shall prepare merit list of
applicants by inviting applications from eligible NRI students and
effect admission strictly on merit basis.
xx xx xx”
7. Along with the writ petitions, the petitioners have filed Admission
Rules of OJEE-2017 Odisha. Clause 2 of the aforesaid Rules deals with the
‘Seat Allotment Procedure’. Learned counsel for the petitioners have relied
on the relevant portion of Clause-2 of the said Admission Rules dealing with
NRI quota which is reproduced below:
• “5% seats are reserved for NRI and another 15% is reserved for
JEE (MAIN)-2017.
• If candidates are less than 5% in NRI, the balance seat will be
transferred to the general seat and allotment will be done as per
general merit.”
Section-9 under the Orissa Professional Educational Institutions
Regulations (Regulation of Admission and Fixation of Fee) Act 2007
(for short, ‘Act 2007’) which is relevant, is reproduced below:
“9.Reservation of seats – (a) In every professional educational
institution admissions shall be in accordance with the reservation
policy of the Government notified for the purpose of this Act;
Provided that nothing in this Sub-section shall be applicable to the
minority institutions.
(2) In a private professional educational institution other than
minority institution not exceeding fifteen per centum of the approved
intake may be filled up by NRI from the merit list prepared on the
basis of JEE.
(3) Where any shortfall in filling of seats from NRI occurs, such
vacant seats may be filled up from the merit list of All India
Engineering Entrance Examination or All India Medical Entrance
Examination, as the case may be, conducted by Central Board of
Secondary Education:
Provided that while filling up such vacant seats NRI shall be
preferred.
537
SILICON INSTITUTE OF TECHNOLOGY-V- STATE [VINEET SARAN, CJ]
for admission of general candidates. The cases at hand are clear cases where,
after the NRI seats fall vacant, the same are to be treated as general seats to
be filled up from amongst the general candidates. Thus, the procedure to fill
up the general candidates seats has to be followed while filling up of such
seats. On being questioned repeatedly, none of the counsel appearing for the
petitioners could point out any provision of the Act, 1987 and Regulations
framed thereunder or the Handbook or the Act 2007, whereby they would be
entitled to have their say in the matter of picking up students of their choice
from amongst the merit list of OJEE.
10. Section-9 of Act 2007 also clearly provides for filling up of the
unfilled NRI quota seats by candidates belonging to general category from
the merit list of the JEE, which in the present case is OJEE, as OJEE has
adopted the merit list of JEE Main. Although much has been argued that in
the previous years, the benefit of the institutions having a say in the filling up
of the vacant NRI seats was granted by this Court, but none of the learned
counsel appearing for the petitioners has placed before us a single decision
wherein ratio has been laid down to this effect, after giving reasons as to how
and under which provision the Management of such institutions would have a
say in the selection of the students to fill up the unfilled NRI quota seats. As
such, since no such decision has been cited before us and only mention has
been made that there are certain judgments, which have not been cited, we
are unable to appreciate such proposition of law as canvassed by learned
counsel for the petitioners.
11. In view of the aforesaid, we are of the clear opinion that the vacant
NRI seats of the respective Colleges have to be filled up from amongst the
general candidates as per the provisions of Section 9(3) and (5) of Act 2007
and para-13 of the Approval Process Handbook 2017-2018, issued by the
AICTE. The process may be completed by the OJEE at the earliest.
12. With the aforesaid observation, the writ petitions stand disposed of.
Free copy of this judgment be supplied to Sri Palit for necessary compliance.
admission number being 44Fo/15, OUAT. She had cleared her 1st semester
examination and mid-semester examination conducted by the OUAT in
November, 2015 and March, 2016 respectively.
3. As per Clause-21 of the Semester Regulation for Under Graduate (UG)
courses, a student is required to secure at least 70% attendance to appear in
the semester examination. Due to shortage of her attendance during the 2nd
semester period, i.e., from 21.01.2016 to 30.06.2016, she was not allowed to
appear in the 2nd semester examination for which she has approached this
Court for the aforesaid relief.
4. Mr. Abhijit Mishra, learned counsel for the petitioner, submitted that
the petitioner being a sports person, had to attend practice sessions and
events representing the College for which she could not secure adequate
attendance during the 2nd semester period. Further, scheduled classes were
not held due to absence of teaching faculty. However, some un-scheduled
classes were held intimating the students by WhatsApp, some of which could
not be communicated to the petitioner. Out of 32 (thirty-two) scheduled
classes, the concerned teacher had taken only 12 (7 theory +5 practical)
classes and had taken 10 (ten) numbers of un-scheduled classes (5 theory + 5
practical). Thus, out of thirty-two scheduled classes, only twenty-two classes
could be held, out of which the petitioner had attended only twelve classes.
Several other students also suffered shortage of attendance during the 2nd
semester period for which the Academic Council in its meeting dated
21.09.2016 passed the following resolution (resolution no.7172):
“3. Considered regarding the shortage of attendance of 1st year
B.Sc. (Forestry), 2015 Batch students.
Proceeding of the enquiry committee regarding the shortage of
attendance of 1st year B.Sc. (Forestry) students was discussed in
detail. The concerned teacher did not take the required number of
classes and took classes outside the approved time table without
approval of authority, and made the new timings circulated through
Whatsapp. The House resolved that the classes should be taken in
scheduled time. The teachers should not be allowed to take classes as
per their own will. The classes can be taken on holidays for achieving
the NIDs. Adjustment classes will be taken in lieu of 2nd Saturday.
Classes can never be suspended on the occasion of functions. Action
as deem fit may be taken against erroneous teachers.”
541
PRIYANKA SENAPATY-V- VICE-CHANCELLOR, OUAT [K.R. MOHAPATRA, J.]
7. As learned counsel for the OUAT could not explain the position, this
Court taking a serious note of the matter, vide its order dated 11.05.2017,
directed the Registrar, OUAT to be present in person with relevant records
on 22.06.2017 to explain the matter. In compliance of the said direction, the
Registrar, OUAT and Dean, Students’ Welfare, OUAT as well as Dean,
College of Forestry, OUAT were present in person on 22.06.2017. On that
date, they were directed to file an affidavit explaining as to why there was
shortfall in taking scheduled classes. Accordingly, an additional affidavit was
also filed by the Dean, College of Forestry-opposite party no.3 on
27.06.2017 explaining as to under what circumstances, only 12 (twelve)
scheduled classes could be taken out of 32 (thirty-two) and 10 (ten) un-
scheduled classes were taken to make good the loss.
8. We have heard learned counsel for the parties at length; perused the
record and on consent of learned counsel for the parties, took up the matter
for final disposal at admission stage.
9. The facts narrated are not disputed. Admittedly, the petitioner had
only attended 12 (twelve) classes out of 22 (twenty-two) scheduled and un-
scheduled classes. Thus, applying the formula, she was given a grace of two
classes and accordingly, she could only secure 63.63% of attendance out of
70%, which falls short of approximately 2 classes. As there was a shortage of
her attendance, she was not allowed to appear in the 2nd semester
examination. Learned counsel for the petitioner, though challenged the
formula adopted by the OUAT to calculate the attendance of the students to
be defective, but could not place any material in support of the same. Be that
as it may, the fact that the petitioner is a sports person and that she has
represented the College, is not disputed by the OUAT. Further, considering
the grievance of the petitioner, the PEO had also recommended her case for
condonation of shortage in attendance during the 2nd semester period. The
said fact is also not disputed by the OUAT. OUAT has only challenged the
authority of PEO to make such recommendation. The fact that only twelve
scheduled classes out of thirty-two could be taken by the concerned teacher
cannot also be denied. The conduct of the concerned teacher in not taking
scheduled classes and instead conducting un-scheduled classes after
intimating the students through WhatsApp has been deprecated by the
Academic Council. The teachers have also been warned to take classes, as
per the time table. The petitioner had also attended most of the un-scheduled
classes. Although several allegations and counter allegations have been made
by learned counsel for the parties and submissions are being made to justify
543
PRIYANKA SENAPATY-V- VICE-CHANCELLOR, OUAT [K.R. MOHAPATRA, J.]
their respective actions/steps taken, this Court, keeping in view the career of
the petitioner as well as considering the fact that the petitioner is interested in
completing her course and that she being a sports person could not attend
few classes, for her sports activities, is of the view that a liberal view should
be taken in the peculiar facts of this case.
Accordingly, this Court without entering into the intricacies and
correctness of allegations and counter-allegations made by learned counsel
for the parties and taking a lenient view, directs the OUAT authorities to
conduct special 2nd semester examination for the petitioner, Miss Priyanka
Senapaty (Admission No.44Fo/15, OUAT) and also take consequential steps
in the matter.
This may not be treated as precedence, as this order is being passed
taking into consideration the peculiar facts and circumstances of this case.
10. With the aforesaid observation and direction, the writ petition is
allowed.
Writ petition allowed.
1 and M/s Sumeet Security Services was L-2. Other bidders were not
qualified as they had quoted less than 2% of the gross amount quoted by them
as service charges. It is worth-mentioning here that as per Clause-4 of the
financial bid, the service charges quoted should not be less than 2% of the
gross amount. The petitioner-agency had quoted the gross amount of
Rs.6248.99/- paisa per person, which included Rs.124.98 paisa as service
charges, which was Rs.0.01 paisa more than the 2% gross amount quoted by
the petitioner. Similarly, M/s. Sumeet Security Agency had quoted a gross
amount of Rs.6245.00 paisa per person and Rs.125/- as service charges,
which was also more than 2% towards service charges. As such, the petitioner
was hopeful of being awarded with the contract. But to his utter surprise, the
tender call notice was cancelled vide tender cancellation notice dated
28.10.2016 (Annexure-3) without assailing any reason thereto. Hence, the
petitioner being deeply aggrieved by such tender cancellation notice, has filed
the writ petition seeking aforesaid relief.
3. Counter affidavit has been filed by the opposite party No.2
contending that at Clause-4 of the application for financial bid, it was
categorically mentioned that, as District Office is to deduct TDS (IT) @ 2%
of the gross billed amount, the service charges quoted should not be less than
2% of the gross amount. Bid of the bidder quoting less than 2% of the gross
amount as service charges will be rejected. The tender committee meeting
was held on 19.03.2016 in the official chambers of Additional District
Magistrate. Out of eleven numbers of bidders participated in the process, nine
were qualified for financial bid and after opening of the financial bid, it was
found that six numbers of bidders had quoted the service charges of
Rs.124.97 paisa. One M/s. Quantum Global Infratech Ltd. quoted lowest
service charges of Rs.105/-. The petitioner-agency had quoted the service
charges at Rs.124.98 paisa and M/s.Sumeet Security Service had quoted
Rs.125/-. Since the service charges quoted by the petitioner along with seven
others being less than 2% of the gross amount, they were not found eligible in
the financial bid. However, the service charges quoted by M/s. Sumeet
Security Service was exactly 2% of the gross amount. Thus, it was
unanimously decided to put up the matter before the Collector, Nuapada for
final decision. It is further contended in the counter affidavit that the Odisha
Adarsha Vidyalaya Sangathana, vide letter dated 07.02.2016 (Annexure-E/2),
communicated to the Collector and District Magistrate, Kandhamal, copy of
which was communicated to different Collectors and District Education
Officers including the Collector, Nuapada as well as DEO, Nuapada,
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
Mr.Mund also placed reliance on a decision of this Court in the case of M/s
Shree Ganesh Construction Vs. State Orissa and others, reported in 2016
(II) OLR 237.
6. Mr. Samal, learned Standing Counsel for the School and Mass
Education Department reiterated the plea taken in the courter affidavit and
prayed for dismissal of the writ petition. He relied upon the case of State of
Jharkhand and others Vs. M/s. CWE-Soma Consortium, reported in AIR
2016 SC 5566 and submitted that in case of a tender, there is no obligation on
the part of the person issuing tender notice to accept any of the tenders or
even the lowest tender. He further submitted that so long as the bid is not
accepted the lowest bidder acquires no vested right to have an auction
concluded in his favour. Hence, he prayed for dismissal of the writ petition.
7. Having heard learned counsel for the parties and on perusal of the
record, it appears that the tender call notice under Annexure-1 does not
whisper a single word about quoting service charges more than 2% of the
‘gross remuneration’. Clause-4 of the financial bid application clearly
stipulates that the service charges quoted should not be less than 2% of the
‘gross amount’. The opposite parties have tried their level best to justify their
action resorting to the letter dated 17.02.2016 (Annexure-E/2) issued by the
State Project Director to the Collector and District Magistrate, Kandhamal,
copy of which was communicated was also communicated to the Collector
and District Magistrate, Nuapada as well as DEO, Nuapada. In the said letter,
it is indicated that the service charges should be calculated @ 2% of the
‘gross remuneration’, which was not there in the tender call notice. There is
no quarrel to the ratio decided in the case of M/s. CWE-Soma Consortium
(supra) relied upon by Mr.Samal. But, the same has no application to the
present case in view of the fact that the impugned tender cancellation notice
under Annexure-3 has been issued without assigning any reason thereto.
Mr.Samal referring to the counter affidavit has made an endeavour to justify
the action of the authorities in cancelling the tender call notice which is not
permissible in law. In the case of Mohinder Singh Gill (supra), Hon’ble Apex
Court at para-8 held as follows:
“8. The second equally relevant matter is that when a statutory
functionary makes an order based on certain grounds, its validity must
be judged by the reasons so mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit or otherwise. Otherwise, an
order bad in the beginning may, by the time it comes to court on
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
participate in the selection process and their results, if kept in sealed cover, be
declared along with result of the others.
2. The brief fact of the case of the applicants is that their applications
may be accepted by relaxing the upper age limit for recruitment to the post
which was not held from 1998-2012 and also prayed for a declaration that the
Rule 8 of Orissa Secretariat Service (Method of Recruitment and Conditions
of Service of Assistant Section Officers) Rules, 2010 (herein after referred to
as the Rules, 2010) be declared as ultra-virus to Article 14 and 16 of the
Constitution of India and in consequence thereof to quash the said rule and
clause 4 of the advertisement under Annexure-2 and 3.
It has also been prayed for a direction to the respondents to accept the
candidature of the applicants for the post of Assistant Section Officers in
terms of the advertisement dtd.06.10.2012 by considering the age of the
applicants with effect from the date of resolution dtd.30.09.2008 or by
relaxing the age of the petitioners in terms of pre-amended Sub-Rule (2) of
the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989, (herein
after referred to as the Rules, 1989) and allow the applicants to participate in
the process of selection in terms of the Rules, 1989.
It is the case of the applicants that the entry level in the ministerial
service cadre in the Secretariat was designated as Asst. Section Officer in the
scale of pay of Rs.5000-150-8000/- and the existing cadres of Jr. Assistants
and Sr. Assistants were merged in this cadre of Asst. Section Officer vide
Home Department resolution dtd.30th September 2008. The Government of
Odisha thereafter has come out with a Rule in exercise of power conferred
under Article 309 of the Constitution of India known as the Orissa Secretariat
Service (Method of Recruitment and Conditions of Service of Assistant
Section Officers) Rules, 2010, came into force w.e.f. 06.04.2010.
So far as the age limit to apply for the post of Asst. Section Officer is
concerned, Rule 8(2) of the Rules, 2010 provides that a candidate must have
attained the age of 21 years and must not above the age of 32 years on first
day of January of the year of recruitment.
Provided that the upper age limit in respect of reserved categories of
candidates referred in Rule 6 shall be relaxed in accordance with the
provisions of the Act, Rules, orders or instructions, for the time being in
force, for the respective categories.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
The resolution was issued in 2008 and the Rules, 2010 came into force
w.e.f.06.04.2010 but no step was taken to fill up the post of Assistant Section
Officers till the year 2012. In the meantime an advertisement bearing No.8 of
the 2012-13 was issued by the Odisha Public Service Commission on
6.10.2012 inviting applications to fill up 811 posts of Assistant Sections
Officers, lying vacant in the Governor’s Secretariat as well as in the State
Secretariat wherein it was stipulated that online application forms would be
available till 30th November 2012 by 11.59 P.M. and last date for receipt of
application was 3.12.2012.
The grievance of the applicants is that earlier the post of Assistant
Section Officers was governed by a set of Rules, namely The Odisha
Ministerial Service (Method Of Recruitment and Conditions of Service of Jr.
Assistants in the Offices of the Departments of Secretariat) Rules, 1951 and
as per Rule 3 of the said Rules, 1951 it was required for the respondents to
conduct competitive examination to fill up such posts once in every year and
it was mandatory on the part of the respondents to determine the vacancies
and then advertise the same inviting applications from the eligible candidates.
So far as the relaxation of the eligibility criteria is concerned, it was governed
by the Orissa Civil Service (Fixation of Upper Age Limit) Rules, 1989 and
Rule 2 of the said Rules provides that the upper age limit for entry into
Government service shall be 32 years except where a higher upper age limit
has been prescribed for any such service or post.
Provided that the upper age limit in case of Scheduled
Castes/Scheduled Tribes shall be relaxed by 5 years as provided under the
Orissa Reservation of Posts and Services, Act, 1975, as amended from time
to time.
Provided further that if for any reason applications have not been
invited by the authority, competent to conduct examination during any
particular year to fill up the vacancies of the year, applicants, who would
have been eligible if applications were invited during that period, shall be
eligible to compete at the examination held in the subsequent years.
On the basis of the above proviso in the last advertisement for the
post of Jr. Assistants, the candidates were otherwise eligible to appear at the
examination for the vacancies caused pre 1997 recruitment years but could
not appear in the examination due to advertisement having not been notified.
In that view of the matter the grievance of the applicants is that since the
vacancy is prior to the Rule 2010 came into effect, as such they are entitled to
553
STATE OF ODISHA-V- SUDIPTA KU. MOHANTY [S. N. PRASAD, J.]
be given the relaxation in age in view of the second proviso to Rules 1989
because for no fault of the candidates like the applicants they have been
deprived from appearing in the competitive examination due to notification to
fill up the vacancies having not been notified by the government.
The applicants have approached to the Tribunal after the
advertisement having been notified on 06.10.2012 fixing age range for
applicants to be in between 21 years to 32 years as on 01.01.2012 since they
were not coming under the consideration zone being age barred.
3. The applicants had approached to the Tribunal for redressal of their
grievance, the Tribunal, after noticing the opposite party – State, who is
petitioner herein, has passed an order taking into consideration the relevant
date of vacancies of the post of Jr. Assistants which ultimately been merged
to the post of Asst. Section Officer on 30th September, 2008.
The stand of the State before the Tribunal was that since the
Government has come out with new Rule effective w.e.f. 06.04.2010 and the
advertisement has come on 06.10.2012, as such the vacancies are to be filled
up in pursuance to the new Rule having came into effect wherein there is no
provision like that of the second proviso of the Rule 2 of the Rules, 1989, the
Tribunal, after negating the plea of the State and taking into consideration the
definition of ‘year’ as defined under the recruitment rule and second proviso
to Rules, 1989 and also considering the fact that in between 1997 to 2010
there was no vacancy having been advertised by the state authorities for
fulfilling the post of Jr. Assistants / Sr. Assistants which subsequently been
merged to the post of Asst. Section Officers, passed an order directing the
authorities to allow the applicants to participate in the examination pursuance
to the advertisement dtd.06.10.2012.
4. The said order is under challenge before this court by way of the
instant writ petition having been questioned by the State of Odisha through
the Secretary to Government, Home Department inter alia on the ground that
when new Rule has came into force w.e.f. 06.10.2010, there is no dispute in
the settled proposition that the vacancies advertised after the implementation
of the new Rule, the post is to be filled up on the basis of the criteria laid
down in the new Rule and the provision of the old Rule which has been
substituted by the new Rule will not govern the recruitment process.
5. While on the other hand, the plea of the applicants who are opposite
parties herein is that although the Rule has come on 06.04.2010 but it is
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
settled proposition of law that the Rule which was prevalent at the time of the
occurrence of the vacancies will be applicable for filling up of the vacancies
of that particular year. According to them, the vacancies are of the year 1997
to 2010, as such the provision of recruitment rule prevalent during that period
will be applicable and admittedly during that period the Rules 1989 was
prevalent, as such they are entitled to be given chance to appear in the
examination in view of the provision of second proviso to Rule 2 of the
Rules, 1989.
In the light of these submissions the order passed by the tribunal is
before us for its judicial scrutiny.
6. We have heard the learned counsels for the parties and perused the
documents available on record.
We thought it proper to refer the relevant rules before scrutinizing the
legality and propriety of the order passed by the Tribunal.
The State of Odisha has come out with a Rule in exercise of power
conferred under Article 309 of Constitution of India on 27th October, 1989,
known as the Odisha Civil Service (Fixation of Upper Age Limit) Rules,
1989 wherein the provision has been made under Rule 2 which is being
reflected hereunder as:-
“2. Notwithstanding anything contained in any recruitment rule
regulating the method of recruitment in Civil Services and / or Civil
Posts in Pensionable establishment under the State Government, the
upper age limit for entry into Government Service shall be Thirty-two
year except where a higher upper age limit has been prescribed for
any such service or post:
Provided further that if for any reason applications have not been
invited by the authority competent to conduct examination during any
particular year to fill up the vacancies of the year, applicants, who
would have been eligible if applications, were invited during that
year, shall be eligible to complete at the examination held in the
subsequent year. This proviso will also apply to cases where
advertisements have already been issued for recruitment to services
and posts under Government but the process of recruitment has not
commenced.”
It is evident from the said provision that the Government has taken a
conscious decision by making a statute in exercise of power conferred under
555
STATE OF ODISHA-V- SUDIPTA KU. MOHANTY [S. N. PRASAD, J.]
Article 309 of the Constitution of India providing therein that if for any
reason applications have not been invited by the authority to conduct
examination during any particular year to fill up the vacancies of the year,
applicants who would have been eligible if applications were invited during
that year, shall be eligible to compete at the examination held in the
subsequent year, meaning thereby the Government is supposed to advertise
the vacancies year-wise subject to availability of vacancies and if it would
not be advertised, the candidates who intend to participate in the selection
process would not be deprived due to latches on the part of the authorities.
The issue pertains to the instant writ petition is regarding recruitment
to the post of Assistant Section Officer. The state of Odisha has come out
with a Rule known as Odisha Ministerial Service (Method of Recruitment
and Conditions of Service of Jr. Assistants in the Offices of the Departments
of Secretariat) Rules, 1951 wherein the provision has been made to make
recruitment every year.
This Rule has came into effect with effect from 12.12.1951 wherein
under Rule 5 the provision has been laid down for determination of number
of vacancies which provides as under:-
“5. Determination of number of vacancies – On the first day of
September, each year the Departments of Secretariat shall
communicate to the Home Department in the form as prescribed in
Appendix III, the total number of vacancies including the number of
vacancies to be specifically kept reserved for Scheduled Castes and
Scheduled Tribes candidates in the service found at the time or likely
to occur during the twelve months commencing from the ensuing
months of April.”
Rule 6 provides the provision for advertisement of vacancies which
reads as follows:-
“6. Advertisement of Vacancies – The Government in Home
Department, on receipt of the requisite information from all
Departments shall report, not latter than the 15th day of September
the number of vacancies to the Secretary to Commission who shall
thereafter issue advertisement in the Orissa Gazette and in such
newspapers as may be considered necessary inviting application in
the prescribed form for the general competitive examination.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
period of the Rules 1951 read with Rules 1989 and also considering the fact
that the petitioners cannot be deprived from the right to be considered for
engagement in the light of advertisement dtd.06.04.2012 merely on the
ground of being age barred, has came to conclusion regarding the right of
consideration of the applicant in the competitive examination in pursuance to
the advertisement No.8 / 2012-13.
8. Learned Sr. Counsel appearing for the applicants has relied upon the
judgment rendered by a coordinate bench of this court in the case of State of
Odisha and Others Vrs. Manoj Kumar Panda and Others, reported in
2013 (II) OLR 760 wherein the subject matter was for fulfilling the post
under different Class-II services under the State and the same issue has been
involved in the said case, the coordinate bench of this court, after taking into
consideration the relevancy of the rule as on the date of occurrence of
vacancy, has allowed the candidature of such candidates who have become
age barred due to non-advertisement of the post and according to him the
order passed by this court in the said writ petition has been implemented by
the State authorities without challenging the same, as such the state authority
now cannot take different stand.
Learned Additional Government Advocate has fairly submitted that
the issue involved in the instant case is covered with the issue raised in the
case of State of Odisha and Others Vrs. Manoj Kumar Panda and Others
(supra) and the direction passed by this court in the said writ petition has
been given effect to.
9. In view of the discussion made by us herein above, taking into
consideration the reasoning given by the Tribunal in the order impugned as
also the fact that the State in similar situation has implemented the order
passed by this court in the case of Manoj Kumar Panda, we are in agreement
with the finding and direction passed by the Tribunal and accordingly found
no error apparent on the face of record, rather we are of the view that the
Tribunal has taken into consideration the factual aspect, the proposition of
law as has been discussed by us herein above and the applicability of the rule
and has passed the order. In view thereof we find no reason to interfere with
the same, accordingly the writ petition fails. In the result the writ petition
stands dismissed.
Writ petition dismissed.
560
2017 (II) ILR - CUT-560
2. The brief facts of the case of the opposite parties – applicants in all
the cases before the Tribunal was that they have joined the training after
following all the formalities and on successful completion they have been
taken into the cadre with effect from different dates and thereafter they have
been regularized on different dates as Technical Grade-III (Welder).
The applicants have raised their grievance that they be given the
benefit of upgradation in pay scale under the scheme formulated by the
authorities by counting the period of 12 years from the date of their initial
appointment, but when the same has not been considered by the authorities,
they have approached the Tribunal and the Tribunal, after taking note of the
entire aspect of the matter, has passed an order holding therein that they are
entitled to be given upgradation of pay scale under the Assured Career
Progression Scheme by counting 12 years of service from the date of their
initial appointment, the said orders are under challenge before this court by
way of these writ petitions inter alia on the ground that the training period
ought not to have been counted for the purpose of counting the 12 years of
continuous service.
3. Mr. Ashok Mohanty, learned Sr. Counsel representing the Union of
India has tried to strengthen his argument by submitting that so many
circulars have been issued by the East Coast Railway which provides
condition that the period undergone on training cannot be counted for the
purpose of counting the 12 years of service, rather the 12 years was to be
counted from the date when the period of training has been completed.
He submits that the petitioners since have got pre training, i.e. before
entering into service, as such the pre training period should not have been
directed to be counted by the Tribunal for the purpose of counting the
continuous service to extend the benefit of Assured Career Progression
Scheme.
Learned Sr. Counsel, however, has submitted that if the training
period is in service then the 12 years can be counted from the date of initial
appointment.
4. Learned counsel appearing for the opposite parties - applicants has
vehemently opposed the submission advanced on behalf of learned Sr.
Counsel representing the East Coast Railway.
While arguing, he has submitted that the same issue fell for
consideration before this court and this court in series of writ petitions have
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
approved the order of the Tribunal, the matter went before the Hon’ble Apex
Court, and the Apex Court has affirmed the same by dismissing the Special
Leave Petition, hence nothing remains to be decided in this case.
He submits that the opposite parties - applicants have been appointed
pursuant to an advertisement notified by the authorities being Employment
Notice No.M8/476/MCS/ R&S whereby and where under the applications
have been invited for recruitment of trainees for being eventually absorbed as
Skilled Artisan in the Revised Scale of pay of Rs.260-400 in carriage repair
work-shop with the condition that the candidates must have passed from any
I.T.I. in the appropriate trade or completed Apprenticeship training in the
appropriate trade and possess National Apprenticeship Certificate and the
candidates should be in between the age group of 18 to 25 years of age as on
1.1.1985, the other stipulation therein was that the selected persons will have
to undergo training up to maximum period of one year at the suitable
technical establishment on the railway as the administration may decide,
stipend as per rule in force from time to time will be paid to such trainees.
On the strength of this advertisement, submission has been advanced
by the learned counsel that since the opposite parties - applicants have been
appointed pursuant to Employment Notice No.M8/476/MCS/R&S after
having the I.T.I. or the Apprenticeship Certificate, they have got their
appointments and thereafter they have been directed to go for training which
itself suggests that same was in-service training and in no stretch of
imagination the in-service training undergone by them can be taken away
from the length of service.
He countered the argument of learned Sr. Counsel representing the
East Coast Railway by submitting that the opposite parties – applicants have
not got their appointments on the basis of pre training rather the pre training
was one of the eligibility criteria for their participation in the selection
process and they having pre-training, Apprenticeship certificate or I.T.I.,
have participated and thereafter when entered into service they have
undergone training in terms of offer of appointment and on completion of
successful training they have been taken under regular establishment, hence
the submission advanced by the learned Sr. Counsel in this regard is not
acceptable and not factually correct.
He submits that if the appointment would have been made on the
basis of Apprenticeship certificate and without any direction to go for in-
service training, in that situation, the period undergone training under
563
UNION OF INDIA-V- BHAGABAN MISHRA [S. N. PRASAD, J.]
Apprenticeship certainly would not have been counted for the purpose of
counting the length of service, but that is not the fact in all the cases and that
is not the prayer of the petitioners which has been adjudicated upon by the
Tribunal, rather before the tribunal, the factual aspect was as to whether the
training undergone by one or the other applicants in service can be counted
for the purpose of counting the length of service period or not and that has
been answered.
5. While countering this submission, learned Sr. Counsel representing
the East Coast Railway, has submitted that the question involved in this case
is pre training period and the Tribunal has misconstrued this aspect of the
matter while adjudicating the issue.
He further submits that in other matter, the order of tribunal has been
challenged before the Hon’ble Supreme Court and the Supreme Court is now
in seission of the matter by issuing notice in the Special Leave Petition which
is now pending before the Hon’ble Supreme Court.
6. We have heard learned counsels for the parties and perused the
documents available on the record and on the basis of that their argument has
been appreciated.
On the basis of the factual aspect which has been canvassed before us
by the learned counsels for the parties, the question which is to be looked into
by this court is as to whether the period of training would be counted if the
training is by one or the other employees in course of service or the pre
service.
In order to examine this issue, we have gone into the pleading of the
respective parties. It is evident from the notice inviting application being
Employment Notice No.M8/476/MCS/R&S which has been notified inviting
application for recruitment of trainees for being absorbed as skilled artisan in
revised scale of pay of Rs.260-400 in carriage repair workshop in
Mancheswar near Bhubaneswar. The minimum qualification for recruitment
as skilled artisan, as stipulated that the candidate must have passed from any
I.T.I. in appropriate trade or completed apprenticeship training in appropriate
trade and possess national apprenticeship certificate.
The other condition stipulated in the said advertisement is that the
selected persons will have to undergo training up to maximum period of one
year at a suitable technical training establishment on the Railways as the
administration may decide, stipend as per rules in force from time to time
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
will be paid to such trainees. In all other respects the appointment will be
governed by the Railway Rules in force from time to time, the trainees are
required to find their own residential accommodation at the place of training.
The opposite parties – applicants, in pursuance to the said
employment notice, have made their applications being eligible as per the
minimum qualification prescribed, they have been appointed on different
dates, on successful completion of training since they are found suitable in
the test conducted for absorption, have been regularized and posted against
existing vacant post of Mechanical Department in Skilled Grade-III in scale
950-1500 plus allowances, as would be evident from the office order
dtd.4.9.1997.
While they were working, the South Eastern Railways has come out
with a scheme known as Assured Career Progression scheme to grant
upgradation in pay scale wherein the provision has been made that first
upgradation of pay would be granted after 12 years of regular service and
second upgradation after 12 years of regular service from the date of first
financial upgradation, subject to fulfillment of prescribed condition, as would
be evident from the circular dtd.25.11.2013 appended to the writ petition.
The opposite parties – applicants raised their demand that they be
given the first upgradation in pay scale after completion of 12 years of
service from the date of their initial appointment, the same having been
rejected by the authorities on the ground that their 12 years would be counted
from the date when they have been taken into regular establishment i.e. with
effect from 04.09.1997, the opposite parties – applicants, being aggrieved
with the same, have approached the Tribunal and the tribunal after taking into
consideration the fact that similar issue has been decided by it, which has
been affirmed by this court in series of writ petitions which ultimately been
affirmed by Hon’ble Supreme Court in Special Leave Petitions, has passed an
order directing the authorities to count the period of service from the date of
their initial training and directed them to grant the 1st upgradation from the
date of their initial appointment, that order is under challenge in these writ
petitions.
7. Learned Sr. Counsel representing the East Coast Railway has relied
upon one communication dtd.14.3.1998 which stipulates that the service of
the trainees would be taken under the regular establishment subject to their
successful completion of training against the available vacancy, after
completion of the training they will have to serve the railway administration
565
UNION OF INDIA-V- BHAGABAN MISHRA [S. N. PRASAD, J.]
While on the other hand learned counsel for opposite parties - applicants has
relied upon the employment notice No.M8/476/MCS/R&S which is the
advertisement, in pursuance of which they have been appointed under the
post with the condition that they have to go for training. They have also relied
upon Annexure-C dtd.22.6.1992 wherein it has been stipulated that the period
rendered on training would be counted for the purpose of increment.
They have relied upon the order passed by this court in W.P.(C)
No.12425 of 2012 wherein similar issue has been decided by this court by
approving the order passed by the Tribunal wherein the same view has been
taken by the Tribunal which has been challenged before the Hon’ble Apex
Court in Special Leave Petition No.110404 of 2013 wherein the order passed
by this court has been affirmed, on the strength of these documents it has
been submitted that the issue has already been decided by this court having
been affirmed by Hon’ble Apex Court, as such nothing remains to be decided
in this case, hence they have prayed to dismiss the writ petition.
They have also relied upon another order passed by this Bench in
W.P.(C) No. 19250 of 2016 wherein taking into consideration the fact that
the same issue has already been decided by this court having been affirmed
by the Hon’ble Supreme Court, this court has declined to interfere, as such
the writ petition has been dismissed approving the order passed by the
tribunal.
Learned counsel for opposite parties – applications, on the strength of
these documents, have submitted that the writ petitions may be dismissed.
10. Learned Sr. Counsel representing the East Coast Railways submitted
that other matters also went before Hon’ble Apex Court wherein notice has
been issued and now the matter is pending but no document to that effect has
been produced before this court.
11. We, in the light of these documents and submissions, have examined
the issue in detail.
It is not in dispute that the authority has come with a scheme for
grant of upgradation in pay scale and to that effect the decision has been
taken to grant first upgradation after completion of 12 years of continuous
regular service.
It is also not in dispute that the training undergone in-service by an
employee cannot be excluded from counting the entire length of service.
567
UNION OF INDIA-V- BHAGABAN MISHRA [S. N. PRASAD, J.]
justice, considering the gravity of the nature of allegation, has imposed the
punishment of dismissal since the same relates to moral turpitude i.e. taking
illegal gratification from three persons to provide their children with
Government jobs. A revision has been preferred before the Director General
of Police – cum Inspector General of Police who has confirmed the order of
punishment passed by the Appellate Authority.
The tribunal while interfering with the order of punishment has gone
into the point purely on sympathetic consideration by considering that the
applicant has put only five years of service at the relevant point of time and
he belongs to Scheduled Caste and as such awarding black mark itself is a
major penalty, has reversed the order of dismissal to that of imposing three
black marks, but according to us the sympathy shown by the tribunal is not at
all warranted considering the gravity of the allegation which pertains to moral
turpitude that is of taking illegal gratification.
It is also not in dispute that merely on sympathy the punishment of
dismissal cannot be altered, reference in this regard may be made to the
judgment rendered by Hon’ble Apex Court in the case of Deputy
Commissioner, Kendriya Vidyalaya Sangthan and Others vrs. J.
Hussain, reported in (2013) 10 SCC 106 wherein, at paragraph 15, their
Lordships have been pleased to hold as follows:-
“15. The High Court has also mentioned in the impugned order that
the respondent is a married man with family consisting of number of
dependants and is suffering hardship because of the said “economic
capital punishment”. However, such mitigating circumstances are to
be looked into by the departmental authorities. It was not even
pleaded before them and is an after-effect of the penalty. In all cases
dealing with the penalty of removal, dismissal or compulsory
retirements, hardship would result. That would not mean that in a
given case punishment of removal can be discarded by the Court.
That cannot be a ground for the Court to interdict the penalty. This is
specifically held by this Court in Hombe Gouda Educational Trust –
vs- State of Karnataka, (2006) 1 SCC 430 in the following words:
“20.A person, when dismissed from service, is put to a great hardship
but that would not mean that a grave misconduct should go
unpunished. Although the doctrine of proportionality may be
applicable in such matters, but a punishment of dismissal from service
for such a misconduct cannot be said to be unheard of. Maintenance
573
SUPERINTENDENT OF POLICE-V- JUDHISTIRA NAIK [S. N. PRASAD, J.]
the DPC, in its meeting held on 17.5.2013, did not recommend the petitioner
for promotion to the next higher post due to the adverse entries made in his
CCR for the above two successive spell.
5. It is stated that the adverse entries made in the CCR of the petitioner
is mainly related to the unbecoming conduct on the part of a Government
servant being quarrelsome and mischief monger and instigate bar members
against the P.O. As the DPC did not promote the petitioner for the reasons
best recorded, he was not promoted to the next higher post. The Rule
provides for promotion to the officers who are not only have merit but also
have got seniority, but the petitioner could not fulfil the criteria to occupy the
next higher post. Not only this, but also the Ex-J.M.F.C., Kujanga, in his
confidential report, stand by the remark given in the CCR of the petitioner.
The CCR of the petitioner has been duly communicated to him and his
representation has been rightly rejected after being considered in view of the
General Administration Department Memo No.741 dated 5.2.1982. In the
year 2014, the petitioner was promoted to the post of Grade-II Bench Clerk.
Be it stated that on 19.8.2014, the petitioner had made representation to
restore his seniority with effect from 24.06.2013 in the gradation list but the
same has also been rejected in view of Rule-9(2) of the Rules, 2008. On the
whole, it is stated that the petitioner was rightly not promoted due to the
adverse entries in his CCR which are serious in nature.
6. The petitioner filed rejoinder to the counter of the opposite party no.2
reiterating the facts narrated in the writ petition and some fresh facts. It is
revealed from the same that at no point of time, the petitioner was asked to
explain about the adverse remark as mentioned in the counter affidavit for the
period from 18.01.2012 to 28.07.2012. According to him on 12.01.2012, the
petitioner has been promoted to the post of Grade-III, Bench Clerk vide
Annexure-7. If at all the petitioner could be found suitable for promotion on
12.01.2012, it is not correct to say about the change of conduct, attitude and
behaviour of the petitioner subsequently as the CCR from 18.01.2012 to
28.07.2012 is allegedly not good. When the CCR for the above period is not
communicated to the petitioner, the benefit of same should be accorded to
him. When there is no enquiry or any explanation called for from the
petitioner as to the entry in the communicated adverse remark, the authority
should not have taken the same into consideration to deny him promotion.
The petitioner has also submitted in the rejoinder to go through the service
record and the CCR to justify his claim.
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ISWAR CHANDRA PRADHAN-V- STATE OF ORISSA (LAW DEPT.) [ DR. D.P.CHOUDHURY, J.]
7. SUBMISSIONS
Mr.Nanda, learned counsel for the petitioner submitted that the
petitioner, right from the date of his joining, till date, has got an unblemished
character roll except for the period from 03.08.2012 to 29.04.2013. He
further submitted that the communication of adverse entries in the CCR is
only for a period of less than nine months and since the preceding five years
CCR has to be gone through and the CCR for the rest of the period of
preceding five years are favourable, the petitioner should have been
promoted. Even if the petitioner has made representation to expunge the
adverse entries in his CCR, it was rejected after the consideration of
promotion to the next higher post. According to him, in such circumstance, it
may be well assumed that the petitioner was not given adequate opportunity
to ventilate his grievance for considering his case for promotion to the next
higher post.
8. Mr.Nanda, learned counsel for the petitioner further contended that
the opposite parties, while considering the petitioner’s case for promotion,
should have also considered the seniority as the employees below him in the
gradation list, got promoted. The criteria for preceding five years should be
understood in accordance with Orissa Civil Service (Criteria for Promotion)
Rules, 1992 (hereinafter called “the Rules, 1992”), but the same has not been
followed in the case of the petitioner. The entire service career, as would be
appearing from the CCR of the petitioner, would go to show that the
petitioner has got absolute integrity and has no adverse entries except the
alleged one which is false and concocted one. When an employee has
maintained his competency and character through-out, it is improbable on his
part to behave in unbecoming manner for a very short span. So, the adverse
entries in the CCR of the petitioner should have been expunged and the
petitioner could have been promoted to the next higher post basing on the
CCRs already available on record. He further submitted that the learned
District Judge has committed an error by rejecting the representation of the
petitioner on extraneous consideration, but not with reference to the Rules.
When admittedly, there is no Departmental Proceeding or any other criminal
proceeding against the present petitioner and he has no any adverse entries
through-out his service career except the alleged one, debarring him from
further promotion is not only discriminatory but also has damaged his service
career. So, there is serious discrimination which is violative Articles 14 and
16 of the Constitution of India and as such, the writ petition be allowed and
the petitioner be promoted to the next higher post by restoring his seniority
with effect from 24.06.2013.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
11. DISCUSSIONS
It is admitted that the petitioner joined in the judgeship of Cuttack as a
Junior Clerk on 15.12.1987 and he was promoted to the rank of Grade-III,
Bench Clerk on 12.01.2012 vide Annexure-7. His promotion to the rank of
Grade-II, Bench Clerk was not made due the adverse remarks against him in
his CCR. It is not in dispute that the petitioner made representation against
the adverse entry in his CCR and the same was rejected by the opposite party
no.2.
12. According to the General Administration Department Memo
No.741/P.R.O.11/81(SE) dated 05.02.1982 with regard to the CCRs of non-
Gazetted employees of the Government, the CCRs shall be maintained
always financial year-wise and the report period will be from 1st April to 31st
March. It is also made clear from the said circular that confidential remarks
should be based on the assessing authority’s personal knowledge of the
581
ISWAR CHANDRA PRADHAN-V- STATE OF ORISSA (LAW DEPT.) [ DR. D.P.CHOUDHURY, J.]
To
Registrar,
Civil Courts, Cuttack”
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
15. The copy of entries shows that the reviewing appointing authority has
verified the remarks of the reporting officer on one day, i.e., on 18.05.2013,
but directed to communicate the adverse remarks with regard to the period
from 03.08.2012 to 29.04.2013. On the other hand, the adverse entries with
583
ISWAR CHANDRA PRADHAN-V- STATE OF ORISSA (LAW DEPT.) [ DR. D.P.CHOUDHURY, J.]
22. It is also found that the opposite party no.2 gave promotion to the
petitioner on 30.4.2014 to the rank of Grade-II Bench Clerk. But, it does not
appeal to conscience as to how the petitioner being unsuitable for promotion
in 2013, was found suitable for promotion in 2014 having the same CCR
on the record. Thus, we are of the view that the petitioner has been denied
promotion in 2013 illegally and the same is violative of Article 14 of the
Constitution of India. On the other hand, he is entitled to be promoted in
2013 under the DPC held on 17.05.2013. Point No.(i) is answered
accordingly.
23. Point No.(ii)
It has been already discussed, as above, that the adverse entry
communicated after the due date of DPC convened cannot be considered to
obstruct the promotion of the petitioner on 17.05.2013 to the next higher
post, i.e, Grade-II Bench Clerk. Also it is revealed from the material that the
representation has been made by the petitioner to expunge such adverse
remark made in his CCR and by Annexure-4, the Registrar, Civil Courts,
Cuttack simply informed that the District Judge, Cuttack has been pleased to
reject the representation as it was not found satisfactory. The representation
vide Annexure-2 shows that the same has been made by the petitioner on
07.06.2013 in detail but consideration of the same was made only in 2015
being communicated vide Annexure-4. The opposite party no.2 is required to
pass a speaking order while rejecting the representation of the petitioner. The
same being not made, we are of the view that the same has not been
considered in proper manner. Hence, the rejection of the same cannot be
considered as legal. When not only the CCRs of the five years preceding the
year of selection and subsequent year do not have any adverse remark but
has satisfactory remark, the said adverse remark for the period from
03.08.2012 to 29.04.2013 is liable to be quashed. Considering all such
materials, we are of the opinion that the adverse entry made in the CCR of
the petitioner for the relevant period, i.e, from 03.08.2012 and 29.04.2013 is
liable to be expunged. Point No.(ii) is answered accordingly.
24. CONCLUSION
In view of the aforesaid analysis, the adverse entry in the CCR of the
petitioner for the period from 03.08.2012 to 29.04.2013 being liable to be
expunged or quashed, the Court do order so. We, therefore, are of the
considered view that the petitioner is entitled to be promoted to the post of
Grade-II Bench Clerk with effect from 24.06.2013 instead of 30.6.2014 to
the said post for which we direct that the petitioner be promoted to the post
587
ISWAR CHANDRA PRADHAN-V- STATE OF ORISSA (LAW DEPT.) [ DR. D.P.CHOUDHURY, J.]
of Grade-II Bench Clerk when his juniors got promoted by restoring his
seniority. However, service benefits including financial benefits be accorded
to him notionally. Order for such promotion be passed within one month
from the date of communication of this order. The writ petition is disposed of
accordingly. Requisites for communication of the order be filed within a
week.
Writ petition disposed of.
S.K. MISHRA, J.
W.P.(C) NO. 6417 OF 2016
SURENDRA PRADHAN ……..Petitioners
.Vrs.
STATE TRANSPORT AUTHORITY,
ODISHA & ANR. ………Opp. Parties
MOTOR VEHICLES ACT, 1988 – S. 71
S.T.A. was held. On the basis of merits and evaluation criteria evolved by
the S.T.A. the petitioner was found more meritorious and accordingly the
S.T.A. in it proceeding mentioned above resolved to grant permanent permit
in favour of the petitioner in respect of his stage carriage vehicle registration
number of which has been mentioned in the preceding paragraph. Though
the S.T.A. took a decision to grant permanent permit to the petitioner with a
stipulation that the petitioner should lift the permit within a period of ten
days from the date of grant of the order, the same has not been
communicated to him.
4. However, it is the case of the petitioner that he has not been intimated
by the opposite parties about the grant order. After the petitioner came to
know about the decision of the S.T.A., he deposited the permit fees in the
office of the Transport Commissioner on 10.2.2016 for issuance of
permanent permit in his favour. Though the petitioner has deposited the
permit fees and submitted all the M.V. documents before the office of the
Transport Commissioner, as yet no permit has been issued in favour of the
petitioner. The petitioner personally approached opposite party no.2 in
respect of his vehicle. However, opposite party no.2 informed him that his
case will be reconsidered in the next meeting. The petitioner further learnt
that opposite party no.2 by virtue of its order dated 21.3.2016 has directed
that the matter be placed before the next S.T.A. meeting to be held on
21.4.2016. The petitioner is, therefore, aggrieved by the order passed by
opposite party no.2 to place his case in the next meeting of the S.T.A., seeks
a direction to quash the said order, i.e. Annexure-5 and issue mandamus
against opposite parties to issue permanent permit in respect of his vehicle in
the aforesaid route.
5. The opposite parties, i.e. the S.T.A. represented through its Asst.
Secretary, have filed its counter affidavit. The opposite parties in this case,
inter alia, plead that the petitioner’s claim is based on the proceeding held
in 280th meeting of the S.T.A. held on 18.12.2015 under Annexure-3. It
contains a stipulation that the grantee shall lift the permit within a period of
10 days from the date of communication of the grant order. The opposite
parties further plead that there is no communication of grant order from the
opposite parties to the petitioner. Therefore the question of seeking a
direction for issuance of permanent permit does not arise.
6. The opposite parties further plead that one Anam Charan Swain who
was also an applicant for the said route vide his communication dated
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
11. Now in view of the resolution of the S.T.A. in its 279th meeting it was
the bounden duty of the S.T.A. to incorporate the same in the
advertisement, which was issued on 27.11.2015 as at Annnexure-1 asking
the applicant to file affidavit in the line of the resolution.
12. A careful examination of Annexure-1, i.e. the advertisement reveals that
the following condition has been imposed regarding criminal cases, VCR
etc.
“ xxx xxx xxx xxx xxx
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
23. Urgent certified copy of this judgment be given to the learned counsel
for the petitioner as per rules.
24. Requisites to communicate the order to the opposite parties be filed
within seven days.
Writ petition allowed.
DR.A.K.RATH, J.
This petition challenges the order dated 21.2.2014 passed by the
learned Civil Judge (Senior Division), Udala, Mayurbhanj in Civil Suit No.63
of 2012. By the said order, the learned trial court allowed the application of
the plaintiff to accept the photostat copy of Panchayat Bantan Patra as
secondary evidence.
2. Opposite party no.1 as the plaintiff instituted Civil Suit No.63 of 2012
in the court of the learned Civil Judge (Senior Division), Udala, Mayurbhanj
for declaration of easementary right, mandatory and permanent injunction
impleading the petitioner and proforma opposite party no.2 as defendants.
The case of the plaintiff is that Late Raj Kishore Parida, the father of
defendant no.1 and proforma defendant no.2 and two others were the joint
recorded owners of homestead appertaining to Sabik Khata No.28 and
Jantrida under Sabik Khata No.26 of Mouza-Nagabani. The property was
amicably partitioned between the parties. Raj Kishore got land measuring 11
gunths towards South in East-West direction. After death of Raj Kishore, his
two sons i.e., both the defendants, amicably partitioned the property keeping
the provisions of road for their joint use towards north with width-18. In the
said partition, Jaykrushna got western side. It was decided that the road
towards north will be used by both of them for ingress and egress to public
road. It is further pleaded that he purchased the share of Jay Krushna
proforma defendant no.2 by means of two sale deeds dated 24.11.1981. He
constructed a dwelling house and used the suit passage for ingress and egress.
The land purchased by the plaintiff has been recorded in his name.
3. Pursuant to issuance of summons, defendant no.1 entered appearance
and filed the written statement denying the assertion made in the plaint. It is
stated that there is no passage. The land of defendant no.2 is adjacent to
public road and thus the plea of existence of no passage to public road is not
correct. The defendant no.2 also filed a written statement contending inter
alia that there is a passage in between the land of defendant nos.1 and 2.
While the matter stood thus, the plaintiff filed an application to accept the
photostat copy of Panchayat Bantan Patra as secondary evidence on the
ground that he has procured the same from defendant no.2. It is stated that
defendant no.2 has filed objection to the petition of the plaintiff for
production of original document on the ground that he is an old man of 90
years and has lost his memory. He could not remember where the original
was kept. Earlier, the Court has directed defendant no.2 not to produce the
597
TRILOCHAN PARIDA -V- PURNA CHANDRA NANDA [DR.A.K.RATH, J.]
registered sale deed dated 19.04.2010 and mutated the same in his name.
After death of the defendant-appellant, he filed an application under Order
XXII Rule 10 C.P.C. to allow him to substitute in place of the deceased-
appellant and continue the appeal. According to him, since the legal
representatives of the deceased-appellant have not taken steps for
substitution, he is seriously affected. His interest has devolved after him. The
respondent filed objection to the same stating therein that the learned trial
court had passed the order of status quo. Violating the same, the defendant-
appellant alienated the property to deprive the plaintiff from the fruits of
litigation. The transaction is void. Learned appellate court held that the
alleged sale deed executed in favour of the petitioner by the defendant can be
treated as non-existant. The petitioner has no right to be substituted in place
of the deceased-appellant and rejected the petition.
03. Mrs. Padmaja Pattanaik, learned counsel for the petitioner submitted
that during pendency of the suit, the defendant alienated the land in favour of
the petitioner by means of a registered sale deed for a valid consideration.
Thereafter, the petitioner mutated the land in his favour. Since the legal heirs
of the defendant-appellant have not taken steps to prosecute the appeal, the
petitioner filed an application for substitution. She further submitted that
there was devolution of interest. She relied on the decision of the apex Court
in the case of Dhurandhar Prasad Singh vs. Jai Prakash University and
others, AIR 2001 SC 2552.
04. Per contra, Mr. Pradipta Kishore Nanda, learned counsel for the
opposite party submitted that learned trial court directed the parties to
maintain status quo over the suit property. The defendant executed the sale
deed in favour of the petitioner in contravention of the order of status quo.
The alleged sale deed is void. Thus, there is no devolution of interest upon
the petitioner.
05. The apex Court in the case of Dhurandhar Prasad Singh (supra) held
that Order XXII Rule 10 C.P.C. provides for cases of assignment, creation
and devolution of interest during the pendency of a suit other than those
referred to in the foregoing Rules and is based on the principle that the trial of
a suit cannot be brought to an end merely because the interest of a party in
the subject matter of suit is devolved upon another during its pendency but
such a suit may be continued with the leave of the Court by or against the
person upon whom such interest has devolved. But, if no such a step is taken,
the suit may be continued with the original party and the person upon whom
605
G. BASAVAIAH -V- SAMIR KUMAR PATTNAIK [DR.A.K.RATH, J.]
the interest has devolved will be bound by and can have the benefit of the
decree, as the case may be, unless it is shown in a properly constituted
proceeding that the original party being no longer interested in the proceeding
did not vigorously prosecute or collouded with the adversary resulting in
decision adverse to the party upon whom interest had devolved. The
legislature while enacting Rules 3, 4 and 10 has made clear-cut distinction. In
cases covered by Rules 3 and 4, if right to sue survives and no application for
bringing legal representatives of a deceased party is filed within the time
prescribed, there is automatic abatement of the suit and procedure has been
prescribed for setting aside abatement under Rule 9 on the grounds postulated
therein. In cases covered by Rule 10, the legislature has not prescribed any
such procedure in the event of failure to apply for leave of the Court to
continue the proceeding by or against the person upon whom interest has
devolved during the pendency of a suit which shows that the legislature was
conscious of this eventuality and yet has not prescribed that failure would
entail dismissal of the suit as it was intended that the proceeding would
continue by or against the original party although he ceased to have any
interest in the subject of dispute in the event of failure to apply for leave to
continue by or against the person upon whom the interest has devolved for
bringing him on the record. Under Rule 10, Order 22 of the Code, when there
has been a devolution of interest during the pendency of a suit, the suit may,
by leave of the Court, be continued by or against persons upon whom such
interest has devolved and this entitles, the person who has acquired an
interest in the subject-matter of the litigation by an assignment or creation or
devolution of interest pendente lite or suitor or any other person interested, to
apply to the Court for leave to continue the suit.
06. In Amit Kumar Shaw and another vs. Farida Khatoon and another,
AIR 2005 SC 2209, the apex Court held that the application under Order
XXII Rule 10 can be made to the appellate Court even though the devolution
of interest occurred when the case was pending in the trial court. It further
held that under Order XXII, Rule 10, no detailed inquiry at the stage of
granting leave is contemplated. The Court has only to be prima facie satisfied
for exercising its discretion in granting leave for continuing the suit by or
against the person on whom the interest has devolved by assignment or
devolution. The question about the existence and validity of the assignment
or devolution can be considered at the final hearing of the proceedings. An
alienee pendente lite is bound by the final decree that may be passed in the
suit. Such an alienee can be brought on record both under this rule as also
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
under O 1 Rule 10. Since under the doctrine of lis pendens a decree passed in
the suit during the pendency of which a transfer is made binds the transferee,
his application to be brought on record should ordinarily be allowed. The
doctrine of lis pendens applies only where the lis is pending before a Court.
Further pending the suit, the transferee is not entitled as of right to be made a
party to the suit, though the Court has a discretion to make him a party. But
the transferee pendente lite can be added as a proper party if his interest in the
subject matter of the suit is substantial and not just peripheral. A transferee
pendente lite to the extent he has acquired interest from the defendant is
vitally interested in the litigation, whether the transfer is of the entire interest
of the defendant; the latter having no more interest in the property may not
properly defend the suit. He may collude with the plaintiff. Though the
plaintiff is under no obligation to make a lis pendens transferee a party; under
Order XXII Rule 10 an alienee pendente lite may be joined as party. The
Court has discretion in the matter which must be judicially exercised and an
alienee would ordinarily be joined as a party to enable him to protect his
interests. A transferee pendente lite of an interest in immovable property is a
representative-in-interest of the party from whom he has acquired that
interest. He is entitled to be impleaded in the suit or other proceedings where
the transferee pendente lite is made a party to the litigation; he is entitled to
be heard in the matter on the merits of the case.
07. In the wake of aforesaid, the order dated 26.02.2014 passed by the
learned District Judge, Cuttack in R.F.A. No.17 of 2011 is quashed. The
application filed by the petitioner under Order XXII Rule 10 C.P.C. is
allowed. Learned appellate court shall proceed with the appeal. The petition
is allowed. No costs.
Petition allowed.
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2017 (II) ILR - CUT- 607
consent of the learned counsel for the parties, this writ petition is being
disposed of finally at the stage of admission.
6. Admittedly, the petitioner was selected to appear at NRTC
Examination, 2016. He filled up the form and pursuant to the admit card
issued by the authority, he appeared at the examination. The syllabus for the
examination was designed by Board of Secondary Education, Odisha-
opposite party no.2 according to the syllabus of Class-VII. “SAHITYA
SOURAVA” was one of the books prescribed for Class-VII students, from
which question no.12 had been set. The extract of the said book annexed as
Annexure-6 reveals that it was published and printed by the School and Mass
Education Department of the Government of Odisha. Option “D” has been
specifically mentioned under chapter “Satyara Pujari Acharaya Harihara” at
page 39 of the writ application, but the model answer prescribed by opposite
party no.2 indicates different answer, i.e., option “C” relying upon the Odia
dictionary “TARUNA SABDAKOSA”, which is not the prescribed book as
per syllabus published by opposite party no.2 for the NRTC Examination,
2016.When a syllabus has been prescribed to conduct a particular
examination, the same cannot be unilaterally modified, altered or clarified by
opposite party no.2 subsequently by filing counter affidavit. It is well settled
principle of law laid down by the apex Court in Mohinder Singh Gill v. The
Chief Election Commissioner, AIR 1978 SC 851 that if a specific matter has
been prescribed, by filing a subsequent counter affidavit the same cannot be
clarified by the authority concerned what had transpired in their mind while
filing the counter affidavit. If the syllabus is fixed and the petitioner appeared
at the examination in consonance with the syllabus prescribed by subsequent
filing of affidavit, the position cannot be clarified saying that the dictionary
meaning of the answer to question no.12 is option “C”, according to which
the model answer has been prepared. That cannot sustain in the eye of law.
Therefore, this Court is of the considered view that answer given by the
petitioner being in consonance with the syllabus of the NRTC Examination,
2016 and as per book prescribed, the subsequent clarification given in the
counter affidavit justifying the correct answer as option “C” as per the model
answer cannot hold good. Thereby, the counter so filed on behalf of opposite
party no.2, being contrary to its own syllabus, cannot sustain.
7. In State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794, the apex
Court held that:
“Not only administrative but also judicial order must be supported by
reasons, recorded in it. Thus, while deciding an issue, the Court is
613
SASWAT BEJ-V- STATE OF ODISHA [DR. B.R. SARANGI, J.]
bound to give reasons for its conclusion. It is the duty and obligation
on the part of the Court to record reasons while disposing of the case.
The hallmark of order and exercise of judicial power by a judicial
forum is for the forum to disclose its reasons by itself and giving of
reasons has always been insisted upon as one of the fundamentals of
sound administration of the justice – delivery system, to make it
known that there had been proper and due application of mind to the
issue before the Court and also as an essential requisite of the
principles of natural justice. “The giving of reasons for a decision is
an essential attribute of judicial and judicious disposal of a matter
before Courts, and which is the only indication to know about the
manner and quality of exercise undertaken, as also the fact that the
Court concerned had really applied its mind.” The reason is the
heartbeat of every conclusion. It introduces clarity in an order and
without the same, the order becomes lifeless.Reasons substitute
subjectivity with objectivity. The absence of reasons renders an order
indefensible/unsustainable particularly when the order is subject to
further challenge before a higher forum. Recording of reasons is
principle of natural justice and every judicial order must be
supported by reasons recorded in writing. It ensures transparency
and fairness in decision making. The person who is adversely affected
must know why his application has been rejected.”
Similar view has also been taken by the apex Court in Vishnu Dev
Sharma v. State of Uttar Pradesh, (2008) 3 SCC 172; Steel Authority of
India Ltd. v. Sales Tax Officer, Rourkela I Circle, (2008) 9 SCC 407; and
Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik
Nagrik Samity, AIR 2010 SC 1285.
8. Applying the above principle, as laid down by the apex Court, to the
present context and also reasons assigned therein, opposite party no.2 is
directed to make necessary correction in consonance with the syllabus
prescribed for NRTC Examination, 2016 and re-compute the marks as due
and admissible to the petitioner, as expeditiously as possible, preferably
within four weeks from the date of communication of this order. With the
above observation and direction, the writ application stands allowed. No
order to cost.
the assessment has been made under Section 7A of the EPF & MP Act, 1952,
the order itself is appellable and, as such, the petitioner should have preferred
appeal before the appellate tribunal instead of filing the writ application.
Since the petitioner availed the remedy before this Court by filing the writ
application, which was ultimately disposed of by permitting the petitioner to
prefer appeal, the appeal should have been considered in accordance with
law.
5. This Court heard Mr. S. Kanungo, learned counsel for the petitioner
and Mr. S.K. Pattnaik, learned Senior Counsel appearing along with Mr. P.K.
Pattnaik, learned counsel for opposite parties no.1 and 2. Pleadings between
the parties having been exchanged, with the consent of learned counsel for
the parties, this writ petition is being disposed of finally at the stage of
admission.
6. The petitioner being an aided educational institution within the
meaning of Section 3(b) of Orissa Education Act, 1969, most of its
employees are receiving grant-in-aid/block grant from the State Government.
The College does not bear burden of disbursing the salary to its staff.
Consequentially, the College is not liable to make EPF contribution under the
provisions of the EPF & MP Act, 1952. Once the College is notified as an
aided institution, the services of its employees are controlled by the State
Government under the Orissa Education Act, 1969 and Rules framed
thereunder. The Assistant Provident Fund Commissioner issued a notice to
the petitioner on 20.03.2012 for inspection. In response to the same, the
petitioner submitted its reply on 27.03.2012, 17.04.2012, 16.05.2012,
05.06.2012 and 14.06.2012 stating inter alia that the College in question is
not covered under the EPF & MP Act, 1952 and is exempted from the
purview of Section 17 read with Section 16(1)(b) of the said Act as per the
decision of the apex Court in Regional Provident Fund
Commissioner v. Sanatan Dharam Girls Secondary School, AIR 2007 SC
276. But the Assistant Provident Fund Commissioner vide order dated
15.06.2012 held that the College is liable to pay a sum of Rs.13,96,260/- for
the period from 4/10 to 2/12 and Rs.1,88,987/- towards interest @ 12% per
annum as per the provisions of Section 7Q of the EPF & MP Act, 1952
without determining the liability under Section 7A of the EPF & MP Act,
1952. Against the said order, the petitioner approached this Court by filing
WP(C) No.12088 of 2012, but the same was disposed of on 23.07.2012 with
liberty to approach the appellate tribunal. In compliance of the same, the
petitioner preferred appeal before the appellate tribunal which was registered
617
UDAYANATH AUTONOMOUS COLLEGE -V- RPF. COMMI. [DR. B.R. SARANGI, J.]
appeal was because of pendency of the writ application before this Court and
therefore that period of delay should have been excluded in view of the
provisions contained in Section 14 of the Limitation Act, which reads thus:
“14. Exclusion of time of proceeding bona fide in court without
jurisdiction. —
(1) In computing the period of limitation for any suit the time during
which the plaintiff has been prosecuting with due diligence another
civil proceeding, whether in a court of first instance or of appeal or
revision, against the defendant shall be excluded, where the
proceeding relates to the same matter in issue and is prosecuted in
good faith in a court which, from defect of jurisdiction or other cause
of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time
during which the applicant has been prosecuting with due diligence
another civil proceeding, whether in a court of first instance or of
appeal or revision, against the same party for the same relief shall be
excluded, where such proceeding is prosecuted in good faith in a
court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of
the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-
section (1) shall apply in relation to a fresh suit instituted on
permission granted by the court under rule 1 of that Order where
such permission is granted on the ground that the first suit must fail
by reason of a defect in the jurisdiction of the court or other cause of
a like nature. Explanation.— For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding was
pending, the day on which that proceeding was instituted and the day
on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to
be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be
a cause of a like nature with defect of jurisdiction.”
11. Similar question had come up for consideration in Kartik K. Parekh
v. Special Director, Directorate of Enforcement, AIR 2012 SC 683 and the
apex Court in paragraphs 26 and 27 of the judgment came to hold as follows:
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
the writ application before this Court. Therefore, the petitioner is entitled to
avail the benefit of Section 14 of the Limitation Act to exempt the period
covered by bona fide litigious activity.
13. In view of the above settled position of law, the appellate tribunal, by
applying the provisions contained in Section 14 of the Limitation Act, should
have construed that the delay in approaching the appellate forum was bona
fide. For non-consideration of the provisions of Section 14 of the Limitation
Act, the order dated 06.10.2015 passed in ATA No.1138 (10) of 2015 in
Annexure-2, being unsustainable in the eye of law, is liable to be quashed and
is accordingly quashed. The matter is remitted back to the appellate tribunal
for fresh adjudication in accordance with law.
14. The writ application stands allowed. No order to cost.
Writ application allowed.
dated 25.02.2009 passed in T.R. Case No. 295 of 2007. On acquittal of the
petitioner, the opposite parties vide order dated 20.11.2009 dropped the
departmental proceedings and exonerated him from all charges and the period
of suspension was treated as duty. After the departmental proceeding was
dropped, on 23.11.2009, the petitioner was given promotion to E-3 grade
w.e.f. 30.08.2008, even though the petitioner had been discharging his duties
as Sub-Divisional Officer (SDO) from 08.11.2004. Although in the gradation
list-Annexure-13 dated 07.12.2006, the petitioner was placed at serial no. 32,
one Ashok Kumar Nayak, who was about 8 years junior to the petitioner and
was placed at serial no. 58, was given promotion to E-3 grade much prior to
the petitioner, i.e., w.e.f. 08.11.2004. Similarly, one Manas Ranjan Mohanty,
even though was allowed to discharge the duty of SDO (unlike the present
petitioner), w.e.f. 18.10.2003, was regularized in the said post of E-3 grade,
w.e.f. 30.01.2004, but the petitioner has been discriminated. Therefore, the
petitioner claims that he should be allowed to continue in E-3 grade w.e.f.
08.11.2004 instead of 30.08.2008, hence this application.
3. Mr. G. Mishra, learned counsel for the petitioner strenuously urged
that, while considering the promotion from E-2 to E-3 grade, the Orissa
Reservation of Vacancies in Post and Services (for Scheduled Castes and
Scheduled Tribes) Act, 1975 (for short “ORV Act”), which is applicable to
the opposite party-organization, has been completely given a goby. More so,
when one Ashok Kumar Nayak, who is 8 years junior to the petitioner, has
been given promotion w.e.f. 06.11.2004, there is no valid and justifiable
reason to give promotion to the petitioner to E-3 grade w.e.f. 30.08.2008. It is
further contended that since the petitioner has already got promotion to E-3
grade vide order dated 23.11.2009, giving effect from 30.08.2008, he only
claims that such benefit be extended from the date his junior has been
promoted to E-3 grade, i.e., from 08.11.2004, or by applying the provisions
contained in the ORV Act.
4. Mr. P.K. Mohanty, learned Senior Counsel appearing along with Mr.
S.N. Das, learned counsel for opposite party no.3 argued with vehemence that
the claim made by the petitioner is not admissible in view of the fact that
mere functioning as in-charge shall not entitle anyone to claim benefit
attached to the assigned post. To support such contention, he relied upon the
order dated 23.07.2008 of this Court passed in W.P.(C) No. 8192 of 2008,
wherein it was held that if an employee being Lineman-A remained in charge
of the Section, he could not claim the benefits of the Jr. Engineer and after
joining of the Jr. Engineer in that Section, his return to the post of Lineman-A
627
KANHU CHARAN MUNDA-V- GRIDCO [DR. B.R. SARANGI, J.]
deals with criteria for promotion, wherein it has been specifically stated in
clause-5.1 that merit-cum-suitability with due regard to seniority shall be the
criteria for promotion. As per clause-5.2, all promotions are subject to
availability of vacancies and needs of the Company in respect of
grades/disciplines. Clause-6 deals with eligibility and clause-6.1 provides that
the years of service in a grade shall be called as the eligibility period for
consideration of promotion to the next higher grade.
Clause-6.3 envisages minimum eligibility period for consideration of
promotion to different grades. Promotion from grade E-2 to E-3, being the
subject-matter of consideration in the case at hand, the relevant part of Claue-
6.3 is quoted hereunder:
Grade The minimum years of service in the
grade
From To 6 Years
E2 E3
xx xx xx
Under Clause-6.4 it has been clarified that the officers not possessing the
prescribed qualification under the GRIDCO Officers Recruitment Policy for
entry into E-3 level shall not be considered for promotion beyond E3 level.
Clause-7.3 deals with “Engineering”, and clause 7.3.4, which is
relevant for the purpose of this case, is extracted hereunder:
“7.3.4 The number of vacancies to be filled up by promotion of Jr.
Manager (EI) in E-2 to the post of Asst. Manager (EI) in E-3 shall be
so fixed that the promoted Jr. Engineers do not exceed 33% the total
no of posts of Asst. Managers (EI).
Provided further that 5% of the total no. of posts of Asst. Manager
9EI) shall be filled up by Manager (EI) with degree in engineering in
case such candidates are available in E-2.
Provided further that the Jr. Engineers who are diploma holders in
engineering but have completed at least 10 years of services shall not
be considered for promotion.
Notwithstanding the above, the candidates possessing qualification
prescribed for direct recruitment shall also be eligible to offer
themselves for Departmental Recruitment in accordance with
GRIDCO Officers Recruitment Policy.”
629
KANHU CHARAN MUNDA-V- GRIDCO [DR. B.R. SARANGI, J.]
adopted by opposite party no.3. In such view of the matter, this Court holds
that opposite party no.3 is duty bound to follow the principles enshrined in
ORV Act in the matter of promotion of its employees.
16. Next question is to be considered, whether junior to the petitioner has
been promoted to E-3 grade much prior to the date the petitioner was given
promotion. As it appears from paragraph-12 of the counter affidavit, opposite
party no.3 has specifically admitted that some of the juniors of the petitioner
had been given promotion to E-3 grade much prior to the petitioner and that
Ashok Kumar Nayak, who was junior to the petitioner in the gradation list
and continued as SDO in-charge, Dhamnagar, had been promoted to E-3
grade, because he had completed AMIE since 01.05.2005 and, as such, the
DPC considered and recommended his case for promotion on 01.08.2006 and
accordingly the benefit was extended to him.
17. As per the gradation list, Ashok Kumar Nayak was junior to the
petitioner. As such, he has been given promotion on acquisition of AMIE
qualification. But, the extant promotion policy does not provide to give
promotion to the AMIE or the Degree Engineers to the next higher posts, i.e.,
from E-2 to E-3 grade on acquisition of such qualification. The only
prescription in the policy is that one has to render minimum five years service
in E-2 grade to be entitled for promotion to E-3 grade. Taking into
consideration the initial appointment of the petitioner 1993, he, having
completed five years in 1998, was eligible for promotion to E-3 grade, but the
case of the petitioner was not taken into consideration because of pendency
of the vigilance case against him.
18. The law is fairly settled in plethora of decisions of this Court, as well
as the apex Court that pendency of criminal case or a departmental
proceeding cannot disentitle a person to be considered for promotion. Had the
case of the petitioner been considered in proper time, he would have been
promoted to E-3 grade much earlier. If vigilance case was pending against the
petitioner, his promotion, if found otherwise eligible, could have been kept in
sealed cover, and on exoneration from the charges of the departmental
proceeding and the criminal case, by opening the sealed cover he would have
been given the benefit. But, such procedure has not been adopted in the
instant case. In any case, the petitioner, in the considered opinion of this
Court, is otherwise entitled to get the benefit of promotion from the date his
junior has been promoted from grade E-2 to E-3. As has been already stated,
in the meantime the petitioner has already been promoted to E-3 grade. He is
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KANHU CHARAN MUNDA-V- GRIDCO [DR. B.R. SARANGI, J.]
only entitled to get the consequential financial benefits for the differential
period and continuity in promotional post so as to entitle him to be
considered for next promotion.
19. In the facts and circumstances of the case, delineated above, this
Court is of the considered view that applying the provisions of the ORV Act,
the petitioner’s case for promotion be considered in terms of the extant
promotion policy of opposite party no.3 or he may be extended with the
benefit of promotion from the date his junior has been promoted by granting
all consequential service benefits as due and admissible to him in accordance
with law.
20. The writ application is accordingly allowed. No order as to cost.
Writ application allowed.
5. Mr. P.K. Sahoo, learned counsel for the petitioner states that the
opposite parties, having re-engaged and subsequently regularized 7 Rent
Collectors who are juniors to the petitioner, on the basis of work available,
should not have denied such benefit to the petitioner, particularly when
vacancies were available. Such action of the opposite parties is not only
discriminatory but also arbitrary, unreasonable and contrary to the settled
position of law. To substantiate his contention, learned counsel for the
petitioner has relied upon the judgments of the apex Court in Amarkant Rai
v. State of Bihar, 2015 (3) SCALE 505, Rajpal v. State of Haryana, 1996
SCC (L & S) 600 and of this Court dated 28.07.2015 in W.P.(C) No. 8350 of
2012 (Suvendu Mohanty v. State) and batch,
6. Mr. S. Swain, learned counsel for the CDA, referring to counter
affidavit, states that 7 Rent Collectors were engaged pursuant to decision of
59th Authority Meeting of CDA held on 13.08.1999. Since there was no
vacancy, the case of the petitioner was not taken into consideration. In any
case, the petitioner, from the date of his disengagement, i.e., 18.02.1999
remained silent till 2005, when the present writ petition was filed. As such,
delay in approaching the Court has not been explained in proper perspective,
as a consequence of which, the writ petition suffers from delay and laches. It
is further contended that, at the relevant point of time, because of ban
imposed by the State Government with regard to engagement of DLR and
NMR, the case of the petitioner could not be taken into consideration for
engagement even on daily wage basis. More so, by the time the petitioner
approached this Court in 2005, he was 38 years of age and, in the meantime,
he must have attained more than 50 years of age. Thereby, in the event, at
this belated stage, any engagement order is issued, it will be detrimental to
the interest of the opposite parties.
7. Heard Mr. P.K. Sahoo, learned counsel for the petitioner and Mr. S.
Swain, learned counsel for opposite parties no.2 and 3. Since pleadings have
been exchanged between the parties, with their consent the matter is being
disposed of at the stage of admission.
8. The claim of the petitioner revolves around the fact that although the
persons disengaged along with him had been re-engaged by the authority on
18.12.1999 on 44 days basis, taking into consideration the work load
available under the CDA, and subsequently they had already been
regularized, the petitioner should not have been discriminated, particularly
when he, along with others, had approached this Court in OJC No.1904 of
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
apex Court, the appellant therein being the only person left out in the field
also stood in the same position and was entitled to the same relief. The ratio
decided in the said case is distinguishable from the present context in view of
the fact that at that point of time, i.e. 18.02.1999 basing upon the availability
of work re-engagement was given by the authorities (not by virtue of Court’s
order) to seven persons. Even if the petitioner was not re-engaged, that itself
cannot create any right in his favour because he was no more in employment
after 18.02.1999. The ratio decided in the said judgment cannot be of any
application to the present case.
The case of Suvendu Mohanty (supra) is completely different from
the case in hand, and as such, has no application at all.
17. For the discussions made above, this Court is of the considered view
that the claim of the petitioner for absorption in his post as Rent Collector
and regularization of his service, without having any employment with effect
from 18.02.1999, is misconceived one. As such, the petitioner has
approached this Court at a belated stage and, in absence of any work under
the opposite parties, the relief sought for cannot be granted.
18. In the result therefore, the writ petition merits no consideration and is
thus dismissed.
Writ Petition dismissed.
S. PUJAHARI, J.
CRLA NO. 569 OF 2013
NILAMBAR PRADHAN …….Appellant
.Vrs.
STATE OF ORISSA ……..Respondent
However, the accused took the victim on false pretext to Bargarh where he
kept her in a lodge and subjected her to sexual intercourse which was without
her consent and against her will. The matter was reported at Bolangir Sadar
Police Station whereafter she was subjected to medical examination, accused
was arrested, incriminating materials were seized and on completion of
investigation, charge-sheet was laid against the accused, he allegedly having
committed offence punishable under Section 363 of I.P.C. read with Section
376 of I.P.C. The plea of the accused before the trial court was one of denial
and false implication. Prosecution examined twelve witnesses to bring home
the charge against the accused and also exhibited several documents. On the
basis of evidence brought on record, the learned trial court being satisfied that
the victim was above the age of eighteen years held the accused not guilty
under Section 363 of IPC, but held him guilty under Section 376(1) of IPC
and sentenced him as aforesaid.
3. The accused assailed the judgment of conviction solely on the plea
that even if the case of sexual intercourse is upheld, but that being not against
the will and without the consent of the victim, the judgment of conviction
under Section 376 of IPC is indefensible.
4. The learned Addl. Government Advocate, however, defends the
impugned judgment of conviction and order of sentence, the victim having
deposed incriminating the accused.
5. What can be inferred from the materials on record the victim appears
to have attained the age of discretion for a consensual sex at the relevant
time, i.e., when she voluntarily accompanied the accused in a motorcycle
from village- Chhantala on way to Tarva, but proceeded with the accused to
Bargarh, remained in a lodge and spent the night there where the accused
stated to have sexually assaulted her. The victim having attained the age of
discretion and quite a grown up girl, when the accused was taking her on
false pretext to Bargarh, but during travelling in motorcycle though she had
opportunity to raise alarm to attract persons on the way, but neither did she
shout for help from passerby nor made any attempt to leave the company of
the accused. While she was put in the lodge, she also did not make any
allegation or express before any of the inmates of the lodge about her being
abducted. In such circumstances, it could be inferred that she was a
consenting party, is the submission of the learned counsel for the accused.
6. The word ‘consent’ has been explained as an act of reason
accompanied with deliberation, the mind weighing, as in a balance, the good
641
NILAMBER PRADHAN-V- STATE [S.PUJAHARI, J.]
or evil on either side. It is further stated that ‘consent’ supposes three things-
a physical power, a mental power and free and serious use of them and if
consent be obtained by intimidation, force, meditated imposition,
circumvention, surprise or undue influence, it is to be treated as delusion, and
not as deliberate and free act of mind. Every ‘consent’ to an act, involves a
submission; but it by no means follows that a mere submission involves a
consent, e.g., the mere submission of a girl to a carnal assault, she being in
the power of a strong man, is not ‘consent’. A woman’s consent to
intercourse may be hesitant, reluctant or grudging, but if she consciously
permits it, there is ‘consent’. Similarly, submission of body under the fear of
terror cannot be construed as a consented sexual act. ‘Consent’ for the
purpose of Section 375 of I.P.C. requires voluntary participation not only
after the exercise of intelligence based on the knowledge of the significance
and moral quality of the act, but after having fully exercised the choice
between resistance and assent- whether there was consent or not, is to be
ascertained only on careful study of all relevant circumstances. In this regard,
reliance can be placed on a decision of the Apex Court in the case of State of
H.P. vrs. Mango Ram, (2000) 7 SCC 224. ‘Consent’ is always a voluntary
and conscious acceptance of what is proposed to be done by another and
concurred in by the former. The act of helplessness in the face of inevitable
compulsions is not ‘consent’ in law. It is also not necessary that there should
be actual use of force, as mere a threat of use of force is sufficient to come to
a conclusion that there was compulsion to obtain consent.
7. Reverting back, the evidence of the victim would go to show that she
was taken by the accused on a false pretext from her village in his motorcycle
to Bargarh and then though she had the opportunity to raise alarm and bring
the notice of the people to escape from the clutches of the accused. They
passed through many villages and towns and had enough opportunity to do
the same, still the victim did not do the same and rather went with the
accused to Bargarh in his motorcycle, stayed in a lodge in the night along
with the accused where the accused stated to have had sexual intercourse
with her. She also did not express before any of the inmates or the staff of the
lodge that the accused deceived her and brought her forcibly to Bargarh. On
the next day morning also after the sexual assault though the accused was
stated to have taken her to one of his friend’s house she also did not disclose
the incident before any one, rather again she accompanied the accused to the
bus stand and she travelled in a bus to Bolangir wherefrom her sister took her
to the Police Station and lodged the report. No doubt, the victim stated that as
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
she was extended threat by the accused while she was being taken in the
motorcycle she did not make protest, but the aforesaid inspires no confidence
inasmuch as nothing is there on record indicating the fact that the accused
was armed with any weapon of offence and also in the road she did not make
any protest and stayed in the lodge. Since she did not protest at any time and
also did not escape having the opportunity to disclose and to choose to flee
away but voluntarily accompanied the accused, stayed in the lodge and also
came back in a bus, it can very well be inferred from the aforesaid
circumstances that the victim who had attained the age of discretion to
consent for sexual intercourse voluntarily accompanied the accused and
stayed with him in a lodge where she consented for sexual intercourse. In
such circumstances, it would be unsafe to hold that the sexual assault, if any,
was committed against her will and without her consent of the victim by the
accused. Since the sexual intercourse was with the consent of the victim,
there was no ‘rape’ when attained the age of discretion, the same does not
attract the definition of ‘rape’ within the meaning of Section 375 of I.P.C.
and, therefore, does not attract the penal provision of Section 376 of IPC.
Therefore, the trial court has committed gross error in appreciation of
evidence in holding that the sexual intercourse, as such, was a ‘rape’
punishable under Section 376 of IPC.
8. So, on re-appraisal of the evidence on record, this Court is of the view
that no clear, cogent and convincing evidence is available on record
indicating that the accused had committed rape on the victim against her will
and without her consent in the lodge. The evidence of the victim is neither
convincing nor there is any substance of truth therein. She is not a truthful
witness. Her evidence is, therefore, not reliable and no absolute reliance can
be placed on such tainted evidence. Consequently, the impugned judgment of
conviction recorded under Section 376(1) of I.P.C. against the accused is
unsustainable in the eye of law.
9. Accordingly, the appeal is allowed. The impugned judgment of
conviction and order of sentence dated 16.11.2013 passed by the learned
Additional Sessions Judge-cum-Special Judge (Vigilance), Bolangir in
Sessions Case No.161/29/4 of 2010-2011 convicting the appellant for
commission of offence under Section 376 of the I.P.C. and sentencing him to
undergo R.I. for seven years and to pay a fine of Rs.5000/-, in default, to
undergo R.I. for six months, are set-aside. The appellant is acquitted of the
said charge.
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NILAMBER PRADHAN-V- STATE [S.PUJAHARI, J.]
i) that the prosecution has suppressed the genesis and origin of the
occurrence and has thus not presented the true version of the
prosecution;
ii) that the witnesses who have denied the presence of injuries on the
person of the accused are lying on a most material point and,
therefore, their evidence is nbelievable;
iii) that in case there is a defence version which explains the injuries on
the person of the accused, it is rendered probable so as to throw doubt
on the prosecution case ;
The omission on the part of the prosecution to explain the injuries on the
person of the accused assumes much greaterimportance when the evidence
consists of interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution case. Of
course, there may be cases where the non-explanation of the injuries by the
prosecution may not affect the prosecution case where the injuries ustained
by the accused are minor and superficial and where the evidence is not only
clear and cogent but also so independent and disinterested, so probable,
consistent and creditworthy that the same out wits the effect of the omission
on the part of the prosecution to explain the injuries.
6. Reverting back, Ext.G, the injury report of the appellant reveals the
followings as emanating from the evidence of D.W.1 –Dr. Srikanta Mohanty.
“3. On that day I also examined Bhagaban Das, son of Gopal Das of
Kundi and found as under :-
(i) One bleeding incised wound, 1” x ¼” x ¼” over the front surface of the
scalp.
(ii) One incised wound with bleeding 1” x ¼” x ¼”, ½” lateral to the injury
No.(i).
(iii) One bleeding incised wound, 1.1/2” x ½” x ½” over the right side of the
scalp.
(iv) One bruise red in colour, 1.1/2” x 1.1/2” over the back of the scalp.
(v) One abrasion, ½” x ¼” over front surface of left thigh.
(vi) One abrasion, ½” x ½” on the front surface of left knee.
(vii) One bleeding incised wound with tail towards exilla, 2” x ½” x ¼” over
the left side of the back, 6” below the shoulder.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
apparent that they have exaggerated their part of the case and suppressed the
part played by the villagers of Kundisasan in the assault.” Adding the
evidence of P.W.1, the learned trial court in paragraph-16 of the judgment
has further observed that evidence of P.W.1 clearly shows that all the
witnesses were partisan witnesses and their sole aim is not only to conceal
their part in the occurrence but also build up the case of the prosecution in an
exaggerated manner to show that the accused persons had a motive to kill
Babaji. In the said paragraph, the trial court has also taken note that “No
explanation is given as to how accused Bhagaban and Chakradhar also
received injuries though the I.O. has started a counter case in that regard”.
The judgment further reveals in paragraph-16 that the injury reports of the
accused persons (Exts.F and G) show that Chakradhar and Bhagaban
(appellant) also received injuries and out of them, one of the injuries of
Chakradhar (accused) was grievous and cause by sharp cutting weapon.
Furthermore, in paragraph-18 of the judgment the learned trial court has held
that the I.O. in this case has not fairly investigated into the case and even has
not examined the witnesses shown to be the eyewitnesses in Ext.7 (F.I.R.).
Considering the nature of evidence brought on record and where material
witnesses have been withheld, the learned trial court has observed that non-
examination of Bhagaban Barik has adversely affected the prosecution case.
In such premises, on considering the nature of the evidence adduced by the
prosecution, the learned trial court has observed that all the prosecution
witnesses are neither wholly reliable nor wholly unreliable, particularly when
the learned trial court disbelieved the prosecution evidence that all the 7
accused persons had assaulted the deceased. The finding of the learned trial
court is quoted hereunder :-
“Though I disbelieve the fact that the other accused persons also
assaulted Babaji, it being the emphatic evidence of them all that
Bhagaban gave the only blow on the head of Babaji and this has also
been supported by Bhagaban Barik whose nonexamination is highly
lamented by the defence, I fell that accused Bhagaban cannot escape
the responsibility of being the assailant. Barring the written report
(Ext.7), it is no where indicated that accused Bhagaban aimed the
blow at the head of Babaji. While he himself was under assault, he
could not have aimed the blow at the head of Babaji. So while taking
part in the assault he used the stick and it accidentally came in contact
with the head of Babaji. In the circumstances, therefore, it cannot be
said that he had the intention to kill nor had the knowledge that his
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
blow would hit the head of Babaji. In the circumstances, I can hold
him guilty neither under Section 302 nor 304-Part-II of the Indian
Penal Code. He cannot, however, escape the offence under Section
326 of I.P.C.
8. Cumulatively, the findings of the learned trial court revealed that
prosecution witnesses suppressed the injuries sustained by the appellant and
one Chakradhar had sustained a grievous injuries in course of the same
occurrence, the witnesses were neither wholly reliable nor wholly unreliable,
all the prosecution witnesses are highly partisan and interested witnesses and
prosecution is guilty of suppression of material facts. In essence, the learned
trial court has observed that prosecution has suppressed the genesis and
origin of the occurrence and has not thus presented the true version which
resulted in the death of the deceased and where the appellant had sustained
multiple injuries including three bleeding wounds. It assumes much greater
importance when the evidence consists of interested or inimical witnesses
where material witnesses have been withheld. It is a case where a defence
presented a version which competes in probability to show that the
prosecution party are aggressor. That apart, when the learned trial court was
convinced from the proved fact that the stick held by the appellant
accidentally came in contact with head of Babaji holding him guilty under
Section 326 of IPC is also unsustainable in law in view of the fact that the
hurt caused cannot said to be voluntarily.
9. Section 326 of IPC provides as follows :-
“Voluntarily causing grievous hurt by dangerous weapons or means.-
Whoever, except in the case provided for by section 335, voluntarily
causes grievous hurt by means of any instrument for shooting,
stabbing or cutting, or any instrument which, used as a weapon of
offence, is likely to cause death, or by means of fire or any heated
substance, or by means of any poison or any corrosive substance, or
by means of any explosive substance, or by means of any substance
which it is deleterious to the human body to inhale, to swallow, or to
receive into the blood, or by means of any animal, shall be punished
with [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also
be liable to fine.”
10. The word “Voluntarily” has been defined in Section 39 of IPC which
is as under :-
649
BHAGABAN DAS-V- STATE OF ORISSA [S.PUJAHARI, J.]
S. PUJAHARI, J.
CRLA NOs. 551 & 472 OF 2010
SOUMYA RANJAN PATTANAIK …….Appellant
.Vrs.
STATE OF ORISSA ……..Respondent
AND
SUBASH PATTANAIK ……..Appellant
.Vrs.
STATE OF ORISSA ……..Respondent
JUDGMENT
S. PUJAHARI, J.
Since both these criminal appeals have been directed against the same
impugned judgment of conviction and order of sentence dated 15.09.2010
rendered by the learned Special Judge, Keonjhar in Special Case No.23 of
2007, they are heard together and are disposed of by this common judgment
to avoid any conflicting finding.
2. By the impugned judgment, the learned Special Judge, Keonjhar has
convicted the appellant – Soumya Ranjan Pattnaik under Sections 376 and
506 of the Indian Penal Code (for short “I.P.C.”) and sentenced him to
undergo R.I. for a period of ten years and to pay a fine of Rs.50,000/-, in
default, to undergo R.I. for a further period of three years under Section 376
of IPC and R.I. for a period of one year and to pay a fine of Rs.5000/-, in
default, to undergo R.I. for a further period of three months respectively. The
learned trial court has convicted the appellant – Subash Pattnaik under
Section 506 of I.P.C. and sentenced him to undergo R.I. for one year and to
pay a fine of Rs.5000/-, in default, to undergo R.I. for a further period of
three months with further direction to pay the aforesaid fine amount, if
realized from the appellants, to the victim as compensation. The learned trial
court, however, found the appellants not guilty of the charge under Section
3(1)(x) of the S.C. & S.T. (P.A.) Act.
3. The facts of the case as disclosed by the prosecution are that an F.I.R.
was lodged on 26.03.2007 at Soso Police Station incorporating, inter-alia,
that the victim is a rustic illiterate Harijan spinster, aged about fourteen years,
she was impregnated by appellant - Soumya Ranjan Pattnaik who finding her
alone in her house, committed sexual intercourse by force on a day about five
months preceding the date of filing of F.I.R. on 26.03.2007. It was under
threat. Subsequently, thereafter on two other subsequent occasions the said
appellant also subjected the victim to forcible sexual intercourse. Being under
terrible fear, the victim could not divulge such act before her parents. Once,
the local A.N.M. disclosed before the victim’s mother that her daughter is
impregnated, the crestfallen mother then confronted the victim who divulged
before her as to what had happened. The victim’s mother immediately rushed
to the house of the appellants and when questioned the appellant – Subash
Pattnaik as to why his son committed such a barbarous sexual act against an
innocent minor girl, he threatened to torch the house and to drive out them
from the village. Notwithstanding such threat, the victim’s mother
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
immediately rushed to the Police Station and lodged the F.I.R. Thereafter,
investigation was taken up and on completion thereof, charge-sheet was filed
against the appellants before the S.D.J.M., Anandapur. In accordance with
law the case was committed to the Special Court. After considering the
materials brought on record and hearing the parties, the appellants were
charged for the aforesaid offence. When the charge was read over and
explained, the appellants pleaded not guilty and claimed for trial. The learned
trial court after conclusion of the trial convicted the appellants as aforesaid.
4. Heard the learned counsel for the parties at length.
5. The learned counsel for the appellants would submit that there being
no substantial material to hold that the victim was below sixteen years, there
being inordinate delay of more than five months in lodging of F.I.R. and the
version of the victim being not verses from bible, the conclusion of guilt
recorded by the learned trial court is unsustainable.
6. Per contra, the learned counsel for the State submits that there is
overwhelming material on record to hold that the victim is less than sixteen
years of age where the consent being immaterial, the judgment of conviction
and order of sentence do not call for any further consideration.
7. Before dilating upon the question raised, at the outset, I would like to
examine the materials on record to ascertain whether finding of the learned
lower Court that the victim was less than sixteen years of age is correct ?
It is not disputed before me that the victim and her parents are
illiterate rustic Harijans. The evidence of the victim’s mother, P.W.4 would
go to show that the victim was 14 years old on the day when she was sexually
assaulted by appellant - Soumya Ranjan Pattnaik. She has given her age as
“42 years” on the date of her examination in Court on 17.12.2009. The victim
who has been examined as P.W.6 on 17.12.2009, has stated on oath that she
was 17 years old on that date and at the time of occurrence she was 14 years
old. P.W.8 is the Medical Officer who with reference to the X-ray taken and
ossification test of the victim by the Radiologist opined that the age of the
victim was in between 14 to 17 years on the date of her examination. His
report is admitted as Ext.3. In the F.I.R. it is mentioned that the victim was 14
years old on the date of first coitus. This is the gist of the evidence brought on
record to establish that the victim was less than sixteen years old on the date
of alleged occurrence when on the first occasion the appellant - Soumya
Ranjan Pattnaik subjected her to sexual assault. Admittedly, no birth
653
SOUMYA RANJAN PATTANAIK-V- STATE [S.PUJAHARI, J.]
8. When it is brought on record that the victim was sixteen years and
less on the day when she was subjected to forcible sexual intercourse by the
appellant - Soumya Ranjan Pattnaik, her evidence on oath is to be considered
on such background keeping in mind that she is an illiterate rustic Harijan
girl. The learned trial court had elaborately discussed the evidence of the
victim and her mother. When I sifted that evidence, I find that she has given a
vivid narration of the event notwithstanding that she is a rustic Harijan. She
has deposed that her parents being labourer by profession, they usually
remained absent from the home. On one such occasion at about 11 a.m. she
reached home from pond where she had been to wash utensils, the appellant -
Soumya Ranjan Pattnaik who was concealed in the house, suddenly gagged
her mouth by a cloth, tied her hands by a rope, undressed her and forcibly
raped her. Since he threatened her to kill his younger brother if she divulged
such incident before her parents, out of fear, she remained dumb. Her
evidence further reveals that in two subsequent events the said appellant also
putting her under such threat, committed sexual intercourse despite her
repeated objection. She has also deposed that after few months thereafter
when she developed some symptoms, she approached the local A.N.M.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
where she ascertained from her that she was pregnant by five months. The
A.N.M. also disclosed such fact before her mother whereafter the victim
divulged everything before her mother explaining the reasons as to why she
concealed such fact before them. Though the victim was subjected to cross-
examination, but nothing elicited to discard her version outright. She denied
the defence suggestion that appellant - Soumya Ranjan Pattnaik was not the
author of that alleged pregnancy. Taking a leaf out of the evidence of the
victim, her mother, P.W.4 has given a detail description of the events as to
how she ascertained the factum of pregnancy from the local A.N.M. around 3
p.m. when she was coming from nearby forest with a bundle of firewood. She
has also stated that on arrival home, being questioned, the victim narrated
before her inculpating the appellant - Soumya Ranjan Pattnaik as the person
who subjected her to rape and as to the circumstances in which she concealed
the fact before them. Her evidence further reveals that when she rushed to the
house of the appellants, the appellant - Soumya Ranjan Pattnaik denied his
involvement and appellant – Subash Pattnaik threatened her to burn her house
and oust her from village. She has proved the F.I.R. marked as Ext.1 and her
signature therein marked as Ext.1/1. This is the gist of evidence adduced to
inculpate the appellants with the offence charged.
11. Reverting back to the evidence of P.W.4, that sworn testimony does
not show that she was ever felt alarmed from the word uttered by the
appellant – Subash Pattnaik. I do not find any clear and cogent materials from
such evidence of P.W.4 to hold the appellants guilty of the charge under
Section 506 of IPC. The learned trial court, as it appears, erred in law while
holding the appellant guilty of the charge under Section 506 of IPC. The
conviction of the appellants under Section 506 of IPC is, therefore,
unsustainable and liable to be set-aside.
12. Now coming to the extent of sentence imposed under Section 376 of
IPC against the appellant - Soumya Ranjan Pattnaik, I am of the considered
opinion that in the peculiar facts and circumstances, if the substantive
sentence of imprisonment is reduced to seven years maintaining the fine
amount of Rs.50,000/- that would meet the ends of justice.
13. Resultantly, CRLA No.472 of 2010 filed by the appellant – Subash
Pattnaik is allowed. However, CRLA No.551 of 2010 filed by the appellant -
Soumya Ranjan Pattnaik is allowed in part. The substantive sentence imposed
under Section 376 of IPC against the appellant - Soumya Ranjan Pattnaik is
reduced to seven years R.I. and fine amount of Rs.50,000/- with default
sentence are maintained. The fine amount of Rs.50,000/- (rupees fifty
thousand), if realized, shall be paid to the victim as compensation. L.C.R.
received be sent back forthwith along with a copy of this Judgment.
CRLA No. 472/10 is allowed.
CRLA No. 551/10, allowed in part.
Such suit is barred before the Civil Court and the family Court is only
competent to decide such suit.
In this case learned trial court is not correct in rejecting the
application filed by the wife under order 7 Rule 11 C.P.C. – Held, the
impugned order is set aside – Application under order 7, Rule 11 is
allowed, declaring that the suit filed by the husband is not maintainable
before the Civil Court. (Para 8)
Case Laws Referred to :-
1. AIR 2016 SC 2161 : (Balaram Yadav vrs. Fulmaniya Yadav)
2. AIR 2003 SC 2525 : (K.A.Abdul Jaleel vrs. T.A. Sahida),
3. AIR 2010 Kerala 130 : (Sindhu Sidharthan vrs. K.K.Sidharthan)
4. AIR 2002 Karnataka 399 : (H.P.Lakshmidevaraje vrs. G.P.Asharani Alias
Nandini)
plaintiffs, where their correct address i.e. Talamali Sahi, Puri” was
printed and in the set of cards printed for the relatives of the
Defendants, the address of the Plaintiffs was intentionally and
deliberately printed, as “Khurda Town”. Copies of the marriage
invitation cards of both verities printed by the Defendant No.2 are
(Anexure-P1 Colly) and the copy of the marriage card of the Plaintiff
No.1 is (Annexure-P2).
iii. The defendants had changed their ancestral residence from
“Dolamandap Sahi”, Puri to the present rented accommodation, only
before few days of marriage. The Defendant No.2 and 3, also forced
the Plaintiffs to proceed the marriage negotiations very fact, without
waiting the Defendant No.1’s LL.B. examination (from 29.7.2013 to
22.8.2013) and even without waiting the probation period of six
months i.e. up to 27.7.2013 of the Plaintiff No.1. It is pertinent to
mention that the intention behind the aforesaid concealment was to
keep in secret about the material facts that the Defendant No.1 was/is
suffering from mental disorder. The Defendants had full knowledge
of its falsity and the deceit and fraud constituting the false statement
and mis-representation were made willfully by the Defendants and
reliance on the said false statement was made by the Plaintiffs,
thereby causing loss to them.
5. On 26.6.2013, the marriage between the Plaintiff No.1 and
Defendant No.1 was solemnized. Starting from the day one of the
marriage, the Defendant No.1 exhibited a wide array of symptoms of
mental disorder including insomnia, irritability, tendency to cause
trouble by suspecting others’ character and behaved in a very
unnatural and abnormal manner. When the Plaintiff No.1 intimated
the said abnormal behavior of the Defendant No.1 to the Defendant
No.2 and 3, they confessed the same. Instead of giving any solution,
they started planting thoughts in the mind of Defendant No.1, against
the Plaintiffs, in order to gain control over her and to promote
disharmony in her married life. In the circumstances, the marriage
was not consummated and the Plaintiff No.1 did not go for
honeymoon and even the marriage, was not registered. On 5.7.2013,
at about 7.30 P.M., the Defendant No.1 called the Defendant No.2 and
3 to the Plaintiff No.1’s house and in their presence, the Defendant
No.1, due to her mental disorder, got excited and was unable to make
differentiation between elders and younger in the family of the
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
7. Now looking to the decisions cited by the learned counsel for the
petitioners, this Court finds, in the case of K.A.Abdul Jaleel (supra), in
paragraphs-10, 11, 12, 13 & 14, Hon’ble apex Court has observed as follows
:-
“10. The Family Courts Act was enacted to provide for the
establishment of Family Courts with a view to promote conciliation
in, and secure speedy settlement of, disputes relating to marriage and
family affairs and for matters connected therewith. From a perusal of
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
the Statement of Objects and Reasons, it appears that the said Act,
inter alia, seeks to exclusively provide within the jurisdiction of the
Family Courts the matters relating to the property of the spouses or
either of them. Section 7 of the Act provides for the jurisdiction of the
Family Court in respect of suits and proceedings as referred to in the
Explanation appended thereto. Explanation (c) appended to Section
7 refers to a suit or proceeding between the parties to a marriage with
respect to the property of the parties or of either of them.
11. The fact of the matter, as noticed hereinbefore, clearly shows
that the dispute between the parties to the marriage arose out of the
properties claimed by one spouse against the other. The respondent
herein made a categorical statement to the effect that the properties
were purchased out the amount paid in cash or by way of ornaments
and the source of consideration for purchasing the properties
described in Schedules 'A' and 'B' of the suit having been borne out of
the same, the appellant herein was merely a trustee in relation thereto
and could not have claimed any independent interest thereupon. It is
also apparent that whereas the agreement marked as Exhibit A1 was
executed on 17.09.1994, the appellant pronounced Talaq on
01.11.1995. The wordings 'disputes relating to marriage and family
affairs and for matters connected therewith' in the view of this Court
must be given a broad construction. The Statement of Objects and
Reasons, as referred to hereinbefore, would clearly go to show that
the jurisdiction of the Family Court extends, inter alia, in relation to
properties of spouses or of either of them which would clearly mean
that the properties claimed by the parties thereto as a spouse of other;
irrespective of the claim whether property is claimed during the
subsistence of a marriage or otherwise.
12. The submission of the learned counsel to the effect that this
Court should read the words "a suit or proceeding between the parties
to a marriage" as parties to a subsisting marriage, in our considered
view would lead to miscarriage of justice.
13. The Family Court was set up for settlement of family disputes.
The reason for enactment of the said Act was to set up a court which
would deal with disputes concerning the family by adopting an
approach radically different from that adopted in ordinary civil
proceedings. The said Act was enacted despite the fact that Order 32A
667
SUBHASHREE PANDA-V- PRASANTA KUMAR PANDA [B. RATH, J.]
Revision allowed.
669
2017 (II) ILR - CUT- 669
BISWANATH RATH, J.
W.P.(C) NO. 19283 OF 2016
HATA BEHERA ………Petitioners
.Vrs.
COLLECTOR. KHURDA & ORS. ………Opp. Parties
5 referring to the sale deed appearing at Annexure-4 submitted that the sale
deed has a clear mentioning of the land involved therein and not only that the
sale deed also contained a clear statement regarding the use of interest in the
common area as well as facilities provided to the vendee. Sri Baug, learned
counsel further contended that the order at Annexure-5 is not only contrary
to the material information available in the instrument but also based on non-
application of mind. Similarly, attacking the order at Annexure-6 passed by
the appellate authority, Sri Baug, learned counsel contended that since the
multistoried building has already been constructed with due permission of
the competent authority over the disputed land with status of the land being
homestead, as appearing in khatian, matter remains only for sale of flats.
So, there is no question of sale of land in any case any further except
mentioning of proportionate share in the respective sale deeds and therefore,
the appellate authority dismissing the appeal following the provisions of
O.L.R. Act is against law. Further, the appellate authority has also travelled
beyond the questions raised by the original authority and under the
circumstance, Sri Baug, requested this Court for interfering in both the
orders and issuing necessary mandamus facilitating registration of the
portion of the flat involving Annexure-4.
5. Sri Behera, learned Additional Standing Counsel appearing for the
State referring to the provisions contained in Sub-Section 4 of Section 22 of
the O.L.R. Act, while objecting the submissions of the learned counsel for
the petitioner submitted that for the provision contained therein, the sale
deed since involved land belonging to Scheduled Caste, must be
accompanied by the written permission of the Revenue Officer for such
transfer. Further, referring to the counter affidavit and the pleadings therein,
Sri Behera, learned Additional Standing Counsel contended that the
provision of O.L.R. Act is very much applicable to the present case and thus
contended that there is no infirmity in either of the impugned orders leaving
any scope for this Court for interfering in the same.
6. Considering the rival contention of the parties, this Court finds,
there is no dispute that the disputed land following the declaration in the
khatian not only remains in the status of Gharabari but also remains under
the planning of Bhubaneswar Sahar and thus coming under the control of
Municipal Corporation, Bhubaneswar as well as Bhubaneswar Development
Authority. Further, the record-of-right discloses the land involved is at
Mouza-Bhubaneswar Sahar, Unit No.41, Chandrasekharpur. This area
having already come under the Comprehensive Development Plan area of
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
Scheduled Tribe willing to pay the market price for the land is not
available, and in case of a gift unless he is satisfied about the bona
fides thereof.
(2) The State Government may having regard to the law and custom
applicable to any area prior to the date of commencement of this Act
by notification direct that the restrictions provided in subsection (1)
shall not apply to lands situated in such area or belonging to any
particular tribe throughout the State or in any part of it.
(3) Except with the written permission of the Revenue Officer, no
such holding shall be sold in execution of a decree to any person not
belonging to a Scheduled Tribe. (4) Not withstanding anything
contained in any other law for the time being in force where any
document required to be registered under the provisions of clause (a)
to clause (e) of sub-section (1) of section 17 of the Registration Act,
1908 purports to effect transfer of a holding or part thereof by a raiyat
belonging to a Scheduled Tribe in favour of a person not belonging to
a Scheduled Tribe, no registering officer appointed under that Act
shall register any such document, unless such document is
accompanied by the written permission of the Revenue Officer for
such transfer.
(5) The provisions contained in sub-sections (1) to (4) shall apply,
mutatis mutandis, to the transfer of a holding or part thereof of a
raiyat belonging to the Scheduled Caste.
(6) Nothing in this section shall apply - (a) to any sale in execution of
a money decree passed, or to any transfer by way of mortgage
executed, in favour of any scheduled bank or in favour of any bank to
which the Orissa Co-operative Societies Act, 1962 applies; and (b) to
any transfer by a member of a Scheduled Tribe within a Scheduled
Area.
Reading of the provision contained at Section 22 of the O.L.R. Act
leaves no doubt that any transaction of holding or part thereof by a raiyat
belonging to a Scheduled Caste to a non-Scheduled Caste shall remain void
unless it accompanies a written permission of the Revenue Officer for such
transfer.
7. The definition “holding” as placed in Sub-Section-11 of Section 2
of the O.L.R. Act reads as hereunder:
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
which is also a Court of Session, the proviso to sub-section (2) of section 202
of the Cr.P.C. has been flouted.
The proviso of sub-section (2) of section 202 of Cr.P.C which deals
with postponement of issue of process, comes under Chapter XV. When it
appears to the Magistrate that the offence complained of is triable by the
Court of Session, he shall call upon the complainant to produce all his
witnesses and examine them on oath. While interpreting this proviso, a
Division Bench of this Court in the case of Charan Rout -Vrs.- Prafulla
Kumar Mangaraj reported in (1996) 11 Orissa Criminal Reports 322
held as follows:-
“8. The choice being that of the complainant, he may choose not to
examine himself. Consequences of such non-examination are to be
considered by the Court during trial. Effect of non-examination of a
particular witness is a matter which comes for scrutiny during trial.
Similar would be the process in case of non-examination of
complainant. But there is no statutory mandate for the Magistrate to
direct complainant to examine himself. His duty ends by calling upon
the complainant to produce all his witnesses. The question whom the
complainant would choose to examine and effect of non-examination
of any particular witness are not dealt with in the proviso to sub-
section (2) of section 202.
9. In our view, therefore, the Magistrate has no statutory obligation to
call upon the complainant to examine himself as a witness. He is only
required to call upon the complainant to produce all his witnesses and
examine them on oath. He cannot force the complainant to examine
himself. The expression "call upon'' means essentially "require",
"direct". What is to be directed under the proviso is the production of
all the witnesses, and their examination on oath.”
In case of Shivjee Singh -Vrs.- Nagendra Tiwary reported in
(2010) 46 Orissa Criminal Reports (SC) 798, it is held that the use of the
word “shall” in proviso to section 202 (2) of Cr.P.C. is prima facie indicative
of mandatory character of the provision contained therein, but a closer and
critical analysis thereof along with other provisions contained in Chapter XV
and sections 226 and 227 and section 465 would clearly show that non-
examination on oath of any or some of the witnesses cited by the complainant
is, by itself, not sufficient to denude the concerned Magistrate of the
jurisdiction to pass an order for taking cognizance and issuance of process.
679
RAMESH SETHI-V- KUMARI BABITA NAIK [S. K.SAHOO, J.]
The word “all” appearing in proviso to section 202 (2) is qualified by the
word “his”. This implies that the complainant is not bound to examine all the
witnesses named in the complaint or whose names are disclosed in response
to the order passed by the Magistrate. In other words, only those witnesses
are required to be examined whom the complainant considers material to
make out a prima facie case for issue of process. The choice being that of the
complainant, he may choose not to examine other witnesses.The consequence
of such non-examination is to be considered at the trial and not at the stage of
issuing process. It is further held that examination of all the witnesses cited in
the complaint or whose names are disclosed by the complainant in
furtherance of the direction given by the Magistrate in terms of proviso to
section 202(2) of Cr.P.C. is not a condition precedent for taking cognizance
and issue of process against the persons named as accused in the complaint.
Thus, the complainant is not bound to examine himself during inquiry
under section 202 of Cr.P.C. after recording of his initial statement under
section 200 of Cr.P.C. The complainant is also not bound to examine all the
witnesses named in the complaint petition even if it is a case triable by a
Court of Session and he is at liberty to examine any of them and decline the
rest by filing a memo. The Magistrate cannot compel the complainant to
examine himself or all or any of his witnesses. On the prayer of the
complainant, the Magistrate has power to summon witnesses during inquiry.
The provision is mandatory in the sense that only the witnesses whose
statements are recorded either under section 200 of Cr.P.C. or 202 of Cr.P.C.
shall be permitted to be examined before the Court of Session otherwise it
would be a surprise to the accused and he will be seriously prejudiced during
trial in the absence of any previous statements of such witnesses.
In case of Vidyadharan -Vrs.- State of Kerala (2004) 27 Orissa
Criminal Reports (SC) 11 while dealing with 1989 Act, it has been held as
follows:-
“12. Section 14 of the Act says that:
“for the purpose of providing for speedy trial, the State Government
shall, with the concurrence of the Chief Justice of the High Court, by
notification in the Official Gazette, specify for each district a Court of
Session to be a Special Court to try the offences under this Act."
13. So, it is for trial of the offences under the Act that a particular
Court of Session in each district is sought to be specified as a Special
Court. Though the word 'trial' is not defined either in the Code or in
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Not only in the complaint petition, the complainant has mentioned her
caste as ‘Pana’ and that she was residing at Harijan Sahi, Gayagauda but also
she has stated in her evidence that she is ‘Pana’ by caste. As per section
3(1)(x) of the 1989 Act, whoever, not being a member of a scheduled caste or
a scheduled tribe intentionally insults or intimidates with intent to humiliate a
member of a scheduled caste or a scheduled tribe in any place within public
view shall be punished with imprisonment for a term which shall not be less
than six months but which may extend to five years and with fine.
Thus there is prima facie material that the complainant-opp.party no.1
is a member of scheduled caste and the occurrence in question took place in a
public place within public view which attracts the ingredients of the offence
and therefore, no illegality has been committed by the learned Magistrate in
taking cognizance of such offence.
Therefore, I find no fault with the impugned order passed by the
learned Magistrate in rejecting the petition filed by the petitioners to recall
the order of taking cognizance and issuance of process.
8. No doubt the notice has returned undelivered with an endorsement
that opp.party no.1 is dead since long. The complaint case is now to be
committed to the Court of Session as per the provisions under sections 208
and 209 of Cr.P.C. in view of the decision of the Hon’ble Supreme Court in
case of Gangula Ashok –Vrs.- State of A.P. reported in (2000) 18 Orissa
Criminal Reports (SC) 364 and it is to be tried before a Special Court. The
Special Public Prosecutor has to conduct the case.
In case of Ashwin Nanubhai Vyas -Vrs.-State of Maharashtra
reported in AIR 1967 SC 983 where the question came up for determination
was that when the offences under sections 493/496 of the Indian Penal Code
which are exclusively triable by Court of Session, what would be the effect
of the death of a complainant on an inquiry under Chapter XVIII in respect of
offences requiring a complaint by the person aggrieved, after the complaint
has been filed, it was held as follows:-
“6. Mr. Keswani, however, contends that section 198 provides that
the cognizance of the case can only be taken on the complaint of a
person aggrieved and the only exception to this general rule is where
the complainant is a woman, who according to the customs and
manners of the country, ought not to be compelled to appear in
public, or where such person is under the age of eighteen years or is
an idiot or lunatic, or is from sickness or infirmity unable to make a
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ODISHA SAW MILLS AND SAW PITS (CONTROL) ACT, 1991 – Ss. 14, 17
Timber smuggling activities – Prosecution report prepared by
the Forester was forwarded by the Conservator of Forests to the Court
– Magistrate took cognizance u/s. 14 of the Act, 1991 – Order
challenged on the ground that the Court can not take cognizance for
any offence under the Act, 1991, unless the Licensing Officer or any
person authorized by the State Government or the Licensing Officer
upon enquiry finds sufficient reason to believe that an offence has
been so committed and shall make a report to the Court within thirty
days from the date of receipt of the complaint as provided U/s. 17 of
the Act.
In this case, the Conservator of Forests has simply forwarded
the prosecution report to the Court much after the period of thirty days
which is not in compliance of section 17 of the Act – Held, in the
absence of any enquiry U/s. 17(2) of the Act, 1991 and in the absence of
any finding by the Licensing Officer that there is sufficient reason to
believe that an offence has been committed under the Act, 1991, the
impugned order passed by the learned JMFC, mechanically taking
cognizance of the offence is quashed.
For Petitioners : Miss. Deepali Mohapatra
For Opp.Parties : Mr. Chitta Ranjan Swain, A.S.C.
Date of Hearing : 17. 04.2017
Date of Judgment: 17.04.2017
JUDGMENT
S. K. SAHOO, J.
Heard Miss Deepali Mohapatra, learned counsel for the petitioners
and Mr. Chitta Ranjan Swain, learned Addl. Standing counsel for the State.
The petitioners Ramesh Chandra Sabat and Jivan Chandra Pattanaik
have filed this application under section 482 of Cr.P.C. challenging the
impugned order dated 04.12.2004 passed by the learned J.M.F.C., Aska in
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
2(b) C.C. Case No.11 of 2004 in taking cognizance of offence under section
14 of the Orissa Saw Mills and Saw Pits (Control) Act, 1991 (hereafter for
short ‘1991 Act’).
The sole contention raised by the learned counsel for the petitioners
while challenging the impugned order is that as per section 17(1) of the 1991
Act, no Court shall take cognizance of any offence punishable under the 1991
Act except on a report in writing of the facts constituting such offence made
by Licensing Officer or any person duly authorized by the State Government
or the Licensing Officer in that behalf. If any other person makes a complaint
in writing to the Licensing Officer or to any authorized person then as per
sub-section (2) of section 17, the Licensing Officer or the authorized person
shall conduct an enquiry and finding sufficient reason to believe that an
offence has been so committed, shall make a report to the Court within thirty
days from the date of receipt of the complaint. It is contended by Miss
Mohapatra that the Court cannot take cognizance of any of the offence under
1991 Act except as provided under section 17. She contended that in the
present case, the offence was detected on 21.01.2004 and the Forester of
Sherogodo Section prepared the prosecution report on 20.05.2004 and then it
was placed before the Forest Range Officer, Aska, Ganjam who forwarded
the report on 10.06.2004 to the Conservator of Forests who in turn forwarded
it to the learned J.M.F.C., Aska on 20.11.2004. According to the learned
counsel for the petitioners, both the provisions i.e. sub-section (1) and sub-
section (2) of section 17 of the 1991 Act have not been followed in the case
and therefore, the prosecution report has no sanctity in the eye of law and the
learned J.M.F.C., Aska should not have taken cognizance of offence under
section 14 of the 1991 Act on the basis of such prosecution report.
On 20.03.2017 after recording the submissions made by the learned
counsel for both the parties, this Court directed the learned counsel for the
State to take specific instruction as to whether the State Government or the
Licensing Officer has authorized anybody under section 17 of the 1991 Act
to submit a report in writing before the Court to take cognizance of offence.
The learned counsel for the State, Mr. Swain placed the letter dated
23.03.2017 of the D.F.O., Ghumsur South Division wherein it is indicated
that the State Government or Licensing Officer has not authorized anybody
under section 17 of the 1991 Act but the D.F.O., Ghumusur South Division
has authorized the Forest Range Officer, Deputy Range Officer, Forester and
field staff of Ghumusur South Division to participate in the protection of
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RAMESH CH. SABAT-V- STATE OF ORISSA [S. K.SAHOO, J.]
forests and to curb the timber smuggling activities and to conduct raids on
illegal saw mill premises etc.
In view of sub-section (1) of section 17 of 1991 Act, a Court as
enumerated under section 18 of the said Act can take cognizance of any
offence punishable under 1991 Act only on the report in writing of the facts
constituting of such offence of the following persons:-
(i) Licensing Officer;
(ii) Any person duly authorized by the State Government;
(iii) Any person authorized by the Licensing Officer.
As per section 2(e) of 1991 Act, “Licensing Officer” means licensing
officer appointed under section 3. As per the section 3 of the 1991 Act, any
officer not below the rank of the Divisional Forest Officer can be appointed
as a Licensing Officer by the State Government by notification.
The other persons, who are not coming under any of the above
categories as per section 17(1) of 1991 Act, cannot submit a report to the
Court directly for taking cognizance of offence. Such persons have to make a
complaint in writing alleging the commission of an offence under 1991 Act
either to the Licensing Officer or to the person authorized under sub-section
(1) of section 17. Thereafter, the procedure as laid down under sub-section
(2) of section 17 has to be followed. The Licensing Officer or the authorized
person shall conduct an enquiry and if he finds sufficient reason to believe
that an offence has been so committed, he shall make a report to the Court
within thirty days from the date of receipt of the complaint. A patently
regulatory imposition in the matter of lodging of a report for such offence is
discernible assuredly to obviate frivolous and wanton complaints by all and
sundry. Therefore, in every circumstance, the report of the Licensing Officer
or that of the person duly authorized either by the State Government or the
Licensing Officer is necessary for a Court to take cognizance of any offence
punishable under 1991 Act.
On the basis of the instruction received by the learned counsel for the
State, it is very clear that in view of the authorization by the D.F.O., Ghumsur
South Division, though there is no prohibition on the part of the Forest Range
Officer or the Forester to conduct raid in the illegal saw mill premises and to
participate in the forest protection and to curb the timber smuggling activities
but they cannot directly make a report in writing to the Court to take
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
cognizance of offence under the 1991 Act in view of the bar under section 17
of the 1991 Act.
The Forester in this case has submitted the prosecution report to the
Forest Range Officer who in turn has forwarded it to the Conservator of
Forests on 10.06.2004. The prosecution report prepared by the Forester which
was forwarded to the Court of learned J.M.F.C., Aska by the Conservator of
Forests cannot be said to be a report in writing by the Licensing Officer or by
the any person duly authorized by the State Government or the Licensing
Officer in that behalf in consonance with sub-section (1) of section 17 of
1991 Act. The Conservator of Forests has not conducted any enquiry after
receipt of the report of the Forester to ascertain as to whether there are
sufficient reason to believe that an offence under 1991 Act has been
committed or not and that to within thirty days from the date of receipt of the
prosecution report. It appears that much after the stipulated period of thirty
days, only on 20.11.2004 the Conservator of Forests has simply forwarded
the prosecution report to the Court of learned J.M.F.C., Aska, Ganjam.
In absence of any enquiry as contemplated under sub-section (2) of
section 17 of the 1991 Act and in absence of any finding by the Licensing
Officer that there is sufficient reason to believe that an offence has been
committed under the 1991 Act, when the prosecution report prepared by the
Forester was forwarded to the Court by the Conservator of Forests five
months after its receipt from the Forest Range Officer, I am of the view that
the prosecution report which has been submitted in this case is not in
consonance with the provision under section 17 of the 1991 Act. Therefore,
the learned J.M.F.C., Aska has committed illegality in accepting such
prosecution report and taking cognizance of the offence basing on such
report. When there is a specific bar for taking cognizance, the Court should
have been more careful while accepting such prosecution report and should
not have mechanically taken cognizance of the offence under section 14 of
the 1991 Act.
Therefore, the impugned order suffers from non-application of mind
and cannot be sustained in the eye of law and in order to prevent abuse of the
process and to secure the ends of justice, invoking the inherent power under
section 482 of Cr.P.C., I am inclined to quash the impugned order.
Accordingly, the CRLMC application is allowed.
Petition allowed.
689
2017 (II) ILR - CUT- 689
S.K. SAHOO, J.
CRLREV NO. 71 OF 2017
KISHORE KUMAR CHOUDHURY ……..Petitioner
.Vrs.
STATE OF ORISSA ……..Opp. Party
30.06.2016 in rejecting the petition under section 457 of Cr.P.C. filed by the
petitioner for release of his white colour Toyota ETIOS bearing Registration
No.OD-02V-0053.
Mr. Amulya Ratna Panda, learned counsel for the petitioner
submitted that the case was instituted on 30.06.2016 on the basis of the first
information report lodged by one Dhiren Kumar Behera, officer in charge,
Phiringia Police Station against six accused persons namely Sagar Swain,
Haribandhu Kanhar, Pratap Kumar Swain, Jagadish Sahani, Santosh Kumar
Jena and Subash Chandra Chandan which was registered under sections
20(b)(ii)(C) and 29 of the N.D.P.S. Act and in connection with such offence,
the vehicle of the petitioner was seized on 30.06.2016.
The petition under section 457 of Cr.P.C. filed by the petitioner was
rejected by the learned Sessions Judge, Phulbani on the ground that though
there was no quarrel that the petitioner is the registered owner of the vehicle
but section 60(3) of the N.D.P.S. Act provides that a conveyance used in
carrying any narcotic drug is liable for confiscation, unless the owner proves
that it was used without his knowledge or connivance or of his agent or the
person in charge of the conveyance and that each of them had taken
reasonable precaution against such use. It was further held that whether or
not the petitioner had knowledge of the conveyance for being used for
transporting the narcotic drug and whether he had taken precaution against
such use is a matter to be decided during the trial of the case and since the
vehicle was found carrying contraband ganja and the petitioner had not
furnished any material to indicate that the vehicle was being used as a taxi
for hire and that accused Jagadish Sahani was engaged as a driver for the
petitioner, therefore, the Court held there was no prima facie material on
record to show that the petitioner had no knowledge of the conveyance being
used for transportation of the narcotic drugs and accordingly, the petition
under section 457 of Cr.P.C. was rejected.
Learned counsel for the petitioner contended that after the seizure of
the vehicle since 30.06.2016, the vehicle is lying in an unattended condition
in the Phiringia Police Station premises in open air being exposed to sun and
rain and the condition of the vehicle is likely to be deteriorated and since
there is no bar under the N.D.P.S. Act for interim release of the vehicle and
confiscation, if any, in terms of section 60(3) of the N.D.P.S. Act may be
done only after the conclusion of trial, therefore, unless the seized vehicle is
released in favour of the petitioner, he will be seriously prejudiced
691
KISHORE KUMAR CHOUDHURY-V- STATE [S. K.SAHOO, J.]
that on proof of commission of offence and that the vehicle was used
in such commission, at the conclusion of trial, the vehicle in question
shall be confiscated. The confiscation of a vehicle ensures to the
benefit of the State. If not confiscated, the property in question has to
be returned or released in favour of the rightful owner entitled for
possession or to the person from whom it was seized. In case the
property is not released and the trial continues for long time, its value
gets diminished due to damage caused by exposure to sun and rain
and in that even whether it is confiscated or not confiscated, no body
gains anything and, on the contrary, in the event of confiscation, the
State would stand to lose and in the event of no confiscation, the
owner will be the loser. This is the reason for which in the case of
Sunderbhai Ambala Desai -Vrs.- State of Gujurat, (2003) 24
OCR (SC) 444, the Hon’ble Supreme Court has stipulated guidelines
for prompt interim release of the vehicle seized in connection with
the commission of an offence.
No provision in the N.D.P.S. Act has been brought to the notice of
the Court which bars interim release of the vehicle where the owner
has been implicated in the offence as one of the accused.”
In the case of Balabhadra Nayak (supra), it is held as follows:-
“There is no other provisions in the Cr.P.C. except Section 457
Cr.P.C. for passing order for interim release of the vehicle by the
criminal Court. In case the words “Police Officer” occurring in
Section 457(1) Cr.P.C. is given a restricted meaning so as to exclude
officers of other departments like Excise etc. who are invested with
power to investigate into the offence, effect seizure and launch
prosecution and to report such seizure to the criminal Court, it would
cause injustice to the persons claiming to be entitled to custody of the
property. Therefore, the words “Police Officer” in Section 457
Cr.P.C. must include in Excise Officer reporting such seizure to a
criminal Court in connection with the enquiry or trial of any criminal
case.
Section 60(3) of the N.D.P.S. Act is no bar for interim release of the
vehicle as the said provision is only substantive in nature and speaks
of the liability of the vehicle to be confiscated where the owner fails
to prove that it was used without his knowledge or connivance or the
knowledge and connivance of his aget in charge of the vehicle.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
In the light of the discussions made above, I allow the revision and
set aside the impugned order and direct the learned Sessions Judge -
cum- Special Jduge, Ganjam, Berhampur to release the vehicle in
question in favour of the petitioner after being satisfied about the
petitioner’s ownership over the vehicle in question.”
Mr. Deepak Kumar, learned Addl. Standing Counsel for the State opposed
the prayer for release of the vehicle on the ground that it is involved in the
commission of an offence under the N.D.P.S. Act but does not dispute the
legal position as specified by this Court that in absence of any bar for interim
release of the vehicle under N.D.P.S. Act, the Court can exercise its power
under section 457 of Cr.P.C. for interim release of the vehicle in favour of
the rightful owner.
In view of the submissions made by the learned counsel for the
respective parties and taking into account the ratio laid down in the aforesaid
cases, I am of the view that the learned Sessions Judge was not justified in
rejecting the petition under section 457 of Cr.P.C. relying on the provision
under section 60(3) of the N.D.P.S. Act. The conditions stipulated for not
confiscating the vehicle after the end of trial as per section 60(3) of the
N.D.P.S. Act i.e. it was so used without the knowledge or connivance of the
owner himself, his agent, if any and the person-in-charge of the vehicle and
that each of them had taken all reasonable precautions against such use, is
not applicable at the stage of consideration of interim release of the vehicle
under section 457 of Cr.P.C.
Accordingly, the impugned order passed by the learned Sessions
Judge, Phulbani in Criminal Miscellaneous Case No.9 of 2016 which arises
out of G.R. Case No.79 of 2016 of the learned Special Judge, Phulbani
corresponding to Phiringia P.S. Case No.84 dated 30.06.2016 is not
sustainable in the eye of law and the same is hereby set aside.
It is directed that the vehicle i.e. white colour Toyota ETIOS bearing
Registration No.OD-02V-0053 shall be released in favour of the petitioner
immediately subject to the following conditions:-
(i) the petitioner shall produce the original registration certificate,
insurance paper before the concerned police station which shall be
verified properly and true attested copies thereof shall be retained by
the investigating officer/I.I.C. of the police station;
695
KISHORE KUMAR CHOUDHURY-V- STATE [S. K.SAHOO, J.]
That you on 22nd day of May, 2007 lodged F.I.R. before D.S.P.,
Vigilance, Bolangir who is a public servant that Junior Engineer
Subanath Majhi was demanding bribe from you, falsely intending
D.S.P. Vigilance to investigate the matter which he would not have
investigated had he known that your allegation is false and thereby
committed an offence punishable under section 182 of the Indian
Penal Code and within my cognizance.”
4. Mr. H.S. Mishra, learned counsel for the petitioner while challenging
the impugned order dated 19.07.2016 passed by the learned Trial Court in
framing the charge, emphatically contended that it suffers from non-
application of judicial mind and the ingredients of the offences are not
attracted in the facts and circumstances of the case and the charge has been
framed in a mechanical manner without keeping in view the provisions laid
down under section 195(1)(a)(i) of Cr.P.C. and section 132 of the Evidence
Act. The learned counsel for the petitioner relied upon the decision of the
Hon’ble Supreme Court in case of R. Dineshkumar @ Deena -Vrs.- State
reported in A.I.R. 2015 S.C. 1816.
Mr. Sangram Das, learned Standing Counsel for the Vigilance
Department on the other hand supported the impugned order for framing
charge by the learned Trial Court and assiduously contended that the
petitioner who was the star witness on behalf of the prosecution and at whose
instance, the prosecution was launched stated falsehood before the learned
Trial Court on oath in favour of the accused retracting from his previous
statements under sections 161 and 164 of Cr.P.C. which led to the acquittal
of the accused and his statement that he forcibly thrust the tainted money into
the pocket of the accused and while he was returning back, the accused
brought out the money from his pocket and called him and told him to take
back the money and at that time the vigilance officials arrived there and
challenged the accused to have demanded and accepted the bribe money from
him, is contrary to the statements made before the police and Magistrate and
therefore, the learned Trial Court was justified in framing the charge. The
learned Standing Counsel for the Vigilance Department relied upon a
699
KAMAL KUMAR NANDA-V- STATE OF ORISSA (VIG.) [S. K.SAHOO, J.]
Coming to the other charges i.e. under sections 181 and 182 of the
Indian Penal Code, the two sections read as follows:-
“181. False statement on oath or affirmation to public servant or
person authorized to administer an oath or affirmation- Whoever,
being legally bound by an oath [or affirmation] to state the truth on
any subject to any public servant or other person authorized by law to
administer such oath [or affirmation], makes, to such public servant
or other person as aforesaid, touching that subject, any statement
which is false, and which he either knows or believes to be false or
does not believe to be true, shall be punished with imprisonment of
either description for a term which may extend to three years, and
shall also be liable to fine.
182. False information, with intent to cause public servant to use
his lawful power to the injury of another person- Whoever gives
to any public servant any information which he knows or believes to
be false, intending thereby to cause, or knowing it to be likely that he
will thereby cause, such public servant-
(a) to do or omit anything which such public servant ought not to do
or omit if the true state of facts respecting which such information is
given were known by him, or
(b) to use the lawful power of such public servant to the injury or
annoyance of any person,
shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to
one thousand rupees, or with both.”
Section 195(1)(a)(i) of the Code of Criminal Procedure states that no
Court shall take cognizance of any offence punishable under sections 172 to
188 (both inclusive) of the Indian Penal Code except on the complaint in
writing of the public servant concerned or of some other public servant to
whom he is administratively subordinate. Obviously offences under sections
181 and 182 of the Indian Penal Code come within the purview of section
195(1)(a)(i) of Cr.P.C. This section is one of the sections which prohibit a
Court from taking cognizance of certain offences unless and until a
complaint has been made by some particular authority or person. As the
section creates an absolute bar against the Court taking cognizance of the
offence except in the manner provided by the section, if the Court takes
cognizance against the provision, the cognizance should be illegal and
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
that the answer to such question will incriminate or may tend directly
or indirectly to expose him to a penalty or forfeiture of any kind. The
safeguard to this compulsion is that no such answer which the
witness is compelled to give exposes him to any arrest or prosecution
or can it be proved against him in any criminal proceeding except a
prosecution for giving false evidence by such answer. In other words,
if the customs authorities treated Ethyl Wong as a witness and
produced her in Court, Ethyl Wong was bound to answer all
questions and could not be prosecuted for her answers. Mr.
Jethmalani's argument that the Magistrate should have promptly put
her in the dock because of her incriminating answers overlooks
section 132 (Proviso). In India, the privilege of refusing to answer
has been removed so that temptation to tell a lie may be avoided but
it was necessary to give this protection. The protection is further
fortified by Article 20(3) which says that no person accused of any
offence shall be compelled to be a witness against himself. This
article protects a person who is accused of an offence and not those
questioned as witnesses. A person who voluntarily answers questions
from the witness box waives the privilege which is against being
compelled to be a witness against himself because he is then not a
witness against himself but against others. Section 132 of the Indian
Evidence Act sufficiently protects him since his testimony does not
go against himself.”
In case of R. Dineshkumar alias Deena -Vrs.- State reported in
A.I.R. 2015 S.C. 1816, the Hon’ble Supreme Court has held as follows:-
“36. On the other hand, both Justice Ayyar and Justice Kernan opined
that the compulsion is the obligation arising out of law, but not the
compulsion imposed by the Judge.
“It seems to me that the Legislature in India adopted this
principle, repealed the law of privilege, and thereby obviated the
necessity for an inquiry as to how the answer to a particular question
might criminate a witness, and gave him an indemnity by prohibiting
his answer from being used in evidence against him and thus secured
the benefit of his answer to the cause of justice, and the benefit of the
rule, that no one shall be compelled to criminate himself, to the
witness when a criminal proceeding is instituted against him. The
conclusion I come to is that Section 132 abolishes the law of
privilege and creates an obligation in a witness to answer every
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
Section 132 of the Evidence Act abolishes the law of privileges and
creates an obligation on a witness to answer any question material to the
issue, whether the answer criminates him or not, and gives him a right, as
correlated to that duty, to claim that answer shall not be admitted in evidence
against him in criminal prosecution. The proviso to the section lays down that
if a witness is compelled to give an answer, he shall not be liable for arrest or
prosecution on that statement and that statement will be not proved in any
criminal proceeding except for perjury for that very statement. Of course, the
witness is protected only if he gives the answer under compulsion but if he
answers voluntarily, he loses the protection. Therefore, when a witness is
summoned in a criminal case, he is legally bound to answer the questions
including the questions which are likely to criminate him directly or
indirectly but no answer in criminal case given by a witness on compulsion
can criminate him accordingly. However, if a witness during course of his
examination in Court, voluntarily states something and thereby gives certain
incriminating answers, such answers will subject him to criminal prosecution
and in such case, the proviso to section 132 of the Evidence Act will not
come to his rescue. Section 132 of the Evidence Act does not apply to a
707
KAMAL KUMAR NANDA-V- STATE OF ORISSA (VIG.) [S. K.SAHOO, J.]
DR. D.P.CHOUDHURY, J.
In O.J.C. Nos.15285 and 17356 of 2001, W.P.(C) No.10423 of 2003,
W.P.(C) No.12694 of 2005, challenge has been made with regard to illegal
collection of market fees by the Regulated Market Committee (hereinafter
called “the RMC”) under Orissa Agricultural Produce Markets Act, 1956 (in
short “the Act, 1956”). Since the question of law arising out of all these writ
petitions is common, they are being disposed of by this common order.
2. The factual matrix leading to the case of the petitioners in all the
above writ petitions is that the petitioners are trading companies dealing with
supply of Kendu Leaves to Sri Lanka. The petitioners receive orders from the
buyers from Sri Lanka and supply the same after procuring the Kendu Leaves
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
sale of Kendu Leaves within the State of Orissa. But, during hearing of the
writ petitions, petitioners, in the above cases, have submitted not to press the
issue relating to vires of the notification dated 25.11.1988 issued under
Section 26 of the Act, 1956.
7. In O.J.C. No.8758 of 1996, O.F.D.C. is the petitioner and it acts as a
forest contractor under the permission of the State Government and takes up
the trade and distribution of forest produce as allotted to them by State
Government. So far as trading of Kendu Leaves is concerned, the petitioner-
Corporation is appointed as an agent of the Government to sell the Kendu
Leaves collected by the Forest Department. The collection and sale of Kendu
Leaves is governed by the Act, 1961 and the Rules made thereunder and the
Corporation used to make bundles according to their size and quality and
then issued the auction sale notice of Kendu Leaves and stored in different
godowns at different places. It is alleged, inter alia, that after Kendu Leaves
being made as agricultural produce under the Act, the RMCs of respective
areas are collecting the market fees from the buyers who are none other than
the BIDI manufacturers. The federation of the buyers approached the
petitioner-Corporation but the RMCs continued to collect the market fees on
Kendu Leaves supplied by the Corporation to the buyers. The petitioner-
Corporation made prayer on the similar manner to issue Writ of Mandamus
to the opposite parties-RMCs for not collecting the market fees by detaining
the vehicle carrying Kendu Leaves by the purchasers or by the Corporation at
the check gates with the consequential relief to refund the amount already
collected.
8. On contrary, opposite party-RMCs of different places have filed
counter affidavit stating that under Section 26 of the Act, 1956, the Kendu
Leaves have been added as agricultural produce in the schedule of the Act by
the State Government in its notification dated 25.11.1988. Under the Act, the
RMCs are competent to collect the market fee on the agricultural produce as
enumerated in the Schedule of the Act. On the other hand, under Section 11
of the Act, 1956 provisions have been made for collection of the market fee.
After such Kendu Leaves added as an agricultural produce, the RMCs are
competent to levy the market fee upon the petitioners. It is the case of the
RMCs that OFDC used to call the auction and in the auction, the petitioners
after became successful bidder to procure Kendu Leaves and they carry the
same through the market area of the respective RMCs. Section 11 of the Act
authorizes the RMCs to levy and collect such fees from every items of the
agricultural produce marketed in the market area or leaving its market yard.
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M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
The purpose and object of setting up of market area with the specified
performance to look into the interest of purchasers of agricultural produce so
that they can get the best competitive price in the open market and they are
not to pay the middlemen.
9. It is the further case of the RMCs that the legislature has enacted the
Orissa Kendu Leaves (Control of Trade) Rules, 1962 (hereinafter called as
“the Rules, 1962”) with the purpose that the State used to collect the Kendu
Leaves grown by any person either in Government land or in private land and
pay the fees for the said collection to the pluckers as well as to private
growers. But the said collection cannot be equated with the purchase by the
State because after the Kendu Leave are collected, they are processed and
after processing, they have been packed which is known as Kendu Leaves
coming under the meaning of “agricultural produce”. Even if the agricultural
produce is termed as “forest produce” under Orissa Forest Act, 1972, the
Kendu Leaves cannot be seized to be “agricultural produce”.
10. The aims and object of the three State Act, i.e, Orissa Forest Act,
Orissa Kendu Leaves (Control and Trade) Act, 1961 and the present Act,
1956 are different from each other. The Forest Act has got object of
preservation and development of all forest produce and to increase the forest
produce and as such to regulate them. Similarly, the Orissa Kendu Leaves
(Control and Trade) Act, 1961 is enacted to provide for regulation and trade
in Kendu Leaves by creation of state monopoly of such State. The purpose of
the present Act, 1956 is to check unfair trade practices and undue exploitation
of agricultural producers from the middlemen. It is also the object of this Act
to collect fee which should be utilized for the interest of the agriculturists.
11. Be it stated that under Section 11 of the Act, 1956 read with Rule 48
of the Rules, 1958 made thereunder, the Market Committee is empowered to
levy market fee on any notified agricultural produce which are sold or
brought for sale or for storage in market yard for which every agricultural
produce coming within the area of market are leviable. Even though the
purchase is not taken place in the market area, it shall be presumed that every
agricultural produce including the Kendu Leaves brought within the market
area is for the purpose of buying or selling. Sub-section(6)(b) of Section 4 of
the Orissa Agricultural Produce Markets (Amendment) Act, 1984 specifically
states that when any agricultural produce brought into any market area for the
purpose of processing only, or for export, is not processed or exported
therefrom within thirty days from the date of its arrival therein, it shall, until
the contrary is proved, be presumed to have been brought into the market
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area for buying or selling. So, until contrary is proved the agricultural
produce brought into market area is within the control of RMCs and as such
entail levy of fees. This Court vide judgment dated 24.1.1992 passed in OJC
No.4359 of 1992 has categorically laid down the dictum that unless the
contrary is proved, the presumption is drawn that transaction took place in the
market area because of which the levy of fees becomes realisable. Moreover,
under clause-13 of the auction sale notice, the petitioners who are traders are
liable to pay the duties, sales tax and other tax etc. over and above the sale
price as per law for which the RMC are also entitled to levy the fee even if
they had paid duties on Kendu Leaves they bought for export. It is, therefore,
stated that the collection of revenue by RMCs from the petitioners who trade
on Kendu leaves are justifiable and at no cost, it is illegal, when the
objectives and reasons of the three State Acts are different. So, it is prayed to
dismiss the writ petitions.
12. The opposite parties 1 to 4 have filed counter affidavit similar to the
above counter filed by the RMCs. These opposite parties filed the Gazette
Notification wherein under Section 26 of the Act, 1956 the State Government
has added Sal Leaves and Kendu Leaves under the heading Grass, Fodder,
Forest and other miscellaneous items as agricultural produce specified in the
Schedule of the Act. They take the plea that since the State Government is
competent to add any forest produce as agricultural produce to the Schedule
of the Act, 1956, it has been justifiably added.
13. SUBMISSION
Mr.R.P.Kar, learned counsel for some of the petitioners submitted that
the issue in question has already been set at rest by the decision of this Court
in the case of M/s. I.T.C. Limited and another –V- State of Orissa and
others (OJC NO.5989 of 1991) and according to him, the Division Bench of
this Court has categorically held that the petitioner-company in that case
being allowed to lift the stock of Sal Seeds from various godowns including
Keonjhar godown, which has been situated in the market area of keonjhar
Regulated Market Committee but the same being not marketed within the
market area, levy of market fee by the concerned RMC was of without
jurisdiction. In that case, this Court has relied upon the decision in OJC
No.3511 of 1989. So, he submitted that since in the present cases, the
petitioners have simply transported the Kendu Leaves from the godown of
OFDC through the market area under RMC without the same being marketed
in the market area, the RMCs have no power to levy the market fee. He also
715
M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
drew the attention of this Court to the case of M/s.Ganesh Rice Mills and
another –V- Attabira Regulated Market Committee and others; 1991 (II)
OLR 58 where Their Lordships have observed that the Market Committee is
competent to levy and collect market fees on agricultural produce, marketed
in the area and in that case, since the purchase of paddy has taken place
outside the market area, the marketing thus taken place beyond the market
area and as such, not within competence of the Marketing Committee to levy
fee thereon and in that case also, it is observed that merely because a portion
of National Highway falls within the market area, it would have no authority
to restrict movement of the agricultural produces on the National Highway
and collect market fee on purchases that had been effected outside the market
area.
14. Mr. Kar also stressed on the decision of the Hon’ble Supreme Court
in the case of Agricultural Market Committee, Andhra Pradesh and others
–V- M.K.Exports, Andhra Pradesh and others; (2011) 13 SCC 290; where
Their Lordships, at paragraph-16, have observed that the fee is levied by the
Market Committee on sale or purchase of any notified agricultural produce or
livestock or products of livestock in the notified market area by virtue of
Section 12(1) of the A.P.Agricultural (Produce and Livestock) Markets Act,
1966. So, he submitted that the Market Act has got main elements of sale or
purchase within the market area so as to attract levy of fee by the concerned
RMC but not otherwise. Same analogy is also applicable to the present case.
15. Mr.Kar, learned counsel for some of the petitioners also drew the
attention to the decision of this Court in the case of Deochand Champalal
and others –V- Chairman, Nowarangpur Market Committee and another;
1973 ILR 277 where the Division Bench of this Court have been pleased to
follow the decision of the Hon’ble Supreme Court in the case of Mohammad
Hussain Gulam Mohammad and another –V- State of Bombay and
another; AIR 1962 SC 97 where Their Lordships have held that under
Section 11 of the Act, 1956, there are two restrictions on the power of the
Market Committee and the first restriction is that the fee fixed must be within
the maxima prescribed by the Rules and the second restriction is that fee has
to be levied not on the produce brought into but only on such produce as is
actually sold. So, he submitted that the levy of market fee by the RMC on
the Kendu Leaves or any other material transported by the petitioners or
stored by the petitioners in the market area without having been any buying
or selling thereon is illegal and the opposite parties may be directed to refund
the fees already collected.
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
16. Mr.S.Ray, learned counsel for some of the petitioners, while adopting
the arguments of Mr.Kar, submitted that the Act, 1956 being the Act with the
aim and object to levy fees on buying and selling of agricultural produce in
the market area, it has no any jurisdiction to the agricultural produce brought
into the market area for its transportation to the outside the State and
particularly they are exported to Sri Lanka. He submitted that the Kendu
Leaves transacted by the petitioners for whom he is appearing were
transported after procuring the same from depot of the State Government.
They were transported to export to Sri Lanka but the check gates of the
different RMC in the State of Orissa forcibly collected the market fee which
is not legal and proper. He submitted that when there is no transaction within
the market area and the petitioners have already paid the sale price at their
auction centre at Sambalpur and Bhubaneswar and they are again to pay
export fee at a destination of shipping to Sri Lanka, the RMCs are not entitled
to levy and collect any fee thereon.
17. Learned counsel for the rest of the petitioners, without making
further arguments, have thoroughly supported the arguments of the above
petitioners.
18. Learned Additional Government Advocate and the learned counsel
appearing for the RMCs submitted that the aim and object of the Act, 1956 is
very specific and it is meant to curtail the harassment to the agricultural
producers and abolition of middlemen interference. They further submitted
that the Act of 1956 is exhaustive and takes care of all the agricultural
producers. They submitted that Section 11 of the Act, 1956 read with Rule 48
of Rules, 1958 direct the Marketing Committee to levy and collect the market
fee from the agricultural producers. Since the petitioners are not agricultural
producers but are traders and they were doing transaction, of course not with
reference to buying and selling but storing and transporting the Kendu
Leaves. They further submitted that the levy of fee is within the competency
of the State Government. It is true that trading of Kendu Leaves is within the
domain of the State Monopoly but that Act, 1961 is meant for protecting the
Kendu Leave producers or growers but not for the petitioner-traders, even if
the petitioner-traders have paid the auction price and used to lift the Kendu
Leaves from the godown of the OFDC situated inside the market area for
their onward transportation to different places outside the State. The word
“marketing” under the Rules framed under the Act, 1956 also denotes the
storing, transporting and other activities by amendment of “marketing” being
brought in 2007.
717
M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
8.2.1957. The said Act was enacted to provide for better regulation of buying
and selling of agricultural produce and the establishment of markets for
agricultural produce in the State of Orissa. When it came first to Statute
Book, there were thirty Sections with a schedule which includes the
agricultural produce as defined under Section 2(1)(i). In that schedule, Sal
Leaves and Kendu Leaves did not find place in the Schedule as agricultural
produce.
24. The aforesaid Act got first amendment in 1984 in respect of certain
provisions particularly Sections 2, 4, 11 and 28 for the purpose of this case.
Section 2(1)(i) has also been amended. On the other hand, “agricultural
produce” means such produce (whether processed or not) of agricultural,
forest, animal husbandry, agriculture, horti-culture and pisciculture as are
specified in the schedule. Similarly, Section 11 of the Act, 1956 has been
amended in the following manner:
“11. It shall be competent for a Market Committee to levy and collect
such fees (hereinafter referred to as the market fees) not being less
than one rupees from every purchaser for every hundred rupee worth
of agricultural produce marketed in the market area in such manner
as may be prescribed and at such rate as may be specified in the bye-
laws:
Provided that the rate of fees to be specified in the bye-laws shall not
exceed three percent of the value of agricultural produce sold in the
markets within the market area:
Provided further that no such fees shall be levied and collected in the
same market area in relation to any agricultural produce in respect of
which fees under this section have already been levied and collected
therein:
Explanation-For the purpose of this section all notified agricultural
produce leaving a market yard shall unless the contrary is proved, be
presumed to have been brought within such yard by the person in
possession of such produce.”
25. Similarly the Act, 1956 was further amended in 2006 by incorporating
certain provisions with regard to the establishment of private markets and
contract firms.
26. In accordance with the provisions of Section 27 of the Act, the State
Government made Rules in 1958 which has been published in the Gazette on
719
M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
30.5.1958. In the Rules, the words “market” and “market yard” have been
defined. That Rule also prescribes the manner of levy and collection of fees
vide Rule 48 which is very important for the purpose of this case. Thereafter,
the Rules, 1958 have been amended on 29.11.1974 in the following manner:
“48. Market fees. (1) The Market Committee shall levy and collect
fees on agricultural produce brought and sold in the market area at
such rates as may be specified in the bye-laws.
(2) The market committee shall also levy and collect licence fees
from traders, general commission agents, brokers, weighmen,
measurers, surveyors and other persons operating in the market
according to rates specified in the bye-laws.
(3) No fees shall be levied on agricultural produce brought from out-
side the market area into the market area for use by the industrial
concerns situated in the market area or for export and in respect of
which a declaration has been made and a certificate has been
obtained in Form-IV:
Provided that if such agricultural produce brought into the market
area for export is not exported or removed therefrom before the
expiry for twenty days from the date on which it was so brought, the
market committee shall levy and collect the fees on such agricultural
produce from the person bringing the produce into market area at
such rates as may be specified in the bye-laws.
(4) The seller who is himself the producer of the agricultural produce
offered for sale and the buyer who buys such produce for his own
private and/or household use shall be exempted from payment of any
fees under this rule:
27. Rule 48 has also been amended again on 3.8.1996, which is
reproduced as under:
“48. (1) The Market Committee shall levy and collect market fees
from:
(a) a purchaser notified agricultural produces marketed in the market
area;
(b) The person deemed to be a purchaser under the explanation to
Section 11 of the Act in respect of the notified agricultural produce;
and
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without having any middlemen between the Kendu Leave growers and retail
purchaser. The very object of the Act is to stop the exploitation to the Kendu
Leave growers or Kendu Leave pluckers.
31. After the Kendu Leaves are purchased by the Government or by its
agents, the same are sold or disposed of in the manner as prescribed under
the Orissa Kendu Leave (Control and Trade) Rules.
32. Orissa Forest Act, 1972 also defines the forest produce and the same
includes the Kendu Leaves. The purpose of Indian Forest Act or Orissa
Forest Act is to codify Forest Laws in order to bring same within the scope of
one enactment. The further purpose of the Act is to regulate the transit of the
forest produce and the duty leviable on timber and other forest produce. The
comparison of the above three State Acts amply disclose that the three State
Acts have got different aims and objects without overlapping on each other.
The statutory provisions are to facilitate the common man not to be
exploited. On the other hand, the main purpose of these three State Acts have
got aims of inclusive growth. When the Act, 1958 has got aim of levy and
collect the fee for the larger interest of the respective market, the object of
the Act, 1961 is to stop unfair trade practice by middlemen and facilitate
poor Kendu Leave growers or the pluckers to earn money by selling the
Kendu Leaves to Government or their agents. On the other hand, Indian
Forest Act or Orissa Forest Act, as the case may be, have got aim to make
laws with rational idea to discourage deforestation and encourage
aforestation. Not only this, but also the Forest Act has got object to regulate
the forest produce for its utility but not to allow the same to be removed by
whims of forest dwellers or forest offenders. Thus, the purpose of the three
State Acts are important in their respective jurisdiction.
33. It is reported in the case of Deochand Champalal and others (Supra)
where Their Lordships have been pleased to follow the decision of the
Hon’ble Supreme Court in the case of Mohammad Hussain Gulam
Mohammad and another (Supra) where Their Lordships at paragraph-7
have been pleased to observe in the following manner:
“xx xx xx
There are thus two restrictions on the power of the market committee
under section 11; the first is that the fee fixed must be within the
maxima prescribed by the Rules and naturally till such maxima are
fixed it would not be possible for the market committee to levy fees,
and the second restriction is that fees have to be charged not on the
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M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
within the market area of the opp. party No. 1, it would have no
authority to restrict movement of the agricultural produces on the
National Highway and collect market fee on purchases that had been
effected outside the market area.
xx xx xx xx”
With due regard to the above decision, it appears that if the Kendu
Leaves are transported by vehicle on National Highways which run within
the market area of RMC, then market fee is not chargeable.
35. A Division Bench of this Court in the case of M/s. I.T.C. Limited
and another (Supra) at paragraph-5 have observed in the following manner:
“xx xx xx xx
In this case, the transactions of sale took place in Bhubaneswar and as
per Annexure-3, the petitioner company was allowed to lift the stock
of Sal seeds from various godowns including Keonjhar godown.
Though the Keonjhar godown situates within the ‘Market Area” of
keonjhar Regulated Market Committee, as Sal seeds were not
marketed within the market area, the levy of market fee by opp. Party
no.4 is without jurisdiction. The fees which has already been
collected by the opp. Party no.4 as “Market fee” is, therefore,
refundable to the petitioner.”
36. With due respect to the above decision, it is clear that unless there is
buying and selling inside the market area prior to 2007 amendment, the
properties brought into the market area for the above purpose cannot be said
to be subject matter for levy and collection of fees by RMCs.
37. In another decision in the case of Sri Ramkaran Agarwal and
another –V- Regulated Market Committee, Bhadrak; 74 (1992) CLT 861
where Their Lordships at paragraph-6 have observed as under:
“xxx xxx xxx
Thus, the paddy brought from outside the market area to the
industrial unit of the petitioners shall not be leviable with market
fees, if the same has been brought for use by the industrial unit itself.
In the present case, it has been asserted by the petitioners and not
denied by the opposite party that the paddy which is brought to the
industrial unit is neither brought for sale nor in fact sold as such.
They also allege that the paddy is not brought to the unit for the
purposes of storage. Thus the paddy brought by the petitioners for use
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M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
by their industrial unit itself which is situated within the market area,
according to the plain reading of sub-rule(3) of Rule 48 would be
exempted from levy of market fees.
Xxx xxx xxx”
With due respect to the above decision, it is clear that if the
agricultural produce is brought from outside to the industrial unit which is
situated in the market area for their own use, the same will not be leviable.
38. From the aforesaid discussions, it has been consistently held by the
Hon’ble Supreme Court and this Court that there must be actual purchasing
or selling of the agricultural produce in the market area so as to enable the
RMCs to collect the market fee. Moreover, Rule 48 of the Rules, 1958
amended from time to time has stressed upon within the certain period for
the utilization of the same by industrial unit or export of the same are
exempted. However, the main object and reason is the buying or selling of
the agricultural produces or stored for such purpose in the market area.
39. Now adverting the facts of the batch of cases, it appears that there are
allegations about the collection of market fees by the RMCs without having
jurisdiction. In the counter affidavit, the RMCs have also reiterated that there
is justification of levy of fee to be collected from the petitioners. In the
counter, it is specifically admitted that the Kendu Leaves which are
auctioned at Sambalpur and Bhubaneswar but the godowns of OFDC are
situated in the market area and under Sub-section 6 of Section 4 unless
contrary proved, the Kendu Leave being the agricultural produce brought
within the market area is deemed to have been brought for buying and
selling. At the same time, it is admitted by the opposite parties that actual
purchase of the Kendu Leaves does not take place inside the market area of
their respective RMCs. The contention of the learned counsel for the RMCs
is clear that once the agricultural produce is purportedly brought into the
market area, the respective market committee has got competence to levy the
market fee even if there is no sale or purchase. Also in the counter affidavit,
they have said that even if the petitioners have purchased the Kendu Leaves
for export only but used to lift the same from godown situated within the
market area within a period of 90-150 days for which they are leviable.
40. It is not revealed from the counter that in the cases where the
petitioners have stored the Kendu Leaves after sale or brought for sale and
kept the same beyond thirty days although it is admitted that auction sale of
Kendu Leaves takes place at Sambalpur or Bhubaneswar where the auction
sale is completed after the petitioners purchased the Kendu leaves on being
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INDIAN LAW REPORTS, CUTTACK SERIES [2017]
highest bidders. Section 64(2) of the Sale of Goods Act, 1930 is placed
before for better reference:
“(2) the sale is complete when the auctioneer announces its
completion by the fall of the hammer or in other customary manner;
and, until such announcement is made, any bidder may retract his
bid”
In view of the aforesaid provision, once the auction caller has struck
of the hammer of highest bid, the auction sale is complete irrespective of the
fact that the Kendu Leaves are not lifted then and there but lifted from the
godown of the OFDC inside the market area later on. There it is clear that
Kendu Leaves either have been transported from the godown after sale at
places other than market area or have been only transported through the
market area by carrying the transport permit from the respective State
Government and the agencies for the State Government.
41. Relying upon the decision of the Division Bench of this Court in the
case of M/s.I.T.C. Limited and another (Supra), in the case at hand, even if
godowns of OFDC are situated inside the market area of the respective
RMCs, the Kendu Leaves being not marketed within the market area, levy of
market fee is without jurisdiction. Similarly, following the decision of this
Court in the case of M/s.Ganesh Rice Mills and another (Supra), in the
present cases, the Kendu Leaves being transported on the National Highways
falling within the market area, cannot be said to be leviable.
42. In both the decisions, it is necessary for the RMCs to prove that there
was actual selling or buying of Kendu Leaves inside the market area. But, in
the instant cases, there is no marketing of such Kendu Leaves inside the
market area as observed above.
43. In the case of Agricultural Market Committee, Andhra Pradesh and
others (Supra) where the Hon’ble Supreme Court have observed about the
leviability of the market fee on sale and purchase of agricultural produce
inside the market area so as to attract the concerned Market Act. In the
instant cases, there being no sale or purchase within the market area in
accordance with law, the levy and collection of market fee by the RMCs is
also illegal and improper.
44. Learned Additional Government Advocate, citing the decision of this
Court in the case of Sri Sri Gour Sunder Rice and Oil Mills and another
(Supra), submitted that in absence of proof of declaration about the
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M/S. SRINIWAS TRADING COMPANY-V- STATE [DR. D.P.CHOUDHURY, J.]
properties brought into the market area for the purpose of transaction, the
RMCs can levy the market fee. After going through the facts of that case, it
appears that the petitioners in that case had brought the agricultural produce
into the market area for transaction, but did not produce necessary
declaration and certificate in Form-IV. In the instant case, the facts are
different because the sale and purchase completed by auction took place
outside the market area. Therefore, the aforesaid decision cited by the
learned Additional Government Advocate is not applicable to the facts of
these cases.
45. Thus, in view of the decisions of the Hon’ble Supreme Court as well
as of this Court, there being no any sale or purchase of Kendu Leaves inside
the market area or marketed inside the market area, the genesis of the Act,
1956 being not proved, the levy and collection of market fee upon the Kendu
Leaves from the present petitioners is illegal and improper. Point No.(i) is
answered accordingly.
46. CONCLUSION
Since it has been already observed, as above, that collection of
market fee by the respective RMCs from the petitioners at their respective
check gates are contrary to the legal provisions, this Court is of the view that
the said collection of the market fee is illegal and devoid of jurisdiction and
directs the RMCs not to collect the same. It is, therefore, directed that the
opposite parties-RMCs shall refund the market fee collected so far from the
petitioners within a period of four months to the petitioners from the date of
this judgment failing which the same shall be refunded with interest at the
rate of 9% per annum from the date of collection till the date of actual
payment. The writ petitions are disposed of accordingly. Interim orders, if
any, in the writ petitions stand vacated.
Writ Petitions disposed of.