Citation-6

 1.    Civil Proceeding Code- mere marking of an inadmissible document does not establish its prove. Marking is  a ministerial act and admitting it in evidence is judicial. Smt. Ismailbee vs. Mahtab Saheb Kant. H.C Kalaburagi bench 22.10.2020.

2.     S.106 of Evidence Act- When death takes place inside privacy of house, onus is on residents to give explanation. Jayantilal Verma vs. State of M.P. (Chhat) CRLA 590/2015 19.11.2020.

3.     SARFAESI time limit stipulation for district magistrate to delivery possession of is not mandatory. C. Bright vs. The District Collector Civil A. No.3441/2020 05.11.2020.

4.     Rajnesh vs. Neha

         Guidelines framed by S.C. as to maintenance.

5.     Death Penalty

         It can therefore be summed up –

a.  It is not as if imposition of death penalty is impermissible to be awarded in circumstantial evidence cases, and

b. If the circumstantial evidence is of an unimpeachable character in establishing the guilt of the accused and leads to an exceptional case or the evidence sufficiently convinces the judicial mind that the option of a sentence lesser than death penalty is foreclosed, the death penalty can be imposed Shatrughna Baban Meshram vs. State of Maharashtra 02.11.2020. S.C.

6.     It’s for employer to determine suitability of qualifications. Chief Manager PNB vs. Anit Kumar Das 03.11.2020.

7.     Failure to examine expert Rajesh @ Sarkari vs. State of Hariyan. S.C. 03.11.2020.

8.     Pending of guilt cannot be based purely on refusal to undergo identification parent. Rajesh @ Sarkari vs. State of Hariyan. S.C. 03.11.2020.

9.     An application for review is more restricted than that of an appeal and the court of review has limited jurisdiction as to the definite limit mentioned in order 47 Rule 1 C.P.C. itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review Shri Ram Sahu (D) through LRs vs. Binod Kumar Rawat 03.11.2020.

10.   In absence of pleadings, any amount of evidence will not help the party in a civil suit. Biraji @ Brijraji vs. Surya Pratap 03.11.2020.

11.   Delay in deliver of reasoned judgments violates fundamental right to life. Biraji @ Brijraji vs. Surya Pratap 03.11.2020.

12.   Power u/s 406 Cr.P.C. Umesh Kumar Sharma vs. State of Uttarkhand 16.10.2020.

13.   Satish Chandra Ahuja vs. Sneha Ahuja. S.C. 15.10.2020. Judgment in a criminal case.

         D.V. wife entitled to claim Ri.

14.   167 Cr.P.C. Saravanan vs. State represented by the Inspector of police 15.10.2020 S.C.

15.   State of U.P. vs. Gayatri Prasad Prajapati 15.10.2020.

16.   Related witness if found to be truthful can be the basis of conviction. Karulal vs. state of M.P. 09.10.2020.

17.   If the witnesses are otherwise trustworthy, passed enmity by itself will not discredit any testimony. Karulal vs. state of M.P. 09.10.2020.

18.   Temporary injunction principles  Shree Samsthana Mahabaleshwara Devi Gokarna vs. U.F.M Ananthraj H.C. of Karnatak. 24.08.2020.

19.   Filing of charge sheet (challan) by itself does not entitle an accused to copy of statement recorded u/s 164 Cr.P.C. CRLA. 659/2020 S.C.

20.   Mere inclusion of a candidate in a selection list does not confer upon them a vested right to appointment Commissioner of police vs. Umesh Kumar 07.10.2020.

21.   Menes rea for S.306 I.P.C. cannot be assume to be ostensibly present but as to be visible and conspicuous. Gurcharan Singh vs. State of Punjab 01.10.2020.

22.   Length of sentence or gravity of original crime cannot be sole basis for refusing premature release (S.C.).

23.   Major unmarried daughter not suffering from any physical or mental abnormality not entitled to claim maintenance from father U/s 125 of Cr.P.C. Abhilasha vs. Parkash 15.09.2020.

24.   Second marriage Sri Yusufpatel Patil vs. Smt. Ranjanbi H.C. Karnatak 17.08.2020.

25.   Evidence of official witnesses Rizwan Khan vs. the State of Chhattisgarh 10.09.2020.

26.   Motor accident claims- Compensation for loss of consortium can be awarded to children and parents also. The New India Assurance Company Ltd. Vs. Smt. Somwati 07.09.2020.

27.   Family Settlement and Registration- Ravindar Kaur Grewal vs. Manjit Kaur 31.07.2020.

OLR  JULY, 2022

28.   Order xx Rule 8-

         Decree in suit for partition or separation possession of share- High Court has allowed the appeals and set aside the decree for partition passed by Trial Court- Analyzing number of decisions the Hon’ble Supreme Court held, once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. (SC).  S. Kattukandi Edathil Krishnan & Anr. Vs. Kattukandi Edathil Valsan & Ors.  2022(II) OLR (SC) 187.

29.   Compensation.

         Student while in school fell in drain and succumbed when allowed by the teacher to go outside to answer call of nature – petitioners entitled to compensation of Rs.10.00 lakhs. Sanjay Kumar Mohanty and Another vs. State of Odisha and Others. 2022(II) OLR-38. DOJ 10.05.2022.

30.   Contempt of Court Act.

         Arrayed members of judiciary as parties –Arrayed members of the judiciary as parties to the contempt- It is inappropriate in view of the dicts of Hon’ble Supreme Court of India on numerous occasions. Anjan Kumar Sahoo vs. Shreemayee Acharya & Ors. 20229II) OLR-182. DOJ. 17.12.2021.

31.   Criminal Procedure Code, 1973.

         Section 167(2)- NDPS Act Section 36 A(4)- Petitioners remanded to judicial custody- The Trial Court has been prescribed U/s 167(2) Cr.P.C. as the accused has a bailed the indefeasible right to go on default bail for non-submission of final form within the statutory period and further extension thereof under the provision S.36 A(4) of the NDPS Act- Direction issued accordingly to release the petitioners on default bail subject to such terms and conditions.  Biswambara Kanhar & Ors. Vs. State of Odisha. 2022(II) OLR-163. DOJ. 20.05.2022.

         Section 197 Cr.P.C.

         It is settled law that even when some excess is committed by a Government official while discharging his duty, under such circumstances, sanction would be necessary in terms of section 197 Cr.P.C.- In present case, admitted no sanction has been obtained and placed before the learned court below. Sambit Kumar vs. State of Odisha. 2022(II) OLR-34. DOJ 07.04.2022.

32.   Hindu Marriage Act, 1955.

         Sections 13-B (1)- Dissolution of marriage- Substantial question of law stands in favour of wife mere separate living for any length of time by one party does not amount to desertion on his/her part and the most fundamental and essential element of desertion is the intention on the part of the party deserting the other- Held, Appeal allowed. Puspalata Rout vs. Damodar Rout. 2022(II) OLR-89. DOJ.07.04.2022.

33.   Motor Vehicles Act, 1988.

         Six occupants were travelling in a car-policy coverage was extended to five occupants- Whether insurer is responsible for payment of compensation for any more occupant exceeding five- The amount in respect of the present claimant is thus considered in excess of the liability of the insurer which in so liable to be recovered from the owner. National Insurance Company Ltd. Vs. Sushanta Kumar Dash and Anr. 20229II) OLR-61.DOJ.04.05.2022.

34.   Indian Penal Code,1860.

         Section 506- There is no tenebrosity in the settled position of law that mere threat is not sufficient so as to bring any such act or mischief within the purview of section 506 I.P.C. It any threat is administered without any intent to cause alarm or harm to the person concerned, then the essential ingredients of section 506 I.P.C. cannot be said to have been satisfied. The court arrives at a logical conclusion that the allegation of threat to be true by accepting the same at its free value, then also it has to be held as empty threat and not real one without any serious consequences to follow and offence U/s 506 I.P.C cannot be said to have been attracted. Prasant Mallick vs. State of Odisha and Anr. 2022(II) OLR-13. DOJ.07.04.2022.

35.   It is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. A.V. Papayya Satry vs. Govt. of A.P. (2007) 4 SCC-221.

36.   The principle of “finality of litigation” cannot be passed to be extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The Courts of law are meant for imparting justice between the parties. One who comes to the Court must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, taxevaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation”. S.P. Chengalvaraya Naidu  vs. Jagannath AIR 1994 SC 853.

37.   Interim release of vehicle- Hywa Truck involved in causing road accident. Ld. Magistrate rejected the application for interim release of vehicle without allowing opportunity to the registered owner to provide sufficient security and committed error. Held- matter remanded to get the valuation of the vehicle done. Nityananda Nayak vs. State of Orissa. (2022) 86 OCR-655.

38.   S. 167(2) Cr.P.C. –Default bail- Accused persons allowed to be released on default bail, bail order passed- before filing of bail bonds, charge sheet was filed by I.O.- Ld. Court below refused to accept bail bonds-if the Ld. Magistrate acted illegally- Held, no; the so called indefeasible right granted to accused, but not actually exercised, stood extinguished. Sumanta Sabar vs. State of Odisha. (2022) 86 OCR-667.

39.   It is true that Explanation I to S. 167(2), Cr.P.C. provides that the accused shall be detained in custody so long as hedoes not furnish bail. However, as mentioned supra, the majority opinion in Uday Mohanlal Acharya expressly clarified that explanation I to S. 167(2) applies only to those situations where the accused has availed of his right to default bail and undertaken to furnish bail as directed by the Court, but has subsequently failed to comply with the terms and conditions of the bail order within the time prescribed by the Court. We find ourselves in agreement with the view of the majority. In such a scenario if the prosecution subsequently files a charge sheet, it can be said that the accused has forfeited his right to bail U/s. 167(2) Cr.P.C. Explanation I is only a safeguard to ensure that the accused is not immediately released from custody without complying with the bail order”.  Hitendra Vishnu Thakur and Ors. Vs. State of Maharashtra and Ors. AIR 1994 SC 2623.

40.   It is mandatory for a Court to recall witnesses for further cross-examination if his evidence appears to be essential for just decision of the case. Pidika Sambaru vs. State of Odisha. (2022) 86 OCR-672.

41.   S. 36-A(4) NDPS Act and S. 167 (2) Cr.P.C. If date of remand is to be included in counting statutory period of 180 days- held, date of remand is to be excluded- petitioner filed default bail prior to completion of 180 days- Held, no right of default of bail in favour of accused. Manorajan Das Vs. State of Odisha. (2022) 86 OCR-691.

42.   Injured witness – Evidential value of.

         It is settled possession of law that even the evidence given by one injured eye witness amply corroborated by the medical evidence is more than sufficient to base a finding of guilt. Govinda Chandra Tripathy vs. State of Odisha. (2022) 86 OCR-700.

43.   Evidence of injured witness is entitled to a great weight and very cogent and convincing ground are required to discard the evidence of the injured witness. Ramvilas vs. State of M.P. (2016) 16 SCC-316.

44.   S. 302 I.P.C.- Circumstantial Evidence- Recovery of weapon of offence- Recovery made but not in presence of any independent witness- apart from the evidence of PW11 the investigating Officer, no other reliable evidence is available- Held accused acquitted.

         Defence witness. There was no cross-examination of defence witness- The causing of the fatal blow bicycle accident as stated by defence witness cannot be ruled out. Jayaram Sahoo vs. State of Odisha. (2022) 86 OCR-705.

45.   S. 376 & 303 I.P.C. – Protection of Children from sexual Offences Act, S. 6- Evidence Act, S. 3 and 27- Rape and murder-Circumstantial evidence- Accused alleged to have committed rape and murder of 3 year old minor girl- Prosecution witnesses deposed that immediately after performance of worship by accused in order to find missing victim girl, accused informed them that victim was inside sack in bushes near a pole beside road- Evidence of witnesses corroborated by I.O.- Recovery of body on information given by accused duly proved by memorandum of accused- Black jeans half pant of victim and gamchha of accused recovered from dumping area- Prosecution proved its case beyond reasonable doubt as proven circumstances establish chain of circumstances- Conviction, proper. Lochan Shrivas Vs. State of Chhatisgarh. (2022) 86 OCR (SC)-718.

46.   This court (SC) deprecates practice of High Courts disposing of criminal appeals by adopting shout cuts.

         Merely because a long period has lapsed by the time of decided cannot be a ground to award the punishment which is disproportionate and inadequate. State of Rajsthan vs. Banwarilal .(2022) 86 OCR (SC)-796.

47.   S. 2(wa), S.439 Cr.P.C.  Victims right to have- victim as defined U/s. 2(wa) is entitled to be held at stage of adjudication of bail application of accused.

         Code of Criminal Procedure Code, 1973- S. 439- Bail- Grant of- Accused allegedly conspired with his aides and confidants on receiving information regarding gathering of farmers to protest, drove his car into crowd of returning farmers and hit them with intention to kill- Complainants are close relatives of farmers who have lost their lives in incident- Specific case of complainants that their counsel got disconnected from online proceedings and could not make effective submission before High Court not controverted by respondent- Non-consideration of application for rehearing by High court- Held, victim has been denied fair and effective hearing at time of granting bail to accused.  Jagjeet Singh vs. Ashish Mishra @ Monu. (2022) 86 OCR (SC)-837.

48.   Defective framing of charge- effect.

         Offence of murder unlawful assembly. In case of omission or error in framing charge, accused has to show failure of justice/prejudice cause thereby. Mere defect in language or in narration or in form of charge would not render conviction unsustainable, provided accused is not prejudice thereby- Contracts of charges framed against accused shows that ingredients of unlawful assembly are satisfied. It cannot be said that accused prejudiced by non mention of  S.149 IPC in charge sheet.

         Merely because weapon used assault deceased is not recovered cannot be a ground not to rely upon dying declaration recorded before executive Magistrate an duly proved by prosecution conviction cannot be set aside on such ground.

         Deceased died due to septicemia after a period of 30 days of incident while treating treatment in hospital case shall fall U/s. 304 Part-I  IPC. Conviction of accused alter from S.302 IPC to S. 304 Part-I of IPC.

         Merely because 3 persons were charge-sheeted and two persons came to be acquitted cannot be a ground to not to convict accused U/s 148 IPC- Six to seven persons were part of unlawful assembly and they used force or violence- One of them used a deadly weapon, namely, knife and therefore, being part of unlawful assembly, accused can be held to be guilty for offence of rioting- Conviction proper. State of U.P. vs. Subash @ Popu. (2022) 86 OCR (SC)-869.

49.   Though conviction cannot be made merely on admission by accused of circumstance of his visit to house of informant on previous day evening of fateful day- but such admission could lend assurance to evidence of prosecution.

         Last seen- Once theory of last seen together established accused is expected to offer some explanation as to under which circumstance, he had parted company of victim.

         As per medical report of victim, she was raped and injuries were found on private parts of her body-time gape between victim being last seen with accused and time when she was found injured and unconscious in filed was hardly 12 hours- said injuries resulted into her death-prosecution proved close proximity of time when victim was last seen with accused and while victim was found unconscious and injured condition which resulted into her death.

         Fair Trial- Offence of rape and murder- Nothing on record to suggest that due procedure not followed or that accused suffered on account of deprivation of legal aid or legal assistance to him- Senior advocate appearing on behalf of accused at fag end of his arguments that there was no fair trial conducted, without substantiating said submission, cannot be entertained- In absence of any material on record, no inference could be drawn that because of such media pressure, trial was not conducted in fair manner.

         S. 303, 376(2) (i), (m), 376A- Rape and murder- Sentence-Since death of victim caused due to injuries inflicted by accused while committing offence U/s 376(2)(i), (m), provisions of s. 376A of IPC would also get attracted which had come into force w.e.f. 03.02.2013 i.e. prior to alleged incident in question and which provided for wide range of punishments up to death penalty- Accused was already charged for offence which is punishable with death or life imprisonment- Hence, non-mentioning of S.376A in charge could not be said to have misled accused, nor any failure of justice could be said to have occasioned.  Mohd. Firoz vs. State of M.P. (2022) 86 OCR (SC)-880.

50.   When the prayer for pre arrest bail is declined, it is for the investigating agency to take further steps in the matter. Whether the Investigating agency requires custodial interrogation or not is also to be primarily examined by that agency alone. Ordinarily no such mandatory order or directions should be issued while rejecting anticipatory bail that the accused persons have to be arrested. S. Senthil Kumar vs. State of Tamilnadu. (2022) 86 OCR (SC)-931.

51.   S. 205 IPC. Offence U/s 138 N.I. Act under trial. Reason assigned by the court that the amount involved is very huge does not appear to be correct. Srikant Patel vs. State of Odisha. (2022) 86 OCR-932.

ORL JUNE, 2022

52.   Statement recorded U/s 164 Cr.P.C. is not substantive piece of evidence. It can be used only for corroboration and contradiction.

         The principles discussed in above decisions make it clear that 164 statement of the witness is not substantive piece of evidence of facts and the same cannot be used so- The earlier statement recorded U/s 164 Cr.P.C. can only be used for corroboration or contradiction – The prosecution can place reliance on such statements only for the purpose of corroboration and that too, subject to rule of caution and if there are other sufficient evidence before the court. Tuku @ Abdul Naim Khan vs. State of Odisha. 2022(II) OLR-995.

53.   A Promise is intended to be binding, intended to be acted upon, and in fact acted upon is binding. Central London property Trust Ltd. Vs. High Treas house Ltd. (1956) 1 All ER 256.

54.   There is no distinction between a private individual and a public body so far as the doctrine of promissory estoppel is concerned. Century Spg. And Mfg. Co. Ltd v. Ulhasnagar Municipal Council, (1970) 1 SCC 582.

55.   The principle of promissory estoppel would estopp person from backing out of its obligation arising from a solemn promise made by it to the respondent. Gujurat State Financial corporation v. Lotus Hotels, (1983) 3 SCC 379.

56.   Doctrine of promissory estoppel has been evolved by the Courts on the principle of equity to avoid injustice. Ashok Kumar Maheswari v. State of U.P. 1988 SCC LSS 592.

57.   To attract applicability of promissory estoppels a contract in writing is not a necessary requirement. This principle is based on premise that no one can take advantage of its own omission or fault. State of Orissa v. Manglam Timber Products Ltd., (2003) 9 Scale 578.

58.   The Apex Court that ‘Estoppel’ is based on the maxim “allegans contrarir non est audiendus” (a party is not to be heard contrary) and is the spicy of presumption “juries et de jure” (absolute, or conclusive or irrebuttable presumption). B.L. Sreedhar v. K.M. Munireddy, (2003) 2 SCC 355 (365).

59.   In general words, ‘estopeel’ is a principle applicable when one person induces another or intentionally causes the other person to believe something to be true and to act upon such belief as to change his/her position. In such a case, the former shall be stopped from going back on the word given. The principle of estoppels is only applicable in cases where the other party has changed his positions relying upon the representation thereby made. H.R. Basavaraj vs. Canara Bank, (2010) 12 SCC 458.  

60.   Civil Procedure Code, 1908.

         Order 9, Rule 13- It is true that as per law, when an ex-parte decree is set aside and the suit is restored to file, the defendants cannot be relegated to the position prior to the date of hearing of the suit when he was placed ex-parte- In the present case, there was no order and / or decision by the learned Trial Court on the second prayer, namely to allow defendants to file written statement or not- Held, It should have been left to the learned Trial Court to consider the prayer. Sudhir Ranjan Patra vs. Himansu Sekhar Srichandan. 2022(I) OLR (SC)-1010.

61.   Criminal Procedure Code, 1973- S. 374(2) – Appeal against judgment and order finding appellant guilty U/s 20(b) (ii) (c ) of the N.D.P.S. Act- In view of oral as well as documentary evidence, when the land in question stood recorded in names of so many persons and there is no clinching material that the place from where ganja was seized was in exclusive possession of the appellant- From the evidence on record it is apparent that there was no verification of specimen seal impression, which was kept in zima of PW.8 – The mandatory provisions U/s 42 (1) and 42(2) of the NDPS Act has not been complied with. Bijay Naik vs. State of Odisha. 2022(i) OLR- 1018.

62.   Narcotic Drugs and Psychotropic Substances Act, 1985. S. 42- Delayed compliance with satisfactory explanation would have been acceptable compliance of S.42, but since it is a case of total non-compliance of the requirement, the court is of the humble view that the mandatory provision U/s 42(1) and 42(2) of the NDPS Act has not been complied with. Bijay Naik vs. State of Odisha. 2022(i) OLR- 1018.

63.   Constitution of Inda, 1950- Article 226 and 227- Writ- Legality, validity and propriety of order of learned member, Board of Revenue- Petitioner is a tenant under the expropriator- Considered view that the private parties can always bring the illegalities/irregularities to the notice of learned member Board Revenue- The highest revenue authority is duty bound to examine the illegalities and irregularities committed by sub-ordinate authorities- The land in question is a “Jhada Jungle” and no “Ekpadia/Tenant ledger” was submitted by the Ex-proprietor at the time of vesting which is mandatory and after a gap of 28 years an application filed before Tahasildar for settlement of land and taken a ground that perfected his title by way of adverse possession- In the absence of “Ekpadia” or tenant ledger by the Ex-Intermediary, “Hata Pata” produced by the petitioner is a false and frivolous one- No legal sanctity of the document-Whether petitioner having held the property for more than statutory period has acquired occupancy right U/s 22 of Tenancy Act ? – Settled position of law that the petitioner could not have claimed both occupancy right as well as claimed to have perfected his right, title interest by way of adverse possession- No illegality in the impugned order. Bachana Kumari Dei vs. State of Odisha. 2022(I) OLR-1022.

64.   Orissa Estates Abolition act, 1951- S. 8(I), 5(j), 38(B) On failure to comply with the mandatory provision of S.5(i) of the Act by the Ex-intermediary, no vested right is conferred upon Tenant/ Taiyat. Bachana Kumari Dei vs. State of Odisha. 2022(I) OLR-1022.

65.   Orissa Tenancy Act, 1913- S. 22- An occupancy right over the suit land cannot be acquired by adverse possession. Bachana Kumari Dei vs. State of Odisha. 2022(I) OLR-1022.

66.   Limitation Act, 1963- Article 137- Is lapse of time an excuse to refrain from exercising the revisional power unravel fraud and to set it right? – The answer would be no- Held, Writ dismissed. Bachana Kumari Dei vs. State of Odisha. 2022(I) OLR-1022.

67.   Criminal Procedure Code, 1973- S.167 (2)- As it reveals from impugned order and copy of the lower court record that admittedly charge sheet was filed on 16th January 2022- So irrespective  of the date of preparation of the charge sheet, the date of submission before the Court is only relevant for purpose of default bail U/s 167(2) of the Cr.P.C. Pramesh Pradhan @ Rani vs. State of Orissa. 2022(I) OLR-1036.

68.   Civil Procedure Code, 1908- Order 1 Rule 10 read with order 22 Rule 10- Application  challenging 3rd party purchaser for joining as co-plaintiff-On consideration of the rival contention and the nature of the suit and interest of 3rd party the court finds if the plaintiff loses in the Suit, the right created in the 3rd party in the pendency of the suit is also to be covered by the ultimate outcome of the pending suit on consideration of the pleadings in the plaint averment, the contingency requiring filing of suit application has no place to be considered in the trial of the suit- Impugned order set aside. Malati Sahu vs. Gourimani Sahu. 2022(I) OLR-1055.

69.   Service- Promissory estoppels- The principle or promissory estoppels would estop a person from backing out of its allegation arising from a solemn provision made by it to other person – Therefore, the court is of the considered view that the order impugned by the Government withdrawing the service of the petitioners, is hit by the principle of estoppels. R. Ramachandra Rao vs. State of Orissa. 2022(I) OLR- 1059.

70.   Service- Order of Removal- The respondent is responsible for shaping career of young students- What kind of message he will be giving to the students by his conduct based on untruthfulness? – An employee desirous of holding civil post has to act with utmost good faith and truthfulness- Truthfulness cannot be made a causality by an aspirant much more for a candidate aspiring to be a teacher. Government of NCT of Delhi vs. Bheem Singh Meena. 20229I) OLR-(SC)-1083.

71.   Orissa High Court Rules, 1948- Rule 27A- Well settled that the wrong nomenclature or erroneous citation of a provision of law cannot debar a party from having its application considered by the court if it is otherwise legally maintainable. Siba Bisoi vs. State of Odisha. 2022(I) OLR-1088.

72.   Orissa Sales Tax Act, 1947- S.2(g) –Whether the rent collected by the dealer i.e. Gridco for installation for electricity meters will amount to a sale as defined U/s 2(g) of OST Act, 1947- Held, there being no machinery provision in the OST Act enabling the Assessing Officer to determine the sale element separately from the ‘Service element’ in the transaction of renting out of electricity meters, the collection of sales tax on the entire sent would obviously be unsustainable in law- Thus, the collection of meter rent by GRIDCO from its consumer is not sale as define in 2(g) of the OST act and the meter rent so collected is therefore not eligible to sales Tax. State of Orissa rep. by the Commissioner of Commercial Taxes, Orissa, Cuttack vs. M/s. Executive Engineer, GRIDCO, Bhanjanagar.

CLR June, 2022

73.   Held, it is a well settled position of law that the Tahasildars have no authority to either decide the title or to confer title on a person in respect of a Government land. The only duty, the Tahasildars are vested with by law is to enforce and collect land revenue or rent from a person, who has been recognized by the Government as a tenant under the State. Therefore, if a person is not recognized as a tenant by the State Government, a Tahasildar cannot create record and accept rent from him.

74.   Further Held, The tenancy right of raiyat can be recognized statutory only basing upon the records, documents submitted/transferred/ received from Ex-intermediary as provided U/s 5(i) of the Orissa Estate Abolition Act, right, title and interest in a manner other than as has been stated hereinabove, it is open for them to approach common law forum by filing a suit to establish such right, title, interest and possession by establishing the foundational facts supported by cogent/trust worthy evidence in favour of their claims. Biswanath Khunti vs. Member, Board of Revenue, Orissa, Cuttack & Ors. 2022(I) CLR-1035.

75.   Applying the law laid down by a Full Bench of this Court in Debaki Jani’s case (supra) with regard to exercise of suo motu power by an authority, this court is of the considered view that under the first contingency as narrated hereinabove, the private parties can always bring the illegalities/irregularities to the notice of the learned Member,  Board of Revenue,Odisha. The highest revenue authority of the State, is duty bound to examine the illegalities / irregularities committed by Subordinate authorities. Thereafter, the learned Member, Board of Revenue, Odisha, upon preliminary enquiry and subject to the satisfaction may call for records from the Sub-ordinate authorities and he may exercise the Revisional Power as conferred  upon him U/s 38(B) of the Orissa Estate Abolition Act. Bachana Kumari Dei vs. State of Orissa & Ors. 2022(I) CLR-1047.

76.   Odisha Estate Abolitions Act, 1951- S. 38-B-Land in question was recorded as “jhada jungle”- No Ekpadia/Tenant ledger submitted by the Ex-intermediary at the time of vesting in the name of the predecessors-in-interest of the claimants- Although vesting took place in the year 1951 land in question was settled in the name of the H on the basis of an application filed by him after a gap of almost 28 years after vesting-Further the predecessors-in-interest of the claimants had also taken the stand that he had perfected his title over the case land by way of adverse possession- Contention that the order U/s 8(1) of the O.E.A. Act being an administrative order, the same is not revisable U/s 38B of the Act- Held, it cannot be said that the order of settlement in favour of the predecessor of the claimant was strictly U/s 8(1) of the Act. Bachana Kumari Dei vs. State of Orissa & Ors. 2022(I) CLR-1047.

77.   Odisha Estate Abolitions Act, 1951-S.38-B-Exercise of revisional power under the section-Limitation-Though no period of limitation has been provided under the Section for exercising the revisional power the same has to be exercised within a reasonable time. Bachana Kumari Dei vs. State of Orissa & Ors. 2022(I) CLR-1047.

78.   Held, Therefore, the failure on the part of the Ex-Intermediary to submit ‘Ekpadia’/tenant ledger clearly indicates that there was no such register in existence at the time of vesting and that the Petitioner was not a tenant/raiyat under the Ex-Intermediary and the existence of a ‘Hata Patta’ as claimed by the Petitioner is a false and frivolous one. Once a ‘Hata Patta’ is issued by the Ex-Intermediary, the same is recorded either in the ‘Ekpadia’ or tenant ledger maintained by the Ex-Intermediary. In such view of the matter, no provision has been made in the O.E.A. act to call for any application from the tenants to recognize their tenancy or to adjudicate their right U/s 8(1) of the O.E.A. Act. Bachana Kumari Dei vs. State of Orissa & Ors. 2022(I) CLR-1047.

79. Odisha Tenancy Act, 1913- S.22- Occupancy right whether can be acquired by adverse possession. An occupancy right over the suit land cannot be acquired by adverse possession as held by this court in the case of Champa Bati Bewa @ Kabi and others v. Kanhu Mallik and others reported in Vol.33 (1991) O.J.D. 154 (Civil). Bachana Kumari Dei vs. State of Orissa & Ors. 2022(I) CLR-1047.

80.   Code of Civil Procedure, 1908- S.115- RFA filed with petition U/s 5 of the Limitation Act- Petition u/s 5 of the Limitation Act allowed-Civil revision petition challenging the order- Held, the Civil Revision is not maintainable- The meaning and Interpretation of the phrase “other proceedings’ as used in S.115 stated.

         Held, the phrase ‘other proceedings’ can only mean proceedings  of an original nature which are not of the nature of suits, like arbitration proceeding. This phrase cannot include decisions pronounced in appeals and revisions. The words ‘or other proceedings’ have to be read ejusdem generis with the words ‘original suits’ In other words the phrase ‘other proceedings’ will not cover cases arising out of decisions made in the appeals or revisions, If the District Court has not decided in its original jurisdiction then such order is not amenable to the revisional jurisdiction of High Court. While referring to the language of S.115 of the Code of Civil Procedure (Uttar Pradesh Amendment) Act, 1978, which is almost in pari material with the provision of S. 115 of “the Code” as in force in State of Odisha so far as the use of phrase “other proceeding” is concerned, the Supreme Court pronounced clearly that the decisions of the District Courts rendered in appeal or revision are beyond revisional jurisdiction of High Court. But where original decision has been made by the District Court, the High Court’s revisional power will comes into play. Kailash Chandra Panda vs. State of Orissa. 2022(II) CLR-1063.

81.   Code of Civil Procedure, 1908- Order 21 Rule 97- The contingency for bringing an applications under the provision arises when the 3rd party is in possession of the immovable property and his such right is likely to be taken away in the execution of a decree- At the time of moving an application under the provision the petitioner was not in possession of the disputed property- Held, the rejection of application is justified. Rama Lingeswar Swamy Bije vs. Pramila Das & Ors. 2022 (I) CLR-1073.

82.   Code of Civil Procedure, 1908- S.47- The petitioner was not a party to the suit- Held, the petitioner was not entitled to bring any application under the section. Rama Lingeswar Swamy Bije vs. Pramila Das & Ors. 2022 (I) CLR-1073.

83.   Code of Civil Procedure, 1908- Order 8 Rule 1/G.R.C.O. (Civil)Vol.I Chapter I Clause 14- Defendant No.3 alone filed written statement which was hand written-Court directed filing of typed copy of the written statement by all the defendants- The same could not come on record-Issue was framed on the basis of hand written statement-After examination and cross-examination of PW1-Typed written statement by all the defendants with application U/s 151 C.P.C. filed for its acceptance rejected by the Court-Held, the direction in the G.R.C.O. to file pleadings and petitions in English type written is directory is not mandatory and a party can also file pleadings in local vernacular. Debendranath Nayak vs. Bishnu Priya Padhi. 2022(I) CLR-1076.

84.   As regards the next contention advanced on behalf of Opposite Party Nos. 2 to 3 that there is no notification issued by the Government  of India authorizing Chief Judicial Magistrate to exercise powers U/s 14 is concerned, the same is also equally without merit. A perusal of S. 14 is nowhere reflects that the authorities mentioned therein are required to act only after issuance of a notification to that effect. Besides, learned Senior Counsel for the Opposite Parties have not been able to show any provision, whereby a notification was contemplated to be issued for any authority to exercise jurisdiction and/or Chief Judicial Magistrate could only act thereafter. Once the notified provision (S.14) itself enables the authority to exercise jurisdiction, it is sufficient for the said authority to exercise powers as provided for within the ambit of the provision. Consequently, the aforesaid argument of the Opposite party Nos. 2 and 3 cannot sustain and hence is rejected. Bajaj Finance Ltd. Vs. Ali Agency and Ors. 2022 (I) CLR-1079.

85.   Consumer Protection Act, 1986- S. 14- Real Estate (Regulation and Development) Act, 2016- S.18- Refund of amount- When allowed –Apartment buyer’s agreement –Delay compensation clause –Clause providing developer would be liable to pay delay compensation @ Rs.7.5 per square foot which works out to entirely loaded in favour of developer and against allottee-Terms of agreement found to be oppressive, constituting unfair trade practice- Consumer is not bound to accept possession of apartment and can seek refund of amount deposited by her with interest. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor. 2022 (I) CLR (SC)-1091.

86.   Consumer Protection Act, 1986- Ss. 14 and 2(g)- Real Estate (Regulation and Development) Act, 2016- S.18- Refund of amount- Jurisdiction of Commission-Power to district refund of amount and to compensate consumer for deficiency is not delivering apartment as per terms of Agreement is within jurisdiction of Consumer Courts. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor. 2022 (I) CLR (SC)-1091.

87.   Consumer Protection Act, 1986- S.14- Real Estates (Regulation and Development) act, 2016- S.18- Refund of amount- Failure to deliver possession of apartment- Remedial choices of Consumer- Consumer praying for solitary relief for return of amount paid towards purchase of apartment without prayer for alternate relief- S. 14  clearly provides that Commission has power and jurisdiction to direct return of money if consumer so chooses- This position is similar to mandate U/s 18- Act of 1986 and RERA Act neither exclude nor contradict each other and they must be read harmoniously to subserve their common purpose- Freedom to choose necessary relief is of Consumer and it is the duty of Courts to honour it- Commission has correctly exercises its power and jurisdiction while granting refund of amount with interest. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor. 2022 (I) CLR (SC)-1091.

88.   Real Estate (Regulation and Development) Act, 2016- S.18- Refund of amount- Payment of interest- Interest has to be paid from date of deposit of amount as interest payable on amount deposited is to be restitutionary and also compensatory- Order of Commission directing interest on refund payable from dates of last deposit, erroneous- Interest shall be payable @ 6% from date of deposit of amount. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor. 2022 (I) CLR (SC)-1091.

89.   Specific Relief Act, 1963- S.20 and 34- Suit for specific performance- Once the execution of agreement to sell and the payment/receipt of advance substantial scale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff-vendee. P. Ramasubbamma vs. v. Vijayalakshmi. 2022 (I) CLR (SC)-1107.

90.   Limitation Act, 1963- Article 58 and 109; Second Schedule- Alienation of the father challenged by the son- Parties are Hindus, governed by Mitakshara law and the property is ancestral- Period of limitation for challenging such alienation is twelve years from the date the alienee takes possession of the property- Gifts/settlement deed was executed by father of the plaintiff in favour of second defendant on 02.03.1980- Second defendant has taken possession of the property on 22.03.1980 when this settlement deed was registered-Held, the suit filed by plaintiff on 11.10.1991,for challenging this alienation as null and void cannot be held as barred by time. K. C. Laxmana vs. K.C. Chandrappa Gowda. 2022(I) CLR (SC)-1117.

91.   Hindu Law- Joint Family Property- Alienation of the joint family property- Legality of – Where an alienation is not made with the consent of all the coparceners, it is voidable at the instance of the coparceners whose consent has not been obtained. K. C. Laxmana vs. K.C. Chandrappa Gowda. 2022(I) CLR (SC)-1117.

92.   Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972- S.34(1) and 35(2) read with S.2(m)-One case involving chak land appertaining to plot no.444 and 404 and the other case involving chhak land appertaining to plot no.755/1579-Total area of plot no.444 was A1.62 out of which A 0.81 dec. was sold and the total area of plot no.404 was A 1.84 out of which A 0.61 was old to the petitioner in one case and the total area of Plot no. 755/1579 A 0.14 dec. out of which A 0.07 was sold to the petitioner in the other case- Sale deeds whether hit by S. 2(m), 34 & 35 of the Act and are void.

         While taking into consideration the recital in the Sale Deed as well as the contention of the Petitioner’s counsel is that the sale is not creating  a fragmentation of the consolidable land as the vendor has sold only his share of land without carving it out, which means, he contends that he has not sold the specific portion of the land, rather his interest thereon. Further, in this case, the Sale Deed not only specifies the extent of land the vendor has sold through the Regd. Sale Deed, but he has also given the description of the lands sold by indicating the names of the boundary tenants, as such the learned Single Judge has also taken note of the fact that both the Sale Deeds together would construe a patch of land measuring more than one acre. In the said context, it has been categorically observed by the learned Single Judge that the Petitioner does not claim that the lands sold are contiguous to form a single piece of land measuring more than one acre. In view of the aforesaid analysis, the learned Single Judge has rightly come to a conclusion that the Sale Deed has been effected by contravening the provision of S. 34 of OCH & PFL Act and as such both the Sale Deeds are void. Akshaya Kumar Mohanty vs. Pramod Kumar Padhiary. 2022(I) CLR-1132.

93.   Evidence Act, 1872- S. 91 and 92- Deed whether a sale deed or mortgage deed- Recitals of the terms and conditions in the deed is admissible to determine the natural character of the document- Oral evidence is excluded.  Akshaya Kumar Mohanty vs. Pramod Kumar Padhiary. 2022(I) CLR-1132.

94.   Orissa Estates Abolition Act, 1951- S. 7 & 8- Application for settlement of the case land and acceptance of rent on the ground that the predecessor of the applicants was a tenant under the ex-intermediary on the basis of a permanent lease in his favour by the ex-intermediary on 21.3.1994- Application filed 30 years after the vesting- held, the creation and existence of tenancy could not be satisfactorily established. Sukumari Mohanty vs. State of Odisha. 2022(I) CLR-1139.

95.   Court Fees Act, 1870- S. 6, 7(i) and 7(iv)-CPC-Order VII Rule 11- Computation of Court fee payable in suits- Once the suit in question was a money suit for compensation and damages falling under clause (i) of S. 7 of the Act, ad valorem Court fees would be payable on the amount claimed- According to the contents of paragraph 11 of the plaint, the valuation of the suit both for the purpose of Court fees and jurisdiction was fixed at more than Rs.20 Lakhs but Court fees of Rs.50/- was affixed- An undertaking to pay the  Court fees on the sum to be adjudicated as damages by the Court in due course of time was also stated- Held, the suit in question as framed was a money suit for compensation/damages falling under Clause (i) of S.7 or was a suit falling in any of the categories specified in clause (iv) of S. 7 of the Act- Held, the High Court fell in error in setting aside the order passed by the Trial Court whereby it had granted time to the plaintiff respondent to make good the Court fees within a particular period failing which the plaint would stand rejected. State of Punjab vs. Dev Brat Sharma. 2022(I) CLR (SC) 1147.

96.   Land Acquisition Act, 1894- S.4 and 23-Compensation claim- Determination of market price of land- Consent award ought not to have been relied upon and/or considered for the purpose of determining compensation in case of another acquisition. Special Land Acquisition Officer vs. N. Savitha. 2022(I) CLR (SC)-1163.

97.   Indian Succession Act, 1925- Ss. 263, 276 and 278- Petition for Letters of Administration- Grant of Letters of Administration may be revoked for ‘just cause’- Case where ‘the grant was made without citing parties who ought to have been cited’- Appellants sought Letters of Administration of a registered Will dated 23.8.1991 said to have been executed by one ‘N’ in favour of appellant-brother of the testator and his two sons- After the grant of Letters of Administration, another brother of testator filed an application for revocation of the Letters of Administration on the ground that all the legal heirs were not impleaded in the proceedings for the grant of Letters of Administration- Civil Court dismissed the application for revocation but the order was set aside in appeal- Held, the High Court was right in holding that a just cause existed for revoking the grant. Swaminathan vs. Alankamony(Dead) Through Lrs. 2022(I) CLR (SC)-1166.

98.   Transfer of Property Act, 1882-S. 3 and 41-Suit for partition-It is not always necessary for a plaintiff in a suit for partition to seek cancellation of the alienations. Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese Rep By Its Procurator Devssia’s Son Rev. Father Joseph Kappil. 2022(I) CLR (SC)-1176.

99.   Power-of-Attorney Act, 1882- S. 1A and 2-Power of attorney-Unauthorised sale by agent-Appellant, Principal executed general Power of Attorney in favour of her sister- Possession of an agent under a deed of Power of Attorney is also possession of Principal-Any unauthorized sale made by agent will not tantamount to Principal parting with possession. Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese Rep By Its Procurator Devssia’s Son Rev. Father Joseph Kappil. 2022(I) CLR (SC)-1176.

100. Power-of-Attorney Act, 1882- Ss. 1A and 2- Registration Act, S.49-Power of attorney- Rule of interpretation to be adopted while construing-Deed of Power of  Attorney executed by plaintiff-Principal did not contain a clause authorizing agent to sell property though it contained two express provisions, one of leasing out property and another for executing necessary documents if a security had to be offered for any borrowal made by agent- Punctuation marks cannot be made for convey a power of sale-Power of Attorney is to be construed strictly by Court- S.49 of the Act of 1908 cannot amplify or magnify clauses contained in deed of Power of Attorney. Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese Rep By Its Procurator Devssia’s Son Rev. Father Joseph Kappil. 2022(I) CLR (SC)-1176.

101. Hindu Law- Suit for partition- Claim for- It is not always necessary for a plaintiff in a suit for partition to seek cancellation of alienations- Reason behind said principle is that alieness as well as co-sharer are still entitled to sustain alienation to extent of share of co-sharer- It may also be open to alienee, in final decree proceedings, to seek allotment of transferred property, to share of transferor, so that equities are worked out in a fair manner- Findings of High Court that appellant, plaintiff was not entitled to a decree for partition in view of her failure to seek cancellation of alienations, unsustainable- Preliminary decree of partition passed by Trial Court in favour of plaintiff is restored. Umadevi Nambiar vs. Thamarasseri Roman Catholic Diocese Rep By Its Procurator Devssia’s Son Rev. Father Joseph Kappil. 2022(I) CLR (SC)-1176.

102. Defendant No.1 filed an application under O.VII Rule 11, CPC seeking rejection of plaint on the ground that the suit was not maintainable being barred under the provisions of the Specific Relief Act and secondly, the suit was frivolous- Trial Court dismissed the application by refusing to reject the plaint- Revision Petition- Revisional Court set aside the order of the Trial Court and rejected the plaint-Writ petition- High Court set aside the order of the Revisional Court and remanded the matter to the said Court for fresh consideration by holding that the Revisional Court had exceeded its jurisdiction in rejecting the plaint- Held, the High Court was justified in setting aside the order passed by the Revisional Court on premise that the Revisional Court had exceeded its jurisdiction in rejecting the plaint- Plaint filed by the plaintiff is liable to be rejected in exercise of jurisdiction under O.VII R. II C.P.C. Frost International Ltd. vs. Milan Developers and Builders (P) Ltd. 2022(I) CLR (SC)-1182.

CLR July, 2022.

103. While at a theoretical level, it may be possible to contend that State of Odisha is one entity and all the Departments functioned as State of Odisha, the fact remains that in the matter of this nature unless the appropriate Department is impleaded, it cannot be said that the sujit against one Department would tantamount to a suit against the other as well. Orissa State Housing Board, Bhubaneswar vs. Sebati Dei @ Routray (since dead) represented by her LRs. 2022(II) CLR-1.

104. Fraud- Vitiates every solemn act- Fraud and justice never dwell together-If any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Orissa State Housing Board, Bhubaneswar vs. Sebati Dei @ Routray (since dead) represented by her LRs. 2022(II) CLR-1.

105. The Supreme Court of India reiterated the above settled principle in Ram Chandra Singh vs. Savitri Devi (2003) 8 SCC 319 where it was held thus: Orissa State Housing Board, Bhubaneswar vs. Sebati Dei @ Routray (since dead) represented by her LRs. 2022(II) CLR-1.

         “15. Xxx. Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.

         16. xxx Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.

         17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.

         18. A fraudulent  misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.

106. An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Orissa State Housing Board, Bhubaneswar vs. Sebati Dei @ Routray (since dead) represented by her LRs. 2022(II) CLR-1.

107. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Orissa State Housing Board, Bhubaneswar vs. Sebati Dei @ Routray (since dead) represented by her LRs. 2022(II) CLR-1.

108. In A. V. Papayya Sastry v. Govt. of A.P. (2007) 4 SCC 221, the Supreme Court observed.

         “21. Now it is well-settled of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law.” Orissa State Housing Board, Bhubaneswar vs. Sebati Dei @ Routray (since dead) represented by her LRs. 2022(II) CLR-1.

109. Evidence Act, 1872- S.114 Illustration (g) –Non-examination of the plaintiff as a witness- Adverse inference-Whether can be drawn- Suit for eviction of the defendants from the suit land on the ground that the suit property was the private property of the plaintiff where he was performing Durga Puja and that the defendants were performing puja of the deity during festival time and that they have no right or interest in the deity on suit land- Plaintiff examined four witnesses out of whom P.Ws. 1 and 3 were the employees of the plaintiff’s palace establishment, P.W.2 was an advocate of the local for having his residence about 200 cubits from the suit land- Held, it is the quality of the evidence that matters and not the number of witnesses examined and there was no occasion to draw any adverse inference against the plaintiff. Sri Sri Durgadevi through Sri Tulsi Charan Praharaj, Marfatdar of the deity and Ors. Vs. Maharaja Sri Pradeep Chandra Bhanja Deo (dead) by LRs and Ors. 2022(II) CLR-18.

110. Evidence Act, 1872- S.67- Objection taken in course of arguments in the LPA that certain documents filed by the plaintiff and exhibited in the case were not duly proved- Neither in the grounds of first appeal nor in the grounds of second appeal have any such plea taken  by the appellants- Held, the contention cannot be accepted. Sri Sri Durgadevi through Sri Tulsi Charan Praharaj, Marfatdar of the deity and Ors. Vs. Maharaja Sri Pradeep Chandra Bhanja Deo (dead) by LRs and Ors. 2022(II) CLR-18.

111. Orissa Estate Abolition Act, 1951- Ss.3,5 and 8 (1) and S. 55(a) read with Commentary by W.W. Nalziel- Land recorded as ‘Stitiban Babat Nijjot’- Vesting under the O.E. A, Act- If the ex-Estate itself stood abolished on being vested in the State clearly the status of ‘Stitiban Babat Nijjot’ should also come to an end since the vesting is free from all encumbrance- If the occupancy right survives such vesting the only procedure invisaged was by opening of the Tenants ledger by sumbitting  Ekpadia to the Government by the ex-intermediary- No occupancy right can be acquired in the land recorded as ‘Nijjot’-Held, there was no occasion to call for or collect applications from tenants for recognizing their tenancy or adjudicating their rights U/s.8(1) of the O.E.A. Act. Manjulata Das vs. State of Odisha. 2022(II) CLR-33.

112. Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972-Order passed by the Additional Tahasildar under the O.E.A. Act was without jurisdiction-Decision of the authority under O.C.H. and P.F.L. Act basing on the decision of the Additional Tahasildar can be over turned by the Member, Board of Revenue. Manjulata Das vs. State of Odisha. 2022(II) CLR-33.

113. Constitution of India, 1950- Articles 226 and 227- Art. 14, 15 and 16- Gender equality- Odisha Civil Service (Rehabilitation Assistance Rules, 2020-Exclusion of a married daughter from compassionate appointment-Whether the definition of family members’ in Rule 2(i)(d) of the Odisha Civil Service (Rehabilitation Assistance) Rules, is offensive/violative of gender equality and right to equality enshrined under Article 14, 15 and 16 and Directive Principles of State Policy ? -Hon’ble  Court held that discrimination is inherent in Rule 2(1) (d) on the ground that a son who is married continues to be within the ambit of expression of ‘family’ for the purpose of Rule 2(1)(d) but a daughter, who is married is excluded from the scope and perview of the family of deceased Govt. Servant-Further direction issued to the Govt. to take appropriate steps to prevent continued violation of gender equality. Urbashi Sahoo vs. State of Orissa. 2022(II) CLR-64.

114. Orissa Gram Panchayats Act, 1964- S.24(2)(a)- Petitioner as elected Sarapanch challenged the notice notifying the date of holding of no confidence motion on the ground that no proposed resolution has been enclosed- Hon’ble Court by taking note of decision rendered in Prahallad Dalai 2016 (I) CLR 559, held that no form or proforma has been prescribed for the proposed resolution to be moved- If the intention of the requisite number of members is clear then the said intention is to be accepted-The so called proposed resolution to be moved need not be on a separate sheet or document. Sunita Jani vs. State of Odisha. 2022(II) CLR-84.

115. Orissa Land Reforms Act, 1960- S.9(1)- Acquisition of right of raiyat under- Claimants have to establish that they have no permanent in heritable right over the land in question over which they have constructed their dwelling house with the permission of the landlords out of their own expense- From the impugned order it appears that the Revenue Officer has not made endevour to find out whether the claimants have proved the aforesaid requirements for grant of relief –case remanded. Sri Sukadev Nayak vs. Sri Charan Nayak. 2022(II) CLR-93.

116. As held in the case of Mir Nabiruddinv. Mir Salimuddin and Ors. Reported in 1984 (II) OLR 1045, the claimants by filing an application U/s 9(1-A) of the Act in the prescribed form and manner within the prescribed period has to prove the following;

         “i) the applicant must be a raiyat or tenant in respect of any land.

         ii) he must not having any permanent or heritable right in respect of any site on which his dwelling house or farm house stands;

         iii) he or his predecessors interest should have obtained permission, either express or implied, from the person having permanent and heritage right in the site;

         iv) grantor of such permission should not only have permanent and heritable right in the site but should have right to accord permission for the construction of the house and

         v) in pursuance of such permission the grantee, i.e. the raiyat or the tenant, should have built the house at his own expenses.” Sri Sukadev Nayak vs. Sri Charan Nayak. 2022(II) CLR-93.

117. Land Acquisition Act, 1894- Ss. 4 and 23- Dispossession of a person of their private property without following due process of law- State, merely on the ground of delay and laches, cannot evade its legal responsibility towards those from whom private property has been expropriated. Sukh Dutt Ratra vs. State of Himachal Pradesh. 2022 (II) CLR (SC)-101.

118. Held, exercise of power involving the Application under Order 1 Rule 10 of C.P.C. and exercise of power under the provision of Order 21 Rules 97, 99 & 101 of C.P.C. is even much wider. In the circumstance, this court finds, there is no prohibition in bringing such Application even after rejection of such endeavor in exercise of power under Order 1 Rule 10 of C.P.C. Zobeda Khatun vs. Md. Habibullah Khan. 2022(II) CLR-110.

119. Orissa Land Reforms Act and Rules, 1960- S.19(1)(c) and Rule 19 Sub-rules (7) and (8)- Partition of property among co-sharer raiyats- Revenue Officer does not have jurisdiction to entertain application U/s, 19(1)(c) of the Act unless the co-sharer raiyats give their consent to the partition applied for.  Pustam Sahu vs. State of Odisha. 2022(Ii) CLR-117.

120. Held, if the Court as well as parties to the execution proceeding are satisfied with the report submitted by the Commissioner, then examination of the Commissioner under sub-rule (2) of Rule 25 will be a futile one. It is, of course, when the Court is not satisfied with or raised doubt about the endorsement made in the report or any of the parties to the execution proceeding raises objection to the same, then the examination of the Commissioner under sub-rule (2) becomes inevitable. Rule-3 of Order XXVI also makes the same abundantly clear. Rules 18-A (Odisha amendment) and 24 of Order XXVI V.P.C. provide that the provisions under the said Order are applicable to the execution proceeding. In Sub-Rule (2) of Rule 25 both ‘shall’ and ‘may’ has been used. But, that by itself does not make the word ‘shall’ mandatory. As discussed above, it has to be given a purposive interpretation. Thus, the word ‘shall’ used in sub-rule (2) is directory and not mandatory. Hence, non-examination of the Commissioner is not fatal to the execution proceeding. Sakuntala Mishra vs. Jagdeep Pratap Deo. 2022(II) CLR-119.

121. Registration Act, 1908- Ss.17,32,34,35,58, 71,72,73,74, 75 and 76- Specific Relief Act, 1963- S. 31(2)-Refusal to register the document- Procedure on admission and denial of execution respectively – Meaning of ‘execution’- Admission of one’s signature on a document is not equivalent of admission of its execution-Where an individual admits their signature on a document but denies its execution, the Sub-Registrar is bound to refuse registration in accordance with Ss. 35(3)(a) of the Registration Act- Power of the Registrar to conduct an enquiry U/s 74 of the Registration Act- If the Registrar passes an order refusing registration u/s 76, the party presenting the document for registration has the remedy of filing a civil suit. Veena Singh (Dead) Through LR vs. District Registrar/Additional Collector (F/R). 2022(II)CLR-(SC)-126.

122. However, while adopting the current interpretation- that the admission of one’s signature on a document is not equivalent to admission of its execution. Veena Singh (Dead) Through LR vs. District Registrar/Additional Collector (F/R). 2022(II)CLR-(SC)-126.

123. In terms of this Court’s judgment in Satya Pal Anand v. State of M.P. (2016) 10 SCC 767 (Satya Pal Anand), the Sub-Registrar u/s 34 and 35 of the Registration Act has no quasi-judicial power to conduct an enquiry regarding the validity of the title or legality of the transaction in a sale deed, but only has to ascertain whether the provisions of the Registration Act have been complied with. Questions regarding validity of the title or legality of the transaction can only be decided by a competent Civil Court. Veena Singh (Dead) Through LR vs. District Registrar/Additional Collector (F/R). 2022(II)CLR-(SC)-126.

124. Land Acquisition Act, 1894-Ss. 4,6 and 23- Compensation claim- Determination of market value- Market value cannot be assessed by applying suitable deduction in the market value of the land acquired by a subsequent notification. Bagh Singh etc. vs. Union of India. 2022(II) CLR (SC)-184.