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Orissa High Court Weekly Round Up : May 16 To May 22, 2022

Jyoti Prakash Dutta
23 May 2022 3:39 PM GMT
Orissa High Court Weekly Round Up : May 16 To May 22, 2022
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Nominal Index: 1. Roshni Meher v. State of Odisha, 2022 LiveLaw (Ori) 68 2. M/s. Oripol Industries Ltd., Balasore v. Joint Commissioner of Income Tax, Balasore and Ors., 2022 LiveLaw (Ori) 69 3. Amitav Tripathy v. Orissa High Court, represented by the Registrar General, 2022 LiveLaw (Ori) 70 4. Emcure Pharmaceuticals Ltd v. The Managing Director, Odisha State Medical...

Nominal Index:

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

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

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

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

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

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

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

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

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

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

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

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

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

Judgments/Orders Reported This Week:

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

Case Title: Roshni Meher v. State of Odisha

Citation: 2022 LiveLaw (Ori) 68

The Court granted bail to a child in conflict with law on Thursday after she remained in custody for over 'three years'. A Single Judge Bench of Justice V. Narasingh came down heavily on the police for its apathetic approach and observed,

"Proceedings of the High Court cannot be held hostage to the whims of the investigating agency and for their lackadaisical attitude, rights of an accused cannot be marginalized, needs no emphasis."

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

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

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

Citation: 2022 LiveLaw (Ori) 69

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

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

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

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

Citation: 2022 LiveLaw (Ori) 70

The High Court dismissed the writ petition filed by Mr. Amitav Tripathy, who had challenged marks assigned to him in the examination conducted for direct recruitment from the Bar in the cadre of District Judge. A Division Bench of Chief Justice Dr. S. Muralidhar and Justice Radha Krishna Pattanaik, in its order passed on 11th May 2022, had observed the case to be "rare and exceptional" and had ordered the Registrar (Examinations) to send two questions for revaluation by a 'Law Expert'. The revaluated answer-sheet was produced before the Court. After such revaluation, the petitioner got only additional 0.5 mark, which was 1 mark less than the qualifying marks for the interview. Thus, the Court dismissed the petition and observed,

"The net result is that the candidate gets just 0.5 mark additional for the answer to Question No.1 in Group-D. In all, therefore, the Petitioner secures 45.5 + 0.5 i.e. 46 marks. Since he does not secure 47% in paper II, there is no scope for calling him for interview."

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

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

Citation: 2022 LiveLaw (Ori) 71

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

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

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

Citation: 2022 LiveLaw (Ori) 72

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

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

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

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

Citation: 2022 LiveLaw (Ori) 73

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

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

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

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

Citation: 2022 LiveLaw (Ori) 74

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

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

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

Citation: 2022 LiveLaw (Ori) 75

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

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

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

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

Citation: 2022 LiveLaw (Ori) 76

The Court ordered the Tahalisdar, Kakatpur to plant 'at least 50 trees' as a penalty for passing a 'bizarre' order in a land encroachment case. While observing that the Tahasildar did not grant sufficient opportunity to the petitioner before passing order against her, a Single Judge Bench of Justice Biswanath Rath observed,

"Looking to the nature of the case and for involvement of eviction of a person from his residence the Tahasildar has a responsibility to find whether the encroacher is an educated and law knowing person or not. Further, the Tahasildar has to see the encroacher if belongs to weaker section or person downtrodden in the society having not even sufficient income to take aid of counsel."

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

Case Title: Prasant Kumar Jagdev v. State of Odisha

Citation: 2022 LiveLaw (Ori) 77

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

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

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

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

Citation: 2022 LiveLaw (Ori) 78

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

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

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

Citation: 2022 LiveLaw (Ori) 79

The High Court has directed the Inspector General of Registration (IGR) to ensure strict compliance with the provisions of the Real Estate Regulatory Authority Act (RERA) and Rules made thereunder, until the apparent conflict between certain provisions of the RERA and the Odisha Apartment Ownership (Amendment) Rules, 2021 is reconciled. The Division Bench comprising of Chief Justice Dr. S. Muralidhar and Justice R.K. Pattanaik held,

"With the RERA Act mandating that the transfer of common areas should only be effected in favour of an Association of Apartment Owners, sale deeds presented for registration which contain clauses contrary thereto cannot be allowed to be registered by the IGR."

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

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

Citation: 2022 LiveLaw (Ori) 80

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

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