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Orissa

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When sec. 304 Part II applies – “ 300. Murder.- xx xx xx Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault.” The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case…..“ In this background when we consider the facts of the present case, we have no manner of doubt that Exception 4 to Section 300 of the IPC is not at all attracted. In the case in hand, the convicts had entered the room of the daughter of the deceased in midnight, molested her and the poor father, perhaps because of his age, could not do anything other than to abuse the convicts. He gave choicest abuses but did not fight with the convicts. Verbal abuses are not fight as it is well settled that at least two persons are needed to fight. Therefore, this ingredient is not satisfied. Then, can it be said that the crime has been committed in a heat of passion? If time is taken to cool down, then the crime cannot be said to have been committed in a heat of passion. It is the specific case of the prosecution, which in fact, has also been accepted by the High Court that “when her father Tikeswar abused them, the accused Khageswar being annoyed brought a budia from his house, which is nearby, and dealt blows to her father and accused Dusasan brought a lathi and assaulted her father.” This clearly shows that both the convicts had sufficient time to cool down and therefore, it cannot be said that the crime was committed in a heat of passion. So far as the convict, Kampa @ Sricharan Naik is concerned, he is convicted with the aid of Section 34 of the IPC. All of them have come together and participated in the crime which goes to show that these convicts shared the common intention. In the face of what we have observed above, it is clear that the High Court erred in holding that the offence for which the convicts can be held guilty shall be Section 304 Part II of the IPC. In the result, we allow this appeal, set aside that portion of the judgment of the High Court whereby it had altered the conviction of the respondents from Section 302/34 of the IPC to that of Section 304/34 of the IPC and restore that of the trial court. The respondents, if have not already undergone the sentence awarded by the trial court, shall forthwith be taken into custody to serve out the remainder of the sentence.

   published in    http://judis.nic.in/supremecourt/imgst.aspx?filename=40685   REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1249 OF 2013 (@SPECIAL LEAVE PETITION (CRL) No.4928 of 2011) STATE OF ORISSA … APPELLANT VERSUS KHAGA @ KHAGESWAR NAIK & ORS. …RESPONDENTS J U D G M E N T   CHANDRAMAULI KR. PRASAD, J. State … Continue reading

whereby the writ petition preferred by Geomin Minerals & Marketing (P) Ltd. was allowed and the recommendation made by the State Government dated 9th January, 2009 in favour of POSCO India (P) Ltd. was set aside with a direction to the State Government to take a fresh decision in terms of order dated 27th September, 2007 passed by the Revisional Authority in Revision Application File No.22 (41)/2007­RC­1 by giving the Geomin Minerals & Marketing (P) Ltd. the preferential right of consideration. The Division Bench further observed that in the event the State Government decides to invoke the provisions of Section 11(5) of the Mines and Minerals (Development and Regulation) Act, 1957 (hereinafter referred to as the “MM(D&R) Act”) , “special reasons” for the same in terms of guidelines dated 24th June, 2009 issued by the Ministry of Mines, Government of India be recorded in writing.= It is well settled that no applicant has statutory or fundamental right to obtain prospecting licence or a mining lease.- In view of the finding as recorded above, we are of the view that the High Court committed a grave error of law in deciding the case on merits and deciding the question of legality of the recommendation made by the State Government. In fact they should have left the matter to the Central Government to pass an appropriate order in accordance with law instead of entertaining a pre­mature writ petition. The State Government by its recommendation having forwarded the tabulated chart showing inter se merit of each applicant, it was not for the High Court to sit in appeal to decide who amongst all is more meritorious and is entitled for preferential right. 36. We, accordingly, set aside the impugned judgment dated 14th July, 2010 passed by the Division Bench of the Orissa High Court and remit the matter to the Central Government to consider the question of approval under Section 5(1) taking into consideration the recommendations made by the State Government. While deciding the question it will keep in mind the objections raised by the parties as noticed in the preceding paragraphs. It is expected that the decision will be taken on an early date and shall be communicated to the State Government. The appeals are allowed with the aforesaid observation and direction, but there shall be no order as to costs.

Page 1REPORTABLEIN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL NO.  4561   OF 2013(ARISING OUT OF SLP(C) NO.31593 OF 2010)GEOMIN MINERALS & MARKETING (P) LTD.  … APPELLANTVERUSSTATE OF ORISSA AND ORS.  … RESPONDENTSWITHCIVIL APPEAL NO.  4562     OF 2013(ARISING OUT OF SLP(C) NO.31957 OF 2010)STATE OF ORISSA  … APPELLANTVERUSGEOMIN MINERALS & MARKETING (P) LTD.  … RESPONDENTSAND ORS.WITHCIVIL APPEAL NO.  4563    OF 2013(ARISING OUT OF SLP(C) NO.32040 OF 2010)POSCO INDIA PVT. LTD. … APPELLANTVERUSGEOMIN MINERALS & MARKETING (P) LTDAND ORS. … RESPONDENTSJ U D G M E N TSUDHANSU JYOTI MUKHOPADHAYA, J.Leave granted.   1Page 22. These   appeals   by   special   leave   have   beenpreferred   against   the   order   of   Division   Bench   ofOrissa High Court, Cuttack dated 14th  July, 2010 inW.P.   (C)   No.23   of   2009   whereby   the   writ   petitionpreferred   by   Geomin … Continue reading

Orissa Mining Corporation (OMC), a State of Orissa Undertaking, has approached this Court seeking a Writ of Certiorari to quash the order passed by the Ministry of Environment and Forests (MOEF) dated 24.8.2010 rejecting the Stage-II forest clearance for diversion of 660.749 hectares of forest land for mining of bauxite ore in Lanjigarh Bauxite Mines in Kalahandi and Rayagada Districts of Orissa and also for other consequential reliefs. = The Alumina Refinery Project is well advised to take steps to correct and rectify the alleged violations by it of the terms of the environmental clearance granted by MoEF. Needless to say that while taking the final decision, the MoEF shall take into consideration any corrective measures that might have been taken by the Alumina Refinery Project for rectifying the alleged violations of the terms of the environmental clearance granted in its favour by the MoEF. – The proceedings of the Gram Sabha shall be attended as an observer by a judicial officer of the rank of the District Judge, nominated by the Chief Justice of the High Court of Orissa who shall sign the minutes of the proceedings, certifying that the proceedings of the Gram Sabha took place independently and completely uninfluenced either by the Project proponents or the Central Government or the State Government. 63. The Writ Petition is disposed of with the above directions. Communicate this order to the Ministry of Tribal Affairs, Gram Sabhas of Kalahandi and Rayagada Districts of Orissa and the Chief Justice of High Court of Orissa, for further follow up action.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 180 OF 2011 Orissa Mining Corporation Ltd. .. Petitioner Versus Ministry of Environment & Forest & Others .. Respondents J U D G M E N T K. S. RADHAKRISHNAN, J. 1. Orissa Mining Corporation (OMC), a State of … Continue reading

Urban Land (Ceiling and Regulation) Act- whether the deemed vesting of surplus land under Section 10(3) of the Urban Land (Ceiling and Regulation) Act, 1976 [for short ‘the Act’] would amount to taking de facto possession depriving the land holders of the benefit of the saving Clause under Section 3 of the Urban Land (Ceiling and Regulation) Repeal Act, 1999 [for short ‘the Repeal Act’]. = The mere vesting of the land under sub-section (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act. We, therefore, find no infirmity in the judgment of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are entitled to get the benefit of Section 3 of the Repeal Act. However, there will be no order as to costs.

Page 1 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 2326 OF 2013 [Arising out of SLP (Civil) NO.12960 OF 2008] State of U.P. .. Appellant Versus Hari Ram .. Respondent WITH CIVIL APPEAL NO. 2327 OF 2013 arising out of SLP(C)No.10625/2006 CIVIL APPEAL NO. 2328 OF 2013 arising out … Continue reading

inter se seniority – The inter se seniority between the appellants and respondent no. 1 in the Senior Branch cadre of Orissa Superior Judicial Service is the subject matter of this appeal. 3. In the writ petition filed by the respondent no.1 before the High Court, the principal question under consideration was whether the service rendered by him (writ petitioner) in the Fast Track Court as Additional District Judge is to be taken into account while fixing his seniority after 1Page 2 regularization of his service in the Senior Branch cadre under the Orissa Superior Judicial Service Rules, 1963 (for short, “1963 Rules”). The High Court in the impugned judgment dated 15.11.2011 has answered the above question in favour of the writ petitioner, allowed the writ petition and directed the Orissa High Court on administrative side to treat the period of service rendered by the writ petitioner in the Fast Track Court for the purpose of seniority from the date of his joining the post i.e., 26.04.2002 and re-fix his seniority in light of the judgment. 4. The appellants, direct recruits, who were respondent nos. 3 and 4 in the writ petition, have challenged the above judgment principally on the ground that it is not consistent with the 1963 Rules, Orissa Judicial Service (Special Schemes) Rules, 2001 and Orissa Superior Judicial Service and Orissa Judicial Service Rules, 2007.- the service in FTCs will be deemed as service of the promoted judicial officers rendered in the parent cadre. However, no right would accrue to such recruits promoted/posted on ad hoc basis from the lower judiciary for regular promotion on the basis of such appointment. For direct recruits, continuation in service will be dependent on review by the High Court and there could be possibility of absorption in the regular vacancy if their performance was found to be satisfactory………..”. The Court noted that while appointing Fast Track Court Judges, it was clearly stipulated that such appointments would be ad hoc and temporary and that the appointees shall not derive any benefit from such appointments. We have already indicated above that on 05.01.2002 or 26.04.2002, there was no vacancy in the cadre of Superior Judicial Service (Senior Branch) for being filled up by promotion. Such vacancy in the Senior Branch cadre of the service occurred on 15.12.2003 and from that date the writ petitioner has been given benefit of his service rendered in the Fast Track Court. The administrative decision by the Full Court is in accord with the 1963 Rules, the 2001 Rules and the legal position already indicated above. The view of the Division Bench in the impugned judgment is legally unsustainable. The impugned judgment is liable to be set aside and is set aside. 52. Appeal is allowed, as above, with no order as to costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2316 OF 2013 (Arising out of SLP(C) No. 192 of 2012) Debabrata Dash and Anr. …… Appellants Vs. Jatindra Prasad Das & Ors. ……Respondents JUDGMENT R.M. LODHA, J. Leave granted. 2. The inter se seniority between the appellants and respondent no. … Continue reading

writ of mandamus the State Government directed to execute a mining lease for an area measuring 1519.980 hectares in favour of the respondent-company.-The High Court held that although the State Government had not issued any final order so far regarding the deduction of the area yet since a final decision appeared to have been taken by it, thereby implying that the issue of a show cause notice after taking of such a decision was a mere formality. In coming to that conclusion, the High Court placed reliance upon paragraph 8 of the counter affidavit filed by the State Government before the High Court. The High Court also held that in the absence of a mining lease in favour of the respondent-company, it could not take the risk of setting up of a steel plant. The High Court accordingly quashed letter dated 19th September, 2006 and by mandamus directed the State Government to execute a formal mining lease in favour of the respondent-company. = no final decision regarding resumption of any part of the lease area has been taken by the State Government so far and all that had transpired till date must necessarily be taken as provisional. Such being the case the High Court was in error in proceeding on an assumption that a final decision had been taken and in quashing what was no more than an inter-departmental communication constituting at best a step in the process of taking a final decision by the Government. = (1) Whether the writ petition filed by the respondent company was premature, the same having been filed against an inter-departmental communication that did not finally determine any right or obligation of the parties? (2) Whether the show cause notice could be ignored by the High Court simply because it had been issued in violation of 15Page 16 the interim order passed by it requiring the parties to maintain status quo? (3) Whether the show cause notice was without jurisdiction and could, therefore, be quashed?- In the result we allow this appeal, set aside the judgment and order passed by the High Court and direct that the respondent-company shall submit its reply to the show cause notice dated 6th February, 2007 issued by the State Government within three months from today. The Government may then upon consideration of the reply so submitted pass a reasoned order on the subject within two months thereafter under intimation to the respondent. If the order so made is, for any reason found to be unacceptable by the respondent-company, it shall have the liberty to take recourse to appropriate proceedings before an appropriate forum in accordance with law.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2206 OF 2013 (Arising out of S.L.P. (C) No.16139 of 2010) State of Orissa & Ors. …Appellants Versus M/s Mesco Steels Ltd. & Anr. …Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. This … Continue reading

Ex-cadre post – promotion etc., – Tribunal, therefore, refused the prayer of the respondent for permitting him to work in the Administrative Department as OSDcum-Deputy Director (Steel). – However, as regards the promotional prospect the Tribunal held as under :- “As regards his promotional prospects it is clear from the documents at Annexure 1 and 2 that the applicant was termed as a hold of ex-cadre post only after his actual appointment and no mention was made therein regarding his appointment against an ex-cadre post. We, therefore, suggest that the Directorate of Geology may consider the case of the applicant for career advancement vis-à- vis other comparable Class-I Engineers in service appointed in 1984 in the erstwhile Directorate of Mining an Geology (and later the Directorate of Geology) on the same footing as if he was appointed at par with other Engineers in 1984 and treating him as the junior most of that batch and consider him for promotion from the date his junior was so considered from time to time.”- we are of the view that the finding arrived at by the High Court that the post of Ore Engineer was for the first time treated as ex cadre post in the year 2005, is absolutely perverse and erroneous.- where the Members of the State Administrative Services made a claim that a number of ex-cadre or temporary posts which were temporary in nature and some of them 19Page 20 were created under the State Enactments which required their manning by IAS Officers. It was contended that on account of failure of the Central Government to timely review the cadre strength as statutorily required, the promotion of the promotees got inordinately delayed and they lost their seniority in the promoted cadre. The rule does not confer any right on the petitioners to seek a Mandamus for en cadring those ex-cadre/temporary posts. Any such Mandamus would run counter to the statutory provisions governing the creation of cadre and fixation of cadre strength which was held that asking the State or the Central Government for en cadrement of the ex cadre/temporary posts will amount to asking the Government to create more posts.- In the background of the law well settled by this Court, we are of the definite opinion that the direction issued by the Tribunal and the order of the High Court affirming the order of the Tribunal is wholly without jurisdiction. The impugned orders passed by the Tribunal as also by the High Court are, therefore, liable to be set aside. 26. For the aforesaid reasons, we allow this appeal and set aside the orders passed by the State Administrative Tribunal in O.A. No.97 of 2009 and the impugned order passed by the High Court.

Page 1 [ REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1967 OF 2013 (Arising out of Special Leave Petition (Civil) No. 20635 of 2011) State of Orissa & Ors. …Appellants Vs. Sri Jagabandhu Panda …Respondent WITH C.A.No.1968 OF 2013 arising out of SLP(Civil) No.8676/2013 J U D G M E … Continue reading

service matter – Respondent No.4, Rajeswar Panda filed an appeal before the Director, Higher Education, Orissa, Bhubaneswar, stating that he was appointed as a lecturer in History in Sushree Devi Women’s College, Aul, Kendrapara after due selection but he was not allowed to discharge his duties because the Governing Body of the College tried to accommodate the appellant in his place. The appeal was disposed of by the Director by an ex parte order vide office order No.2A-9-07-III: 30092 dated July 23, 2008 holding that the action of the General Body in prohibiting the applicant (respondent No.4 in the present appeal) from discharging his duties was invalid and illegal and requested the Secretary of the Governing Body to forthwith allow respondent No.4 to perform his duties as a lecturer in the college.We are of the view that the matter has not been satisfactorily dealt with and at the same time there are materials to suggest that respondent No.4 was able to obtain the ex parte order from the Director on the basis of a document, the genuineness of which is doubtful. We, therefore, deem it just and proper to set aside all the previous orders passed both by the High Court and the Director and remit the case to the Director to consider the matter afresh after hearing respondent No.4, the Governing Body of the College and the appellant and pass a fresh order on his appeal in accordance with law. We are informed that different proceedings/cases arising from the earlier orders passed by the Director are pending before the High Court and/or in other courts. As we have set aside all the earlier orders, any proceedings arising therefrom pending before any court shall also stand abated. 11. In the result, the appeal is allowed to the extent indicated above but with no order as to costs.

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5670 OF 2012 (Arising out of SLP(C) No.32029 of 2010) Jayanti Kumari Nayak … Appellant Versus State of Orissa & Ors. … Respondents J U D G M E N T Aftab Alam, J. 1. Leave granted. 2. Respondent No.4, Rajeswar Panda … Continue reading

SERVICE MATTER = 1. What was the true nature of the appointment of the respondent? In particular, was the appointment regular or simply contractual in nature? and 2. If the appointment was contractual, was the termination thereof vitiated by any legal infirmity to call for interference under Article 226 of the Constitution?=in the modern commercial world, executives are engaged on account of their expertise in a particular field and those who are so employed are free to leave or be asked to leave by the employer. Contractual appointments work only if the same are mutually beneficial to both the contracting parties and not otherwise. 29. In the result, we allow this appeal, set aside the impugned judgment and order passed by the Division Bench of the High Court of Orissa dismissing the Writ Appeal No.11 of 2003. We, however, direct that the salary and allowances if any paid to respondent No.1 pursuant to the impugned judgment shall not be recovered from him. Parties shall bear their own costs in this Court as also in the courts below.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.11303 OF 2011 (Arising out of SLP (C) No.10164 of 2008) GRIDCO Limited & Anr. …Appellants Versus Sri Sadananda Doloi & Ors. …Respondents J U D G M E N T T.S. THAKUR, J. 1. Leave granted. 2. Two questions fall for our … Continue reading

elections =improper rejection of nomination papers =the Returning Officer erred in acting in hot haste in rejecting the nomination paper of the proposed candidate and not postponing the scrutiny to the next day, particularly, when a request was made by the authorised representative of the proposed candidate. The election petitioners have been successful in proving the improper rejection of the proposed candidate’s nomination paper. In other words, they have been able to prove the ground for setting aside appellant’s election to 89-Athagarh Assembly Constituency under Section 100(1)(c) of the 1951 Act.

  REPORTABLE         IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4956 OF 2010 Ramesh Rout …. Appellant Versus Rabindra Nath Rout ….Respondent WITH CIVIL APPEAL NO. 4962 OF 2010 JUDGMENT R.M. Lodha, J. The returned candidate — Ramesh Rout – whose election to the 14th Orissa Legislative … Continue reading

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