A. Sk. Hussain & Ors. v. State of Odisha

Case Number: CRLMC No. 3703 OF 2022
Date of decision: 19th May 2023

Arrest is complete when detention is effectuated and not necessarily
at the time which is mentioned in the arrest memo.

In this case, the Petitioners are accused persons in Special Case No.280/2022 arising out of Sahadevkhunta P.S. Case No.352/2022 of the Court of learned Special Judge, Balasore under Section 21(c)/29 of the N.D.P.S. Act. Four packets containing 1101 gram of brown sugar was recovered from the petitioners, which was seized. After completion of the necessary formalities, the Petitioners were arrested and taken to the Police Station. The petitioners had filed a petition alleging therein that the Petitioners were not produced before the learned Special Judge within 24 hours of their arrest. It was also alleged that they were actually arrested between 5.40 P.M. to 6.20 P.M. during which time the seizure lists were prepared and thereafter they were kept in Sahadevkhunta P.S. However, they were forwarded to the Court of the Special Judge in his residential office after 11 P.M. on the next day. As such the statutory requirement of producing the arrested accused before the Court within 24 hours was clearly violated. On such grounds it was pleaded that the accused persons should be released on bail having regard to the provisions of Sections 57 and 167 of Cr.P.C. read with Article 22 of the Constitution of India.

The Special Judge heard the petition and after considering the rival contentions, held that there is no cogent material on record to show that the accused persons were detained in police custody for more than 24 hours from the time of their arrest.

The petitioner contended that the Petitioners must be deemed to have been arrested, the moment they were apprehended and searched. Referring to the F.I.R. and other connected documents. It was contended by Mr. Dhal that the relevant time for consideration would be 5 P.M. i.e. the time when the Petitioners were apprehended since they lost their right to go wherever they pleased from that moment onwards. Mr. Dhal further contends that preparation of the arrest memo is just a formality having no bearing on the actual time of arrest. On the other hand, the State Counsel contended that the initial detention of the Petitioners by the Police for the purpose of search and seizure etc. cannot be treated as arrest and that arrest must be held to have been effected only when they were formally arrested and the memo of arrest was prepared.

This Court firstly clarified that the moment the Petitioners were apprehended, they lost their liberty inasmuch as they could not leave the place any more having come under the control of the Police party. Placing reliance on of Directorate of Enforcement v. Deepak Mahajan, reported in 1994 SCC Cri 785 and Prabir Kumar Das v. State of Orissa; reported in 2007 (38) OCR 585, this court held that the moment the liberty of a person is curbed or curtailed, he is said to be under arrest. Thus, there can be no manner of doubt that the Petitioners having been apprehended around 5 P.M. or thereabouts must be deemed to have been arrested at that time.

This Court accordingly held that mere mentioning of a different time in the memo of arrest prepared subsequently, in the present case nearly 6 hours after the apprehension of the petitioners, cannot have any relevance whatsoever more so as it only serves to formalize the arrest already effected long back. As stated earlier, the Police Officer concerned was under Constitutional obligation to forward the Petitioners to the Court of Special Judge within 24 hours, but this Court finds that the Constitutional provision was seriously violated, for which the entire period of detention has to be treated as illegal.

Latika Kar & Ors. v. State of Odisha & Ors.

Case Number: RSA No. 88 of 2013
Date of decision: 13th December 2023

Intention of parties must be considered while ascertaining
nature of disposition of property, i.e. lease or license.

In this case, the appeal was directed against the judgment dated 02.02.2013 passed by learned District Judge, Khurda in RFA No. 37 of 2008, whereby the judgment passed by learned 2nd Additional Civil Judge (Sr. Division), Bhubaneswar in Title Suit No. 119/440 of 2005/1997 on 24.05.2008 was confirmed. The plaintiffs of the said suit are the appellants before this Court. The suit was originally filed by one Sankar Kar and Gourkrushna Kar for declaration, correction of record of right, confirmation of title and permanent injunction in respect of the suit land.

The case of the plaintiffs, briefly stated, is that one Nabakrushna Kar was settled with an area in Mouza-Badagada as per order dated 06.09.1934 in case No. 8/33-34 on payment of rent. Nabakrushna died leaving behind the plaintiffs and other children, who possessed the same as per mutual partition among them. During pendency of the suit, Sankar Kar died leaving behind his widow and sons, who were substituted in his place. It is claimed that the plaintiffs are enjoying the suit property with right to repair and maintain the same at their own cost by keeping the tank clean for the purpose of bathing, drinking, irrigation etc. and by constructing a temporary structure over the same. The suit tank was however, recorded in the name of the Government in G.A. Department in current settlement as Plot No. 1680 and 1071 with a reduced area of Ac.1.135 dec. The plaintiffs filed a revision before the Commissioner, Settlement and Land Records bearing Revision No.815/91, but the same was withdrawn and thereafter the suit was filed.

The defendants, on the other hand contested the suit challenging its maintainability, inter alia on the ground of limitation. It was stated that the plaintiffs have no manner of right, title and interest over the suit land and the G.A. Department being the lawful owner, the ROR was rightly published in its name. In the 1988- 89 settlement ROR, a note of illegal possession by the plaintiffs was recorded but the same is without jurisdiction and not binding on the defendants. A case for eviction being, O.P.P.

Case No. 983 of 1999 was initiated against the plaintiff for eviction and by order dated 31.05.2002, the Estate Officer directed the plaintiffs to vacate the suit land. It is further stated that the revision petition was filed after the statutory period of limitation and the plaintiffs having come to know that they have no possession and title over the suit land withdrew the same and filed the suit to grab the suit land.

After scanning the oral and documentary evidence, the trial was of the view that the suit land was given in favour of Nabakrushna Kar for a limited purpose namely, to look after the tank and to clean the same at his own cost for the purpose of use of the villagers. As such, the claim of title by the plaintiffs over the suit land merits no consideration. As regards limitation, the trial Court held that the ROR was published in the year 1988-89 but the suit was filed in the year 1997, i.e., after a lapse of 9 years. As such, the suit is barred by limitation. On such findings on the pivotal issues, the other issues were also answered against the plaintiffs to the extent that the plaintiffs having claimed possession on the basis of the note in the ROR are deemed to have accepted the title of the defendants and therefore, do not have a better title than the defendants over the suit land in order to claim the relief of injunction. On the above findings, the suit was dismissed. On appeal, the District Judge also concurred with the finding of the trial Court.

This Court firstly clarified that it has been specifically contended that the plaintiffs are not claiming title over the suit property but their prayer is for correction of record of right simpliciter along with declaration of right of user. The filing of the revision and its subsequent withdrawal by the plaintiffs cannot have any bearing on the present case since the suit was filed on the same prayer i.e., correction of record of right. Both the Courts below have held and according to this Court, rightly so, that in so far as the relief for correction of record of right is concerned, the suit is clearly barred by limitation having regard to the provision under Article 58 of the Limitation Act read with Section 42 of the Orissa Survey and Settlement Act. This Court further held that merely because the plaintiffs claim to be in possession for a long time and also paid rent till about 1997 cannot transform the licence granted to their predecessor-ininterest into a lease as such possession is not exclusive to them. The Lower Appellate Court has examined the evidence to be convinced that mere conferment of right of user does not make it a permanent lease regard being had to the right of the public also in the property. This Court accordingly upheld the order of the lower court.

Pradeep Kumar Dhal v. State of Odisha & Ors.

Case Number: W.P.(C) No. 3150 of 2020 and bunch
Date of decision: 26th April 2023

Christ College, Cuttack held to be a ‘minority institution’
under the Odisha Education Act, 1969.

In this case, the issue brought before the Court was whether Christ College, Cuttack is a minority educational institution within the meaning of Section 2 of the Odisha Education Act, 1969 (in short the “Act, 1969”) is the preliminary question to be determined in all these writ applications. The other question to be determined was whether these writ applications would be maintainable regardless of the answer to the preliminary question. The petitioners in these writ applications were Staff of Christ College and were aggrieved by action taken against them by governing body of the College.

The stand taken by the Christ College in both these writ applications basically is, it being a minority managed institution, the provisions of the Orissa Education Act, 1969 and Rules framed thereunder are not applicable to it and therefore, the impugned communications made by the Director Higher Education are contrary to the provision under Article 30 of the Constitution of India. On the other hand, it has been argued on behalf of all other petitioners (Staff of the College) that Christ College, Cuttack is not a minority educational institution but an aided educational institution within the meaning of Section 3(b) of the Act, 1969 and therefore, all the relevant rules framed under the Act, 1969 relating to conditions of service of its employees are applicable to it.

This Court held that the status of Christ College as a minority educational institution was determined long back and recognized by the National Commission in the year 2007. The matter must therefore, be treated as being finally set at rest. Since the competent forum has already given its finding with regard to the status, which has been duly noted by a coordinate Bench of this Court, no further determination is necessary in this regard. Moreover, neither the order of the Commission or of the Director of Public Instruction (Higher Education) (order dtd. 18.03.1983) has been challenged nor is presently under challenge in these writ applications.

It has been further argued on behalf of the petitioners (staff of the college) that notwithstanding the judgment of the Single Judge of this Court as well as the order passed by the National Commission, the Management of the Christ College by its own conduct has proved that it is not a minority institution. In this regard it has been argued that the Management has always subjected itself to the control of the State Government as would be evident from the orders of approval issued by the prescribed authority under Section 7 of the Odisha Education Act and Odisha (Establishment, Recognition and Management of Private College) Rules, 1991 in respect of its governing body. Moreover, it has applied to the prescribed authority for grant of permission and recognition for opening new streams and subjects under Section 5 and 6 of the Act, 1969. The staffs of the College have received grant-in-aid under section 7-C of the Act, 1969 and also UGC scale of pay for the teachers. All these go to show that the Management of the College does not consider itself as a minority educational institution. On the other hand, it has been argued on behalf of the College that such acts on the part of the Management cannot nullify its status as a minority institution which is guaranteed under the Constitution of India.

This Court thus, held that the grievances of the petitioners (Staff of the College) are relatable to contract of personal service and no public law element is involved therein so that the same could be adjudicated upon by this Court exercising writ jurisdiction under Articles 226 and 227 of the Constitution of India.For the foregoing reasons therefore, this Court holds that Christ College, Cuttack is a minority educational institution within the meaning of Section-2 of the Odisha Education Act, 1969 and further that the grievances of the petitioners (staff of the college) are not amenable to the writ jurisdiction of this Court under Articles 226 and 227 of the Constitution of India.

Prangya Paramita Harichandan v. Orissa University of Agriculture and Technology & Ors.

Case Number: W.P.(C) No.14758 of 2015
Date of decision: 28th February 2023

‘Horizontal quota’ for a particular social category cannot be filled
by candidates belonging to other social category.

In this case, the Petitioner applied for the post of Asst. Professor, Animal Re-production Gynecology as S.E.B.C. category candidate. As per the advertisement, four posts were advertised. When the results were published, her name did not find place in the list. It was found that two male persons were selected under the U.R. category even though one of the posts belonging to such category was reserved for woman. According to the Petitioner, the Opposite Party-authorities followed a wrong procedure by not preparing the select list of all candidates on merit basis at the first instance. As result, Dr. Basanti Jena, who secured 37 marks could have been adjusted against unreserved vacancy for woman and in such event the Petitioner could have been adjusted against the only vacancy available for S.E.B.C.(W) category. The Opposite parties refuted the allegations by stating that the selection of candidates was made in order of merit in respect of unreserved and reserved categories as per total marks secured by them in the interview. The Opposite Parties have filled up the posts first in merit for S.E.B.C.(W) category candidate and then Unreserved candidates.

The petitioner argued that the methodology adopted by the Opposite Party-authorities is entirely erroneous and contrary to the principles of vertical and horizontal reservations laid down by the Apex Court. Referring to the observations of the Apex Court in the case of Rajesh Kumar Daria v. Rajasthan Public Service Commission and others; reported in (2007) 8 Supreme Court Cases 785, she has argued that the Opposite Partyauthorities ought to have prepared a merit list of all candidates and thereafter applied the principle of reservation as per the social reservation quotas. The counsel appearing for OUAT, referred to the relevant clause of the advertisement, which states that in the event of non-availability of women candidates or insufficient number of women candidates, the male candidates belonging to the particular community may be appointed. In the instant case, Dr. Basanti Jena being a S.E.B.C. (W) candidate was rightly selected for the said category while there were no women candidates in the U.R. category for which the next available male candidate was given appointment.

This Court firstly clarified that the principle of mobility as applicable in case of social (vertical) reservations are not applicable to special (horizontal) reservation. This implies that the special reservations like women etc. have to be confined to their respective social categories. Of course, the procedure to be followed is- first, a merit list is to be drawn up of all candidates irrespective of their categories in the order of merit. The next step would be to fill up the social reservation quota i.e. S.C., S.T., SEBC etc. It is after this stage that the adjustment of special category candidates like women have to be considered against each social category to see whether the requirement of having a particular number of special category candidates in each social reservation category is fulfilled. If it is found that in a particular category there is a short fall of women candidates, then the requisite number of such candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories. This Court held that the point of view put forth by the Petitioner would have been acceptable had Dr.Basanti Jena been a U.R. candidate. In such situation, despite scoring less marks than Dr. S.S.Biswal she could have been accommodated against the vacancy of 1 (W) U.R. quota, but Dr. Basanti Jena had applied as a S.E.B.C. candidate and therefore, she can only be considered, in so far as horizontal reservation is concerned against S.E.B.C. category and not any other category. Therefore, this Court finds nothing wrong in the methodology adopted by the Opposite Party-authorities.

Gond painting from Keonjhar displayed in second floor corridor of New Building.