January to March 2013 for PDF.pmd - Orissa High Court

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20CourtNewsNARAYAN KEDIA-V- PRASANTA KU. PATTNAIKR.S.A. NO.462 OF 2006 (Dt.11.12.2012)A. TRANSFER OF PROPERTY ACT, 1882 – S.106.Tenancy – Suit for eviction of a tenant by a Co-owner without impeading other co-owners –Maintainability – Held, one of the successors to the property while in jointness can maintain a suit againstthe tenant for eviction from out of the joint property unless a conflict between the Co-sharers is broughtout on evidence.In this case plaintiff-respondent filed the suit for eviction in the absence of his four sisters who havejoint interest in the property – Jurisprudentially it is not correct to say that a co-owner of a property isnot its owner – He owns every part of the composite property along with others and it cannot be said thathe is only a part owner of the property – The position can only be changed when partition takes place- The defendant has also not established through evidence any conflict between the plaintiff and hissisters – Held, Courts below are correct in holding that the suit for eviction is maintainable at the behestof the sole respondent-Plaintiff.( M. M. Das, J.)FALCON REAL ESTATE PVT. LTD. & ANR.-V- JANAK MUKARI DEVI & ORS.W.P.(C) NOS.11550 & 11685 OF 2012 (Dt.27.11.2012)CIVIL PROCEDURE CODE, 1908 – O-18, R-17.Suit for partition – During pendency of Final Decree Proceeding Defendant Nos.3 & 4 were implededon the ground that they purchased some property involved in the suit – Thereafter they filed petition torecall witnesses examined at the stage of preliminary decree for Cross-examination – Application rejected– Hence this writ petition.In a suit for partition, in the event of changed circumstances, necessitating change in shares, thereis no impediment for a Court to amend the preliminary decree or pass another preliminary decree redeterminingthe rights and interest of the parties – Held, the impugned order is set aside with a directionto the learned trial Court to recall the witnesses for Cross-examination by the Petitioners-Defendant Nos.3& 4 after recasting the issues and pass a fresh preliminary decree.(M. M. Das, J.)SAMIR MOHANTY-V- STATE OF ODISHA & ORS.W.P.(C) NO.30961 OF 2011 (Dt.20.12.2012)A. CONSTITUTION OF INDIA, 1950 – ART, 299.Contract between the State and Private individual – All Contracts made in exercise of the executivepower of the Union or of a State shall be expressed to be made by the President or by the Governor ofthe State as the case may be and all such contracts and assurances of property made in exercise ofthat power shall be executed on behalf of the President or the Governor by such persons and in suchmanner as he may direct and authorize.In this case the Governor has not authorized any body to execute the lease agreement but theChairman-cum-M.D., OSRTC delegated the General Manager OSRTC to execute the same – Held, theimpugned agreement is void abinitio, hence quashed – The O.P.5 & 6 concessionaire cannot have anyright or interest over the land in question on the basis of the said void document.
CourtNews21B. P. I. L. – Transfer of Barmunda Bus Stand land in favour of O.Ps 5 & 6 – Action of the StateGovernment is in utter disregard of the Constitutional and statutory provisions – Petitioner being a localresident challenged the action – Locus standi – Petitioner has taken genuine steps to protect the propertyfrom being misutilised and it cannot be said that it is a private interest litigation – Held, since the petitionerhas espoused the cause of the public at large, the writ petition at his instance is maintainable.C. MOTOR VEHICLES ACT, 1988 – S.96.Construction of Barmunda Bus Terminal – A Bus stand can only be notified by the RTA havingjurisdiction over the area – If any authority other than the RTA has taken the decision selecting the placein which the Bus stand will operate, the same shall be treated as null and void in the eye of law – SinceO.P. Nos.1,2,3 entered into a contract with O.P.6 for construction of Barmunda Bus terminal there isstatutory violation of the above provision – Held, petitioner can challenge the validity of the impugnedagreement Dt.16.03.2011 entered in to by O.P.1, 2 & 3 with O.P. 6.D. TRANSFER OF PROPERTY ACT, 1882 – S.54.“Profit a prendre” - Meaning of – It is a profit or benefit arising out of the land regarded as“immovable property” within the meaning of Section 3(26) of the General Clauses Act and Section 2(6) ofthe Registration Act.In this case OSRTC executed an unregistered agreement creating permanent lease with an areaof Ac.14.430 decimals in favour of O.P.5 & 6 for construction of modern Bus Terminus over 60% andcommercial complex over 40% of the above land which is under challenge.The right to construct modern Bus terminus and commercial complex and to appropriate profit beinga “Profit a Prendre” i.e. profit or benefit arising out of the above land it has to be regarded as immovableproperty and its sale has to be by means of a registered instrument as its value is much more thanRs.100/- - Held, the impugned transaction being under an unregistered instrument it has not conferred titleor interest in favour of OP. 5 & 6.E. TRANSFER OF PROPERTY ACT, 1882 – Ss. 105 & 107.Distinction between “lease” and “License” – A lease cannot be converted into a license merely bycalling it as license but it will have to be determined from the recitals of the document itself whether thenature of transaction entered into between the parties, the interest over the property has been given ormerely a right of user has been given to the adversary.In this case an interest over the land in question has been conferred upon O.P.5 & 6 by way ofan agreement to enjoy the exclusive possession of the property and to derive profit out of it – Held, thistype of transaction cannot be said to have created a mere license – O.P. 5 & 6 are lessees and notlicenses.(V. Gopala Gowda, CJ & S. K. Mishra, J.)DASRATHI RANA & ANR.-V- STATECRLREV. NO. 474 OF 2012 (Dt.04.01.2013)S.C. & S.T. (P. A.) ACT, 1989 – 3 (1) (i) (ii) (x)Quashing of order taking cognizance U/s.3 (i) (i) (x) of the S.C. & S.T. (P.A.) Act, 1989 and U/ss.341, 294, 323 506, 34 I.P.C.In this case the informant, a member of Schedule Caste being engaged as a Tahali (messenger)by the villagers went to the house of the petitioner asking them to come to the village meeting and togive festival chanda and it is alleged that the petitioner No.1 abused him in obscene language saying himas “Pana”, his Caste name and petitioner No.2 instigated petitioner No.1 to assault and petitioner No.1dealt two slaps to the informant threatending him to kill.
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