Orissa High Court
Nityananda Nayak vs Biswanath Kalo (Dead) & Others on 23 April, 2021
Equivalent citations: AIR 2021 ORISSA 99, AIRONLINE 2021 ORI 124
Author: D. Dash
Bench: D.Dash
HIGH COURT OF ORISSA : CUTTACK
R.S.A. No.1 of 2013
In the matter of an appeal under section 100 of the Code of Civil
Procedure assailing the judgment and decree dated 04.09.2012 and
15.09.2012 respectively passed by the learned Additional District Judge, Fast
Track Court, Sundargarh in R.F.A. No.12/36 of 2009-11 confirming the
judgment and decree dated 06.03.2009 and 19.03.2009 respectively passed by
the learned Civil Judge (S.D.), Sundargarh, in C.S. No.63 of 2006.
.........
Nityananda Nayak ... Appellant.
-::VERSUS ::-
Biswanath Kalo (Dead) & others ... Respondents.
Advocate(s) who appeared in this case by Video Conferencing Mode
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For Appellant ... M/s.U.K.Samal, C.D.Sahoo,
S.P.Patra and S. Naik, Advs.
For Respondents ... Mr.Byomokesh Sahoo
(For R.1(a) to R.1(d)
Mr.B.Sahoo, Advocates.
(For Respondent No.2)
.........
PRESENT:
THE HON'BLE MR. JUSTICE D.DASH
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Date of Hearing : 05.04.2021 ::: Date of Judgment:23.04.2021
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D.Dash,J. The Appellant, by filing this Appeal under section 100 of
the Code of Civil Procedure (for short, 'the Code'), has assailed the judgment
and decree dated 04.09.2012 and 15.09.2012 respectively passed by the
learned Additional District Judge, Fast Track Court, Sundargarh in R.F.A.
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No.12/36 of 2009-11. By the same, the judgment and decree dated
06.03.2009 and 19.03.2009 respectively passed by the learned Civil Judge
(S.D.), Sundargarh, in C.S. No.63 of 2006 have been confirmed.
This Appellant, as the Plaintiff, had filed the Suit for declaration
of his right, title and interest over the suit land and confirmation of possession
with further prayer to declare the entire proceeding and the decision rendered
in a proceeding under the Odisha Scheduled Areas Transfer of Immovable
Property (By Scheduled Tribe) Regulation, 1956 (hereinafter, for short called
as 'the Regulation 2 of 1956') in Misc. Case No.4 of 1998 by the Officer on
Special Duty (Land Reforms), Sundargarh arraigned as Defendant No.3 as
also the decision rendered in the Appeal proceeding by the Additional District
Magistrate, Sundargarh in R.A. No.49 of 2002.
2. For the sake of convenience and clarity as also to avoid
confusion; the parties hereinafter have been referred to in the same rank as
assigned to them in the original proceeding before the Trial Court.
3. The Plaintiff's case is that the suit land originally belonged to
one Jayadev Kalo, the predecessor-in-interest of Defendant Nos.1 and 2. It is
his case that said Jayadev Kalo, during his life time, had sold the land to two
persons, namely, Harun Nag and Abdul Gony Ansari on 05.03.1955. Said
Harun Nag had purchased the suit land measuring Ac.0.06 decimals from
Jayadev Kalo under one unregistered plain paper document for a
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consideration of Rs.140/-. It is stated that from the date of said purchase,
Harun Nag becoming the owner possessed the land in question. Later Harun
Nag sold the suit land to the Plaintiff by executing a registered sale deed on
17.05.1961. Pursuant to the same, the Plaintiff possessed the suit land being
its owner. When the matter stood thus, the Defendant No.3 initiated a
proceeding under the Regulation, 1956 vide Misc. Case No.4 of 1998 against
the Plaintiff and his vendor Harun Nag. The above action initiated was to
evict them from suit land and restore the possession of the said land to the
successor-in-interest of Jayadev Kalo. The proceeding finally ended with an
order of eviction of the Plaintiff and his vendor Harun Nag followed by an
order of restoration of possession of the suit land in favour of the Defendant
Nos.1 and 2. The order being passed on 30.11.2002, the Plaintiff carried an
Appeal as provided under Regulation 2 of 1956 to the Appellate Authority,
i.e., Defendant No.4. The Appeal being numbered as R.A. No.49 of 2002,
finally came to be dismissed. The order passed by the Defendant No.3 thus
stood confirmed. The Plaintiff being aggrieved by the said orders, challenged
those by carrying writ petitions before this Court in W.P.(C) Nos.8994 and
8995 of 2005. Those also stood dismissed. The Plaintiff thereafter filed
Letters Patent Appeal vide W.A. No.71 of 2005. The Hon'ble Division Bench
of this court on 19.12.2005 dismissed those Appeals. Thus, having failed in
the attempts, the Suit was instituted praying for the reliefs as already stated.
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4. The Defendant Nos.1 and 2 in whose favour the orders had been
passed by Defendant Nos.3 and 4 in those proceedings under Regulation 2 of
1956, contested the Suit by filing their written statement and so also the
Authorities acting under the Regulation 2 of 1956, i.e., Defendant Nos.3 and
4 filed their written statements.
The case of the Defendant Nos.1 and 2 is that they are members
of Scheduled Tribes community residing in the Schedule Area. Jayadev Kalo
was there predecessor-in-interest. They denied the case of the Plaintiff that
Jayadev Kalo had ever sold the suit land to Harun Nag, who is a member of
their community. It is their case that the suit land had been erroneously
recorded in the name of Harun Nag in the settlement operation. Be that as it
may, by virtue of erroneous recording, Harun Nag had not acquired any sort
of interest over the suit land. Since Harun Nag had no interest whatsoever the
land in question, he had no alienable right over the same and the sale of the
land in favour of the Plaintiff, according to them is of no value in the eye of
law and is void. So, the Plaintiff has never been clothed with any right, title
and interest by his so called purchase from Harun Nag. It is their case that
Misc. Case No.4 of 1998 had been initiated by the Defendant No.3 to evict
Harun, the Plaintiff along with another co-purchaser Abdul Gony Ansari from
the suit land in exercise of the power under the Regulation 2 of 1956. The
proceeding was rightly concluded and final order therein having been passed,
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the same has stood the test before the Appellate Authority, i.e. Defendant
No.4 as also before this Court on Original as well as appellate side. It is stated
that the Suit is barred by the section 7-E of the Regulation 2 of 1956 which
clearly prohibits entertainment of Suit and any matter so decided in the
proceeding under the Regulation for being agitated again.
The Defendant Nos.3 and 4, reiterating the stand taken by the
Defendant Nos.1 and 2 have stood in support of the orders passed in Misc.
Case No.4 of 1998 as well as Appeal No.49 of 2002. It is stated that all such
due procedures as provided in law holding the field have been scrupulously
followed and those orders being free from any illegality or infirmity have
remained un-interfered in the Writ Proceeding as well as the Appeal carried
therefrom. It is stated that the Suit is vexatious for no reason except to harass
the Defendant Nos.1 and 2, who are the members of the Scheduled Tribe with
a bid to deprive them of the fruit of the proceeding under the Regulation 2 of
1956 and grab their immovable property which forms the subject matter of
the Suit.
5. On the above rival pleadings, have framed in all ten issues.
Answering the crucial issue as to the jurisdiction of the Civil Court with
which we in this second Appeal are concerned, as on that score, the
substantial question of law has been formulated for being answered, together
with other two issues which are consequential as to the right, title and interest
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of the Plaintiff over the suit land vis-à-vis that of the Defendant Nos.1 and 2
as asserted, the Trial Court has non-suited the Plaintiff.
The unsuccessful Plaintiff having carried the First Appeal has
also lost therein. The Plaintiff has thus filed this Appeal before this Court.
6. The Appeal has been admitted on the following substantial
question of law:-
"Whether the finding of both the Courts below with
regard to issue no.v is contrary to principles laid down in
Paramananda Pradhan and another v. Palau Sahu and
others; 56(1983) CLT 482 (F.B.) and Mangulu Jal and
others v. Bhagaban Rai and others; 41 (1975) CLT 526?"
7. I have heard learned counsel for the Appellant and the learned
counsel for the Respondents at length. The judgments of the Trial Court as
well as the First Appellate Court have been carefully gone through. The
written notes of submissions filed by the learned counsels for the parties
being taken on record have been carefully read.
8. Section 7-E of the Regulation 2 of 1956 reads that no Civil Court
has any jurisdiction to decide any matter in a Suit which has already been
adjudicated by the Competent Authority under the Regulations. This section
in the Regulations creates a bar for the jurisdiction of the Civil Court to
entertain this Suit.
In case of Manglu Jal and others -v- Bhagaban Rai and others;
41 (1975) CLT 526, the Hon'ble Full Bench of this Court had the occasion to
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deal with the question of exclusion of the jurisdiction of the Civil Court by a
provision in the special statute.
9. Legal position has been well explained in the said decision as
also in the subsequent one, i.e., in case of Paramananda Pradhan and
another -v- Palau Sahu and others; 56 (1983) CLT 482 (FB). It is pertinent
to mention at this stage that those two decisions were not directly dealing
with the bar to suits as provided under section 7E of the Regulation 2 of
1956 and in those cases similar provision as to bar of suits and exclusion of
the jurisdiction of the Civil Courts in another Special Statue, i.e, Odisha
Merged Territories (Village Offices Abolition), Act, 1962 (for short, OMT
(VOA)Act) under consideration as to its applicability and the limit as to
permissibility on the part of the Civil Court in the matters thereto. Yet the
principles laid down therein get well attracted for deciding the issue
concerning similar provisions as to bar of suits and exclusion of the
jurisdiction of the Civil Court as provided in pari materia provision in other
Special Statutes.
It has been laid down therein that even if jurisdiction is
excluded, it is always open to the Civil Courts which are courts of general
jurisdiction to consider and decide whether the Statutory Tribunal has acted
within the ambit of the powers conferred upon it by the Statute to which it
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owes its existence or the provisions of the Act have not been complied with or
the Statutory Tribunal has not acted in conformity with the fundamental
principles of judicial procedure or it has transgressed the limits placed on its
powers by the Legislature. The Civil Court would interfere if it finds that the
order of the Statutory Tribunal is unfair, capricious or arbitrary.
Referring to the decision in case of Mangulu Jal (Supra), in case of
later Full Bench decision in case of Paramananda (Supra) what has been held
is reproduced hereinder :-
The question about the exclusion of the jurisdiction of the Civil
Courts to entertain a Suit by virtue of the specific provisions contained in
Orissa Act 10 of 1963 has been examined in the Full Bench decision of this
Court in the case of Mangulu Jal and others v. Bhagaban Rai and others, to
which one of us (P.K.Mohanti,J) was a party. In that case some Bhogra lands
were settled by the Collector after abolition of the village office by a Press
Note which had been issued prior to the enactment of Orissa Act 10 of 1963.
The Trial Court set aside the settlement made in favour of the defendants and
granted a decree for declaration of title and recovery of possession in favour
of the plaintiff. The appeal preferred by the defendants proved abortive.
During the pendency of the Second Appeal Orissa Act 10 of 1963 came into
force. Construing the provisions of the Act, the Hon'ble Full Bench held as
follows:-
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".........The Act provides a complete machinery for
determination of rival claims and when revision and appeal
have been provided to the High Court subject to which the
decision of the Board of Revenue will be final, it will be
fantastic to contend that the Civil Court has jurisdiction to try
those disputes. Ouster of jurisdiction of the Civil Court is
clearly implied........."
It was further held :
"......settlement made under the Press Note before the Act came
into force whether prior to the Suit or during the pendency of the
litigation would be governed by the provisions of the Press Note.
Civil Court will have no jurisdiction to set aside such settlement
except in the limited manner already pointed out.
Settlements made under the provisions of the Act during the
pendency of a litigation would be governed by the provisions of
the Act,"
10. In the above cited case, during pendency of the suit one schedule
property being dealt under OMT (VOA) Act were settled with Appellants and
Respondent no. 8 therein on 22.10.1971 under the provision of section 6 of the
said Act. The Appeal was even pending when the Second Appeal was disposed
of. After the Act came into force, the Gountia-raiyati lands settled with the
Appellants and Respondent no. 8 Dibakar Sahu. The decree for partition of
those lands among all the parties was found virtually amounting to setting
aside the settlement. It has been held that by virtue of section 3(g) of the OMT
(VOA) Act the Gountia ceased to have the right to hold the Gountia-raiyati
lands and after the lands were settled with the Appellants and Respondent no.8
therein under section 6 of the Act, they acquired good title to the same. So it
has been authoritatively t is said that the settlement thus made cannot be
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questioned in Civil Court when it is not shown that the settlement was made
without complying the provisions of the Act or that the Statutory Tribunal did
not act in conformity with the fundamental principles of judicial procedure and
further nothing was also shown that the order of settlement made by the
Statutory Tribunal is unfair, capricious or arbitrary. Having so held, the
Hon'ble Full Bench declared that the Civil Court has no jurisdiction to
entertain the Suit for Partition of the Gountia-raiyati lands, which would
unsettle the settlement in terms of the order of the Statutory Tribunal.
11. While approaching the matter to examine the contentions raised,
on examining the evidence on record, the Trial Court has stated thus:-
"The plaintiff has also filed and proved the entire order sheet
in Misc. Case No.4/98 disposed of by defendant no.3 and
marked as Ext.10 in the suit. It is stated in the affidavit
evidence at para-5 that proper opportunity was not given to
the present plaintiff in the court of Defendant No.3 to call
for some document and this is the only allegation against the
defendant no.3 in the affidavit evidence of P.W.1 finds place
at para-4 of its pleading. Upon perusal of the order sheet in
Misc. Case No.4/98 marked as Ext.10, it appears that there
is no material in the order sheet to show that the plaintiff
intended to call for some document on 19.10.20001 but on
19.11.2001 the Advocate for the OP filed a petition praying
therein to call for the original service book of the OP namely
Harun Nag from the S.P., Sundargarh. The further order
sheet shows that the said record was called for from the
office of S.P., Sundargarh. The order dated 7.3.2002 passed
in the said misc. case shows that Superintendent of Police
reported that no such A.S.I. namely Harun Nag was posted
since last ten years and the S.P. has requested the place of
posting and year of posting of Harun Nag and as such
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defendant no.3 directed the present plaintiff to furnish
details of informations as pointed out by the S.P. Sundargarh
to call for said documents. The further order sheet shows
that the present plaintiff did not comply the said order for
which the service book of Harun Nag could not be called for
from the S.P. office and on 8.7.2002 the case was fixed for
argument.
The plaintiff the challenged procedural irregularity by
defendant no.3 in not calling for the service book of Harun
Nag. There is no material to show either in the case record
of Misc. Case No.4 of 1998 as to how service book of Harun
Nag was a material document for just decision of that case
under clause-3 of Orissa Regulation-2 of 1956. Moreover, in
case it is a material document for some or other and the
plaintiff intends to get relief in this suit what debarred him to
file a petition in this Court to call for the said document
when the plaintiff has filed and proved some other ten
documents. Furthermore upon perusal of the facts and
materials involved in the case before the defendant no.3. I
find from the entire order-sheet supplied by the plaintiff
marked as Ext.10, it appears that defendant No.3 has acted
in conformity with the law laid-down in Regulation-2 of
1956 after giving reasonable opportunity and affording
natural justice to the plaintiff. Hence, this Court has no
jurisdiction to entertain a suit in view of bar under clause-
7(E) of Orissa Regulation-1 of 1956."
It has further placed the discussion as under:-
According to Regulation of Orissa Regulation-2 of 1956, transfer
of immovable property by member of Schedule Tribe in favour of a non-
Schedule Tribe without prior permission is void ab initio and of no force or
effect whatsoever. Order dtd.7.6.2002 passed in Misc. Case No.4/98 shows
that Book No.1 in Vol.6 from page No.153 to 156 pertaining to R.S.D.
No.580 dtd.17.05.61 was called for from the office of District Sub-Registrar,
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Sundargarh and it was produced by one Niranjan Patel, Sr. Clerk and both
parties accepted the same to be a genuine one and it was compared with the
certified copy submitted by the petitioner. The plaintiff in his pleading has
stated that the transaction was in the year 1955, but it appears that the
transaction was made on 17.5.1961 by registered sale deed which is long after
coming into force of Orissa Regulation-2 of 1956.
12. The First Appellate Court, referring to certain decisions, as to taking
recourse before the Civil Court on the face of the special law providing
Special Forums has held that the issues raised in the Suit having already been
raised before the Competent Authorities in different Forums and the answers
recorded therein, have attained finality. Therefore, for the Plaintiff to raise
said similar and identical issues in a Suit is not permissible and accordingly,
the Suit cannot be maintained.
13. The contention raised from the side of the Appellant in support
of bringing the case within the purview and scope for entertainment to the
Civil Suit in terms of the decision of this Court rendered by the Hon'ble Full
Bench is founded upon the fact that Bisam Kalo and Raghunath Kalo both
sons of Jayadev Kalo had filed T.S. No.68 of 1988 against Gopinath Kalo and
other co-sharers for partition where these Defendant Nos.1 and 2 being placed
as Plaintiffs, had admitted that Jayadev Kalo had sold land measuring Ac.0.12
decimals to the Head Master of Badagaon High School which had been so
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accepted in said T.S. No.68of 1988, the judgment of which is Ext.1. The said
judgment and decree passed in the Suit being challenged by these Plaintiffs as
Appellants, the said sale of land in favour of Badagaon High School was not
interfered with by the Appellate Court in its judgment marked Ext.4. So, it is
stated that Defendant Nos.1 and 2 are bound by the said judgments and in that
state of affair, the Defendant No.3 and 4 in disposing the proceeding under
the Regulation 2 of 1956 since have ignored the above vital fact and without
taking cognizance of the same, as have passed the final order had thus not
acted in conformity with the fundamental principle of judicial procedure and
have transgressed their limit placed by its power by the Legislature.
Therefore, it is urged that the Courts below committed grave error of law by
dismissing the Suit filed by the Plaintiffs merely holding that the orders
passed by the Defendant Nos.3 and 4 have attained finality.
The Regulation 2 of 1956 has been promulgated by the Hon'ble
Governor in exercise of the powers conferred in sub-paragraph 2 of paragraph
5 of the Fifth Schedule to the Constitution of India which is the legislative
function of Hon'ble The Governor in respect of the Scheduled Areas of the
State in so far as the members of Scheduled Tribe community are concerned.
This Regulation received the assent of His Excellency, The President on 2nd
September 1956 and published in the Odisha Gazette Extra Ordinary dated 4th
October 1956 with effect from which date, the Regulations became effective.
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The purpose of the Regulations is to control and check transfer of immovable
property in Scheduled Areas of the State of Odisha by Scheduled Tribes for
their protection in all respect. Section 3 begins with a not obstantee clause
that notwithstanding anything contained in law for the time being in force,
any transfer of immovable property by a member of the Scheduled Tribe
except by way of mortgage executed in favour of any public, financial
institution for securing a loan granted by such institution for any agricultural
purpose shall be absolutely null and void and of no force or effect whatsoever
unless such transfer is made in favour of any member of Scheduled Tribe.
Sub-section 2 of said section 3 of the Regulations speaks of the consequence
of such transfer of immovable property in contravention of the provisions
made at sub section 1. The most important feature of this sub-section 2 is that
the Competent Authority can initiate the proceeding for its culmination in
accordance with law on his motion and proviso thereto says that if the
restoration of immovable property to the transferer or his heirs is not
reasonably practicable, by recording the reasons and subject to the control of
the State Government, the said property can be settled with another member
of a Scheduled Tribe or in absence of any such member with any other
member in accordance with the provisions contained in the Orissa
Government Land Settlement Act, 1962. The restoration of possession has
been further clarified by the Explanation thereto which means the actual
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delivery of possession by the Competent Authority to the transferer or his
heirs.
The jurisdiction of the Competent Authority in the matter is no
more open to challenge in the Suit as section 7 E of the Regulations 2 of 1956
provides that no Civil Court can try and decide any suit or proceeding so far
as it relates to any manner which any which any Officer or other Competent
Authority is empowered by or under the Regulation to decide. The aforesaid
fact even though has not been touched upon by the Authorities, i.e.,
Defendant Nos.3 and 4, on the face of the provision of law, as stated above,
the same cannot term the orders passed by the Defendant Nos.3 and 4 as
unfair, capricious or arbitrary. Nor can the Defendant Nos.3 and 4 by not
taking cognizance of the above fact be said to have not acted in conformity
with the fundamental principles of judicial procedure and thereby
transgressed the limits placed on the power by the Legislature. In the case at
hand, even accepting the factual, position, the Plaintiff thereby nowhere can
retain his possession in respect of the suit land as he is not the beneficiary
under that transaction which is referred to.
14. The Authorities, in exercise of the jurisdiction conferred upon
them even though said for a moment to have gone to decide the matter
wrongly which was available to be corrected by the higher forum, the Civil
Court certainly cannot assume the jurisdiction to examine the sufficiency or
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adequacy of the materials in support of the said decisions. The procedure and
the remedies normally associated with actions in Civil Suits are provided and
prescribed and the same imply to oust the jurisdiction of the Civil Court. The
principles have been authoritatively set at rest by the Hon'ble Full Bench in
two cases, i.e., Mangulu Jal and Paramannda Pradhan (Supra) that the Civil
Court cannot sit over to examine the legality and propriety of the said order
touching the fundamental aspects which are required to be decided by the
Authority and its interference is permissible firstly on ground that the order is
unfair, arbitrary and capricious which conclusion has to be reached if on the
materials placed before the Collector, a reasonable man could not have
reached the same conclusion, but however unsatisfactory the conclusion may
be, it cannot be set aside merely because a different view is taken by the
Civil Court on the materials before it; the correctness of the decision cannot
be the subject matter of decision before the Civil Court. The other ground of
interference is the violation of the judicial procedures which if so surface on
record, so as to hold the order as unfair, capricious and arbitrary.
15. In our given case, the Trial Court in that exercise having
scrupulously examined the entire order-sheet of the proceedings before the
Authorities under the Regulation 2 of 1956 has not found anything to be
surfacing therefrom to conclude that the orders are unfair, capricious and
arbitrary which have gone uninterfered in exercise of the writ jurisdiction of
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this Court and also the Appellate Jurisdiction thereunder. The First Appellate
Court has not found any reason/justification to accord any note of dissent to
the said conclusions arrived at by the Trial Court.
For the discussions made in the foregoing paras, this Court does not
find the answer the substantial question of law in favour of unsettling the
above conclusions arrived at by the Courts below so as to annul the
judgments and decrees passed by the First Appellate Court confirming the
judgment and decree of the Trial Court.
16. The Appeal is accordingly dismissed. However, in the peculiar
facts and circumstances, no order as to cost is passed.
As the restrictions due to resurgence of COVID-19 situation are
continuing, learned counsel for the parties may utilize a printout of the order
available in the High Court's website, at par with certified copy, subject to
attestation by the concerned advocate, in the manner prescribed, vide Court's
Notice No.4587, dated 25th March, 2020 as modified by Court's Notice
No.4798 dated 15th April, 2021.
..........................
D. Dash, J.
Orissa High Court, Cuttack Dated the 23rd day of April, 2021/ B.Nayak.