Sri Ranjan Kumar Mishra Vs. Headmaster, M.P.C. High School and anr. - Court Judgment

Excerpt:

- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. .....the said section. this court in the said case held that a prohibitory order along with a preliminary order under section 145 cr.p.c. is neither factually nor illegally required to be passed. at the time of taking action under section 145(1) cr.p.c., if, at all, the magistrate found the circumstances to be one of emergency, that parties should be restrained from entering into the case land, he can only pass an order under section 146 cr.p.c. for attachment and if necessary, can appoint a receiver to take care of the property until disposal of the proceeding under section 145 cr.p.c.5. applying the ratio of the said decision, the above quoted portion of the impugned order passed by the learned s.d.m., baripada cannot be sustained. the said prohibitory order restraining both the parties from entering upon the disputed land till finalization of the proceeding is accordingly set aside. since the proceeding under section 145 cr.p.c. is pending from the year, 2008, the learned s.d.m., baripada is directed to dispose of the said case by the end of november, 2009. parties are directed to co-operate in the hearing.6. it is made clear that in the event of any emergency situation, if.....

Judgment:

ORDER

M.M. Das, J.

1. Heard Mr. S.P. Mishra, learned senior counsel for the petitioner and the learned Counsel appearing for the opp. parties.

2. The petitioner has called in question the order dated 4.11.2008 passed by the learned S.D.M., Baripada in C.M.C. No. 713 of 2008 restraining both the parties from entering into the disputed land till finalization of the proceeding under Section 145 Cr.P.C. It appears that a petition under Section 145 Cr.P.C. for initiation of the proceeding was filed by the opp. party as first party member against the petitioner as second party member. The learned S.D.M., Baripada on considering the said application directed the Tahasildar, Betnoti to enquire and submit a report on the subject of dispute within three days. The O.I.C., Betnoti P.S. was also directed to enquire and submit a report whether there is existence of breach of peace as regards the land in dispute between the parties. On submission of such report, the learned S.D.M., Baripada after recording the findings in the impugned order passed an order under Section 145(1) Cr.P.C. directing both the parties to appear before him on 29.11.2008 and file their written statements/documents etc. in support of their respective claims. While thus directing, the learned S.D.M., Baripada further ordered as follows:

It is further ordered that both parties are here by restrained from entering upon the disputed land till finalization of this proceeding.

3. It is the above quoted portion of the impugned order by which the petitioner being aggrieved has approached this Court in the present application under Section 482 Cr.P.C.

4. Mr. Mishra, learned senior counsel appearing for the petitioner relying upon the decision in the case of Swarup Kumar Sundara v. State of Orissa and two Ors. : 2000 (I) OLR 482 submits that this Court has laid down in the said case that in a proceeding under Section 145 Cr.P.C., no prohibitory order can be passed simultaneously along with a preliminary order under the said section. This Court in the said case held that a prohibitory order along with a preliminary order under Section 145 Cr.P.C. is neither factually nor illegally required to be passed. At the time of taking action under Section 145(1) Cr.P.C., if, at all, the Magistrate found the circumstances to be one of emergency, that parties should be restrained from entering into the case land, he can only pass an order under Section 146 Cr.P.C. for attachment and if necessary, can appoint a receiver to take care of the property until disposal of the proceeding under Section 145 Cr.P.C.

5. Applying the ratio of the said decision, the above quoted portion of the impugned order passed by the learned S.D.M., Baripada cannot be sustained. The said prohibitory order restraining both the parties from entering upon the disputed land till finalization of the proceeding is accordingly set aside. Since the proceeding under Section 145 Cr.P.C. is pending from the year, 2008, the learned S.D.M., Baripada is directed to dispose of the said case by the end of November, 2009. Parties are directed to co-operate in the hearing.

6. It is made clear that in the event of any emergency situation, if any application is filed under any of the provision under Chapter X of the Cr.P.C., the said application shall be dealt with in accordance with law by the learned S.D.M., Baripada.

7. The CRLMC is accordingly allowed.

8. Urgent certified copy of this order be granted on proper application.