Smt. Satyabhama Mohapatra Vs. Chairman-cum-managing Director, Grid Corporation of Orissa Ltd. and ors. - 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. - such submission made by the counsel for opposite parties 1 to 4 as well as the counsel for the petitioner appears to be justified.orderp.k. misra, j.1. the petitioner in this writ application has prayed for issuance of a direction to opposite parties 1 to 4 to supply electric connection to the residential house of the petitioner. it is also prayed that opposite parties 5 and 6 may be directed to afford necessary police help for the pur-pose of facilitating the work of opposite parties 1 to 4 at the spot.2. the petitioner wants to take electric supply connection to her house for which application has been made. it appears that even though opposite parties 1 to 4 were inclined to provide electric connection, due to the resistance by opposite party no. 7, no such connection could be given. the petitioner has filed annexure-4, the sketchmap, showing the location of the house and the pole from which the connection is to be obtained. the petitioner has also relied upon the order dated 22.2.1993 under section 147, code of criminal procedure, in criminal misc case no. 541/91, wherein the executive magistrate has declared that the present petitioner has right to use the disputed land described in the said order as a passage. it is submitted by the learned counsel for the petitioner that in view of such order, which has not been challenged, there is no justification on the part of opposite party no. 7 to create any disturbance.3. section 147, code of criminal procedure, envisages dispute concerning right of use of land or water. section 147(2) is quoted hereunder :--' 147.(2) the magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if possible, decide whether such right exists, and the provisions of section 145 shall, asfar as may be, apply in the case of such inquiry.'aperusal of the aforesaid provision makes it clear that the provisions of section 145, cr.p.c., may be applied in the case of such enquiry. in other words, the procedure contemplated under section cr.p.c., is followed while making enquiry and passing any subsequent order under section 147. under section 147(3), code of criminal procedure, if the magistrate comes to a conclusion that the right claimed is in existence, he is to make an order prohibiting any interference with the exercise of such right. though there is no specific provision contained in section 147, code of criminal procedure, regarding the right of any aggrieved party to establish his right or disprove the right claimed in any competent court, there cannot be any doubt that, in fact, any order passed by the magistrate under section 147 would be subject to determination of right in any competent court, if and when such occasion arises. however until such rights are established before the competent court in accordance with law, the order under section 147(3), code of criminal procedure, is to continue and the parties are to respect such order. this position is clear in view of the provisions contained in section 145, code of criminal procedure, which are applicable, as far as may be, to the proceeding under section 147, code of criminal procedure.4. in the present case it has been asserted that the order under section 147, code of criminal procedure, has not been modified by the high court or any other competent court. since a right of possession of the petitioner has been declared, there is no difficulty on the part of the opposite parties 1 to 4 to give electric connection either over the said land or if it would be more convenient by laying cable underground through the same land. learned counsel appearing for opposite parties 1 to 4 submitted that even though opposite parties 1 to 4 give electric connection and were taking steps, opposite party no. 7 had raised violent objection. therefore, it has been submitted that necessary police help may be made available. such submission made by the counsel for opposite parties 1 to 4 as well as the counsel for the petitioner appears to be justified. having regard to the facts and circumstances of the case, i dispose of the writ application with a direction to oppositeparties 1 to 4 to give electric connection to: the house of the petitioner through the passage as described in the order under section 147, code of criminal procedure, under annexure-2. if opposite parties 1 to 4 find it more convenient to give the electric connection through cable by laying such cable underground, the same may be done; otherwise overhead connection may be made. the opposite parties 5 and 6 are directed to render necessary assistance at the time of giving such connection. it goes without saying that if any additional expense is required for the purpose of giving connection through cable, such amount shall be deposited by the petitioner. this order shall be communicated to opposite parties 1 to 6. requisites for communication of the order shall be filed within three days.

Judgment:
ORDER

P.K. Misra, J.

1. The petitioner in this writ application has prayed for issuance of a direction to opposite parties 1 to 4 to supply electric connection to the residential house of the petitioner. It is also prayed that opposite parties 5 and 6 may be directed to afford necessary police help for the pur-pose of facilitating the work of opposite parties 1 to 4 at the spot.

2. The petitioner wants to take electric supply connection to her house for which application has been made. It appears that even though opposite parties 1 to 4 were inclined to provide electric connection, due to the resistance by opposite party No. 7, no such connection could be given. The petitioner has filed annexure-4, the Sketchmap, showing the location of the house and the pole from which the connection is to be obtained. The petitioner has also relied upon the order dated 22.2.1993 under Section 147, Code of Criminal Procedure, in criminal Misc case No. 541/91, wherein the Executive Magistrate has declared that the present petitioner has right to use the disputed land described in the said order as a passage. It is submitted by the learned counsel for the petitioner that in view of such order, which has not been challenged, there is no justification on the part of opposite party No. 7 to create any disturbance.

3. Section 147, Code of Criminal Procedure, envisages dispute concerning right of use of land or water. Section 147(2) is quoted hereunder :--

' 147.(2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and if possible, decide whether such right exists, and the provisions of Section 145 shall, asfar as may be, apply in the case of such inquiry.'

Aperusal of the aforesaid provision makes it clear that the provisions of Section 145, Cr.P.C., may be applied in the case of such enquiry. In other words, the procedure contemplated under Section Cr.P.C., is followed while making enquiry and passing any subsequent order under Section 147. Under Section 147(3), Code of Criminal Procedure, if the Magistrate comes to a conclusion that the right claimed is in existence, he is to make an order prohibiting any interference with the exercise of such right. Though there is no specific provision contained in Section 147, Code of Criminal Procedure, regarding the right of any aggrieved party to establish his right or disprove the right claimed in any competent court, there cannot be any doubt that, in fact, any order passed by the Magistrate under Section 147 would be subject to determination of right in any competent court, if and when such occasion arises. However until such rights are established before the competent court in accordance with law, the order under Section 147(3), Code of Criminal Procedure, is to continue and the parties are to respect such order. This position is clear in view of the provisions contained in Section 145, Code of Criminal Procedure, which are applicable, as far as may be, to the proceeding under Section 147, Code of Criminal Procedure.

4. In the present case it has been asserted that the order under Section 147, Code of Criminal Procedure, has not been modified by the High Court or any other competent Court. Since a right of possession of the petitioner has been declared, there is no difficulty on the part of the opposite parties 1 to 4 to give electric connection either over the said land or if it would be more convenient by laying cable underground through the same land. Learned counsel appearing for opposite parties 1 to 4 submitted that even though opposite parties 1 to 4 give electric connection and were taking steps, opposite party No. 7 had raised violent objection. Therefore, it has been submitted that necessary police help may be made available. Such submission made by the counsel for opposite parties 1 to 4 as well as the counsel for the petitioner appears to be justified. Having regard to the facts and circumstances of the case, I dispose of the writ application with a direction to oppositeparties 1 to 4 to give electric connection to: the house of the petitioner through the passage as described in the order under Section 147, Code of Criminal Procedure, under Annexure-2. If opposite parties 1 to 4 find it more convenient to give the electric connection through cable by laying such cable underground, the same may be done; otherwise overhead connection may be made. The opposite parties 5 and 6 are directed to render necessary assistance at the time of giving such connection. It goes without saying that if any additional expense is required for the purpose of giving connection through cable, such amount shall be deposited by the petitioner. This order shall be communicated to opposite parties 1 to 6. Requisites for communication of the order shall be filed within three days.