Padmalochan Panda Vs. State of Orissa - Court Judgment

Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. -- state financial corporations act, 1951. section 29; discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the loanee. on the other hand the vehicle having been found indulged in forest offences was made subject matter of a confiscation proceedings, and therefore, the procedure followed for confiscation of the vehicle and for its sale is punitive in nature and not with a view to give benefit to anybody including the department which initiated the confiscation proceeding. apart from that, the claim of the orissa state financial corporation as against its loanee (who had taken the vehicle on hire- purchase agreement) brings the loanee and the sureties within the default clause under the state financial corporation act, 1951 or the heirs and successors of such persons. procedure is provided in the act, 1951 and the rules thereof about the manner in which such loan is to be recovered, and in that context only the vehicle under the hire-purchase agreement is placed as the first charge. if such property is not available for any reason, then the loan is not automatically waived or the loanee and his sureties are not automatically redeemed of the liabilities to repay. the financial corporation is concerned with repayment of loan either from the property or persons offered as surety. thus, a vehicle, which is subject matter of confiscation proceeding under the act, 1872, being not available to the orissa state financial corporation for adjustment of the unpaid loan, that does not at all bring out an anomalous situation so as to defeat the right of the orissa state financial corporation. agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive, but it remains as a reward to the accused of forest offence. such a concept is totally not conceivable from any provision in the act, 1972 or the act, 1951. [air 2002 orissa 130 overruled]. - in fact, a list of properties was appended to the document to show that all the properties were separately allotted to the members of the joint family in the partition of 1949. law is well-settled that a document recording an acknowledgement of previous partition is not compulsorily registrable. if the high court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the court may refer the case back to the tribunal to make such additions thereto or alteration therein as the court may direct in that behalf.g.k. misra, c.j.1. deceased, brajamohan panda, was assessed with agricultural income-tax for the assessment year 1951-52. his case was that there was a partition between him and his sons in the year 1949 and it is only the income from his share that was assessable and not the income of the entire property which belongs to all the sharers. his stand has been rejected by all the assessing authorities including the tribunal. he died during the pendency of the second appeal before the tribunal. his son, the present petitioner, has been substituted in his place. being aggrieved by the order of the tribunal, the petitioner asked for certain questions of law arising out of the order of the tribunal to be referred to the high court under section 29(2) of the orissa agricultural income-tax act, 1947 (hereinafter referred to as 'the act'). four questions were framed. the tribunal rejected questions nos. (2) and (3) but referred questions nos. (1) and (4) which run thus :' (1) whether, in the facts and circumstances of the case, the acknowledgment of previous partition is required to be registered ? (4) whether, in the facts and circumstances of the case, there was partition of the properties of the assessee's family ?' facts connected with question no. (1) may be stated in brief. the petitioner relied upon an unregistered document dated october 16, 1952, wherein there is a recital that in 1939, his eldest son, sashibhusan panda, died issueless. there was some ill-feeling amongst the members of the family and accordingly in 1949, while the petitioner and his sons were in a joint family, there was an amicable partition by metes and bounds. a list of properties falling to the share of each member of the family was attached to the said document. the petitioner's stand was that thisdocument merely acknowledged the previous partition by metes and bounds of the year 1949, and did not require registration, and, as such, it is admissible in evidence in proof of partition. the tribunal, on the basis of the statement of late brajamohan panda dated march 1, 1952, came to the conclusion that there was an intention of the parties that the amicable partition would only be given effect to by a registered deed of partition. he held that the unregistered document dated october 16, 1952, required compulsory registration and was inadmissible in evidence. it is on the basis of the aforesaid facts that question no. (1) has been referred to.2. the recital of this document is clear that there was a previous partition in 1949, and the document was executed acknowledging the previous partition. in fact, a list of properties was appended to the document to show that all the properties were separately allotted to the members of the joint family in the partition of 1949. law is well-settled that a document recording an acknowledgement of previous partition is not compulsorily registrable. (see brajamohan das v. radhamohan das, a.i.r. 1961 orissa 41 and deo chand v. shiv ram, [1969] 3 s.c.c. 330 (s.c.). question no. (1) must, therefore, be answered in the negative, that is to say, a document recording acknowledgment of previous partition does not require registration.3. question no. (2) is one of fact, and in the manner it has been worded, we would have refrained from answering the same, as it is not a question of law arising out of the order of the tribunal. but, in view of our answer to question no. (1), a further question does arise for determination by the tribunal.4. the order of the tribunal rejecting the contention of a previous partition was based on its finding that the unregistered document of october 16, 1952, was inadmissible in evidence on account of non-registration, and on a further finding that the deed of gift executed by late brajamohan panda in favour of his daughter was not acted upon. that registered deed of gift contained a recital that there was a previous partition'in 1949. in the application for reference the petitioner says that as many as 35 documents were filed for consideration of the assessing authorities and the tribunal. no counter has been filed on behalf of the state challenging this statement. at any rate, the order of the tribunal does not show on what materials the assertion that there was a previous partition was rejected except by exclusion of the unregistered deed from consideration.5. members of a hindu mitakshara family consisting of father and sons arepresumed to be joint. the onus is on the assessee to establish by production of evidence to the satisfaction of the assessing authorities that the properties had been partitioned. if such evidence is unsatisfactory, the presumption stands unrebutted. the tribunal misdirected itself in not referring to all the materials on record and reached an erroneous conclusion inlaw that the unregistered document is not admissible in evidence. in view of our answer to question no. (1) that the unregistered document does not require registration, the tribunal is to examine all materials and record a finding regarding partition.6. unfortunately, question no. (2) is not so framed. the point for consideration is whether we have power to reframe question no. (2) so that the tribunal would reconsider all the evidence relating to the partition.7. the high court can reframe questions under section 29(5) of the act which runs thus:' if the high court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the court may refer the case back to the tribunal to make such additions thereto or alteration therein as the court may direct in that behalf.'it is analogous to section 66(4) of the indian income-tax act, 1922. the same has received judicial consideration in commissioner of income-tax v. anusuya devi, [1968] 68 i.t.r. 750, [1968] 2 s.c.r. 466 (s.c.). therein, it was held that the power to reframe a question may be exercised to clarify some obscurity in the question referred, to pinpoint the real issue between the taxpayer and the department or for similar other reasons. it cannot be exercised for reopening questions of facts or law which are closed by the order of the tribunal. it would be confined only to materials and evidence already on record. the same view had been taken in l. k. joshi & co. v. state of orissa, s.j.c's. nos. 58 to 62 of 1965. the real issue now is that if the tribunal's view that the unregistered document is inadmissible in evidence is not accepted, it must reconsider all the materials on record to find out if there was partition in the family prior to the assessment year in question.8. we accordingly reframe question no. (2) as follows:' if question no. (1) is answered in the negative whether the tribunal would re-examine the materials on record to come to a conclusion regarding partition one way or the other ?'the reframed question is answered in the affirmative.9. in the result, the reference is accepted as indicated above. there will be no order as to costs. the fee deposited by the assessee for reference be refunded to him.patra, j.10. i agree.