Bairagi Charan Puhan and Two ors. Vs. Board of Secondary Education and Three ors. - 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]. m.m. das, j.1. heard learned counsel for the petitioner and the learned counsel appearing for the board of secondary education, orissa, cuttack.2. the grievance of the petitioners in this writ petition is that the students of the petitioners-institutions have been allotted with a centre to appear in prathama and madhyama examination, about 70 kms. away from their respective institutions. more than 200 students have appeared from the three petitioners-institutions.3. according to the learned counsel for the petitioner, a large number of girl students are to appear in the said examination, which is to commence from 27.3.2009.4. it is stated by the learned counsel appearing for the board of secondary education, orissa, cuttack that a centre has been allotted pursuant to the decision of the board, which was communicated to all the inspector of schools of the stale in which a decision was taken that in respect of prathama and madhyama sanskrit students, they shall be accommodated in a centre of the government school only preferably located in the district and sub-divisional headquarters and accordingly, the students of the petitioners-institutions have been allotted with a centre in bhadrak town, which is both sub-divisional and district headquarters.5. learned counsel for the petitioners, on the other hand, drew attention to clause-1 of the said letter of the secretary addressed to all the inspectors of schools wherein it has been stipulated for the regular candidates of 2009 h.s.c. examination, schools tagged to a centre should ordinarily be situated within 10 to 20 kms. distance from the centers. distance in case of girl's school should be relaxed.6. relying upon the aforesaid decision of the board, learned counsel for the petitioners submits that in the instant case, there has been a violation of the said decision by allotting a centre to the petitioners-institution, which is about 70 kms. away.7. be that as it may, the board of secondary education, orissa, cuttack while conducting the examination has primary duty to see that the students should not face any inconvenience in appearing in the said examination. allotting a centre about 70 kms. away from the petitioners-institutions, where the students were studying and that too, when the candidates are small children, ex facie shows that the students will face inconvenience in appearing in the said examinations. though the learned counsel appearing for the board of secondary education submite that the decision for allotment of a centre is taken by the district selection committee consisting of the collector, chairman, superintendent of police and the inspector of schools, that itself cannot be i ground to immune the decision which appears to be arbitrary.8. in view of the above, in the instant case, i find that the students of the petitioners-institutions in order to appear in prathama and madhyama examination, 2009, which is to commence from 27.3.2009, will be subjected to hardship in travelling for more than 70 kms. from their respective institutions to appear in the examination. i, therefore, direct that on production of the certified copy of this order before the secretary, board of secondary education, orissa, cuttack by any of the petitioners, the secretary shall immediately pass necessary orders to transmit the required number of question papers, answer scripts and other examination materials, which have already been sent to the centre allotted to the petitioners-institutions, to a centre within 20 kms. from the petitioners-institutions and the students of the petitioners-institutions shall be issued with admit cards with necessary correction to appear in such centre which is to be allotted pursuant to this order. this shall be done, if the certified copy of this order is presented before the secretary, board of secondary education, orissa, cuttack by forenoon tomorrow (25.3.2009).9. with the aforesaid observations and directions, the writ petition is disposed of.10. urgent certified copy of this order be granted in course of the day on proper application.11. a copy of this order be handed over to the learned counsel appearing for the board of secondary education, orissa cuttack.