Alaka Bhoi Vs. Santosh Bhoi - 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]. - both sides led evidence, but the trial court analysing the same though held that the opposite party had failed to prove illicit relationship of the petitioner with bhramarbar mahakud yet concluded that the petitioner had not established the fact of ill-treatment and torture to her and that there was no lawful excuse for her living apart from the husband.l. rath, j.1.this application under section 482 cr.p.c. is directed against the original order of the s.d.j.m., sambalpur dismissing her application under section 125 cr.p.c claiming maintenance from the opposite party and the revisional order of the additional sessions judge, sambalpur confirming the order of the s.d.j.m. the petition registered as criminal misc. case no. 52 of 1988 put forth a case that the parties were married but the petitioner was being neglected and not given food or clothings as she had not brought sufficient dowry. during the dasehara of 1987 when she had been to her parents' house, she fell ill. after recovery when she came to her husband's house, she was mercilessly beaten and driven out of the house and since then she has been staying with her parents. the opposite party filed show-cause in the case taking the stand, while admitting the marriage, that the petitioner was a unchaste lady arid had developed illicit relationship with one bhramarbar mahakud besides stating that he was willing to maintain her if she would come and reside with him. both sides led evidence, but the trial court analysing the same though held that the opposite party had failed to prove illicit relationship of the petitioner with bhramarbar mahakud yet concluded that the petitioner had not established the fact of ill-treatment and torture to her and that there was no lawful excuse for her living apart from the husband. being of that view he dismissed the petition for maintenance which order was upheld in appeal.2. the sole submission raised by mr. routray is that since the opposite party came with the case of the petitioner being unchaste and such plea was not found to be correct, that fact itself entitled the petitioner to maintenance. reliance for the purpose is placed on, 67(1989) clt 392, (smt. pramila dei @ kunj v. sanatan jena), wherein it was held that if an allegation of unchastity is made against the wife and payment of maintenance is sought to he avoided on the ground of her living in adultery but the plea fails, the plea by itself is sufficient to entitle her to remain apart from her husband. the decision relied upon was however held by the learned s.d.j.m. not to be applicable to the present case since though the opposite party had taken the plea of unchastity of the petitioner, yet had abandoned the same and had not led any evidence on the issue. similar view was also taken by the revisional court3. the view adopted by both the courts below is highly erroneous and contrary to the reported decision. the pleadings of the parties are not idle phrases or words but instead reveal the stand adopted by then in pursuit of their cases. once a stand is taken, the import of it is made known not only to the other side but to the whole world who cares to look at it. it is another thing that a plea once taken is not pursued depending upon the party which has taken it. but that by itself would not in any way diminish the injury made. what was observed in pramila dei's case (supra) was that the plea of unchastity causes mental anguish of the deepest character with grave psychio assault and shatters the marital peace and makes living together incompatible. hence it makes no difference if the opposite party does not pursue the stand. the view taken in pramila dei's case was also lateron followed in (1991) 4 ocr 465, (anupam pradhan v. sultan pradhan), and even in an earlier case in 59 (1985) clt 11, (ananta bhottamisra v. smt. saraswati bhottamisra), the same view had been taken. in that view of the matter, both the judgments of the courts below are not sustainable and are liable to be quashed and the petitioner declared as entitled to maintenance.4. since the learned s.d.j.m. did not address himself on the question of quantum of maintenance and left the question open, this case is remanded to him for determining the quantum of maintenance the petitioner is entitled to. the l.c.rs. be sent back. the learned s.d.j.m. shall dispose of the matter within three months of receipt of the l.c.r. from this court.