Sanjay Kumar Mohapatra and anr. Vs. Unilever Venture Capital and Investment Consultants Limited and anr. - 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]. - 179 of 199 3 in the court of learned subdivisional judicial magistrate, bhubaneswar (in short, the magistrate) alleging that the petitioners have committed an offence punishable under section 500 of the indian penal code, 1860 (in short, ipc). on perusal of the complaint petition, the initial statement of the complainant and the statement of witness ftabindra kumar jena, recorded under section 202 of the code, learned magistrate was satisfied that a prima facie case 'under section 500, ipc against the accused-petitioners was made cut. an important maxim 'boni judicis est lites dirimare, ne lis ex lite critur, et interest reipublicae ut sint fines litium' (it is the duty of a good judge to put an end to litigation, that suit may not grow out of suit and it concerns the welfare of the state that an end be put to litigation) has to be kept in mind by the presiding officer of every court.a. pasayat, j.1. this petition filed under section 482 of the code of criminal procedure, 1973 (in short, 'the code') presents some unusual features. a court of law is not to be utilised as an instrument of harassment to any person. court has to deal with iron hands those abuse process, of saw. it would be a travesty to permit a party to 'persecute' instead of 'prosecuting'.2. the opposite parties (also described as 'complainants') filed icc no. 179 of 199 3 in the court of learned subdivisional judicial magistrate, bhubaneswar (in short, 'the magistrate) alleging that the petitioners have committed an offence punishable under section 500 of the indian penal code, 1860 (in short, ipc). on perusal of the complaint petition, the initial statement of the complainant and the statement of witness ftabindra kumar jena, recorded under section 202 of the code, learned magistrate was satisfied that a prima facie case 'under section 500, ipc against the accused-petitioners was made cut. accordingly cognizance of the offence was taken-. against such order of learned magistrate, criminal revision no. 2 of 1994 was filed in the: court of learned additional sessions judge, bhubaneswar. on 23-4-1994, opposite parties in the revision application (the present opposite parties who were complainants) filed an application in the said court in the aforesaid criminal revision to send back the tower court records in icc no. 179 of 1993 to the learned magistrate and/or set aside the order of cognizance dated 3-12-1993 passed by learned magistrate. on that day, another application was filed before the learned magistrate in the concerned complaint case stating that the complainants may be' permitted to withdraw the complaint case. on 23-4-1994, the complainants filed an application for advancing the date and to take up the case records for final order. the prayer was not accepted by the learned addl. sessions judge on the ground that the matter shall be taken up on 25-4-1994, on 25-4-1994, prayer was made by the learned counsel for petitioners to give him two days time to get ready for hearing of the revision application. the prayer was not accepted. oral prayer made for adjournment was rejected, and the matter was directed to be placed on 5-5-1994 for judgment.3 the judgment dated 5-5-1994 was passed holding that there was no scope to interfere with the order taking cognizance and to set aside such order by exercising the revisions jurisdiction. on 7-5-1994 the learned counsel for complainant filed an application not to press the petition dated 23-4-1994 which contained the prayer not to press the complaint. that was not the date to which the matter was posted. learned magistrate accepted the prayer made by the opposite parties not to press the petition dated 23-4-1994, and treated the same as not pressed. the matter was directed to be put up on the date fixed for appearance of the accused. it is to be noted that another petition was filed on 3-4-1995 with prayer to withdraw the complaint. that was rejected on the ground that this court's order of stay was operative.4. according to the learned counsel appearing for the petitioners, the course adopted by the learned magistrate is not sanctioned in law. the petition for not pressing the withdrawal petition was taken up on a date to which the matter was not posted. even the petitioners were not granted the opportunity to have their say in the matter.5. none appears for the opposite parties when the matter is called.6. the scenario as presented by the present petitioners reveals that the opposite praties played hide and seek with the court of justice. they were insistent for withdrawal of the complaint. two applications were filed for that purpose, one before the learned magistrate, and the other before the revisional court. the prayer on 23-4-1994 before the revisional court was to take up the matter that day so that the records can be sent back to the learned magistrate for passing orders on the prayer for not pressing the complaint. 0n 23-4-1994 the learned magistrate passed the following order:'the record is put up today on the strength of an advance petition filed by the complaint advocate. the complainant files fresh vakalatnama in favor of advocate shri p. k. mohanty and ors. a withdraw the case is filed by the complaint's advocate . heard. the original record has already beer hon'ble addl. or sessions judge, bhubaneswar for , reference in c. r. no. 2 of 1994 which was not yet barn received this petition for consideration after receipt of the record from the court of hon'ble addl. sessions judge, bhubaneswar.'7. there is substance in the plea of learned counsel for the petitioners that after the revisional court upheld the order taking cognizance, the complainants changed their mind and the considerations which weighed with them to seek withdrawal of the complaint got obliterated with the oblique motives, and resulted in making prayer before the learned magistrate not to press the petition dated 23-4-1994. the petitioners had no chance to have their say before the learned magistrate. there has been clear violation of principles of natural justice. the matter was not posted to 7-5-1994, and, therefore, it could not have been taken on that date, that too without sufficient and adequate notice to the present petitioners.8. natural justice has been variously defined by different judges. a few instances will suffice. in drew v. drew and leburn : (1855) 2 maco. 1, 8. lord granworth defined it as 'universal justice'. in james dunbar smith v. her majesty the queen : (1877-78) 3 app. cas. 614, 623 j.c. sir robert s. collier, appearing for the judicial committee of the privy council, used the phrase 'the requirements of substantial justice', while in arthur john spockman v. the plunstood district board of works : (1884-85) 10 app. cas. 229, 240. karl of selborne, l. c. preferred the phrase the 'substantial requirements of justice'. in voinet v. barrett : (1885) 55 ljrd 38, 41 lord esher. m. r. defined natural justice as the natural sense of what is right and wrong. while, however, deciding hopcking v. smethwick local board of health : (1890) 24 q b d 712,716. lord esher, m. r. instead of using the definition given earlier by him in voinet v. barret chose to define natural justice as 'fundamental justice'. in sidge v. baldwin : (1963) 1 q b 539, 578 harman, j. in the court of appeal equated natural justice with 'fair play in action, a phrase favoured by bhagwati, j., in menaka gandhi v. union of india : (1978) 2 scr 621, 676 : (air 1978 sc 597 at pp. 625-26). in re w. n. (an infact) ,1967) 2 q b 617, 630 lord parker. c. j. preferred to describe natural justice as a duty to act fairly. in fairmount investments ltd., v. secretary to state for the environment (1976) 1 wlr 1255, 1265-66 lord russell of killowan somewhat picturesquely described natural justice as 'a fair crack of the whip', while geoffrey lane, l . j. in regina v. secretary of state for home affairs, ex parte hosanball : (1977) 1 klr 766, 784 preferred the homely phrase 'common fairness'.9. how then have the principles of natural justice been interpreted in the courts and within what limits are they to be confined? over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. they constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which, is not the preserve of any particular race or country but is shared in common by all men. the first rule is 'nemo judex in causa sua' or 'nemo debet esse judex in propria causas, as stated in (1605) 12 co. rep. 114 that is. no man shall be judge in this own cause. coke used the form 'aliquis non debet esse judex in proprin causa quia non potest esse judex et pars (co. litt. 1414), that is, no man ought to be : a judge in his own causa, because he cannot act as judge and at the same time be a party we form nemo potest esse simul actor et judex', that is, 'no one can be at once suitor and judge' is also at times used. the second rule and that is the rule with which we are concerned in this writ petion is 'audi alteram partem', that is, 'hear the other side. at times and particularly in continental countries the form audietur et ulter pars is used, meaning very much the same-thing. a corollary has been deduced from the above two rules and-particufar the audi alteram partem rule, namely, qui aliquid statuerit parte inaudlta altera aequum licet dexerit, haud aequum facerit, that is,'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right : (see doswell's case (1605) 6 co. rep. 48b, 52a), or in the words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be done.10. the stand of the petitioners is that they were confident that the opposite parties would not pursue the matter cannot be said to be without substance. if the complaint would not have been pressed, certainly the present petitioners would have been free from the litigation. it cannot be said that they had no interest in the matter, and they brought to the notice of the learned magistrate that the prayer made by the opposite parties not to press their earlior application was intended to cause harassment. since there has been breach of natural justice, on that question alone the order dated 7-5-1994 is vulnerable. the question, however, has become ecademic in view of the petition dated 3-4-1995 filed before the learned magistrate to withdraw the complaint.an important maxim 'boni judicis est lites dirimare, ne lis ex lite critur, et interest reipublicae ut sint fines litium' (it is the duty of a good judge to put an end to litigation, that suit may not grow out of suit and it concerns the welfare of the state that an end be put to litigation) has to be kept in mind by the presiding officer of every court.11. the proceedings in icc no. 179 of 1995 in the court of learned subdivisions} judicial magistrate! bhubaneswar are quashed and this petition is allowed.