Dhadi Muduli Vs. Natabar Muduli - 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]. - 31 of 2003 rejecting the petition filed by the petitioner under order-26, rule 9 for deputing a survey knowing commissioner as well as the order of dismissal of revision filed by him before the ad hoc additional district judge, puri. 5 and 6 are concerned, the court was of the view that the same could be better answered by any survey knowing person in the court itself by making cross check of the maps and accordingly rejected the petition. 5 and 6 could be better answered by the survey knowing person, the court should have at least appointed a survey knowing commissioner for the purpose of ascertaining the question raised in respect of the said two items.l. mohapatra, j.1. this writ application is directed against the order dated 31.8.2002 passed by the learned civil judge (jr.division), nimapara in title suit no. 31 of 2003 rejecting the petition filed by the petitioner under order-26, rule 9 for deputing a survey knowing commissioner as well as the order of dismissal of revision filed by him before the ad hoc additional district judge, puri.2. the petitioner had filed the aforesaid suit for declaration of title and permanent injunction apart from other consequential reliefs. thecase of the petitioner is that in the r.o.r. of 1927 settlement the c.s. plot no. 1013 covering an area of ac.0.04 decimals under c.s. khata no. 176 in mouza-sudhikeshar stood recorded in the name of san sundari muduli and sasi muduli in. stitiban status and that they were possessing the same and using it as homestead. sasi muduli died leaving behind nata muduli as his only legal heir who is defendant in the suit. the plaintiff-petitioner is the legal heir of san sundari muduli and an application was filed by the petitioner under order 26, rule 9 of the c.p.c. to ascertain.(i) whether the c.s. plot no. 1013 covers an area of 0.4 decimals only on record and map or at the spot.(ii) whether 3 decimals out of c.s. plot no. 1013 has been amalgamated in hal plot no. 554.(iii) whether the c.s. plot no. 1013 covers an area of only 1 decimals whereas it has been recorded as 4 decimals.(iv) whether any part of c.s. plot no. 1013 corresponds to hal plot no. 554.(v) whether the hal plot no. 554 corresponds to c.s. plot no. 1012, 1013,1014/1005.(vi) whether the western or southern portion of hal plot no. 554 including the suit plot corresponds to the c.s. plot no. 1013.3. an objection had been filed to this petition. after hearing of the parties, the learned civil judge held that items no. 1 to 4 as indicated above could be determined by super imposing the relevant maps in the court itself and spot inquiry is not required. so far as item nos. 5 and 6 are concerned, the court was of the view that the same could be better answered by any survey knowing person in the court itself by making cross check of the maps and accordingly rejected the petition. challenging the said order, the petitioner filed a revision before the ad hoc additional district judge, puri and the said revision was dismissed as not maintainable.4. shri s.k. mishra, the learned counsel appearing for the petitioner drew attention of the court to the paragraph-8 of the trial court order and submitted that since the trial court was of the view that items no. 5 and 6 could be better answered by the survey knowing person, the court should have at least appointed a survey knowing commissioner for the purpose of ascertaining the question raised in respect of the said two items.5. on perusal of the order, it appears that in relation to the last two items, the trial court was of the view that a survey knowing person could be examined in the court and such survey knowing person could make statement in court by cross-checking maps. the court never thought of deputing a survey knowing commissioner to the spot for verification.6. in view of the above, i am of the considered opinion at the present stage deputing a survey knowing commissioner for the above purpose is not required as observed by the trial court. only, in the event, it is not possible on the part of the trial court to pass an effective decree on the evidence adduced before it, the court may think of deputing a survey knowing commissioner for the purpose of identification of the suit property. it is, therefore, observed that after closure of the evidence, if such contingency arises, either party may move the court for appointment of a survey knowing commissioner and if such application is filed after closure of evidence, the trial court shall consider the same keeping in mind the existing materials available on record and as to whether an effective decree can be passed on the existing materials or survey knowing commissioner is required to be deputed for passing an effective decree.7. the writ application is accordingly disposed of.