Rajayya Bosi Vs. Union of India (Uoi) and 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]. - ..the above clearly shows that the tribunal has no power to entertain the review application if it is filed beyond the time stipulated.r.k. patra, j.1. in this writ petition the legality of the order dated 26.2.1998 made by the central administrative tribunal in review application no. 54 of 1994 is under challenge. following are the two points which arise for consideration :(i) has the central administrative tribunal jurisdiction to condone delay if the review application is filed beyond the prescribed period of limitation ?(ii) what is the extent of review power exercisable by the central administrative tribunal under rule 17 of the central administrative tribunals (procedure) rules, 1988.2. a brief resume of facts is necessary to appreciate the above points raised on behalf of the petitioner. the petitioner filed o.a. no. 577 of 1992 before the central administrative tribunal, cuttack bench (hereinafter referred to as 'the tribunal') claiming promotion to the post of assistant superintendent of post-offices with effect from 1984 when his juniors were given promotion. his case before the tribunal was that during the relevant period, certain disciplinary proceedings were initiated against him and because of pendency of such proceedings, he was not considered for promotion. later when the proceedings were terminated in his favour, although he was entitled to be considered for promotion it was not done. case of the postal department before the tribunal was that the petitioner's representations were rejected by the director general and since he was not confirmed in the post of inspector of post-offices, question of consideration of his case for promotion to the post of assistant superintendent of post-offices did not arise. the tribunal after hearing by its order dated 24.6.1994 (annexure-4) accepted the prayer of the petitioner and directed the authorities to consider his case for promotion and grant back wages if he was found suitable for promotion, in paragraph-6 of the order, the tribunal observed as follows :'in view of the aforesaid facts and circumstances, especially the fact that the disciplinary proceedings have been quashed and the applicant has been exonerated from all the charges levelled against him in respect of the proceedings, no dirty linen exists against the applicant and therefore, his case should be reconsidered for confirmation in the post of inspector of post offices and in case he is found suitable his case should be further considered for promotion to the next higher posts to which he is entitled to according to rules and in case he is found suitable, promotion should be given to the applicant with effect from the date from which his juniors have been promoted...'the postal department instead of complying with the above direction of the tribunal filed review application no. 54 of 1994 before the tribunal seeking review of the above order dated 24.6.1994 passed in o.a. no. 577 of 1992. admittedly, the said review application was filed beyond the prescribed period of limitation provided under rule 17(i) of the central administrative tribunals (procedure) rules, 1988. the tribunal condoned the delay by its order dated 12.5.1997 and admitted the application for hearing and by the impugned order dated 26.2.1998 set aside its earlier order dated 24.6.1994 holding that it suffered from an error apparent on the face of the records.3. point no. (i) : rule 17(i) of the central administrative tribunals (procedure) rules, 1988 lays down that no petition for review shall be entertained unless it is filed within thirty days from the date of the order of which review is sought. there is no dispute that the review application was filed beyond thirty days. the tribunal in its order dated 12.5.1997 recorded a finding that there was delay of 'at least 125 days' in filing the review application. having recorded such a finding, it condoned the delay with an observation that the department had been able to make out a case for it.shri ramdas's contention is that in absence of any provision empowering the tribunal to condone the delay, the review application ought to have been rejected at the threshold as admittedly it was filed beyond 30 days. according to him, whether there was sufficient cause for condoning the delay is a secondary question, inasmuch as that question would arise only when there exists jurisdiction to entertain an application filed beyond time. in this connection, he placed reliance on the judgment of the supreme court in director general v. general secretary, central government air 1999 s.c. 553. in the aforesaid case, the tribunal condoned the delay and proceeded to dispose of the main case. the supreme court in paragraph-4 of the judgment observed as follows :'...the said view of the central administrative tribunal is not in consonance with the law laid down by this court in ajay d. panalkar v. pune telecom deptt. wherein it has been laid down that the administrative tribunal constituted under the administrative tribunals act, 1985 has no jurisdiction to adjudicate upon the finding of the industrial tribunal. in view of the said decision, the order dated 3.3.1992 passed by the central administrative tribunal rejecting the review application cannot be upheld and the said review application must be allowed...'the above clearly shows that the tribunal has no power to entertain the review application if it is filed beyond the time stipulated.shri ramdas has also referred to a judgment of this court in kulamani kar v. orissa land reforms tribunal, air 1983 orissa 63. in that case, question arose whether the land reforms tribunal is competent to condone delay in exercise of its power under the proviso to section 57a(3) of the orissa land reforms act, 1965. it was contended in that case that in view of section 29(2) of the limitation act, 1963 the tribunal can condone delay, after construing section 57a(3) this court observed as follows :'the proviso to section 57-a(3) is in the negative form holding out the legislative mandate of providing a six-month period. the provision is indicative of the anxiety of the legislature to fix a clear time limit for making of an application and not to allow the proceeding to originate at a time beyond the period thus provided.'the wordings of rule 17(i) of the central administrative tribunals (procedure) rules, 1988 is similar to that of the proviso to section 57a(3) of the orissa land reforms act, 1965. we are, therefore, inclined to hold that the provisions of section 29(2) of the limitation act, 1963 cannot be pressed into service.point no. (ii) : in view of what has been stated above, this point need not be examined as it has become academic.4. for all the reasons aforesaid, the tribunal has no power to entertain the review application as admittedly it was filed beyond the prescribed period of limitation. the tribunal has accordingly acted without jurisdiction in entertaining the review application. as the order dated 12.5.1997 condoning the delay is without jurisdiction the impugned substantive order dated 26.2.1998 has to be set aside. we order accordingly.in the result, the writ petition is allowed.m. papanna, j. i agree.