Sanyasi Charan Jena and ors. Vs. Rai Charan Jena 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]. - it is well-settled that the power of review is not an inherent power.a. pasayat, j.1. the scope and ambit of section 60 of the orissa land reforms act, 1960 (in short, the 'act') falls for consideration in this case.2. a brief reference to the factual aspects would suffice.petitioner no. 1 sanyasi filed an application before the revenue officer, binjharpur for assessment of rent in respect of accreted land of plot no. 609 of khata no. 193 of mauza golakund. petitioners claimed it to be a stitiban holding measuring an area of a0. 17 decimals. according to them, in course of time, the bed of river brahmani receded towards north leaving a vast track of land to be cultivated by the adjoining land owners. in this alluvial process, an area of a0. 52 decimals was accreted to the petitioners' plot no. 609. petitioners claimed to be the owners of the accreted land. a proceeding under section 21 of the act was registered as o.l.r. case no. 6 of 1990. the revenue officer made an enquiry through the amin and accepted the petitioners' claim by order dated 7-9-1990. the petitioners thereafter paid rent for the years 1965-66 to 1990-91, as directed by the revenue officer. it is to be noticed that in the year 1989 the petitioners father punakar jena filed title suit no. 175 of 1939 in the court of subordinate judge, jaipur for declaration of his title to the area, which he claimed to have accreted to his land. the suit was withdrawn after disposal of the application referred to above by order dated 7.9.1990. opp. party nos. 1 to 4 filed an application for review under section 60 of the act, mainly on the ground that there was a compromise decree in respect of the land in question in title suit no. 96 of 1941 of the court of additional munsif, jaipur on 13.5.1948 the prayer for review was objected to by petitioners primarily on the ground that title suit no. 96 of 1941 did not relate to the land in question, and in any event after long lapse of time an application for review is not maintainable, both on the ground of limitation and on the ground that review is permissible for correction of clerical mistake or error, and not otherwise. the revenue officer, however, considered the matter afresh on merits, and held that the case for review was made out. accordingly, he recalled the order dated 7.9.1990 passed by his predecessor, by order dated 22.6.1991 (annexure-9) which is impugned in this application. 3. in support of the application under article 226 of the constitution of india, 1950, mr. r. k. nayak, learned counsel submitted that the impugned order dated 25-6-1991 was passed without taking note of the limited scope and ambit of section60.there was no appearance on behalf of the opp. parties 1 to 4, when the matter was called. however, there is a counter affidavit filed by them, where it has been stated that there were sufficient clerical mistakes and errors as certain relevant materials were not taken into consideration when the original order was passed.4. the review is a reconsideration of the same plea by the some court or forum. the power to review must be conferred by law either specifically or by necessary implication. it is a power entirely different from the power which an authority exercises while disposing of a matter either originally or in appeal. it is well-settled that the power of review is not an inherent power. (patel narshi thakershi and ors. v. pradyumensinghji ariunsinghji : air 1970 sc 1273) there may be cases where court finds that on account of an error committed by it one of the parties before it suffered injury, and in such a case a question may arise whether the court itself would undo the mischief. that it because of the accepted principle that no act of the court should prejudice a party before it, and it is bounden duty of the court to see that if a person is prejudiced by mistake of the court, he should be restored to the position he would have occupied but for the mistake. (see jang singh v. brij lal and ors. : air 1966 sc 1661). that aspect has no relevance so far as the case at h3nd is concerned review was not sought for on the ground that the court committed a mistake by acting in a manner violative of the mandatory provisions of the act or the rules relating to the procedure.5. power of review under section 60 of the act is restricted to clerical mistake or error. while dealing with an almost identical case under rule 83 of the orissa sales tax rules, 1947 (in short the 'rules') read with section 152(1) of the code of civil procedure, 1903 (in short the 'cpc'), it was observed by the apex court in master construction co. (p) ltd., v. state of orissa and anr. : air 1966 sc 1047. that the rule in question empowers the authority to correct any arithmetical or clerical mistake or any error apparent on the face of the record arising or occurring from accidental slip or omission in an order passed by him or it. it was observed that the jurisdiction of the authority under the said rule is limited and is confined only to the correction of mistakes of omission mentioned therein. an arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing. as error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or or omission unintentionally made. but such a power cannot be exercised in cases where a fresh look at the materials or the point involved is necessary.6. the meaning of the word 'review' as given in aiyar's law lexicon is a review is a proceeding which exists by virtue of statute. it is in its nature a new trial of the issue previously tried between the parties, the cause of action being brought into court again for trial by a new petition. the proceeding in some respects resembles a writ of errors and also a new trial'. a 'review' means : (1) a second examination of a matter (boviver's law dictionary, 3rd edition); (2) to re-examine judicially a reconsideration; second view or examination (black's law dictionary, 4th edition). where a special enactment confers a power of review to a tribunal of its creation, it is implicit that the power cannot be enlarged or extended beyond the statutory restrictions in the guise of an inherent power. provisions, if any, in the act or the rules framed thereunder are definitive of the limits within which a review is permitted. tribunals created by special statutes do not have larger powers than what the statute chooses to confer upon them. as a general rule no court or judge has power to rehear, review, alter or vary any judgment or order after it has been entered or drawn up respectively. (see halsbury's laws of england. vol. 19, page 260). in prew v. wills. ex parte martin (1891) 1 q3d 650, it was stated by lord laber r. r.: 'no court has such a power of setting aside an order which has been property made, unless it is given by statute'. the same view was expressed in hession v. jones; (1914) 2 kb 421. this rule is based on the principle of finality of litigation. [see plower v. rloyd ; (1879) 10 ch. d. 327]. this rule is subject to some qualification, i e., after the judgment or order has been entered or drawn up or signed, there is power to correct any clerical mistake or error arising from any accidental slip or omission so as to do substantial justice and give effect to the meaning and intention.7. as provided in section 60 of the act itself the mistakes contemplated in the said section are not those which are to be discovered as a result of argument. in the case at hand the alleged errors cannot be said to be apparent on the face of record. it is not something evident, and it requires an examination or argument to establish the same. jurisdiction conferred by section 60 is limited and confined only to rectification of mistake or omissions as provided therein. it must be an error so manifest and clear that no court would permit such an error to remain on the record. it must not be an error which could only be demonstrated by a process of ratiocination.8. in that background, the impugned order passed cannot be maintained. accordingly, we quash the impugned order dated 22-6-1991 (annexure-9 to the writ application). we do not express any opinion on the question whether the order passed by the revenue officer dated 7-9-1990 can be assailed in any forum, or under what provision, or by whom.the writ application is allowed to the extent indicated above. no costs.p.c. naik, j.9. i agree.