Narayan Sahoo Vs. State - 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]. - state of bihar) (supra) clearly laid down in paragraph-14 thereof that the court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a scheduled caste or scheduled tribe or parts thereof or group of such caste or tribe.p.k. tripathy, j.1. short but substantial question which has been raised in this application under section 482 of the criminal procedure code, 1973 (in short, 'the code') is as to whether a caste not notified as scheduled caste in the presidential order and notification under article 341 of the constitution can be regarded as scheduled caste being described in that manner in the district gazetteer.2. relevant facts may be indicated for reference. petitioner is one of the accused persons in t.r. no. 25/28 of 96-95 of the court of addl. sessions judge-cum-special judge, khurda. in that case cognizance for the offence under sections 323, 324, 506/34, ipc and section 3 of the scheduled castes and scheduled tribes (prevention of atrocities) act, 1989 (in short, 'the act') has been taken. on 5.11.1996 petitioner filed an application challenging the order of taking cognizance of the offence under section 3 of the act, on the ground that the informant being a 'khatia' by caste and not being 'katia' by caste is not a member of the scheduled caste as per the presidential order and, therefore, petitioner cannot be prosecuted for the offence under section 3 of the act. in his order dt. 11.5.1998 (impugned order) learned special judge rejected the aforesaid contention of the petitioner on the ground that in the puri district gazetteer, both 'katia' and 'khatia' have been included within the category of scheduled castes in the district of puri. learned special judge also took note of the fact that in the record of right the informant has been described as a person belonging to 'khatia' caste.3. mr. s.d. das, learned counsel appearing for the petitioner advanced argument reiterating the same point which was canvassed before the trial court and relying upon authorities from the supreme court and this court he argued that save and except following the provisions in article 341 of the constitution there cannot be any addition or subtraction of the caste in the presidential order wherein the castes belonging to scheduled caste groups have been enlisted. learned addl. standing counsel without disputing to the aforesaid argument replied that learned special judge without proper assessment of the evidence in the case diary has disposed of the matter simply with reference to the record of right and the district gazetteer and therefore, factual assertion as to whether the informant is 'katia' by caste or 'khatia' is a matter which should be ascertained by the trial court from the statements available in the case diary.4. section 3 of the act provides for punishment of offences of atrocities committed against person or persons belonging to scheduled caste or scheduled tribe by a person or group of persons not being member of scheduled caste or scheduled tribe in any manner described in clauses (i) to (xv) of sub-section (1) and clauses (i) to (vii) of sub-section (2) in section 3 of the act. clause (c) of sub-section (1) of section 2 defines the term 'scheduled caste' and 'scheduled tribe' and reads as hereunder:'(c) scheduled castes and scheduled tribes shall have the meaning assigned to them respectively under clause (24) and clause (25) of article 366 of the constitution.'as a corollary on a reference to clause 24 of article 366 of the constitution, it reads that --'(24) 'scheduled caste' means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be scheduled castes for the purposes of this constitution.'article 341 reads as hereunder :'341 (1) the president may, with respect to any state or union territory, and where it is a state.... after consultation with the governor......thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this constitution be deemed to be scheduled castes in relation to that state or union territory, as the case may be.(2) parliament may by law include in or exclude from the list of scheduled castes specified in a notification issued under clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.'5. language used in article 341 is self-explanatory to the effect that castes, races or tribes or groups within castes, races or tribes notified according to the presidential order in accordance with the provision in article 341(1) can only be regarded as scheduled castes and a caste not finding place in the list notified as per the presidential order cannot be regarded as a scheduled caste. any modification in that list by addition or deletion can only be made by following the provisions of law in article 341(2). thus the position of law is very clear that the castes, races or tribes or groups within the castes, races or tribes which have been notified as per the presidential order made under article 341(1) has to be accepted on its face value and the courts or any other authority (except the president of india and the parliament) has no jurisdiction to add or delete from that list. in that connection, some leading decisions which have been cited by the petitioner may be referred to. in the case of palghat jilla thandan samudhaya samrakshana samiti and anr. v. state of kerala and anr. : (1994) 1 supreme court cases 359, the apex court while in seisin of the matter as to whether all the persons belonging to thandan caste, though some of them alleged to be not belonging to scheduled caste community, can be regarded as member of the scheduled caste by virtue of the presidential order under article 341. after referring to a series of previous decisions it was held that --'18............the scheduled castes order has to be applied as it stands and no enquiry can be held or evidence led in to determine whether or not some particular community falls within it or outside it. no action to modify the plain effect of the scheduled castes order, except as contemplated by article 341, is valid.'in the case of neikham surchandra singh and ors. etc. v. the representative of 'lios' kakching, manipur (a scheduled caste uplift body) and ors. : 1996 (8) supreme 229 considering a similar question relating to 'lois; caste, the apex court held that neither the court nor the state government has any power to add or subtract from the list published and the order by the high court for an enquiry was found not correct in law. their lordships further held that :'..........the retrograde attempt to grab the benefit of and distributive justice to the targetted group was held to be prevented. it would thus be clear and we hold that until the presidential notification was modified by appropriate amendment by parliament in exercise of the power under article 341(2) of the constitution, the presidential notification issued under article 341(1) is final and conclusive and it cannot be added to any caste or subtracted by any action either by the state government or by a court on adduction of evidence.'in the case of rama chandra sahoo v. collector, mayurbhanj and ors. : 82 (1996) cut 155, the point for consideration before the division bench of this court was as to whether 'koduma' caste is synonymous and/or included in 'kandara' caste which has been notified to be a scheduled caste under article 341. after referring to several decisions from the apex court this court also held that there cannot be any addition or subtraction from the list prepared under the presidential notification in accordance with provisions in articles 341 and 342 of the constitution. in the case of krupasindhu sahu v. hindustan aeronautics limited, an unreported case vide ojc no. 65106 of 1994 decided on 4.3.1998 a division bench of this court held that :'the apex court in the recent decision reported in air 1996 scw 782 (nityananda sharma and anr. v. state of bihar) (supra) clearly laid down in paragraph-14 thereof that the court is devoid of power to include in or exclude from or substitute or declare synonyms to be of a scheduled caste or scheduled tribe or parts thereof or group of such caste or tribe. this is a very relevant and important finding of the supreme court and the same is very much binding upon this court. this court cannot conclude that 'niari' is a sub-caste or is synonymous to another caste. admittedly 'niari' is not in the presidential list. as the court cannot conclude by any evidence or otherwise that it is a synonymous to another caste or is a sub-caste, the ratio of the decision in the case of sanatan mangal loses all importance. in view of the contentions and counter-contentions of the respective parties as noted above, we find sufficient force and merit in the submission of mr. murty that the petitioner cannot claim any benefit as a member of the scheduled caste being 'niari'.........'7. briefed with the above settled position of law and on making a reflection of facts, it appears that in the notification made under the presidential order i.e. the constitution (scheduled castes) order, 1950 (as amended from time to time) so far as it relates to the state of orissa, 'katia' appears as a scheduled caste vide serial no. 44 in that list. 'khatia' caste is not there in that list. hence, if at all 'khatia' caste has been defined as a scheduled caste in the puri district gazetteer, that being not a part or parcel of the presidential order made under article 341, such description (if any) in that gazetteer does not qualify 'khatia' as a scheduled caste under arts. 341 and 366 of the constitution and under section 3 of the act.8. as rightly argued by learned addl. standing counsel the special court only referred to the record of right and district gazetteer of puri and recorded the finding that 'khatia' is a scheduled caste though according to the presidential order 'khatia's is not included in the group of the scheduled castes. it does not appear from the impugned order that learned special judge referred to the statements of the witnesses and other materials available in the case diary to find out as to which caste the informant (complainant belongs and if such caste, race or tribe has been notified as a scheduled caste in the presidential order. under such circumstances, the matter is remitted back to the learned trial court to peruse the statements and other evidence in the case diary and to dispose of the application of the petitioner dt. 5.11.1996 in accordance with law.9. accordingly, the impugned order is set aside and the criminal, misc. case is allowed.