Special Land Acquisition Officer Vs. Bira Chhatar 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]. a.k. parichha, j.1. this is an appeal by the special land acquisition officer, lanjigarh road, junagarh rail link project, bhawanipatna (hereinafter called 'lao') against the order passed by the learned civil judge (sr. division), bhawanipatna in m.j.c. no. 54 of 2001 answering a reference under section 18 of the land acquisition act (in short, 'the act').2. on the basis of notification under section 4(1) of the act, ac.0.33 decimals of land under holding no 45 and plot no. 93 of mouza gobardhanpur in the district of kalahandi belonging to the claimant respondent no. 1 was acquired for construction of lanjigarh road- junagarh rail link project, as per government notification no. 45478 dated 19.9.1997 and declaration no. 50352 dated 22.9.1998. after conducting necessary inquiry the appellant awarded a compensation of rs. 6871/- in favour of the claimant (respondent no. 1) who received that amount under protest claiming higher compensation. on the prayer of the claimant the matter was referred to learned civil judge (senior division), bhawanipatna under section 18 of the act for adjudication of the dispute regarding quantum of compensation. learned civil judge (senior division), bhawanipatna received evidence of the parties assessed the value of the acquired land at rs. 43,0007- and directed compensation accordingly with interest at the rate of 12% per annum on such differential market value from the date of publication of the notification under section 4(1) of the land acquisition act till the date of award or the date of taking over possession of the case land whichever is earlier. challenging the said enhancement the present appeal has been preferred.3. during pendency of this appeal the union of india represented by general manager, east coast railway, chandrasekharpur was permitted to be impleaded as respondent no. 2. mr. pal, appearing for union of india submits that the award was passed behind the back of respondent no. 2, who is the person to pay the amount of compensation and therefore, the impugned order is unsustainable and non est in the eye of law.4. mr. sangram das, learned addl. standing counsel challenges the impugned order on the ground that it is based on surmise and conjecture. learned counsel appearing for respondent no. 1 supports the impugned order in every respect.5. during the course of hearing, learned counsel for all the parties concede that the present matter is squarely covered under the ratio laid down by the apex court in the case of ntpc ltd. v. bihar and ors. (2004) 12 scc 96 and the observation of this court in the case of special l.a. officer, lanjigarh road-junagarh rail link project, bhawanipatna, kalahandi v. prabhabati majhi and ors. 2006 (ii) olr 720.6. on perusal of the record, it is seen that in fact the present case is covered by the ratio laid down in the above noted cases. so following the same ratio this appeal is disposed of with the direction that the union of india represented through the east coast railways is a 'person interested' because ultimately it has to pay the compensation amount for the land acquired. since the reference court did not notice such interested person before passing the impugned order in the reference proceeding, the order enhancing the quantum of compensation becomes unsustainable. the impugned order, is accordingly set aside and the matter is remitted back to the reference court for fresh determination of the quantum of compensation after giving adequate opportunity to the respondent no. 2 to participate in the proceeding and adduce evidence in support of its plea and also giving opportunity to the respondent no. 1 to adduce rebuttal evidence. since the matter is old, the appellant and respondents are directed to appear before the learned civil judge (senior division), bhawanipatna in m.j.c. no. 142 of 1997 on 7th may, 2007 to take necessary instruction. the learned civil judge is directed to dispose of the m.j.c. no. 54 of 2001 as expeditiously as possible preferably within a period of three months of receipt of this order and the lcr.7. the appeal is allowed. in the peculiar circumstances, the parties are to bear their own costs.