Sailendra Barik and ors. Vs. Addl. District Magistrate 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]. 1. in a proceeding under the orissa scheduled areas transfer of immovable property (by scheduled tribes) regulation, 1956, commonly known as regulation 2 of 1956, sale in favour of petitioners father kunja barik by opp. party no. 3's father surendra naik was held to be void in the absence of requisite permission from the competent authorities. conclusions of revenue officer, bamanghaty (opp. party no. 2) were affirmed in appeal by addl. district magistrate, mayurbhanj (opp. party no. 1). motion for such declaration was made by shyama charan naik (opp. party no. 3).2. the proceeding has a chequered career. a few dates are relevant for adjudging whether conclusions are correct. the sale deed was executed on 20-6-1972 and proceeding for restoration was initiated on 8-11-1977 by opp. party no. 3. the revenue officer accepted the plea of shyama that transaction was void. his order was assailed in appeal. the appellate authority set aside the order with a direction to examine impartial witnesses. on consideration the revenue officer again reiterated his conclusion that transaction was void. the matter was again carried in appeal, and the appellate authority remanded the matter because prior to passing of the order by the revenue officer, kunja had expired. witnesses were examined by both sides before the revenue officer. according to petitioners, original vendor was not a member of scheduled tribe as claimed, while claimant's witnesses stated that he belongs to scheduled tribe. several documents were pressed into service by parties. while objector shyama charan naik placed reliance on a caste certificate issued by the authorities, his school admission register which reflected that at the time of his admission to the school in 1963, he was recorded to be a member of scheduled tribe. record-of-rights of hal and sabik settlements were also relied upon. present petitioners in addition to oral evidence, placed reliance in several sale deeds where executor i.e. surendra described himself as a member of 'khandual' caste. it needs to be mentioned here that the said caste is not one which is relatable to scheduled tribe. the authorities considered documents produced by the objector to be of greater evidentiary value. it was noticed that in the sabik and hal settlements caste of surendra was described as bhuyan which is undisputedly relatable to scheduled tribe as described in the scheduled tribe order 1950 as amended by modification order, 1956 and scheduled tribe (amendment) act, 1976. fresh order with which we are concerned was passed on 12-7-1985. where again it was held that transaction was void. appellate authority confirmed the conclusion. 3. according to mr. m.r. panda, learned counsel for petitioners effect of admission made by surendra has not been explained away. no consideration has been made of oral testimony of impartial witnesses, who were examined as court witnesses. merely because in the record-of-rights surendra has been described as member of scheduled tribe, that should not have been held to be determinative. mr. r.p. mohapatra, learned counsel for objector shyuma on the other hand, submitted that vendee is obligated to enquire as to whether the vendor has a valid title which he can convey. kunja, the original vendee was therefore obligated to make enquiries. he having not done so, and there being ample material to show that surendra belonged to scheduled tribe, conclusions of authorities, which are essentially of facts, should not be interfered with in a writ petition.4. what inference can be drawn from a particular set-up of facts is a matter for a fact finding authority. unless conclusions drawn are based on no evidence or are patently perverse, unreasonable or absurd which no reasonable man can arrive at they should not normally be interfered with by the court while exercising jurisdiction under articles 226 and 227 of the constitution of india. a finding of fact cannot be interfered with unless some vital piece of evidence which would tilt the balance in favour of the aggrieved person, has been overlooked, disregarded or wrongly discarded. if the finding of fact is based and built on inadmissible evidence, which evidence, if excluded from vision, would substantially discredit or impair the conclusion, or negate it, or is based on no evidence. if a finding of fact is recorded without discussion of the evidence, the conclusion is vitiated.'we must know what a decision means before the duty becomes ours to say whether it is right or wrong.' if there are no findings, in lord summer's famous phrase, the record speaks only with the 'inscrutable face of a sphinx'.the silence of the records renders it pragmatically impossible for the court to perform its function of adjudicating the correctness of the conclusion. keeping in view the aforesaid aspects it is to be seen whether the conclusions can be sustained or not.5. authorities relied on record-of-rights which were published under section 15 of the survey and settlement act, 1958 (in short, the settlement act) and entry so far as caste is concerned was not assailed after publication of record-of-rights. the appellate authority also referred to requirements under mayurbhanj settlement manual in force at the relevant time which in terms of rule 563 made recording of caste a requirement. additionally, we find that long prior to the sale, in the year 1963, in the school admission register caste of shyama has been described as 'bhuyan' which admittedly is a part of scheduled tribe. even if not much importance is attached to the caste certificate issued much after the transaction, evidentiary value of other documents cannot be lost sight of, in view of entries in the record-of-rights and school register. section 7-c of the regulation relates to burden of proof, and power of court to ignore admission. clause (b) deals with power of court to require any fact expressly or impliedly admitted by a member of the scheduled tribes to be proved otherwise than by mere admission. so, even if there was mention in the sale deed that caste was 'khandual', that was not the determinative factor in view of what has been stated in section 7-c. conclusions of the authorities that transaction was void cannot be characterised to be unreasonable and perverse and are irreversible.6. so far as levy of fine is concerned in absence of any mala fides, it cannot be maintained. though a person may act bona fide the effacts of a statutory bar have to operate and consequences have to follow. while upholding the conclusions that the transaction was void, yet no case for levy of penalty is made out. something more than mere negligence or care or caution is necessary to attract fine.7. accordingly, we set aside direction relating to payment of fine but uphold those relating to restoration. the writ application is disposed of accordingly. no costs.p.c. naik, j.8. i agree.