Jairam Samantray Vs. Baikuntha Samantaray 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]. - 3. the petitioner assails the order on two grounds :firstly, the comissioner has erred in law in refusing jurisdiction on the ground that the consolidation authorities have no jurisdiction to decide the question of adoption as that related to status of a person and secondly, the commissioner has failed to bear in mind the principle that the onus of proofs is on the person who seeks displacement of the natural order of succession by pleading adoption. if title to property as son by birth can be adjudicated upon by the consolidation authorities, we fail to understand why adjudication of claim to title as son by way of adoption should be out of bounds to them. the best course, if the principle followed was correct, should have been to leave to parties at large and not decide the question of title at all.r.c. patnaik, j.1. this is an application under arts. 226 and 227 of the constitution of india for the quashing of the decision rendered by the commissioner of consolidation, by way of judicial review.2. the petitioner is the son of original opposite party no. 5, brother of opposite parties 1 and 2 and the paternal uncle of opposit parties 3 and 4. during consolidation operation in village arakhakud, a question arose as to who should be recorded in respect of the property left behind by madan, the father of the petitioner and opposite party nos. 1 and 2 and husband of opposite party no. s. as the name of the petitioner was omitted from the preliminary record, claim was made by him seeking, inclusion of his name as a joint owner with his brothers and nephews; opposite parties 1 to 4 resisted the claim pleading adoption of the petitioner by budha, brother of madan. the consolidation officer (o p. no. 6) nagatived the claim of the petitioner sustaining the plea of adoption urged by opposite parties 1 to 4. in consolidation appeal no. 86 of. i98o carried by the petitioner, opposite party no. 7 accepted the plea of the petitioner, in revision carried by opposite parties 1 to 4, the commissioner of consolidation held that the question being one relating to status, the petitioner should get the same established in a competent court, the consolidation: authority had no jurisdiction to alter the record prepared at a stage prior to the consolidation operation. he reversed the appellate decision.3. the petitioner assails the order on two grounds : firstly, the comissioner has erred in law in refusing jurisdiction on the ground that the consolidation authorities have no jurisdiction to decide the question of adoption as that related to status of a person and secondly, the commissioner has failed to bear in mind the principle that the onus of proofs is on the person who seeks displacement of the natural order of succession by pleading adoption. hence, as a matter of course, the name of the petitioner should have been recorded along with his brothers and nephews as successor of madan. opp. parties 1 to 4 should have been called upon to establish their case of adeption of the petitioner by budha befere the civil court.4. first contention:the learned corrmissioner relied upon upon certain observations made by this court in puni bewa v. ananta sahoo, 47(1979) c. l. t. 494, p. k. motianty, j. observed in paragraph-7 :'...the consolidation authorities have not been vested with power to give a declaration on status or to set aside the decree or order of a competent court...'the same learned judge also observed in pranabandhu @ panu ojha v. bhikari maharana @ ojha, 57(1984) clt 65:'the consolidation authorities exercise special jurisdiction conferred upon them by the statute. they are competent to adjudicate upon right or interest in land. the question of status of a person does not relate to any right or interest in land...the consolidation authorities have no jurisdiction to decide the question of adoption.'following the aforesaid view, this court in krushna chandra nayak v. nisamani bewa 61(1986) clt 564, observed :'when the question of status is involved in this suit, the consolidation authorities could not have granted the relief claimed since the authorities under that act have no jurisdiction to decide the status.'5. to set the sight clear, it is worthwhile to notice that in puni bawa's case (supra), the relief of partition was based upon and to flow from two other specific reliefs which were sought, namely, (a) a declaration that defendant no, 1 therein was not the adopted son of one kartik and (b) a declaration that order passed in a proceeding under the orissa reforms act in favour of defendant nos. 2 and 3 therein was fraudulent, collusive and was not binding on the plaintiffs. though the plaintiffs therefrom sought partition they also sought the reliefs by way of declaration as to status contemplated by section 31 of the specific relief act, 1963.6. section 51 of the act reads as under ;'bar of jurisdiction of civil courts : notwithstanding anything contained in any other law for the time being in force, but subject to the provisions contained in clause 3 of section 4 and sub-section (1) of section 7 :(1) all questions relating to right, interest and liability in land lying in the consolidation area, except those coming within the jurisdiction of revenue courts or authorities under any local law for the time being in force, shall be decided under the provisions of this act by the appropriate authority during the consolidation operations; and(2) no civil court shall entertain any suit or proceeding in respect of any matter which an officer or authority empowered under this act is competent to decide.'having regard to the objects and the purpose of the enactment and the unambiguous words of wide amplitude, it is not open to constrict the field of operation by any pre-conceived notions. questions relating to right, title, interest and liability in any land are to be decided by the consolidation authorities except those which can be decided only by the civil court and are, therefore, out of bounds to them, in deciding questions of right, title, and interest and liability in land, questions and issues relatable thereto arise for decision. the decisions on the question of right, title, interest and liability depend and hinge on the decision on the connected questions, the questions which have to be decided ancillarily and incidentally. sometimes, in order to secure the relief, the suitor has to clear hurdles and impediments standing on the way. those hurdles may be judgment or order of the court or a document. so long as the hurdle stands on the way, grant of relief is not possible and permissible. it has to be removed. the civil court alone has juris fiction to set aside judgment or order or a document of transfer. a distinction his been drawn between documents of transfer which are void and those which are voidable. void documents or transactions being. ab initio void, they are non est and, therefore, can be ignored. they being .non-existent are not really .hurdles on the way. but documents, transactions, judgments or orders, which are not void ab initio, are to be avoided. until avoided, they bind the parties and are impediments.' the jurisdiction to set aside such documents, transactions, judgments or decrees- which are voidable and need avoidance, vests in the civil court but not in the consolidation authorities. the questions which do not necessitate interpretation of the civil court for the removal of the obstacle and can be anciliarily and incidentally decided and on the resolution of which would, depend the decision as to right, title, interest and liability in land, are within the jurisdiction of the consolidation authorities. seeking a declaration- simpliciter as to legal character as contemplated by section 34 of the specific relief act is exclusively within the jurisdiction of the civil court and not within the competence of the consolidation authorities. except in case where title is claimed on the basis of transactions inter vivos in most cases title is claimed on the basis of relationship, say as son, father, mother, husband or wife etc. each such question of relationship is a question pertaining to legal character or status, don't the consolidation authorities decide such question of legal character in cases after cases day in and day out if then the consolidation authorities have jurisdiction to decide the question as to whether a person is son by birth, by what logic or law are they denied jurisdiction to decide if a person is son by way of adoption sonship is acquired either by birth or by way of adoption. they are the different modes of acquisition. if title to property as son by birth can be adjudicated upon by the consolidation authorities, we fail to understand why adjudication of claim to title as son by way of adoption should be out of bounds to them. we are, therefore, of the view that the statement of law that the consolidation authorities have no jurisdiction to decide the question of adoption, that being a question of status, is not correct. in almost every case, consolidation authorities are deciding the question of status but a declaration of the law to the effect that the consolidation authorities have no jurisdiction to decide the question of adoption, if such question arises ancillarily or incidentally for adjudication of right, title and interest in property, is insupportable. we, therefore, hold that though puni bewa's case (supra) having regard to the declaration specifically sought has been correctly decided, the other two decisions, referred to above, where question of adoption was to be gone into ancillarily, have been correctly decided.7. second contention :_lt is settled law that the onus is on the person who seeks to displace the ordinary course of succession by pleading adoption. the onus is not on the person who denies adoption to prove the negative. hence, opp. parties 1 to 4 should not have been allowed to succeed merely setting up a plea of adoption of the petitioner by budha. ' assuming the consolidation authorities had no jurisdiction to decida the question of adoption, but the commissioner has sustained the plea of adoption. the best course, if the principle followed was correct, should have been to leave to parties at large and not decide the question of title at all.8. in view of our holding on the question of adoption, we quash the decision of the commissioner as per annexure-3 and remit the matter for a fresh disposal of the revision in accordance with law. if the commissioner is of the view that having regard to the state of law as laid down in the cases referred to above, the parties did not lead evidence on the question of adoption, it may remit the matter to the consolidation officer for disposal. the writ application is accordingly allowed. there would be no order as to costs.s.c. mohapatra, j.9. i agree.