Mahanta @ Adhikari Krushna Chandra Das Vs. State of Orissa, Represented Through Collector - 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]. - this court as well does not find any merit in that contention because the collector has remedy under section 19(e) of the court fees act, as per the correct argument advanced by the petitioner.p.k. tripathy, j.1. order passed by the civil judge (senior division), puri in misc. case no. 45 of 1999 in allowing application under order9, rule 13, cpc is under challenge by the petitioner in this civil revision.2. on 5.1.1994 petitioner filed miser. case no, 1 of 1994 in the court of district judge, puri for grant of letter of administration by presenting an application under section 276 of indian succession act, 1925 (in short, 'the act'). petitioner was directed to give valuation statement and the collector was noticed to have his say in the matter. the valuation statement was accepted without any objection and thereafter the case was transferred to the file of civil judge (sr. division), puri and registered as misc. case no. 28/1 of 1996/ 1994. duty money was paid by the petitioner, citation was issued and ultimately from 4.4.1997 that case was adjourned to 25.4.1997 for hearing, but on the application of the petitioner the case was advanced and heard ex parte on 8.4.1997. thereafter, on 4.5.1997 order was passed granting letter of administration. the aforesaid application for letter of administration was with respect to the 'math' and 'math properties' on the basis of a will said to have been executed by late mohanta adhikari paramananda das of 'sata asan giridhari math' situated at bali sahi, puri. the said mohanta was said to have died on 26.7.1983 at bhubaneswar. in course of the ex parte hearing, petitioner examined himself as p.w. no. 2 and another witness, viz., mahant srinibas das as p.w. no. 1. the registered will was marked as ext. 1 and the signature of the scribe and the attesting witness so also the executors were marked on being identified by p.w. no. 1. as noted in the said ex parte judgment, p.w. no. 1 stated that both the attesting witnesses were dead. however, nothing was stated regarding the scriber of the will as to whether he was dead or alive by the date of that evidence.3. after grant of that ex parte order of letter of administration, the state of orissa represented through collector, puri woke up from the slumber and filed an application purporting to be one under order 9, rule 13, cpc. having been registered as misc. case no. 45 of 1999 in the court of civil judge (senior division), puri. after hearing the parties on 9.7.2002, learned civil judge (senior division), puri passed the impugned order by setting aside the order relating to grant of letter of administration on the ground that the state must have an opportunity to contest on the issue of payment of court-fees, i.e., the duty money. learned counsel for the petitioner argues that the aforesaid discretionary order of the court below being vitiated by law, therefore, petitioner challenges, the same in this revision under section 115, cpc. his argument is that, when the will was not contentious and there was no objection to genuineness or validity of the will and the collector does not, contest on that issue, therefore the order passed by the court below in granting letter of administration is not to be revoked or set aside merely on the allegation of low valuation and payment of insufficient duty money. he further argues that in the event there is insufficiency in payment of the court-fees, then the remedy available to the collector is under section 19(e) of the court fees act, 1870 (in short, 'the c.f. act') and therefore, there was no necessity to set aside the order passed in granting the letter of administration.4. learned addl. govt. advocate invited attention of the court to section 295 of the act and initially argued that the procedure provided in the cpc for disposal of suit being liable to be followed, the impugned order is not subject to challenge. but he did not pursue that argument since the proceeding was not contentious. however, he argued that even if order 9, rule 13, cpc does not apply to the facts and circumstances of the case, then also to decide the issue relating to proper valuation and payment of duty money the application filed by the collector be construed as an application under section 151, cpc. this court as well does not find any merit in that contention because the collector has remedy under section 19(e) of the court fees act, as per the correct argument advanced by the petitioner.5. be that as it may, on a reference to the ex parte order in support of grant of letter of administration, the nature of the property involved, the manner in which the will was proved and non-application of mind by the civil judge to the relevant provision of law at that stage, this court does not feel it proper to interfere with the impugned order but directs the court below to proceed with the proceeding afresh in accordance with law. in that context, this court refers to the provision in the hindu religious and endowment act, 1951 (in short, 'the act, 1951'). according to chapter-iv in that act, the matter relating to 'maths' and the property of the 'maths' such matters are either to be under the direct or supervisory jurisdiction of the commissioner of endowments. by the date petitioner applied for letter administration, the said property was deemed to be under the administrative jurisdiction of the commissioner of endowments. therefore, the property involved in the case being not an ordinary property but being a 'math', i.e., a religious institution established for religious and charitable purpose, the commissioner of endowments must have a say relating to the succession, therefore, without adding the commissioner of endowments as a party or without giving him a notice about the will and the claim of succession, the matter relating to probate or letter of administration, if granted, that will be in conflict with the provision in the act, 1951 and may lead to a clash of orders of two competent courts of jurisdiction. apart from that, according to the provision in section 68 of the evidence act, a will is a compulsorily attested document and it cannot be read as evidence, unless due attestation is proved by a competent witness, or in their absence, by a person acquainted with the execution of the said document. as noted above, in the present case, the petitioner has only deposed through p.w. no. 1 that the two attesting witnesses are dead. there is no evidence on record regarding non-availability of the scriber. therefore, if the scriber of the document is alive, he is the other witness who can prove due attestation. of course, if he is also dead or not to be found, then requisite evidence has to be adduced in that respect by duly and properly explaining the same and proving the due execution of the will. therefore, in this case when this court is in seisin of the matter under section 115, cpc and finds that the case was not decided in accordance with law and in the meantime, rightly or wrongly, the order has been set aside, it is appropriate that the matter should be afresh considered relating to the prayer of the petitioner for grant of letter of administration. it is open to the collector to raise his objection relating to valuation within a period of one month, and if any such objection shall be raised, then that shall be considered by the civil judge in accordance with law relating to the valuation.6. for the reasons indicated-above, though this court does not find justification or legal backing in the impugned order on the basis of the application of the collector, yet the said order is not interfered with and this court directs learned civil judge (sr. division), puri to proceed with the case in accordance with law and to dispose of the same expeditiously.the civil revision is disposed of accordingly, parties are directed to bear their respective costs of litigation so far as this forum is concerned. hearing fee is assessed at contested scale.