Srimati Madanbati Lath Vs. S.D.O. 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]. - 19/70). the petitioner was unsuccessful. firstly, the tahsildar having recommended to the sub-divisionil officer for accord of permission, the transfer was not invalid as there was inordinate delay in the matter of accord of permission. unless the disputed property satisfied the definition of 'land' the revenue officer does not get jurisdiction to proceed further.r.c. patnaik, j.1. this is an application by the transferee seeking the quashing of the orders (vide annexures-1, 2 and 4) passed by the original, appellate and revision authorities under the orissa land reforms act, 1960 by way of judicial review.2. 19 decimals of land appertaining to hamid settlement plot nos. 21 and 22-under khata no. 25 in village ainthapalfi within the sadar police station in the district of sambaipur is the subject-matter of the dispute. opp. party no. 4, a person belonging to the scheduled tribe, filed an application on 13-3-1966 before the additional tahsildar seeking permission to sell the property in dispute to the petitioner. that was sent to the r. 1. for enquiry and submission of report. the r. 1. raised no objection and submitted his report in september, 1966, proclamation was issued on 7-1-1967 inviting objection. on 25-7-1967, the additional tahsildar submitted the file to the sub-divisiona! officer recommending grant of permission. while the matter was pending before the sub-divisional officer, the petitioner obtained a sale-deed in anticipation of grant of permission. since the sale was effected not with the previous permission in writing of the s. d. o., the s d. o. was of the view that the provision contained in section 23 of the orissa land reforms act was contravened. so, a suo motu proceeding was started. as admittedly, the transferee was not a person belonging to the scheduled tribe and previous permission was not obtained, the revenue officer (s. d. o., sambalpur) declared the transfer invalid and directed restoration of possession to the transferot. a penalty of rs. 200/- was also imposed (vide judgment dated 20-11-1969 in o.l.r. case no 70 of 1969 (annexure-1). in appeal (o. l. r. appeal no. 19/70). the petitioner was unsuccessful. the petitioner thereafter moved an application for review and the same was rejected vide judgment dated 15-7-1978 in o. l r. review no. 14 of 1970. in o. l. r. revision no. 16 : 1980, the petitioner raised three contentions before the revisionat authority. firstly, the tahsildar having recommended to the sub-divisionil officer for accord of permission, the transfer was not invalid as there was inordinate delay in the matter of accord of permission. the second contention raised was that the petitioner was not afforded adequate opportunity of of hearing. the third and the substantial submission was that the land being situated within the limits of the municipality, was in ban land. hence, the provisions of the orissa land reforms act were non applicable. the revision authority negatived all the contentions.3. in course of hearing, the learned counsel for the petitioner did not reitarate the first two contentions that were raised before the revisionil authority but strenuously urged thit having regard to the situation of the land within an urban area, i. e. within the limits of the municipality, the orissa land reforms act had no application. reliance was placed upon two decisions of this ccurt : vol. 43 (1977) clt 681, mahurilal agarwalla v. dusasan sahu and others, and air 1932 ori. 83, (sri bhanuganga tribhuban deb v. tahsildar-cum-revenue officer, sambalpur and others. reliance was also placed on another decision of this court in batara behera v. special officer, land reforms and others, o. j. c. no. 321 of 1984 disposed of on 4-7-1985 (so far unreported). reference was made also to section 73(c) of the orissa land reforms act.4. we may, however, observe that section 73(c) can have no application to the facts of this case inasmuch as the said provision does not apply section 73(c) of the orsisa land reforms act reads as under :'73. nothing contained in this act; shall apply :xx xx xx(c) to any area which the government may, from time to time by notification in the official gazette specify as being reserved for urban, non-agricultural or industrial development or for any other specific purpose ;' admittedly, no notification has been issued by the government specifying if the land was reserved for urban development, etc.'5. section 22 posits that the transfer of any holding or part thereof by a raiyat belonging to a scheduled tribe in favour of a person not belonging to a scheduled tribe shall be void except where it is accepted that such a transfer is made with the previous permission in writing of the revence officer. analysing the various elements of this provision, this court in bhanuganga's case (supra) observed as follows:'where lands are located in the urban area it is for the revenue officer to establish the link, that is to show that such lands were connected with agricultural operations and, therefore were to be taken into account; otherwise, as pointed out by this court in the case of mahurilal agarwalla v. dusasan sahj, 43 cut. lt-661, a house lacated in the urban area would not be includible.'in batara's case (supra) both the earlier decisions of this court were considered and the concept of holding was analysed with reference to the definition of 'holding' and 'land' contained in clauses (11) and ( 14) of sec 2. the definition of 'land' in clause (14) is relevant which is as under;'(14), land' means land of different classes used or: capable of being used for agricultural purposes and includes homestead.''homestead' has been defined in clause (12) which reads as under ;'(12), 'homestead means any land, whether or not recorded as such, ordinarily used as house-site, ancillary or incidental to agriculture ;'therefore, the holding i. e. the land contemplated by section 22, shall either be land used or capable of being used for agricultural purposes or homestead or ordinarily used as house-site, ancillary or incidental to agriculture. unless the disputed land comes within the definition of 'homestead' or 'land' as defined in clauses (12) and (14), section 22 would not be attracted. there is no finding in any of the orders that the disputed property was either being used or capable of being used for agricultural purposes or was land ordinarily used as a house-site, ancillary or incidental to agriculture. this was a jurisdictional fact conferring authority on the revenue officer to apply section 23 in the absence of any finding. no doubt it is true that opp. party no. 4 had made an application under section 22 seeking permission but that does not bind the transferee. the application may have been misconceived, may not have been made under proper instructions and guidance therefore, it obligated the revenue officer under the act to initially record that finding as a foundation on which the edifice of section 23 could be built and directions issued. unless the disputed property satisfied the definition of 'land' the revenue officer does not get jurisdiction to proceed further. therefore, rightly it was observed in bhanuganga's case (supra) that where lands are located in the urban area it is for the revenue officer to establish the link and, therefore, this court (in its judgment to which one of us (r. c. patnaik, j.) is a party) observed that mere situation of a land within the municipal area or that the land has potentiality of being used as homestead or for commercial purposes not relevant considerations for determination of the question. vainly did we seek for the appropriate finding in the judgments of the courts below. since the law was not clear, perhaps appropriate evidence has not been led. we, therefore, remit the matter to the sub-divisional officer, sambalpur, for disposal of the proceeding afresh. it shall be open to the parties to lead evidence, if they are so advised. we, therefore, quash annexures-1, 2 and 4, i. e. the decisions of the original, appellate and revisional authorities, and remit the matter to the s. d. o., sambilpur, for disposal of the proceeding in accordance with law after giving the parties an opportunity of hearing. the original proceeding be disposed of within a period of four months from.the date of receipt of the order.in the circumstances, there would be no order as to costs.v. gopalaswamy, j.6. i agree.