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Judgment
R.N. Sahay, J.—By this order eight writ applications challenging a common order are being disposed of.
The prayer in those applications is for a grant of writ of certiorari to quash the order of the third Respondent (Deputy Commissioner, Giridih) dated 12.8.93 in Case No. 41 of 1986 in the circumstances stated hereinafter.
In the Giridih District Gazette (extraordinary) dated 28th August, 1986 the following notification was published (Annexure-4):
On being satisfied with the report of D.C.L.R., Sadar Giridih and other relevant papers that Shri Birendra Kumar Biswas, son of Late Brijendra Kumar of New Barganda, P.O. Giridih town died on 8.4.1986 without any legal claimant and as under Rule 356 of the Miscellaneous Rules of the Board of Revenue, Bihar, all property, real or personal left by Shri Birendra Kumar Biswas belongs to the State. In exercise of the powers conferred on me under Rule 358 of the Miscellaneous Rules of the Board of Revenue Section 8 Regulation XIX of 1810, I, U.K. Sinha, I.A.S. Deputy Commissioner, Giridih being the ex-officio local agent of the Board of Revenue order for taking immediate possession of the movable and immovable property left by Shri Birendra Kumar Biswas on behalf of the Government and direct M.D., D.R.D.A., Giridih to take possession of this property as mentioned below and to report compliance. The property not found in possession of deceased Shri Biswas should not be occupied.
0.7 dec., Thana No. 95, Ward No. 1, Holding No. 213, Makatpur, Giridih.
8.1/4 dec., Thana No. 95, Ward No. 1, Holding No. 905, Makatpur, Giridih.
0.9 Kattha, Thana No. 95, Ward No. 1, Holding No. 905, Makatpur, Giridih.
0.9 Katth, Thana No. 95, Ward No. 1, Holding No. 213, Thoka No. 306, Makatpur, Giridih.
One Bigha 4 Kathas, Thana No. 95, Ward No. 1, Holding No. 213, Thoka No. 306, Makatpur, Giridih.
4 Kathas, Ward No. 1, Holding No. 95, Makatpur, Giridih.
5 Kathas, 4 Chatak, Ward No. 1, Holding No. 205, Thana No. 95, Thoka No. 417, Makatpur, Giridih.
2 Kattha, Ward No. 1, Holding No. 205, Thana No. 95, Thoka No. 407, Makatpur, Giridih.
A series of objections were filed by several persons including the Petitioner before the third Respondent to revoke and recall the notification for the reason stated in the objections. As objections were common, by way of illustration the objection filed by Alakh Narain Darad (C.W.J.C. No. 2914/93 (R)) may be considered.
The objection of this Petitioner was that he was a bonafide purchaser of land under Holding No. 205, Thana No. 95 of Makatpur, Giridih by virtue of registered sale deed executed by Late B.K. Biswas for valuable consideration. Late B.K. Biswas was the owner of the properties mentioned in the gazette notification whose property was declared to be property of the State by law of escheat.
It was further asserted in the objection that the objector Petitioner had sold some land to different persons and the remaining land are in his possession.
More or less similar claim were made by other objectors.
Third Respondent by a common order (Annexure-6) rejected the objections.
inter alia on the following grounds:
(a) The properties, subject matter of the proceeding had all along been in possession of Late Biswas.
(b) The sale deeds executed by the deceased were without consideration. Hence no title passed to the purchasers. The transactions were void under the Transfer of Property Act.
(c) The mutation order obtained by the purchasers were obtained with fraud and hence not binding on the State.
The question for consideration is whether in purported exercise of power under Rule 356 of the Boards Miscellaneous Rules, the property could be declared escheat property.
The answer must be in the negative. It is indeed surprising that the third Respondent was not properly advised by the Government pleader. It is only a Civil Court who can declare a properly escheat property. The State must seek a declaration to this effect by instituting a civil suit before a court of competent jurisdiction. The Deputy Commissioner has no authority to usurp the jurisdiction of court as has been done in this case.
The right of the crown to take by escheat the property of a Hindu was finally established in the case of Collector of Masulipatom v. Cavely Venkatta Narainpah (1859) 8 MIA 519.
In Girdhari Lal Roy v. Bengal Government 12 MIA 448 it was held by the Judicial Committee that in an ordinary suit in the nature of ejectment the Government was in position of Plaintiff and it could recover only on the strength of its own title.
This case was followed by Madras High Court in Secretary of State v. Surya Karantha AIR 1916 Mad 209 where it was held that in a suit by the Government for ejectment of Defendant on the ground of escheat, it lies upon the Crown to prove at least prima facie the essential facts.
In Secretary of State v. Kanhaialal AIR 1941 Oud 337 suit was instituted by Deputy Commissioner, for certain landed property on the allegation that one Sunder Lal who was the owner of those properties died issueless in 1981, leaving a widow who obtained possession of all properties. During her lifetime she made several mortgages and sales of property in her possession in favour of various transferee. The Deputy Commissioner challenged the various transfers as without any authority. The Government claimed ejectment of transferees on the ground of escheat. The Oudh Court following the decisions of the Judicial Committee and Oudh Court (supra) dismissed the suit.
According to Article 296 of the Constitution of India any property in the territory of India which, if the Constitution had not come into force, would have accrued to His Majesty by escheat or lapse or as bon vacatia for want of rightful owner shall vest in the Stale or the Union according to the territorial situation of the property. Article 296 is subject to Article 300 of the Constitution of India which enables the Union or the State to institute legal proceeding.
In State of Bihar Vs. Radha Krishna Singh and Others, several persons came forward with rival claims of being the heirs to the property left by Maharaja Harendra Kishore Singh of Bettiah who died issueless. Several suits were filed by the different claimants for declaration that they were legal heirs of the Maharaja. The trial Court held that none of the claimants had been able to establish their claims. The trial Court however, accepted the case of escheat put forward by the State of Bihar. The Supreme Court set aside the order of the trial court. In paragraphs 269 to 272 of the report Fazal Ali, J., observed as follows:
Before closing the colourful chapter of this historical case we would now like to deal with the last point which remains to be considered and that is the question of Escheat. So far as this question is concerned, M.M. Prasad, J., has rightly pointed out that as the State of Bihar did not enter the arena as a Plaintiff to claim the properties by pleading that the late Maharaja had left no heir at all and, hence the properties should vest in the State of Bihar, it would be difficult to hold that merely in the event of the failure of the Plaintiffs'' case the properties would vest in the State of Bihar.
It is well settled that when a claim of escheat is put forward by the Government the onus lies heavily on the Appellant to prove the absence of any heir of the Respondent anywhere in the world. Normally, the court frowns on the estate being taken by escheat unless the essential conditions for escheat are fully and completely satisfied. Further, before the plea of escheat can be entertained, there must be a public notice given by the Government so that if there is any claimant anywhere in the country or for that matter in the world, he may come forward to contest the claim of the State. In the instant case, the States of Bihar and Uttar Pradesh merely satisfied themselves by appearing to oppose the claims of the Plaintiffs-Respondents. Even if they succeed in showing that the Plaintiffs were not the nearest reversioners of the late Maharaja, it does not follow as a logical corollary that the failure of the Plaintiff''s claim would led to the irresistible inference that there is no other heir who could at any time come forward to claim the properties.
The trial Court was wrong in accepting the case of escheat put forward by the Appellants without at all considering the well-known rules and considerations governing the vesting of properties in the State by Escheat. M.M. Prasad, J., has explained the position very clearly in his judgment and has concluded thus:
In view, however, of what I have held that the finding of declaration of the property having vested in the State of Bihar itself cannot be sustained, the question of making a declaration in favour of the State of Uttar Pradesh regarding the property in suit in that State does not arise.
We entirely agree with the opinion expressed by the learned Judge on this question. However, we would like to leave this question open without deciding it one way or the other because for the purpose of deciding the appeal it is not at all necessary to go into the question of escheat which may have to be determined when the State of Bihar and Uttar Pradesh come forward to claim escheat in a properly constituted action. The plea taken by both the sides on the question of escheat is therefore left undecided.
Chapter 20 of the Bihar Board''s Miscellaneous Rules, 1958 lays down general rules in respect of escheat. Rule 357 says that when real property is left without a claimant it does not appear that the intervention of the Civil Courts is in any way necessary, or can be, by any law, invoked. Rule 358 of the rules provides as follows:
Duties of the Board and of Collector.- By Section 8 Regulation XIX of 1810, the Board is vested with the general superintendence of all escheats, and is required to inform itself fully, through the local agents of any property of that description, and to direct whether it should, in its opinion, be disposed of. The Collector being an ex-officio local agent, should report, for the orders of the Commissioner and the Board, all cases, subject to the exceptions mentioned in Rule 359, in which he learns the existence of unclaimed real property. He should take immediate possession of such property on the part of the Government, take measures at the same time to invite claimants to the property as publicly as possible. Should the Collector''s action be opposed by any person actually in possession, he must desist from occupying the property and report the circumstances, with the opinion, in regard to the propriety of instituting a suit for the establishment of the right of Government. Notices inviting claimants to the property should remain open for six months.
Rule 358 of the Rules in clear terms provides that "Should Collector''s action be opposed by any person actually in possession, he must desist from occupying the property and report the circumstances, with the opinion, in regard to the propriety of instituting a suit for the establishment of the right of Government. Notices inviting claimants to the property should remain open for six months.
It is, thus, apparent from reading of this rule that the Collector can not take possession if his action is opposed by any person and in such cases he has to institute a suit for escheat of rights of Government. The Collector should have acted under this rule instead of declaring disputed property to the escheat by means of a summary proceeding. The order of the Collector is also ultra vires Rule 358 of the Bihar Board''s Miscellaneous Rules, 1958.
The impugned order, therefore, is null and void and is accordingly quashed. All the applications are allowed but without costs.