Judgment:
G.B. Patnaik, J.
1. The orders passed by the Collector, Cultack, in Escheat case No. I of 1992 under Annexures2 and 2/Aare the subject-matter of challenge in this writ application.
2. Petitioner No. I is the son of Dr. Hare Krushna Mahatab who had created a trust and petitioner No. 2 claims to be in possession of a bangalow inside the campus which had been built by Dr. Hare Krishna Mahatab out of his own personal fund and it is alleged that it was not a part of the trust property. It is their contention that the private bungalow of Dr. Mahatab having not formed a part of the trust property, the same cannot be escheated under the provisions of the Orissa Escheats Act, 1979 (hereinafter referred to as the 'Act') and further no notice having been issued on property in the territory of India which would have accrued to his Majesty if the Constitution had not came into operationby escheat or lapse or as bona vacantia for want of a rightful owner vests in a State or the Union, as the case may be. The Orissa Escheats Act, 1979 was enacted by the State Legislature to provide for a uniform procedure for regulation, control and management of escheated property. The Act applies to all properties which according to the Constitution of India or any other law have vested or shall vest in the State by escheat, lapse or as bona vacantia. Under Section 4(2) of the Act, the Collector becomes the custodian of escheated properties. Under Section 6(1), the custodian on the basis of any report submitted to him or on his own information after making such enquiry as may be prescribed is satisfied that the Act applies to any property, then he may take charge of such property. The enquiry intended under Sub-section (1) is of a summary nature. Sub-section (3) of Section 6 enables the Collector to take possession of the immovable property by serving a notice on the person in possession of the property and where the person refuses or evades notice, then the notice can be served by affixture on the property itself. Under Sub-section (5) of Section 6, the custodian can enter into possession and assume management of the property after notice under Sub-section (3) of Section 6 is served and Section 6(5)(ii) casts an obligation on the person in possession of the property to deliver the same to the custodian. After the custodian takes charge of the property, he is duty bound to issue a General Notice calling upon the claimants to put forth their claims as provided under petitioner No. 1, who is the successor-in-interest of Dr. Mahatab, the entire proceeding is vitiated.
3. Dr. Hare Krishna Mahatab is the author of the Trust and a Deed of Trust in respect of the property was made on 20th of November, 1940. The Trust Deed indicates that the author Dr. Mahatab had acquired the lands/buildings and all other tenements with the intention of dedicating the same to the use and occupation thereof by National Congress Organisation in the province of Orissa and the funds for the acquisition having been raised by donations given by public-minded persons,the author created the Trust with several trustees named in the Deed. Clause 7 of the Trust Deed provided that the author having at his own cost built a bangalow in the Swaraj Ashram compound for his residential use, the trustees shall permit his personal user of the same for his residence and other like purposes connected with his public and political activities subject to payment of proportionate rent and taxes. Clause 17 provided that in case of any vacancy occurring among the trustees by reasons of resignation or otherwise, it shall be filled up by the remaining trustees by election and election of such new trustee shall be duly published. Admittedly, there has been no such election of trustees in accordance with Clause 17 of the Trust Deed and the members of the Trust Board have died one after the other and after death of Dr. Hare Krashna Mahatab, there being no other member of the trust board, the Collector has exercised his powers under the provisions of the Orissa Escheats Act, 1979.
4. Under Article 226 of the Constitution.any Section 7 and if any claims are receivedwithin the time given in the notice, then thecustodian has to refer the case to a Civil Courtof competent jurisdiction for a decision as towhether the property is an escheated propertyor whether the property belongs to anyclaimant as provided in Section 8. When theCivil Court finds that any property vested inthe State by escheat or by lapse or by bonavacantia, then it shall make a declaration tothat effect and order delivery of the propertyto custodian which could be executed by thecustodian as a decree if the order is notcomplied with. Section 11 provides thatduring the pendency of any proceeding eitherbefore himself or in any Court, the custodianshall hold and manage the property. Section 12 authorises the State Government orthe custodian to sue any person to recover anyescheated, property unlawfully held oralienated- The expression 'claimant' hasbeen denned in Section 2(n) of the Act tomeen, 'a person claiming any interest in theescheated property.'
5. In the aforesaid premises, it would now be necessary to examine whether the Collector committed any error in passing the impugned orders under Annexures 2 and 2, A. So far as the order in Annexure 2 is concerned, the Collector on examining the materials produced before him came to the conclusion that the trustees have all died one after the other and the vacancies that caused have not been filled up and consequently the property vests in the State by escheat. The Collector further assumed charge as custodian of the property in question obviously in exercise of power under Section 6(1) of the Act. There is no dispute that all the trustees under the trust deed in question have died and there has been no nomination to fill up the vacancy in accordance with the provisions contained in the trust deed. Therefore, the property naturally vested in the State in the absence of any successor to the property in question. The Collector, therefore, rightly assumed charge as Custodian of the property under Section 6(1) of the Act and there is no infirmity with the aforesaid decision of the Collector under Annexure 2.
6. So far as the order in Annexure 2 A is concerned, the Collector exercising the powers of custodian has passed the said order directing the person in possession of the property to deliver the same under Sub-section (6)(ii) of Section 6 of the Act. Once notice is served under Sub-section (3) of Section 6, the custodian is entitled to enter into possession and assume management of the property, as provided in Sub-section (6)(i) of Section 6 and under Sub-section (6)(ii) of Section 6, the statute mandates the person in possession to deliver the property to the custodian The so-called claim made by the claimants on the ground that the bungalow constructed was the private properly of Dr. Mahatab and therefore, passed on to his son and successor has to be decided upon the terms and conditions of the trust deed. Prima facie Clause 7 of the trust deed on which the petitioner's counsel strongly relied up on is not susceptible of a construction that the said bungalow was not a part of the that a property. On the other hand, the only construction that is possible of the aforesaid clause is that even though it forms a part of a trust property but the trustees are bound to permit the personaluser of the same for the residence of Dr. Hart; Krushna Maliatab either for his public or political activities. But there is nothing in the aforesaid Clause 7 to indicate that the property did not form a part of the trust property and on death of the owner it devolved upon his successor. Clause 7 of the trust deed is extracted herein below in extenso :--
'(7) That Sri Mahatabji (the Author) having at his own costs built a bungalow in the Swaraj Ashram compound for his personal use. The Trustees shall permit his personal user of the same for his residence and other like purposes concerned with his public and political activities subject to payment of proportinate rent and taxes.'
The very fact that the aforesaid clause requires the trustees to accord permission for the personal user of the bungalow as the residence of Dr. Mahatab militates against the contention of the petitioners that the property did not form a part of the trust property. Prima facie, therefore, there is no material in support of the claim of the petitioners and consequently, the custodian was fully justified in directing the person in possession of the property to deliver the same to the custodian in view of the statutory mandate on the person in possession of the property, as indicated in Section 6(5)(ii) of the Act. We, therefore, find no infirmity with the aforesaid decision of the Collector under Annexure 2/A.
7. The Collector as the custodian is required to give a General Notice under Section 7 of the Act. From the materials on record it is not clear whether such General Notice had been given and if any claim is received within the time stipulated under Section 7, then the Collector is duty bound to make a reference to the Civil Court. If the notice under Section 7 has already been given pursuant to which the claim has been preferred, then the Collector must make a reference to |he Civil Court, as provided under Section 8 of the Act. The Collector, therefore, should proceed in the matter of making a reference bearing in mind the observations made by us in his judgment.Subject to the aforesaid observation, we do not find any merit in this writ application which accordingly is dismissed. There will be no order as to costs.
P.K. Patra, J.
8. I agree.