ADMINISTRATOR GENERAL OF UTTARANCHAL Vs. ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) By means of this writ petition, moved under Article 226/227 of the Constitution of India, the petitioner has challenged the impugned orders dated 24-08-2001 (copy Annexure-5 to the writ petition) and 6-1-2004 (copy Annexure-12 to the writ petition) and sought direction to allow application 78-C2 moved in Testamentary Case No. 60 of 2001 pending before District Court at Dehradun.

(2.) Brief facts of the case as narrated in the writ petition are that one Swami Omkaranand Saraswati (for brevity hereinafter the Swami) who was resident of Austria, came to India and settled here as a disciple of Swarni Shivanand. The Swami died in Austria on 4-1-2000. He executed, before his death, in November 1987, a power of attorney (copy Annexure-1 to the writ petition) in favour of Joseph Meichtry and got it registered. The Swami created a Trust (respondent No. 2), known as Omkaranand Saraswati Charitable Trust. A testamentary case was filed by one Mr. J. D. Jain, Advocate, Dehradun on the basis of a will purported to have been executed by the Swami in his favour. The said case was registered as Testamentary Case No. 28 of 2000 before the District Judge, Dehradun. Thereafter, another Testamentary Case No. 60 of 2001 (copy Annexure-2 to the writ petition) was filed by Swami Omkaranand Saraswati Charitable Trust (respondent No. 2) requesting for the Letters of Administration on the basis of another will dated 20-12-1999 purported to have been executed by the Swami in favour of the respondent No. 2. It is further alleged that the Swami left behind him huge movable and immovable properties. It is alleged that Mr. Joseph Meichtry alias Swami Vishweshwaran and withdrew an amount of rupees two crores on 22-4-2000 without any succession certificate. It is also alleged in the writ petition that an amount of Rs. 51.5 lakhs was given by Joseph Meichtry to Mr. J. D. Jain, Advocate before the testamentary case was filed by him. It is alleged by the petitioner (Administrator General of Uttaranchal) that Mr. J. D. Jain and respondent No. 2 are in collusion to grab the movable and immovable properties left behind by the Swami. In Testamentary Case No. 60 of 2001, respondent No. 2 cleverly filed an application 9C2 on 25-7-2001 (copy Annexure-4 to the writ petition) before the lower Court for dispensing with service of notice on the Administrator General on the ground that no Administrator General has been appointed in the newly created State of Uttaranchal. The said application was allowed by the Additional District Judge vide his order dated 24-8-2001 (copy Annexure-5 to the writ petition). According to the petitioner-Administrator General, the Swami died leaving no legal heir or representative and without executing any will. As such, property owned by him vests in State. In the testamentary case following persons namely, S/Shri Vijendra Tyagi, Devi Prasad Sharma, Sardar Singh, Mohar Singh and Smt. Parwati Sahni also filed their objections but the petitioner was not impleaded in the testamentary case. Another Testamentary Case No. 2 of 2001 was pending before this High Court in which vide order dated 14-5-2002 (copy Annexure-6 to the writ petition), the Administrator General was directed to look after the management of the property of the Swami. This Court passed an order on 19- 9-2002 (copy Annexure-8 to the writ petition) in testamentary case before it, issuing notice to the Administrator General under Sections 7 and 9 of the Administrator General Act, 1963. The said order was challenged by respondent No. 2 through Special Leave to Appeal (Civil) No. 209/2003) but the same was withdrawn on 31 -3-2003 (copy Annexure-9 to the writ petition). In the circumstances, petitioner moved an application 78-C2 (copy Annexure-10 to the writ petition) for his impleadment in the testamentary case before the District Judge, Dehradun and to recall order dated 24-8- 2001 and permitting the petitioner to file his objection. The respondent No. 2 filed objections against said application 78-C2 and the petitioner's said application was rejected vide order dated 6-1-2004 (copy Annexure-12 to the writ petition), which is challenged through this writ petition.

(3.) The respondent No. 2 has filed its counter-affidavit and raised the preliminary objections that the petition is not maintainable as the office Clerk of the Administrator General is not an authorized person to swear the affidavit in support of the petition. It is further stated in the counter-affidavit that Administrator General cannot challenge any ground nor can it claim preference over the beneficiaries in the probate proceedings, in view of Section 8 of the Administrator General Act, 1963 (hereinafter for short, the Act). It is further stated that this petition is not maintainable in view of the order dated 10th March, 2003 (copy Annexure-C-2 to the counter-affidavit) in Civil Misc. Application No. 5850 of 2002, whereby this Court presided by the then Chief Justice, Hon'ble A. A. Desai directed the petitioner to pursue his claim after final decision in Testamentary Case No. 60 of 2001. It is further alleged in the counter-affidavit that said order was passed with the consent of the parties. It is further stated in the counter-affidavit that in view of the order dated 31 -10-2003 passed by this Court (copy Annexure-C-3 to the counter-affidavit) the petitioner cannot make any claim in Testamentary Case No. 60 of 2001. It is also stated in the counter-affidavit that the person opposing the testamentary case must have interest in the property of the deceased. Under Article 296 of the Constitution of India only the intestate property vests in the State for the want of rightful claimant or the owner. It is alleged by the respondent No. 2 that since the respondent-Trust is claiming the property, as such State through Administrator General cannot interfere in the testamentary case.