ABDUL HUSSAIN Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) THE petitioner is the owner of the premises No.312, Thambu Chetty Street, Madras. In February, 1961, during the excavation work in the premises a large quantity of gold was unearthed. THE details of the treasure are as follows: "1. 280 gold coins M.O.I 2. 4 gold ingots M.O.2 3. 25 gold coins M.O.3 4. 2 gold coins M.O.4 5. 38 1/4 tolas of gold ingots M.O.5 6. 160 gold coins M.O.8 7. 15 gold coins M.O.9 8. 152 gold coins M.O.10."

(2.) THE petitioner did not give notice to the authorities as he should have done under Sec.4 of the Indian Treasure Trove Act"). In August 1962, the police having got information about the finding of the Treasure earthed, came to the petitioner and took away from him, Rs.67,500 which was the sale proceeds of part of the treasure trove, as well as 38 tolas of gold ingots and two gold coins. THE petitioner and the finders of the treasure trove Abdul Karim and Thangavelu were then prosecuted under Sec.4 read with Secs.20 and 22 of the Act. THE petitioner was convicted under Sec.4 read with Sec.22 of the Act and other two who were the finders of the treasure trove were convicted under Sec.4 read with Sec.20 of the Act. THE Chief Presidency Magistrate, while convicting the petitioner and others, also ordered confiscation of the whole of the treasure trove. THEreupon, the petitioner filed Criminal Miscellaneous Petition No.2445 of 1962 before this Court challenging the order of confiscation and Kunhamed Kutty, J. by the order dated 20.11.1963 set aside the order of confiscation as far as the portion of the treasure trove which were recovered from the petitioner was concerned, and remanded the matter to the Chief Presidency Magistrate for fresh disposal with regard to those properties in accordance with law, holding that there was no justification for confiscation as the petitioner was convicted only under Sec.4 read with Sec.22 of the Act. THE Chief Presidency Magistrate after remand of the matter, sent it to the Collector for disposal under Sec.4 of the Act. By the order dated 9.9.1966, the Collector of Madras has ordered confiscation of whole of the treasure trove including what was recovered from the petitioner. THEreafter, Writ Petition No.2749 of 1966 was filed by the petitioner before this Court to quash the order of confiscation passed by the Collector on 9.9.1966. Alagirisamy, J. as he then was who heard the Writ Petition No.2749 of 1966 took the view that Sec.22 of the Act does not provide for any confiscation of the share of the owner of premises and as the petitioner had been prosecuted and convicted only under Sec.4 read with Sec.22 and not under Sec.21, in which only the provision is made for confiscation of the share of the accused convicted under the section, the share of the petitioner in the treasure trove, cannot be validly confiscated by the Collector under Sec.5 of the Act. THE learned Judge, further found that the Collector, after declaring the treasure to be ownerless under Sec.9, ought to have given effect to the provisions of Sec. 12 of the Act and as the Collector has not done so, the learned Judge, by the order dated 25.3.1969 allowed the Writ Petition No.2749 of 1966 and quashed the order of the Collector dated 9.9.1966. THE learned Judge further directed the Collector to dispose of the matter afresh in the light of the observations in W.P.No.2749 of 1966 and in accordance with the provisions of Sec.12. Pursuant to the order dated 25.3.1969 made in W.P.No.2749 of 1966, the first respondent passed the impugned order dated 25.10.1985 in G.O.Ms.No.1487. By this said order dated 25.10.1985, the first respondent valued the items of treasure not acquired by the Government under Sec.16 at Rs.36,326, fixed the total value of treasure at Rs.1,08,826 and held that the petitioner is entitled to l/4th share of the total value of the treasure viz., Rs.27,206.50 (l/4th of Rs.1,08,826) as per Sec. 12 of the Act together with the l/5th of the value of the treasure acquired by the Government under Sec.16 of the Act. THE first respondent fixed the value of the treasure acquired by the Government under Sec.16 of the Act at Rs.26,355 and fixed the l/5th of Rs.26,355 as Rs.5,271. By the impugned order, the first respondent ultimately held that the petitioner as owner of the premises will be entitled to a total sum of Rs.32,477 being his l/4th share in the treasure. THE operative portion of the impugned G.O.Ms.No.1487 reads thus: "THE Government have examined the recommendation of the Special Commissioner and Commissioner of Revenue Administration and as ordered by the High Court in W.P.N.2749 of 1966 accord sanction for payment of Rs.32,477.50 (Rupees thirty-two thousand and four hundred and seventy-seven and paise fifty only) (i.e) Rs.27,206.50 towards l/4th of the total value of the treasure of Rs.1,08,820 plus l/5th of treasure to be acquired on behalf of the Government which represents the value of Gold coins to be handed over to the Director of Museum (i.e.) Rs.5,271. THE Collector of Madras is requested to claim the amount of Rs.32,477.50 (Rupees thirty-two thousand four hundred and seventy-seven and paise fifty only) and disburse the same to Thiru Abdul Hussain, at an early date. THE Government also authorise the Collector of Madras to sell the items mentioned as M.O.2 and M.O.5 (Gold ingots) mentioned in para.1 above in public auction by applying Sec.12 of the Indian Treasure Trove Act and to remit the amount realised into Government Account. THE items of Gold Coins referred to as M.Os.1, 3,4,8,9 and 10 in para.1 above are required by the Director of Museum for coin cabinet of the Museum at Madras. THE Collector of Madras is, therefore, requested to transfer the above gold coins to the Director of Museum after observing all the formalities."

(3.) SEC.12 of the Act reads thus: "When only one such person claims and his claims is not disputed, treasure to be divided: When a declaration has been made as aforesaid in respect of any treasure, and only one person other than the finder of such treasure has so appeared and claimed, and the claim of such person is not disputed by the finder, the Collector shall proceed to divide the treasure between the finder and the person so claiming according to the following rule (namely):If the finder and the person so claiming have not entered into any agreement then in force as to the disposal of the treasure, three-fourths of the treasure shall be allotted to such finder and the residue to such person. If such finder and such person have entered into any such agreement, the treasure shall be disposed of in accordance therewith." Provided that the Collector may in any case, if he thinks fit, instead of dividing any treasure as directed by this section: (a) allot to either party the whole or more than his share of such treasure, on such party paying to the Collector for the other party such sum of money as the Collector may fix as the equivalent of the share of such other party, or of the excess so allotted, as the case may be; or (b) sell such treasure or any portion thereof by public auction and divide the sale-proceeds between the parties according to the rule herein before prescribed: "Provided also, that when the Collector has by his declaration under SEC.9 rejected any claim made under this Act by any person other than the said finder or person claiming as owner of the place in which the treasure was found, such division, shall not be made until after the expiration of two months without an appeal having been presented under SEC.9 by the person whose claim has been so rejected, or, when an appeal has been so presented, after such appeal has been dismissed and shares to be delivered to parties. When the Collector has made a division under this section he shall deliver to the parties the portions of such treasure, or the money in lieu thereof, to which they are respectively entitled under such division." Admittedly, in the present case, the items of treasure mentioned as M.O.4 (two gold coins) were acquired by the Collector under SEC.16 on 28.5.1965 and the following items of treasure were acquired under SEC.16 on 9.10.1991: "1. 200 gold coins, out of 280 gold coins referred as M.O.I 2. 25 gold coins 3. 2 gold coins 4. 160 gold coins 5. 15 gold coins 6. 152 gold coins Total 554 gold coins." out of 280 gold coins seized, referred to as (item 1) M.O.I, only 200 gold coins, along with other items were acquired under SEC.16 on 9.10.1991. The remaining 80 out of 280 gold coins referred to as M.O.1 (item 1) were not acquired by the Collector under SEC.16 of the Act. As per SEC.12 of the Act, the petitioner is entitled either to l/4th share out of 80 gold coins referred to M.O.I, 4 gold ingots referred to as M.O.2 and 38 1/4 tolas of gold referred to as M.O.5 which are not acquired by the Collector under SEC. 16 of the Act, in specie, or to l/4th of the sale-proceeds of the said items, if the Collector chooses to sell the said items of gold coins in public auction, as contemplated under proviso to SEC.12. SEC.12 does not give power to the Government to unilaterally fix the value of the Treasure and direct payment of l/4th share of the value of the Treasure so fixed to the owner of the premises. Therefore, the impugned order fixing the total value of the items of treaure at Rs.1,08,820 and directing the payment of Rs.32,477.50 to the petitioner towards his l/4th share is clearly erroneous and contrary to the provisions of SEC.12 and therefore, it is liable to be set aside.