BHATRUHARI MAHATAB Vs. COLLECTOR CUTTACK

JUDGEMENT

(1.) The orders passed by the Collector, Cuttack, in Escheat case No. 1 of 1992 under Annexures 2 and 2/A are the subject-matter of challenge in this writ application.

(2.) Petitioner No. 1 is the son of Dr. Hare Krushna Mahatab who had created a trust and petitioner No. 2 claims to be in possession of a bungalow 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 operation by 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 refuse; 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 bungalow 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.