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1966 DIGILAW 59 (KER)

Indian Timber And Plywood Corporation Limited v. State of Kerala

1966-02-15

K.K.MATHEW

body1966
JUDGMENT K.K. Mathew, J. 1. This petition seeks to quash Exts. P. 1 and P. 2 notifications issued by the 1st respondent, by a writ of certiorari and to restrain the respondents from proceeding further in pursuance to the notifications. Ext. P. 1 notification refers to a property by name Kombian Mala while Ext. P. 2 refers to another property by name Narikot Mala. The notifications proceed on the basis that Kombian Mala belonged to one Mr. Lopez, a European Planter in Wynad Taluk while Narikot Mala belonged to another European Planter in Wynad Taluk, Mr. George Longford Young. These persons died in or about 1916 intestate and heireless. The notifications called upon persons who have any claims over these properties, to prefer and establish their claims before the Revenue Divisional Officer, Kozhikode, within six months of the date of the publication of the notifications failing which, it is stated that the alleged right of the two European Planters are liable to be escheated to Government. 2. According to the petitioner these two properties were comprised in the Poidana Malavaram which has a total extent of about 10,000 acres and belonged in jenmom to Pozhuthana Edom, an ancient Marumakkathayam family in Wynad. the Edom by a registered document leased the Poidana Malavaram to one S. Krishnan for a period of 99 years. Krishnan transferred the properties to the United India Timbering Co. Ltd., Bombay, which went into liquidation, and in the course of winding up of the company, the official liquidators sold the rights of the company in liquidation to the late Mr. M. C. Pothen in 1930; and Mr. Pothen transferred this leasehold right to M/s Amalgamated Malabar Estates (P) Ltd., a registered document dated 26-6-1931, which in turn put the petitioner company possession of all but 2000 acres of the properties in January 1938, pursuant to an agreement to transfer their rights to the petitioner. Petitioner company had actually been in possession of the property and a sale deed was executed and registered by way of implementation of the agreement referred to above. The petitioner also states that they have been exploiting this Malavaram as usual and since 1946 they were being granted permits by the Collector of Malabar under the M. P. P. F. Act for cutting and removing trees from different areas. 3. The main grounds on which Exts. P.1. The petitioner also states that they have been exploiting this Malavaram as usual and since 1946 they were being granted permits by the Collector of Malabar under the M. P. P. F. Act for cutting and removing trees from different areas. 3. The main grounds on which Exts. P.1. and P. 2 are impugned are that the said notifications were not authorised by the provisions of any law, and therefore either the 1st nor the 2nd respondent has power to issue the same, that the Kerala cheats and Forfeitures Act, Act IV of 1964 was brought into force only on 1965, that the State legislature has no power to pass Kerala Escheats and forfeitures Act, that Regulation VII of 1817 and Order No. 197 of the Standing Orders of the Board of Revenue, Madras, relied on by the State would not warrant the notifications, that the Standing Orders are mere executive instructions, and that they do not constitute existing law within the meaning of Art.366(10) of the Constitution. 4. The main question for consideration is whether the notifications , authorised by the provisions of any law. Mr. Surianarayana Iyer, appearing for the petitioner, submitted that though the State has relied upon Clause.6, 7, 8 and 9 of Regulation VII of 1817 for the purpose of supporting the notifications, those provisions would not support the same. Clause.6, 7, 8 and 9 are important and they are, therefore, extracted below: "6. The general superintendence of all escheats is likewise hereby vested in the Board of Revenue, who will, through the channel hereafter mentioned, inform themselves fully of all property of that description, and submit to the State Government their opinion as to the most expedient mode of disposing thereof; and the same shall be sold on the public account, or otherwise disposed of, as the State Government may determine. 7. To enable the Board of Revenue the better to carry into effect the duties entrested to them by this Regulation, local agents shall be appointed in each zila, subject to the authority, control and orders of that Board. 8. The Collector of the Zila shall be ex officio one of those agents, and the State Government, when it deems fit necessary, may appoint any other public officer or officers from the Civil, military or medical branch of the service to act in conjunction with him. 9. 8. The Collector of the Zila shall be ex officio one of those agents, and the State Government, when it deems fit necessary, may appoint any other public officer or officers from the Civil, military or medical branch of the service to act in conjunction with him. 9. Under the provisions of the present Regulation it will be the duty of the local agents to obtain full information from the public records, and by personal inquiries, respecting all endowments, establishments and buildings of the nature of those before described, and respecting all escheats, and to report to the Board of Revenue any instance in which they may have reason to believe that lands or buildings, or the rent or revenues derived from lards are unduly appropriated, being in all cases careful not to infringe any private rights, or to occasion unnecessary trouble or vexation to individuals. Counsel also said that an enquiry like the one contemplated under Exts. P. 1 and P. 2 is unauthorised as there is no power in the State legislature to authorise such an inquiry. On the other hand, it was contended by the learned Advocate General that under the common law the property of a person who dies intestate and without heirs escheats to the State, and that such a right is recognised by S.174 of the Government of India Act 1935 and Art.296 of the Constitution. It is an undoubted proposition that the sovereign takes the properties of all persons who die without heirs and intestate by escheat. The only question is whether the Collector has power to direct that the claimants to the properties in question should prefer and establish their claims before an authority designated for that purpose. The learned Advocate General relied upon Clause.9 of Regulation VII of 1817 and submitted that as there is power to gather information in regard to escheats that power can be exercised to its utmost extent and all means which are ancillary to that power can be employed for the purpose of the same, and that the purpose of issuing the notifications Exts. P. 1 and P. 2 is to gather informations, and if there is power to gather informations, there is also the implied power to direct persons to put forward their claims to the properties. P. 1 and P. 2 is to gather informations, and if there is power to gather informations, there is also the implied power to direct persons to put forward their claims to the properties. The learned Advocate General also said that Clause.5 of the B. S. O. 197 read along with Clause.6, 7, 8 and 9 of Regulation VII of 1817 warranted the issue of the notifications and the enquiry contemplated therein. Clause.5 of B. S. O. 197 runs as follows: "The Collector is the ex officio local agent of the Board. If it comes to his notice that any real property is prima facie liable to escheat, he should at once publish a notice in the district gazette inviting claimants to prefer their claims to it within six months from a specified date. If any claims are put in, he should investigate them, and finally on the expiration of the full time, and after the completion of the investigation of all claims that may have been put in, he should, if the value of the property exceeds his power of disposal, report the circumstances of the case for the orders of the Board as to whether the property may be declared escheat, and whether, in the event of possession thereof not being peacefully surrendered to Government, a suit may be filed to establish the right of the Government thereto. If the property is not in the possession of anybody or the party in possession does not offer any opposition to that course, the Collector should take possession of it as soon as the case comes to his notice. But if there is opposition, and there is no risk of the property being damaged, by the delay in taking possession thereof and arranging for its care and maintenance, the party may be left in possession until the question is finally settled in the usual course. If there is risk of damage, the orders of the Board should be sought as to the advisability of filing a suit at once to establish the right of the Government on the evidence already available..........". I think that the learned Advocate General is right in his submission that Clause.6, 7, 8 and 9 read with B. S. O. 197(5) gave power to the Collector to issue the notifications in question. I think that the learned Advocate General is right in his submission that Clause.6, 7, 8 and 9 read with B. S. O. 197(5) gave power to the Collector to issue the notifications in question. If that be so the notifications are valid and no question of quashing them arises. I dismiss the writ petition without any order as to costs.