Jharkhand High Court
Jain Shwetamber Society vs The State Of Jharkhand on 7 February, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5523 of 2014
Jain Shwetamber Society, a registered religious and charitable Trust,
Madhuban, Giridih, through its Manager ... ... Petitioner
Versus
1. The State of Jharkhand
2. The Collector, Giridih
3. Bharatvarshiya Digamber Jain Tirth Kshetriya Committee,
through its President, Madhuban, Giridih
4. Bharatvarshiya Digamber Jain Terapanthi Kothi, Madhuban,
Pirtand, Giridih, through its President ... ... Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Navniti Pd Singh, Sr. Advocate Mr. Abhishek Baid, Advocate Mr. Jitendra Kr Pasari, Advocate For the Respondent Nos.1 & 2 : Mr. Prabhat Kumar, SC-II Mr. Karan Shahdeo, AC to SC-II For the Respondent Nos.3 & 4 : Mr. Rajesh Kumar, Advocate Mr. Amit Kumar, Advocate Mr. Manindra Kr Sinha, Advocate
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Order No. 22 Dated: 07.02.2024 The present writ petition has been filed for quashing the order dated 17.07.2014 (Annexure-20 to the writ petition) passed by the respondent no. 2 - the Collector, Giridih in Misc. Case No. 25 of 2000, whereby proceedings initiated under the Indian Treasure-Trove Act, 1878 (hereinafter referred to as "the Act, 1878") has been closed on the basis of the report dated 11.03.2014 sent by the Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, Ranchi. Further prayer has been made for issuance of direction upon the concerned respondents to hand over 19 Jain Idols unearthed during excavation at Village-Madhuban, District-Giridih to the petitioner in terms with Section 10 of the Act, 1878.
2. The factual background of the case emanating from the writ petition is that in course of excavation for new 2 construction behind the campus of the main temple i.e., Bhomiya Ji Temple (Jain Shwetamber Kothi) pertaining to the petitioner, 19 worshipable Idols of Jain Tirthankar were unearthed on 01.06.2000. An information about the recovery of the said Idols was given by the petitioner to the police outpost at Madhuban as well as to the office of the respondent no. 2 on the same day i.e., 01.06.2000 and thereafter, the In-charge of the said Police Outpost prepared an Inventory of the Idols. As per direction of the respondent no. 2, the Sub-Divisional Officer, Giridih along with the Deputy Superintendent of Police, Giridih visited the campus of the petitioner on 02.06.2000 and sealed the idols in room no. 1 of Block 'A' of the 'Dharmshala' situated in the premises of the main temple by taking written undertaking of the President of the petitioner in the presence of its Secretary and one employee as a security (Jimmanama) in terms with Section 4 of the Act, 1878.
3. Thereafter, the respondent no. 2 vide letter no. 1550 dated 07.06.2000, requested the Director, Directorate of Archaeology, Government of Bihar, Patna to inspect the recovered Idols as well as the excavation site and to submit its report so as to take decision with respect to ownership of the said idols whereupon the said Director submitted its report to the respondent no. 2 vide Memo No. 268 dated 11.07.2000 stating inter alia that all the 19 recovered idols were buried in the soil by digging a pit about 200-250 years back perhaps due to fear of the then 'Mughal invaders'.
4. The respondent no. 3 - Bharatvarshiya Digamber Jain Tirth Kshetriya Committee filed a petition before the respondent 3 no. 2 on 15.07.2000 under Section 7 read with Section 4 of the Act, 1878 for declaring the ownership of the recovered Idols in favour of Digamber Sect and requested to hand over the same to it. The said petition was numbered as Misc. Case No. 25/2000. The Director, Directorate of Archaeology, Bihar, Patna prepared another report dated 18.07.2000 stating that similar Idols were being worshiped in the temples of both Shwetamber and Digamber sects. It was further suggested that the idols could be handed over to Digamber sect.
5. The respondent no. 2 issued notice under Section 5 of the Act, 1878 in Misc. Case No. 25/2000, a copy of which was also served to the petitioner and thereafter, the petitioner filed its objection on 11.01.2001 praying for rejection of the petition filed by the respondent no. 3. The respondent no. 3 filed another petition before the respondent no. 2 on 15.03.2001 with a prayer to keep the recovered Idols in safe custody pending adjudication of the matter whereupon the respondent no. 2 vide order dated 19.11.2002 directed the Circle Officer, Pirtand to take the said Idols in custody in presence of both the parties by keeping them in a properly sealed wooden box and thereafter to deposit the same in the District Treasury.
6. The petitioner challenged the said order before the Commissioner, North Chhotanagpur Division, Hazaribagh by filing Miscellaneous Revision (R) 126/2002 on 16.12.2002 under Section 76 of the Bihar Practice and Procedure Manual, 1958 and the Commissioner vide order dated 25.01.2003 set aside the entire proceeding of Misc. Case No. 25 of 2000 pending before the 4 respondent no. 2 holding that the same got vitiated due to non- compliance of mandatory provision of publishing a general notification in terms with Section 5 of the Act, 1878 before passing the order for interim protection of the said idols.
7. The said order of the Commissioner, North Chhotanagpur Division, Hazaribagh was challenged by the respondent no. 3 by filing a writ petition being W.P.(C) No. 916 of 2003 on 17.02.2003. Learned Single Judge stayed the order dated 25.01.2003 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh during pendency of the said writ petition. In the meantime, the petitioner and the Secretary of one of the sub- sects of Digamber Society i.e., the respondent no. 4 entered into an agreement on 16.02.2003 and in terms of said agreement, 9 idols were installed in the temple of Shwetamber Society i.e., the petitioner and 9 idols were installed in the temple of the respondent no. 4 in presence of Jain Acharya Shri Sushil Surishwarji, whereas one idol which was in broken condition was lying in the temple premises of the petitioner. Thereafter, the Shwetamber Society filed I.A No. 543 of 2003 for vacating the stay granted by learned Single Judge, however, the said interlocutory application was dismissed by learned Single Judge on 08.04.2003 and subsequently, vide order dated 14.08.2003, the writ petition was referred to learned Division Bench after noticing the argument of learned Advocate General, the State of Jharkhand that the land had vested in the State and, therefore, the said treasure belonged to the State of Jharkhand.
8. The Jain Shwetamber Society through its Manager also 5 filed a writ petition on 18.09.2003 being W.P.(C) No. 4820 of 2003 for quashing the entire proceeding of Misc. Case No. 25 of 2000 including the order dated 19.08.2003 passed by the respondent no. 2 and the said writ petition was also referred to learned Division Bench for being heard along with W.P.(C) No. 916 of 2003. Thus, W.P.(C) No. 4820 of 2003 was tagged with W.P.(C) No. 916 of 2003. Finally, learned Division Bench, vide order dated 14.05.2004 passed in "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee Through its President with Jain Swetambar Society Through its Manager Vs. State of Jharkhand & Ors." reported in 2004 SCC OnLine Jhar 700), allowed W.P.(C) No. 916 of 2003 and quashed the order dated 25.01.2003 passed by the Commissioner, North Chhotanagpur Division, Hazaribagh by restoring the order dated 19.11.2001 passed by the respondent no. 2.
9. Learned Division Bench further dismissed W.P.(C) No. 4820 of 2003 by directing the respondent no. 2 to expedite the proceedings and to pass a final order as contemplated under the Act, 1878 after hearing all the concerned parties. Pursuant to the order dated 14.05.2004 passed by learned Division Bench of this Court, the respondent no. 2 issued general notice dated 20.07.2004 under the Act, 1878 in Misc. Case No. 25 of 2000, which was published in the district gazette as well as in the newspaper and in compliance of the said notice, six persons including the petitioner filed their respective claims, however, the respondent no. 3 did not file any claim.
10. The respondent no. 2 vide order dated 21.09.2004, 6 decided to proceed for determining the dispute in terms with Section 7 of the Act of 1878. Thereafter, the said respondent, vide order dated 24.12.2004 held that it was necessary to determine the issue under sub-section (a) and sub-section (b) of Section 7 of the Act, 1878. Under Section 7 (a) of the Act, 1878, the respondent no. 2 observed that the finder of the treasure was the petitioner and the same was found in its premises in course of excavation work. The respondent no. 2 also observed under Section 7(b) of the Act, 1878 that it was not possible to determine the persons by whom the treasure was hidden and as per the report of the Director, Directorate of Archaeology, Government of Bihar, Patna as well as report of the experts of Ranchi Museum, the recovered idols (treasure) were assumed to be about 200-250 years old. As per the report of the Director, Directorate of Archaeology, Government of Bihar, Patna, it was possible that the said idols were buried in the earth due to the fear of Muslim invaders. The respondent no. 2 further held that since the recovered idols were presumably 200-250 years old, Section 8 of the Act, 1878 would not be applicable and ordered to proceed further in the matter accordingly.
11. Thereafter, the respondent no. 2 passed the order under Section 9 of the Act, 1878 on 29.12.2009 and declared the recovered idols as 'Ownerless''. The said respondent further directed to send a detailed factual report to the concerned department of Government of Jharkhand so as to decide the applicability of Ancient Monuments Preservation Act, 1904, the Ancient Monuments And Archaeological Sites and Remains Act, 7 1958 and the Bihar Ancient Monuments and Archaeological Sites Remains and Art Treasures Act, 1976 in terms with the direction given by learned Division Bench vide judgment dated 14.05.2004 passed by learned Division Bench in the case of "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee"
(supra). Thereafter, the respondent no. 2 vide letter no. 1393 dated 26.10.2010, requested the Secretary, Department of Art, Culture, Sports and Youth Affairs, Jharkhand to take appropriate action at the department level so as to decide the following points:
i. Whether the recovered Idols were covered under the provisions of the Ancient Monuments Preservation Act, 1904?
ii. Whether the recovered Idols were covered under the provisions of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and Bihar Ancient Monuments and Archaeological Sites Remains and Art Treasures Act 1976?
iii. Whether it was necessary to hand over the recovered idols to the custody of competent authority for ownership, protection and use under the provisions of said Acts?
12. The Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, Ranchi vide his letter No. 212 dated 11.03.2014 replied the said queries of the respondent no. 2 stating that Ancient Monuments Preservation Act, 1904 was already repealed. It was further reported that Sections 25 and 26 of the Act, 1958 and Sections 24, 25, 32 and 34 of the Act, 1976 would apply to the recovered idols as well as that the said idols 8 were required to be handed order to the authorized/competent officer of the State Government under the Act, 1958 and the Act, 1976. Thereafter, the respondent no. 2 vide order dated 17.07.2014 disposed of the proceedings of Misc. Case No. 25 of 2000 on the basis of the report of the Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, Ranchi. The petitioner filed a review application before the respondent no. 2 for reviewing its order dated 17.07.2014 which is still pending.
13. Learned Senior Counsel for the petitioner submits that the petitioner had no knowledge or information about letter dated 26.10.2010 sent by the respondent no. 2 to the Director, Directorate of Art, Culture, Sports and Youth Afairs, Jharkhand, Ranchi or about the report dated 11.03.2014 submitted by the Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, Ranchi to the respondent no. 2. Thus, the impugned order has been passed in violation of the principles of natural justice. It is also submitted that on plain reading of the provisions of the Act, 1878, it would be clear that if the finder is also the owner of the place from where treasure is recovered and the treasure is declared ownerless under Section 9 of the Act, 1878, then the treasure is required to be handed over to the finder. The respondent no. 2 vide order dated 24.12.2004 passed under Section 7 of the Act, 1878, had declared that the petitioners was the finder of the said idols as well as the owner of the land from where said treasure was found. Further, the said respondent vide order dated 29.12.2009 passed under Section 9 of the Act, 9 1878 declared the recovered treasure as 'Ownerless'. Hence, there was no occasion for him to direct the parties to institute a suit in the concerned civil court under Sections 13 and 14 of the Act, 1858 so as to obtain a decree declaring right over the said idols. In the facts and circumstances of the case, the respondent no. 2 ought to have ordered for handing over such treasure to the petitioner under Section 10 of the Act, 1858 which were worshipable Idols having no archaeological importance.
14. It is further submitted that Section 25 of the Act, 1958 empowers the Central Government to control movement of antiquities from one place to another, that too, after issuance of notification in the official Gazette, however, in the present case, there is no question of movement of antiquities. The recovered idols are worshipable Idols of Jain Tirthankars unearthed behind the Bhomiya Ji Jain Temple at Madhuban. Section 26 of the Act, 1958 empowers the Central Government to acquire any antiquity in the circumstances mentioned therein and Section 26(3) prohibits the Central Government from exercising these powers with respect to acquisition of religious images (Idol). Moreover, none of the circumstances contemplated under Section 26 exists in the present case.
15. It is also submitted that Sections 24 and 25 of the Act, 1976 are pari-materia to the Sections 25 and 26 of the Act, 1958. The recovered Idols have not been delivered to the petitioner, rather those are still in possession of the respondent no. 2 and hence, Sections 32, 33 and 34 of Bihar Act, 1976 have no application in the facts and circumstances of the present case. 10 Nine Idols identical to the recovered idols having similar inscriptions were already installed in the main temple since centuries and are regularly worshipped by the devotees/worshippers. Moreover, the order of the respondent no. 2 declaring the recovered Idols as 'Ownerless' was not challenged by the Digambars by filing an appeal as provided under Section 9 of the Act, 1878 and as such, the same has attained finality.
16. Mr. Rajesh Kumar, learned counsel appearing on behalf of the respondent nos. 3 & 4, submits that the idols found during the excavation are of Digambar style and belongs to the Digambar community. The present legal proceedings are against the very essence of The Places of Worship (Special Provisions) Act, 1991. Section 3 of the Act, 1991 stipulates that no person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof. There are fundamental differences in the way, manner and state of an Idol which is worshipped by Digambars and Shwetambars. The Digambars worship their Idols in its original nude form without any ornament and decoration, whereas Shwetambars install chakshus (eyes), clothes or mukut (crown), waist band and thus, if the Idols in question are handed over to the Shwetambars, then, there is every possibility of conversion of the religious character/denomination of the said Idols from the existing nature and style of Digambar sect to the nature and style of Shwetambar sect, which is prohibited under Section 3 of the Act, 1991.
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17. It is further submitted that admittedly, the petitioner failed to discharge his duty of giving notice in writing under Section 4 of the Act, 1878 about discovery of the idols due to which learned Division Bench in the case of "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee" (supra) had observed that the petitioner was liable to be prosecuted under Section 20 of the Act, 1878 and now the petitioner is claiming its right on the basis of the said Act, the provisions of which have not been followed by it right from the beginning.
18. It is further submitted that the Hon'ble Supreme Court in the case of "M. Siddiq (Dead) through Legal Representatives Vs. Mahant Suresh Das" reported in (2020) 1 SCC 1, has held that the effect and intent of the Act, 1991 is that the religious character/nature/style of a place of worship has to be maintained as it existed on 15.08.1947. After coming into force of the Act, 1991, no right or entitlement or declaration of any sort can be enforced even if the same pertains to a period prior to coming into force of the said Act.
19. It is also submitted that even if the said idols were buried for 100 or more years, it was for the petitioner to establish that on 15.08.1947, the religious character, nature, style and denomination of the Idols in question were not 'Digambar' but 'Shwetambar'. The archaeological report dated 18.07.2000 sent by the Director, Directorate of Archaeology, Bihar, Patna clearly proves and establishes beyond any iota of doubt about the Digambar character of the said Idols when they were unearthed during excavation.
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20. Learned counsel for the respondent-State submits that learned Division Bench in the case of "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee" (supra) had specifically observed that the Shwetamber Society was liable to be prosecuted under Section 20 of the Act, 1878 for acts of omission in complying the demands of Section 4 of the Act, 1878. It was further held that in terms of Section 20 of the Act, 1878, the treasure was even liable to be confiscated. The said order of learned Division Bench was not challenged by the petitioner and hence, the same has attained finality. In the light of the observations made by learned Division Bench, the petitioner was issued notice to show cause as to why it should not be punished with imprisonment or fine or both for having failed to comply with the provisions of Section 4 of the Act, 1878. A criminal proceeding being G.R. No. 1679 of 2003 was instituted against the President of the petitioner and another person for the offences punishable under Sections 406, 409 & 120-B of IPC, though vide order dated 30.01.2013 passed by the Judicial Magistrate 1st Class, Giridih, they were acquitted from the said charges.
21. Learned counsel for the respondent-State puts reliance on the judgment rendered by learned Division Bench of Patna High Court in the case of "Shyam Bahadur Koeri Vs. The State of Jharkhand" reported in AIR 1967 Pat 312 and submits that in the said case, though the order for criminal prosecution against the petitioners of that case was quashed, the Court refused to interfere with the order of the collector regarding vesting of the treasure in the State observing that the said act of collector was 13 not wrong since the mandatory requirement as provided under Section 4 of the Act, 1878 had been violated.
22. According to learned counsel for the State, the petitioner's claim that the recovered idols should be handed over to it since those have been declared as 'Ownerless' under Section 9 of the Act, 1878, is erroneous as handing over the recovered idols to the petitioner cannot be done in view of the order dated 14.05.2004 passed by learned Division Bench in W.P.(C) No. 916 of 2003 with W.P.(C) No. 4820 of 2003 categorically observing that the claim of the petitioner to keep the statuettes was illegal. After the proceeding under Section 9 of the Act, 1878, the Collector rightly proceeded under Section 20 of the Act, 1878 and finally ordered to keep the idols in the Government Treasury. Though the Act, 1958 and the Act, 1976 have been mentioned in the impugned order dated 17.07.2014, those have not been relied upon by the Collector while passing the said order. The petitioner is at liberty to file a suit seeking declaration of ownership of the said idols recovered during excavation. The proceedings of Misc. Case No. 25 of 2000 was initiated by the respondent no. 2 under the provisions of the Act, 1878 and the final order was passed on 17.07.2014 in compliance of the order passed in "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee"
(supra).
23. Heard learned counsel for the parties and perused the materials available on record.
24. The thrust of argument of learned Senior Counsel for the petitioner is that the respondent no. 2 has committed serious 14 error in dropping the proceeding of Misc. Case No. 25 of 2000 after receiving the report of the Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, as he was under legal obligation to pass appropriate order under Section 10 of the Act, 1858, pursuant to the order passed under Section 9 declaring the recovered idols as 'Ownerless'.
25. Learned Division Bench of this Court, in the case of "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee" (supra), having found that as per two archaeological reports, the recovered idols were 200 to 250 years old and the State Government was also claiming ownership of the recovered idols, had observed that the applicability of the Ancient Monuments Preservation Act, 1904 or the Ancient Monuments & Archaeological Sites and Remains Act, 1958 or the Bihar Ancient Monuments and Archaeological Sites Remains and Art Treasures Act, 1976 was required to be considered by the appropriate authorities under those enactments. However, while observing so, the learned Division Bench had specifically directed the Collector to proceed in accordance with the Act, 1878 and to take a decision after fulfilling the requirements of the said Act.
26. I have gone through the provisions of the Act, 1958 and the Act, 1976 which have been referred in the letter no. 212 dated 11.03.2014 issued by the Director, Directorate of Art, Culture, Sports and Youth Affairs, Jharkhand, Ranchi while deciding the issue as to whether the said recovered idols were required to be handed over to the custody of authorized/competent officer of the State Government for 15 ownership, protection and use.
27. Sections 25 and 26 of the Act, 1958 are reproduced hereinbelow for ready reference:
25. Power of Central Government to control moving of antiquities― (1) If the Central Government considers that any antiquities or class of antiquities ought not to be moved from the place where they are without the sanction of the Central Government, the Central Government may, by notification in the Official Gazette, direct that any such antiquity or any class of such antiquities shall not be moved except with the written permission of the Director-General.
(2) Every application for permission under sub-section (1) shall be in such form and contain such particulars as may be prescribed.
(3) Any person aggrieved by an order refusing permission may appeal to the Central Government whose decision shall be final.
26. Purchase of antiquities by Central Government.― (1) If the Central Government apprehends that any antiquity mentioned in a notification issued under sub- section (1) of section 25 is in danger of being destroyed, removed, injured, misused or allowed to fall into decay or is of opinion that, by reason of its historical or archaeological importance, it is desirable to preserve such antiquity in a public place, the Central Government may make an order for the compulsory acquisition of such antiquity and the Collector shall thereupon give notice to the owner of the antiquity to be acquired. (2) Where a notice of compulsory acquisition is issued under sub-section (1) in respect of any antiquity, such antiquity shall vest in the Central Government with effect from the date of the notice.
(3) The power of compulsory acquisition given by this section shall not extend to any image or symbol actually used for bona fide religious observances.
28. Sections 24, 25, 32 and 34 of the Act, 1976 are also reproduced hereinbelow:
24. Power of State Government to control moving of antiquities:
(1) If the State Government considers that any antiquity or class of antiquities ought not to be moved from the place where they are without their sanction, the State 16 Government may, by notification in the Official Gazette, direct that any such antiquity or any class of such antiquities shall not be moved except with the written permission of the Director.
(2) Every application for permission under sub-section (1) shall be in such form and contain such particulars as may be prescribed.
(3) An appeal shall lie to the State Government against an order refusing permission whose decision shall be final.
25. Acquisition of antiquities by State Government:
(1) If the State Government apprehends that any antiquity mentioned in a notification issued under sub-
section (1) of section 24, is in danger of being destroyed, removed, injured, misused or allowed to fall into decay or is of opinion that, by reason of its historical or archaeological importance, it is desirable to preserve such antiquity in a public place, the State Government may make an order for the compulsory acquisition of such antiquity and the Director shall thereupon give notice to the owner of the antiquity to be acquired. (2) Where a notice of compulsory acquisition is issued under sub-section (1) in respect of any antiquity, such antiquity shall vest in the State Government with effect from the date of the notice.
(3) The power of compulsory acquisition given by this section shall not extend to any image or symbol actually used for bona fide religious observances.
32. Declaration as to any antiquity:
(1) Whoever owns or is in possession, custody or control of any antiquity, on the date of the commencement of this Act, make a declaration to that effect to the Director, or to such authority, and in such form, as may be prescribed.
(2) Whoever owns or comes in possession, custody or control of any antiquity after the coming into force of this Act, shall, within the period of fifteen days of owning or coming into possession, custody or control of such antiquity, make a declaration to that effect to the Director, or to such authority, and in such form, as may be prescribed. Provided that the above provisions shall not apply to the officers of the Archaeological Survey of India.
34. Powers of Entry, Search, Seizure, etc. (1) Any person being an officer of Government, authorized in this behalf by the State Government may, with a view to securing compliance with the provisions of this Act or to satisfying himself that the provisions of this 17 Act have been complied with -
(a) enter and search any place;
(b) seize any antiquity or art treasure in respect of which he suspects that any provision of this Act has been, is being, or is about to be, contravened and thereafter take all measures necessary for securing the production of the antiquity or art treasure so seized in a Court and for its safe custody, pending such production.
(2) The provisions of sections 102 and 103 of the Code of Criminal Procedure, 1898 (5 of 1898) relating to search and seizure shall, so far as may be applied to searches and seizures under this section.
29. Thus, Section 25 of the Act, 1958 empowers the Central Government to issue a notification prohibiting the movement of any antiquities or class of antiquities except with the permission of the Director-General of Archaeology. Further, Section 26 empowers the Central Government to purchase the antiquities or class of antiquities when the Central Government apprehends that any antiquity mentioned in a notification issued under sub- section (1) of Section 25 is in danger of being destroyed, removed, injured, misused or allowed to fall into decay or is of opinion that, by reason of its historical or archaeological importance, it is desirable to preserve such antiquity in a public place after giving notice to the owner of the antiquity, however, the power of compulsory acquisition shall not extend to any image or symbol actually used for bonafide religious observances. Sections 24 and 25 of the Act, 1976 are pari-materia to the provisions of Sections 25 and 26 of the Act, 1958, whereby the State Government has been empowered to control moving of antiquities and acquisition of antiquities by the State Government. Section 32 of the Act, 1976 provides for making of declaration by the person who owns or is in possession, custody or control of any antiquity. Section 34 18 provides for entry and search of any place as well as seizure of any antiquity or art treasure by the authorized person of the State with a view to secure compliance with the provisions of the Act, 1976 or to satisfy himself that the provisions of the said Act have been complied.
30. In the case in hand, the report of the Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, does not suggest that any notification has been issued either by the Central Government or by the State Government with respect to the recovered idols so as to control its movement or its acquisition. The Director, Directorate of Art, Culture, Sports and Youth Affairs, Government of Jharkhand, has merely observed that the relevant provisions of Sections 25 & 26 of the Act, 1958 and Sections 24, 25, 32 & 34 of the Act, 1976 will apply in the present case and it is necessary under the provisions of said Acts to deliver the recovered idols under the ownership, protection and use of the Authorized/Competent Officer of the State Government.
31. I am of the view that since no specific order has been passed either by the Central Government or by the State Government with respect to acquisition of the said idols or restricting movement of the same, the respondent no. 2 was not right in dropping the proceeding initiated under the Act, 1878 that too, without giving any specific finding for the same. Moreover, none of the parties were heard on the report of the Director, Directorate of Art, Culture, Sports and Youth Affairs, rather the respondent no. 2 suo-motu passed the impugned order dated 19 17.07.2014 which was also in violation of the principles of natural justice.
32. The contention of the respondent-State is that the impugned order has been passed by the respondent no. 2 in compliance of the decision of learned Division Bench rendered in the case of "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee" (supra) wherein it was held that the petitioner had violated the provision of Section 4 of the Act, 1878 and thus, it was liable to be prosecuted under Section 20 of the Act, 1878 as also the treasure was liable for confiscation.
33. On perusal of the judgment rendered in "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee"
(supra), it would be clear that a writ petition [W.P.(C) No. 4820 of 2003] was filed by the Shwetamber Society challenging the entire proceeding of Misc. Case No. 25 of 2000 pending before the Deputy Commissioner/Collector, Giridih and while considering the claim of the Shwetamber Society, learned Division Bench observed that the Collector had passed the order on 19.11.2001 directing the Circle Officer to keep the statuettes in a sealed box and to deposit the box in the Government Treasury till the pendency of the dispute since the Shwetamber Society had neither given notice in writing as contemplated under Section 4 of the Act nor had offered to give security. It was further held that the said order had been passed in the interests of justice and to preserve and protect the recovered treasure, pending the quasi-judicial proceedings before the respondent no. 2.
34. Though learned Division Bench of this Court observed 20 that the petitioner had prima facie violated Section 4 of the Act, 1878, it did not specifically hold that in consequence of violation of Section 4, the recovered idols got automatically vested in the State of Jharkhand, rather the Bench upheld the action of the Deputy Commissioner in depositing the idols in the government treasury till deciding the dispute between the parties. In the said order, learned Division Bench while interpreting Section 20 of the Act, 1878, observed that in terms with the said section, Shwetamber Society was liable to be prosecuted for the act of omission to comply with the demand of Section 4 of the Act, 1878 and even the treasure was liable to be confiscated.
35. In the case of "State of Orissa Vs. Sudhansu Sekhar Misra" reported in 1967 SCC OnLine SC 17, as has been relied upon by learned Senior Counsel for the petitioner, the Hon'ble Supreme Court has held as under:
"-----A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury L.C. said in Quinn v. Leathem [[1901] AC 495] :
"Now before discussing the case of Allen v. Flood, [1898] AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that 21 the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. -------"
36. Thus, the observation of learned Division Bench of this Court in the case of "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee" (supra) that Shwetamber Society was liable to be prosecuted under Section 20 of the Act, 1878 for the act of omission to comply with the demand of Section 4 of the said Act and even the treasure was liable to be confiscated, was not the final decision of the Court relating to the dispute between the parties since the respondent no. 2 was ultimately directed to take decision as contemplated under the Act, 1878.
37. I have perused Section 20 of the Act, 1878 wherein it has been provided that if the finder of any treasure fails to give the notice, or does not either make the deposit or give the security required by Section 4, or alters or attempts to alter such treasure so as to conceal its identity, the share of such treasure, or the money in lieu thereof to which he would otherwise be entitled, shall vest in Government, and he shall, on conviction before a Magistrate, be punished with imprisonment for a term which may extend to one year, or with fine, or with both.
38. In the case of "M.P. Purushothaman Vs. Govt. of A.P. & Ors.", reported in (2004) 11 SCC 547 as has been relied upon by learned Senior Counsel for the petitioner, it is now well settled that normally a statutory directive to comply with a direction is ordinarily not construed to be a mandatory provision. If 22 any provision is mandatory, in certain circumstances strict compliance therewith is not insisted upon. In Crawford's Interpretation of Laws (Article 271, at p. 539), the law is stated thus:
"271. Miscellaneous implied exceptions from the requirements of mandatory statutes, in general.--Even where a statute is clearly mandatory or prohibitory, yet, in many instances, the courts will regard certain conduct beyond the prohibition of the statute through the use of various devices or principles. Most, if not all of these devices find their justification in considerations of justice. It is a well-known fact that often to enforce the law to its letter produces manifest injustice, for frequently equitable and humane considerations, and other considerations of a closely related nature, would seem to be of a sufficient calibre to excuse or justify a technical violation of the law."
39. Hence, I am of the considered view that in spite of the provision made in Section 20 of the Act, 1878 that if the finder of any treasure fails to give the notice required by Section 4 of the Act, 1878, such treasure shall vest in Government, there has to be an order passed by the Collector under Section 20 of the Act, 1878 with respect to vesting of the recovered idols in the State.
40. In the case of "Shyam Bahadur Koeri" (supra) as has been relied upon by learned counsel for the respondent-State also, there was an order for vesting the treasure in the Government. However, the respondent-State has failed to show any order passed under Section 20 of the Act, 1878 with respect to the vesting of the recovered idols in the State. Any decision having adverse civil consequence on a person, has to be taken after due compliance of the principles of natural justice.
41. Learned counsel for the respondent-State has tried to justify the impugned order by contending that after the proceeding 23 under Section 9, the Collector proceeded under Section 20 of the Act, 1878 and finally, vide impugned order dated 17.07.2014, directed to keep the recovered idols in the District Treasury, Giridih. However, the impugned order does not suggest the said fact. The respondent no. 2 in the impugned order, has rather observed that the proceeding was being closed considering the argument of the Government Pleader and the report of the Director, Directorate of Art, Culture, Sports and Youth Affairs, Jharkhand, Ranchi. In the case of "Mohinder Singh Gill & Anr. Vs. Chief Election Commissioner & Ors.", reported in (1978) 1 SCC 405, the Hon'ble Supreme Court has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Thus, the respondent-State cannot be allowed to supplement the reasons for closing the proceeding of Misc. Case No. 25 of 2000 which is not available in the impugned order.
42. The Collector, after filing of application by the respondent no. 3 being Misc. Case No. 25 of 2000, issued notification under Section 5 of the Act, 1878 and passed the order for keeping the statuettes in a sealed box and to deposit the same in the Government Treasury till the pendency of the proceeding before him. If the collector had exercised the power under Section 20 of the Act, 1878 and had confiscated the recovered idols, there was no question of proceeding further under the Act, 1878 and issuing notification under Section 5 so as to determine the respective claims of 'Shwetamber' and 'Digambar' Societies. 24 Moreover, it appears from the order dated 19.11.2001 passed in Misc. Case No. 25 of 2000 that as per the submission of the Government Pleader made before the respondent no. 2, the State had no claim of title on the recovered idols.
43. On perusal of the order dated 14.05.2004 passed in "Bharat Varshiya Digambar Jain Tirth Kshetriya Committee" (supra), it appears that the State had not claimed before learned Division Bench that the recovered idols had vested in the State pursuant to violation of the provisions of Section 4 of the Act, 1878. Had there been any such claim by the State Government and learned Division Bench had been of the view that the recovered idols got vested in the State Government consequent upon violation of the provisions of Section 4 of the Act, 1878, the Bench would not have directed the Collector to proceed in accordance with the Act, 1878 and to take appropriate decision.
44. Moreover, after passing of the order by learned Division Bench, though prosecution was started against Shwetamber Society for non-compliance of the provision of Section 4, the State did not start proceeding for confiscation of the recovered idols. Thus, the plea taken by the respondent-State that the recovered idols were confiscated for violation of Section 4 of the Act, 1878 has no leg to stand.
45. So far as the claim of Digamber Society with respect to the title over the recovered idols is concerned, since final order under Section 10 of the Act, 1878 has not yet been passed by the respondent no. 2, I do not wish to make any comment on the said claim at this stage. Since an order under Section 9 of the Act, 25 1878 has already been passed by the respondent no. 2, he is under statutory duty to pass an order under Section 10 of the Act, 1878.
46. In view of the aforesaid discussion, the order dated 17.07.2014 passed by the respondent no. 2 in Misc. Case No. 25 of 2000 is hereby quashed and set aside. The matter is remanded to the respondent no. 2 to reopen the proceeding of Misc. Case No. 25 of 2000 and to pass an order under Section 10 of the Act, 1878 expeditiously in accordance with law.
47. The writ petition is accordingly disposed of.
(Rajesh Shankar, J.) Manish/AFR