Andhra HC (Pre-Telangana)
V. Lingamma And Ors. vs Government Of Andhra Pradesh And Ors. on 28 January, 2004
Equivalent citations: AIR2004AP167, 2004(2)ALD119, 2004(3)ALT802
ORDER
A. Gopal Reddy, J.
1. The point that falls for adjudication in both the writ petitions is common and they are disposed of by this common order.
2. Petitioners claim that one Shaheen Aziz Ahmed was allotted a plot admeasuring Ac.2.30 gts. in Plot No. 10 of erstwhile Jubilee Hills Municipality and from whom the petitioners' father-Mr. V. Malla Reddy purchased the said property on 12-3-1358 Fasli corresponding to the year 1948 and since from the date of purchase he is in continuous possession. When several bogus claims were made with regard to allotments by the erstwhile Nizam Government in Jubilee Hills area, the 1st respondent instituted an enquiry into such claims of allotment and after elaborate enquiry the 1st respondent through his Memo No. 3933/02/64-17 dated 6-12-1967 held that 41 individuals who claim for assignment/allotment were held to be legal and valid, wherein the petitioners' father's vendor is at Sl.No. 15 over an extent of Ac.2.30 gts. in the annexure annexed to the said proceedings. It is stated that during the year 1979-80 the 1st and 2nd respondents published the Town Survey Records of Hyderabad City, wherein also the ownership and possession of V.Malla Reddy was recorded which was co-related to T.S.No. 4/ 2, Ward No. 10, Banjara Hills. The same was reflected in the Pahanies 1980-81, 1981-82 and 1982-83. On petitioners' father making application to the Joint Collector (3rd respondent) who conducted Panchanama on 29-6-1984 and issued Supplementary Sethwar on 1-5-1984 in his name. On issuance of Supplementary Sethwar, one Ali Asgar Seizer approached the Commissioner of Survey Settlements and Land Records by filing appeal under Section 158 of A.P. (Telangana Area) Land Revenue Act, 1317 Fasli claiming that he purchased the property from the daughter of the original allottee-Saheen Aziz Ahmed and the entries in the name of V.Malla Reddy and petitioners 1 to 8 may be deleted. The Commissioner by order in reference No. P5/2183/84 dated 15-11-1985 directed the Ali Asgar Seizer to approach the Civil Court and also observed that no order by any Revenue authority of and below the rank of the Commissioner, Survey, Settlements and Land Records shall be issued in respect of the property Plot No. 10, in Road No. 10, Banjara Hills, Shaikpet Village, Golconda Taluk, Hyderabad District which has become the subject-matter of a civil dispute. No order of the Revenue authority passed in respect of the same disputed civil matter shall be implemented pending disposal of the case by the Civil Court. The revenue authorities shall await the disposal of the suit by the civil Court and carry out the orders of the civil Court. Meanwhile O.S.No. 2467 of 1984 was filed by Viswa Saptagiri Housing Co-operative Housing Corporation on the file of V Assistant Judge, City Civil Court, Hyderabad against V.Malla Reddy and 8th petitioner and also against Ali Asgar Seizer claiming that they have purchased the property from him. The said suit was dismissed on 24-12-1987. Like wise, two more suits-O.S. Nos. 33 of 1988 and 1536 of 1996 filed by the said society were also dismissed by a common judgment dated 7-2-2001 by the I Senior Civil Judge, City Civil Court, Hyderabad in which it is categorically recorded the possession of the petitioners over the subject land. Against which the plaintiffs carried the matter in appeals before this Court and the same are pending. Meanwhile, pursuant to final decree granted in O.S.No. 538 of 1986 filed for partition by the 8th petitioner partition was taken place between the petitioners. In adverting to Section o of the Urban Land (Ceiling) Regulation Act, 1976 all the family members of V.Malla Reddy including the petitioners herein filed declarations. The Special Officer and Competent Authority issued proceedings dated 29-11-1995 declared that 5041 sq.mts. was in excess of ceiling limit. By issuing draft statement under Section 8(1) of the ULC Act the petitioners filed their objections. When the same was pending the Special Officer and Competent Authority issued a Memo to the petitioners on 23-4-1998 stating that the Collector has informed that action will be taken by him under A.P. Escheats and Bona Vacantia Act, 1974 (for short 'the Act') and after the matter is decided in the enquiry he will take further action in the matter. Challenging the proceedings of the Special Officer the petitioner filed W.P.No. 17339 of 1998 and the same was dismissed by this Court by order dated 12-8-1999 holding that failure of the petitioners in producing original title deeds before the concerned authorities appears to have led to initiation of proceedings under A.P. Escheats and Bona Vacantia Act, 1974 and the Special Officer and Competent Authority under the provisions of ULC Act is entitled to verify from the District Head of the Revenue as to the nature of the land in question and genuineness or otherwise of the claim of the declarants and the 2nd respondent is not precluded from making such an enquiry. In view of the same, petitioners are not entitled to any relief. Meanwhile, the petitioners entered into an agreement and also executed certain sale deeds in favour of the 9th petitioner and to safeguard the property they have constructed compound wall around the land. After completion of construction of compound wall the Respondents 3 and 4 started demolishing the compound wall. In view of the same, petitioners approached the District Collector (2nd respondent) and made a representation on 3-12-2003 and filed W.P. No. 25967 of 2003 for a mandamus to declare the action of the respondents in demolishing the compound wall as arbitrary and illegal and restrain them not to interfere with the property. When the said writ petition was taken up for admission on 16-12-2003, learned Government Pleader for Revenue made a submission that an order was passed by the District Collector on 5-12-2003 under the Act and the same was sent for publication though this Court granted status quo with regard to publication of notification. If not already published, but meanwhile, the same was published in the newspaper as contemplated under the Act. Therefore, the petitioners filed W.P.No. 26301 of 2003 challenging the action of the respondents in issuing proceedings No. 11/ 33920/1998 dated 5-12-2003 inter alia contending that no action can be initiated under the Act and the said Act has no application to the subject properly and the property can be declared as Escheat only if the owner of the property dies intestate and without leaving legal heir and can vest with the State where there is no rightful owner. It is also stated that no notice whatsoever was given to the petitioners before declaring the property as Escheat and no enquiry was conducted under Section 7 of the Act. Unless the enquiry as contemplated under Section 7 is conducted and property was taken possession as per the procedure prescribed under the Act, the order passed under Section 9 and published under Section 11 is arbitrary, illegal and contrary to the provisions of the Act. The entire action initiated by the 3rd respondent is contrary to the order passed by the Commissioner, Survey, Settlement and Land Records dated 15-11-1985 and the same is liable to set aside.
3. In answer to notice before admission, the 3rd respondent (Joint Collector) filed a counter stating that Sy.No. 129 measuring Ac.3288.01 gts. was shown as Government land, which is locally known as "Kancha Tatti Khana". Supplementary Sethwar was issued in 1331 Fasli (1922 A.D.) dividing Sy.Nos. 129 into Sy.Nos. 129/1 to 129/10 and Sy.No. 129/1 measuring Ac.3094.39 gts. was recorded as Government land whereas Sy.No. 129/2 to 129/10 measuring Ac. 193.03 gts. was shown as patta land. Another Supplementary Sethwar was issued in 1346 Fasli (1935 AD) deleting all the sub-divisions and Sy.No. 129/1 was renumbered as Sy.Nos. 403 and 404. During the Nizam regime to commemorate the Silver Jubilee Celebrations, Jubilee Hills Municipality was constituted by including the areas of Sarfekhas villages. In order to develop the Jubilee Hills Municipality into a planned city, plotted the land in Sy.No. 403 into 169 plots in 3 series and allotted the same to various Nobles and Nawabs. Plot No. 10 was allotted to one Shaheen Aziz Ahmed s/o Aziz Ahmed. The Jubilee Hills Municipality was abolished in 1358 Fasli (1949 AD) and the same was merged in the Municipal Corporation of Hyderabad. A revision survey was conducted from 1349 Fasli (1940 AD) and the same was completed in 1352 Fasli (1943 AD) and the same was not implemented in revenue records. The Town Survey was conducted from 1964 to 1971 under the provisions of A.P. Survey and Boundaries Act, 1923 by issuing notification under Section 6(1) of the said Act. After completion of Town Survey a final notification under Section 13 of the said Act was published in A.P. Gazette on 6-8-1977. As per the final notification, the Government is owner of the land. Any person aggrieved by the entries in the Town Survey Land Records can question the same only by way of a civil suit. In the absence of any suit questioning the recording of the land as Government land, the entries cannot be altered or amended. One Smt. Dhannu Bai w/o Ramaiah describing herself as GPA holder of owners made a representation on 29-12-1981 to the Special Deputy Collector requesting mutation of plot Nos. 10, 11, 12 and 13 in Sy.No. 403, Road No. 10, Banjara Hills stating that the present owners namely Ali Asgar Seizer and others purchased the said plots from the original allottees, namely Smt. Shaheen d/o Aziz Ahmed and others. Along with the said application she enclosed the land revenue receipts for the period 1965 to 1980. Mr. V.Malla Reddy also made a representation on 28-6-1982 to the 2nd respondent (District Collector) stating that he purchased the land in Sy.No. 403/35 (Plot No. 10, admeasuring Ac.2.30 gts.) and he is in possession of the same and requested to issue Supplementary Sethwar for enabling him to mutate in the revenue records by enclosing land revenue receipt dated 23-2-1981 said to have been issued for the period 1954 to 1981. He did not produce any title deeds to support his claim along with the representation. There was no mention about any of those documents except stating land measuring Ac.2.30 gts. bearing old Sy.No. 129 and present Sy.No. 403/ 35. Since there was no mention about Plot No. 10 of defunct Jubilee Hills Municipality in any of the documents produced by him, he was called upon to attend the local inspection to be conducted by Deputy Director, Survey and Land Records, Hyderabad and after full fledged inspection, the Deputy Director found that Plot No. 10 was not tallying with the original records and sketch furnished by V.Malla Reddy, Therefore, Supplementary Sethwar was rejected by letter dated 8-10-1982. Similarly the representation dated 29-12-1981 made by Smt. Dhannu Bai was also considered and found not genuine and her case was also rejected by order dated 13-12-1984. Suppressing earlier rejection order V.Malla Reddy and another made a representation for issuance of Supplementary Sethwar which was issued by the Joint Collector (3rd respondent) without verifying the records and he has no jurisdiction to issue such Supplementary Sethwar and correction of any entries in the revenue records basing upon the Supplementary Sethwar which is contrary to the provisions of Survey and Boundaries Act, 1923. Aggrieved by the same Smt. Dhannu Bai-GPA. of Ali Asgar Seizer filed appeal against VMalla Reddy and another before the Commissioner, Town Survey and Land Records, who by order dated 15-11-1985 passed an order, as stated above.
4. Refuting the allegations made in the counter the petitioners filed a reply stating that the authorities did not require any such production of title deeds and they were subsequently produced before the authorities and rejection of petitioner's request for issuance of Supplementary Sethwar by the Special Deputy Collector dated 8-10-1982 was never communicated to V. Malla Reddy or to the petitioners and on the contrary a Supplementary Sethwar was issued in favour of V. Malla Reddy on 1-5-1984 and the issuance of Supplementary Sethwar was ratified by the orders of the Commissioner of Survey, Settlements and Land Records dated 15-11-1985 while dismissing the appeal. The representation made by Smt. Dhannu Bai dated 29-12-1991, requesting for mutation, was not within the knowledge of the petitioners and when some claims are made before the Commissioner of Land Revenue the same was rejected directing to approach the civil Court. Similarly the averments made in the counter that plot No. 10 was not tallying with the field position was denied and the said contention that there is a dispute about the identity of the property has been rejected by this Court in W.P.No. 17339 of 1998, which has become final. The alleged report of the Scientific Officer dated 28-2-1997 was obtained behind back of the petitioner, therefore, it will not bind on the petitioners and without conducting any enquiry under Section 7 of the Act by issuing notice to the petitioner the property cannot be declared as escheat. When certain persons claiming through the legal representatives of Shaheen Aziz Ahmed i.e., Dhannu Bai and Ali Asgar seizer, the respondents are under obligation to conduct an enquiry and follow the procedure contemplated under Sections 8 and 9 of the Act and prayed for allowing the writ petition.
5. Learned Senior Counsel Sri E. Manohar appearing on behalf of the petitioners urged that when Commissioner, Survey, Settlements and Land Records by order dated 15-11-1985 directed that no Revenue authority below the rank of Commissioner, Survey, Settlements and Land Records shall issue any order and the order already been passed in respect of the property subject-matter of civil dispute shall be implemented until the Civil Court is decided and directed to await disposal of the suit, initiation of proceedings by the Joint Collector under the Act is arbitrary and illegal. Once Government accepted the recommendations of the Board of revenue through Memorandum dated 6-12-1967, permitting the Collector to get the lands demarcated and issue Supplementary Sethwar for necessary changes in the revenue records as per the annexure and consequently Supplementary Sethwar was issued as per the orders of the Joint Collector dated 1-5-1984 in favour of V. Malla Reddy and others, and the Commissioner, Survey, Settlements and Land Records in the appeal filed by one Ali Asgar Seizer for deletion of names of V. Malla Reddy and Petitioners 1 to 8 ordered await the result of the civil suit and directed not to pass any orders, the Supplementary Sethwar in favour of V.Malla Reddy and others in effect has been ratified. When Dhanubai and others made claims that they are the legal heirs of Shaheen Aziz Ahmed, without conducting any enquiry about any legal heirs succeeding to the property of the original owner-Shaheen Aziz, petitioners property cannot be declared as escheat or Bona Vacantia unilaterally that too without notice to the persons who are likely to be effected and placed reliance on G. Narsimha Reddy v. State of A.P., 1987 (2) ALT 46 (NRC). It is also urged by the learned Senior Counsel that in the enquiry if it is found that the property is Escheat or Bona Vacantia, the authorities have to initiate proceedings for recovery of possession under Section 8, admittedly when the petitioners are in possession of the same. But without following the said procedure straightaway passing an order under Section 9 and issuing notification under Section 11 of the Act is arbitrary and in violation of principles of natural justice.
6. The learned Government Pleader for Revenue while refuting the above contentions argued that question of enquiry under Section 7 does not arise in view of report of the MRO dated 4-11-2003, who reported that nobody is in possession of the property in question. When no person found to be in possession of the property the orders were passed, for handing over the property and notice got published. If the petitioners have any claim for the said property, they can prefer a claim as contemplated under Section 11 and the matter will be referred to the Civil Court for its decision as per Sub-section (3) (a) of Section 11. In view of the same, it is always open for the petitioners to make their claim pursuant to notification issued which was published on 14-12-2003 and 15-12-2003. The suits-O.S. Nos. 33 of 1988 and 409 of 2001 are collusive and the same will not bind on revenue officials, as they are not parties to the suit. When the petitioners approached this Court in W.P. No. 17339 of 1998 challenging the letter dated 15-4-1998 and Memo of the Special Officer and Competent Authority, Urban Land Celling dated 23-4-1998, the same was dismissed. Accordingly, enquiry is undertaken requesting the MRO to send a report and on his submission of report the above order was passed and notification was issued. Since the petitioner's rights are sufficiently safeguarded, it is always open for them to submit their claims under Section 11, which will be enquired into and will be referred to the Civil Court.
7. Before I proceed to answer the above rival contentions, an insight into definitions of "bona Vacantia" and "escheat", and the relevant statutory provisions have to be noticed.
Section 2(i) "bona vacantia" includes any property, situated in the State of which there is no rightful owner, but does not include an escheat on any movable property found in a public place;
(ii) x x x x x
(iii) xxxxx
(iv) "escheat" means any property the owner of which dies intestate and without leaving legal heir.
7. Inquiry relating to escheat or bona vacantia by local officer :--whenever the local officer receives information from any source that any property of the nature of an escheat or a bona vacantia is situated or lying within his jurisdiction, he shall cause an inquiry to be made in respect thereof.
8. Local Officer to institute a suit for recovery of possession of escheat or bona vacantia when the person in possession resists :--(1) Where, as a result of the inquiry under Section 7, the local officer is satisfied that the property of the nature of an escheat or bona vacantia is in the possession of a person who has no authority to claim it and if such person resists to surrender such possession on demand, the local officer may after obtaining the sanction of the competent authority, institute a suit in a Court for declaration of the Government's right to the property and for recovery of possession of such property.
(2) Where the Court has declared that the property is an escheat or a bona vacantia, the local officer shall obtain the possession thereof through the Court and manage it or dispose it of in such manner as may be prescribed.
9. Local officer to take into custody and to arrange for care and maintenance of property which is not in the possession of any person or its possession is surrendered :--Where the property of the nature of an escheat or a bona vacantia is not in possession of any person or where the person in possession surrenders such possession when demanded, the local officer shall take the property into his custody and arrange for its care and maintenance until the claim is settled under Section 11.
11. Procedure for declaring property to be escheat or bona vacantia :--(1) As soon as may be after the property is taken into his custody under Section 9, the local officer shall publish a notice in such manner as may be prescribed, calling upon the persons who may have any claim to such property to prefer their claims to such property in the prescribed form within three months form the date of publication of the notice.
(2) If any claim is preferred within the said period of three months, the local officer shall declare the property in respect of which the notice is published under Sub-section (1) to be an escheat or a bona vacantia, as the case may be, and dispose it of in such manner as may be prescribed.
(3) (a) If any person prefers a claim within the said period of three months, the local officer shall refer the claim to the Court for its decision as to whether or not the person making the claim, is entitled to the property: and the Court shall, after giving a notice to the local officer and to the claimant, decide the reference, as if it were a suit;
(b) Where the Court decides that the property taken into custody under Section 9 or any part thereof rightfully belongs to the claimant, the local officer shall deliver the same to him and where the Court decides that it does not belong to the claimant, the Court shall declare the property to be an escheat or a bona vacantia, as the case may be.
8. At common law abandoned personal property could not be the subject of escheat. It could only be appropriated by the Sovereign as Bona Vacantia. (See Holds Worth's History of English Law, 2nd Edition, Volume 7, Pages-495-496). The Sovereign has a prerogative right to appropriate bona vacantia and abandoned property can be appropriated by the Sovereign as bona vacantia. The term "bona vacantia" comprises properties of two different kinds, those which come in by escheat and those over which no one has a claim. In Halsbury's Laws of English, 3rd Edition, Volume 7, page-536 para-1152, it is stated that:
"The term bona vacantia is applied to things in which no one can claim a property and includes the residuary estate of persons dying intestate."
However, vesting of property in the State by the principles of Escheat is not new in India and under the Act of 1853 made by the British Parliament (An Act to provide for the Government of India (1853), Statutes 16 and 17, Victoria, C.95,S.27) it was specifically provided as under:
"All real and personal estate within the said territories escheating or lapsing for want of an heir or successor and all property within the said territories devolving, as bona vacantia for want of rightful owners, shall (as part of the revenues of India) belongs to the East India Company in trust of Her Majesty for the service of the Government of India."
9. The Supreme Court in Shoe Nand v. Deputy Director of Consolidation, Allahabad, 2000 AIR SCW 758, after noticing the above Act in para-10 of its judgment held as under:
"The above provisions thus dealt with two situations, namely, (i) where there was no heir or successor, and (ii) where there was even no owner of the property. The first of the two situations was described in terms of "Escheat or lapse" and the second in terms of "bona vacantia". This provision was retained in Section 54 of the Government of India Act, 1858. The Successor Act, namely the Government of India Act, 1915, provided in Section 20(3)(iii) that the revenues of India received for His Majesty would include all movable or immovable property in British India escheating or lapsing for want of an heir or successor and all property in British India devolving as bona vacantia for want of a rightful owners. Thus, the dichotomy between Escheat or lapse and bona vacantia was retained in this Act."
However, in Telangana Area there existed an Un-claimed Properly Act 1/1933 Fasli, which has been repealed by the present Act 35/1974 wherein "bona vacantia" and "escheat" are defined, as referred to above. The very definitions itself clearly dichotomized bona vacantia and escheat, whereas the property can be treated as bona vacantia where there is no rightful owner and whereas escheat means any owner of the property dies intestate without leaving legal heir.
10. The various orders, as narrated above, particularly Memorandum dated 6-12-1967 issued by the Government clearly discloses that recommendation of the Board, permitting the Collector to get the lands demarcated and issue Supplementary Sethwar by incorporating necessary changes in the revenue records in respect of 41 cases recommended by the Collector has been accepted. Sl.No. 15 pertains to plot No. 10 measuring Ac.2.30 gts., which was allotted to Shaheen Aziz Ahmed. In the enquiry conducted under the provisions of A.P. Survey and Boundaries Act, 1924 and published discloses ownership and possession of V.Malla Reddy in respect of said plot which according to them is correlated to T.S.No. 4/2, Ward No. 10, Banjara Hills and Pahanies for the years 1980-81; 81-82 and 82-83 also disclose that Joint Collector conducted an enquiry and directed to issue Supplementary Sethwar and accordingly Supplementary Sethwar was issued in favour of petitioners recording the land owned by them. When Ali Asgar Seizer approached the Commissioner by way of appeal against the issuance of Supplementary Sethwar, the Commissioner by his order directed the revenue officials to wait till the disposal of the suit pending in the Civil Court. When the petitioners filed a declaration under Section 6 of the ULC Act, the Special Officer and Competent Authority issued a Memo dated 23-4-1998 informing the action being taken by him under the Act and directed the petitioners to produce documents after the matter is decided in the enquiry. Questioning the said memo petitioners filed W.P.No. 17339 of 1998, but the same was contested by the District Collector stating copy of the sale deed found to be fictitious as per the report of the Forensic Science Laboratory. But the same was not accepted by this Court stating that on one hand it is stated that it is only a copy of the sale deed that is submitted and on the other hand, it is stated that there are chemical erasings therein as per the report of the Forensic Science Laboratory. It must be borne in mind that the original sale deed is not filed before the authorities. If there are over writings or erasing by chemicals in the original document, it is understandable and the authorities would be justified in contending that it is a concocted document, but this being a copy of the document, such a contention would be fallacious. This Court after taking note of the order passed by the Commissioner in appeal against the proceedings of the District Collector directing mutation of V.Malla Reddy and also the suit filed by Ali Asgar Seizer, namely O.S.No. 33 of 1988 on the file of I Additional Judge, City Civil Court, Hyderabad in respect of very same plot No. 10 which was ended in compromise and which has not been adverted by the officials of the respondents. Both the suit filed by Ali Asgar Seizer against V. Malla Reddy before the V Assistant Judge, City Civil Court were dismissed for default and restoration petition was also dismissed, which will have a bearing upon the title of the petitioners and failure of the petitioners in producing the original title deed before the concerned authorities appears to have led to initiation of proceedings under the Act. The Special Officer and Competent Authority under the provisions of Urban Land Ceiling Act is entitled to verify from the District Head of the Revenue as to the nature of the land in question and genuineness or otherwise of the claim of the declarants and the Special Officer and Competent Authority is not precluded from making such an enquiry and accordingly dismissed the writ petition. On dismissal of writ petition the MRO submitted a report dated 4-11-2003 and basing upon the same the Joint Collector issued the above proceedings. The MRO has not issued any notice to the petitioners about enquiry conducted by him and the same is one sided and appears to have been procured to declare the property as Escheat or Bona Vacantia.
11. Where as reading of Section 7 of the Act clearly discloses that whenever the local officer receives information from any source that any property of the nature of an escheat or a bona vacantia is situated or lying within his jurisdiction, he shall cause an inquiry to be made in respect thereof. When the report of MRO discloses that the property is not being claimed by the true legal heirs of the original allottee namely, Shaheen Aziz Ahmed and the persons who are claiming do not have any legal rights, the property could not be subject of escheat, but at the most it can be Bona Vacantia. To treat the property as Bona Vacantia it has to be established there is no rightful owner to claim the property. When the petitioners as well as Ali Asgar Seizer claiming title over the properties having purchased from Shaheen Aziz Ahmed and this Court observed that once Plot No. 10 which was admittedly belongs to Shaheen Aziz Ahmed cannot be said to have been unidentifiable, simply because petitioners failed to produce the original title deeds, the same cannot be claimed as Bona Vacantia without causing enquiry.
12. This Court in Narsimha Reddy's (supra) held that without conducting any enquiry as contemplated under Section 12 of the Act, the authorities cannot just come to a conclusion that particularly property is an Escheat or Bona Vacantia. In view of the same, on the unilateral report procured, the Joint Collector cannot treat the property in question as escheat or Bona Vacantia without causing an enquiry under Section 7 after due notice to the parties who put up their claims over the property or claiming to be the purchasers of the said property. If it is found that the property of the nature of an Escheat or Bona Vacantia is in the possession of a person who has no authority to claim over the property, the local officer after obtaining sanction of the competent authority institute a suit in a Court for declaration of the Government's right to the property for recovery of possession of such property and only after such declaration by the Court that the property is an escheat or bona vacantia, the local officer can obtain possession and issue notification. Section 9 contemplates where the property of the nature of an escheat or a Bona Vacantia is not in possession of any person or where the person in possession surrenders such possession when demanded, the local officer shall take the property into his custody and arrange for its care and maintenance until the claim is settled under Section 11, namely after taking possession of the property he can issue public notice in such manner as may be prescribed. The very nature of enquiry under Section 7 does contemplate issuance of notice to the parties who are likely to be affected by such declaration. In view of the same, it is obligatory on the part of the respondents to conduct an enquiry before passing the impugned order.
13. From the conspectus of discussion made and for the reasons stated aforesaid, the impugned order passed by the Joint Collector dated 5-12-2003, declaring the property in question as escheat or Bona Vacantia under Section 9 and its publication under Section 11 solely basing upon the report suffers from incurable legal infirmities and it is contrary to the provisions of the Act, cannot be sustainable and the same is accordingly set aside. However, it is always open for the authorities to conduct an enquiry as contemplated after issuing notice to the parties, who are likely to be affected by such declaration and only after such enquiry they can proceed further in the matter.
14. WP No. 26301 of 2003 is accordingly allowed. In view of allowing WP No. 26301 of 2003, no further orders are necessary in WP No. 25967 of 2003.