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Judgment
P.K. Misra, J.—In this writ petition an interesting question relating to interpretation of the Indian Treasure Trove Act,1878 as amended in
the State of Tamil Nadu under Act 8 of 1964 has been raised.
Undisputedly the present petitioner is the owner of the land from which three bars of gold had been found by the labourers while they were
demolishing the existing structure and digging the land for construction of new house for the petitioner on 20.10.1987. On 26.10.1987, the present
petitioner filed an application before the respondent intimating about such discovery of gold bars and deposited the same before him. Subsequently
the Collector issued notice u/s 5 of the Indian Treasure Trove Act (hereinafter referred to as Act) to the persons claiming treasure to appear
personally. Pursuant to the aforesaid notice, the present petitioner filed further application claiming that the gold bars which had been admittedly
found from his land should be handed over to him. No other claim was filed by any other person. At this stage, the Collector intimated the
petitioner under the impugned letter to file a suit for the purpose of establishing his right over the treasure which had been found. It is obvious that
the respondent purported to act u/s 8 of the Act.
The petitioner has filed the writ petition with the following prayers :
(a) direct the respondent to ascertain the weight and market value of three gold bars, comprised in the treasure, which is the subject matter of the
above writ petition, do in the presence of the petitioner;
(b) to pass an order of temporary injunction restraining the respondent, his servants and agents from taking any further proceedings or steps for
disposing of or dealing with the three gold bars, comprised in the treasure which is the subject matter of the above writ petition.
A counter affidavit has been filed by the respondent denying the right of the petitioner to get the treasure.
A perusal of the writ petition and the counter affidavit makes it clear that there is no dispute regarding the fact that the disputed land is owned by
the present petitioner and the treasure had been found from the said land by one of the labourers. In Course of hearing of the writ petition, learned
counsel for the petitioner submitted that the respondent has no justification to call upon the petitioner to file a suit and as the treasure in question has
not been claimed by any other persons and the petitioner is the only claimant, the treasure has to be handed over to him.
At this stage it is necessary to notice the relevant provisions contained in the Act. Section 3 of the Act contains interpretation clause. It provides
Treasure"" means anything of any value hidden in the soil, or in anything affixed thereto.
Interpretation clause further defines ''owner'' as follows :-
When any person is entitled, under any reservation in an instrument of transfer of any land or thing affixed thereto, to treasure in such land or thing,
he shall, for the purposes of this Act, be deemed to be the owner of such land or thing.
This only expands the meaning of the expression ''owner'', but there cannot be any doubt that the owner obviously means the owner of the land.
Section 4 of the Act as amended under the Tamil Nadu Act 39 of 1949 is extracted hereunder:-
Notice by finder of treasure. - Whenever any treasure exceeding in amount or value ten rupees is found, the finder shall, as soon as practicable,
give to the Collector notice in writing -
(a) of the nature and amount or approximate value of such treasure;
(b) of the place in which it was found;
(c) of the date of finding; and either deposit the treasure in the nearest Government treasury, or give the Collector such security as the Collector
thinks fit, to produce the treasure at such time and place as he may from time to time require.
(2) The owner of the place in which the treasure is found, if he is not the finder, and the occupier of such place, if he is neither the finder nor the
owner, shall also give notice in writing to the Collector specifying the particulars referred to in clauses (a), (b) and (c) of sub-section (1), before the
expiry of two months from the date on which the owner of the occupier, as the case may be, becomes aware of the finding of the treasure.
A perusal of the aforesaid provisions makes it clear that duty has been cast on the following persons to give notice as contemplated u/s 4 of the
Act. (1) Finder of the treasure (2) Owner of the place in which treasure was found if he is not the finder and (3) Occupier of such place neither he
is the finder nor the owner. In the present case it is obvious that the petitioner being the owner of the place had given the necessary notice.
Steps to be taken by the respondent after receipt of the notice u/s 4 is prescribed in Section 5 of the Act, which is extracted hereunder :-
Notification requiring claimants to appear. - On receiving a notice u/s 4, the Collector shall, after making such enquiry (if any) as he thinks fit,
take the following steps (namely):-
(a) he shall publish a notification in such manner as the State Government from time to time prescribes in this behalf, to the effect that, on a certain
date certain treasure was found in a certain place; and requiring all persons claiming the treasure, or any part thereof, to appear personally or by
agent before the Collector on a day at a place therein mentioned, such day not being earlier than four months, or later than six months, after the
date of the publication of such notification;
(b) when the place in which the treasure appears to the Collector to have been found was at the date of the finding in the possession of some
person other than the finder, the Collector shall also service on such person a special notice in writing to the same effect.
A perusal of the aforesaid provision makes it clear that the Collector is required to publish a notification, in such notification it is required to
indicate when the treasure was found, place and date when it was found. Notice is to call upon the persons claiming the treasure or in part thereto
to appear before the Collector either personally or through the agent on the date fixed. Section 5(b) makes it clear that if the treasure was found at
a place under possession of somebody other than the finder, the Collector is required to give a special notice in writing on such person, that is to
say, the person in possession of the land.
Section 6 contains the provision relating to forfeiture of right on failure to appear. Section 7 is extracted hereunder:-
Matters to be enquired into and determined by the Collector. - On the day notified u/s 5, the Collector shall cause the treasure to be produced
before him, and shall enquire as to and determine -
(a) the person by whom, the place in which, and the circumstances under which, such treasure was found; and
(b) as far as is possible, the person, by whom, and the circumstances under which, such treasure was hidden.
The aforesaid provision makes it clear that the Collector is required to determine the following things :-
The person by whom the treasure was found, the place in which the treasure was found and the circumstances under which the treasure was found.
He is also required to found as far as possible the person by whom and the circumstances under which such treasure was hidden.
Section 8 is extracted hereunder :-
Time to be allowed for suit by person claiming the treasure. - If, upon an enquiry made u/s 7, the Collector sees reason to believe that the
treasure was hidden within one hundred years before the date of the finding, by a person appearing as required by the said notification and claiming
such treasure or by some other person under whom such person claims, the Collector shall make an order adjourning the hearing of the case for
such period as he deems sufficient, to allow of a suit being instituted in the Civil Court by the Claimant,. To establish his right.
A perusal of the aforesaid section makes it clear that if the Collector sees reason to believe that the treasure was hidden within 100 years by
the claimant or the person through whom the claimant is claiming, he shall make an order adjourning the hearing of the case to allow the claimant to
file a suit to establish his right. It is obvious that a suit is required to be filed by a person who claims that he or his predecessor-in-interest had
hidden the treasure within 100 years before the date of finding. In such event, time is to be fixed by the Collector for filing such a suit.
Section 9 which contains the power of the Collector to declare the treasure as ownerless, is extracted hereunder:
When treasure may be declared ownerless. - If upon such enquiry the Collector sees no reason to believe that the treasure was so hidden; or
if, where a period is fixed u/s 8, no suit is instituted as aforesaid within such period to the knowledge of the Collector; or if such suit is instituted
within such period, and the plaintiff''s claim is finally rejected; the Collector may declare the treasure to be ownerless.
Appeal against such declaration.
Any person aggrieved by a declaration made under this section may appeal against the same within two months from the date thereof to the Chief
Controlling Revenue-authority.
First portion of the provision makes it clear that the Collector may declare the treasure to be ownerless under the following circumstances;-
If upon the enquiry held under Sections 7 & 8, the Collector sees no reason to believe that the treasure was so hidden, in other words, if the
Collector does not come to a conclusion that the treasure was hidden by the claimant within a period of 100 years, he may be declared such
treasure to be ownerless. Secondly if the Collector has fixed a time for filing a suit u/s 8 of the Act and no such suit is instituted within that period,
the Collector may declare the treasure to be ownerless and thirdly if such a suit is filed and it is rejected, the Collector may declare the treasure to
be ownerless.
Later portion of Section 9 provides for filing of appeal to the Chief Controlling Revenue-authority.
Sections 10 to 15 contain provisions relating to steps to be taken by the Collector after declaration under Sec. 9 has been made. Section 10
makes it clear that where a declaration has been made u/s 9 declaring the treasure to be ownerless, the treasure is to be delivered to the finder of
the treasure or the finder and the owner of the place in the manner hereinafter provided.
The manner of division is contained in Sections 11 to 15. If there is no claim other than the finder, the treasure is to be handed over to the finder as
laid down in Section 11. Where the owner of the place has filed a claim and such claim is not disputed by the finder, the treasure is to be divided in
accordance with any agreement between the finder and the owner. However, if there is no such agreement, 3/4th of the treasure is to be given to
the finder and the residue to such owner. If there is any dispute relating to ownership of the place, that dispute is to be resolved by a Civil Court in
accordance with Sections 13 and 14 of the Act. Section 15 thereafter comes into play and the Collector is required to divide the treasure between
the successful party and the finder subsequent to Section 12. Section 15 makes it further clear that if no such suit by the alleged owner of the land
is filed or such suit is dismissed, the Collector is required to deliver the treasure to the finder.
In the present case, it appears that without proceeding in the matter as contemplated under the Act, the Collector has simply called on the
petitioner to file a suit to establish his right. In view of the scheme of the Act and the provisions analysed above, the Collector was first required to
find out as to whether the petitioner who was admittedly the owner of the land, was also the finder. If it is found that the petitioner was finder as
well as the owner, since there was no other claim, the question of directing the petitioner to file a suit did not arise. Even assuming that the
petitioner was merely the owner of the land and finder was somebody else the question of calling upon him to file a suit did not arise. A suit is
required to be filed only when a person claims and prima facie shows that he had hidden the treasure within 100 years before the date of which the
treasure was found by a person claiming such treasure and if it is not so shown there will be no occasion to give any direction to file any suit and in
any event the property is to be given to the finder and the owner of the place in accordance with the provisions contained in Section 12 of the Act.
The question may arise if the finder does not file any claim pursuant to notice u/s 5, whether such right would be forfeited. A reading of Section
4 makes it clear that notice as required u/s 4 is required to be given by the finder, by the owner, by the occupier if he is not the owner or the finder.
If the finder himself gives the notice, the claim is to be filed by any person claiming right to such treasure including the owner of the place. After
issuing notice u/s 5, u/s 7 the Collector is required to determine the person by whom such treasure was found.
Forfeiture clause as contained in Section 7 appears to be not applicable to the finder. In other words, even if the finder specifically does not claim
any right, he may get the share in the treasure by virtue of Sections 12 and 15 of the Act. If the Collector comes to a prima facie conclusion that if
the place was in possession of others other than the finder, he is required to serve on such person a special notice in writing. A person may have
right to such treasure as owner of the place in which it was found or as deemed owner as explained in Section 3 of the Act or even as a person
who gave the treasure.
Scheme of the Act makes it clear that if the finder also does not make a claim, his right is not forfeited, because the provisions contained in
Sections 12 and 15 makes it clear that in any event the treasure is to be given to the finder and to the owner of the place in the proportion
indicated. The Act does not recognise the right of the owner of the property to claim treasure to the exclusion of the finder, whereas under certain
circumstances the finder has right to kept the treasure absolutely even to the exclusion of the owner of the property.
Judged against the foregoing analysis, it appears that in the present case the Collector has erroneously called upon the petitioner to file a suit
without considering the relevant aspects. Since no person has filed any claim claiming that he kept the treasure in the disputed land within 100
years, the occasion of calling upon the petitioner, who is admittedly the owner of the property to file a case did not arise at that stage. It is of
course true that if there would have been rival claims to the ownership of the property as contemplated under Section, a suit is required to be filed
by such rival claimants and not otherwise.
In view of the aforesaid conclusions, the next question relates to the relief to be granted. In the present case, the prayer portion which is
extracted seems to be ambiguous. The petitioner has prayed for a direction directing the respondent to weigh the gold bars and keep it in safe
custody and directing the respondent not to take further steps in the matter. The prayer, to say the least, appears to be inartistically drafted.
However, such defect in the prayer should not stand in passing an appropriate order in the interest of justice.
The Collector is now required to find out whether the petitioner is the finder of the treasure and if this is found, the entire treasure should be
handed over to the petitioner subject to, of course, the provisions contained in Section 16 which empowers the Government to retain the treasure
on payment of the value as indicated therein. If on the other hand the Collector comes to a conclusion that the petitioner is merely owner of the
land (which is not at all disputed) and somebody else is the finder, the treasure is required to be divided in accordance with the provisions
contained in Sections 12,14 and 15 of the Act. Such exercise may be completed within a period of six months from the date of communication of
the order. It is made clear that since no other claim had been filed, it is not necessary for the Collector to call upon the petitioner to file a suit. The
Collector is required to declare the treasure as ownerless as required u/s 9 and thereafter to proceed in the matter in accordance with the
provisions contained in Section 10 and other Sections of the Treasure-Trove Act, 1878.
Subject to the above observations, the writ petition is disposed of without costs.