authority may be directed to pass a reasoned order, considering
the claim, right and interest of the petitioner; and the
respondents be restrained to give any further effect to the said
order and also from interfering with the petitioners claim, right,
title and interest in the concerned property.
2. This writ petition is concerned with the various provisions under
the West Bengal Escheats and Forfeitures Act, 2012 and the West
Bengal Escheats and Forfeitures of Immovable Property Rules
2017. The impugned order dated July 23, 2019 has been issued
under provision of Section-5 of the said Act of 2012 and Rule-4 of
the said Rules of 2017.
3. For benefit of the discussion the said provisions are quoted as
herein bellow:
(3) The Collector shall publish a general notice in accordance with the
provisions of section 6 and shall take possession and assume
management of the escheated immovable property in accordance with
the provisions of sub-sections (1), (2) and (3) of section 7."
4. The writ petitioner‟s claim and grounds made out for challenging
the said impugned order are inter alia that, the writ petitioner is a
joint venture company, of which the Government of India holds
18% of the issued, subscribed and paid up equity share capital.
The concerned property is situated at 14, Ishaque Road, Kolkata-
16 [erstwhile Kyd Street]. The writ petition is the lessee of the said
property, pursuant to execution of the lease deed by the owner
there of, in its favour on July 7,1964. The lease has been said to
be last extended on September 24, 2009 for a period of 9 years
with an option for further extensions at the instance of the
petitioner. So far as existence of the leasehold rights of the writ
petitioner as to the said property, there is no dispute in the
instant case. However, the petitioner has averted that after death
of the original lessor/owner of the property, the rents have
remained unpaid due to the reasons of dispute inter-se between
several persons, all of whom have claimed ownership as regards
the said property, but title of none having yet been established.
5. Amidst such circumstances on November 19, 2018, the
respondent No.2 /First Land Acquisition Collector, Kolkata, has
issued a notice under Section-4(3) of the said Act of 2012 read
with Rule-3 of the said Rules of 2017, informing there in and
thereby that the said respondent/competent authority has
reasons to believe that there is no legal owner of the property
concerned and accordingly the provisions of the Act of 2012
would apply to the said property. In the said notice, the said
respondent has expressed desire to cause an enquiry as to
whether on the present facts and circumstances, the said
property should attract operation of Section-3 of the Act of 2012,
with respect to the same, by vesting the said property to the State
Government.
6. Before proceeding any further Section-3 and 4(3) of the Act of
2012 and Rule-3 of the said Rules of 2017 are quoted bellow, for
benefit of discussion:-
"West Bengal Escheats and Forfeitures Act, 2012
Section 3 - Escheats: Notwithstanding anything contained in
other laws for the time being in force, where a person dies
intestate and without leaving legal heirs according to his
personal law or any corporation, trust, association or society or
the governing body of such corporation, trust, association or
society, by whatever name called, recognised by law to be
capable of owning property, whether in its own name or in the
name of any governing body or office bearer by whatever name
called or otherwise, the transfer to the State Government of the
property of such artificial person on its dissolution, winding up,
becoming defunct whether by operation of law, declaration or in
fact or has ceased to exist or is unable to hold the general
meeting and reconstitute its new executive committee
consecutively for last five years, the property of such person or
artificial person, as the case may, be shall automatically stand
transferred to the State Government, and the State Government
may cause possession or management or administration of such
property to be taken over by escheat or lapse, or as bona
vacantia for want of rightful owner, and on such transfer having
taken place automatically on such finding of fact as referred to in
clause (g) of section 2 by the Competent Authority, the State
Government shall become the owner of the property without any
further act or document being needed.
Section 4 - Enquiry and appeal--(1) It shall be duty of the
Collector of every district to send monthly reports to the
Competent Authority of the occurrence of deaths of persons or
the dissolution, winding up, becoming defunct in any manner
whatsoever as provided in clause (g) of section 2 of any artificial
person, having property within his district, whether such
property is partly or wholly within his district, and whether it
appears on a preliminary inquiry that the deceased person died
intestate without any legal heirs according to his personal law or
where there is no legally constituted successor entity in whom
the property of the artificial person has vested. Any person
whatsoever may send information to the Collector in this regard
or may send such information directly to the Competent
Authority. Whenever the Competent Authority on any report or
on receipt of any information from any source or on his own
motion is satisfied that the provisions of this Act applies to any
property lying within the State, he shall cause an inquiry to be
made as to whether the fact or facts as stated in clause (g) of
section 2 as would attract the operation of section 3 of this Act
exists or exist and on his being satisfied on such inquiry that such
a fact exists he shall pass an order accordingly, recording that
such fact exists, on which order recording the existence of such
fact the property shall belong and be transferred automatically
to the State Government without any further act or document
being required.
(2) The inquiry held under sub-section (1) shall be of summary
nature and for the purpose of such inquiry the Competent
Authority may summon and examine on oath any person and
may compel production of any document or thing. He shall have
all the powers of a civil court but shall not be bound by the
provisions of the Code of Civil Procedure (5 of 1908) and shall be
entitled to regulate the proceedings before him in accordance
with the provisions of natural justice.
(3) For the purpose of such inquiry, the Competent Authority
shall cause to be published in the Official Gazette or in any three
newspapers having wide circulation in the locality where the
property is situated, a notice informing the public in general of
such report or information having been received, and that an
inquiry is proposed to be held on the expiry of not less than
seven days from the date of publication of such notice, and the
time and place of such hearing and the particulars of the
property concerned. The newspapers shall be so chosen as to
ensure that they are in English, Bengali and Hindi or Urdu
respectively.
(4) Any claimant or person, intending to appear in such inquiry
with an intention to oppose escheat or lapse and automatic
transfer of title to the State Government, may appear on the
date of such inquiry, at the time and venue fixed, with a written
representation containing the particulars of his claim and the
right which he claims in the property including the reasons for his
opposing the escheat or lapse, as the case may be, and shall
enclose with such representation copies of all documents that he
relies upon and shall also produce before the Competent
Authority the originals of such documents. If the copy of any
document is not enclosed then the claimant or person shall not
be entitled to rely upon it. The Competent Authority shall
thereafter pass an order recording his satisfaction that such fact
as mentioned in clause (g) of section 2 sufficient to attract the
provisions of section 3 exists or does not exist.
Explanation.- Whatever interest is sufficient to maintain an
application for letters of administration to the estate of a
deceased or obtain winding up or dissolution of a body corporate
including a corporation or a company, or receive share of sale of
assets of any artificial person recognized to be capable of
owning property on its dissolution, sale or becoming defunct,
shall be held to be an interest sufficient to maintain an objection
or representation against such escheat or lapse in the
preliminary inquiry.
(5) The gist of every order passed on such inquiry shall be
published in the Official Gazette or in three newspapers, one in
English, one in Bengali and one in Hindi or Urdu preferably
within a week from the passing of the order.
(6) The decision of the Competent Authority shall be subject to an
appeal before the Appellate Authority which shall be made
within a period of 30 days from the date of publication of the gist
of the order in the manner mentioned in sub-section (5) provided
that the Appellate Authority may allow, for sufficient cause
being shown, an appeal to be preferred within a further period
of thirty days but not thereafter. The appeal does not have to be
in any particular form, but shall contain a concise statement of
the grounds on which the appeal is being preferred and all the
facts of the case and shall enclose with it the representation
made by the appellant before the Appellate Authority with all its
enclosures. If a person has not made any representation before
the Competent Authority but shows that he has the interest
mentioned in the Explanation to sub-section (4), then such
appeal shall be maintainable provided that such person explains
in a separate application what prevented him from approaching
the Competent Authority with such representation, and on the
satisfaction in writing recorded by the Appellate Authority as to
the cause for such prevention being sufficient.
(7) The decision of the Appellate Authority shall be final and shall
not be interfered with except by the High Court of Calcutta
exercising jurisdiction under Article 226 or 227 of the
Constitution of India or the Supreme Court under Article 136 of
the Constitution of India. No suit or other proceeding apart from
the aforesaid shall lie against any determination by the
Competent Authority or the Appellate Authority.
West Bengal Escheats and Forfeitures of Immovable Property
Rules 2017
Rule 3: Inquiry by Competent authority - (1) When the
Competent authority, on receipt of any information or on his
own motion, is satisfied that the provisions of this Act are
applicable to any property lying within the State, such
Competent authority shall cause an inquiry in terms of section 4
so as to ascertain the fact whether the operation of section 3,
read with clause (g) of section 2, exists.
(2) For the purpose of the inquiry, the Competent authority shall
publish a notice informing the public regarding the cause of
inquiry, the time and place of hearing and the particulars of the
property.
(3) The notice may be published in the Kolkata Gazette and in
three newspapers in English, Bengali and Hindi or Urdu, as the
case may be, One copy of the Gazette shall be affixed on a
conspicuous part of the property and copies of the gazette shall
be served on the local police station and the office of the
Collector of the district for information of the public.
(4) The Competent authority shall hold the inquiry after seven
days of the publication of the notice under sub-rule (3).
(5) The Competent authority may summon and examine any
person and may compel the production of any document by any
person.
(6) The Competent authority shall, after recording examination
of persons and documents and on satisfaction of the fact that
the operation of section 3, read with clause (g) of section 2, pass
an order in writing.
(7) The gist of every order passed on such inquiry shall be
published in the Kolkata Gazette and in three newspapers, one in
English, one in Bengali and one in Hindi or Urdu, as the case may
be, preferably within a week from the passing of the order under
sub-rules (6). One copy of the Gazette shall be affixed on a
conspicuous part of the information of the public."
7. The petitioner attended hearing before the concerned respondent
and has made its stand clear vide its letter dated December 19,
2018 that it has occupied over the said property as the lessee
thereof for last 54 years and odd and that the company has
established its registered office at the said property. December 10
and 19, 2018 are the dates on which the petitioner/authorised
officer took part in hearing before the respondent authority.
8. The petitioner‟s grievance is that in spite of explaining its stand
by virtue of its letter dated December 19, 2018, before the
respondent authority, the authority concerned has neither
conducted a proper enquiry as to the claim of the petitioner, nor
passed any order in connection thereof under provisions of
Section-4(1) of the said Act; that the petitioner‟s contention has
never been considered by the respondent authority; that, neither
the gist of any order passed in any enquiry whatsoever has been
published in the official gazzette nor in any three newspapers,
including one each in English, Bengali, and Urdu as per
provisions under Section-4(5) of the said Act. The petitioner is
aggrieved that due to all the inactions and statutory violations on
the part of the respondent authority, it has been deprived of its
statutory right for preferring an appeal against the order of the
said competent authority/respondent.
9. According to the writ petitioner, for the reasons as above, the
impugned order dated July 23, 2019 suffers from gross
irrationality, arbitrariness and illegality.
10. Mr. Sagar Bandopadhyay, on behalf of the petitioner has
submitted that, the petitioner is the lawful occupier of the said
property, by virtue of the leasehold right possessed by it over
there. Hence, the said rightful occupier of the property cannot be
ousted from there, without following the due process of law. He
says that the settled position of law is that the State cannot
interfere with the right of others unless they can point to some
specific provision of law, which authorizes their such act. In
support of his contentions, Mr. Bandopadhyay has relied on the
following two judgments:- (i) State of Uttar Pradesh and Ors.
Vs. Maharaja Dharmander Prasad Singh & Ors. reported at
(1989) 2 SCC 505, (ii) State of West Bengal & Ors. Vs.
Vishnunarayan & Associates (P) Ltd. and Anr. reported at
(2002) 4 SCC 134. Mr. Bandopadhyay says that the Act of 2012
has itself safeguarded the leaseholder‟s rights by providing an
enabling provision in Section 7(6) thereof, authorizing the
Collector to realize rents of the property.
11. The State respondent has raised strong objections as to the
contentions and prayer of the writ petitioner. According to the
said respondent, by applying provisions under the statute as
mentioned above, the property situated within the State which
have no legal owner, should vest with the State Government. It
has specifically relied on the fact that admittedly the writ
petitioner is not the owner of the property and also that there is
no existing owner of the said property now alive. In such
circumstances, the property lawfully is to be vested with the State
Government, by operation of the law as discussed. It has further
portrayed its defense that no procedural latches have ever
occurred in the process of taking over and assuming
administration and management of the property in question.
According to the said respondent, the present writ petitioner is
only an outsider/trespasser and unauthorised person who is
occupying the said property, without any ownership rights.
12. The State has been represented by learned Advocate General Mr.
Kishore Dutta, in this case. Mr. Dutta has placed strong reliance
as to the provisions of the Act of 2012, Sections 3, 4 and 7 thereof
in particular. Learned Advocate General has submitted that the
concerned property is within the meaning of "escheated property",
as enumerated under Section 2(h) of the said Act. With reference
to Section 3 of the said Act the concerned property is to be taken
over by escheat or as bona vacantia as the last owner of the
property has died intestate and without leaving legal heirs
according to her personal law. He says that the said Act has
provided for due procedure in terms of Sections 4, 5, 6, 7 thereof,
which the respondent has followed in proper manner. That
therefore, in terms of Section 7(2) the writ petitioner is duty-
bound to forthwith deliver the physical possession of the property
to the Collector or any other authorized person.
13. There is no dispute in this case with regard to the fact, that the
writ petitioner possesses leasehold rights as to the concerned
property, the owner/lessor of which has died intestate. Many a
person claim ownership of the property and rent from the
petitioner. Hence, it would not be proper to say that the owner of
the property has died intestate without any legal heirs according
to his/her personal law. It is only that the right and extent thereof
of the individual claimants for ownership of the property, is yet to
be determined in accordance with the law. Such a property
cannot be termed as bona vacantia for want of a rightful owner,
as enumerated in the said Act of 2012.
14. There is however, no material available as of now, that any person
has taken recourse under the law for declaration of himself to be
the owner of the said property as the successor of the deceased
owner thereof. The Act of 2012 is a procedural and substantive
law for vesting properties with the State in the absence of legal
heirs of the owner who has died intestate, not a law that governs
leasehold or other contractual interests. The Act's scope is limited
only to the properties that are bona vacantia, and it does not
extend to properties held under lease or acquired through
statutory processes like land acquisition or leasehold interests. In
cases involving leasehold interests, statutes like the West Bengal
Premises Tenancy Act, 1956, and the Transfer of Property Act,
1882, set out detailed rules about lease creation, termination, and
rights of tenants and landlords. These laws govern the validity,
duration, and termination of leases, and do not suggest that
leasehold interests automatically escheat or vest in the State
upon expiry or non-fulfillment of certain conditions.
15. The primary focus of the West Bengal Escheats and Forfeitures
Act, 2012, is on properties that vest in the State due to intestacy
and lack of heirs. The Act applies only to a property bona vacantia
vesting in the State qua ultima heres [the last heir] under Article
296 of the Constitution. Since no one has claimed ownership of
the said property as yet in a way as provided under the law, the
respondent‟s contention stands that after death of the last owner
intestate, there is no legal heir of her, to claim the ownership of
the said property. The Court finds no reason therefore, as to why
the provisions of the Act of 2012 and the Rules of 2017, should
not be made applicable in respect of the concerned property.
16. Let the impugned order dated July 23, 2019 be quoted as bellow:
"NOTICE
[Under section 5 of the West Bengal Escheats and Forfeitures
Act, 2012 read with rule 4 of the West Bengal Escheats and
Forfeitures of Immovable Property Rules, 2017]
Whereas the First Land Acquisition Collector, Kolkata as
"Competent Authority" declared the property No.14, Kyd
Street, Kolkata - 700 016, as Escheated Property, following
due procedures as laid down in relevant section(s) of the West
Bengal Escheats and Forfeitures Act, 2012 and rules of the
West Bengal Escheats and Forfeitures of Immovable Property
Rules, 2017;
And whereas, the Collector of Stamp Revenue, Kolkata, has
been duly authorized to take steps to take over possession,
management or administration of the escheated property;
Now the undersigned proposes to take over possession of the
property and assume administration or management thereof.
Whosoever is in possession of any portion of the said property
is directed to vacate his or her respective occupied portion
and deliver the physical possession of the same to the
Collector forthwith."
17. Having considered the order dated July 23, 2019 impugned in
this writ petition, it is found that the same is not speaking about
how the objection submitted by the petitioner dated December 19,
2018 has been considered or treated by the said respondent. In
this regard it is pertinent to remind the provisions under Section-
4(4) of the said Act and Rule-3(5) and (6) of the said Rules of
2017, which enumerate about due observance of the rules of
natural justice, by providing adequate and reasonable
opportunity of hearing to the objector. Hearing the objector in a
manner as provided under the law necessarily means a
meaningful hearing resulting into a reasoned order by the
competent authority deciding his claim, either in affirmative or
negative. The respondent‟s action clearly falls short of due
exercise of prudence so far as compliance with the binding
provision of law as above, is concerned.
18. The Court further notices that usage of the words "Any claimant
or person" as appearing in Section-4(4) of the said Act, and "The
Collector shall have an authority to realize rents, profit and
income of the escheated property, if any" occurring in Section 7(6)
of the Act, do enable and authorize the writ petitioner as the
lessee of the said property, to put forth its objection for due
consideration by the competent authority under the said Act.
Further that by imposing provisions under the said Act of 2012,
the respondent could not have dispossessed a lessee by way of
issuing an administrative order, who is the rightful occupier of
the property by dint of the lease agreement, as there is no scope
under the said Act, to do so. The Supreme Court in the judgment
of Maharaja Dharmendra Prasad Singh (supra) has
categorically held:
"30. A lessor, with the best of title, has no right to resume possession
extra-judicially by use of force, from a lessee, even after the expiry or
earlier termination of the lease by forfeiture or otherwise. The use of the
expression "re-entry" in the lease deed does not authorise extra-judicial
methods to resume possession. Under law, the possession of a lessee,
even after the expiry or its earlier termination is juridical possession and
forcible dispossession is prohibited; a lessee cannot be dispossessed
otherwise than in due course of law. In the present case, the fact that
the lessor is the State does not place it in any higher or better position.
On the contrary, it is under an additional inhibition stemming from the
requirement that all actions of Government and governmental
authorities should have a "legal pedigree". In Bishan Das v. State of
Punjab [AIR 1961 SC 1570 : (1962) 2 SCR 69] this Court said: (SCR pp. 79-
80)
"We must, therefore, repel the argument based on the
contention that the petitioners were trespassers and could be removed
by an executive order. The argument is not only specious but highly
dangerous by reason of its implications and impact on law and order ...
Before we part with this case, we feel it our duty to say that
the executive action taken in this case by the State and its officers is
destructive of the basic principle of the rule of law."
31. Therefore, there is no question in the present case of the Government
thinking of appropriating to itself an extra-judicial right of re-entry.
Possession can be resumed by Government only in a manner known to or
recognised by law. It cannot resume possession otherwise than in
accordance with law. Government is, accordingly, prohibited from taking
possession otherwise than in due course of law."
19. The Supreme Court in the case of Vishnunarayan & Associates
(supra) has held that possession can be resumed by the State
Government only in a manner known to or recognized by law and
it cannot resume possession otherwise than in due course of law.
20. It is not a property bona vacancia. The Court is constrained to
find that the purpose for which a provision of conducting „enquiry‟
has been introduced in the Act of 2012, has been ignored
altogether, by the respondent authority. The property must
actually be vacant when there is no apparent owner thereof or
else the occupier if any, even if an unauthorized one, has to be
removed only by following the due procedure under law.
21. By following the ratio of the judgments as referred to by
Mr.Bandopadhyay learned advocate in this case, it is found that
delivery of possession of the escheated property, as enumerated
under section 7(2) of the said Act, should also abide by the
principles settled therein, that possession of the escheated
property can change hands only through a manner recognized by
the law and only by following the due course of law. An
administrative order passed by the State authority would not
suffice for the said purpose and any endeavor to do the same
shall not only be rendered as arbitrary but also as an illegal
action dehors the provisions of the law. Furthermore, this is a
leasehold property. Validity, duration and termination of the lease
is not the subject matter within the purview of the said Act of
2012.
22. On the basis of the entire discussion as made above this Court is
of considered opinion that the impugned order dated July 23,
2019 cannot sustain being arbitrary and illegal. The same is due
to erroneous exercise of power and authority by the said
respondent, not vested in it by law. That the same is liable to be
set aside.
23. Hence, this writ petition is allowed with the following directions:
(i) that the impugned order of the
Collector, Stamp Revenue, Kolkata dated July 23,
2019, is set aside;
(ii) let the writ petitioner file a
comprehensive written representation before the
Collector, Stamp Revenue, Kolkata enclosing all
requisite documents, if any. The said respondent
is directed to consider the said comprehensive
written representation of the writ petitioner along
with the application filed by the petitioner dated
December 19, 2018, afresh after affording
it/authorized representative adequate and
reasonable opportunity of hearing and production
of documents as necessary;
(iii) the said application of the writ
petitioner shall be disposed of by the said
respondent by dint of a reasoned order passed in
accordance with law;
(iv) the entire exercise as above should be
concluded by the respondent/ Collector, Stamp
Revenue, Kolkata, within a period of four weeks
from the date of receipt of a comprehensive
written representation filed by the present writ
petitioner.
24. The writ petition No. WPO 463 of 2019 is allowed and disposed
of.
25. Urgent certified copy of this judgment if applied for, be supplied
to the parties upon compliance with all requisite formalities.
(Rai Chattopadhyay, J.)
