Bishan Narain, J.
1. Iqbal Singh has filed this petition under Article 226 of the Constitution for an order of pertiorari to get the order of the Collector, Hoshiarpur, dated 29-7-1955, quashed.
2. The facts leading to this petition are these: Mine cups of gold weighing about 192 tolas of the Value of about Rs. 15,000/- were lying buried and were recovered on or about 25-6-1954 while the link road was being levelled. The police took possession of these cups on 29-6-1954, The Deputy Commissioner, Hoshiarpur, by letter dated 3-7-1954 directed the Resident Magistrate, Una, to hand over these cups to the Manager, Court of Wards, Una Estate, for deposit into the treasury as they were recovered from the land of the Una Estate and must be considered to be the property of the Court of Wards.
It may be stated here that the property of Bedi Devindar Singh vests in the Court of Wards under Section 13, Court of Wards Act and his son Bedi Madhusudan Singh is the Manager of this Estate. The powers of the Court of Wards are being exercised by the Deputy Commissioner, Hoshiarpur. The Manager, Court of Wards, who is the son of the Ward, received these cups on 6-7-1954 in accordance with the Collector's orders and they were duly deposited in the treasury.
On 13-11-1954 a notification under Section 5, Indian Treasure-trove Act, 1878, was Issued, stating Iqbal Singh to be the finder of these cups, and by that notification claims were invited to be filed by 29-3-1956, Only Iqbal Singh and the Court of Wards claimed the property. Iqbal Singh claimed as a finder of the treasure while the Court of Wards claimed the property on the ground that the cups belonged to the Bedi family and they were recover, ed from its land.
The Court of Wards also denied that Iqbal Singh was the finder of these cups. The Collector thereupon started proceedings under Section 7, Treasure-trove Act arid by the impugned order held (1) that Iqbal Singh was not proved to be the finder of the treasure, (2) that the real finder had forfeited his right under Section 6 of the Act and (3) that the cups belonged to the Bedi family and were recovered from its land. On the basis of these findings he ordered the gold cups to vest in the Court of Wards.
3. The grievance of the petitioner is that he was not given sufficient opportunity to put his case before the Collector, and it has been argued by Shrl Faqir Chand Mital on behalf of his client that the Collector appears to have been biassed against Iqbal Singh as the property of the Bedi family vests in him. It is also urged that there are errors which are apparent on the face of the impugned order and the proceedings and that the procedure adopted and errors committed in the order have resulted in manifest injustice to the petitioner.
4. In support of his contentions, the learned counsel has taken me through the proceedings taken by the Collector and his order, I have carefully gone through them. The notification under Section 5 of the Act, as I have already stated, was Issued on 13-11-1954 inviting claims by 29-3-1955. After the Court of Wards and Iqbal Singh had put in their claims the learned Collector started hearing arguments from time to time on points which are not clear on the record.
While these arguments were going on, the petitioner made an application on 8-6-1955 requesting the Collector to frame issues and to record evidence on those issues, but no order was passed on this application, nor was any Issue ever framed. After the conclusion of the arguments, the Collector directed Iqbal Singh on 31-5-1955, to file list of witnesses by 7-6-1956 and to bring non-official witnesses with him. He fixed 7-6-1956 as the next date of hearing.
On that date the petitioner submitted a list of seven witnesses to be summoned on payment of process-fee and other expenses. This list consisted of four officials and three non-officials, and with the exception of the clerk to the Sub-Divisional Officer, Hoshiarpur, and the clerk to the Court of Wards, all witnesses resided outside Hoshiarpur.
The Collector ordered the clerk to the Bub Divisional Officer to be summoned and directed Iqbal Singh to bring witnesses, 3 to 5 (non-officials) with him. He passed no order relating to the other witnesses. The next date fixed was 21-6-1956. Iqbal Singh made an application dated 13-6-1955 that the witnesses were not willing to come Unless summoned by the Collector and prayed that the non-official witnesses may be summoned.
This application, however, was dismissed on 14-6-1955 on the ground that the summons, if issued, would result in unnecessarily delaying the inquiry and the Collector directed the petitioner to produce the witnesses himself as it was for him to prove that he was a finder of the treasure.
On 21-6-1955 the petitioner's counsel again requested the Collector to summon the witnesses but this request was again turned down and the petitioner was given another opportunity to bring his witnesses if he so wished. The case was adjourned to 30-6-1955. No evidence was producedon the adjourned date and the petitioner's case was closed and orders were reserved. It was only on 29-7-1955 that the impugned order was made.
5. There can be no doubt that the Collector when holding an inquiry under Section 7, Treasure-trove Act exercises quasi-judicial powers and under Section 18 of the Act he has all the powers that a civil Court has under the Code of Civil Procedure. The proceedings show that the Collector refused to summon the petitioner's witnesses and insisted that the petitioner should bring them with him in spite of repeated requests that they should be summoned and in spite of the fact that they did not reside in Hoshiarpur. These orders refusing to summon the witnesses were drastic and ultimately had the effect of preventing the petitioner from producing his evidence before the Collector.
There was no apparent reason for this haste In closing the petitioner's case within one month as the learned Collector did not pass the final order till 29-7-1955. By this order the learned Collector has held that Iqbal Singh is not the finder of the treasure and for this purpose he has taken two circumstances against him. The first one is that Iqbal Singh did not produce letters which he alleges he had written to the Sub Divisional Officer, Hoshiarpur, on 25th and 30th June, 1954 asserting himself to be the finder and the other ground taken is that Iqbal Singh did not appear in the witness-box.
Iqbal Singh had, however, summoned this correspondence in his application dated 7-6-1955 and there is nothing on the record to show that summons were over issued although an order to that effect had been passed by the Collector. After the Collector had refused to summon his witnesses, the petitioner may have felt that his bare testimony is not lively to be of much assistance to him.
What is, however, of great importance is that when deciding this matter, the learned Collector relied on two affidavits and on Inquiry held by the police in this connection. The record shows that the Manager, Court of Wards, filed two affidavits on 7-4-1955, when the arguments were being heard by the learned Collector, one purporting to be of one Dhani Ram who has stated in his affidavit dated 20-12-1954 that he was the finder of the treasure and the other of Dhania labourer dated 10-1-1955 corroborating Dheni Ram.
It is clear from the record that 7-4-1955 was not fixed for production of any document and the order of that date does not show that any documents were filed on that day. I may state here that in the impugned order, it is stated that Labhu and Dhanna have filed these affidavits but presumably it is a mistake as on the record I find the affidavits of Dhani Ram and Dhanis Only. These affidavits are not evidence against Iqbal Singh Who was asserting himself to be the finder of the treasure and whose name was mentioned as such in the notification under Section 5 of the Act.
It appears that the police made certain enquiries on 29-6-1954 when these nine gold cups were taken into possession. The recovery memo and statements of various persons recorded by the police on that date are on the record, but It la not clear when these documents were placed on the record and by whom.
The proceedings do not indicate if these papers were summoned and if so by whom. Obviously these statements recorded by the police cannot be considered to be evidence in the case as they have not been proved on the record. To my mind these are errors apparent on face of the record and they have obviously resulted in manifest Injustice to the petitioner.
6. The learned Collector has also found that the treasure belonged to the Bedi family and was recovered from a place belonging to the family. The claim of the Bedi family was contested by Iqbal Singh. As I have already said no issue was framed, nor was the Court of Wards ordered to produce any evidence in support of this claim. Tne burden of proving this claim was on the Court of Wards and yet it was not required to produce any oral or documentary evidence, nor do the various orders passed by the Collector show that any document was produced by the Department.
The record, however, shows that the Manager, Court of Wards, asked the Una Tehsildar by letter dated 28-5-1955 to issue a certificate that the place where Iqbal Singh was digging earth belonged to the Bedi family and on the reverse of this letter is the Patwari's report. Further there is a letter dated 24-11-1954 by the Naib Tehsildar (Land Acquisition Officer) to the Deputy Commissioner that the Government has not acquired any land be-longing to the Bedi family.
The record also contains copies of Jamabandi and girdawari and an agreement dated 30-3-1884. This agreement was produced by the Manager, Courts of Wards, on 7-4-1955. The learned Collector has relied on these documents, but it is not known these documents find place on this record. On the basis of these documents the learned Collector relying on Sections 11, 12 and 15 of the Treasure-trove Act has held the Bedi family to be entitled to the gold cups. These sections do not lay down that if the finder of the treasure is not found then the property is to be given to the owner.
Sections 11 and 12 come into operation only when the property is declared ownerless under Section 9. Section 15 becomes operative only when a claimant other than the finder flies a suit in a civil Court and obtains a decision. Admittedly, in the present case, no claimant has obtained a decision from a civil Court as yet. Therefore, it must be held that the order of the learned Collector holding that the treasure recovered belonged to the Bedi family or that it was recovered from the land belonging to the Bedi family is vitiated by errors apparent on the face of the record.
7. Ordinarily, I would not have interfered with the order of the Collector on the merits, but in the circumstances of this case I have come to the conclusion that the proceedings taken by the Collector after 29-3-1955 and his order dated 29-7-1955 must be set aside. The property of Bedi Devin-dar Singh vests in the Deputy Commissioner, Ho shiarpur. Bedi Madhusudan Singh is the son of the ward and works as Manager under the Deputy Commissioner.
The effect of the Impugned order is that the treasure now vests in the Deputy Commissioner. The Manager, Court of Wards, as the son of the ward, was vitally interested in the result of the inquiry which was being held by the learned Collector under Section 7 of the Treasure-trove Act. His Manager was under an obligation to prove his claim and for this purpose he had to produce evidence before the Collector, acting under the Treasure-trove Act, on behalf of the Deputy Commissioner under the Court of Wards Act.
Thus the Collector under the Treasure-trove Act had to decide on the merits of the claim made by him as Deputy Commissioner on behalf of the Court of Wards. In such circumstances, it can be easily said that the Collector was the Judge in his own cause. Shri Tek Chand, learned counsel for the respondents, urged before me that the Deputy Commissioner has to perform various functions under different Acts and for this reason the correctness of the decision given by him should not be suspected.
In the present case, however, the proceedings show that the petitioner was not allowed sufficient opportunity to put his case before the Collector and an order against the petitioner was passed on evidence which was not evidence against him and on documents which were not proved in accordance with law.
8. In Rex (Donoghue) v. County Cork JJ., (1910) 2 IR 271 (A) Lord O'Brien, C. J., observed:
'I adhere to what I said in R. (Tayerner) v. Tyrone JJ., (1909) 2 IR 763 (B). I then said, (p. 768), A passage has been cited from the judgment of a distinguished judge. Lord Esher, in Eckerley v. Mersey Docks & Harbour Board (1894) 2 QB 637 (C). (Lord O'Brien read the above passage (p. 670) from Lord Esher's judgment, and continued:) ....That in my opinion, goes too far. It makes the mere suspicions of unreasonable persons a test of bias. I think that the judgment was not a considered one, and that Lord Esher made use of some loose expressions. We decline, on a consideration of the cases, to go so as that very eminent judge.
There must, in the words of Backburn J., be 'a real likelihood' of bias: B. v. Rand, (1866) 1 QB 230 (D) In R. (De vesci) v. Queen's Conty JJ. (1908) 2 IR 285 (E). I expressed myself as follows: 'By 'bias' I understand a real likelihood of an operative prejudice, whether conscious or unconscious. There must, in my opinion, be reasonable evidence to satisfy us that there was a real likelihood of 'bias'.
I do not think that the mere vague suspicions of whimsical, capricious, and unreasonable people should be made a standard to regulate our action here. It might be a different matter if (suspicion rested on reasonable grounds was reasonably generated -- but certainly mere flimsy, elusive morbid suspicions should not be permitted to form a ground of decision.'
and this statement of law has been approved and reproduced in R. v. Camborne Justices, Ex parte Pearce, (1954) 2 All ER 850 (F). I am in respectful agreement with this statement of law. Applying this test to the present case I am of the opinion that there was a real likelihood of an operative prejudice, although unconscious, in the mind of the Collector, Hoshiarpur, when he held the inquiry under Section 7, Treasure-trove Act, and the proceedings taken and the order passed by him do not remove the suspicion that this bias may have affected his mind in exercising his discretionary power in summoning witnesses and in closing the petitioner's case.
This, to my mind, is by itself enough in the interests of justice to oblige this Court to grant the order of certiorari. Such a likelihood of prejudice or bias is by itself sufficient for quashing the order as was held in R. v. Grimsby Borough Quarter Sessions, Ex parte Fuller (1955) 3 All ER 300 (0).
9. For the reasons, I quash the proceedings taken by the Collector, Hoshiarpur, under the Treasure-trove Act, after 29-3-1955 including his order dated 29-7-1955.
10. The petitioner will get the costs of thispetition from the respondents. Counsel's fees Rs.100/-.